Date issued: Jan. 26, 1996
Case Nos.: 93-CAA-9, 93-ERA-55
In the Matter of:
LENARD E. TRIMMER,
Complainant,
v.
LOS ALAMOS NATIONAL LABORATORY,
AND UNIVERSITY OF CALIFORNIA,
Respondents.
Appearances:
Stephen M. Kohn, Esquire
For Claimant
Faith L. Kalman, Esquire
Daniel H. Friedman, Esquire
For Respondents
Before: JAMES GUILL
Associate Chief Administrative Law Judge
RECOMMENDED DECISION AND ORDER
This proceeding arises under the Energy Reorganization Act
of 1974, as amended, 42 U.S.C. § 5851 ("ERA" or "Act") and
the regulations promulgated and published at 29 C.F.R. Part 24 to
implement the Act. On March 23, 1993, Lenard E. Trimmer
("Complainant") filed a complaint with the United States
Department of Labor alleging that the Los Alamos National
Laboratory ("LANL" or "Lab") and the University of California
("UC"), its contractor, discriminated and retaliated against him
because he raised health and safety concerns regarding conditions
and occurrences at the Lab.
A formal hearing before the undersigned was held in Santa
Fe, New Mexico on October 4-8, 1993 and March 14-17, 1994. At
the hearing the parties were afforded a full opportunity to
present
[PAGE 2]
evidence and argument. Complainant's final argument (brief) was
received on October 3, 1994, and Respondents' final argument
(brief) was received on November 1, 1994. The findings and
conclusions which follow are based upon my observation of the
appearance and demeanor of the witnesses who testified at the
hearing, and upon an analysis of the entire record in light of
the (1) statutory provisions, (2) regulations, (3) applicable
case law, and (4) arguments presented.
Findings of Fact and Conclusions of Law
I. Employment Background
Complainant first began working at the Lab as an employee of
the University of California on December 17, 1962 (TR 201-02).[1]
The University of California was and continues to be the
contractor operator of the Department of Energy facility located
at Los Alamos, New Mexico. From 1962 until 1987, he worked in a
nondestructive testing group, achieving the grade level of "Tech
4," or a level four technician (TR 204-05). In 1987, he suffered
an on-the-job back injury. Complainant continued to work, off
and on, at his position until July 1988 when he was declared
unfit for duty due to the effects of his injury (TR 207).
Complainant first saw Dr. George Swajain, an orthopedic
surgeon, on June 13, 1988; he complained of pain in the neck and
upper back, numbness in the fingers, and pain in the lower back
radiating to his lower extremities (TR 257-58). Dr. Swajain
continued to see Complainant periodically, and his last visit, at
the time of the hearing, was September 8, 1993. Complainant's
impairment rating from year to year stayed fairly constant,
averaging between 15.5 to 19 percent, indicating to Dr. Swajain
that the condition was permanent (RX 1, p. 7-8; TR 260). Dr.
Swajain did not relate the impairment to Complainant's job
because Dr. Swajain did not have a job description. However,
according to the Department of Labor standards, Dr. Swajain
classified Complainant as fit for light duty work, which cleared
him for occasional lifting of 20 pounds, frequent lifting of 10
pounds, and standing and sitting for only 30 to 40 minute periods
(CX 95; RX 1; TR 208, 260-61, 263-65). These work restrictions
have also remained constant (TR 262).
Meanwhile, according to his wishes, the Lab placed
Complainant in a new position during December of 1988 (seeinfra, 1988 Alternate Placement Search), and Dr. Swajain
saw Complainant again on May 29, 1990. He noted that Complainant
had increased lower back pain reportedly due to pushing 55 gallon
drums on dollies for the preceding five months; his pain and
soreness had increased
[PAGE 3]
gradually since starting this type of work (TR 277). Dr. Swajain
had the impression that he was performing this activity all day
long, and this work did not fall into the light duty category (TR
278). On September 17, 1991, Dr. Swajain noted that Complainant
should be restricted to very light or sedentary activities, which
excludes the pushing of 55 gallon drums (RX 1; TR 283). Dr.
Swajain testified that emotional stress could aggravate an
individual's physical pain (TR 285).
II. 1988 Alternate Placement
In December 1988, Complainant informed the Lab that he
wanted to be placed on "alternate placement," which is the Lab's
program for returning injured employees to positions within the
Lab that fit their new work restrictions (TR 207).[2] To
implement the alternate placement process, Complainant contacted
the Lab's Equal Employment Opportunity Office (EEO) and gave Sue
Simmons, an EEO specialist, his resume (TR 211, 1984-85). In
less than one month, with no effort on his part, Complainant was
assigned to the Environmental Management (EM) Division,
specifically EM-7 (TR 212). Complainant was placed in this
position because he was already qualified as a nondestructive
testing technician specialist, and because he was already a
full-time employee, his move could be facilitated through
"directed transfer," which obviated the need to advertise the
position (RX 45, p. 6; TR 221, 1986). Ms. Simmons testified that
she had never seen an alternate placement occur so rapidly and
that during this time period, alternate placement was successful
in only about 10 percent of the cases (TR 1987). John Warren,
the section leader of EM-7, was Complainant's immediate
supervisor,[3] and Anthony Drypolcher was the group leader and
next up in the chain of command (TR 41, 222-23).
The EM Division dealt with radioactive waste that was
potentially harmful to human health and the environment (TR 42,
1398-99). Complainant worked in Technical Area 54 (TA-54), area
G, which was a waste management facility under Drypolcher's
supervision (TR 76). Area G stores transuranic waste, which has
a higher concentration of radioactive material than low-level
waste, but not as much as high-level waste (TR 77, 79). EM-7 is
responsible for mixing some of the waste generated at LANL with
concrete and containerizing it in drums or barrels (TR 1469).
This facility was designed to examine transuranic drums prior to
their shipment to the Department of Energy's Waste Isolation
Pilot Project (WIPP) in Carlsbad, New Mexico, which has not yet
opened (TR 93-94, 729). Before waste would be accepted there,
however, it had to meet certain specifications limiting the
amount of radioactivity that could emit from the waste barrels
(TR 1110). These requirements, established to ensure the safe
transportation,
[PAGE 4]
handling, and disposal of hazardous materials, are continually
changing (TR 1091-92, 1095-96). The EM-7 section held weekly
safety meetings at which employees could raise and discuss any
concerns or questions that they had.
III. Safety concerns
Complainant's new work within EM-7 was safety-related, and
his duties included the nondestructive testing of barrels of
waste, training other technicians in the operation and use of the
testing equipment, and assuring there was an adequate number of
people to maintain the equipment. Occasionally he was required
to move barrels using a forklift (TR 223-24). Complainant
testified that he was told on numerous occasions that his job was
to address safety concerns and that safety was the "bottom line"
(RX 36; TR 532). While performing these duties, he raised
several safety concerns, including the improper functioning of
the testing equipment, the certifying of barrels for shipment to
WIPP without meeting the proper requirements, leaking containers,
inadequate health monitoring practices, and employees working
without the proper training or proper clothing (TR 44, 224-25).
Complainant raised these concerns to Harper and Drypolcher, and
to Mr. Dross, a higher level supervisor (TR 225-26, 1834);
however, he knew that his supervisors were aware of some of these
problems before he raised them and that some had already been
reported to outside agencies (TR 533-35). Some of the barrels in
the storage dome where Complainant worked contained radioactive
materials or plutonium (TR 42), and several of the barrels in
this area exhibited signs of rust or corrosion (CX 19; TR 1111).
Complainant concluded that the barrels were in this condition
because fluid was leaking out (TR 356).
Jack Vigil, a 15 year employee of the Lab, worked in EM-7
with Complainant (TR 713-14). He testified that he and Mr.
Flavio, the other technician, did most of the pushing of barrels
because they had been told that Complainant had some physical
limitations (TR 728). However, he said that the flooring was
concrete, and thus, it was not difficult to push the barrels, as
they were on dollies (TR 732). Mr. Vigil also testified that
Complainant had spoken of safety concerns to him (TR 741).
Mr. Drypolcher recalled Complainant's concern that the
equipment used to scan the barrels, which contained waste and
were stored in TA-54, area G, were not functioning according to
the specifications required (TR 44). Mr. Drypolcher testified,
however, that the equipment was new and that the barrels were
actually being assayed to test and/or calibrate the equipment (TR
46-47, 94). Bruce Reich, a staff member in the waste management
[PAGE 5]
group, concurs with Drypolcher's testimony on this fact (TR
1098). The contents of the barrels were known, and thus, one
could ascertain the functioning of the equipment by comparing its
results with what the barrels were already known to contain (TR
46). Mr. Drypolcher acknowledges that there were defects in the
equipment (TR 49, 95), and because EM-7 has the responsibility
for mixing some of the waste with concrete and putting it into
barrels for storage, he, Drypolcher, would be concerned if drums
from this treatment facility had evidence of water leakage (TR
1469-70).[4]
After being assayed through the equipment, stickers reading
"WIPP certifiable" were placed on the barrels (TR 95-96, 1152),
though Drypolcher stated that this practice was not required (TR
97). He emphasized that these stickers did not signify that the
drums were certified to be sent to WIPP (TR 98). In fact, he
testified that they had no relation to WIPP, but that their
purpose was related to identification procedures upon which his
crew had decided, though he does not know exactly why the
stickers were placed on the barrels (TR 106). Complainant
labored under the belief that these stickers signified that the
barrels had been assayed and were ready for shipment to WIPP (TR
234, 239).[5]
Mr. Vigil testified that he understood WIPP was not open and
that the equipment in area G was being used to get the operators
familiar with it, to compare databases, and to test the equipment
by running the drums through it (TR 729-30). He was also of the
opinion that if WIPP was to open, the drums that had been tested
and tagged with "certifiable" stickers would have to be run
through the equipment again (TR 731-32, 1100). Complainant also
acknowledged this same understanding at the hearing (TR 611).
