(T. at 205, 209-10,
367-68; RX-6.)
Following the briefing, Lt. Bangasser placed the memorandum
in the Central Alarm Station, where the guards would have access
to it. Halfway through the shift he moved it to the badge issue
area. (T. at 369.) Realizing that Ms. Yule had not yet signed
the memorandum, Lt. Bangasser asked her whether she had had an
opportunity to read it; she replied that she had. (T. at 370;
RX-6 at p. 1.) He asked her whether she had any questions on the
use of the door, and she asked if the door was & fail-safe device
and why it was placed at that specific location. (T. It 370; RX-
6 at p. 1.) After answering her questions, (T. at 371; RX-6 at
pp. 1-2), he asked her if she understood how to use the device,
and she replied that she did. (T. at 207, 209, 288, 371, 391;
RX-6 It p. 2.) He asked her to sign the memorandum; she refused.
(T. at 207-08, 289, 371-74; RX-6 at p. 2.) Ms. Yule told Lt.
Bangasser that she would not sign the memorandum because training
on security equipment was to be performed in a training setting,
at the training center, not on shift, that her signature would
signify that there was no need for formal training, and that
informal training could take its place. (T. at 372, 389-90, 452-
53; RX-4, RX-6 at p. 2. Contra T. at 208, 210-11, 291-92, 308-
10.)
On August 25, 1992, near the end of the shift, Lt. Bangasser
called Ms. Yule aside for an informal meeting. (T. at 372; RX-4,
RX-6 at p. 3.) Lt. Bangasser had never had an employee refuse a
directive before, so he made it clear to her that she was
required to sign the memo. (T. at 373-74.) He told her that he
had given her a "job assignment" and that by refusing to sign the
memorandum she would be insubordinate. (T. at 372-73; RX-4, RX-6
at p. 3.) She again refused. (T. at 210-11, 290, 293-94, 372-
73; RX-6, pp. 2-3.) She said that she had signed similar
documents in the past and they had been later brought up and used
against her. (RX-6 at p. 3.) Ms. Yule told Lt. Bangasser that
she did not want to see training conducted on the shift and that
she believed this was an important issue. (T. at 373-14.) Lt.
Bangasser advised Ms. Yule that it would be advantageous to find
a different means for voicing her opinion on training. (T. at
374; RX-4.) She told Lt. Bangasser, "I prefer to be written up
than to sign this document." (T. at 373; RX-10 at pp. 13, 18.
Contra T. at 290.) Ms. Yule denies that Lt. Bangasser ever gave
her a direct order to sign the memorandum. (T. at 413.)
Lt. Bangasser then wrote a memorandum to Mr. Jones
documenting the incident. (T. at 374-75, 412-13; RX-4.) He also
met with Mr. Jones and discussed the matter. (T. at 374-76, 411-
12, 452-53.) Mr. Jones reported the incident to Frank Evitch,
who told him to take care of it. (T. at 413.)
When Lt. Bangasser arrived for duty on August 25, 1992, he
found that Mr. Jones had left detailed instructions for him. (T.
at 376-77, 414-15.) On August 26, 1992, at 12:05 am., after the
shift briefing, he called Ms. Yule aside. She again refused to
sign the memorandum. (T. at 211, 293, 377, 415, 514; RX-6 at p.
3.) He then told her that he was scheduling a disciplinary
meeting. (T. at 211, 293-94, 378.) He telephoned Mr. Jones and
reported that Ms. Yule still refused to sign the memorandum. (T.
at 378, 415; RX-6 at pp. 3-4.) Lt. Bangasser testified that he
offered Ms. Yule a last opportunity to sign the memorandum at the
meeting. Ms. Yule claims she was not afforded this fourth
opportunity, and that she would have signed the memorandum had
she know the consequences of her refusal. (T. at 380, 507-08.)
Lt. Bangasser, on the other hand, testified that he discussed
with Ms. Yule that her failure to sign the memorandum as directed
was not acceptable and was insubordination, which would not be
tolerated. (T. at 377.) At Mr. Jones' instructions, Lt.
Bangasser informed Ms. Yule that she was decertified as a
security officer; that she was suspended from duty for
insubordination; and that she was to leave the plant and not
return, pending investigation. (T. at 213, 294-95, 379-81, 415-
16; AX-6 at p. 3.) Lt. Bangasser then wrote a report of the
incident, which was forwarded to Mr. Jones on the morning of
August 26. (T. at 383, 417; RX-6.)
Ms. Yule telephoned Mr. Jones later that morning and asked
to be advised of her suspension in writing. (T. at 217, 379,
418-19; RX-10.) Ms. Yule received written verification by
certified mail dated August 27, 1992. (T. at 295, 420-21; CX-14,
RX-10.) The letter stated that the matter would be investigated;
that there would be a meeting; and that the specifics to be
discussed at the meeting would include both the SAS Door incident
and her "previous warnings and reprimand for insubordination."
