U.S. Department of Labor Office of Administrative Law Judges
2600 Mt. Ephraim Avenue
Camden, New Jersey 08104
DATE: December 2, 1998
CASE NO.: 97-ERA-00056
In the Matter of
DOUGLAS W. FOLEY
Complainant
v.
BOSTON EDISON COMPANY
Respondent
Appearances:
Douglas W. Foley
Pro Se
Keith Muntyan, Esquire
Robert Morris, Esquire
For Respondent
Before: ROBERT D. KAPLAN
Administrative Law Judge
RECOMMENDED DECISION AND ORDER
This case arises under section 210 of the Energy Reorganization Act of 1974,
as amended, 42 U.S.C. §5851 (the "ERA" or the "Act"). The Act
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protects employees who assist or participate in actions to carry out the purposes of the federal
statutes regulating the nuclear energy industry. Section 210 provides, inter alia, that
"no employer may discharge any employee or otherwise discriminate against any employee
with respect to compensation, terms, conditions, or privileges of employment because the employee
. . . notified his employer of an alleged violation of this chapter or the Atomic Energy Act of 1954
(42 U.S.C. §2011, et seq.)." 42 U.S.C. §5851(a)(1)(A). The Secretary of Labor
is empowered to investigate and determine "whistleblower" complaints filed by
employees at facilities licensed by the Nuclear Regulatory Commission (the "NRC")
who are allegedly discharged or otherwise discriminated against with regard to their terms and
conditions of employment for taking any action relating to the fulfillment of safety or other
requirements established by the NRC.
The claim in the instant case is brought by Douglas W. Foley
("Complainant") against his former employer, Boston Edison Company
("Employer" or "Respondent"). A hearing was held before me in Providence,
Rhode Island on November 4-5, 1997. The parties were afforded a full opportunity to adduce
testimony, offer evidence and submit post-hearing briefs. Claimant and Respondent filed briefs on
September 21, 1998.
Complainant contends that because he raised a "safety concern"
regarding the calibration and use of testing equipment, Employer subjected him to adverse
employment actions. Respondent argues that Complainant's action is time-barred and that, even if
Complainant's complaint were timely, Complainant never raised safety concerns and therefore he
did not engage in "protected activity" under the Act. Finally, Respondent contends that
it did not subject Complainant to any adverse employment action or retaliatory discrimination
because he engaged in protected activity under the Act.
1.
Whether Complainant's expressions of concern regarding the hardness tester machine on
May 29, 1995, and on several dates in June 1995, and his refusal to use this device, constitute
protected activity under the ERA.
2.
Whether Complainant filed a timely complaint with regard to Respondent's allegedly
discriminatory 1995 actions.
3.
Whether Respondent's allegedly discriminatory acts violate the ERA.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
Summary Of The Evidence
Complainant holds a bachelor of science degree in engineering from the
Merchant Marine Academy and a master's degree in business administration from Western New
1 At the hearing, I ordered the case
bifurcated into separate proceedings for liability and remedy. This decision will address only the
issue of Respondent's liability.
2 The following abbreviations are
used herein: "CX" refers to Complainant's exhibit; "RX" refers to
Respondent's exhibit, and "TR"refers to the transcript of the November 1997 hearing.
3 In the several months before May
29, 1995, Sullivan had experienced problems with the RHT's "B"scale. The RHT's
vendor's representative advised Sullivan that it was appropriate to use the "A" scale,
notwithstanding the problems with the "B" scale. (RX 1, pp.16-17)
4 Employer's investigation of
Complainant's past work performance revealed that he had falsified records: Complainant reported
that he had inspected parts which remained sealed in plastic bags even though, as he admitted, the
inspection could not have taken place without removing the parts from their bags. Complainant
testified that his conduct constituted a "mistake" rather than "falsification."
(TR 159-162)
5 On October 30, 1995, John Cibelli,
human resources manager at the Pilgrim plant, reduced Complainant's suspension from 20 days to
three days. This decision was based on Cibelli's review of "further information regarding the
practices of receipt inspections at [the] Pilgrim [plant]...." (CX 18, RX 1, p. 24)
6 Under 29 C.F.R. Part 24, the
Secretary has delegated the authority to investigate complaints under the ERA to the Assistant
Secretary of the Occupational Safety and Health Administration ("OSHA''), effective for all
complaints received on or after February 3, 1997. Prior to February 3, 1997, the Wage and Hour
Division of the DOL was assigned this task.
7 Complainant concedes that his
anonymous telephone conversations with Mr. Daly do not constitute a complaint. (TR 197)
8 Complainant also generally alleges
that he was subjected to continuing harassment and intimidation, a claim which is addressed below
in the analysis of whether Complainant has established a "continuing violation."
9 At the hearing, complainant also
alleged that Respondent "deliberately" disposed of the personal contents of his office
after his transfer. (TR 244-247) However, as Complainant did not identify this act in his written
complaint, and as Complainant admitted at the hearing that there was no evidence that Respondent
deliberately discarded his belongings (TR 245), this act cannot be found violative of the ERA.
10 Complainant may have obtained
misinformation from his own attorney. Complainant testified that on November 2, 1995 he
consulted with his attorney regarding Respondent's alleged discrimination. (TR 479-480) Further,
it therefore appears that Complainant was not a lay person who was acting wholly without his own
private attorney's advice within the 180-day period.
11 Despite the similar language
used in Dartey, that case did not involve a filing in the wrong "forum," but
merely in the wrong subagency of the DOL.
12 Therefore, I need not make a
determination as to whether Respondent's 1995 actions against Complainant violated the ERA.
However, at first blush, it appears Complainant could establish a prima facie case that
Respondent's 1995 acts were discriminatory.
13 Employer made this
accommodation for Complainant notwithstanding the fact that over the years it has had "huge
reductions" in the number of employees at its corporate center, and its corporate office has
reduced "by the hundreds" the number of professionals and engineers who hold the same
degree and qualifications that Complainant has attained. (TR 493)