DATE: FEBRUARY 17, 1994
CASE NO. 93-ERA-00016
IN THE MATTER OF
THOMAS H. SMITH,
Complainant
v.
EBASCO CONSTRUCTORS, INC.
Respondent
Appearances:
Edward A. Slavin, Jr.
For the Complainant
Karen C. Geraghty, Esq.
For the Respondent
BEFORE: JAMES W. KERR, JR.
Administrative Law Judge
RECOMMENDED DECISION AND ORDER
This proceeding arises under the Energy Reorganization Act of
1974, ("the Act"), as amended 42 U.S.C. § 5851, and its
implementing regulations, 29 C.F.R. Part 24. Section 5851(a) of
the Act prohibits a Nuclear Regulatory Commission ("NRC") licensee
and its subcontractors from discharging or otherwise discriminating
against an employee who has engaged in protected activities as set
forth in the Act.
On December 16, 1991, Thomas H. Smith, ("Complainant") filed
a complaint with the Department of Labor against his former
employer, Ebasco Constructors, Inc. ("Respondent"), alleging that
he was subjected to harassment and a hostile work environment in
violation of the Act. On December 29, 1992, following an
[PAGE 2]
investigation, the Administrator of the Wage and Hour Division,
Employment Standards Administration, Department of Labor, concluded
that Complainant had not been terminated in retaliation for
engaging in protected activities, but rather he had been terminated
due to a reduction in force and given an eligibility rating for
rehire.[1]
On December 31, 1992, Complainant appealed the Administrator's
determinations by telegram to the Department of Labor's Chief
Administrative Law Judge. The matter was docketed in the Office of
Administrative Law Judges in Washington, D.C. on January 5, 1993,
and assigned to this Court on January 11, 1993. On January 12,
1993, an Order immediately issued setting the case for a hearing on
February 18, 1993, in Houston, Texas. After continuances were
granted to both parties, the hearing was set for July 19, 1993.
The parties attended a pre-trial conference on July 19, 1993
in Houston, Texas and the hearing took place July 20, 1993, through
July 22, 1993. Complainant was unrepresented at the hearing and
proceeded prose. The parties were afforded full
opportunity to present evidence and argument. The findings and
conclusions which follow are based upon the appearance and demeanor
of the witnesses who testified at the hearing, analysis of the
entire record, argument of the parties, and applicable regulations,
statutes and case law precedent.[2]
Following the hearing post trial briefs were scheduled to be
submitted on or before September 23, 1993. (Tr. at 713).
However, on Complainant's Motion, the record was left open until
November 19, 1993, for filing of Complainant's brief, with
Respondent's being afforded the opportunity to submit a reply brief
no later than November 29, 1993.
Complainant submitted his Post-hearing Brief accompanied by an
Appearance of Counsel, Motion to Supplement the Record, and a
Motion for Leave to File Rebuttal Brief. On November 24, 1993,
Respondent submitted its opposition to Complainant's Motions and
requested an Extension in which to file its response to
Complainant's Post-trial brief. On December 1, 1993, this Court
entered an Order Allowing Respondent an Extension of Time and
Denying Complainant's Motion to File a Rebuttal Brief providing
that Respondent's reply brief was due on or before December 17,
1993. On December 17, 1993, Respondent submitted its reply brief.
Complainant's Motion to Supplement the Record
Complainant's Motion to Supplement the Record requested that
[PAGE 3]
an additional page (Page 6) of Complainant's Exhibit No. 30, and
Proposed Complainant's Exhibit Nos. 37 and 38, be admitted to the
record. After review of the record this Court finds that Page 6 of
CX-30 shall be admitted to the record. The record reflects that at
the time that Respondent proffered "CX/RX-31" there was some
confusion as to what that exhibit included. (Tr. at 648-657, 661,
705). Apparently, Page 6 of CX-30 is also a part of what was
admitted as CX/RX-31 and is hereby admitted as its exclusion was an
oversight. However, Complainant's Proposed Exhibit No. 37 and 38
are untimely and will not be made part of the record.
Findings of Fact
Houston Lighting and Power Company (HL&P) owns and operates
South Texas Nuclear Project (STP) in Bay City, Texas. Respondent,
Ebasco Constructors, Inc., was the primary contractor in charge of
the construction of STP and has been on the site since 1982. In
1987, as the construction of the plant was completed, Respondent
contracted with HL&P to provide ongoing maintenance for the support
and operation of STP.