(T. at 295-96, 421-22; CX-14, RX-10.)
On September 2, 1992, at approximately 10:00 am., Mr. Jones
met with Ms. Yule. (T. at 96-97, 107, 217-19, 296, 425, 467-68;
RX-10, RX-14.) Mr. Jones asked Ms. Yule questions about her
refusal to sign the SAS Door memorandum. (T. at 98-99, 218, 299,
426, 430-32; CX-15, RX-10 at pp. 8-11, RX-14.) He also asked
whether the charges of insubordination relating to the February
20 through 22, 1992 incident were true. (T. at 99, 107-09, 218-
19, 298-99, 427-28, 433-34, 448, 456, 458, 469-70; RX-10 at pp.
2, 8-11; RX-14.)
In response, Ms. Yule stated that she had refused to sign
the memorandum but that she was not aware that her refusal could
be used against her. (RX-10 at pp 8-11.) Moreover, she stated
that she had not been insubordinate by questioning Lt. Majeski's
deviance from a Section Work Instruction. (RX-10 at pp 8-11.)
Additionally, Ms. Yule submitted a written statement, asserting
that `she had never been required to sign-off on memorandums such
as this in the past and that she was not aware that she had been
given a "direct order" to sign the memorandum or that her past
insubordination charges would be used against her. (CX-15; RX-
10.)
After the meeting, Mr. Jones compiled a Report of
Investigation, which provided a comprehensive account of the SAS
Door 120 incident. (RX-10.) Additionally, the report contained
a detailed account of the February 1992 incident, including
copies of the reports of counselling and statements from an
interview with Lt. Majeski. (RX-10 at pp. 6, 8, 28-30.) Also in
the investigative report, Mr. Jones reported having been
contacted by NSP Site Security Superintendent Rolly Conklin and
advised that Ms. Yule was disrupting the entire security force
and that he wanted her removed from the site. (AX-10 at p. 8.)
On the morning of September 3, 1992, Mr. Jones sent the
Report of Investigation to his superior, Gary Snavely, and to Guy
Thomas, the Burns Labor Relations Manager for the Nuclear
Utilities Division. (T. at 434-36, 448, 491-92; AX-10.) Mr.
Snavely, the Burns Vice President of Operations for the Utilities
Business Unit, had the authority to terminate Ms. Yule's
employment. (T. at 437-36.) Mr. Jones recommended that her
employment be terminated. (T. at 438-39, 493-94.) Mr. Snavely
subsequently terminated Ms. Yule's employment.
On September 3, 1992, Mr. Jones told Ms. Yule that her
employment with Burns was terminated for insubordination. (T. at
220, 300-01, 440.) He sent her written notice by certified mail
on September 8, 1992. (T. at 220, 300, 440-41; CX-17.)
APPLICABLE LAW
In Federal whistleblower cases, the employee bears the
ultimate burden of proving that intentional discrimination has
occurred. Dean Dartey , No. 82-ERA-2, at 6-7 (Sec'y, Apr. 23,
1983) (citing Texas Dept of Community Affairs v. Burdine , 450
U.S. 248, 254, 101 S. Ct. 1089, 1094 (1981)). In such cases, the
employee must initially present a prima facie case showing by a
preponderance of the evidence that (1) she or he engaged in
protected activity, (2) the employer was aware of such activity,
and (3) the employer took adverse action against the employee.
Dean Dartey , at 7; see also McDonnell Douglas Corp. v. Green , 411
U.S. 792, 803, 93 S. Ct. 1817, 1824 (1972). In addition, the
employee must show that (4) the protected behavior "was a
contributing factor in the unfavorable personnel action alleged
in the complaint." 42 U.S.C. § 5851(b)(3)(A) (as amended by the
Comprehensive National Energy Policy Act, Pub. L. No. 102-486, §
2902, 106 Stat. 2776, 3123-25, 138 Cong. Rec. H12150-51 (daily
ed. Oct. 5, 1992); Dean Dartey , at 7-8; accord Mt. Healthy City
Sch. Dist. Bd. of Educ. v. Doyle , 429 U.S. 274, 288, 97 S. Ct.
568, 576 (1977). By establishing a prima facie case, the
employee is entitled to a presumption of discriminatory
treatment, because employer's "acts, if otherwise unexplained,
are more likely than not based on the consideration of
impermissible factors." Texas Dept of Community Affairs , 450
U.S. at 254-55, 101 S. Ct. at 1094.
