DATE: September 24, 1993
CASE NO. 89-WPC-1
IN THE MATTER OF
SALMAN ABU-HJELI,
COMPLAINANT,
v.
POTOMAC ELECTRIC POWER COMPANY,
RESPONDENT.
BEFORE: THE SECRETARY OF LABOR
FINAL DECISION AND ORDER
Before me for review is the Recommended Decision and Order
(R.D. and O.) of the Administrative Law Judge (ALJ) in this case
arising under the employee protection provision of the Water
Pollution Control Act (WPCA), 33 U.S.C. § 1367 (1988).
Complainant alleges that Respondent violated the WPCA by
discharging him after he raised concerns about the validity of
studies concerning water quality issues. The ALJ recommended
dismissing the complaint for failure to establish a prima facie
case of retaliatory discharge. As explained below, although I do
not fully agree with the ALJ's legal analysis, I agree with his
recommendation to dismiss the complaint.
Based on a thorough review of the entire record, I find that
the ALJ's factual findings, R.D. and O. at 2-12, are supported by
the record evidence and I adopt them. Relevant facts are
included here to focus the discussion.
1. The facts.
Complainant, a Project Engineer in Pepco's Water Quality and
Land Use Department, [1] was assigned to review the statistical
aspects of three studies assessing the effect on the aquatic
environment of two water cooled generating stations. T. 435.
The stations have National Pollution Discharge Elimination System
[PAGE 2]
(NPDES) permits issued pursuant to the WPCA, 33 U.S.C. §
1342, by the State of Maryland. CX 2, 4. Pepco produced the
studies for possible use in support of a license for a future
generating station and in license renewals for existing stations,
T. 459-460, and to contradict the state's conclusion that the
cooling structure at one of the plants caused an unacceptable
environmental impact in the receiving waters. T. 114-115, 463.
In 1987, Complainant discovered flaws in the data and the
statistical analysis in the first study he reviewed, the
Dickerson 5-Year Study. T. 120-121. Based on Complainant's
critique, Pepco hired an outside consultant in biostatistics, who
agreed that there were serious flaws in the data and analysis.
T. 447-448. As a result, Pepco reverified the data and at the
time of the hearing, was preparing a new study based on it. T.
124.
Complainant revealed his concerns about the validity of the
statistics in the Dickerson 5-Year study to his supervisor,
Steven Guiland, T. 121-123, who in turn informed the manager
responsible for the study, David Bailey. T. 123. Guiland rated
Complainant's performance "superior" and specially credited
Complainant's "distinguished effort" in the review of the
Dickerson 5-year study. CX 86.
After Guiland left Pepco, Complainant reported to Bailey.
T. 431. Complainant told Bailey that he did not know whether he
could work under him, T. 522, and informed Bailey's supervisor,
William Foy, that he objected to reporting to Bailey. T. 230.
Foy told Complainant that he would have to report to Bailey or
else resign. T. 233-234. Complainant opined to a coworker that
Bailey was not qualified to be his manager.
T. 406-407. During conversations in September and October 1988,
Complainant informed Foy about the statistical problems with the
Dickerson 5-Year Study. T. 230-231. Complainant also informed
several other Pepco managers and executives about his concern
that studies that were not statistically valid might be submitted
to government agencies. E.g., T. 228. When Complainant
asked to meet with Pepco's Chairman, the President and the Senior
Vice President for Generation met with him instead and learned of
his concern. T. 237-241.
Both Complainant and an outside consultant agreed that some
of the statistical analysis in a second study, the 1985 Pilot
Study, was not appropriate. T. 130-131, 470. On the basis of
their recommendations, Pepco changed the approach for the actual
study to follow. T. 471-472. Pepco did not submit the flawed
1985 Pilot Study to any governmental body.
When Pepco assigned Complainant to review the statistical
aspects of the draft final report of the follow-on study, the
[PAGE 3]
1987 Forage Fish Study, Complainant refused to perform the review
unless he was given the access to the 100,000 raw data entries
underlying the study. T. 477-478; RX 2, 10, 13, 16. Complainant
told Bailey that for the study to be acceptable, there could be
absolutely no errors in the data. T. 479. Bailey did not
provide the raw data because the Water Quality Department was
using it for a quality assurance review and there was only a
short time until the study was due to be submitted to the State
of Maryland. T. 478. Bailey advised that Complainant could
qualify his review by stating any limitations under which it was
performed, RX 1, but Complainant still refused to do the review.