Andrew Catanach has been employed by LANL and UC for nine
years and works in the EM Division (TR 168). For a time he car-
pooled with Complainant to work, and during that time Complainant
mentioned certain safety concerns to him (TR 170). Mr. Catanach
took pictures of some drums in the TA-54 dome that he thought
were leaking (CX 19, B; TR 173, 177). The photos were to be used
by the Lab, but they were not clear enough. Although Catanach
was supposed to discard them, he gave them to Complainant instead
because he thought they would corroborate Complainant's concerns,
and he wanted to give them to the right people for safety reasons
(TR 176-77). Mr. Catanach never raised any safety concerns at a
Friday meeting because he thought that management already knew of
the problems (TR 179). However, Catanach also thought that the
drums marked "certifiable" were ready for shipment to WIPP (TR
174).
[PAGE 6]
Mr. Catanach testified that he had been subpoenaed to give
testimony at a deposition and that afterwards he felt as if he
was being singled out by his supervisors; they started checking
up on how he spent his time and whether he went to class (TR
169). On cross-examination, Catanach testified that he had been
questioned about his use of sick leave and attendance prior to
the subpoena (TR 181-82, 189). He also knew that the Lab had
concerns about some of the drums and were performing tests to
determine the source of the problems (TR 185), though he was not
involved in the study of those drums (TR 197).
Keith Carter, who had worked at the Lab for more than 20
years, made complaints of discrimination after raising health and
safety concerns (TR 1137). He worked in EM-7 from April 1986
until April 1992. While working at EM-7, Carter was responsible
for inspecting barrels for leaks and corrosion and for reporting
on the condition of the drums so that they could be studied or
remediated (TR 1247-48, 1304). The matter of corroding drums was
raised at the weekly safety meetings, which Carter tape recorded
(TR 1323- 244, 1344-45). Mr. Carter was later transferred to the
Audit and Compliance Office until he retired in November 1993 (TR
1138). Mr. Carter viewed this transfer as punishment for his
safety-related activities (TR 1222). However, he testified that
this new assignment provided him with more opportunity to give
documents and information relating to his concerns to Complainant
(TR 1206). In 1992, Carter took photographs of drums and gave
them to Complainant (TR 1256-58). He also testified that he was
told that the barrels with stickers had been certified for
shipment to WIPP (CX 104; TR 1154).
Before his transfer to Audit and Compliance, Carter had
received two critical memoranda from his supervisors (TR 1292-93,
1339). He was also suspicious of a performance appraisal that he
was asked to sign; he refused to sign it because it had not been
filled out (CX 110; TR 1226-27). Apparently, Drypolcher had
attempted to explain to him that this was standard procedure, so
that employees would understand what is expected of them, but
Carter refused to sign it until it had been completed (TR 1229).
In May of 1993, Carter filed a whistleblower complaint against
LANL (TR 1225-26). However, he dropped his suit when given
retirement incentives (TR 1230). Mr. Carter claimed that he also
retired because he felt that he would be unable to return to his
prior job because there were no openings in that area of EM-7 (TR
1346, 1374-75).
On his June 20, 1988 performance appraisal for work done in
EM-7, Complainant received two "Needs Improvement" ratings, and
he
[PAGE 7]
does not contend this rating was in retaliation (RX 23; TR 504).
However, after he voiced his safety concerns in 1989 and 1990
(seesupra), he perceived a change in attitude
towards him by his supervisors (TR 306); he felt they were angry
and did not want him around anymore (TR 307). On November 28,
1990, Complainant met with supervisors Vigil and Harper, who
asked him not to talk about his grievances during work time, as
it was disturbing the other employees and undermining the
other technicians' ability to work with him (TR 608, 742-43,
1833). Complainant became upset and immediately went to the Lab
physician, who sent him home (TR 308, 610-11). This was the last
day Complainant was ever to work at the Lab. When he exhausted
his sick leave and his vacation time, his status became "on leave
without pay" (TR 308). On December 19, 1990, even though
Complainant was not reporting to work at the Lab, Drypolcher
issued a memorandum instructing Complainant not to use the
copying machine for his personal use, as there had been reports
by other employees that he had been doing so (CX 65, 66; TR 64,
67). On January 20, 1991, Drypolcher sent a letter to
Complainant informing him that his job slot was needed elsewhere
in the Division, and it had therefore been moved to another
section. Accordingly, Complainant's job position no longer
existed (RX 45, p. 13; TR 1598, 1709-10). On January 31, 1991,
Complainant wrote to Drypolcher and informed him that he was
interested in alternate placement (RX 45, p. 15; TR 1710).
Complainant also mentioned his health and safety concerns and
noted that they had not been addressed in any way (RX 45, p. 15).
On April 27, 1988, after his back injury, Complainant began
visiting a clinical psychologist, Dr. Elliott Rapoport, (RX 2; TR
760, 773). Dr. Rapoport testified that Complainant's primary
problem was physical, but that he had significant secondary
psychological difficulties (TR 774). Dr. Rapoport recalled that
Complainant had been experiencing an acute situational reaction,
which should have precluded him from operating heavy equipment or
being involved in situations where mistakes could be costly to
others; operating forklifts was contraindicated (TR 775-76). Dr.
Rapoport noted that Complainant had been upset about being
required to perform work which exceeded the physical limitations
set forth by his physician (TR 776).
More specifically, at a December 5, 1990 meeting with Dr.
Rapoport, Complainant reported that he felt harassed and punished
at work because he was forced to work beyond his physical
capabilities (RX 2, p. 9; TR 781-82).[6] He told Dr. Rapoport
that the Lab was discriminating against him because of his
disability (RX 2, p. 11; TR 785).[7] He was also concerned that
he might be eliminated in a reduction in force (RIF), especially
if he had to
[PAGE 8]
change positions due to his medical condition (TR 788, 792).
Complainant, however, did not mention that he felt intimidated
because he had raised safety concerns;[8] in fact, Dr. Rapoport
did not even know that Complainant had reported safety problems
until the Saturday preceding his testimony at the hearing of this
claim when he read the February 28, 1992 article from The
Santa Fe New Mexican (see infra) (TR 782-83).
Although Dr. Rapoport did not diagnose Complainant with a
paranoid disorder, he felt that his thinking had a paranoid-like
orientation (RX 2, p. 10, 24; TR 784, 793). This suggested to
Dr. Rapoport that Complainant was under a great deal of stress
(TR 784, 797). This assessment was confirmed by a psychological
profile that indicated Complainant was sensitive to the reaction
of others and suspicious of other's motivations (RX 2, p. 32; TR
801).
Dr. Jerry D. Williams, the Lab's Medical Director, first met
with Complainant on February 19, 1991 to define together very
specific work restrictions that would not only provide
Complainant an envelope of safety, but also restrictions that, if
adhered to, would serve as expectations to which he could work
(TR 555, 829, 832). Dr. Williams wanted to delineate
restrictions that would allow Complainant to work regularly on a
full-time basis (TR 832). According to Dr. Williams, Complainant
had a large degree of input in formulating these restrictions
(TR 833). Dr. Williams testified that, in actuality, Complainant
gave or listed the restrictions for Dr. Williams (TR 834). This
would insure that the restrictions would satisfy both the medical
requirements and Complainant's working concerns (TR 834).
On March 19, 1991, they met again to review the limitations
that were generated at the first meeting (TR 833-34). A lifting
restriction of 15 pounds was imposed, based on Complainant's own
assessment and Dr. Swajain's recommendation that he be limited to
light duty (TR 834-35). There were also restrictions on pushing,
because Complainant had mentioned having to push 55 gallon drums,
and on climbing, such as ladders (TR 835-37). Complainant was
also instructed to avoid cold temperatures and prolonged standing
on concrete floors. Complainant concurred with all the
restrictions, and it was normal practice to take the employee's
input into account (RX 7; TR 556, 838). Complainant described
these limitations as very restrictive (RX 8; TR 566), but
Complainant believes that if these guidelines are adhered to he
could be employed on a regular basis without much difficulty (RX
1, p. 8; TR 211). Generally, Dr. Williams agreed with Dr.
Swajain's analysis (TR 847). Dr. Swajain found some of Dr.
Williams' limitations overly restrictive (TR 267-68).
[PAGE 9]
IV. 1991 Alternate Placement
Complainant's health case management file shows that Sue
Simmons conducted a Division-wide alternate placement search,
which was deemed unsuccessful on June 5, 1991 (TR 975). She then
conducted a Lab-wide search, which she closed when she learned
that Complainant was applying for retirement benefits and after
Complainant asked her to "hold off" on the search (TR 975,
1990).[9] However, Simmons resumed this search, at least by
July 17, 1991, when she learned that his retirement had not been
effectuated (TR 975). She does not recall him ever requesting
that she recommence the search (TR 1990). Complainant, however,
disputes that he ever instructed Simmons to hold off on his
alternate placement search (TR 590, 670).