Protected activity includes such conduct as notifying an
employer of an alleged violation of the Energy Reorganization Act
of 1974 or the Atomic Energy Act, 42 U.S.C. § 5851(a)(1)(A) (as
amended by the Comprehensive National Energy Policy Act, supra ;
refusing to engage in any practice made illegal by these acts
when the employee has identified the alleged illegality to the
employer, § 5851(a)(1)(B) (as amended, supra ); or in any manner
assisting or participating in or causing to be commenced a
proceeding for the administration or enforcement of any
requirement under these acts, see § 5851(a)(l)(D),(F) (as
amended, supra ). NRC regulations provide that:
(1) The protected activities include but are not
limited to:
(i) Providing the Commission information
about possible violations of requirements imposed
under either of the above statutes;
(ii) Requesting the Commission to institute
action against his or her employer for the
administration or enforcement of these
requirements; or
(iii) Testifying in any Commission
proceeding.
(2) These Activities are protected even if no
formal proceeding is actually initiated as a result of
the employee assistance or participation.
10 C.F.R. § 50.7(o) (2), quoted in Kansas Gas & Elec. Co. v.
Brock , 780 F.2d 1505, 1512 (10th Cir. 1985), cert. denied , 478
U.S. 1011, 106 S. Ct. 3311 (1986). "The regulations make it
clear that a formal proceeding is not required in order to invoke
the protection of the Act." Kansas Gas & Elec. Co. , 780 F.2d at
1512. Moreover, the fact that an employee may be mistaken as to
whether the employer's actions actually violated the above
mentioned statutes is not dispositive of the issue of whether the
employee engaged in protected activity, since "internal
complaints regarding safety or quality problems," Mackowiak v.
University Nuclear Sys., Inc. , 735 F.2d 1159, 1162 (9th Cir.
1984), as well as "possible violations," Kansas Gas & Elec. Co. ,
780 F.2d at 1512, are considered protected activity.
In order to rebut the presumption of retaliatory action, the
employer must articulate a legitimate, nondiscriminatory reason
for the adverse action. Dean Dartey, supra , at 8; see also Texas
Dept of Community Affairs, supra , 450 U.S. at 254, 101 S. Ct. at
1093. Significantly, the employer bears only a burden of
producing evidence at this point; the ultimate burden of
persuasion that intentional discrimination occurred rests with
the employee. Dean Dartey, supra , at 8. If the employer carries
this burden of production, the presumption raised by the prima
facie case is rebutted. Texas Dept of Community Affairs , 450
U.S. at 256, 101 S. Ct. at 1094-95. In addition, the factual
issues of the case should be framed with sufficient clarity at
this point so as to indicate whether this is a case of "pretext"
or "dual motives." See id. , 450 U.S. at 256, 101 S. Ct. at 1094-
95.
In a "pretext" case, if the employer has successfully
rebutted the employee's prima facie case, the employee still has
the opportunity to demonstrate that the proffered reason for the
adverse action was not the true reason. Dean Dartey , at 8; see
also Texas Dept of Community Affairs , at 257. Thus, the employee
must prove pretext, either directly, by showing that a
discriminatory reason more likely than not motivated the
employer, or indirectly, by showing that the employer's
explanation is unworthy of credence. Dean Dartey , at 8; see also
Texas Dept of Community Affairs , at 257. If the employee
establishes, by a preponderance of the evidence, that the
employer's proffered reason for its conduct was a pretext, then
the employee has proved actionable retaliation for protected
activity. Dean Dartey , at 8.
In a "dual motive" case, if the employee establishes, by a
preponderance of the evidence, that the protected activity was a
motivating or contributing factor in the employer's decision to
take adverse action, then the employer may still avoid liability
by establishing that it would have reached the same decision even
in the absence of the protected activity. 42 U.S.C. §
5851(b)(3)(D) (as amended by the Comprehensive National Energy
Policy Act, supra; Dean Dartey , at 9; accord Mt. Healthy City
Sch. Dist. Bd. of Educ. v. Doyle , 429 U.S. 274, 288, 97 S. Ct.
568, 576 (1977); Mackowiak v. University Nuclear Sys., Inc. , 735
F.2d 1159, 1163-64 (9th Cir. 1984); Pogue v. United States Dept
of Labor , 940 F.2d 1287, 1290 (9th Cir. 1991). The employer
bears the burden of establishing this affirmative defense by
clear and convincing evidence. 42 U.S.C. § 5851(b)(3)(D) (as
amended, supra ); cf. Dean Dartey , at 9. In addition, the
employer bears the risk that the influence of legal and illegal
motives cannot be separated. Pogue v. United States Dept of
Labor , 940 F.2d 1287, 1291 (9th Cir. 1991).
DISCUSSION
The first issue to be decided is whether Ms. Yule engaged in
protected activity. I note at the outset that since the purpose
of the whistleblower provision of the Energy Reorganization Act
is for "employees and union officials" to help assure that
employers do not violate the Atomic Energy Act, S. Rep. No. 848,
95th Cong., 2nd Sess., at 29 (1978), reprinted in 1978
U.S.C.C.A.N. 7303, 7304, quoted in Kansas Gas & Elec. Co. v.
