DATE: December 15, 1992
CASE NO. 92-ERA-5
IN THE MATTER OF
MICHAEL D. MORRIS,
COMPLAINANT,
v.
THE AMERICAN INSPECTION CO.,
RESPONDENT.
BEFORE: THE SECRETARY OF LABOR
FINAL DECISION AND ORDER
This case arises under the employee protection provision of
the Energy Reorganization Act of 1974, as amended (ERA), 42
U.S.C. § 5851 (1988). Complainant Michael D. Morris alleges
that he was unlawfully discharged from his position as a
technician in radiography by Respondent, American Inspection Co., Inc.
("Respondent" or "AMSPEC"), in retaliation for complaints of
safety violations he made over the six month span of his
employment with Respondent. Recommended Decision and Order
(R.D. and O) at 3-4.
After a hearing the Administrative Law Judge (ALJ)
recommended that the complaint be dismissed, finding that
Complainant had not presented a prima facie case of
discrimination, and that even if he had, Respondent successfully
rebutted it. R.D. and O. at 10-11. Neither party filed a brief
in response to the Secretary's briefing order.
The record, including the parties' trial briefs, exhibits
and the hearing transcript, has been reviewed closely, and it
supports the AlJ's ultimate conclusion that the complaint should
be dismissed. For the reasons detailed below I adopt the ALJ's
conclusion that Complainant had not presented a prima facie case,
and would not have prevailed even if he had.
The R.D. and O. at 2-9 correctly summarizes the testimony of
the witnesses. Complainant was hired by Respondent on January
28, 1991, to work as a Level 2 Radiography Technician at the Hess
Oil Refinery, St. Croix, Virgin Islands (HOVIC), for which
Respondent was a contractor. R.D. and O. at l; Stipulations
(Stip.) 2 and 4. Respondent is an employer subject to the ERA,
and Complainant is a protected employee under the ERA. Stip. 7.
Complainant was fired on July 26, 1991. R.D. and O. at l; Stip.
5. He alleged that several events during his employment with
Respondent constituted protected activity under the ERA and that
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he was fired in retaliation for that activity. Specifically,
Complainant testified that he engaged in the following protected
activity: (1) He repeatedly asked his supervisors for a copy of
Respondent's Operating and Emergency Procedures Manual (R.D. and
O. at 3; Transcript (T.) at 37-38); (2) He objected to working
with a fellow radiography technician, Michael Matrious, on the
grounds that Matrious' work habits presented a potential safety
hazard (R.D. and O. at 3-4; T. 45-48); (3) He complained to
radiation safety officer Larry Ladner about a broken camera
which he thought presented a radiation threat (R.D. and O. at 4;
T. 155, 158); and (4) He and several other technicians presented
a grievance which, among other things, contained a complaint
about failure to receive the Operating and Emergency Procedures
Manual, and that the technicians regularly were required to sign
a document stating that they attended safety meetings when, in
fact, such meetings were not held. T. 60; EX. B-5, p. 5.
The writing and presentation of the grievance occurred on
the night Complainant was fired. The events of that night are
critical to my decision and are largely uncontroverted.
Complainant arrived for the evening shift at about 5:50 p.m. and
was assigned by his acting supervisor, Larry Ladner, to process
x-ray film in the dark room in the AMSPEC office that evening.
R.D. and O. at 4; T. 49. Complainant checked the cameras to be
sure that enough film was loaded for the other radiographers to
use that night, and then began doing necessary paperwork. R.D.
and O at 4; T. 51. The other technicians working that evening
were Terry Takahashi, Jerry Nordin, Tom Abbott, Olaf Olsen,
Darryl Seal, John Day, Wesley Dick, Ed Scribner and Chris Ladner.
R.D. and O. at 4; T. 51, 57. All of the technicians other than
the Complainant, Scribner, and Chris Ladner were assigned to work
at Unit 6 of HOVIC. R.D. and O. at 4; T. 51. Shortly after the
shift began some of the technicians learned that they would not
be able to obtain a work permit for Unit 6 from HOVIC until 7:30
p.m. T. 55. Several of the technicians then started discussing
complaints they had about working conditions. T. 55, 57.
Because they had complaints about Larry Ladner and did not want
to discuss them while he was in the same building, Takahashi,
Nordin, Abbott, Olsen, Seal, Day, Dick, and Complainant left
Respondent's office and went to a remote area of the HOVIC
facility to make a list of their grievances. R.D. and O. at 4;
T. 57-58. They completed their list and, according to
Complainant, returned to Respondent's office before 7:30. R.D.
and O. at 5; T. 62.