In August 1991, Complainant's retirement system granted him
disability benefits, which was 40 percent of his salary, because
he was deemed no longer able to perform his job (TR 309-10).
Prudential Insurance paid him 26 percent of his salary, which,
when combined, totalled two-thirds of his salary (RX 3, p. 5; RX
20; TR 311).[10] Complainant testified that he had also applied
for early retirement in case his disability benefits were not
approved (TR 312). However, he failed to follow-up for the
retirement benefits, as his disability benefits were approved (TR
313).
Scott Corwin was Prudential's claim manager assigned to
Complainant's case. He visited Complainant at his residence on
November 5, 1992 to assess his impairment and future vocational
plans (RX 3, p. 30; TR 1615-17). During the interview,
Complainant indicated that the only area besides LANL that would
offer a reasonable occupation was Albuquerque, but that was too
far away. The drive would be approximately 60 miles, but
Complainant could not sit and drive for that length of time (RX
3, p. 32; TR 1618-19).[11] Corwin also reported that
Complainant complained that he was not given an orthopedic chair
at work and that a co-worker once knocked his chair, jarring his
back. Complainant also told Corwin that he "has no intention of
returning to employment at the Lab" (RX 3, p. 31). Complainant
further proffered that because his back symptoms flare-up without
warning, he did not feel he would be a reliable worker or an
asset to an employer (RX 3, p. 32). Corwin noted that
Complainant seemed "comfortable in his current state and [was]
not motivated for change" (id.), and he recommended
Complainant attempt some limited form of self-employment out of
his home (RX 3, p. 33). A telephone call from Complainant is
noted in the Prudential file on April 8, 1991, wherein
Complainant declared that he left his modified job on November
28, 1990 because "he could not take it anymore." He added that
he could not even sit at
[PAGE 10]
a desk to do work (RX 3, p. 128; TR 1650-51). Complainant,
however, testified that he never told Prudential that he had work
restrictions which would prevent him from working (TR 660).
Despite the award of disability benefits, Complainant
testified that he desired to return to the Lab, that he indicated
this preference to his employers on numerous occasions between
November 1990 and December 1992, and that he never told anyone
that he had no intention of returning to the Lab (RX 3, p. 8; TR
315, 366, 510, 516). Complainant testified that he did not apply
for any jobs at the Lab because the last time he utilized the
alternate placement process he did not have to take any such
action (TR 366). He also testified that he was not sent any
information on job openings or any weekly news bulletins until
1993 (TR 366-67). Complainant avers that he never told anyone at
the Lab to discontinue his alternate placement search or that he
was not interested in returning to work at the Lab (TR 368). In
fact, Complainant contends that anytime he spoke to anyone,
inside or outside of the Lab, he expressed a desire to return to
the Lab (TR 366).
On February 28, 1992, an article raising questions about the
safety procedures at the Lab appeared in The Santa Fe New
Mexican, a local newspaper (CX 73; TR 57). This article
quoted Complainant and referred to Lab documents that he had
given to Congress and the press (TR 57). Complainant testified
that he went to sources outside the Lab because he felt that no
one there was paying any attention to his concerns (TR 316). He
showed photographs and documents to Congressman Dingell's
Subcommittee on Oversight and Investigation, the New Mexico
Environment Department, the United States Department of Energy,
the Inspector General, the Department of Energy's Tiger Team, and
the press (CX 19 E-J; TR 353). Mr. Drypolcher testified that
someone at work had shown him the newspaper article and that he
suspected that Complainant was its source (TR 55, 57).[12] Mr.
Carter alleges, but Harper denies, that upon reading the article
Harper uttered an expletive and dashed from the room (TR 1198,
1816-17). Mr. Harper cannot recall if he read the article in the
conference room at work or not (TR 1846). In fact, he denies
that he and Drypolcher, who meet weekly to discuss matters of
joint concern, even discussed this article (TR 1828, 1830).
On March 2, 1992, there was a meeting of Lab officials to
decide what Complainant's employment status was, as it was
realized that he had not actually worked at the Lab in over one
year (TR 984, 1778-79). The March 2, 1992 meeting date had been
scheduled on February 13, 1992, weeks before the article appeared
on February
[PAGE 11]
28, 1992 (CX 18; TR 984, 1601). Although there was a consensus
that Complainant must be sent a letter explaining that he would
be terminated if he did not pursue alternate placement,[13]
managers determined that it could not be sent at that time
without being viewed as retaliatory in response to the article
(CX 18, p. 4; TR 59, 985, 1776-78).
In this correspondence, which was subsequently sent on
December 9, 1992, Drypolcher directed Complainant to advise Sue
Simmons of the EEO Office of his interest in returning to work or
otherwise he would be terminated on January 5, 1993 (CX 5). This
correspondence made Complainant angry and caused him to believe
that the Lab wished to fire him (TR 365, 372).
On December 8, 1992, Complainant attended the Lab's awards
ceremony where Charles Nylander[14] presented him with a 30-year
service award (TR 112). Mr. Nylander said positive remarks about
Complainant and made a favorable impression on him. Complainant
called Nylander the next day and told him that he was a
whistleblower. They had a lengthy conversation concerning his
previous work and his medical disability. Complainant also
mentioned that he felt there was a conspiracy between Drypolcher
and several managers in EM who were trying to withhold
environmental safety and health information from him and that
"Drypolcher was out to get him" (RX 26, p. 4; TR 150).
Complainant expressed his desire to return to work, and they
agreed to meet on December 23, 1992 at Complainant's residence
(TR 113-14, 370). Mr. Nylander spoke with Drypolcher later that
same day, and the matter concerning Complainant came up. Mr.
Drypolcher mentioned that he had just sent the December 9, 1992
letter, referenced supra (CX 5), dealing with
Complainant's possible termination. Mr. Nylander decided to call
and warn Complainant and give him the context in which that
letter was written. He also wanted Complainant to know that he
still intended to meet with him (TR 115-17).
At the December 23 meeting, Complainant displayed to
Nylander and Ray Garde, the deputy group leader under Drypolcher,
a vast amount of documents and photographs related to health and
safety at the Lab (TR 117, 121-22, 158 238). They discussed
Complainant's safety concerns, and Nylander viewed his
"retaliation file" (TR 119). Complainant exhibited photographs
of barrels and areas which he believed posed a safety threat (CX
19, D, F; TR 121-22). Again, Complainant stated that he wanted
to return to work, and Nylander advised him to respond to
Drypolcher's letter immediately (TR 199). Mr. Nylander also
indicated that it was likely that a job for Complainant could be
found within EM-7 (TR 1427). Complainant responded to
Drypolcher's December 9 letter on December 23, 1992,
[PAGE 12]
indicating that he wanted his job back (CX 6).
V. 1993 Alternate Placement
A January 15, 1993 meeting was arranged for Complainant to
meet with Al Tiedman, the Associate Director of Operations,
Nylander, and Drypolcher (TR 123). The Lab's attorney, Sheila
Brown, was also present, but Complainant requested that she
leave, as he did not have his attorney with him (TR 123-25).
Complainant felt this meeting was held because Tiedman genuinely
wanted to hear his concerns regarding health and safety (TR 376,
531). However, he claims that Drypolcher appeared disturbed and
became "red in the face" when the subject of leaking barrels
arose (Id.). Subsequent to this meeting, Nylander, at the
request of Tiedman, undertook the responsibility to investigate
and report on all of Complainant's concerns, and throughout his
investigation, he attempted to remain in regular contact with
Complainant (TR 377).
On January 20, 1993, Drypolcher wrote back to Complainant
explaining that his former position had been filled almost two
years ago and that he must meet four conditions to be
accommodated in an appropriate position at the Lab (CX 7).[15]
Complainant, however, refused to comply with the fourth
condition, which required him to return to the Lab for the 90 day
period in which alternate placement is sought. He would be
returned to salary and would be on site actively pursuing
employment opportunities (CX 7, p. 2). Complainant testified
that he was afraid to give up his disability payments when he was
returned to salary because, if he failed to secure a position, he
thought that his benefits would not be reinstated for six to
eight months; he did not trust that condition (TR 388-89).
Complainant based this belief on a conversation he had with Gil
Suniga, who dealt with benefits at the Lab (TR 1542).
Complainant testified that Suniga advised him not to give up his
benefits (TR 389), and he also testified that he was personally
unaware of any negative impact that not returning to the Lab
would have on his alternate placement search (RX 45, p. 30; TR
393).
However, Complainant also testified that no one ever told
him that he would have to wait six to eight months for his
benefits to be reinstated; that was an assumption on his part (TR
506-07). Mr. Suniga, on the other hand, testified that he only
discussed Complainant's options with him (TR 1544). He counseled
Complainant that he could either accept management's proposal to
come to work on a pay status, which would stop his disability
benefits, or he could request that he be allowed to look for a
job without coming back on pay status (TR 1545). Additionally,
Julianne Holt, a
[PAGE 13]
disability claims manager with Prudential, testified that on
March 10, 1993 she explained to Complainant over the telephone
that, although his disability benefits would cease if he went on
pay status while looking for a job, Prudential would commence
paying him again once his salary was stopped (RX 3, p. 12; TR
1644).