Brock , 780 F.2d 1505, 1512 (10th Cir. 1985), cert. denied , 478
U.S. 1011, 106 S. Ct. 3311 (1986), Ms. Yule's role as union
president, ostensibly seeking to secure benefits for members of
the collective bargaining unit, does not adversely impact upon
the analysis of whether she engaged in protected activity.
On February 19, 1992, when Ms. Yule complained to Lt.
Majeski about the posting of an unarmed guard at the containment
entry area, she alleged that Burns was violating NSP rules for
the physical protection of the nuclear power plant. Since the
plant rules were based on NRC safety and protection requirements,
which were promulgated under the authority of the Atomic Energy
Act, Ms. Yule's allegation that NSP rules were being violated
amounted to an allegation that the requirements of the Atomic
Energy Act were being violated. In fact, the incident was later
investigated by the NRC. (RX-15.)
When Ms. Yule sent her February 21, 1992 letter to Donald
Funk at DC, she complained that morale in the guard force had
declined as a whole, because of actions taken by Burns. (T. at
266-68; CX-9.) She testified that she believed that the NRC
required licensees and subcontractors to maintain morale at a
certain level and that the NRC later summoned the NSP
Superintendent of Security to appear in Chicago to discuss
morale. (T. at 266-67). Since the low or poor morale of a
nuclear plant's security force can impact on plant safety and
protection, Ms. Yule's letter provided information to the NRC
about possible violations.
When Ms. Yule met with NRC inspectors in March and July of
1992 to discuss her concerns about staffing, morale, working too
many hours, training, and violations of Fitness For Duty
guidelines, she was both providing information to the NRC about
possible violations and requesting that the NRC institute action
against her employer for the enforcement of nuclear power plant
safety and protection rules.
On August 10, 1992, when Ms. Yule reported to Frank Evitch,
the NSP Superintendent of Security, that Lt. Majeski had left the
badge issue area unattended, she was attempting to have the
regulations concerning plant security and protection enforced.
This incident was later investigated by the NRC. (RX-IS.) In
each of the incidents listed above, Ms. Yule engaged in protected
activity.
Ms. Yule's recollection of her statements of August 25,
1992, differs from that of the other witnesses, in that only she
recalls telling Lt. Bangasser and Mr. Jones that by recirculating
the memorandum, Burns was "trying to do a cover-up to the NRC"
and "trying to hide something from the NRC." (T. at 207-08, 210-
12, 291-92, 309-10, 389-90, 426.) In addition, she claims to
have told Lt. Bangasser that it looked to her that Burns and NSP
were just trying to save money and not give training. (T. at
212.) Because Lt. Bangasser wrote two reports contemporaneously
with the events of August 25, 1992, I deem the reports more
reliable than Ms. Yule's memory. Also, taking the demeanor of
the witnesses into consideration, I of ford greater weight to Lt.
Bangasser's testimony when resolving factual conflicts concerning
Ms. Yule's statements at that time. I find that Ms. Yule did not
mention an NRC cover-up when refusing to sign the memorandum. I
also credit Lt. Bangasser's testimony that he directed Ms. Yule
to sign the memorandum and cautioned her that refusal to sign was
not an option and would be an act of insubordination, which would
not be tolerated.
Ms. Yule gave Lt. Bangasser two reasons for her refusal to
sign the memorandum. Her statement that she had signed similar
documents in the past and that they were later used against her,
(AX-6 at p. 3), was not protected conduct, in that her fear that
her signature or initials on a memorandum could be used against
her in some future manner was not an allegation of a violation of
the Energy Reorganization Act or the Atomic Energy Act.
Moreover, Ms. Yule's statement that training on the operation of
security equipment should be held in a formal training setting
rather than informally on shift, (T. at 372-74; RX-4, RX-6 at pp.
2-3), and her statement that her signature on the SAS Door 120
memorandum would indicate that there was no need for formal
training and that informal training would take its place, (RX-6
at 2), were not protected conduct, in that her opinion regarding
location and characterization of training sessions was not an
allegation of a violation of the Energy Reorganization Act or the
Atomic Energy Act.
The evidence indicates that Burns' management was aware of
several instances of Ms. Yule's protected activity. Ms. Yule's
February 19, 1992 complaint about the posting of an unarmed guard
at the containment entry area was made directly to Lt. Majeski,
the Burns shift lieutenant. Lt. Majeski then notified her
supervisor, Robert Bethea, the Burns Site Security Manager, who
in turn notified his supervisor, Larry Jones, the Burns Division
Support Services Manager. In addition, just before Ms. Yule's
termination, Mr. Jones reported the watchperson incident to Gary
Snavely, the Burns Vice President of Operations for the Utilities
Business Unit, and Guy Thomas, the Burns Labor Relations Manager
for the Nuclear Utilities Division, through his Report of
Investigation, dated September 3, 1992, which listed the incident
among the "items of significance," and to which was attached
copies of the original reprimands. (RX-10 at p. 6.)
