Date: October 6, 1995
Case No.: 94-ERA-37
Joseph Roy B. Straub
COMPLAINANT
against
Arizona Public Service Company
Arizona Nuclear Power Project
RESPONDENT
APPEARANCES:
Thomas J. Saporito, Jr.
For Complainant
Richard S. Cohen, Esq.
Thomas J. Kennedy, Esq.
For the Respondent
Before: DAVID W. DI NARDI
Administrative Law Judge
RECOMMENDED DECISION AND ORDER
This case arises under the Energy Reorganization Act of 1974
as amended, 42 U.S.C. § 5851 ("AcT" or "ERA"), and the
implementing regulations found in 29 C.F.R. Part 24, whereby
employees of licensees of or applicants for a license from the
Nuclear Regulatory Commission and their contractors and
subcontractors may file complaints and receive certain redress
upon a showing of being subjected to discriminatory action for
engaging in a protected activity. The undersigned conducted
hearings in Phoenix, Arizona on twenty-three (23) days between
September 26, 1994 and January 13, 1995, during which time the
parties were given the opportunity to present oral arguments,
their witnesses and documentary evidence.[1]
Summary of the Evidence
Joseph Roy B. Straub ("Complainant" herein) submits that he
filed his complaint seeking the so-called whistleblower
protection of the Energy Reorganization Act ("ERA" or the "Act")
because he was fired for having engaged in protected activity
(i.e., raising safety concerns) at the Palo Verde Nuclear
[PAGE 2]
Generating Station owned and operated by Arizona Public Service
Company ("Respondent"). Complainant further submits that the
misconduct with the van is simply a pretext for terminating him
as this episode clearly manifests disparate treatment of him for
his protected activity. Complainant also submits that he was an
employee at will and cannot be terminated without just cause;
moreover, his implied employment contract with the Respondent
prevents his discharge by virtue of discriminatory treatment. (CX
281)
On the other hand, the Respondent submits that Complainant
must establish a prima facie case that he had engaged in
protected activity, that the Respondent knew about such activity
and that he suffered an adverse personnel action because of his
protected activity. Respondent further submits that the evidence
is clear-cut and overwhelming that he was terminated because he
had knowingly and intentionally violated company rules by having
alcoholic beverages in a company vehicle. According to the
Respondent, its employees are constantly reminded that they have
the right to raise safety concerns, either within the
organization or directly to the Nuclear Regulatory Commission
("NRC"). Respondent concedes that Complainant was a good worker
but submits that the van episode was the last "straw" in a series
of events where his conduct was questioned, e.g., an episode
where a co-worker complained to management about Complainant's
use of racially-offensive language; another incident involved
inappropriate behavior at a hospital training session.
Complainant received work assignments just like other radiation
technicians. The February 10, 1994 van incident was the catalyst
event in the employment relationship between Complainant and
Respondent. The van was found in a public school parking lot,
parked at an angle to, and not within, the parking spaces; there
were empty beer bottles within and outside the van. The local
police were called by the school principal and the police,
treating it as a serious matter, reported the incident to the
Respondent. The latter's Security Department conducted a thorough
investigation, including interviews of Complainant and another
co-worker who was also involved, and both admitted violating
company rules in connection with the use of the van. Michael Shea
made the decision to terminate Claimant and the decision was
based solely on that misconduct with the van. Respondent also
points out that Complainant was denied unemployment benefits
because of such misconduct. In summary, Respondent, positing that
there has been no disparate treatment of Complainant, submits
that there are approximately three thousand (3000) employees at
Palo Verde Nuclear Generating Station (PVNGS), that Complainant's
citation of several employees as the bases for a discharge of
[PAGE 3]
disparate treatment is nonsense and that Complainant cannot use
the provisions of the ERA to challenge or void legitimate
employment decisions of Respondent's management. (RX 79)
Hearings were conducted before this Administrative Law Judge
for twenty-three (23) days in Phoenix, Arizona, during which time
Complainant was afforded twenty-one (21) days to establish his
prima facie case. Respondent then presented its case and
both sides offered many exhibits in support of their respective
positions. The official hearing transcripts total over 6,300
pages. Post-hearing evidence has been admitted as identified and
the parties filed post-hearing briefs, findings of fact and
conclusions of law, as well as reply briefs.
Post-hearing documents have been identified as follows:
EXHIBIT
NO. ITEM FILING DATE
CX 277A Complainant's Motion to Supplement Record 02/16/95
CX 278 Complainant's Motion for an Extension of 04/24/95
Time In which to Complete Post-Hearing
Matters
RX77A Respondents' Response suggesting May 22, 1995 04/24/95
as the date for filing briefs
ALJ EX 86 This Court's Grant thereof 04/15/95
ALJ EX 87 This Court's Grant of an Additional Extension 04/28/95
RX78A Respondent's Request for Order Re: 05/02/95
PostHearing Briefs
ALJ EX 88 This Court's Grant thereof 05/03/95
RX77 January 13, 1995 chart showing Complainant's 06/06/95
salary from January of 1990 through March
of 1993
RX 78 Respondent's policies/procedures in effect 06/06/95
during the relevant time period
CX 279 Complainant's Motion to Extend Time for 06/20/95
Filing Reply Briefs
ALJ EX 89 This Court's Grant thereof 06/29/95
CX 280 Complainant's Motion for Reconsideration 07/01/95
(filed jointly for an extension of time
to file reply briefs)
ALJ EX89 This Court's Order establishing a schedule
for the filing of reply briefs 07/06/95
CX 281 Complainant's Proposed Findings of Fact
and Proposed Conclusions of Law 06/28/95
RX 79 Respondent's Proposed Findings of Fact
and Proposed Conclusions of Law 06/28/95
RX 80 Respondent's Post-Hearing Brief 06/30/95
[PAGE 4]
RX81 Respondent's Opposition to Complainant's
Motion for Reconsideration 07/05/95
CX 282 Complainant's reply Brief 08/01/95
RX 82 Respondent's Reply Brief 08/07/95
The record was closed on August 7, 1995 as no further
documents were filed. This matter is now ready for a decision
based upon the totality of this closed record, including my
observation of the demeanor of the witnesses presented by the
parties.
The decision herein is based on a thorough review of all of
the evidence before me and every document and all of the
testimony has been thoroughly considered by me, although
reference will be made to the most pertinent documents or
testimony. Otherwise, this Recommended Decision and Order might
exceed the 874 post-hearing pages filed by Complainant Certain
findings of fact and conclusions of law, as filed by the parties,
have been accepted, while others have been rejected, either as
not corroborated by the record or as not based on credible
testimony.
CONCLUSION
In summary, for two separate and distinct reasons,
Complainant has failed to establish a prima facie case of
discrimination with respect to Respondent's decision to terminate
him. First, this closed record simply does not raise an
inference that the termination of Complainant was based on
something other than legitimate business considerations. Second,
it is undisputed that neither the decision maker, Michael Shea,
nor the Human Resource Managers who recommended that Complainant
be terminated, had any knowledge that he had engaged in protected
activity. In fact, no one involved at any stage of the
investigation, including the Human Resource representatives who
went to the scene and investigated the situation at the Glendale
High School Parking lot, were aware that Complainant had engaged
in any protected activity. Most had never even heard of him. In
the case sub judice, the totality of this closed record
leads ineluctably to the conclusion that Complainant was
terminated solely because he had knowingly and intentionally
violated company rules relating to the use of alcohol on company
policy,(sic) to wit, APS Van 377, and that such egregious
misconduct warranted termination.
I totally agree with, and adopt as my own, the conclusion of
Arbitrator Bolander: "If the act committed by the grievant isn't
[PAGE 5]
a discharge offense, I don't know what is." See RX 20 at APS/SB
00049.
Respondents were highly concerned about safety and had
published rules regarding the consumption of alcoholic beverages.
Complainant knew that alcohol was not to be consumed on company
property and that he could be severely disciplined for alcohol
consumption. Complainant and Mr. Pepple used the company van for
personal use and their use of the van for the express intent of
obtaining additional alcohol was extremely grievous.
Complainant's conduct showed a complete disregard for his or
Pepple's safety, the safety of the van, the safety of others and
for the possible negative public circumstances that could have
taken place. The unauthorized use of the van for the express
purpose of alcohol consumption, coupled with Complainant's lack
of responsibility for the van, for his or Pepple's safety, or for
public consideration was itself grounds for termination; and,
there was no evidence that he was treated differently than others
in similar circumstances. (See RX2O)
In this proceeding, Complainant, in effect, asks that I
second-guess Respondent as to the appropriate level of discipline
to deal with Complainant's egregious conduct. As the United
States Supreme Court has held, neither courts nor agencies should
substitute their business judgment for that of employers in a
discrimination case. Furnco Constr. Co., v. Waters, 438
U.S. 567, 578 (1978); Mechnig V. Sears, Roebuck & Co., 864
F.2d 1359, 1365 (7th Cir. 1988) (courts do "not sit as a super-
personnel department that re-examines an entity's business
decisions").