In the meantime Ladner, who had taken Scribner to another
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location in the HOVIC facility to do his work, returned to
Respondent's office and found only his son, Chris Ladner,
present. R.D. and O. at 7; T. 216. After completing some
paperwork Larry Ladner then drove to Unit 6 and found no one
there. T. 214. He checked other locations in the HOVIC facility
and then returned to Respondent's office and paged Respondent's
operations manager, Steven Oliver, on his beeper. T. 216.
Oliver then called Ladner and learned that the eight technicians
were missing -- i.e. that they were neither at Unit 6 nor
at Respondent's office. T. 172-173. Oliver told Ladner to look for
the eight a second time, which Ladner did to no avail. T. 217.
Ladner then called Oliver a second time to report his failure to
locate the eight technicians. T. 217. While Ladner and Oliver
were conversing, the eight returned to Respondent's office.
T. 218. When Oliver asked to speak to any one of the eight
technicians they refused, and suggested that Oliver come to the
facility immediately so that they could discuss their grievances.
T. 174. Oliver told Ladner that he would come and arrived a
short time later. T. 174-175.
When Oliver arrived at Respondent's office Dick, who had
transcribed the men's grievances, attempted to give them to
Oliver. R.D. and O. at 5; T. 64. Oliver brushed Dick's papers
away without looking at them and asked the technicians where they
had been. R.D. and O. at 5; T. 64. They replied that they had
been in an area near the gate making out their grievance list.
R.D. and O. at 4; T. 175-176. Upon hearing this Oliver told them
that they were to "hit the gate," which everyone understood meant
that the eight had been fired. R.D. and O. at 5; T. 64. The men
turned in their equipment, obtained receipts, and left the
facility. R.D. and O. at 5; T. 65. Complainant concluded his
personal business on St. Croix and left the island on Tuesday,
July 30, 1991; Ex. P-9.
The grievance list, which all witnesses agreed Oliver did
not look at prior to firing the eight technicians, contained
eleven items. All but the last one involved issues other than
safety. Ex. B-5. For example, the first and fifth items both
dealt with one of Complainant's special issues, the requirement
that employees, who were receiving lodging and per diem, were
required to pay for maid service. Ex. B-5, p. 2, 5. Item two
dealt with a request to have the per diem raised. Ex. B-5, p. 2.
The eleventh item on the list stated "Why do we have to sign
quarterly rad[iation] safety sheets for meetings we don't have.
No Beepers. Where is [sic] OEE [sic] Procedures for ea[ch] tech.
Where is retrieving equip[men]t. Ex. B-5, p. 7. Complainant
testified that item eleven was added to the list at his request.
[PAGE 4]
T. 61.
To establish a prima facie case of retaliatory discharge
under the ERA, a complainant must show that: (1) he engaged in
protected conduct; (2) the employer was aware of that conduct;
and (3) the employer took some adverse action against him. The
complainant must present evidence sufficient to raise the
inference that the protected activity was the likely reason for
the adverse action. Dean Dartey v. Zack Company of
Chicago, Case No. 82-ERA-2, Sec. Dec., Apr. 25, 1983, slip op. at 7-8.
SeealsoMackowiak v. University Nuclear Systems.
Inc., 735 F.2d 1159, 1162 (9th Cir. 1984); DeFord v. Secretary of Labor,
700 F.2d 281, 286 (6th Cir. 1983); McCuistion v. TVA Case No.
89-ERA-6, Sec. Dec., Nov. 13, 1991, slip op. at 5-6. The ALJ
held that Complainant failed to establish a prima facie case
because he admitted that Respondent was not aware of the fact
that he had made a safety complaint on the written grievance list
which the eight technicians had tried to give Oliver. R.D. and
O. at 10. See T. 81. I agree with the ALJ that
Complainant did not establish a prima facie case. However, because Complainant
alleged that he had made more than one safety related complaint
it is necessary to deal with this issue in greater depth.
It is undisputed that Respondent did not know of
Complainant's safety related complaint contained in the grievance
list prepared on July 26. As the ALJ correctly concluded, Oliver
had no knowledge of the contents of the grievance list at the
time he fired Complainant and the other seven technicians.
Because employer knowledge of protected activity is an essential
element of a prima facie case under the ERA, see p.6
above, this incident, standing by itself, does not establish a prima facie
case of retaliatory discharge.