RX 2. A later internal quality assurance review on the data
revealed that it had an error rate between 0.1 and 0.2. T. 480.
Pepco submitted the final 1987 Forage Fish Study and the raw data
sheets to the Maryland Department of Natural Resources, which
found that the data errors were within acceptable limits.
T. 482-483. The study was accepted for publication by a
scientific society. T. 484.
On January 13, 1989, Complainant demanded to see his
personnel file, examined it, and screamed at Bailey that records
had been taken from it. T. 532. When Bailey asked which records
were missing, Complainant refused to tell him and threatened a
court action. Id. After the shouting incident, Bailey
consulted Pepco's industrial relations department, which advised
him that he need not tolerate shouting in the office. T. 569.
Bailey informed Complainant that further outbursts would result
in discipline. T. 570. A few weeks later, Bailey observed a
shouting incident between Complainant and another manager, Tyrone
Williams. T. 550-551.
Some coworkers who heard Complainant speaking very loudly or
shouting indicated that it did not bother them. T. 91, 845
(Campbell), 141-142 (Guiland), 777 (Leeks) 818 (Harrison), 842
(Sharpeson). Others, however, found Complainant's outbursts very
disturbing in Pepco's open cubicle offices in which noise carried
easily. T. 362, 364-368 (Elliott), 385-388 (Cline), 404-408
(Lenney), 500 (Willenborg). One witness sought advice from a
Pepco attorney concerning Complainant's disturbances of the work
atmosphere, T. 388 (Cline), and Paul Willenborg stated that one
of Complainant's outbursts kept him from completing an
assignment. T. 500; RX 18.
On February 14, 1989, Bailey asked Complainant to meet with
him and Complainant refused, stating that he had a medical
appointment and also "business across the street." T. 571. When
Bailey inquired about the nature of the business across the
street (which Bailey took to refer to other Pepco offices),
Complainant said it was none of Bailey's business. Id.
As Complainant walked away, Bailey warned that refusing to meet
with
[PAGE 4]
him would be considered insubordination. Id. Ultimately,
Bailey excused Complainant from the meeting because Complainant
said he was ill and needed to see a doctor. Id.
Bailey was concerned with the amount of time it took
Complainant to conduct statistical reviews. T. 549. When Bailey
asked the nature of the process Complainant used to do the
reviews, Complainant responded that it was none of Bailey's
business and that Complainant did not have to answer. T. 548-
549. Complainant stated several times that he intended to tape
record his meetings with Bailey, and Bailey indicated that was
not acceptable. T. 573-575.
Upon assuming responsibility for the Environmental Affairs
Group in February 1989, Vice President Charles Nicholson met with
managers Foy and Bailey to investigate Complainant's allegations
about the statistical reports. T.786-787. Foy and Bailey
reported problems with Complainant's work place behavior,
including his temper flare-ups, loud voice, and insubordination.
T. 788-789. Nicholson decided that Complainant's allegations
about flawed studies were correct, that Pepco recognized the
errors, and that it was making appropriate changes to rectify
them. T. 787.
An incident on March 9, 1989, led to Complainant receiving a
half-day suspension without pay. Bailey testified that on that
morning, he asked Complainant to meet with him "right now," that
Complainant ignored him, that Bailey warned that failure to
comply would result in discipline, and that Complainant walked
out of the department. T. 582-584. When Complainant returned to
the department, Bailey informed him he was suspended. T. 585.
Complainant testified that Bailey first asked him to meet at a
later time that day, Complainant agreed, Bailey left, returned,
and demanded to meet "now," Complainant said "okay," and then
Bailey told Complainant he was suspended. T. 263-267.
Complainant did not report to work on the following two work
days because he was ill. T. 275-276. When he reported on the
third day, Complainant telephoned an Industrial Relations
Specialist, who told him to go to Pepco's Medical Department.
T. 277. A Pepco physician examined Complainant on March 14 and,
based on his physical condition, told Complainant he was not
allowed to return to work until his personal physician issued a
medical release. T. 277-281. Complainant continued to call in
sick daily. T. 281. His personal physician released him to
return to work only after he had been discharged. T. 281.