Complainant, in my judgment, did not stand out as a so-
called whistle-blower and Complainant, undoubtedly recognizing
this fact, tried to enhance his image as a whistle-blower by most
glaring bootstrapping efforts, such as attempting to align
himself with several individuals who had been declared in the
past to be whistle-blowers by my colleagues at the Office of
Administrative Law Judges. However, this Administrative Law Judge
reminded Complainant several times that such bootstrapping was
not probative until such time as the Complainant had established
his prima facie case that the Act had been violated. As
already found above, Complainant has not established his prima
facie case and the bootstrapping argument, i.e., in terms of
an alleged hostile work environment, becomes largely irrelevant
as Complainant has not established the existence of such
environment at this time.
This matter represents the usual credibility problems
[PAGE 6]
encountered in a whistle-blower case and the hearing transcripts
readily reflect the divergent testimony on the crucial factual
issues herein. I find and conclude that the version of events as
testified by Respondent's witnesses is more credible as
Complainant's testimony on key points varied several times up to
and including the last day of hearing before me.
Complainant was the last person to testify on his behalf as
part of his case-in-chief and, although all other witnesses were
sequestered, Complainant, along with a representative for
Respondent, sat through all of the testimony and he had the
benefit of hearing that testimony prior to the time he was placed
under oath.
To illustrate Complainant's lack of credibility, I shall
briefly highlight his suggestion that he had submitted a
Condition Report Disposition Request ("CRDR") concerning the
August, HIC (High Intensity Container). The fact, is however,
that no one has ever seen this CRDR, which apparently disappeared
magically. Any suggestion that Complainant's supervisors would
have declined to submit a CRDR makes no sense, in light of the
fact that Palo Verde employees were encouraged to raise safety
concerns and to file CRDRs and did, in fact, file them routinely.
When problems had earlier been noted with the same HIC in April
1992 (prior to its being prepared for shipment from Palo Verde),
those problems were reported and thoroughly investigated.
Similarly, with respect to the other HIC (December 1992), the NRC
specifically recognized the company's own comprehensive
investigation and disclosure of the problems that had arisen.
Furthermore, Complainant's contention that he submitted a
CRDR relating to the HIC is again belied by his own conduct. His
own testimony and exhibits reflected that he had saved other
company documents, including two rather insignificant CRDRs.
Furthermore, based on standard operating procedures, which were
employed when he submitted other CRDRs, if he had submitted a
CRDR concerning the August HIC, he would have received notice
that his CRDR had been filed and assigned for investigation
within days after it was submitted. Thus, if in fact he had
submitted such CRDR, Complainant would have been on notice
immediately that it had never found its way to the CRDR
department. Clearly, Complainant's story concerning the CRDR is
no more reliable than his fictionalized account of meetings that
never took place.
Although this hearing focused on Straub's termination, it is
significant to recall that the company's investigation focused
[PAGE 7]
simultaneously on both Straub and Pepple and the totality of
events that had transpired on February 10, 1994. There was no
evidence presented in this hearing that Pepple had ever engaged
in protected activity. Yet, from the outset of the investigation,
through Michael Shea's decision that the termination was
warranted, Straub and Pepple were treated identically.
Moreover, this closed record leads inescapably to the
conclusion that neither Michael Shea, as the final decision
maker, nor Human Resource managers, Marlene Shelton and Scott Mac
Farland, who recommended that Complainant be terminated, had any
knowledge that Complainant had engaged in any protected activity.
Complainant was not treated in a disparate manner as
similarly situated employees violating company rules were also
terminated by Respondents, while other, non-similarly situated
employees, may have been administered lesser forms of discipline.
As is readily apparent, the decision to terminate anyone's
employment is an extremely difficult one to make. Based on his
position, Michael Shea was called upon to make that decision. He
acted cautiously and carefully, reviewing the evidence of
misconduct and receiving information from his human resource
advisors about those company rules that had been violated and
about prior discipline in such cases. Balanced against the
overwhelming evidence of legitimate grounds for termination,
Complainant failed to produce any evidence, let alone evidence
which proved, that Mr. Shea's stated reasons for his decision was
merely a pretext to discriminate.
Accordingly, the complaint must fail. In this regard, see
Floyd v. Arizona Pub. Serv. Co./Palo Verde Nuclear Generating
Station, 90-ERA-39 (Sec'y, Sept.23, 1994); Merriweather v.
Tennessee Valley Authority, 91-ERA-55 (Sec'y, Feb. 4, 1994);
House v. Tennessee Valley Authority; 91-ERA-42 (Sec'y,
Jan. 13, 1993).
On the basis of the totality of this closed record and
having observed the demeanor and having heard the testimony of
the witnesses, including a less-than-candid Complainant, I make
the following:
FINDINGS OF FACT AND CONCLUSIONS OF LAW
APPLICABLE LAW - - DISCUSSION
The employee protection provision of the Act provides that:
[PAGE 8]
(a) Discrimination against employee. (1) No employer
may discharge any employee or otherwise discriminate
against any employee with respect to his compensation,
terms, conditions, or privileges of employment because
the employee (or person acting pursuant to a request of
the employee)-
(A) notified his employer of an alleged
violation of the Act
(B) refused to engage in any practice made
unlawful by this Act... if the employee has
identified the alleged illegality to the
employer;
(C) testified before Congress or at any
Federal or State proceeding regarding any
provision (or proposed provision) of this
Act...;
(D) commenced, caused to be commenced, or is
about to commence or cause to be commenced a
proceeding under this Act... or a proceeding
for the administration or enforcement of any
requirement imposed under this Act...;
(E) testified or is about to testify in any
such proceeding or;
(F) assisted or participated or is about to
assist or participate in any manner in such a
proceeding or in any other manner in such a
proceeding or in any other action to carry
out the purposes of this Act, --
42 U.S.C.S. § 5851 (Supp. May, 1993).
The Complainant has the burden of establishing a prima
facie case of discrimination under the ERA. The complainant
must show, by a preponderance of the evidence, 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 against the complainant. In addition, the
Complainant must produce evidence sufficient to at least raise an
inference that the protected activity was the likely motive for
the adverse action. See Dartey v. Zack Co. of Chicago,
Case No. 82-ERA-2, Sec. Dec., Apr. 25, 1983, slip op. at 7-9. If
the Complainant satisfies his burden of presenting a prima
facie case, the burden of production shifts to the Respondent
to produce evidence that the adverse action was taken for
legitimate, non-discriminatory reasons. See Dartey at 8.
[PAGE 9]
Courts and the Secretary of Labor have broadly construed the
range of employee conduct which is protected by the employee
protection provisions contained in environmental and nuclear
acts. See S. KOHN, THE WHISTLEBLOWER LITIGATION HANDBOOK 35-47
(1990). Examples of the types of employee conduct which the
Secretary of Labor has held to be protected include: making
internal complaints to management,[2] reporting alleged
violations to governmental authorities such as the Nuclear
Regulatory Commission ("NRC") and the Environmental Protection
Agency, threatening or stating an intention to report alleged
violations to such governmental authorities, and contacting the
media, trade unions, and citizen intervenor groups about alleged
violations. Id.
During the course of hearing, Complainant's representative
suggested that as a result of the 1992 amendments to the Energy
Reorganization Act (ERA), once Complainant establishes that he
engaged in protected activity,[3] the burden shifts to
Respondents to prove, by clear and convincing evidence that the
employment action would have been taken even if Straub had not
engaged in such activity. According to Respondents, Complainant
has blatantly misstated the applicable law.
The ERA specifically states that a violation occurs "only if
the Complainant has demonstrated that any [protected conduct]...
described in...this section was a contributing factor in the
unfavorable personnel action alleged in the complaint." 42 U.S.C.
§5851(b)(3)(C). Thus, as in any whistle-blower or
discrimination suit, the Complainant must ultimately prove that
the Employer acted based on an unlawful motive.
The United States Supreme Court has established a three-part
"shifting burdens" analysis applicable to all discrimination
cases. Texas Dep't of Community Affairs v. Burdine, 450
U.S. 248, 256 (1981); McDonnel Douglas Corp. v. Green, 411
U.S. 792, 802-04 (1973). Both the Circuit Courts of Appeals and
the Secretary of Labor have relied on Title VII authority in
whistle-blower cases, and have explicitly adopted the shifting
burdens analysis. See Couty v. Dole, 886 F.2d 147, 148
(8th Cir. 1989); Bryant v. EBASCO Serv., Inc., 88-ERA-3 1
(Sec'y, April 21, 1994).
Complainant has the initial burden of proving a prima
facie case. To do so in an ERA case, he must demonstrate that
he engaged in protected activity, that he was subjected to
adverse action, that the decision makers for the Respondents were
aware of the protected activity when the adverse action was
taken; and, although the circumstances of any particular case
will obviously differ, Complainant must also present sufficient
evidence to
[PAGE 10]
raise an inference that the protected activity was the likely
reason for the adverse action. Floyd v. Arizona Pub. Serv.