In the course of maintenance of the STP facility, the units
will go in and out of phases called "outages," during which routine
and repair maintenance is performed. During these "outages"
Respondent has a greater need for workers and will hire on to fill
that need. Consequently, as the unit is reactivated and comes out
of the "outage" the workers are laid off. This routine results in
a constant hiring and releasing of workers.
Thomas Smith
Complainant, who is now 37 years of age, commenced his
employment with Respondent in 1983 and worked at STP for more than
eight years on and off until his most recent lay off December 20,
1991. Complainant was a member of the International Brotherhood of
Carpenters union local used by Respondent in obtaining workers
during a hiring period. Complainant began working at STP during
the construction phase of that facility but was "rolled over" into
the maintenance phase on February 7, 1989, when construction of the
facility was completed. Complainant had not been laid off at that
juncture. (Tr. at 127-128). Following his roll over into
maintenance, Complainant was laid off on several occasions.
Complainant testified that he recently underwent back surgery
for a back condition he has suffered since a work related injury in
1983. He testified that by the fall of 1991 his back was bothering
him to such an extent that he walked with a limp.
[PAGE 4]
Complainant bases his complaint on his contentions that after
he voiced safety concerns to HL&P's "SPEAKOUT" association and to
the Nuclear Regulatory Commission and Department of Labor, he was
harassed, subjected to a hostile work environment, and eventually
laid off. Specifically, Complainant alleges: 1) he was pushed
toward going on workers' compensation and ultimately laid off for
voicing safety concerns; 2) he was given three days suspension for
not following proper procedures even though following a direct
instruction from his foreman; 3) he was demoted from carpenter
foreman to journeyman carpenter before his assignment was
completed; 4) he was singled out and subjected to unprofessional
behavior by supervisory personnel; 5) he was taken off-site to a
doctor during work hours against his will; and 6) he was subjected
to harassment and ridicule through derogatory cartoons drawn on a
cafeteria chalk board.
Complainant testified that in early August of 1990 he became
aware that Respondent was not adhering to either HL&P or OSHA
procedures in its construction of scaffolds at STP. He stated that
non-scaffold grade lumber was being used and that the scaffolds
were being built oversized, without handrails and were being tied-
off improperly. Further, he stated that he approached his foreman,
Billy Morgan about the matter.
Complainant testified that in August of 1990, after discussing
the faulty scaffolding with his foreman, he reported the conditions
to Joe Tapia, an investigator for the NRC. Further, he stated that
this report initiated an investigation "walk through" by the NRC,
which prompted Respondent to remove or repair some of the faulty
scaffolds at STP. However, Complainant testified that Bob Pratt,
an Ebasco scaffold engineer, instructed him to remove or repair
only those scaffolds which were in highly visible areas.
Complainant testified that shortly thereafter, he was assigned
to the "lay down" yard to remove lumber which Respondent wanted
disposed of. He stated that the lumber he was instructed to throw
away was scaffold grade lumber, yet scaffolds that were still in
use were constructed of non-scaffold grade lumber. Complainant
stated that he reported this matter to an executive of HL&P who
handled the matter the following day. Complainant stated that he
admitted to the Ebasco supervisors present the day the HL&P
executive came to the yard that he had informed HL&P of the
improper disposal of lumber.
Complainant testified of another incident in which he and a
co-worker were instructed to do a job without a work package.
[PAGE 5]
Complainant testified that he was directly instructed to do this
job despite the fact that the work package for that particular job
could not be located. He stated that he, a co-worker and his
foreman were reprimanded for this error and given three days
suspension (after a grievance procedure they were given three days
pay to divide between them as they saw fit). Complainant stated
that this incident constituted harassment because work was
routinely performed at STP without work packages and Ebasco had
never taken action against any workers.
Complainant stated he approached representatives of SPEAKOUT
on numerous occasions between 1990-1991 alleging violations ranging
from improper welding/drilling procedures and supervisor misconduct
to inappropriate work procedures. He stated that on most of these
occasions he voiced concerns about the faulty scaffolding being
used on the work site, as well as, behavior he perceived as
harassment due to his complaints regarding the improper scaffolds.
Complainant stated that Respondent formed a special scaffold
crew in October 1991. Complainant was made foreman of this crew
and allowed to pick three carpenters to assist him in this project.