But Complainant also alleged other protected activity which
might be sufficient to raise the inference that Complainant's
protected activity was the likely reason for his discharge, thus
establishing Complainant's prima facie case. First, Complainant
testified that he repeatedly requested a copy of Respondent's
Operating and Emergency Procedures Manual from Oliver and
Complainant's supervisor, Craig Handcock. T. 37-38. Assuming
that Complainant had made this request, it was arguably protected
activity. Complainant himself testified, however, that he had
seen the Manual in Respondent's office prior to the night he was
fired, T. 142, and he presented no evidence indicating that
either of the supervisors he said he talked to reacted negatively
to his request. At worst, they simply did not follow through and
provide him with the manual. It is uncontested that management
had the manual and that other employees possessed copies of it as
well. Assuming Complainant asked for the manual, that protected
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activity is insufficient to raise an inference that Complainant's
subsequent firing was retaliatory.
Second, it is uncontroverted that Complainant objected
to working with technician Mitchell Matrious because he thought
Matrious' practices presented a safety hazard. R.D. and O. at 3;
T. 45-47. Complainant presented no evidence from which to draw
the inference that Respondent had retaliated against Complainant
in response to this protected activity. Indeed, Respondent had
promised Complainant that he would never be assigned to work with
Matrious and had fired Matrious for three separate safety
violations in June of 1991. R.D. and O. at 3-4; T. 48. The time
lag between Complainant's expressions of concern about Matrious
in March 1991 and Complainant's firing in July 1991 also
militates against such an inference.
Third, the evidence presented about the camera incident is
fragmentary, and inconclusive. Complainant testified that in
response to his complaint about the camera, Larry Ladner told him
that Ladner knew the camera was broken and not to use it. T. 158.
Ladner did not have the authority to fire Complainant, however,
and was not even present when Complainant and his fellow
technicians were fired by Oliver. T. 219-220. No evidence was
presented which would indicate that Ladner ever told Oliver or
any other supervisor about Complainant's objections regarding the
camera. Thus, this incident also does not raise an inference of
retaliation.
Even if Complainant had established a prima facie case, it
was successfully rebutted by Respondents. Under the analysis
applied in whistleblower cases, even if a complainant makes a
prima facie case of retaliatory discharge, the respondent is
allowed the opportunity to come forward with evidence that it
discharged the complainant for legitimate reasons. Thus, as the
Secretary of Labor stated in Dartey v. Zack, slip op. at
8:
If the employee establishes a prima facie
case, the employer has the burden of
producing evidence to rebut the presumption
of disparate treatment by presenting evidence
that the alleged disparate treatment was
motivated by legitimate, nondiscriminatory
reasons. Significantly, the employer bears
only a burden of producing evidence at this
point; the ultimate burden of persuasion of
the existence of intentional discrimination
rests with the employee. . . . If the
employer successfully rebuts the employee's
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prima facie case, the employee still has "the
opportunity to demonstrate that the proffered
reason was not the true reason for the
employment decision. . . . [The employee]
may succeed in this either directly by
persuading the court that a discriminatory
reason more likely motivated the employer or
indirectly by showing that the employer's
proffered explanation is unworthy of
credence." . . . The trier of fact may then
conclude that the employer's proffered reason
for its conduct is a pretext and rule that
the employee had proved actionable
retaliation for protected activity.
Conversely, the trier of fact may conclude
that the employer was not motivated, in whole
or in part, by the employee's protected
conduct and rule that the employee has failed
to establish his case by a preponderance of
the evidence.
(Citations omitted; brackets in original.)
Respondent has successfully rebutted whatever case
Complainant made out, and, assuming that it is necessary for me
to reach this point, I conclude that Complainant has failed to
sustain his complaint by a preponderance of the evidence. The
most important fact supporting this conclusion is that Oliver,
the agent of Respondent who actually fired Complainant, did not
know that the grievance contained a safety related complaint and
fired seven other technicians at the same time. The stated
reasons for the mass firing are completely credible. Oliver
testified that HOVIC, for whom Respondent was performing under
contract, was extremely sensitive about the amount of work
contracting employees did and about their being in unauthorized
locations. R.D. and O. at 8, 10; T. 176, 190-191. Oliver fired
all eight technlcians who had been involved in the grievance
preparation, many of whom apparently had not expressed concerns
about safety matters. T. 103. Thus, I conclude that even if
Complainant were to be found to have established a prima
case, Respondent successfully rebutted it, and Complainant failed
to establish that he was retaliated against for engaging in
protected activity under the ERA. For these reasons the
complaint should be dismissed.
SO ORDERED.
LYNN MARTIN
Secretary of Labor
Washington, D. C.