Co./Palo Verde Nuclear Generating Station, 90-ERA-39 (Sec'y,
Sept. 23, 1994; Shusterman v. EBASCO Serv., Inc., 87-ERA-
27 (Sec'y, Jan. 6, 1992; Jopson v. Omega Nuclear
Diagnostics, 93-ERA-54 (ALJ, Feb. 22,1 994); Larry v.
Detroit Edison Co., 86-ERA-32 (Sec'y, June 28, 1991). In a
discharge situation involving a specific offense for which the
Employee was terminated, evidence of qualifications does not
create an inference of discrimination. Rather, additional
evidence which implies a causal connection between the basis for
protection and the discharge will be necessary to establish a
prima facie case. See, e.g., Green v. Armstrong Rubber
Co., 612 F.2d 967 (5th Cir.), cert. denied, 449 U.S.
879 (1980).
If Complainant is successful in establishing a prima facie
case, the burden shifts to the Respondent merely to produce
evidence of a legitimate reason for its employment action. The
Complainant "retain[s] the burden of proving by a preponderance
of the evidence that the Respondent's action was motivated, at
least in part, by discrimination." Saporito v. Florida Power &
Light Co. and Saporito v. ATI Career Training Ctr/Florida
Power & Light Co. (consolidated), 90-ERA-27 & 90-ERA47
(Sec'y, Aug. 8, 1994) n.3. Complainant can meet this burden by
demonstrating "either that Respondent's proffered reasons for its
actions were pretextual or that it is more likely than not that
discrimination was a motivating factor." Id. If, but only
if, the trier of fact concludes that discrimination was a
contributing factor, does the burden shift to Respondents to
prove that they would have made the same decision "based on
legitimate factors even if the Complainant had not engaged in
protected activity." Id.
The amendment to the Act leaves the respective shifting
burdens of the parties intact. As before, "Complainant always
bears the burden of proof that the intentional discrimination has
occurred." Jopson v. Omega Nuclear Diagnostics, supra, p.
8; Dysert v. Florida Power Corp., (93-ERA-21) (ALJ, June
3, 1994) (Complainant must first prove that protected activity
was a contributing factor in the unfavorable personnel action
alleged in the complaint); Nerriccio v. Connecticut Yankee
Atomic Power Co., 93-ERA-50 (ALJ, June 27, 1994) (if
Complainant establishes prima facie case and Respondent
articulates a legitimate reason for its action, Complainant must
prove pretext).
The new statutory language, 42 U.S.C. §585l(b)(3)(D),
changes only the standard by which an Employer can avoid
liability in a dual motive case. Under the amendment, after
[PAGE 11]
Complainant proves that a Respondent acted, at least in part,
based on a discriminatory motive, Respondent may avoid liability
by producing "clear and convincing evidence," and not merely a
"preponderance of the evidence," that it would have made the same
decision based solely on legitimate factors. See Dysert v.
Florida Power Corp., supra.
In this case, the new statutory language is wholly
immaterial. This is not a dual motive case. Complainant failed
utterly to meet his threshold burden of proving that any
employment action concerning him, including the decision to
terminate his employment, was motivated at all by considerations
of protected activity.
1. Joseph Roy B. Straub ("Complainant" or "Straub") was
employed by Arizona Public Service Company (APS) as a Radiation
Technician (Rad Tech) assigned to the Palo Verde Nuclear
Generating Station (PVNGS) from December 18, 1989 until his
termination on February 15, 1994. (TR 3880, ll. 13-18; RX 28, RX
17.)
2. Arizona Public Service Company (Respondent) is an
"employer" pursuant to the Energy Reorganization Act of 1974 as
amended.
3. Complainant was an "employee" pursuant to the Energy
Reorganization Act of 1974 as amended.
4. Complainant has failed to produce evidence sufficient
to prove that any APS action adverse to him was in any way
connected to, let alone motivated by, any protected activity
under the Energy Reorganization Act (herein "The Act").
GENERAL ISSUES OF CREDIBILITY
5. Complainant's testimony concerning the events of
February 10, 1994, for which he was terminated, changed every
time he sought relief before a decision-making body. (TR4769, ll.
12-23; 4470, ll. 5-25; 4473, ll. 22-25; 4474, ll. 1-20; 4475, ll.
3-25; 4476, ll. 1-18; 4785, ll. 2-25; 4786, ll. 1-25; 4787, ll.
1-3, 19-25; 4788, ll. 1-25; 4789, ll. 1-25; 4790, ll. 1-25; 4791,
ll. 1-23; 4792, ll. 1-25; 4793, l. 1; 4797, ll. 17-25; 4798, ll.
1-15; 4801, ll. 2-25; 4802, ll. 1-2; 4803, ll. 1-18).
6. Complainant made material changes in his sworn
testimony in each proceeding, i.e., unemployment compensation
hearing, equity arbitration hearing, deposition and hearing
[PAGE 12]
testimony in this proceeding, regarding the time of arrival and
departure at the Nugget Bar. (TR 4765, ll. 8-25; 4766, ll. 1-25;
4767, ll. 1-7; 4768, ll. 6-14; 4781, ll. 2-25; 4782, ll. 1-25;
4783, ll. 1-25; 4784, ll. 1-25; 4785, l. 1)
7. Complainant repeatedly changed his testimony on
significant points between the time he gave his deposition
testimony on September 21, 1994 and his hearing testimony before
me less than four months later.
8. Complainant was not even present at PVNGS on several
dates on which he claims to have met and raised safety concerns
with APS managers or supervisors. (TR 6187 ll. 6-8) This fact was
confirmed by both the company's security and payroll records.
9. Complainant could not have identified concerns to his
supervisor, Dave Wanslee, during the week prior to August 20,
1992, because there was no overlap in the work schedules of
Wanslee and Straub. (TR 6190, ll. 4-14, 23-25; 6191, ll. 1-25;
6192, ll. 1-2)
10. Complainant changed his testimony as to whether he was
ever offered the same settlement deal as Pepple. (Testified
'yes', TR 4777, ll. 3-7, ll. 14-21; testified "no", TR 4870, ll.
18-25; 4871, ll. 1-5)
11. Complainant changed his sworn testimony regarding his
decision to leave the Nugget and wait in the van for Pepple. (TR
4782, ll. 10-14, 23-24; 4766, ll. 4-23; 4767, ll. 1-2, 10-12;
4782, ll. 4-9, 20-25; 4783, ll. 1, 15; 4784, ll. 1-5)
12. Complainant changed his sworn testimony regarding
whether he left the Nugget Bar with Pepple. (TR 4783, l. 15;
4784, ll. 1-5, 7, 16-25; 4788, ll. 13-25; 4789, ll. 1-6, 20-25;
4790, ll. 1-2, 12-18; 4791, ll. 4-14)
13. Complainant changed his sworn testimony regarding his
knowledge prior to termination that the company vans were not to
be used for personal use. (No Knowledge: TR 4802, ll. 7-21; yes,
had such knowledge: Straub depo RX 28 at 175, l. 14)
14. Complainant changed his sworn testimony regarding
whether Michael Shea's April 20, 1993, memo was in response to
concerns raised by Straub. He testified, at page 4103, ll. 5-9 of
the transcript, that he believed the April 20, 1993 memo was
triggered by his concerns. Later, at page 4104, ll. 1-3, Straub
said "it could very well have been..." in response to concerns he
[PAGE 13]
had raised but admitted he did not have knowledge to support his
earlier contention. Finally, on page 4104, ll. 6-11, Complainant
admitted that he had never even dealt with Mr. Shea on his safety
issue prior to April 20, 1993.
15. Complainant changed his sworn testimony regarding John
Gaffney's reasons for selecting Linares for a position in the
Outage Planning Group that Straub wanted. (TR 4177, ll. 2-25;
4178, ll. 1-6, 14-25; 4179, l. 1)
16. Complainant testified that had received counseling due
to stress created by a hostile work environment. The records of
Straub's counselor, however, demonstrate that he only saw her
before the alleged incidents of retaliatory treatment. They
further reflect that Straub visited with his counselor to discuss
his marital problems and that he did not discuss work at all. (TR
4392, ll. 24-25; 4393, ll. 1-25; 3494, ll. 1-15)
17. Complainant's own counselor, Dorothy Willard, described
him as someone who refused to accept responsibility for his own
actions. His failure to understand why he might be terminated for
the van incident on February 10, 1994, was not dissimilar to his
fai1ure to understand why his wife might want to divorce him
after finding out that he had been having an affair for 8-9
months. (TR 4641, ll. 17-21; 4642, ll. 2-24)
18. Complainant repeatedly testified as though he had
personal knowledge of a fact, but when pressed for a factual
basis, admitted that he did not have personal knowledge of the
"fact" to which he had testified. (TR 4548, ll. 17-25; 4548, ll.