There is also evidence that Burns was aware that Ms. Yule
went to John Oelkers, NSP's on-site quality control person, to
complain of her threatened termination over the watchperson
incident, because Lt. Majeski and Mr. Bethea both separately
stated, when reprimanding Ms. Yule, that they were following the
advice of NSP security shift supervisors. Moreover, at the June
1992 labor negotiations session, Mr. Jones' instruction to Ms.
Yule to cease speaking to Mr. Christopher, NSP coordinator, about
Fitness For Duty guidelines, indicates that Burns was aware of
Ms. Yule's allegation that Burns was violating the Fitness For
Duty requirements.
There is no evidence that Burns was aware of Ms. Yule's
February 21, 1992 letter to Donald Funk at the NRC. However, in
regard to her two other contacts with the NRC, the March 1992 and
the July 1992 meetings with NRC inspectors, Lt. Majeski's remarks
to Mr. Jones that Ms. Yule was meeting with the NRC or talking to
the NRC, coupled with the behavior Lt. Majeski exhibited by
attempting to eavesdrop on Ms. Yule's March 1992 meeting with
Bill Peschek, NSP Security Shift Supervisor, lead me to conclude
that Burns was aware that she was in communication with the NRC.
On August 25, 1992, when Lt. Bangasser reported Ms. Yule's
refusal to sign the door memorandum to Mr. Jones, he also told
Mr. Jones that he had checked the Documentation Book to determine
whether there was a continuing problem, which was "normal
procedure," and that there were no records of previous problems
in this area. (T. at 376.) Mr. Jones, however, immediately
recalled the watchperson incident, which had occurred six months
earlier, and went to an alternative source to locate the
documents. (T. at 376.) In addition, in his letter to Ms. Yule
notifying her of the meeting concerning her suspension from duty,
Mr. Jones stated that the specifics of her "previous warnings and
reprimand for insubordination" were to be discussed. (CX-14.)
Furthermore, in his Report of Investigation, dated September 3,
1992, which was forwarded to Gary Snavely and Guy Thomas,
participants in the decision to terminate Ms. Yule's employment,
Mr. Jones included a description of the watchperson
"insubordination" incident, the reports written by Lt. Majeski
and Mr. Bethea, an interview with Lt. Majeski, and the statement
that NSP wanted Ms. Yule removed from the plant. (RX-10.) These
facts lead me to infer that Ms. Yule's protected activities were
a contributing factor in Mr. Jones' recommendation and Mr.
Snavely's decision to terminate Ms. Yule's employment.
Therefore, since Burns' decision to terminate Ms. Yule's
employment was based in part on her protected activity, I find
that Ms. Yule established a prima facie case and is presumed to
have been discharged, at least in part, for retaliatory purposes.
In order to rebut this presumption, Burns must present a
legitimate, nondiscriminatory reason for terminating Ms. Yule's
employment. Burns asserted that it discharged Ms. Yule because
on at least four separate occasions during the evening of August
24 and the early morning hours of August 25 and 26, 1992, Ms.
Yule refused to sign the SAS Door 120 training memorandum,
signifying that she had read the document and had had her
questions answered concerning the door's operation, despite
having been ordered to do so by Lt. Bangasser. Burns also stated
that Ms. Yule knew that insubordination was a ground for
termination, in accordance with the Grounds of Dismissal Policy
she had signed on December 10, 1992.
In support of these assertions, Burns produced evidence
showing that at the shift briefing on August 25, during the shift
on August 25, in an informal meeting at the end of the shift on
August 25, and immediately before being suspended on August 26,
1992, Lt. Bangasser had directed Ms. Yule to sign the training
memorandum. Moreover, during one such occasion, Lt. Bangasser
told Ms. Yule that signing the memorandum was & job assignment,
that he was required to obtain her signature, and that refusal
would not be permitted. Additionally, before having the guards
sign the memorandum, Lt. Bangasser wrote at the top of the
memorandum, "Z have read the information regarding the Door 120
Electromagnet and have had my questions answered pertaining to
its operation and purpose." (T. at 215, 368-69; RX-4, RX-13.)
The evidence reflects that Ms. Yule had read the memorandum
and understood the operation of SAS Door 120 yet refused to sign
the memorandum. Moreover, on one occasion, she said to Lt.
Bangasser, "S prefer to be written up than to sign this
document." (T. at 373; RX-10 at pp. 13, 18. Contra T. at 290.)
Burns also presented evidence showing that when Ms. Yule's
employment with Burns began in December 1991, she signed a
document that identified offenses which constituted sufficient
cause for immediate termination and that offense number 15 was
"Insubordinate conduct directed toward a supervisor." (T. at
210, 247, 261; CX-3.)
