Date: March 1, 1995
Case No.: 94-ERA-39
IN THE MATTER OF:
Anthony J. Ross
Complainant
against
Northeast Nuclear Energy Company
Respondent
Appearances:
John R. Williams, Esq.
Norman A. Pattis, Esq.
For the Complainant
Charles C. Thebaud, Jr., Esq.
Errol R. Patterson, Esq.
For the Respondent
Before: DAVID W. DI NARDI
Administrative Law Judge
RECOMMENDED DECISION AND ORDER
GRANTING SUMMARY JUDGMENT 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 or applicants for a license of the Nuclear
Regulatory Commission and their contractors and subcontractors may
file complaints and receive certain redress upon a showing of being
[PAGE 2]
subjected to discriminatory action for engaging in a protected
activity.[1]
THE FOLLOWING DOCUMENTS HAVE BEEN ADMITTED INTO EVIDENCE
Exhibit No.ItemFiling Date
CX 1 Complainant's letter of complaint
08/01/94
CX 1A Complainant's request for a hearing 08/24/94
ALJ EX 1 Notice of Hearing and Pre-Hearing Order 08/30/94
RX 1 Attorney Mary F. Riley's Notice of 09/28/94
Appearance and Pre-Hearing Exchange on
behalf of the Respondent
CX 1B Attorney John R. Williams' Notice of 09/28/94
Appearance on behalf of Complainant
CX 2 Statement of Issues to be Decided and 09/28/94
Relief or Remedy Sought
CX 3 Complainant's List of Witnesses 09/28/94
CX 4 Complainant's List of Exhibits 09/28/94
CX 5 Complainant's Estimate of Time 09/28/94
CX 6 Motion for Extension of Time to Complete 09/28/94
Exchange of Exhibits
RX 2 Notice of Appearance on behalf of 10/07/94
Respondent filed by Attorney Charles C.
Thebaud, Jr., and Attorney Errol R. Patterson
CX 7 Claimant's waiver of the time limitations 10/11/94
set forth in the Energy Reorganization Act
and the implementing regulations
RX 3 Attorney Thebaud's Revised Notice of 12/28/94
Appearance
ALJ EX 2 This Court's Notice of Rescheduled Hearing 10/14/94
and Pre-Hearing Order
RX 4 Respondent's Motion for Summary Decision 01/10/95
[PAGE 3]
RX 5 January 6, 1995 Affidavit of Virginia G. 01/10/95
Fleming
RX 6 Affidavit of Frank C. Rothen 01/10/95
RX 7 July 7, 1994 letter from Donald B. Miller, 01/10/95
Jr. to Complainant relating to Your Vacation
Request
RX 8 Mr. Miller's June 24, 1994 letter to 01/10/95
Complainant
RX 9 August 15, 1994 letter from Kenneth W. 01/10/95
Jackson, Assistant District Director, to
Complainant
RX 10 Complainant's Deposition Notice 01/10/95
RX 11 Respondent's First Interrogatories pro- 01/17/95
pounded on Complainant
RX 12 Complainant's Rescheduled Deposition 01/18/95
Notice
CX 8 Complainant's Response to Motion for 01/18/95
Summary Judgment
ALJ EX 3 This Court's Order Granting Motion for
01/19/95
Summary Judgment
RX 13 Respondent's Motion to Compel 01/20/95
Procedural History
Kenneth W. Jackson, Assistant District Director, Employment
Standards Administration, Wage and Hour Division, U.S. Department
of Labor, by letter dated August 15, 1994, advised Complainant as
follows (RX 9):
"In a previous letter from this office, you were advised
that your complaint had been received August 2, 1994. On
August 10, 1994, you were interviewed by Investigator
Robert Rarus concerning the allegations in your
complaint. This letter is to notify you of our findings
in this matter.
[PAGE 4]
"Under the Energy Reorganization Act, as Amended, a
complainant must make a 'prima facie' showing that
the protected conduct or activity was a contributing
factor in the unfavorable personnel action alleged in the
complaint. If a 'prima facie' showing is not
made, the complaint must be dismissed and the
investigation discontinued.
"It is the position of the Department of Labor that a
'prima facie' showing has not been made in that
you have not shown that you suffered an unfavorable
personnel action as a result of engaging in protected
activity or conduct."