Complainant's understanding of the goal of the special crew was to
inspect and repair all of the scaffolds located at the site.
Complainant stated that he was initially instructed to begin in
Unit II, but that after three hours the crew had "danger tagged"
approximately 38 of the scaffolds in that unit.[3]
Complainant stated that shortly after the crew began danger
tagging the scaffolds he was called to the office of Larry George,
an Ebasco supervisor, and instructed to stop inspecting Unit II and
to start instead in Unit I. Complainant stated that Unit II was in
an outage phase and therefore the workers needed to use the
scaffolds in that area and he believes Respondent removed the crew
from Unit II for this purpose. Complainant stated that although
the crew proceeded to Unit I and worked there for a period of
weeks, they had completed repairing the scaffolds in the only a few
of the areas before Respondent disbanded the special crew.
Complainant stated that shortly after the crew completed its
work in these buildings and the special scaffold crew was disbanded
he was "busted back" to a Journeyman Carpenter. Complainant
testified that he did not think that all of the faulty scaffolds
had been repaired and that Respondent disbanded the crew
prematurely. Complainant felt his demotion was a form of
harassment since the job he had been instructed to do was not
complete.
[PAGE 6]
After the special crew was disbanded, Complainant was assigned
to a crew with carpenters Kenny Strother, Everett Strother and
Billy Morgan, with Jody Johnson as foreman. Complainant stated
that he felt Mr. Johnson was harassing him. He testified that on
one occasion, while he was acting as the "groundman" of the group
Mr. Johnson approached and instructed Complainant to work on the
scaffold because Mr. Johnson wanted Kenny Strother to be the
"permanent groundman." Complainant testified that the crew members
usually decided which carpenter worked a specific position.
Complainant stated that he felt he was being harassed by Mr.
Johnson because the foreman of a crew never decides which
worker will perform which job. Moreover, he stated that Mr.
Johnson's decision to make Mr. Strother the permanent groundman was
unreasonable because Mr. Strother had a bad knee and could not do
all the walking required of the groundman.
Complainant testified that while he was working on the special
scaffold crew, in November 1991 one of Respondent's supervisors
noticed that he was walking with a limp. Although the record is
unclear about the exact course of events, Complainant was
eventually taken to a doctor's office off-site, allegedly against
his will, by Respondent's safety officer, Paul Ramon. Complainant
feels he was being harassed by Respondent who was trying to put him
on workers's compensation.
Complainant testified that he had reported numerous violations
to the NRC through Joe Tapia. Complainant stated that he first
informed Tapia of Respondent's practice of using substandard
scaffold in the fall of 1990. He stated he spoke with Mr. Tapia
again in 1991 after he had been instructed to throw away usable
scaffold grade lumber. He contacted the NRC again when he was
suspended for three days and felt he was being harassed for
reporting safety concerns.
Rick Cink
Rick Cink, an HL&P employee and senior investigator with
SPEAKOUT testified at the hearing. Mr. Cink stated that although
SPEAKOUT's first priority is to investigate nuclear safety and
quality controls, it reserves the right to investigate other
matters. He later clarified that statement by stating that
concerns made to SPEAKOUT may be investigated by another department
of HL&P or sent to Ebasco for investigation, depending on the
subject matter of that concern and in fact, at least one of
Complainant's concerns had been investigated by Ebasco personnel.
Mr. Cink testified that in an effort to maintain anonymity,
[PAGE 7]
SPEAKOUT documents employee concerns with "concern" numbers rather
than with the employee's name. Although this system resulted in
some confusion during Mr. Cink's testimony, he stated his records
contained at least five different concern numbers that were
generated by Complainant in 1990-1991. He testified that
Complainant had expressed a concern regarding improper construction
of scaffolds and of harassment.
William Morgan
William A. Morgan, a carpenter, was a scaffold foreman in 1990
when Complainant first voiced his concerns about the non-scaffold
grade lumber being used on the scaffolds in the protected areas of
STP. (Tr. at 407). Mr. Morgan testified that in 1990, Complainant
approached him about the use of the substandard lumber and that he
in turn initiated a conversation with the general foreman, James
Kaminsky. (Tr. at 407). Mr. Morgan stated that in addition to
himself, Kaminsky and Complainant, an Ebasco safety representative
and an HL&P safety representative discussed the problem with the
lumber. (Tr. at 413).