Mr. Thomas described the importance of having guards follow
orders promptly and without objection:
Our organization, because of what we do, and the fact
that we provide nuclear security at operating and
generating plants, is a paramilitary organization. We
are set Up along the lines of & military organization.
Each Unit has responsibility. The primary
responsibility is to, in the event of emergencies, to
respond. And each unit, within our nuclear
organization at each nuclear facility, has what is
called a "response team." That response team, in the
event of an emergency, be it an intruder or whatever,
that response team has to react immediately at the
direction of that supervisor, to prevent any type of
emergency from increasing at a nuclear plant. For that
particular reason, unlike other environment [sic] where
a crisis of this nature doesn't exist, our employees
have to respond to the supervisor's direction as they
ore given [sic].
(T. at 483-84.) Mr. Jones provided supporting testimony:
Discipline is very strict, and it is a requirement that
supervisors have the full knowledge and understanding
that their people are going to be where they are
supposed to be, in the event of an emergency, just by
them saying "Go," without question. They need to know
that those people will be there when they need them.
(T. at 398.)
To show that Burns has terminated employees for acts of
insubordination, Mr. Thomas testified about five employees who
disobeyed orders and were fired: On October 19, 1988, Burns
terminated the employment of J. Anuszewicz, a nuclear security
officer at the Millstone Nuclear Plant in Waterford, Connecticut,
because he refused to attend a fire suppression training class
that was scheduled to begin at the end of his shift. (T. at 487;
RX-16.) On December 7, 1989, Burns terminated the employment of
K. Daggett, who worked at the River Bend Nuclear Plant in
Louisiana, because he disobeyed an order to leave the plant when,
at the end of his shift, he insisted that he was going eat his
lunch in the plant cafeteria. (T. at 487-88; RX-16.) On
February 18, 1992, Burns terminated the employment of Larry
Mingle, who worked at the Crystal River Nuclear Plant in Crystal
River, Florida, because he refused to go to the second floor of a
two and a half story building, on grounds that it was unsafe.
(T. at 488-89; RX-16.) On October 4, 1991, Burns terminated the
employment of John Deshautelles, who worked at the River Bend
plant, because he continued to argue with another employee after
-being ordered to stop. (T. at 490; RX-16.) On October 26, 1990,
Burns terminated the employment of Charlene Pasquale, a
watchperson at the Millstone Nuclear Plant. (T. at 489-90; RX-
16.) She had won an arbitration decision against Burns, and the
arbitrator ordered that she be reinstated with partial back
pay.7 (T. at 501.) When she returned to
work, Burns insisted
that she sign a reinstatement agreement, which changed the form
of the arbitration award. (T. at 501.) She refused to sign the
agreement, and Burns again terminated her employment. (T. at
489-90, 501; Rx-16.) She grieved this second dismissal, and the
arbitrator ruled in her favor, ordering that she be reinstated.
(T. at 498, 501.)
In response to the examples of discharge provided by Burns,
Ms. Yule testified about information told to her by Richard
Boreland, the union president at the Quad Cities, Illinois
facility, where Burns also provides security services. (T. at
511-12.) She testified that according to Mr. Boreland,
approximately twelve to fifteen employees were currently
refusing to sign a document that the licensee required for its
files, and that to date, Burns had not discharged any of the
employees. (T. at 312.) Because Ms. yule's knowledge of this
incident was based on secondhand information from a witness who
was not called to testify at the hearing, and because the
circumstances surrounding the refusals are not fully known, I
afford no weight to this testimony. (T. at 511-13, 515.)
Furthermore, I find that Burns has articulated a
legitimate, nondiscriminatory reason for discharging an
employee. Accordingly, Burns has rebutted Ms. Yule's prima facie
case. Therefore, the burden shifts to Ms. Yule to prove that the
reason offered by Burns was a pretext for retaliatory motives.
The evidence suggests that the reason was a pretext.
In February 1992, when Ms. Yule questioned the posting of a
watchperson at the containment entry area, Lt. Majeski
reprimanded her, (T. at 61-62, 253, 327, 350-52; CX-6)1
complained about Ms. Yule receiving a phone call from her
daughter, and became acrimonious when asked about overtime for
union workers, (T. at 70-71, 157-58, 251-53, 326, 345, 506-07).
At the same time, Mr. Bethea reprimanded Ms. Yule, extended her
probation period, (T. at 39, 165, 168-69, 256, 329-31; CX-7, CX-
8), and threatened to terminate her employment if she continued
in this conduct, (T. at 41-42, 174, 262, 332-33; CX-3).
In March 1992, when Ms. Yule was discussing a matter with
Mr. Peschek in his office, she observed Lt. Majeski
eavesdropping. (T. at 307.) At a later time, Ms. Yule overheard
Lt. Majeski tell Mr. Jones that Ms. Yule was meeting with or
talking to NRC personnel. (T. at 191-92, 197, 271-73, 353.) in
June 1992, Mr. Jones told Ms. Yule to cease speaking to Mr.