By letter dated March 9, 1993, the Lab agreed to waive this
requirement for Complainant. However, Complainant felt that this
response from Drypolcher was threatening and intimidating because
Drypolcher advised him that his disability payments could be
disallowed anyway due to other medical opinions that stated he
was able to return to work (CX 9; TR 390-91). Complainant
perceived this to be a conspiracy against him because of his
whistleblowing activities (TR 391). Brenda Groves, who worked as
an employee relations specialist at LANL for three years,
testified that she knew of no other employee to be allowed to
remain on inactive status while conducting an alternate placement
search (TR 992- 94),[16] and she was unaware of any employee
having the advantage of two alternate placement searches (TR
978).
On March 9, 1993, Complainant contacted Jane Roberson, who
was to be responsible for helping him in conducting his alternate
placement search (CX 9; RX 46; TR 394, 1863).[17] Complainant
immediately told Roberson that he was having a difficult time
finding a position because it was well-known that he was a
whistleblower (TR 395, 592, 1864). Roberson discouraged him from
discussing that with her because it had nothing to do with
alternate placement (TR 1863). She conferred with Sharon Hickey,
the Lab's counsel, to ascertain the manner in which Complainant's
alternate search should be handled, and Hickey advised her that
it should be treated just as any other alternate placement and
that the whistleblower complaint was irrelevant (TR 1866).
On at least one occasion, Roberson discussed "the hidden job
market" with Complainant. This is a reference to unadvertised
positions of which she had no knowledge (TR 437-38).[18] Ms.
Roberson explained to Complainant that the best approach to
solving this problem was to contact individuals who would have
access to that information and to literally "beat doors" himself;
she was just there to guide him through the process (TR 440).[19]
This was the "standard speech" that she gave to everyone
beginning the alternate placement process (TR 1875). She also
indicated that the employment representatives in PS-1 would be
better able to provide specific information on available
positions (TR 442, 1926-27, 2011). Complainant never contacted
PS-1 (TR 473-74, 1927, 1981). Ms. Roberson told Complainant that
she would do whatever she could to help, such as sending him
copies of the weekly bulletins, which
[PAGE 14]
included "real" job opportunities (TR 1895, 1900). She also
testified that, despite this offer, Complainant never asked her
for anything (TR 1900). Complainant was discouraged, however,
because that was not the manner in which he got his alternate
placement in 1988, and he admits that he made no effort beyond
speaking with Roberson, filling out a resume, and looking at job
bid forms (TR 582). He only applied for one Lab position after
November 1990, and he applied for no positions outside of the Lab
(TR 583). On one occasion, Roberson did respond to Complainant
that she agreed that he had done all he could do concerning
alternate placement (CX 131, p. 6).
On February 26, 1993, Complainant and Keith Carter wrote to
Tommy Hook in the Whistleblower Office at the Lab documenting all
of their health and safety concerns and requesting protection and
reinstatement (RX 26, p. 20; TR 379, 1217). They co-authored
this letter in an attempt to comply with the Lab's whistleblower
policy regarding the reporting of improper activity and
retaliation (Administrative Manual (AM) 729; CX 13; TR 379).[20]
Mr. Nylander first saw this letter on March 10, 1993 (TR 157,
1441). He was surprised because all of the concerns that
Complainant listed in that letter had already been raised to him
(TR 160, 385-86, 1407-08). However, contrary to Complainant's
contentions, Nylander testified that this letter did not change
the approach of his investigation or reporting or that he
subsequently treated Complainant differently (TR 383, 1048).[21]
He claims to have had an exhaustive workload at that time, and
any perceived distancing from Complainant was due to that (TR
1409). Mr. Nylander had no contact with Complainant from March
10, 1993 through June 11, 1993 (TR 1444).
The first step in the alternate placement process is to look
for a position within the division in which the employee
worked.[22] Thus, on March 23, 1993, Nylander, then a
supervisor in the EM Division, issued a memorandum, with
Complainant's resume attached, to his group leaders instructing
them to determine if they had any current or anticipated openings
for which Complainant might qualify (CX 3; TR 88-90, 142, 46).
Mr. Drypolcher circulated this memorandum within his group the
same day he received it (TR 1575). After receiving written
responses from all of the people to whom he sent Complainant's
resume, Drypolcher informed Nylander that his group had no
appropriate openings (CX 2, p. 4; TR 91, 1579). On April 16,
1993, after all of the other group leaders had responded
negatively, Nylander informed Roberson that there were no
openings in the EM Division (CX 70; TR 142-44, 1412).
On April 23, 1993, a Lab-wide search for employment
[PAGE 15]
opportunities was begun by Frances Menlove, Associate Director of
Human Resources, via a standard memorandum disbursed to Master
Management (CX 4, 70; TR 1488-89, 1888, 1953). Complainant
asserts that a document entitled "Fiscal Year 1993 Vacancies"
provides evidence that LANL did, in fact, have six openings at
the time he was seeking employment (CX 112; TR 1238-1244).
However, according to Lab personnel, this document, while
purporting to show positions within the Lab to be filled, did not
reflect true vacancies (TR 1479). The positions had not been
approved, and the manpower needed to perform that work would
either have to be achieved by contracting or by creating a new
position.[23] It was easier and less expensive for the Lab to
contract the work out than to hire someone (TR 1480-81).
Nonetheless, Roberson did not believe that any nondestructive
testing positions at the Lab existed in 1993 (TR 1907). In
addition, although Carter contemporaneously advised Complainant
of these potential openings, Complainant never expressed any
interest in them to Lab management (TR 1284, 1432-33).
The facility which Complainant left was put in a "stand
down" condition, wherein less work was to be performed and no one
was to be hired nor positions to be filled; Complainant was aware
of this state (RX 17; TR 524, 1804). Any vacant position, such
as the one Complainant left in November 1990, was applied to a
needed work activity (TR 1513). Therefore, Complainant could not
have been reassigned to the position he left behind because it no
longer existed (Id.). The general employment climate at
the Lab during this time period was "dismal" (TR 1581, 2021). In
addition, at the same time that Complainant's resume was
circulating, a significant number of other employees who were
facing a potential RIF were also looking for other positions (TR
1487, 1881-82). Complainant's possible job opportunities were
also limited because he expressed that he was uninterested in
taking a cut in pay or any position that he viewed as a demotion
(RX 3, p. 32; TR 1489).
Complainant learned of a job listing for a technical
facilities operator in the weekly news bulletin of May 14, 1993
(RX 9; TR 396, 903, 1912). Not much physical labor was involved,
and he thought that he was qualified. On May 24, one week after
the advertisement appeared, he discussed this position with
Roberson, who advised him to submit his resume and to fill out a
formal bid for the job (TR 397, 1913). In fact, on or about May
29, Roberson, in an effort to accommodate Complainant, personally
delivered the bid form to him at the Vargas Mall in Santa Fe, and
she told him to fill it out right away (TR 435,, 446, 1920).
Roberson informed Complainant later that he did not get the job
because his application was too late. The position closed on
June 1, 1993, and
[PAGE 16]
his application had been sent on June 2 (TR 444-45, 1921).
Complainant testified that he was unaware of a time limit, though
Roberson had counseled him to send it in immediately (TR 445).
Dr. Richard J. Brake, the leader of health and safety group
7, was the Lab employee who advertised and selected the
individual for this technical position (TR 901-903). He
testified that he was looking for someone with facilities
operation experience at a supervisory level who could handle a
stressful position (TR 906, 908). The position was advertised on
May 14, 1993, and the ad closed on June 1, 1993 (TR 903, 910,
1923). Dr. Brake testified that Complainant's interest in the
job had no influence on the closing and that it stayed open much
longer than the minimum mandatory one week period (TR 937). Dr.
Brake recalled speaking with Roberson on the phone concerning
Complainant's application (TR 1915). After hearing a synopsis of
Complainant's experience, he told her that, based on the resumes
he had already received, he did not feel that Complainant would
be a competitive candidate because he did not have facilities
operation experience, which several of the other candidates did
have (TR 911, 923-33, 1916).
Even though Complainant's resume and job bid form (RX 9) had
not been received prior to the closing of the advertisement, Dr.
Brake proceeded to compare Complainant's qualifications, and he
felt that it did not measure up to the others (TR 913-16);
Complainant would have necessitated on-the-job training, while
the others would not have (TR 446, 911-12, 923-25). One of the
more qualified candidates was selected. Dr. Brake testified that
he had spoken with Roberson several times about Complainant, and
although she never indicated there was anything unusual about
Complainant, he felt that it was obvious that the Lab was making
an effort to find him employment (TR 936, 952).
Even after Complainant was rejected, Roberson indicated that
she would continue to pursue possible employment opportunities
for him until she retired (TR 441, 1547, 1558).[24] The
Lab-wide search was deemed unsuccessful on May 31, 1993, as
Roberson was unable to identify an existing or contemplated job
opening for which Complainant might be qualified (TR 1033,
1882-84, 1899). The 90 day time limit expired on June 15, 1993,
and on June 23, 1993, a meeting of the Medical Review Board was
scheduled to initiate Complainant's termination (TR 1035), as
medical termination is the normal procedure after alternate
placement is conducted and no position is found (TR 998,
1928).[25] Mr. Nylander, as Deputy Division leader, was asked
by Tom Gunderson, the EM Division leader, to chair the Medical
Review Board meeting, which was held on July 30, 1993 (RX 5, p.