Mr. Morgan testified that the lumber being utilized to build
the scaffolds was not the proper grade lumber. (Tr. at 414). Mr.
Morgan testified that he was aware that Complainant had gone to the
NRC. In fact, Mr. Morgan stated that he advised Complainant to go
to the NRC. (Tr. at 415). Mr. Morgan stated that shortly after
this discussion, he was instructed to remove all substandard lumber
from the scaffolds and replace it with the proper grade lumber. He
testified that not all of the substandard lumber had been removed
from the scaffolds when the special crew was disbanded.
Further, Mr. Morgan testified that Mr. Kaminsky asked him why
he would not "just... forget the matter and let things go." (Tr. at
418). And had pressured him to remove a danger tag from one of the
scaffolds. (Tr. at 431).
Mr. Morgan testified that during the time Complainant was a
carpenter foreman and he was on the special scaffold crew, the
carpenter foremen's office was located in the cafeteria. He
stated that a Dry-Erase board was located in the office area and
that he had seen cartoons portraying Ebasco employees. He said he
had seen four or five cartoons of the Complainant, although he
could not recall specifically what the cartoons were. While not
all of the cartoons depicted Complainant, Mr. Morgan testified that
the majority of them did and that they appeared on the board for 1-
3 days or until a new drawing went up.
[PAGE 8]
Mr. Morgan further testified that although some of the
cartoons were funny some were "tacky" and for the most part were
attempts to "put people down." Mr. Morgan stated that he believed
the cartoons were drawn by Terry Robinson, "the operator of the
general foreman." Mr. Robinson was not Complainant's supervisor
but was a general foreman, he worked with the equipment not with
the carpenters. (Tr. at 433-435, 466).
Mr. Morgan testified that after the special scaffold crew was
abolished he was on a crew working with Complainant under foreman
Jody Johnson. He stated that Mr. Johnson instructed him to be the
permanent "groundman" despite the fact that Complainant had been
doing this job. He stated that the crew usually decides which
member does what job - not the foreman, and he did not know why Mr.
Johnson was taking this position. When the Court asked Mr. Morgan
how he interpreted Mr. Johnson's instruction that he be the
permanent ground man, Mr. Morgan replied, "I really don't know what
he meant by that. That is just something we have never did."
Toni Smith
Toni Smith, Complainant's wife and a quality control inspector
for HL&P, testified that she had seen the cartoons of Complainant
in the cafeteria. Specifically she described the following:
[I]t was a picture of you, kind of like as a
judge. You had medals on your chest for
SPEAKOUT and NRC on it. And there was
different people out in front of you that you
were kind of chastising, you know, the way the
picture was showing it.
(Tr. at 483).
Kenneth Strother
Mr. Kenneth Strother, a carpenter and Ebasco employee,
testified that he worked the special scaffold crew with
Complainant. He stated that the faulty scaffolds were either
repaired or removed. (Tr. at 529). He was also working with the
Complainant when Jody Johnson made Mr. Morgan the permanent
groundman. Mr. Strother testified that the foreman on a job does
not usually designate what duties each worker will perform. (Tr. at
539).
Complainant submitted a December 5, 1991, letter he had
[PAGE 9]
written to Casey David, Ebasco Labor relations officer, stating
that he believed he was being harassed by his foreman, Jody
Johnson, because he had made complaints to SPEAKOUT and the NRC.
(CX-23). Further, Complainant's Exhibit No. 30 at 6, indicates
that supervisors for Respondent had knowledge that Complainant went
to the NRC with safety concerns.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
The basis of Complainant's claim is that Respondent subjected
him to harassment and a hostile work environment and was eventually
laid off in violation of 42 U.S.C. §5851(a) which provides
that no employer subject to the Act "may discharge any employee or
otherwise discriminate against any employee with respect to his
compensation, terms, condition, or privileges of employment"
because the employee engaged in protected activity.
In making out his claim, Complainant must prove by a
preponderance of the evidence that he was the subject of an illegal
employment action. In order to establish a primafacie case of retaliation, Complainant must prove each of
the following four elements: 1) the employee's engagement in a
protected activity; 2) the employer's knowledge or awareness of the
employee's engagement in a protected activity; 3) the employer's
subsequent employment action adversely affecting the employee; and
4) that the adverse action followed the protected activity so
closely in time as to justify an inference of retaliatory motive.