23-25; 4549, ll. 1-16) (Straub testimony generally)
19. Complainant clearly misled the Arizona Department of
Economic Security in his application for unemployment
compensation. Complainant, in describing the van incident for
which he was terminated, suggested to the Department of Economic
Security in an unemployment insurance separation questionnaire
that he had been fired simply because he was sleeping in a
company van. (TR 4645, ll. 10-25; 4646, ll. 1-15; CX 159) Straub
claimed, during the unemployment hearing, that he did not know
the reasons for his termination other than "misconduct on the
company van" (RX 23, pp. 124-125) However, on February 15, 1994,
the date of Straub's termination, after he asked what
rules he had violated, he was given a portion of a
document which specifically listed the rules and policies that
Straub and Pepple had violated. (TR 4648, ll. 6-13; 4649, ll. 9-
16; CX 142, document listing reasons for termination)
[PAGE 14]
20. Complainant changed his statement as to whether the
other occupants of the van on February 10, 1994, had been
drinking alcohol. (TR 1127, ll. 11-19; 1135, ll. 16-19; 1693, ll.
12-23; 1694, ll. 19-23; 4032, ll. 18-21; 4033, ll. 4-6)
21. The record in this proceeding plainly reflects that
Straub also fabricated documentary evidence. Specifically, he
falsified entries in his calendar, which was offered as an
exhibit, in order to create a false impression that he had
meetings with supervisors during which he allegedly raised safety
concerns. (TR 4550, ll. 15-25; 4151, ll. 1-5; 4621, ll. 3-21;
4622, ll. 13-25; 4623, ll. 1-11; 4624, ll. 7-25; 4625, ll. 7-25)
22. Submitted on Straub's behalf was CX 176, documents
related to Hank Tomlinson, an HR (Human Resource) representative
at PVNGS. Complainant's handcrafted exhibit misrepresents the
packet that Tomlinson sent Straub following Straub's termination,
in order to assist Straub on the appeals process. Certain
materials had been deleted, other material had been added. (TR
5568, ll. 9-25; 5569, ll. 1-25; 5570, ll. 1-7)
23. Complainant's lay representative failed to provide a
critical document, the Tom York report regarding the February 10,
1994 incidents, to his experts, Joe Collier and Jon Sellers;
therefore, their opinions on the issue of Straub's alcohol
impairment were not only irrelevant, but also based on
information which was materially incomplete. (TR 774, ll. 22-25;
775, ll. 1-13; 888, ll. 8-14; Seller Deposition Exhibit 1; Seller
Deposition p. 8, ll. 13-25; 9, l. 1)
24. Complainant also fabricated a story that he submitted a
Condition Report Disposition Request ("CRDR") concerning the
August 1992 HIC work. See discussion, supra, at
findings 74 through 76.
THE TERMINATION DECISION
25. Complainant's employment was officially terminated by
letter from Straub's supervisor, Terry Gober, dated February 15,
1994, which stated: "This letter is to inform you that your
employment with Arizona Public Service Company has been
terminated effective February 16, 1994 for misconduct with APS
vans." (RX 17)
26. On February 10, 1994, Complainant left work in an APS
van. He drove the company van from the plant. (TR 4028, ll. 5-12)
The van had four other APS employees as occupants, Larry Pepple,
[PAGE 15]
Rex Warner, Jimmy Clark, and Pat Kikendahl. (TR 4028, ll. 22-25;
5099, ll. 10-12)
27. Complainant, while driving from the plant along
Wintersburg Road, stopped at a general store. Two six packs of
beer were purchased and carried onto the APS van in a paper bag.
(TR 5093, l. 1; 5094, ll. 5-15)
28. All passengers except Pepple and Straub were dropped
off at their designated van stop areas. Pepple and Straub
continued on to the Nugget Bar, with Straub still driving the
van. Both Straub and Pepple went into the bar. (TR 4034, ll. 2-
19).
29. During this trip, Straub and Pepple consumed the beer
on company property, i.& company van number 377. (TR 1127, ll.
11-14; 1135, ll. 16-17; 5491, ll. 7-9; 4032, ll. 6-11; 4797-4798
ll. 17-25, 1-8; 5096, ll. 18-23).
30. Complainant also admitted during deposition (Straub
depo, Exhibit RX 28, p. 171, l. 2), at the hearing (TR 4775, ll.
3-11; 4797, ll. 17-21; 4798, ll. 2-15), and to company security
investigator George Werrian, prior to his termination (TR 5491,
ll. 10-13), that he drank beer while driving the van.
31. At the Nugget Bar both Straub and Pepple continued to
consume alcoholic beverages. (TR 664, ll. 24-25; 665, ll. 1-25;
666, ll. 1-17; 4668, ll. 5-7; 5106, ll. 6-15; 5107, ll. l-13;
3520-3521, ll. 16-25, 1-10; 1127, ll. 11-25.)
32. Complainant admitted that driving the company van while
drinking beer was a violation of company van rules. (TR 4063, ll.
11-14; 4800, ll. 10-12)
33. Straub knew that "just having beer in the van would be
another violation of van rules." (TR 4801, ll. 18-25; 4802, ll.
1-3; Straub depo page 175)
34. Straub admitted knowing that there was a sign in his
van notifying employees that no alcoholic beverages were
permitted on the van. (TR 4801, ll. 2-7)
35. Straub knew that in the bar Pepple was consuming
schnapps liquor in addition to beer. (TR 4036, ll. 2-9; 4037, 1.
25; 4038, ll. 1-2)
36. Straub turned the keys to the company van over to
Pepple with the understanding that Pepple was going to drive the
[PAGE 16]
vehicle. He did so even though Straub knew Pepple had consumed
significant quantities of alcohol and was, in fact, "hammered."
(TR 4038, ll. 2-9; 4037, l. 25; 4038, ll. 1-2; 4066, ll. 1-3)
37. Although Straub lived southwest from the Nugget Bar and
very close to it, Straub and Pepple were found by school
officials on the morning of February 10, 1994, asleep or passed
out in the van in the Glendale High School parking lot, which is
approximately 5.5 to 6 miles northeast of the Nugget Bar. (TR
5111, ll. 17-21; 5114, ll. 5-12; 5207, ll. 15; 5208-5209, ll.
725, 1-2; 5210-5211, ll. 11-25, 1-15; 4956, ll. 5-25; 4957, ll.
1-7; 4955, ll. 2-7, 18-25; 4954, ll. 17-22; CX 255)
38. Peter June, Assistant Principal at Glendale High
School, became concerned about students observing two men
apparently drunk in the APS van. (TR 5214) The van was blocking
the drive and had broken beer bottles beside it. (TR 5208) A
window was open with a leg hanging outside it. (TR 5211) Mr. June
contacted the Glendale Police Department. {TR 5213)
39. Officer Vasquez of the Glendale Police Department,
responding to a call for police assistance, went to the Glendale
High School on the morning of February 10, 1994, found Straub
asleep in the passenger seat of the APS van with beer bottles
visible both inside and outside the van. (TR 4954, ll. 17-22;
4955, ll. 1-23; 4956, ll. 9-25; 4957, ll. 2-7)
40. Officer Vasquez awakened Straub, observed that Straub's
speech was slurred and that he was off balanced and confused.
After performing sobriety tests, including the HGN test, the
officer determined that Straub was impaired by alcohol. (TR 4960,
ll. 2-25)
41. Prior to February 10, 1994, Officer Vasquez had been
trained and experienced in observing and determining whether
motorists are impaired by alcohol or drugs. Vasquez was not
acquainted with Straub as of to February 10, 1994. (TR 4946, ll.
21-25; 4947, ll. 1-7; 4965, ll. 14-20)
42. After Respondent was notified of the situation in the
school parking lot, it sent corporate human resources
investigators to the scene. Tom York, one of the investigators,
interviewed Straub. Straub appeared to him to be significantly
impaired. Moreover, Straub admitted to York that he and Pepple
had taken the van to the Nugget Bar, that he had consumed several
beers and shots of 100 proof schnapps there and that he had
become drunk. (CX 135)
[PAGE 17]
43. Prior to February 10, 1994, York had both training and
experience in observing employees who might be under the
influence of alcohol or drugs. (TR 671, ll. 18-25; 672, l. 1-25)
44. Shortly after he left the scene on February 10, 1994,
York prepared a written summary of his observations and his
interview of Straub. There is no evidence to suggest that York
did not use his best efforts to summarize these events as
accurately as possible. He certainly was not biased. ln fact,
prior to that date, he had never even met or heard of Straub. (TR
664, ll. 16-18; 670, l.25; 67l, l. 1; 695 ll. 5-11)
45. Mr. Pepple credibly testified before me that Straub had
also been drinking beer and other alcoholic beverages at the
Nugget Bar on February 10, 1994. Pepple had been terminated with
Straub as a result of their activities on February 10, 1994. (TR
5088, l. 1; 5089, ll. 1-5; 5099, ll. 1-13; 5100, ll. 1-23; 5114,
ll. 5-17) No evidence was presented to suggest that Pepple would
testify based on any bias in favor of the company. On the
contrary, Pepple and Straub admitted that they were friends. (TR
476, ll. 9-18; RX 29, Pepple depo. at 8, ll. 1-7)
46. In any event, Straub's level of impairment is largely
irrelevant. Regardless of precisely how much he had drank, he
clearly violated the company rules for which he was properly
terminated. In addition, even accepting Straub's story as to how
much he had to drink, as an arbitrator later found, Straub
jeopardized his own safety, as well as that of Pepple, the
general public and the van, by turning the van's keys over to
Pepple. (RX 20)
47. Arizona law, A.R.S. § 4-244(22) states that it is
unlawful "[f]or a person to operate a motor vehicle on any
highway while consuming spirituous liquor." A.R.S. section 4-244
(20) states that it is unlawful "for a person to consume
spirituous liquor in a public place, thoroughfare or gathering."