3; TR 1433, 1931).[26]
[PAGE 17]
Mr. Nylander recalled thoroughly reviewing, with each person
present at the meeting, all the recommendations and documentation
concerning Complainant to insure that all pertinent inquiries and
possibilities had been considered and resolved (TR 1435,
1457).[27] Mr. Nylander testified that the health and safety
concerns raised by Complainant were not an issue in the decision
to terminate him; in fact, most of the groups in the Lab did not
even know of Complainant concerns (TR 1436). Ms. Roberson
testified that she was in touch with most of the individuals
dealing with Complainant's situation, and she had no knowledge of
anyone treating him differently because he was a whistleblower or
because he had work restrictions (TR 1934-35).
On August 20, 1993, the Lab sent Complainant a notice of his
Proposed Medical Termination (CX 87; TR 466). This is a standard
form letter (TR 1001). On September 21, 1993, Complainant was
sent his Final Notice of Medical Termination (CX 90; TR 476),
which is also a standard form (TR 1001).[28] If Complainant had
located suitable employment between these times, he would not
have been medically discharged (TR 1931). Complainant still
maintains that if his restrictions are met, he would like to
return to work at LANL (TR 480).
Conclusions of Law
The Energy Reorganization Act of 1974, as amended, provides
in pertinent part that:
No employer may discharge any employee or
otherwise discriminate against any employee
with respect to his compensation, terms,
conditions, or privileges of employment
because the employee engaged in [specified
protected activity].
42 U.S.C. § 5851(a).
To establish a prima facie case of discrimination
under the ERA, a complainant must prove by a preponderance of the
evidence that:
(1) the party charged with discrimination is an "employer"
under the Act;
(2) the complainant is an "employee" under the Act;
(3) the complainant was discharged or otherwise
discriminated
[PAGE 18]
against with respect to his compensation, terms, conditions, or
privileges of employment;
(4) the complainant engaged in protected activity;[29]
(5) the employer knew or had knowledge that the complainant
had engaged in protected activity; and
(6) the retaliation against the complainant was motivated,
at least in part, by the complainant's engagement in protected
activity. The complainant must demonstrate that the protected
activity contributed to the employer's adverse action. Dysert
v. Florida Power Corp., 93-ERA-21 (Sec'y Aug. 7, 1995).
42 U.S.C. § 5851(b)(3)(C); 29 C.F.R. § 24.2. See
Mackowiak v. University Nuclear Systems, Inc., 735 F.2d 1159,
1162 (9th Cir. 1984); DeFord v. Secretary of Labor, 700
F.2d 281, 286 (6th Cir. 1983).
Once the complainant has established this prima facie
case, the burden shifts to the employer to prove with clear and
convincing evidence that the same action would have been taken
even in the absence of the complainant's protected activity. 42
U.S.C. § 5851(b)(3)(D).
I. Prima Facie Case
A. Employer/Employee
Although the parties have raised the status of Complainant
and Respondents as an issue in the Joint Statement of Facts,
neither party has presented argument contending that they are not
covered under the Act.[30] The definition of employer under the
whistleblower protection provisions is rather broad. See
Marcus v. EPA, 92-TSC-5 (Sec'y Feb. 7, 1994). In addition,
the 1992 amendments to the ERA specify that contractors to
Department of Energy facilities, such as UC to LANL, are included
in this definition. 42 U.S.C. section 5851(a)(2)(D). The
definition of employee is also very broad. See In the Matter
of Wood, No. 79-ERA-3 (ALJ), adopted by Sec'y (Nov. 8, 1979).
Considering the job projects as testified by Drypolcher and other
line supervisors and Complainant's job description in light of
the Act, regulations, and case law, I find that the parties are
covered by the ERA. Thus, the first two elements of a
whistleblower claim are established and need no further
elaboration.
B. Discrimination Against Complainant
[PAGE 19]
Discriminatory acts under the ERA are defined broadly, and
certainly an employee's discharge constitutes a cognizable act of
discrimination under the Act. 42 U.S.C. § 5851(a)(1).
Complainant alleges that Respondents failed to consider him for a
work assignment, to reinstate him to active duty, and terminated
his employment (Complainant's Brief 88). Respondents do not
dispute that they terminated Complainant's employment on
September 21, 1993, and that act is sufficient to establish this
element of Complainant's prima facie case.
C. Protected Activity
Protected activity, as defined under the ERA after the 1992
amendments, explicitly includes an employee's internal reporting
of complaints or concerns. 42 U.S.C. § 5851(a)(1)(A). The
record confirms that Complainant related, on numerous occasions,
his concerns regarding health and safety matters at the Lab to
several supervisors, including Harper, Drypolcher, Dross,
Nylander, and Tiedman.
Complainant also engaged in protected activity when he
provided a member of the press (Keith Easthouse of The Santa
Fe New Mexican) with Lab documents related to his
environmental, health, and safety concerns. See Carter v.
Electrical District No. 2 of Pinal County, 92-TSC-11 (Sec'y
July 26, 1995). Further, Complainant's provision of materials to
members of the United States Congress and to investigators with
state and federal agencies is also considered to be protected
activity under the whistleblower protection statutes. See
Kansas Gas & Elec. Co. v. Brock, 780 F.2d 1505, 1510-13 (10th
Cir. 1985), cert. denied, 478 U.S. 1101 (1986).
D. Employers Aware of Protected Activity
Respondents do not assert that they were without knowledge
of Complainant's protected activity. In fact, Complainant strove
at every opportunity to ensure that his supervisors and
co-workers were aware that he was a "whistleblower." For
example, Complainant told both Nylander and Roberson in their
initial contact with him that he was a "known whistleblower."
Accordingly, this element is also satisfied.
E. Discrimination Motivated by Protected Activity
Section 5851(b)(3)(C) provides that a violation of the Act
has occurred if the complainant demonstrates that his protected
activity was a contributing factor in the employer's
[PAGE 20]
discrimination. Thus, Complainant must show that his reporting
of concerns was a cause of his dismissal and the other allegedly
discriminatory actions against him. LANL contends that
Complainant's termination, as well as all the other actions which
affected him, was the result of his medical restrictions and that
discrimination played no part in the decision to terminate his
employment.
1. Work Restrictions
Although Complainant asserts that his work restrictions
remained constant throughout the relevant time period and that
they could not have been the impetus for his dismissal, Dr.
Swajain testified that Complainant did complain of increased back
pain in May of 1990 (TR 277). Dr. Rapoport confirmed this as
well (TR 776). Complainant had apparently been pushing 55 gallon
drums, which was contrary to his light duty work clearance.
However, no evidence exists to support the contention that this
was a necessary duty for someone in Complainant's position. As
Vigil testified, he and Flavio, the other technician, did most of
this physical work because they were aware of Complainant's
limitations (TR 728). In addition, the Lab provided laborers to
perform functions such as this, and Complainant had the use of a
forklift in transporting barrels (TR 223-24). Complainant
testified that he was never told that he had to move drums; he
just assumed so because the other technicians did it (TR 554).
He also acknowledged that Drypolcher told him that it was up to
him and his immediate supervisor to ensure that he adhered to his
restrictions (TR 558). Therefore, Complainant's assertion that
the Lab was requiring him to work in violation of his medical
restrictions is not supported by the evidence of record, and his
argument that his restrictions could not have been the basis of
his termination is also not persuasive because both Drs. Swajain
and Rapoport reported that Complainant was having physical
difficulties.
I am of the opinion that the Lab clearly sought to comply
with Complainant's work limitations and to ensure that they were
properly delineated, as demonstrated by Dr. Williams' efforts to
define restrictions that would satisfy both parties as to what
work Complainant could and could not perform. Complainant's
assertion that the Lab intentionally formulated overly
restrictive work guidelines to prevent him from finding an
adequate position is not credible in light of the evidence of
record. Dr. Williams testified that the purpose of propagating
new restrictions was to allow Complainant to return to work on a
full-time basis in a physically appropriate job. In fact,
Complainant actually provided Dr. Williams with the list of
limitations with which he felt
[PAGE 21]
comfortable. Thus, the Lab did not, on its own accord or
otherwise, create overly restrictive work limitations for
Complainant. Complainant agreed that adherence to these guides
would enable him to be employed on a full-time basis.
Continuing, in August of 1991, Complainant was granted
disability benefits from Prudential Insurance because he was
found to be totally disabled from performing his previous job.
That Complainant could contend that his employer instituted work
restrictions that were too limiting, while at the same time
present himself to an insurance company as, and later receive
disability benefits for, being totally disabled is contradictory.
Additionally, Complainant told Prudential's agent, Scott Corwin,
that he had no intention of returning to the Lab and that he did
not believe he would be a reliable worker due to his back
problems. The Prudential file also has a record of a telephone
call wherein Complainant stated that he "could not take it
anymore" and that he would have problems even just sitting at a
desk. This is directly contrary to Complainant's statements that
he never told anyone that he did not desire to return to
employment at LANL and that he never told anyone at Prudential
that he had restrictions that would prevent him from working.
Not only did Complainant fail to put forth any effort in locating
a position at the Lab, but he did not seek any employment
opportunities elsewhere. This substantiates Corwin's statement
that he seemed comfortable and unmotivated. Given the
circumstances surrounding his disability claim, it seems likely
that Complainant would present his medical condition in the light
most favorable to eliciting an award of benefits; Complainant's
denials are not credible.[31] This further undermines his
argument that the Lab was attempting to impose drastic work
restrictions that were not necessary. Obviously, if Complainant
could be considered totally disabled, then the Lab was seeking to
protect both its interests and Complainant's, not to punish or
retaliate.[32]
2. Safety Concerns
Although Complainant believes that his raising of safety
concerns motivated the Lab to discriminate against him, the facts
do not lend credence to this contention. He admits that Lab
officials continuously stressed that safety was the "bottom line"
(TR 532). One of his job duties was to inspect for improprieties
in the assaying equipment and in other areas within his purview.