Complainant was further advised as to his appeal rights and he
timely requested a hearing before the Office of Administrative Law
Judges. (CX 1A) The matter was then forwarded to the Office of
Administrative Law Judge and assigned to this Administrative Law
Judge for resolution. A Notice of Hearing and Pre-Hearing Order
was issued on August 30, 1994. (ALJ EX 1) The parties timely filed
Notices of Appearance and Complainant requested a continuance of
the hearing scheduled for October 13, 1994 to enable the parties to
complete discovery and prepare for trial. (CX 6) The request was
granted and the matter rescheduled for hearing beginning on January
30, 1995. (ALJ EX 2)
Respondent then filed a Motion for Summary Judgment (RX
4) with supporting documents and affidavits (RX 5 - RX 9) and
Complainant timely filed his response. (CX 8) The pleadings were
considered and on January 19, 1995 I issued an Order Granting
Motion for Summary Judgment as Complainant has not established
a prima facie case that Respondent has violated the Act.
Summary of the EvidenceA. Complainant's Version
In this proceeding Complainant has framed the issue as follows
and seeks appropriate relief therefor:
I. ISSUE TO BE DECIDED:
Was the Respondent's attempt to transfer the
Complainant to a position located in a
different area and affording no opportunity
for overtime a form of retaliation for
[PAGE 5]
whistle-blowing activity?
II. RELIEF OR REMEDY SOUGHT:
The Complainant seeks an order finding that
the Respondent has unlawfully retaliated
against the Complainant, reprimanding the
Respondent for such activity, and directing
the Respondent to cease and desist from
retaliating against the Complainant in the
future.
B. Respondent's Version
Complainant seeks relief because Respondent proposed to
transfer him to an equivalent position within the company. Because
Complainant objected to the transfer, Respondent permitted
Complainant to choose between accepting the proposed position and
remaining in his current job. Complainant chose to remain in his
current job. Respondent accepted Complainant's preference and took
no adverse action against him. Under these undisputed facts,
Complainant has not alleged -- and cannot prove -- a prima
facie case under Section 211 of the Energy Reorganization Act
of 1974, as amended, according to Respondent.
Complainant began his employment with Respondent on November
1, 1982 as an electrician in the Millstone Unit 2 Maintenance
Department. On December 3, 1989, Complainant transferred to the
Millstone Unit 3 Maintenance Department, where he remained for
about eight months. On August 5, 1990, Complainant transferred to
a non-nuclear position with Substation Construction at Sheldon
Street, Hartford, Connecticut, where he worked as an electrician.
Seventeen months later, on January 5, 1992, Complainant transferred
once again, this time to the Unit 1 Maintenance Department, where
he currently works. (RX 5 at 1-2)
On May 9, 1994, Complainant approached the Unit 1 Maintenance
Department Manager, Mr. Neil Bergh, and reported that he had
received an anonymous note in an inter-office envelope that stated:
"Fat Man Your Days Hear [sic] Are Numbered." (Id.)
Complainant also gave Mr. Bergh a note from the company physician
recommending that Complainant take the remainder of the day off.
Mr. Bergh accepted the recommendation and released Complainant.
Later that day, Complainant met with Dr. Louis H. Reich, a
psychiatrist in private practice, who had been treating him. Dr.
Reich recommended that he remain out of work until at least May 18,
1994, the day of his next scheduled appointment. Respondent
[PAGE 6]
approved Dr. Reich's recommendation.
In fact, on May 17, 1994, Mr. Bergh contacted Complainant by
telephone to tell him to stay home until further notice. He
assured Complainant that he would receive full pay and benefits
during the period of absence that began on May 9, 1994, and that
Respondent did not regard this absence as a disciplinary matter.
Mr. Harry F. Haynes, the Unit I Director, having been unable
to determine the identity of the author of the anonymous note, and
concerned for the alleged stress felt by Complainant, met with
Complainant on June 16, 1994 to discuss a possible reassignment.
Mr. Haynes and Mr. Frank C. Rothen, the Director of Millstone
Maintenance Services, described the prospective position in Mr.
Rothen's Maintenance Services Department. In that position,
Complainant would remain a "Station Electrician A" at the same pay
rate that he received in Unit 1 Maintenance. Complainant would
also be eligible for considerable overtime pay in the Maintenance
Services Department. In fact, because Maintenance Services
supports all outages at Millstone Units 1, 2, and 3 and at
Connecticut Yankee, Complainant's overtime opportunities would be
even greater than those at Unit 1. Further, the position in the
Maintenance Services Department would have permitted Complainant to
receive additional specialized training. (CX 1) It would also
have permitted him to continue to work in the "Protected Area" at
Millstone. (RX 6)
The protected area is that area defined in a facility's
physical security plan that is encompassed by physical barriers and
to which access is controlled. See 10 C.F.R. §73.2(a).