Further, under the Act, the complainant always bears the burden of
proof or persuasion that intentional discrimination has occurred.
Darty v. Zack Co., 82-ERA-2 (April 25, 1983).
Protected Activity
This case arises within the jurisdiction of the United Stated
Court of Appeals Fifth Circuit. In Brown & Root, Inc. v.
Donovan, 747 F.2d 1029 (5th Cir. 1984), the Court held that
"employee conduct which does not involve the employee's contact or
involvement with a competent organ of government is not protected
under Section 5851," and does not apply to protect employee from
repercussion from the filing of purely internal quality control
reports or complaints.
This Court is well aware, however, that in other
jurisdictions, the filing of purely internal quality control
reports is considered a covered activity under Section 5851 of the
Act. Seee.g.Mackowiak v. University Nuclear
Systems, Inc., 735 F.2d 1159 (9th Cir. 1984). Nevertheless,
this Court finds that the evidence indicates that Complainant made
complaints to both HL&P's
[PAGE 10]
SPEAKOUT organization and to the NRC concerning Respondent's
failure to follow proper procedure in building scaffolds at STP;
thus, the Brown & Root distinction would not work to dismiss
his complaint.
Further, a complaint or charge of employer retaliation because
of safety and quality control activities is protected activity
under the Act and the record supports a finding that Complainant
made allegations of discriminatory treatment based on his voicing
safety concerns to both SPEAKOUT and the NRC. McCuistion v.
Tennessee Valley Authority, 89-ERA-6 (Sec'y 11-13-91).
Knowledge of Protected Activity
The record reflects that the supervisory personnel at Ebasco
knew of Complainant's protected activity. William Morgan,
Complainant's foreman at the time Complainant first voiced his
concerns that Respondent was not following proper scaffolding
procedures, testified that he knew that Complainant had gone to the
NRC. (Tr. at 415). Further, Complainant's December 5, 1991 letter
to Respondent's Labor Relations representative, Casey Davis, stated
that he had gone to the NRC and that he felt he was being harassed
because he had done so. (CX-22).
This Court also found convincing Toni Smith's testimony that
the drawings of Complainant, appearing on the cafeteria chalk
board, showed Complainant with SPEAKOUT and NRC buttons on his
chest and that these drawings were in plan sight where Respondent's
supervisors could view them. Mr. Cink testified that it was
SPEAKOUT's policy to have Ebasco personnel investigate some of the
concerns lodged by employees and in fact, had done so with at least
one of Complainant's concerns.
This evidence supports a finding that Respondent knew that
Complainant had gone to both SPEAKOUT and the NRC. Apparently,
Complainant had a reputation for voicing his concerns. This Court
finds that Mr. Morgan's testimony that he knew of Complainant's
having gone to the NRC, as well as, the witness testimony
concerning the cafeteria chalk board and presence of supervisory
personnel in the cafeteria supports a conclusion that Respondent
had knowledge of Complainant's protected activity.
Action Adversely Affecting Complainant
Complainant alleges numerous actions by Respondent as
retaliation for his protected activity. Complainant first alleges
[PAGE 11]
that he was pushed to go on worker's compensation and was
eventually laid off as a result of his protected activity and
second that he was subject to a hostile work environment.[4]
Turning to Complainant's first allegation, this Court finds
that Respondent's practice of hiring and laying off in response to
the occurrence of "outages" at STP, was a normal business practice.
In fact, Complainant had been laid off on more than one occasion in
the eight years that he worked for Respondent. Complainant
testified at the hearing that he was laid off and he had not been
terminated for any other reason. Further, Respondent released
Complainant off with a re-hire eligibility and with the highest
ranking in five of six categories on his termination evaluation.
The record is clear that Complainant has let his membership in the
carpenters' union lapse and that he has not been released to return
to work by his physician. Consequently, Respondent cannot re-hire
him.
Further, the evidence does not support a conclusion that
Complainant was "forced" onto workers' compensation. The fact that
he has undergone surgery and is still recovering from that surgery
indicates that his physical problems were real. As discussed
below, this Court does not find that Respondent's having taken
Complainant to a doctor in response to his noticeably limping at
work is sufficient evidence to support a finding that Respondent
had any malignant intent.