Additionally, the EM-7 Division held weekly safety meetings at
which the employees could express any concerns or questions they
had about procedures or any other aspect of Lab functioning.
Also, the Lab not only expected, but required, employees to stop
work if
[PAGE 22]
they perceived a potentially hazardous situation (TR 1248-51).
Complainant also testified that he knew that LANL and outside
agencies were already aware of some of the issues he raised. (TR
533-35), and Andrew Catanach, another EM-7 employee, confirmed
that management did have knowledge of the problems (TR 179).
I find, therefore, that Complainant's own testimony
undermines his argument that the Lab was seeking to retaliate
against him for his reporting of safety concerns. Health and
environmental safety are clearly a priority for the Lab; this was
emphasized to employees, and Complainant's position was
safety-related, requiring him to watch for possible safety
violations. It would defy reasoning for LANL to punish
Complainant for doing exactly what he was instructed and hired to
do. See Gibson v. Arizona Public Service Company,
90-ERA-29, -46, -53, slip op. at 7 (Sec'y Sept. 18, 1995)
(finding an absence of retaliation where the employer provided
similar "compelling evidence of a pervasive policy encouraging
safety complaints"). Further, outside agencies were already
apprised of several potentially hazardous situations at the Lab
that Complainant had reported. This would obviate any incentive
for LANL to attempt to "hush" or to be rid of Complainant for
expressing his concerns.
Complainant's apprehension revolving around the "WIPP
certifiable" stickers is worth specifically addressing, as this
appeared to be the center of much of the controversy.
Complainant obviously had the impression that these stickers were
only placed on barrels that had been assayed and were deemed to
meet the requirements for shipment to WIPP. This, however, was
not the case. The equipment that was utilized in testing the
barrels was new and not properly calibrated; this was known to
management in EM-7. Drypolcher, Reich, Vigil, and later
Complainant, all agreed that this new equipment was not assaying
the barrels for certification, but rather the barrels were
employed to test the equipment (TR 46-47, 729-30, 1098). Because
the contents of the barrels were known prior to the assaying, the
results that the new equipment produced could be compared to the
data on the barrels that already existed. If WIPP was to open,
these barrels would have to be reassayed before they could be
cleared for shipment. Thus, the "WIPP certifiable" stickers did
not signify that those barrels had been certified for
transportation to WIPP. Much of this conflict could probably
have been avoided had there been better communication between
management and technicians as to the meaning and use of these
stickers.
Dr. Rapoport's testimony also fails to lend much support to
the argument that Complainant was discriminated against for
raising
[PAGE 23]
safety concerns. On December 5, 1990, literally only days after
Complainant ceased reporting to work, he met with Dr. Rapoport
and discussed his feelings of harassment at work. He was upset
that he was required to work beyond his physical capabilities and
also that he could potentially be eliminated in a RIF. Although
Complainant testified that he could not remember telling Dr.
Rapoport that he felt discriminated against because of his
disability, he also never mentioned his safety-related concerns
or his claims of intimidation stemming therefrom. In addition,
Claimant kept a diary during this time period that also contained
no references to his feelings of discrimination due to his
reporting of safety issues. The absence of any mention of these
circumstances that supposedly caused such fear and frustration
for Complainant is remarkable considering the confidential nature
of the sources. That Complainant did not discuss this with Dr.
Rapoport, combined with his failure to remember relating his
feelings concerning his disability, does not support his
contention that the November 28, 1990 meeting caused him great
emotional trauma and was a great concern to him at the time. It
does, however, beg the question about what does he purport they
talked?
Claimant's mental state during this time period is also
noteworthy. Dr. Rapoport described him as having a
"paranoid-like orientation" and that he was suspicious of others.
The testimony of others reinforces this premise. Complainant
told Nylander that he thought Drypolcher and other supervisors in
EM-7 were out to get him and conspiring against him. He viewed
standard form letters from the Lab and Prudential as threatening
and intimidating. The condition that Complainant return to the
Lab while seeking alternate placement was also something he did
not trust, despite the fact that this requirement was imposed on
everyone else participating in alternate placement. I find such
behavior to permit a reasonable presumption that Complainant's
outlook possibly influenced the way in which he perceived the
actions of others, creating a feeling of discrimination where
there was none.
3. Keith Carter
Complainant attempts to bolster his claims of discrimination
by proffering evidence that another employee of the Lab had
suffered a similar fate for raising health and safety concerns.
Keith Carter asserts that, after inquiring about corroding drums,
he was discriminated against by being transferred from EM-7 where
he was responsible for inspecting barrels for leaks and
corrosion, to a position in the Audit and Compliance Office.
This argument is without merit. The new position Carter occupied
mandated that he compose reports addressing health and safety
issues. In fact,
[PAGE 24]
Carter admitted that this position offered him greater
opportunity to discover and disclose potentially damaging
information about LANL. He provided documents and photographs of
drums which he believed would support Complainant. If the Lab
was truly retaliating against Carter, it would have sought to
move him to a position from which he could derive no new
safety-related information. Instead, it placed him in a position
that afforded him greater access to such material. Mr. Carter's
subjective dislike of his job in the Audit and Compliance Office
is insufficient to uphold a claim of discrimination and thus, is
equally inapplicable to Complainant's claims.
4. Reprimands
Although Complainant received two "Needs Improvement"
ratings on his June 1988 performance appraisal, he does not
contend that this was done in retaliation. However, Complainant
does believe he was retaliated against when Harper and Vigil met
with him on November 28, 1990 to discuss matters relating to his
grievances. They asked him to refrain from discussing his
concerns during regular working hours because it was interfering
with the ability of his co-workers to satisfactorily perform
their duties. This request so upset Complainant that he rushed
to the Lab physician and then went home. This oral reprimand
does not constitute discrimination because it was a reasonable
request that did not interfere with any term or condition of
Complainant's employment, and no evidence exists to suggest that
any other employee would not have been treated identically in
similar circumstances.
Mr. Drypolcher's December 19, 1990 memorandum instructing
Complainant not to use the copying machine for his personal
business was also within the confines of proper managerial
discretion; an employer certainly has the right to limit
employees' use of business property for personal use. In
addition, Drypolcher's memorandum informing employees that they
must receive approval from the Lab before releasing any documents
to outside sources also cannot be considered as retaliatory
because he was simply reiterating standard Lab policy and
procedure (CX 130; TR 69, 72). See Dartey v. Zack,
82-ERA-2 (Sec'y April 25, 1983) (authorizing the termination of
employees who appropriate records without proper consent).
Additionally, Complainant also suggests that Drypolcher's
demeanor during the January 15, 1993 meeting demonstrates
Respondent's retaliatory motive. Mr. Drypolcher was described as
upset and red-faced when alleged problems in his division were
addressed (TR 376, 531). However, in Marien v. Northeast
Nuclear
[PAGE 25]
Energy Co., 93-ERA-49, -50, slip op. at 7 (Sec'y Sept. 18,
1995), similar behavior, a raised voiced and red face, on the
part of one of Respondent's employees was not sufficient to
demonstrate retaliation, and I find that it is equally
insufficient in this case.
5. Alternate Placement
Complainant also avers that LANL discriminated against him
when it failed to place him in a new position through alternate
placement. The Lab responds that no appropriate positions
existed into which Complainant could be placed. To support his
contention, Complainant points to his 1988 alternate placement
search in which the Lab found a suitable position for him within
a few weeks. However, this comparison is inapplicable because
the circumstances in 1988 were much different than those in 1993.
Several members of LANL management and Roberson explained that
the Lab was facing a significant reduction in force in 1993 and
that the competition for any available position was substantial.
In fact, Carter testified that one of the reasons he chose to
retire in May 1993 was because there were no openings in EM-7.
In 1988, however, Complainant had the fortuitous experience
of being in the right place at the right time. During that
alternate placement search, his resume crossed the desk of Mr.
Warren, the section leader of EM-7, who was contemplating writing
an advertisement for a position for which Complainant seemed
well-suited. Ms. Simmons, who handled alternate placement
regularly for years, testified that she had never seen an
employee placed so quickly, especially with such little effort on
the part of the employee (TR 1987). Thus, the conclusion that
Complainant was discriminated against during his 1993 search
because he was not placed as rapidly as in 1988 is inappositive.
Ms. Simmons began Complainant's alternate placement search
in 1991, following Lab procedure by instituting a division-wide
search initially. When that proved unsuccessful, she conducted a
Lab-wide search. Although it appears that there was some
confusion surrounding whether or not Complainant ever directed
Simmons to hold off on his search while he pursued retirement
benefits, this is not material because she resumed the search
shortly thereafter and completed the process.
Complainant next maintains that the article in The Santa
Fe New Mexican (February 28, 1992) engendered hostile
feelings and discrimination towards him. He believes that it
affected the manner in which he was treated by Lab officials.