Nuclear facilities such as Millstone must establish and maintain a
physical protection system for the protection of special nuclear
material against radiological sabotage and theft. In fact, because
the Maintenance Services Department supports all of the company's
Connecticut nuclear plants, Complainant would have had access to
the other Millstone units and Connecticut Yankee in Haddam Neck,
Connecticut. Additionally, the position in the Maintenance
Services Department would have provided Complainant with
considerable personal discretion in scheduling work and setting job
priorities, with relatively little direct supervision. Finally,
Complainant would have equivalent opportunities for advancement in
both positions. (Id.)
Following the meeting on June 16, 1994, Complainant informed
Mr. Haynes that he preferred to remain in his job at Unit 1.
Concerned about the alleged stress Complainant felt working at Unit
1, Mr. Haynes asked him to identify his specific objections to the
[PAGE 7]
position in the Maintenance Services Department so that Respondent
could consider his objections. (CX 1)
Complainant spoke to Mr. Haynes again on June 21, 1994, and
although he did not provide specific objections to the new
position, he repeated his desire to remain in Unit 1. Mr. Haynes
indicated that he would consider Complainant's opinion.
(Id.)
At the request of Mr. Bergh, Complainant reported to Mr.
Rothen on June 23, 1994. (Id.) Shortly after that meeting
began, Complainant asked to speak to the Millstone Station Senior
Vice-President, Mr. Donald B. Miller, Jr. Mr. Miller then joined
the meeting. Mr. Miller and Complainant again discussed
Complainant's perceived stress in Unit 1 and the reduced stress and
advantages of the position in Mr. Rothen's department. Mr. Miller
emphasized repeatedly during this meeting that he was primarily
concerned about Complainant's health and welfare and that he and
Mr. Rothen considered the new position to be a particularly
attractive opportunity for an electrician. Mr. Miller told
Complainant that he wanted to find a position for Complainant that
would relieve any stress he felt and provide a good opportunity for
him to succeed. Mr. Miller also assured Complainant that he would
not suffer any loss in overtime opportunities and that those
opportunities would probably be greater within Mr. Rothen's
department. (RX 6) At the end of the meeting, Complainant asked
for, and received, permission to take five days vacation to
consider the assignment. At Mr. Ross' later request, he was not
charged for this vacation and he received full pay and benefits
during this period. See Donald B. Miller, Jr. letter to
Anthony J. Ross, July 7, 1994. (RX 7)
The following day, Mr. Rothen called Complainant to advise him
that the decision to accept or reject the new position rested
exclusively with Complainant. Mr. Miller sent Complainant a letter
that same day, confirming Mr. Rothen's conversation. (RX 8)
After taking his vacation, Complainant reported to Mr. Rothen
on June 30, 1994, and informed Mr. Rothen that he had considered
the new position, but that he preferred to remain in Unit 1. (RX
6 at 5) Mr. Rothen again reminded Complainant of the many
advantages afforded by the new job and that he looked forward to
working with him. He also confirmed that he and Mr. Miller were
concerned about Complainant's apparent belief that Complainant
found his current job stressful. Complainant replied that he
appreciated their efforts and that he would have had no problem
working for Mr. Rothen or Mr. Ashburner, who would have been his
immediate supervisor. Complainant also indicated that he had heard
nothing but good things about Mr. Rothen and Mr. Ashburner, but
[PAGE 8]
that he wished to remain in Unit 1. (Id.)
Complainant elected to return to the Unit 1 Maintenance
Department, where he remains. (RX 5 at 2)
On August 1, 1994, Complainant filed a Complaint against
Respondent alleging that Respondent had "attempt[ed] to force [him]
out of [his] position at Unit 1 ...." (CX 1) On August 15, 1994,
following a review of the Complaint and an interview of
Complainant, the Department of Labor dismissed the Complaint and
discontinued its investigation, finding that Complainant failed to
establish a prima facie case. (RX 9 at 1) In particular,
the Department concluded that Complainant did not "suffer[] an
unfavorable personnel action as a result of engaging in protected
activity or conduct." (Id.)
Complainant has offered his January 16, 1995 affidavit in
opposition to the Motion for Summary Judgment (CX 8):
1. I am over the age of eighteen and understand the
meaning and obligation of an oath.
2. I received a threatening note at the Unit 1
Maintenance Department on May 9, 1994, which read as
follows: "Fat Man Your Days Hear [sic] Are Numbered."
3. Prior to receiving this not, I had filed numerous
complaints with state and federal agencies complaining of
safety violations at Northeast Nuclear Energy Company.