Christopher about Fitness for Duty Guidelines. (T. at 198-99.)
Thus, not only was Burns angered because Ms. Yule was alleging
violations, it was apprehensive because Ms. Yule was concerning
herself with these matters on an ongoing or continuing basis.
In February 1992, Mr. Hutchson angrily approached Harvey
Borgschatz, another security officer, and told Mr. Borgschatz to
tell Ms. Yule to back off, leave him alone, just do her job, and
not ask any questions. (T. at 45-46, 90-91.) Further, Mr.
Hutchson said that Ms. Yule was questioning a decision that had
been made, which was upsetting to the other officers, and that
there would be problems if Ms. Yule did not back off. (T. at 90-
91.) At approximately the same time, Lt. Majeski reprimanded Ms.
Yule on the recommendation of two NSP supervisors. (T. It 63-64,
87.) Also, in his Report of investigation, Mr. Jones reported
that Mr. Conklin "advised that YULE was disrupting the entire
security force and that he wanted her removed from the site."
(RX-10 at p. 8.) At a later point in time, coworkers told Ms.
Yule that Mr. Conklin had labeled her a "troublemaker." (T. at
305-06..) In March 1992, when Mr. Conklin left Prairie Island,
his replacement, Mr. Evitch, told Ms. Yule, "There are sure a lot
of people around here that are concerned about you. Your name
always comes up in our meetings." (T. at 307.) In March 1992,
when Ms. Yule requested a copy of a plant memorandum, Mr. Peschek
commented that Ms. Yule was probably going to write-up someone.
(T. It 307-08.) In August 1992, in a quality control meeting,
Mr. Hutchson stated that the source of his information was Ms.
Yule "jumping on Frank Evitch's . . . desk," complaining that
people were discouraged. (T. at 101.)
These remarks concerning Ms. Yule by NSP personnel show that
they were also upset with Ms. Yule's activities. Additionally,
while Burns asserts that NSP had no responsibility for Burns'
decisions concerning its personnel and that NSP had no authority
to manage Burns' employees or to give direct orders to Burns'
employees, (Resp. Proposed Findings of Fact at 2), the record
indicates that NSP oversaw the security program and assured that
the security plan was implemented correctly, (T. at 475-76), and
that Burns was in frequent communication with NSP concerning Ms.
Yule.
The record is replete with enmity directed toward Ms. Yule
by Burns because of her union and protected activities, and the
pressure placed on Burns by its client NSP, who was also aware of
her protected activities, to "remove" Ms. Yule. Thus, in light
of Burns' animus toward Ms. Yule, because discharge seems too
harsh an action for failing to sign a training memorandum, and
because Burns has not shown that any other employee was
discharged for failing to sign a training memorandum, i find that
Burns more likely terminated Ms. Yule's employment in
retaliation, in large part, for her protected activities and the
likelihood that she would continue to engage in protected
activity at the Prairie island Nuclear Generating Plant. Despite
Burns' contention that it was justified in firing Ms. Yule for
insubordination for refusing to sign the SAS Door memorandum, it
appears that Burns fired Ms. Yule for a combination of reasons,
including her questioning of plant security procedures and her
complaints to and discussions with NRC personnel. Her act of
insubordination in refusing to sign the SAS door memorandum was
too insignificant, in and of itself, to warrant the discharge of
a trained and experienced security officer. i agree with
Complainant that "the penalty of discharge for an isolated
incident of failing to sign a memo makes sense only if we add
Yule's prior February reprimands related to her NRC report and
her continued complaints of NRC violations." (Cl's. Post-Hearing
Brief at 20.)
The sequence of events leading to the firing and the failure
of Burns to demonstrate that it had previously fired an employee
for refusing to sign a memorandum reflects Burns' true
motivation. i find that the reason given by Burns for its
decision to terminate Ms. Yule's employment was a pretext.
Burns argues that it would have terminated Ms. Yule's
employment for insubordination based upon her failure to sign the
SAS Door 120 memorandum on August 24-26, even in the absence of
any alleged protected activity. (Resp. Post-Hearing Brief at
16.) Thus, Burns asserts the of affirmative defense of dual
motives, and consequently the burden shifts to Burns to prove by
clear and convincing evidence that it would have reached the same
decision even in the absence of the protected activity. 42
U.S.C. § 5851(b)(3)(D) (as amended by the Comprehensive National
Energy Policy Act, supra; Dean Dartey , at 9; accord Mt. Healthy
City Sch. Dist. Bd. of Educ. v. Doyle , 429 U.S. 274, 288, 97 S.
Ct. 568, 576 (1977); Mackowiak v. University Nuclear Sys., Inc. ,
735 F.2d 1159, 1163-64 (9th Cir. 1984); Pogue v. United States
Dept of Labor , 940 F.2d 1287, 1290 (9th Cir. 1991).