48. Prior to January 1, 1994, PVNGS employees had driven
the vans to and from work under a van program that was
administered by another company, Sanderson Ford. Sanderson not
only ran the program, it also owned the vans and enforced the van
rules. (TR 608, ll. 6-22; 1957, ll. 24)
49. PVNGS employees were notified by various means,
including the following, that effective January 1, 1994, the
Sanderson vans would become APS fleet vehicles: (TR 2605-2606,
[PAGE 18]
ll. 22-25, 1-5; 2469, ll. 12-22; 3003, ll. 11-22; 3004, ll. 5-25;
3005, ll. 1-25; 3006, ll. 14-16)
a. "Palo Verde News," dated December 10, 1993. (EX 41 at
APS/SB02173)
b. "Palo Verde News," dated December 27, 1993, (EX 41 at
APS/5B02174)
c. PVNGS VAN POOL EXPRESS MONTHLY NEWSLETTER," dated
January 12, 1994, which states "The vans will have the APS logo
on them. As APS employees, we all are expected to conduct
ourselves in a manner as not to discredit APS. Many policies and
procedures, including Positive Discipline, will cover our conduct
on the vans; some of these are associated with misuse of company
property, destruction of company property, general conduct of APS
employees, and Fitness-for-Duty." (EX 41 at APS/SB02177-8)
50. On or about January 1, 1994, the vans used for employee
transportation to and from PVNGS did, in fact, become APS
property, subject to APS policies and procedures, All employees
knew or were expected to know about these new van rules as
numerous meetings were held relative thereto. (TR 2465, ll. 5-8;
2468, ll. 2-12; 2471, ll. 1-5; RX 41; RX46)
51. Marlene Shelton, Director of Human Resources for PVNGS,
recommended that both Straub and Pepple should be terminated. (TR
2674, ll. 2-7) Ms. Shelton was convinced that both Straub and
Pepple had violated numerous company rules and policies. (TR
2698, ll. 7-9, ll. 17-21)
52. Scott MacFarland, as Manager of Employee Relations for
PVNGS, also recommended that it would be consistent with company
policy to terminate Straub and Pepple. (TR 1905-1906)
53. Michael Shea, whose title in February, 1994, was Site
Radiation Protection General Manager, was the sole decision maker
in the matter of Straub's termination. (TR 3632-3638; 2668)
54. Mr. Shea decided that Straub and Pepple ought to he
terminated, based on his belief that their conduct had violated a
number of company rules and, in addition, violated the spirit of
the message that had been sent by APS' CEO, Mark DiMichele, that
serious safety violations would not be tolerated. (TR 3812-3813;
CX 141) No evidence was presented that Pepple had ever engaged in
protected activity.
55. Mr. Shea believed - and there was and is strong
evidence to support that belief -- that Straub had violated the
following APS policies/procedures which would individually or
[PAGE 19]
collectively warrant termination:
a. PVNGS Work Rules. (CX 128)
b. APS Employee Handbook. (CX 127, p.7).
c. APS Van Rules. (TR 2653-2655; RX 41)
56. Mr. Shea, prior to making his decision, had not only
received the recommendations to terminate, but also had attended
a meeting during which evidence of misconduct relating to the
February 10, 1994 van incident had been reviewed. Investigative
reports had already been prepared by Tom York, as well as by
another HR representative who went to the scene, Jerry Comer, and
George Weiman, as company security investigator. Mr. Shea also
asked for a summary memorandum, which summarized some of the
critical facts and listed the relevant company rules to enable
him to determine whether termination was appropriate. (TR 3745
ll. 14-25: 3746, ll. 1-25; 3747, ll. 1-10)
57. Complainant appealed his termination to an arbitrator,
pursuant to the company's Equity process. Arbitrator George
Bolander held a hearing in June 1994. Straub was represented by
William Dixon, Senior National Representative with the Utility
Workers Union of America (RX 20) and a full evidentiary hearing
was conducted. Following the hearing, the arbitrator upheld the
decision to terminate. (RX 20)
58. Arbitrator Bolander determined Pepple drove the van in
an intoxicated state, a serious safety violation for which Straub
had to accept responsibility. (RX 20 at APS/SB00049).
59. Arbitrator Bolander cited Straub's own testimony that
Pepple was "hammered" at the bar. The arbitrator concluded that
Straub had shown a complete disregard for his or Pepple's safety,
the safety of the van, and for the possible negative public
circumstances that could have taken place. (RX 20 at APS/SB
00048)
60. Arbitrator Bolander stated: "I concur with the company
that the unauthorized use of the van for the expressed purpose of
alcohol consumption, coupled with Mr. Straub's lack of
responsibility for the van, for his or Pepple's safety, or for
public consideration to be worthy, in itself, of termination."
(RX 20 at APS/SB 00048). He further stated: "The company's
response by classifying 'drinking alcohol while driving' as a
serious safety rules violation. I agree with the company."
Arbitrator Bolander specifically found that company policy
clearly requires employees to abstain from alcoholic consumption
while on company property and, if employees do drink, termination
[PAGE 20]
is the penalty. (RX 20, p. APS/SB 00049)
61. The Arizona Department of Economic Security denied
unemployment compensation to Straub because he had engaged in
misconduct (RX 18, RX 19). The Decision of the Administrative Law
Judge stated: "The claimant has admitted violating the company
rule against having and consuming liquor on the employer's
property, to wit: the company car pool van. The employer's rule
prohibiting alcoholic beverages on the carpool van, albeit after
working hours, is reasonable and is apparently enforced in the
sense that all incidents communicated to management are
investigated and, where appropriate, discipline follows. The
claimant's use of alcohol on the employer's property specifically
the van, can be presumed to be misconduct in that it adversely
affects the employer in it's (sic) capacity as an employer. The
use of alcohol in a company vehicle, albeit after hours, puts the
employer at risk for all manner of vehicle and personal injury."
(RX 19, p. AP/SB00041)
62. Complainant himself admitted that his conduct in the
February 10, 1994 van incident warranted serious discipline up to
and including a DML, decision making leave, the second highest
level of discipline next to termination. (TR 4665, ll. 18-21;
4066-4067 ll. 24-25, 1-4)
63. Complainant was terminated properly and in a manner
consistent with all PVNGS policies and procedures. (TR 3095 ll.
3-8; TR. 3853, ll. 80-13.)
64. Similarly, with respect to his appeal rights,
Complainant was not treated differently than others who are
terminated. (TR 5349-5357; 5434-5437; 5442; 5570-5571; 5576-5583,
RX 38; CX 176; 3557-3560, CX 17, 18, 20)
65. Complainant clearly understood the incident for which
he had been terminated; he was given those company rules and
policies that had been implicated by his actions; he was provided
with the brochure which explained appeal rights and options,
together with numbers to call for further information; he did in
fact have the opportunity to speak with several individuals about
his appeal options. (TR 5358, ll. 21-25; 5359, ll. 1-12; 5434,
ll. 7-16; 5436, ll. 1-5; 5437, ll. 23-25; 5438, l. 1; 5813, ll.
8-17; 5814, ll. 3-23; 4804, ll. 1-3)
66. Respondent clearly explained to the Complainant the
process for appealing his termination (TR 5522-5223; 5358-5362,
ll. 2-25, 1-7; 5437-5438, 5442, ll. 1-6; RX 49; Shea memo, CX
[PAGE 21]
134), and provided him with the standard options for appealing a
termination decision. Respondent provided information and
opportunities consistent with its policies and procedures for
appeal through the company's equity process. (TR 5563-5571; 5358-
5361; Exhibit Equity Procedure - CX 215, CX 210; see also
correspondence CX 204; CX 216) As to every aspect of his
termination, Complainant failed to produce evidence which even
suggested, let alone proved, that he was treated differently
because he had engaged in protected activity.