Bailey prepared an evaluation of Complainant in January or
February 1989 in which he rated Complainant's performance "fair"
overall, and "marginal" in the category covering performance of
statistical reviews. CX 85. Whereas Bailey normally presented
appraisals to the rated employees around March 1 of the year, he
[PAGE 5]
did not do so with Complainant in 1989 because either he or
Complainant were absent from the office in early March, T. 528,
and Complainant was out on sick leave from March 9 until his
discharge.
While Complainant was on sick leave and at Pepco's request,
Complainant met with Vice President Nicholson for more than an
hour. T. 183-184, 792. Nicholson had never met Complainant and
testified that in view of the reports about Complainant's
behavior, he wanted to observe Complainant's demeanor. T. 790-
791. Nicholson said that as Complainant recited his life story
and discussed the alleged errors in the statistical studies, "he
became more and more emotional and irrational . . . up and down
from his seat, and coming over to my desk in a way that I
considered irrational. . . ." T. 792. Nicholson said
Complainant "indicated that he wanted everything [in the studies]
to be perfect." T. 792. Shortly after the meeting Complainant
phoned Nicholson and said that the meeting was of no value, that
people were out to get him and that he did not want Nicholson on
his side. T. 794.
Nicholson believed that Complainant would be disruptive,
would not be a productive employee, that it would be fruitless to
try to change Complainant's behavior, and that he should be
discharged. T. 793. Nicholson informed Pepco's President that
he decided to discharge Complainant. Id. Pepco packed
Complainant's personal belongings while Complainant was still on
sick leave. CX 66. Pepco sent Complainant a letter discharging
him effective April 7, 1989, "based on [his] performance and
behavior, which include[d his] repeated acts of insubordination."
RX 19.
2. Preliminary Matters
Complainant's motion to enlarge the page limit in his
initial brief is granted. The brief is accepted into the record
in its entirety.
The briefing schedule in this case provided for simultaneous
submission of opening briefs and reply briefs. Both parties
timely submitted their opening briefs, but only Respondent timely
submitted its reply brief. Complainant sought leave to reply to
Respondent's reply brief on the ground that he bears the ultimate
burden of proof and should have the closing response. The reply
brief is accepted into the record so that I may have the benefit
of the parties' arguments in their entirety.
After the hearing, Complainant tendered to the ALJ the
American Statistical Association's 1989 publication, "Ethical
Guidelines for Statistical Practice" ("Guidelines"). The ALJ
granted Respondent's motion to strike the publication. R. D. and
O. at 2 n.3. Complainant has moved to supplement the record, or
in the alternative, for the Secretary to take administrative
[PAGE 6]
notice of the Guidelines. The copies tendered to the ALJ and to
the Secretary contained only some of the pages of the Guidelines.
While I would be inclined to take administrative notice of a
professional society's publication, I will not do so in this case
because the tendered publication is incomplete. [2]
3. Analysis.
Under the WPCA,
No person shall fire, or in any other way discriminate
against, or cause to be discriminated against, any
employee . . . by reason of the fact that such employee
has filed, instituted, or caused to be filed
or instituted any proceeding under this
chapter, or has testified or is about to
testify in any proceeding resulting from the
administration or enforcement of the
provisions of this chapter.
33 U.S.C. § 1367(a). There is no dispute that Respondent
Pepco is a person within the meaning of the WPCA, 33 U.S.C.
§ 1367(a), and that Complainant, who worked for Respondent,
is a covered employee.
To make a prima facie case, the complainant in a
whistleblower case must show that he engaged in protected
activity, that he was subjected to adverse action, and that the
respondent was aware of the protected activity when it took the
adverse action. Complainant also must raise the inference that
the protected activity was the likely reason for the adverse
action. Dartey v. Zack Co. of Chicago, Case No. 82-ERA-2,
Sec. Ord., Apr. 25, 1983, slip op. at 8.