This Court finds that the evidence does not support the
conclusion that Complainant was laid off due to his protected
activity. Having failed to establish a causal connection between
his protected activity and his separation from the company, this
Court turns to the issue of whether there is sufficient evidence to
support Complainant's contention that he was subjected to a hostile
work environment as a result of voicing safety concerns.
Complainant contends that he was subject to harassment in
several ways, as follows:
1) he was given three days suspension for not following
proper procedures when following a direct instruction
from his foreman;
2) he was demoted from carpenter foreman to journeyman
carpenter before his assignment was completed;
3) he was singled out and subjected to unprofessional
behavior by supervisory personnel;
[PAGE 12]
4) he was taken off-site to a doctor during work hours
against his will; and
5) he was subjected to harassment and ridicule through
derogatory cartoons drawn on a cafeteria chalk board.
The Act provides that an employer may not discriminate against
an employee for engaging in protected activities. In English v.
General Dynamics Corp., 85-ERA-2 (Sec'y February, 13, 1992),
the Secretary interpreted the Act to protect employees not only
from retaliatory discharge but also from a hostile work environment
which would amount to harassment at the work place. In that case,
the Secretary suggested that Meritor Sav. Bank, FSB v.
Vinson, 477 U.S. 57, (1986), a Title VII case, would
provide guidance in determining what conduct would amount to
harassment under a hostile work environment theory.[5]
The Supreme Court in Meritor Savings Bank, defined the
type of conduct which would amount to a hostile work environment.
In that case, the Court stated that for harassment to be
actionable, it must be sufficiently severe or pervasive so as to
alter the condition of the employee's employment and create an
abusive working environment. 477 U.S. at 67. However, the Court
noted that in Rogers v. EEOC, 454 F.2d 234 (5th Cir. 1980),
the first case to recognize a cause of action based upon a
discriminatory work environment, a "mere utterance of an ethnic or
racial epithet which engenders offensive feelings in an employee
would not effect the conditions of employment to a sufficiently
significant degree to violate Title VII." 477 U.S. at 67.
Further, cases in the Fifth Circuit have held that without a
showing of a tangible job detriment an employee must show a
commensurately higher showing that the harassing conduct was
pervasive and destructive of the work environment. Jones v.
Flagship International, 793 F.2d 714, 720 (5th Cir. 1987),
cert.denied, 479 U.S. 1065; Rogers, 454 F.2d
at 238.
In the instant case, this Court finds that Complainant has not
established that he suffered a hostile working environment. In
considering Complainant's contention that he was subjected to
harassment when he received a three day suspension for performing
work without a work package, this Court finds that there is
insufficient evidence to support Complainant's contention that he
was singled out to be disciplined. The two other workers with whom
he performed the job were also disciplined and Complainant himself
acknowledged that either HL&P or Respondent's policies required
[PAGE 13]
that a work package be utilized with each job. This Court cannot
find that Respondent's disciplining Complainant for violating
policy is a form of harassment.
Complainant also contends that he was harassed when he was
demoted from carpenter foreman to Journeyman Carpenter before the
special crew to which he was assigned completed its task. However,
the record is not clear regarding the full purpose of the crew.
Although Complainant submitted a document apparently delineating
the purpose of the crew, the evidence was equivocal regarding
whether the job was completed. While Complainant testified that
there were faulty scaffolds which were left unrepaired, Mr.
Strother testified that all of the improper scaffolds were either
repaired or removed. This Court finds that the assignment of an
employee to a foreman position and the subsequent demotion of that
employee back to a Journeyman status, is solely the prerogative of
Respondent. The evidence presented was insufficient to prove that
Complainant's demotion was motivated by anything other than a
decision by Respondent that the job was either complete or no
longer worthy of special attention.
Next, Complaint alleges that his foreman, Jody Johnson, came
out to the work site and ordered him onto a scaffold when his back
was bothering him. While the testimony of other witnesses
confirmed that it was highly unusual for the foreman to designate
which worker would perform which job, the foreman is in charge of
a work crew and, in that supervisory role, has the authority to
direct the workers under him. Again, Complainant's evidence falls
short of the mark of establishing that the conduct of Respondent or
its employees rises to the level of harassment. While the Court
found Complainant's testimony credible in his recitation of the
facts, he has not established as a matter of law that these facts
amount to harassment.