KNOWLEDGE:
67. Ms. Marlene Shelton, who made the recommendation
regarding Straub's termination, had no knowledge that Complainant
had raised safety concerns or had otherwise engaged in protected
activity. (TR 2479-2480, ll. 25, 1-4; 2715, ll. 18-22, 2947, ll.
8-25, 2948, ll. 1-20, 2952 ll. 6-21)
68. At the time he decided to terminate Complainant,
Michael Shea did not have knowledge that Complainant had engaged
in any protected activity. (TR 3730, ll. 6-7; 3825-3826, ll. 2-
25, 1-5; 3830-3831, ll. 20-25, 1-5; 3852, ll. 7-16)
69. The individuals who participated in a significant way
in the investigation itself were: George Weiman, Tom York, Jerry
Comer, Officer Vasquez and Dave Heler. (TR 657, ll. 8-9; 695, ll.
5-8; 1178-1179, ll. 24-25, 1; 1707, ll. 3-25; 1708, ll. 10-13;
4955-4956) At the time of their investigation and subsequent
reports, none of these individuals had any knowledge that
Complainant had engaged in activities protected under the Energy
Reorganization Act (TR 3198, ll. 8-24; 4041, ll. 23-24; 4042, ll.
17-21; 4965, ll. 14-20)
PROTECTED ACTIVITY
70. Complainant did not raise safety concerns or otherwise
engage in protected activity during August, 1992, in connection
with the transporting of a HIC (High Intensity Container). (TR
5877, ll. 7-12; 6084, ll. 6-17; 6134, ll. 3-8; 5670, ll. 11-14;
TR 5677, ll. 17-19; 5679, ll. 6-8)
71. Complainant's protected activity was extremely limited
and far from extraordinary. He engaged in protected activity in
1993 when he vaguely suggested that there had been procedural
violations during the August 1992, HIC job, while discussing his
own personnel-related complaints to investigators in the Human
Resources and Employee Concerns Departments. (TR 408, ll. 1-9;
[PAGE 22]
1609, ll. 20-25)
72. However, there were no procedural errors with respect
to the August, 1992 HIC work. (TR 5669, ll. 24-25; 5670, ll. 1-2;
5687, ll. 9-25; 5715, ll. 20-24; 5769, ll. 12-24)
73. Because Complainant could not specify what concerns he
had relating to the August 1992 HIC job during discussions with
his unit manager, Bill Sneed, in mid-1993, Sneed asked
Complainant to write a CRDR (Condition Report Disposition
Request) designed to initiate an investigation into whatever
concerns Complainant may have had (TR 440, ll. 11-20; 373, ll.
13-25; 374, l. 1; 388, ll. 11-16; 4011-4012, l. 25)
74. Although Complainant testified that he prepared a CRDR
and gave it to Sneed, his testimony on that point is not
credible. His supervisors and manager all testified that they
have never seen such a CRDR (TR 366, l. 25, 367, ll. 1-2; 388,
ll. 11-16; 440, ll. 19-25; 441, ll. 1-14) Furthermore, Tim
O'Keefe, who is responsible for administering the CRDR program,
testified that he had conducted an exhaustive search and
determined that no CRDR prepared by Complainant regarding the
August, 1992 HIC had ever been filed. (TR 5625, ll. 24-25; 5626,
ll. 1-6; 5631, ll. 7-10; 5632, ll. 22-25; 5633, ll. 1-13)
75. Moreover, Mr. Sneed had encouraged Complainant to
submit a CRDR in the first place, just as Mr. Sneed had
encouraged employees generally to raise safety concerns. (TR
440, ll. 21-23) And a CRDR and problem report relating to the
same HIC Had been submitted and investigated in April 1992.
Furthermore, based on his experience as he had filed other CRDRs,
Complainant would have known immediately, based on standard
operating procedures, if in fact he had prepared a CRDR, because
of the usual "feedback" from the individual at PVNGS assigned to
look into the CRDR. Accordingly, I find and conclude that
Complainant, contrary to his testimony, did not file a CRDR as he
certainly would have taken appropriate follow up steps to
determine its status as he was well aware of the procedures
relating thereto. (TR 388, ll. 11-16; 5632-5633, ll. 22-25, 1-13)
76. The concerns which Complainant raised relating to the
August, 1992 HIC job were not related to the December HIC
incident which resulted in NRC enforcement action in late 1993.
Moreover, he had not even worked on that HIC. (TR 5670, ll. 7-10;
5684-5685, ll. 20-25, 1-5; 3820, ll. 8-11; 3821, ll. 16-19) (This
is another example of Complainant's bootstrapping argument.)
[PAGE 23]
77. Notwithstanding the fact that Complainant testified at
the hearing (TR 4624, ll. 1-18) that he met with Bill Sneed on
November 3, 1992, he could not have done so. Official business
records established that Complainant was not even present at
PVNGS on November 3, 1992. (TR 6181-6182, ll. 12-25, 1-4; 6186,
ll. 3-20; 6192, ll. 2-12; RX 72; RX 75)
78. Notwithstanding the fact that Complainant testified
that he met with his supervisor, Dave Wanslee, on August 10,
1992, he could not have done so, since Complainant was not
present at PVNGS on August 10, 1992. (TR 6187; 6191; RX 72; RX
75) Mr. Wanslee did not recall Complainant raising procedural
concerns regarding the August HIC. (TR 6084, ll. 11-14)
79. In early 1993, after Complaint (sic) learned that Human
Resources was investigating an allegation of racial misconduct
that had been filed against him, he first went to the Human
Resources Department to complain about his supervisors. (TR 5037,
ll. 5-22) At various times during February and March 1993,
Complainant complained about discipline he received for the
racial incident and another incident of inappropriate conduct. He
also complained about the size of his raise and about an
assignment which Complainant did not like. During those
discussions, Complainant suggested that his supervisor did not
perform the August 1992 HIC job properly, and that his
supervisors had ignored his suggestions regarding the HIC job.
(RX 7)
80. Although Complainant filed a concern with the Employee
Concerns Department in July 1993, that concern was not at all
about safety issues. Rather, he complained about alleged
favoritism resulting from an alleged violation of the company's
nepotism policy. Specifically, be complained that a woman
employee who had married a foreman was not doing her fair share
of the work. (CX 236 at APS/SB02828)
THERE IS NO EVIDENCE OF PRETEXT
81. Respondent has engaged in a conscientious and
consistent effort to send a message to its supervisors and line
employees that employees are encouraged to raise safety concerns
and that discrimination against those who raise concerns will not
be tolerated. (TR 3204-3207)
82. That message was reinforced when a supervisor who did
discriminate, Frank Warriner, was dismissed. (TR 3186-3187)
83. As a manager, Michael Shea encouraged employees to
[PAGE 24]
identify promptly safety concerns or perceived problems. (RX 27)
Mr. Shea took affirmative steps to give positive reinforcement to
those who did so. (RX 26. See also TR 3832-3833)
84. It is not uncommon for Radiation Protection Technicians
to raise safety concerns. In fact, the technicians are expected
to raise concerns as part of their job responsibilities and are
continuously reminded of that fact (TR 4088-4090, ll. 2-14, 8-25,
1-5; 6083, ll. 14-17; 3831-3833, ll. 6-25, 1-2, 19-25, 1-6; 5630,
ll. 9-17; RX 28, P89-90)
85. Four other employees of the Radiation protection
Department, Dahl, Pippen, Wall and Converse, had filed a
Radiology Controls Problem Report (Report #3-92-00, RX 35), which
related to this same HIC on which Complainant worked in August of
1992. Their report had been filed in April 1992, when the HIC
work was at an earlier stage. There was no evidence that any of
the four had been subjected to any adverse action as a result of
raising concerns relating to the HIC, and I find this fact to be
most probative herein. (TR 4097, ll. 19-21; 4098, ll. 8-20;-4099,
ll. 10-19, 22-25; 4100, ll. 1-7, 18-25; 4101, ll. 1-5)
86. APS employee, Trajan Masler, submitted a CRDR raising
concerns about the same HIC on which Complainant worked, again in
the spring of 1992. (RX 35, 1258; TR 4101-4102, ll. 21-25, 1-9)
Sneed, Wanslee, and Wagner were familiar with the CRDR filed by
Masler. (TR 4102, ll. 13-23). Complainant offered no evidence
that Masler had suffered any adverse action as a result of having
raised a concern relating to the HIC, also a most probative
factor herein. (TR 4102, ll. 7-12.)
87. It is not uncommon for PVNGS employees to file CRDRs.
Almost 3,000 were filed in 1993 and approximately 2,600 were
filed in 1994. (TR 5630, ll. 1-11)
88. Employees are often recognized for raising safety
concerns. Co-workers Dan Cauley, Mike Baltz, Wayne Brewer openly
raised safety suggestions or concerns at Safety Meetings. They
were given recognition, so-called "atta-boys" for good jobs. (TR
4091, ll. 10-13; 4092-4093, ll. 6-25, 1-10, 19-21; 4105, ll. 12-
17) None of them has been involuntarily terminated. (TR 4096, ll.