The ALJ found that Complainant's complaints to management
about inaccuracies in several environmental studies do not
"suggest that PEPCO intended to violate any state or federal
law," R.D. and O. at 5, and thus indicated that Complainant may
not have introduced sufficient evidence to establish that he
engaged in protected activities under the WPCA. Complainant
asserts that the ALJ's view of protected activities is too
narrow. Complainant's Brief in Opposition to ALJ's Decision
(Com. Br.) at 4-6. But the ALJ did not require such a showing.
Rather, for purposes of decision, the ALJ assumed that
Complainant engaged in protected activities and that Respondent
was aware of the activities. R. D. and O. at 5.
To establish protected activity, the employee need
demonstrate only a reasonably perceived violation of the
underlying statute or its regulations. Crosby v. Hughes
Aircraft Co., Case No. 85-TSC-2, Dec. and Order, Aug. 17,
1993, slip op. at 26; Johnson v. Old Dominion Security,
Case No. 86-CAA-3, et seq., Sec. Dec., May 29, 1991, slip
op. at 15; Aurich v. Consolidated Edison Co., Case no. 86-
ERA-2, Sec. Rem. Order,
[PAGE 7]
Apr. 23, 1987, slip op. at 4; Yellow Freight System, Inc. v.
Martin, 954 F.2d 353, 357 (6th Cir. 1992). Complainant
testified that he informed several Pepco managers and executives
that he believed there were statistical problems with studies
that Pepco would submit to the state. T. 228, 230, 238, 240-241,
792. Since the studies related to power plants for which Pepco
had NPDES permits issued under the WPCA, Complainant's concern
about a potential violation of the statute was reasonable.
It is well settled that reporting potential statutory
violations internally to management is protected activity under
employee protection provisions. E.g., Guttman v.
Passaic Valley Sewerage Commissioners, Case No. 85-WPC-2,
Final Dec. and Order, Mar. 13, 1992, slip op. at 13 (complaints
to management that sampling method of monitoring industrial waste
treatment system users was "meaningless and unreliable"
constituted protected activity under WPCA), aff'd, No. 92-
3261 (3d Cir. Apr. 16, 1993); Wagoner v. Technical Products,
Inc., Case No. 87-TSC-4, Final Dec. and Order, Nov. 20, 1990,
slip op. at 11-12 (bringing safety issues to immediate supervisor
was protected activity under the Toxic Substances Control Act, 15
U.S.C. § 2622(a) (1988)); Poulos v. Ambassador Fuel Oil
Co., Inc., Case No. 86-CAA-1, Dec. and Order of Remand, Apr.
27, 1987, slip op. at 6 (internal employee complaints were
protected under Clean Air Act, 42 U.S.C. § 7622 (1988). On
the facts of this case, I find that Complainant engaged in
protected activity when he informed managers about his doubts
concerning the validity of certain studies that could be used to
support licenses or permits issued pursuant to the WPCA, and that
Respondent was aware of Complainant's protected activities when
it discharged him.
In making a prima facie case, temporal proximity between the
protected activities and the adverse action may be sufficient to
establish the inference that the protected activity was the
likely motivation for the adverse action. SeeGoldstein v. Ebasco Constructors, Inc., Case No. 86-ERA-
36, Sec. Dec., Apr. 7, 1992, slip op. at 11-12 (causation
established where seven or eight months elapsed between protected
activity and adverse action), reversed on other
grounds, No. 92-4567 (5th Cir.
Feb. 19, 1993); see alsoCouty v. Dole, 886 F.2d
147, 148 (8th Cir. 1989) (temporal proximity sufficient as a
matter of law to raise inference of causation).
Complainant brought his concerns about the validity of the
studies to management's attention in a series of meetings from
1987 through March 28, 1989. Complainant was discharged
effective April 7, 1989. In view of the short period of time
between Complainant's protected activities and the discharge, I
find that Complainant introduced evidence sufficient to raise an
inference that his protected activities likely motivated his
[PAGE 8]
discharge. Thus, I find that Complainant established a prima
facie case that Pepco violated the WPCA.
Once Complainant established a prima facie case, the burden
shifted to Respondent to articulate legitimate, nondiscriminatory
reasons for the adverse action, Dartey, slip op. at 8, and
Pepco did so. As outlined by the ALJ, R. D. and O. at 8-12,
Pepco's witnesses testified about a number of incidents in which
Complainant raised his voice, showed anger, and was insubordinate
at work, including his refusal to review the statistical aspects
of the 1987 Forage Fish study. Complainant was suspended without
pay for a half day when he refused to meet with Bailey on
March 9, 1989. Pepco informed Complainant that he was discharged
based on "performance and behavior, which includes . . . repeated
acts of insubordination." CX 65.