In regard to Complainant's accusation that he was taken off-
site to a doctor as a form of harassment, this Court is hesitant to
find Respondent acted in a malevolent manner. Complainant clearly
was injured as evidenced by the fact that he eventually required
surgery for the condition for which Respondent took him to the
doctor. Furthermore, the record is not clear that Complainant
expressed an aversion to leaving at the time Respondent took him to
see a physician.
Finally, Complainant contends that the cartoons drawn on the
cafeteria chalk board were disparaging and were a form of
harassment. Witnesses testified that the cartoons portrayed
Complainant in a rather negative light and were insulting. This
Court finds that the cartoons were most certainly of an abusive and
harassing nature. Further, the record indicates that Respondent's
supervisory personnel were probably aware of the presence of the
drawings. However, while this Court believes it was Respondent's
responsibility to not only remove the drawings but also to find the
"artist" and remedy the situation to ensure that it would not
continue, this Court is not convinced that the display of these
cartoons rises to a level of conduct that subjected Complainant to
a hostile working environment.
It is unclear what the cartoons depicted, how many of the
cartoons were displayed and for how long they were displayed.
Thus, the Court is unable to determine if the conduct was
sufficiently severe and pervasive to create a hostile work
environment. Further, Complainant did not establish what term,
condition or privilege of his employment was effected by the
cartoons. This Court finds that the fact that Complainant may have
been offended by the cartoons is not, in and of itself, enough to
establish a hostile work environment. SeeRogers,
supra.
Conclusion
Complainant, while credible, has not proved that as a matter
of law he should prevail. While Respondent's actions, may have had
an adverse effect on Complainant, they do not amount to retaliatory
employment action as a matter of law. In sum, Complainant has not
met his burden of proof or persuasion in proving a violation of the
Act.
Recommended Decision
This Court hereby recommends to the Secretary of Labor that
the complaint of Thomas H. Smith against Ebasco Constructors, Inc.
be DISMISSED.
Entered this 17th day of February, 1994 at Metairie, Louisiana.
_______________________________
JAMES W. KERR, JR.
Administrative Law Judge
JWK/kr
[ENDNOTES]
[1] Complainant was originally notified of the results of the
Department of Labor's investigation in a December 29, 1992,
letter reflecting HL&P as the Respondent in the case. However, a
corrected copy of the same letter went out on January 26, 1993,
listing Ebasco Constructors, Inc. as the Respondent.
[2] The following abbreviations will be used throughout this
decision when citing the evidence of record: Complainant's
Exhibit - "CX;" Respondent's Exhibit - "RX;" Joint Exhibit -
"JX;" June 19-22, 1993, Hearing Transcript - "Tr.;" August 3,
1993, Conference Call Transcript - "Supp. Tr."
[3] Complainant explained that a scaffold which was danger-
tagged could not be used by workers.
[4] It is important to note that while in his post hearing
brief Complainant argues that his December, 1991 lay off was
retaliatory action by Respondent, he stated at the hearing that
he was laid off due to a reduction in force, which was a normal
practice in his work with Ebasco. Specifically, Complainant
stated that he did not understand why the investigator from the
Wage and Hour Division of the Department of Labor made a finding
that he had not been terminated in retaliation for voicing safety
concerns when he had not alleged that he had. In fact,
Complainant's statement to the Department of Labor was made on
December 16, 1991, days before his December 20, 1991 lay off.
[5] Title VII of the Civil Rights Act of 1964, makes it "an
unlawful employment practice for an employer ... to discriminate
against any individual with respect to his compensation, terms,
conditions, or privileges of employment, because of such
individual's race, color, religion, sex, or national origin. The
Civil Rights Act of 1964, 42 U.S.C. §2000 etseq. (amended 1991).
The Civil Rights Act provides that to establish a prima
facie case of retaliation an employee must show: 1)that she
engaged in an activity protected by Title VII; 2) that an adverse
employment action followed; and 3) that there was some causal
connection between the activity and the adverse action.
To establish a prima facia case of sexual harassment under
the hostile work environment theory an employee must show: 1)
that she belongs to a protected group; 2) that she was subject to
unwelcome sexual harassment; 3) that he harassment was based on
sex; 4) that the harassment affected a term or condition or
privilege of employment; and 5) if appropriate some ground to
hold the employer liable. Collins v. Baptist Memorial
Geriatric Center, 937 F.2d 190 (5th Cir. 1991).