7-16; 4097, ll. 6-8) David McFelia received approximately $20
corporate dollars in recognition for a safety concern in which he
actually stopped the job. (TR 386, ll. 22-25; 387-388, ll. 23-25,
1)
89. After the August 19, 1992 pre-job briefing, Complainant
and two other Rad Techs were recognized for doing a good job in
[PAGE 25]
the CA yard. (TR 385-386, ll. 13-25, 1; RX 25)
90. The process and criteria used in Complainant's
termination were the same as those used in the Pepple
termination. (Ms. Shelton, TR 2655-59; MacFarland, TR 6242)
91. Complainant was treated the same as Larry Pepple was
similarly, if not identically, situated. Mr. Pepple was with
Complainant on the morning of February 10, 1994. Unlike Mr.
Pepple, Complainant had driven the van while drinking beer.
Pepple had driven the van while obviously impaired, but
Complainant permitted him to do so and, in fact, handed him the
keys. In any event, they had both violated the same company rules
and policies, which misconduct warranted termination. (TR 2655-
2659; 6242)
92. The same general process was applied when managers at
Palo Verde received information that three other employees had
brought beer into a van. After the allegations were investigated,
the appropriate manager decided that all three should be
terminated. They were terminated in November 1994, based on
violations of several of the same company policies and rules that
provided the basis for Complainant's termination. Unlike Straub
and Pepple, these employees were not found impaired or in a
situation that tended to place the company in a bad light. (TR
6193-6194; 6228-6238; 6241-6242)
93. Prior to making the decision to terminate Complainant
and Mr. Pepple, it was first determined that four other APS
employees had previously been terminated for violating company
policies/rules regarding alcohol in APS vehicles. As in
Complainant's case, Marlene Shelton had recommended termination
in two of the earlier situations that were reviewed. (TR 3200-
3203)
94. Although Complainant attempted to identify numerous
other similarly situated employees, he failed to produce evidence
that any similarly situated employee bad been treated
differently. (RX 52)
95. Complainant failed to produce any evidence to suggest
that it was likely that he had been terminated because he engaged
in protected activity. Because of that, and also because neither
Mr. Shea, Ms. Shelton or Mr. MacFarland knew that he had engaged
in any protected activity, Complainant has failed to establish a
prima facie case that he was terminated for discriminatory
reasons.
[PAGE 26]
96. The Respondent has produced substantial and probative
evidence that Complainant was terminated based on legitimate
business considerations; i.e., Straub's egregious misconduct on
and improper use of the van.
97. Complainant failed to prove -- indeed he produced no
evidence -- that the reasons set forth by the company for his
termination were merely a pretext for discrimination.
LINARES' SELECTION FOR THE OUTAGE PLANNING POSITION
98. After Complainant expressed interest in transferring,
his unit manager, Bill Sneed, suggested that he contact his
supervisor about an opening in the Outage Planning Group. (RX 28,
Straub depo. at 76-78)
99. Kent Linares was placed in the Outage Planning Group
position after he was selected by John Gaffney, the Central ALARA
Planning Supervisor. (RX 71)
100. Complainant failed to produce any evidence to support
his allegation of retaliatory motive for the appointment of Mr.
Linares to the Outage Planning job. He did not believe that
Gaffney discriminated against him. On the contrary, he alleged --
based on hearsay only -- that his own supervisors had never
submitted his name to Gaffney for consideration. (TR 4866; 4886)
101. Apparently not even Complainant believed that there was
a causal connection between his own non-selection and protected
activity, since he testified that he felt that Mr. Linares got
the job because he was Wanslee's friend. (TR 4886, ll. 12-15) In
any event, the underlying premise of Complainant's complaint on
this point has no factual support. Mr. Wanslee testified that he
had recommended Straub for the position and Gaffney confirmed
that fact. (RX 71; TR 5877) Respondent exercised its discretion
and selected the person it felt was best for that job, an
appropriate management decision which should not be reversed by
this Administrative Law Judge by means of a tortured analysis of
the Act and pertinent precedents.
STRAUB'S ORAL REMINDER
102. On January 28, 1993, Training Supervisor Don Sobera
wrote a memo to Complainant's supervisor describing Straub's
inappropriate behavior during training. (RX 6)
[PAGE 27]
103. Shortly before he received Sobera's memo, Mr. Wanslee
had received notice that a Unit 2 supervisor, Steve Sawchenko,
had complained about Straub's having made inappropriate and
racially offensive comments. After investigating that complaint,
HR representative Kevin Salcido personally believed that
termination was warranted. (TR 4369, ll. 6-9) However, HR
recommended that Complainant should receive a written reminder.
(TR 4368, ll. 22-23; 5040, ll. 16-20) As Straub's supervisor,
however, Mr. Wanslee had the final decision as to what discipline
he would receive. However, Mr. Wanslee disregarded HR's
recommendation and did not give Complainant the written reminder
for the racial incident. (TR 5077, ll. 7-10)
104. Rather, on February 8, 1993, Mr. Wanslee gave Straub,
only an Oral Reminder for both incidents of inappropriate conduct
that had been reported to him. (TR 4154, l. 14 -4156, l. 4; 5036,
ll. 11-17)
105. There is no evidence to suggest, let alone prove, that
the Oral Reminder was in retaliation for any protected activity.
(TR 361-366; 5196-5199, TR 366, ll. 3-10)
FITNESS-FOR-DUTY
106. Prior to February 10, 1994, Complainant was randomly
selected for Fitness-for-Duty testing, pursuant to and consistent
with PVNGS Policies and Procedures. (TR 2949; 2950; CX 143)
Complainant offered no evidence to support his claim (paragraph
22) that he had been excessively tested in retaliation for his
having raised safety concerns. TR 4837, l. 1-4845, 1.7; 6194, l.
24-6195, l. 11)
107. In fact, Complainant was subjected to Random Fitness-
for-Duty tests only twice between August 4, 1992, and February
15, 1994, when his employment was terminated. Employees are
randomly selected for such testing by a computer program. (TR
4304-4305, ll. 16-25, 1-13; Exhibit CX 174) Thus, Complainant has
failed to produce evidence that he was randomly tested more
frequently than other employees or that he was ever tested in
retaliation because he had raised any safety concern. (TR 4304,
l. 16 - 4313, l. 7)
108. Mr. Straub and Mr. Pepple were told to report on the
following day (February 11, 1994) and submit to a "for cause"
Fitness-for-Duty test in order to determine whether their
egregious conduct had resulted from the use of illegal drugs. (TR
1684, ll. 20-25; 1685, ll. 1-4)
[PAGE 28]
109. The security access, "ACAD" for both Staub and Pepple
was revoked pending investigation of the facts. (TR 6192-6193; RX
14) Such revocation is standard operating procedure at PVNGS. (TR
6192-6193; 2445)
110. The "for cause" Fitness-for-Duty test to which Straub
was subjected on February 11, 1994 was conducted pursuant to
PVNGS' Policies and Procedures and was not retaliatory for
activities protected under the Energy Reorganization Act (TR
1678-1679; 6194-6195; 6194, l. 24 - 6195, l. 11; 1678, l. 1 -
1682, l. 15; 2614, ll. 1-20) Furthermore, that Complainant would
be off from work for the next few days after February 11, 1994 is
no reason to deny the Respondent's right to test one of its
employees in a sensitive employment, especially since illegal
drug use was suspected to account for Complainant's behavior on
February 10, 1994.
111. At the time he decided to have Complainant appear for
Fitness-for-Duty testing on February 11, 1994, David Heler had no
knowledge that Complainant had engaged in protected activity. (TR
4880, ll. 22-25, 1-3)
PAY ISSUE
112. Complainant's pay raises were not affected by any
activities protected by the Energy Reorganization Act. (TR 6198-
6202, RX 6254-6272, RX 65; RX 77.)
113. Complainant received a small pay increase in 1992.
However, contrary to his testimony, the raise preceded the
HIC job in August 1992. Moreover, it was consistent with standard
personnel practices relating to changes in the evaluation periods
and pay process. This was simply an interim raise designed to
help employees whose raises were being deferred during the phase-
in of the new system.
114. When Complainant got his annual increase in March 1993,
it was more than three percent, which was consistent with, if not
better than, earlier raises he had received.
PERFORMANCE REVIEWS (TR 6201, ll. 7-19)
115. Complainant's performance reviews were not based on any
activity protected by the Energy Reorganization Act. Complainant
admitted that he received performance reviews from Mr. Wanslee
which were better than some he had received from other
[PAGE 29]
supervisors in prior years. (TR 4871-4873, CX 27)
116. Complainant admitted that he understood that he was not
being singled out or being treated differently when he had
received his performance reviews late (TR 4130-4131)
117. Complainant received a performance review dated
September 3, 1992, which described him as "a valuable job
coverage technician." As did the supplemental review Mr. Wanslee
prepared for Straub in March 1993, the September 1992 review,
which Martha Wagner prepared, was highly complimentary of
Complainant's technical skills. While it mentioned his negative
attitude and suggested that it was affecting his work
relationships with his peers and supervisory personnel,
Complainant had received similar comments on his evaluations in
earlier years. (RX 4; TR 4145-4146)
118. Complainant failed to produce evidence to suggest, let
alone prove, that his performance reviews were retaliatory and
based on any alleged protected activity.