4. I reported the note to my superiors and was told to
take the rest of the day off by the company physician.
My own physician recommended that I take a few weeks off,
and the company later insisted that I take an indefinite
leave.
5. In June 1994 I was told that I was being transferred
to the Maintenance Services Division, a different unit,
by Harry Haynes, the Unit 1 Director, and Frank Rothen,
Director of Millstone Maintenance Services. I was told
that I was being transferred because NNECO could not
determine who had written the May 9, 1994 note.
6. Although the proposed transfer would have permitted me
to keep my same base salary, I was told that the
opportunities for over-time pay would not have been as
great as they were in my position at Unit 1. Mr. Rothen
[PAGE 9]
said, "I don't see you making [the] kind of over-time" you made at
Unit 1 in the new position.
7. Based on what I was told by Messrs. Haynes and Rothen,
I believe that had I accepted the transfer, my annual
take-home pay would have been reduced by as much as
$25,000 per year.
8. When I was first presented with the possibility of
being transferred, I was given no choice to remain in my
present condition. The decision to permit me to remain
in my current position was made only after I refused the
proposed transfer.
9. As a result of having to negotiate with the company to
remain in my present position, I was subject to great
stress and emotional turmoil.
Complainant disputes Respondent's position that he cannot
prove a prima facie case under the Energy Reorganization
Act, 42 U.S.C. §5851. In particular, the Respondent claims
that the Complainant cannot prove discrimination in compensation
and conditions or employment. (RX 4 at 10) In support of this
contention, the Respondent relies upon an affidavit signed by Frank
Rothen, Director of Maintenance Services for MIllstone Nuclear
Power Station. (RX 6) Mr. Rothen claims that had the Complainant
accepted a transfer to another position, he would have received
comparable opportunities for over-time in the position to which he
was being transferred.
The Complainant denies that such representations were ever
made by Mr. Rothen. According to the Complainant's affidavit, Mr.
Rothen acknowledged that the Complainant would not have had the
same opportunity for over-time. (CX 8) Had the Complainant
accepted the transfer, he would have lost as much as $25,000 in
income as a result of lost opportunities for over-time.
(Id.)
Complainant submits that determining whether to believe the
Complainant or Mr. Rothen is an issue of fact, turning, in large
measure, on an evaluation of credibility. Credibility issues
cannot be decided on a motion for summary judgment, but must be
decided by the trier of fact at trial. Losch v. Borough of
Parkesburg, 736 F.2d 903 (3d. Cir. 1984).
The Respondent also asserts that the Complainant suffered no
adverse action since the company permitted him to remain in his
original position at the same rate of pay and under the same
[PAGE 10]
conditions of employment. According to Mr. Rothen's affidavit, the
company never attempted to force the Complainant into accepting a
transfer. However, the Complainant contends that Respondent tried
to force him into accepting a transfer and relented only after he
insisted that he would not accept the transfer. (CX 8) Assuming,
arguendo, that the Complainant's version is correct, then
the company did expose him to a form of pressure by trying to
compel him into taking less remunerative employment.
Even if the mere fact that Complainant was allowed to remain
in his present position results in a finding that he has suffered
no adverse impact, a larger question remains: Whether the acts and
omissions of the company in this matter amounted to harassment and
intimidation? The Complainant intends at trial to explore the very
real possibility that the Respondent itself, acting deliberately
through its agents or employees, caused a threatening letter to be
delivered to the Complainant in retaliation for engaging in
protected activity. If the Respondent did cause the letter to be
delivered, its efforts to remove the Complainant from his present
position are merely pretextual, and amount to intimidation. If the
Respondent did not cause the letter to be delivered, but failed to
take steps to determine how it came to be delivered, the
Respondent's omissions may still amount to harassment. In this
case, the omissions may have been designed or intended to
neutralize an employee who raised safety concerns by removing him
from a work environment in which he could raise safety issues,
according to Complainant's thesis.
Findings of Fact and Conclusions of Law
I. Propriety of Summary Judgment
It is well-settled that this Administrative Law Judge clearly
has the authority to summarily dismiss a deficient complaint
arising out of the Energy Reorganization Act. The Rules of
Practice and Procedure specifically provide that a party may move
for summary decision with or without supporting affidavits. 29
C.F.R. § 18.40(a). See also, Howard v. Tennessee Valley
Authority, Case No. 90-ERA-24, Recommended Decision and Order
(ALJ Sept. 4, 1990); Final Decision & Order of Dismissal (Sec'y
July 3, 1991), aff'd, 959 F.2d 234 (6th Cir. 1992) [Full
text of unpublished decision is available at 1992 U.S. App. LEXIS
6570]; and Trieber v. Tennessee Valley Authority, Case No.