Arguably,
[PAGE 26]
Complainant is correct. Mr. Drypolcher testified that, at a
March 2, 1992 meeting, the managers decided to delay in sending
Complainant a letter regarding his status and possible
termination because they were concerned that it would look
retaliatory. However, it does not necessarily follow that this
decision was made with any discriminatory animus. Every prudent
employer must be conscious of how its actions may appear, and an
attempt to avoid any actions capable of having a negative
connotation cannot be construed as discrimination. Otherwise,
employers would be placed in a "no win" situation; if they act,
there is an appearance of retaliation, and if they do not act,
they are charged with discrimination for treating that employee
differently than they would under normal circumstances. See
Johnson v. Old Dominion Security, 86-CAA-3 (Sec'y May 29,
1991)(employer's failure to follow its own procedures can be
evidence of discriminatory motive). Complainant also argues that
the meeting held days after the article appeared is evidence of
discriminatory motive. This, however, is also untenable.
Significantly, the evidence of record clearly indicates that this
meeting to discuss Complainant's status at the Lab was scheduled
on February 13, 1992, two weeks before the article was published.
Therefore, evidence of a discriminatory motive is lacking.
The Lab also treated Complainant differently by allowing him
to participate in alternate placement without returning to the
Lab in a salaried position for 90 days. This lacks a
discriminatory motive, however, and actually, demonstrates that
the Lab was providing Complainant more flexibility than it would
have to another individual. Several Lab officials testified that
they had never known anyone else to be given such an
accommodation.[33] Differential treatment cannot be classified
as retaliatory discrimination when it is to that person's
benefit. However, Complainant testified that he refused to
comply with this condition because he had been told that his
disability benefits would cease when he went back on salary and
that Suniga advised him not to follow that course of action.
LANL does not dispute that his benefits would stop, but Suniga
denies that he did anything more than explain what Complainant's
options were. He testified that he did not offer specific
advice.
Complainant also contends that he did not want to return to
a salaried position because he did not want to wait six to eight
weeks for his benefits to be reinstated if he did not find a new
position. However, he does acknowledge that no one ever told him
that was the procedure. In fact, the claims manager at
Prudential, Ms. Holt, testified that she informed Complainant
that Prudential would commence paying him benefits again when his
salary was
[PAGE 27]
stopped. Thus, Complainant's excuse for not returning to the Lab
while pursing possible job opportunities is not convincing. This
is especially true considering the advantage one had in locating
jobs by actually being present on-site and having direct contact
with potential hirers. Although Complainant claims that he did
not know that his absence from the Lab would have a negative
impact on his job search, Roberson explained to him on several
occasions that contacts with other employees and individuals in
the personnel office would serve as great sources of information
concerning possible positions at the Lab; she advised him to
network and beat on doors himself. Complainant's failure to heed
this advice or to make any effort himself in locating a job is
indicative of his lack of motivation and sincere interest in
returning to the Lab. This lack of effort also corroborates
Corwin's notation (supra) indicating that Complainant did
not intend to go back to the Lab and that he seemed comfortable
with the status quo.
Complainant insists that the February 26, 1993 letter that
he and Carter wrote to Hook caused Nylander to treat him
differently. It is not inconceivable that this letter would be
disconcerting to Nylander, who had been strenuously working to
satisfy Complainant's concerns. Assuming arguendo that
Nylander purposefully avoided contacting Complainant after this
letter, although Nylander denies that this was the case, this not
does establish a discriminatory motive because the evidence
clearly shows that Nylander continued in his thorough and
unbiased reporting and that he conducted a proper Division-wide
alternate placement search. That he had fewer contacts with
Complainant after this letter was received cannot necessarily be
equated with discriminatory motivation. Additionally, Nylander's
failure to inform the Whistleblower Office of Complainant's
concerns within five days, as required by AM 729 and which
prompted Complainant's writing of this letter, is not especially
significant because Nylander knew Complainant had previously
raised these complaints and thus, might have reasonably thought
he could safely dispense with that reporting.
Ms. Roberson, who made extraordinary efforts in attempting
to locate a position for Complainant, followed Lab procedures
when conducting Complainant's alternate placement search in
1993.[34] The EM Division search was properly followed by the
Lab-wide search.[35] No vacancies for which Complainant was
qualified existed, however. The document which Complainant
purports to disclose openings within EM-7 is not adequate to
establish that these were in fact true vacancies (CX 112). Ample
testimony exists to show that these were not openings in the
traditional sense. They were either positions which the Division
wished to create or that would be filled through contracting,
which provided more cost effective labor. Mr. Carter,
[PAGE 28]
in explaining why he retired in 1993, concurred that there were
few, if any, available positions in EM-7 at that time.
Furthermore, Complainant never informed anyone at the Lab that he
was interested in one of these positions.[36] The one position
for which he did apply, the technical facilities operator
advertised by Dr. Brake, required experience that Complainant did
not have. Dr. Brake's analysis of the candidates clearly showed
that Complainant's whistleblowing had no affect on his decision.
Other applicants were much more qualified, and as discussed
supra, alternate placement participants are not afforded
any priority over other applicants. Qualifications are the most
significant factor in determining who is selected for a
particular position. Complainant's nonselection was clearly
based on his lack of qualifications for that job, not any
discriminatory reasons.
The existence of a so-called "hidden job market" at LANL is
not evidence of discrimination. There is no evidence that any
job possibilities were intentionally or unintentionally withheld
from Complainant or that he had any less availability to that
information than anyone else, including Roberson. The "hidden
job market" was just a term used by Roberson to refer to the
positions of which one could become aware through diligence and
persistence. Even though this was explained to Complainant by
Roberson, he failed to undertake any effort to discover this
market. Further, there is no evidence that this market affected
him any differently than other individuals looking for employment
at the Lab.
Complainant also cites to the confusion over who was
coordinating his alternate placement search after the file was
officially transferred to Suniga in April of 1993. This does not
necessarily show a deficient search. The memorandum by Menlove,
the Associate Director of Human Resources, directing a Lab-wide
search had already been issued, and Roberson testified that she
continued to conduct weekly searches on behalf of Complainant
long after his alternate search was timely terminated.
The Medical Review Board was also conducted according to
normal Lab procedures. The alternate placement search had been
completed, and no position had been identified for Complainant.
As the alternate for his division leader, Nylander chaired the
meeting and made the appropriate inquiries, i.e., the
extent of Complainant's medical restrictions, whether he was fit
to return to duty, and whether the Lab had fulfilled its
obligations and pursued the normal process of finding alternate
placement. Mr. Nylander testified that the health and safety
concerns that had been raised by Complainant were not an issue in
the determination to discharge him. Ms. Roberson added that she
did not believe that most of the
[PAGE 29]
people involved in locating alternate placement for Complainant
even knew of his protected activity.
Complainant has not proved that the Lab and its employees
had any discriminatory motive in terminating his employment at
the Lab. His medical restrictions were somewhat limiting, as his
award of total disability benefits confirms, and due to
downsizing and reductions in force, the Lab was unable to locate
a position that was suitable for Complainant's experience,
qualifications, and restrictions. These procedures were
unrelated to Complainant's protected activity. Indeed, the Lab
provided Complainant with every conceivable opportunity and
advantage expressly because it was aware that it was vulnerable
to such an attack. Therefore, I find that Complainant has not
demonstrated that his protected activity was a factor in LANL's
decision to terminate his employment; the Act was not violated.
II. Rebuttal/Adverse Action Regardless of Protected Activity
Alternatively, if it had been found that Complainant's
protected activity was somehow a contributing factor in his
discharge, then the foregoing reasons are equally applicable to
Employer's rebuttal.
If the elements of a prima facie case of
discriminatory retaliation are established, the employer must
show with clear and convincing evidence that it would have taken
the adverse action in the absence of the protected conduct. 42
U.S.C. § 5851(b)(3)(D). For the reasons discussed
supra, the evidence presented by LANL is sufficient to
demonstrate, clearly and convincingly, that it had legitimate and
nondiscriminatory reasons for Complainant's termination and that
it would have taken the same unfavorable action even in the
absence of Complainant's protected activity.
Order
The complaint of Lenard E. Trimmer is DENIED.
Entered:
_______________________________________
JAMES GUILL
Associate Chief Administrative Law Judge
JG/cy
NOTICE: This Recommended Decision and Order and the
administrative file in this matter will be forwarded for review
by the Secretary of Labor to the Office of Administrative
Appeals, U.S. Department of Labor, Room S-309, Frances Perkins
Building, 200 Constitution Avenue, N.W., Washington, D.C. 20210.
The Office of Administrative Appeals has the responsibility to
advise and assist the Secretary in the preparation and issuance
of final decisions in employee protection cases adjudicated under
the regulations at 29 C.F.R. Parts 24 and 1978. See 55
Fed. Reg. 13250 (1990).
[ENDNOTES]
[1]
The abbreviation "TR" refers to the transcript from the hearing,
"CX" to Complainant's Exhibit, and "RX" to Respondents' Exhibit.
[2]
According to LANL's internal policy, if an employee has work
restrictions which cannot be reasonably accommodated in his or
her current position or if the former position is no longer
available, that employee is entitled to an alternate placement
search, which is conducted first within the employee's division.
If the search is unsuccessful, then a Lab-wide search is
conducted by the employment office (TR 966; Administrative Manual
118 at CX 10). Alternate placement is not necessary when the
division can make a reasonable accommodation to the disability or
work restriction. (TR 1011-12). An individual on alternate
placement is not given preferential consideration. Being
qualified is not necessarily enough to get the job; one must be
the best candidate. One's qualifications are compared equally
with all the other candidates, and medical restrictions are not
considered during the search (Id., TR 1509, 1859,
1916-17). Therefore, any necessary accommodation is not
considered until an individual is selected for a specific
position (TR 1002-03).