119. Complainant was not taken off the "zip zone" project on
February 8, 1993, as he alleged. On the contrary, he worked on
that project until he left for an outage, an assignment which he
had requested. When he returned from the outage, he again
participated in the project. (TR 4166-4178)
120. Complainant was pulled off the HEPA project in November
or December, 1992. This was approved by the Manager of RP
Operations, John Albers, Complainant's personal friend. (TR
42784279) Mr. Albers agreed that Complainant's supervisors were
acting well within their discretion. Moreover, Complainant was
not even displeased with the decision. (TR 4281; 4283)
121. Complainant failed to produce any evidence that his
work on special projects was in any way discriminatory or
retaliatory because he had engaged in any protected activity.
BENEFITS
122. Respondent's handling of Complainant's benefits after
termination, in particular the distribution of his 401(k) assets,
was appropriate, pursuant to APS policies and procedures, and was
in no way retaliatory for activities protected under the Energy
Reorganization Act. (TR 5783-5810; RX 70)
123. Those employees responsible for handling Complainant's
[PAGE 30]
401(k) account had no knowledge that he had engaged in any
protected activity and they did not treat him differently than
any other employees in his situation. (TR 5810)
CLAIM OF MEDICAL PROBLEMS DUE TO WORK
124. Although Complainant alleged that he suffered medical
problems due to his job-related stress related to the August 1992
HIC, his medical records belie that contention. They clearly
reflect that Complainant sought help for his medical conditions
prior to August 4, 1992. (CX 75) His problems were physiological
in nature and related to his personal and family situation, and
the records do not even mention any connection to job-related
stress. (CX 75)
ALLEGATION REGARDING STRAUB'S LOCK
125. Complainant offered no evidence that the alleged
cutting off of a lock from his locker on February 19, 1993 was in
retaliation for raising safety concerns or engaging in other
protected activity. In fact, Complainant thought that the lock
had been removed because of his union activity. (TR 4314, ll. 2-
4) In fact, Complainant did not believe that this incident had
any relationship to safety concerns. (TR 4314, ll. 5-13)
HOSTILE WORKING ENVIRONMENT
126. Complainant failed to present evidence to suggest, let
alone prove, that he was required to work in an environment which
had the purpose or effect of unreasonably interfering with his
work performance, i.e., a hostile or abusive work environment.
127. Moreover, Complainant failed to present probative and
persuasive evidence that his work environment had been influenced
in any way by any alleged protected activity.
128. Complainant, in his deposition testimony, admitted that
he had virtually no problems with any supervisor throughout his
employment at PVNGS. Even when he attempted to change this
testimony at the hearing, he still admitted that in most years
there, he had no problems with his supervisors. (TR 4107, ll. 14-
24; 4108, l. 5; 4111, l. 15 - 4112, l. 9; 4115, l. 25-4116, l. 6;
4118, l. 4-4120, l. 25)
129. On fact, Complainant's supervisors and manager provided
a positive working environment. For example:
[PAGE 31]
a. Each time Complainant asked to be assigned to work
an outage, his Supervisors approved the request. (TR 4170, l. 22
- 4171, l. 17)
b. Complainant's supervisor, Dave Wanslee, rejected
the Human Resources Department recommendation for stronger
discipline for Complainant's racial slurs and decided to impose
lesser discipline, an Oral Reminder (TR 362, l. 10 - 363, l.
10)
c. The Supervision and the management of the
Radiation Protection Department rewarded individuals for raising
safety concerns. (TR 4105, ll. 6-17; 4106)
d. Complainant's supervisor praised him in a
newsletter for "a job well done." (RX25)
130. While Complainant alleged that being assigned to "work
control" was evidence of a hostile working environment, the
evidence demonstrated, however, that employees in his job
classification were rotated into the "work control" assignment
both before and after he worked there. Complainant was not
singled out; he was simply being asked to do his share of the
work at PVNGS. (TR 4139, ll. 20-25; 4143, ll. 2-7; 5878, l. 25 -
5881, l. 8)
131. Complainant did not file a complaint until July 11,
1994.
CONCLUSIONS OF LAW
1. Complainant failed to prove that the decision to
terminate his employment in February 1994 was in violation of
Section 211 of the Energy Reorganization Act of 1974, as amended,
42 U.S.C.A. § 5851, et seq.
2. Complainant failed to establish even a prima
facie case that he was terminated because he had engaged in
protected activity under the Energy Reorganization Act (ERA).
3. Even if Complainant's evidence could be viewed as
having established a prima facie case, Respondent produced
substantial evidence that the decision to terminate was based on
legitimate, non-discriminatory employment considerations.
4. Complainant failed to prove that the reasons proffered
to explain the termination decision were merely a pretext for
discrimination or retaliation under the ERA.
[PAGE 32]
5. Complainant failed to prove that the manner in which
his 401(k) benefits were handled following his termination was in
way based on the fact that he had engaged in protected activity.
6. Complainant failed to produce prima facie
evidence of discrimination with respect to any allegations
relating to Respondent's Fitness-for-Duty program.
7. Even if Complainant had established a prima
facie case as to his Fitness-for-Duty allegations, Respondent
produced evidence of valid reasons for the tests given to him
under the Fitness-for-Duty program and he failed to prove that
those reasons were a pretext for discrimination or retaliation
under the Act.
8. The remainder of Complainant's claims asserted in his
complaint are all time barred by the applicable statute of
limitations. These claims involved isolated and discrete
allegations of discrimination. Complainant's failure to file a
timely complaint challenging with respect to these allegations
cannot be excused under the "continuing violation" theory of
discrimination law, since the elements required to establish a
basis for that theory do not exist in this case.
9. In any event, Complainant failed to prove that any of
the other employment actions challenged in his complaint occurred
in retaliation for his having engaged in protected activity. In
fact, Complainant failed to establish a prima facie case
in support of any of these claims. Even if he did, Respondent has
produced legitimate explanations for all of the challenged
employment actions and Complainant failed to prove that any of
them were, in fact, in retaliation for his having engaged in
protected activity or, somehow, constituted dispute treatment.
Specifically, Complainant failed to prove that any of the
following were based on discriminatory, rather than legitimate,
employment considerations: random testing under the Fitness-for-
Duty program; giving him an oral reminder for inappropriate
conduct in February 1993; selecting another employee, Kent
Linares, for the Outage Planning Group assignment; Complainant's
pay raise and performance review for 1992; and the alleged
hostile environment claims related to Complainant's work control
assignment in late 1992 and early 1993 and his work on special
projects.
10. Complainant also failed to produce any credible,
probative or persuasive evidence that his working environment was
sufficiently offensive, abusive or intimidating to even arguably
give rise to a hostile environment violation under the ERA.
Based on the foregoing, I find and conclude that Complainant
failed to satisfy his burden of presenting a prima facie
case. The overwhelming weight of the evidence proves that
Respondent's sole motive for terminating Complainant was its
conclusion that the misconduct on the van on February 10, 1994
constituted egregious behavior, violated company rules and
procedures and warranted termination.
RECOMMENDED ORDER
On the basis of the foregoing, I recommend that the
complaint filed by Joseph Roy B. Straub shall be, and the same
hereby is DISMISSED.[4]
DAVID W. DI NARDI
Administrative Law Judge
[ENDNOTES]
[1] The following abbreviations shall be used herein: "ALJ" -
Administrative Law Judge Exhibits, "CX" - Complainant Exhibits,
"RX" - Respondent Exhibits, "TR" - Transcript.
[2] There is a dispute regarding whether or not purely internal
complaints to management constitute protected activity, however,
the Secretary of Labor has issued decisions which find that an
employee is protected when engaging in this particular activity.
See S. KOHN, THE WHISTLEBLOWER LITIGATION HANDBOOK 37,43 (1990);
compare Kansas Gas & Elec. Co. V. Brock, 780 F.2d 1505
(10th Cir. 1985), cert. denied, 478 U.S. 1011(1986) (court
upheld Secretary of Labor's position that employed protection
provision of Energy Reorganization Act protects purely internal
complaints) with Brown & Root, Inc. v. Donovan, 747 F.2d
1029 (5th Cir. 1984) (court held that quality control inspector's
internal filing of intra corporate complaint was not protected
activity).
[3] Respondents stipulated that Straub had participated in a
protected activity while working at Palo Verde. (See Finding 71,
p.21)
[4] The Final Order herein shall be issued by the Secretary of
Labor.