Complainant had the burden of persuading that the reasons
articulated by Respondent were a pretext, either by showing that
the unlawful reason more likely motivated Respondent or by
showing that the proffered explanation is unworthy of credence.
Dartey, slip op. at 8. Complainant also had the ultimate
burden of persuading that the real reason for the discharge was
discriminatory. Pillow v. Bechtel Construction, Inc.,
Case No. 87-ERA-35, Dec. and Order of Remand, July 19, 1993, slip
op. at 14. In "dual motive" cases, where the trier of fact finds
that the employer was motivated by both prohibited and legitimate
reasons, the employer has the burden of persuading that it would
have taken the same action in the absence of the protected
conduct. Dartey, slip op. at 9; see alsoPrice
Waterhouse v. Hopkins, 490 U.S. 228, 258 (plurality opinion).
Complainant's contention that Pepco retaliated against
him because of his criticisms of its environmental studies is
unconvincing. If Pepco did not like Complainant's criticisms and
suggestions, it could have ceased to assign him to perform
statistical reviews of environmental studies. Even after
Complainant seriously criticized the Dickerson 5-Year study,
however, Pepco continued to assign such reviews to him and made
them a part of the job description it drafted for his position in
1989. See RX 11, par. 6. When Complainant suggested
different approaches to statistical analysis, Pepco agreed and
changed its studies accordingly. Pepco appeared to value
Complainant's contributions as an independent check on the
validity of its studies. See T. 124, listing three
persons, including Complainant, who performed quality assurance
review on a study.
Nor do I find evidence of discrimination in Bailey's giving
Complainant a lower performance rating for his review of
environmental studies than Guiland did. In explaining why he
rated Complainant only "marginal" on the task, Bailey wrote:
A number of good technical comments were provided on
[PAGE 9]
Dickerson 1985 design and report. However, reviews were poorly
written. Refusal to review the 1987 forage fish report except
under incumbent conditions is unacceptable and resulted in the
marginal rating.
RX 17. The evidence supports Bailey's assessment. As a
subordinate, Complainant was not in a position to dictate the
conditions for his review of the forage fish study. Pensyl v.
Catalytic, Inc., Case No. 83-ERA-2, Sec. Dec., Jan. 13, 1984,
slip op. at 8 ("Employees have no protection [under an analogous
employee protection provision] for refusing work simply because
they believe another method, technique, or procedure or equipment
would be better or more effective"]. There is no dispute that
Complainant declined to review the 1987 study under the
conditions Bailey set. Moreover, Bailey gave Complainant the
option of qualifying his review with a written statement about
the conditions under which it was performed.
Similarly, the testimony supported Bailey's assessment that
Complainant also "refused . . . to provide technical information
related to his work." RX 17. On one occasion when Bailey was
discussing with Complainant the amount of time it took to perform
statistical reviews of studies, Bailey asked what process
Complainant used to do the work. T. 548-549. Complainant did
not refute that he declined to provide the information and stated
that it was none of Bailey's business. Id.
Pepco cited Complainant's behavior as a reason for his
discharge. RX 19. There were repeated instances in late 1988
and early 1989 of Complainant shouting loudly in the office.
Witnesses described Complainant's behavior as "extremely loud,
out of control," T. 376 (Elliott), "excessive shouting," T. 385
(Cline), and "a lot of explosive tantrums." T. 404 (Lenney).
John Cline opined that during the last few months of his
employment at Pepco, Complainant "was becoming increasingly
agitated or disturbed." T. 389-390. Coworkers remarked that
they would be fired if they behaved like Complainant, and they
did not understand why Pepco put up with it. T. 368 (Elliott),
404 (Lenney). Workers were so disturbed by Complainant's
tantrums that they could not continue to perform their duties.
T. 386 (Cline), 407 (Lenney), 500 (Willenborg). Although Bailey
warned Complainant in January 1989 that shouting was unacceptable
and could lead to discipline, Complainant later shouted at Tyrone
Williams and again at Bailey.