[3]
John Warren was later replaced by John Harper (TR 228).
[4]
Mr. Drypolcher averred that he had never been worried about his
job or his status at the Lab due to leaking drums in his area of
responsibility (TR 1588).
[5]
The Lab had ordered 1,000 "WIPP certifiable" stickers from the
General Accounting Office (CX 55, p. 2; TR 101-02, 234). On
April 15, 1991, LANL informed the United States Department of
Energy "that some of the waste that [had been] reported to be
certifiable to the WIPP Waste Acceptance Criteria must be
considered to be not certifiable" (CX 121).
[6] Although Complainant complained that having to push the heavy
drums placed too much stress on his back, he testified that no
one had ever told him that he had to move them; he felt that he
had to do so because the other technicians did, though they were
lower level technicians (RX 17; TR 554).
[7]
Complainant does not remember telling Dr. Rapoport that he felt
discriminated against due to his physical disability (TR 498).
[8]
Complainant kept a diary in which he expressed his stresses and
fear of losing his job without having workers' compensation or
retirement benefits. Nowhere in Complainants diary is there any
mention of a health or safety concern (TR 578). Although Lab
employees were expected to decline an assignment or to stop work
if they ever felt there was a potentially hazardous situation,
neither Complainant nor Carter ever did, even though they
testified that they felt they were exposed to radiation (TR
1248-51).
[9]
Apparently, at some point in 1991, Complainant informed the Lab
that he was going to retire, and he filed charges against LANL
for discriminating against him because of his age and disability
(TR 549-50). He testified that he felt "picked on" even before
he raised any safety concerns (TR 607).
[10]
Prudential Insurance found Complainant totally disabled based on
the premise that he could not perform his previous job (RX 3, p.
14; TR 1645).
[11]
Complainant testified that the Lab is now further from his new
home than the forty-two miles he had to drive in 1990 (TR
561-62).
[12]
On August 15, 1992, after this article was published, Drypolcher
issued a directive to all EM-7 employees instructing them not to
release any Lab documents to the press or other outside sources
unless a written request had been made and approved by the Lab
(CX 130; TR 69, 72). Mr. Drypolcher testified that he would
prefer not to have an employee who gives documents to the press
without permission (TR 74-75). However, he later clarified this
statement by adding that the situation is different when the
concern is related to health and safety because those issues
warrant an approach elevated from standard LANL procedures (TR
1583).
[13]
This letter was supposed to contain Environmental Health and
Safety citation forms that Complainant could fill out to initiate
an investigation. However, as a Lab employee admits, these forms
were mistakenly never sent to Complainant (TR 1024, 1025).
[14]
Deputy Division leader for EM Division from June 1992 to April
1993. After a reorganization in 1993, Nylander became the
program manager for facilities management (TR 109-10).
[15]
Drypolcher's letter encouraged Complainant's interaction with
employees and management in addressing any safety or health
concerns he may have.
[16]
Jane Roberson (see infra) concurred with Groves' opinion
(TR 1901-02).
[17]
Sue Simmons had become ill, and as Roberson was the person who
had the most experience, she was assigned the responsibility of
alternate placement (TR 1860).
[18]
Eventually, a computer database was created to include
unadvertised or expected job openings. This database, which did
not become available until June 1993, provided information on the
jobs Roberson classified as the "hidden job market" (TR 1894,
1911). Computer terminals located throughout the Lab provided
ready access to this information (TR 1882-83). Roberson
continued to review this database on behalf of Complainant
several times a week until she retired in November 1991, months
after Complainant had been terminated (TR 1884).
[19]
Keith Carter agreed that it was beneficial to have friends at the
Lab who might know of possible job opportunities that are not
advertised or that involve directed transfer.
[20]
This letter did not, however, comply with the regulations because
it was not filed within the required thirty days. Mr. Nylander
also failed to inform the Whistleblower Office of Complainant's
concerns (CX 13; AM 729.09, 729.10).
[21]
MR. Nylander's report, addressing all of Complainant's concerns
and explaining the presence or absence of safety threats, was
issued on April 15, 1993 (CX 1; RX 26). He did note that one
problem was a lack of communication with the technical personnel
about ongoing procedures, a reference to the confusion
surrounding the meaning and utility of the "certifiable" stickers
(TR 1414-25). In addition, investigations by outside entities
identified numerous problems with the barrels and resulted in the
imposition of fines against the Lab (CX 62, p. 4, 10; TR 339-41).
Complainant was not provided with a copy of this report.
[22]
The procedure that was employed with Complainant is the same that
is used with all alternate placement candidates at the Lab (TR
1432).
[23]
To fill a position at the Lab one must advertise, get permission
not to advertise, have a reassignment or transfer, or use
subcontractors (TR 1977-78). Of the six positions in question,
five were filled by contractor personnel and one by a Lab
employee on directed transfer due to a potential RIF (TR 1824).
[24]
The record indicates that on April 26, 1993 the responsibility
for alternate placement transferred to Suniga at the personnel
office (TR 1855, 1884). Thus, Complainant's case was now
officially under the supervision of Suniga, but Roberson
continued to search and follow-up (TR 1546-47). Ms. Roberson
presumably maintained this responsibility in part because
Complainant had expressed his dislike of Suniga (TR 1991). In
addition, by this date, Complainant's resume had already been
circulated in the EM Division and Lab-wide under Menlove's
memorandum (CX 4; TR 1885).
[25]
Roberson had only one other individual on alternate placement,
and she was severely developmentally disabled. She did not have
a Medical Review Board, but was terminated through a RIF (TR
1949).
[26]
The Medical Review Board is normally chaired by the employee's
division leader or the designated alternate (TR 1933-34). Also
present at the meeting were representatives from the Health and
Safety Division, the Human Resources Development Division, the
Lab's medical group, legal counsel, Controller's Office,
Affirmative Action/EEO Office (Roberson), and PS-3 , the benefits
office (Suniga) (RX 45, p. 3; TR 1932-33).
[27]
Specifically, Nylander queried whether Complainant was fit to
return to duty with his restrictions, and if yes, if the Lab
pursued its normal and usual process of trying to find alternate
placement for him. Both were answered in the affirmative, and it
was noted that the alternate placement was unsuccessful, thereby
dictating medical termination (TR 1517-18).
[28] As far as Roberson knows, Complainant's case is the only
instance in which an employee's alternate placement lasted more
than ninety days; he had almost six months between the time that
he was notified that he had to find a job, March 1993, and the
time that he was terminated, September 1993 (TR 18992).
[29]
To have engaged in protected activity under the Act, an employee
must have done one of the following:
(1) notified his employer of an alleged violation of the ERA
or the Atomic Energy Act of 1954;
(2) refused to engage in any practice made unlawful by the
ERA or the Atomic Energy Act, if the employee has identified the
alleged illegality to the employer;
(3) testified before Congress or at any federal or state
proceeding;
(4) commenced, cause to be commenced, or is about to
commence or cause to be commenced a proceeding under the ERA or
the Atomic Energy Act;
(5) testified or is about to testify in any such proceeding;
or
(6) assisted, participated, or is about to assist or
participate in any manner in such a proceeding.
42 U.S.C. § 5851(a)(1)(A)-(F).
[30]
However, Complainant specifically states that these issues are
uncontested (Complainant's Post-Hearing Brief at 85-86).
[31]
This means simply that Complainant's denials in this instance are
not credible. It is acknowledged that Complainant expressed his
desire to return to the Lab on several occasions; however, that
does not preclude the likelihood that he also told the insurance
agent that he did not want to return.
[32]
Complainant originally complained that the Lab forced him to work
beyond his medical restrictions. Now he claims that LANL
instituted restrictions that were overly limiting in an attempt
to preclude his return. The more reasonable inference to be
drawn is that the Lab was trying to comply with Complainant's
wishes while accommodating his limitations.
[33]
Complainant was also given the benefit of participating in two
alternate placement searches, one of which extended almost twice
as long as normally provided. In addition, comparing Complainant
to the other alternate placement candidate, who was
developmentally disabled and was not medically discharged, is not
appropriate. The Lab was certainly sensitive to a possible
charge of discrimination based on disability, as well as wanting
to give such an individual every possible chance. That
Complainant was not treated in exactly the same manner does not
necessarily indicate that LANL was discriminating against him.
The Lab was providing both of these individuals exceptional
allowances in completing alternate placement, and the Lab did not
disadvantage either one of them in any way. Also indicative of
the Lab's nondiscriminatory motives are the instructions of
Sharon Hick, the Lab's lawyer, when she advised Roberson to treat
Complainant no differently than any other alternate placement
candidate and that his whistleblower complaint was not relevant.
[34]
Not only did Roberson continue to look for possible positions for
Complainant after he had been terminated, but she personally
delivered a job bid form to him in Santa Fe. She clearly
expended considerable effort on Complainant's behalf, and as Dr.
Brake testified, it was clear that the Lab and Roberson were
concertedly attempting to place him.
[35]
Although Complainant claims that the timing of the announcement
that no openings existed in EM-7 shows discriminatory intent, the
timing was properly in accordance with the alternate placement
procedure.
[36] According to Lab policy, an individual only need be placed
if they express interest in a particular job.