Additionally, Burns bears the risk that the influence of legal
and illegal motives cannot be separated. Pogue v. United States
Dept of Labor , 940 F.2d 1287, 1291 (9th Cir. 1991).
The examples of fired employees cited by Burns are
dissimilar to the incident involving Ms. Yule, and therefore are
not persuasive. The only example of discharge for refusal to
sign a document was that of Ms. Pasquale, who refused to sign a
reinstatement agreement when returning to work under an
arbitration order. interestingly, in that example the arbitrator
ruled that the termination of Ms. Pasquale for her refusal to
sign the reinstatement agreement was improper, overturning the
dismissal and ordering the employee back to work.
Thus, while Burns has shown that it discharged employees who
refused to obey the direct order of a superior, Burns has not
shown that it discharged employees who refused to sign training
memoranda or similar documents or that it discharged employees
who committed a minor act of insubordinate conduct. In fact, the
record shows that when Mr. Bethea disciplined Ms. Yule on
February 21, 1992, he characterized the reason as "insubordinate
conduct towards Lieutenant Majeski," yet he extended her
probationary period, rather than terminate her employment. (CX-
7.) Therefore, it appears that Burns recognized that there were
degrees of insubordinate conduct and that minor acts of
insubordination did not warrant termination of employment.
Since Burns has not shown that it has discharged any other
employee for refusing to sign a training document, and having
determined that Burns does not always discharge its employees who
commit "insubordination," i conclude that Burns has not proven
that it would have terminated Ms. Yule's employment even if she
had not engaged in protected activity. Accordingly, I find that
Burns wrongfully discharged Ms. Yule in retaliation for her
whistleblowing activities, in violation of the employee
protection provision of the Energy Reorganization Act of 1974, as
amended.
RELIEF
Ms. Yule requests the following relief:
* Reinstatement to her former position with full back pay,
seniority, and benefits; or
* Compensatory damages in lieu of reinstatement;
* Attorney fees and costs. upon application to the Secretary.
The Federal employee protection provision requires that
affirmative action be taken to abate the violation, including
reinstatement of the complainant to her or his former position,
together with the compensation (including back pay), terms,
conditions, and privileges of that employment. 29 C.F.R. §
24.6(b) (2). In addition, Federal regulations provide that the
Secretary of Labor may, where appropriate, order the employer to
provide compensatory damages to the complainant. § 24.6(b) (2).
Compensatory damages are designed to recompense for the
mental &nd physical anguish suffered as a result of a wrongful
job termination together with the potential damage to her or his
personal and professional reputation. Ms. Yule had presented no
evidence to show that such an award is warranted in this case.
Federal regulations also require that, at the request of the
complainant, a sum equal to the aggregate amount of all costs and
expenses (including attorney and expert witness fees) reasonably
incurred by the complainant in connection with bringing the
complaint, as determined by the Secretary, be assessed against
the employer. 29 C.F.R. § 24.6(b) (3). Accordingly, Ms. Yule is
directed to present an itemized list of all costs and expenses
that she reasonably incurred bringing and maintaining the
complaint in this proceeding.
ORDER
Wherefore, it is ORDERED that:
1. Burns international Security Services shall reinstate Ms.
Yule to her former position of Security Officer, at the
Prairie island Nuclear Generating Plant;
2. Burns shall provide back pay, including overtime, with
interest, to Ms. Yule, from August 26, 1992, to the date of
reinstatement. Monies earned by Ms. Yule during this time
period shall offset back pay owed to her by Burns;
3. Burns shall reimburse Ms. Yule for any fringe benefits that
were included in her salary before termination and that were
borne out of pocket during the period of termination. In
all respects, Burns shall make Ms. Yule whole, including
restoration of retirement benefits, if any;
4. Interest shall be paid at a rate equal to the coupon issue
yield (as determined by the Secretary of the Treasury) of
the average accepted auction price at the last auction of
fifty-two week U.S. Treasury bills. 28 U.S.C. § 1961(a);
5. Burns shall not take any adverse actions against Ms. Yule,
including but not limited to: termination of employment,
demotion or involuntary transfer, without good cause shown;
and
6. Burns shall place a copy of the Decision and Order in Ms.
Yule's personnel file and distribute a copy to all persons
who exercise supervisory control over her.
David A. Clarke, Jr.
DAC/cal
[ENDNOTES]
1 see Dean Dartey, supra , at 6-9, the case of Davis v.
Valley Distributing Co., supra , may have precedential value, in
that the circuit court found that a provision of the March 2,
1972 amendment (which was similar to the language of the
Comprehensive National Energy Policy Act), enlarging the period
for filing complaints under Title VII of the Civil Rights Act
from 90 to 180 days, applied to an employee who filed a claim 135
days after his employment was terminated. 522 F.2d at 829.
2
3
4
5
6
7