Likewise, the evidence supports Pepco's citing
insubordination as a reason for the discharge. RX 19.
Complainant's refusal to tell his supervisor the methods he used
for performing statistical reviews and his failure to review the
1987 Forage Fish study except on his own terms clearly showed
[PAGE 10]
that Complainant was insubordinate. In addition, Complainant
refused Bailey's request to meet with him on March 9. [3]
Even when an employee has engaged in protected activities,
employers legitimately may discharge for insubordinate behavior,
work refusal, and disruption. See, e.g., Dunham
v. Brock, 794 F.2d 1037, 1041 (5th Cir. 1986) ("[a]busive and
profane language coupled with defiant conduct or demeanor justify
an employee's discharge on the grounds of insubordination" even
though the employee had also engaged in protected activity);
Hale v. Baldwin Associates, Case No. 85-ERA-37, Final Dec.
and Order, Sep. 29, 1989, adopting ALJ Recommended Dec. and
Order, Oct. 20, 1986, slip op. at 26 (no statutory violation
where employee discharged for not accepting assignments and for
disrupting the work place); Couty v. Arkansas Power & Light
Co., Case No. 87-ERA-10, Final Dec. and Order on Remand, Feb.
13, 1992, slip op. at 2 (no violation where Complainant engaged
in abusive, disruptive, profane, and threatening behavior towards
supervisors).
Informed of Complainant's concerns about the validity of
environmental studies and of Complainant's aberrant behavior,
Pepco Vice President Nicholson decided to meet with Complainant
prior to deciding what measures to take. During that meeting,
Complainant reiterated that he wanted the studies to be "perfect"
and behaved in an increasingly erratic manner. T. 792. Shortly
afterward, Complainant telephoned Nicholson and stated that
people were out to get him. T. 794. Nicholson reasonably
determined that Complainant's behavior would not change, and that
to avoid work place disturbances, Complainant should be
discharged.
I find that Complainant's continued disruption of the work
place and insubordination to Bailey justified Pepco's decision to
discharge him. Complainant did not persuade that the reasons
Pepco proffered were a pretext for discrimination or that the
real reason for his discharge was his criticism of the
statistical studies. Even if Pepco had mixed motives for
discharging Complainant, I find that Pepco established by a
preponderance of the evidence that it would have discharged
Complainant absent his engaging in protected activities. Accordingly, the complaint is
DISMISSED.
SO ORDERED.
ROBERT B. REICH
Secretary of Labor
Washington, D.C.
[ENDNOTES]
[1] After a 1988 reorganization of the department, Complainant
worked for both of the resulting departments and reported to the
head of the Water Quality Department.
[2] In any event, Complainant does not point to any specific
portion of the Guidelines that would preclude review of the
statistical aspects of a study on Pepco's terms, and he did not
inform Bailey that the Guidelines were the basis for his refusal
to review the 1987 study.
[3] Pepco employee Joanne Leeks agreed with Complainant's
version of the facts, that on the morning of March 9, Bailey
asked to meet Complainant at a later time that afternoon and
Complainant agreed. T. 189. Leeks said that during the
incident, Bailey was talking very loud. T. 190. Leeks did not
recall ever hearing Complainant raise his voice at work. T. 210.
Other witnesses who saw or heard the incident testified, however,
that both Complainant and Bailey were talking very loud, T. 818
(Harrison), or yelling, T. 494 (Willenborg).
Without stating the reason, the ALJ credited Bailey's
version of the facts, that in the morning, he asked Complainant
to meet with him immediately and Complainant refused. R. D. and
O. at 17. Since the record contains ample testimony that
Complainant often shouted in the work place, and all witnesses
agreed that the March 9 exchange between Bailey and Complainant
was heated, I find it more likely than not that Complainant also
was shouting on that occasion. In view of the fact that Ms.
Leeks could not recall that Complainant was shouting, I find it
difficult to believe that she recalled Bailey's setting a meeting
time for 3 or 3:30 p.m. Therefore I agree with the ALJ's
assessment of credibility on this issue.
OAA:CHIGGINS:tm:February 15, 1996
Room S-4309:FPB:219-4728