87-ERA-25, Decision & Order Granting Motions for Summary Judgment
(ALJ Nov. 1, 1989), Decision & Order (Sec'y Sept. 9, 1993).
The standard for granting a motion for summary decision is
equally clear.
[PAGE 11]
The Administrative Law Judge may enter summary
judgment for either party if the pleadings,
affidavits, material obtained by discovery or
otherwise, or matters officially noticed show
that there is no genuine issue as to any
material fact and that a party is entitled to
summary decision. 29 C.F.R. § 18.40(d).
Section 18.41 contains a similar provision for
summary decisions.
Complainant submits that summary judgment is appropriate only
when there is no genuine issue of material fact in controversy and
that such motion is not appropriate herein because there are
material facts at issue. A material fact is one that has a bearing
on resolution of an issue raised by a party or that could affect
the outcome in a case. Celotex Corp. v. Catrett, 477 U.S.
317 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242
(1986).
This Administrative Law Judge, in determining the propriety of
summary judgment, must view the evidence in a light most favorable
to Complainant, the non-moving party. Western Land
Corporation v. Crawford-Merz Company, 62 F.R.D. 550 (D.C.
Minn. 1973).
II. MR. ROSS CANNOT ESTABLISH A PRIMA FACIE CASE BECAUSE
HE SUFFERED NO ADVERSE ACTION OF ANY KIND
This proceeding arises out of the employee protection
provision of the Energy Reorganization Act, 42 U.S.C. § 5851.
But to establish discrimination under § 5851, a Complainant
must prove all of the following:
(1) The party charged with discrimination is an
employer subject to the Act;
(2) The Complainant engaged in protected activity;
(3) The employer knew or had knowledge that the
Complainant engaged in protected activity;
(4) The complaining employee was discharged or otherwise
discriminated against with respect to his
compensation, terms, conditions or privileges of
employment; and
(5) The alleged discrimination arose because the employee
participated in [protected activity]. Mackowiak v.
[PAGE 12]
University Nuclear Systems, 735 F.2d 1159, 1162 (9th
Cir. 1984).
In this case, Complainant cannot satisfy the fourth or fifth
elements of a prima facie case. Because Respondent did not
discharge Complainant, he must prove that he was "otherwise
discriminated" against to be able to state a cognizable claim. But
because no personnel action of any sort occurred, there was no
change whatsoever in the compensation, terms, conditions, or
privileges of his employment. As a result, he suffered no adverse
harm, and, accordingly, he has no basis for a claim. Smith v.
T.V.A., Case NO. 90-ERA-12, Sec. Final Dec. and Order of
Dismissal, Apr. 30, 1992, slip op. at 3-5. See also Shehadeh v.
Chesapeake & Potomac Tel Co., 595 F.2d 711, 729 (D.C. Cir.
1978); Rex v. Ebasco Svcs., Case Nos. 87-ERA-6, 87-ERA-40,
Final Decision and Order, Mar. 4, 1994, slip op. at 5. Indeed,
even during the period of uncertainty following May 9, 1994, while
Complainant was on a leave of absence, he received full pay and
benefits and Respondent did not consider his absence against him in
any way.
Therefore, as a matter of law, Complainant has failed to
establish a prima facie case, and I so find and conclude.
If, in fact, Complainant had been transferred, voluntarily or
involuntarily, to the other job and if he were able to establish a
loss of income as a result of adverse personnel action, then
perhaps Complainant would be entitled to a hearing on the merits of
his complaint.
However, the fact remains that he was not transferred, has not
experienced any adverse personnel action of any type and has not
established that he was "otherwise discriminated against" by
Respondent.
Thus, summary judgment is appropriate herein and said motion
shall be, and the same hereby is GRANTED.
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
Complainant did not suffer any adverse personnel action and has not
been otherwise discriminated against.
RECOMMENDED ORDER[2]
[PAGE 13]
On the basis of the foregoing, I recommend that the complaint
filed by Anthony J. Ross be DISMISSED.
DAVID W. DI NARDI
Administrative Law Judge
Dated:
Boston, Massachusetts
DWD:dr
[ENDNOTES]
[1] The following abbreviation shall be used herein: "ALJ" -
Administrative Law Judge Exhibits, "CX" - Complainant Exhibits
and "RX" - Respondent Exhibits.
[2] The FINAL ORDER will be issued by the Secretary of Labor.
