ARB CASE NO. 98-067
ALJ CASE NO. 97-ERA-52
DATE: February 29, 2000
In the Matter of:
MARIANNE GRIFFITH,
COMPLAINANT,
v.
WACKENHUT CORPORATION,
RESPONDENT.
BEFORE: THE ADMINISTRATIVE REVIEW BOARD
Appearances
For the Complainant: Marianne Griffith, Pro se, Pittsgrove, New Jersey
For the Respondent: Adin C. Goldberg, Esq., Whitman, Breed, Abbott & Morgan,
LLP, New York, New York
For theAmicus Curiae:
J. Michael McGarry, III, Esq., Donn C. Meindertsma, Esq., Winston &
Strawn, Washington, D.C.; Jeffrie J. Keenan, Esq., Public Service Electric & Gas Co.,
Hancocksbridge, New Jersey
FINAL DECISION AND ORDER
This case arises under §5851 of the Energy Reorganization Act and its
implementing regulations. 42 U.S.C. §5851 (1995) (also referred to in some decisional law
as §211) ; 29 C.F.R. Part 24 (1999). Section 5851 prohibits an employer from discriminating
against or otherwise taking an unfavorable personnel action against an employee with respect to his
[Page 2]
or her compensation, terms, conditions, or privileges of employment because the employee engaged
in protected whistle blowing activity. Id. at §§5851(a)(1), (b)(3)(C). Section
5851 authorizes the Secretary of Labor to afford personal relief to an employee who has been
subjected to an unlawful unfavorable personnel action by ordering the violating employer to take
affirmative action to abate the adverse personnel action, reinstate the complainant to his or her
former position with back pay, and award compensatory damages, including attorney fees.
Id. at §5851(b)(2)(B).
Marianne Griffith, a security guard employed by Wackenhut Corporation at
the Salem and Hope Creek nuclear power plant in southern New Jersey at all relevant times, filed
a complaint under §5851 with the Department of Labor in February 1997. Griffith alleged that
Wackenhut violated this provision by suspending her for three days without pay in August 1996
because she reported a security breach to Wackenhut officials. Wackenhut defended on the ground
that the suspension was imposed not because Griffith reported the security breach, but because she
did not report it until six weeks after it occurred. Griffith's failure to make a timely report constituted
a deliberate violation of the facility's safety rules, according to Wackenhut, and therefore was not
protected by the Act. 42 U.S.C. 5851(g), "Deliberate violations." Wackenhut further
defended on the ground that the suspension did not constitute discrimination or an
"unfavorable personnel action" within the meaning of §5851 because the company
unilaterally, immediately, completely and before Griffith complained to the Department of Labor
rescinded the suspension and made Griffith whole.
The administrative law judge (ALJ) recommends that we find Wackenhut
Corporation in violation of §5851. In his view, Griffith's report of a security breach was
protected activity, late or not, and not subject to discipline of any kind. ALJ Rec'd Dec. (Jan. 22,
1998).
Wackenhut petitioned for review of the ALJ's recommended decision. We
have jurisdiction over this petition for review pursuant to 29 C.F.R. §24.8. We conclude that
the complaint must be dismissed for lack of an unfavorable personnel action. Therefore, we do not
reach the question whether Griffith 's complaint is precluded under §5851(g).
1 References to the transcript appear as
"Tr." followed by the transcript page number. References to Complainant's exhibits
appear as "C. Ex." followed by the document number and page number if relevant.
References to Respondent's exhibits appear as "R. Ex." followed by the document
number and page number if relevant.
2 The record does not include what
Griffith filed with the Department.
3 ESA's letter was not entered into
the record. However, Wackenhut relied heavily on its content in its briefs. Thus, Wackenhut waived
any objection to its consideration by us, and we take official notice of it. 5 U.S.C. §556(e).
4 Subsection 5851(b)(3)(C) uses
the term "unfavorable personnel action." Throughout this decision we use
"unfavorable personnel action" as well as "adverse employment action" as
convenient shorthand for the larger formulation expressed in §5851(a)(1) -- "discharge
or otherwise discriminate against any employee with respect to his compensation, terms, conditions,
or privileges of employment."
5 Wackenhut also argues that
Griffith's complaint should be dismissed because the sole allegation in her complaint to the
Department of Labor was that Wackenhut retaliated against her for reporting the crane gate incident
to the NRC. As we have gone to some pains to clarify in our findings of fact, Griffith's alleged
report to the NRC has been a red herring in the case. The question whether Wackenhut violated the
Act by suspending Griffith for not reporting the crane gate incident the day it occurred was tried by
consent.
Moreover, Griffith represented herself in this case. Pro se
complainants are by nature inexpert in legal matters, and we construe their complaints liberally and
not over technically. In re Helmstetter v. Pacific Gas & Electric Co., No. 91-TSC-1 (Sec'y
Labor, Jan. 13, 1993); cf., Sawyer v. American Fed. Gov't Employees, AFL-CIO, 180 F.3d
31 (2d Cir. 1999).
6 PSE&G's June 17, 1998 Motion
for Leave to File a Brief Amicus Curiae is granted.
7 Consequently, we have framed
and addressed such arguments and rebuttal as seem implicit in Griffith's testimony. Pro se
complainants must understand, however, that our resources are limited and simply cannot be
stretched to perform this service regularly. Cf. Dozier v. Ford Motor Co., 702 F.2d 1189,
1194 (D.C. Cir. 1983) ("At least where a litigant is seeking a monetary award, we do not
believe pro se status necessarily justifies special consideration. * * * While such a pro se litigant
must of course be given fair and equal treatment, he cannot generally be permitted to shift the burden
of litigating his case to the courts, nor to void the risks of failure that attend his decision to forgo
expert assistance").
8 The Atomic Energy Commission
and the Nuclear Regulatory Commission both have used this power to great effect. See, e.g.,In re Union Electric Co. (Callaway Plant), ALAB-527 (NRC Atomic Safety and Licensing
Appeal Board, Feb. 23, 1979); In re Duke Power Co. (Catawba Nuclear Station), Nos. 50-
413, 50-414 (NRC Office of Inspection and Enforcement, June 4, 1985); 10 C.F.R. Parts 19, 30, 40,
50, 60, 70 and 72 (1998).