DATE: April 15, 1996
CASE NO. 92-ERA-10
IN THE MATTER OF
REGINO R. DIAZ-ROBAINAS,
COMPLAINANT,
v.
FLORIDA POWER & LIGHT COMPANY,
RESPONDENT.
BEFORE: THE SECRETARY OF LABOR
ORDER DENYING MOTION FOR RECONSIDERATION
On January 19, 1996, I remanded this case to the
Administrative Law Judge for a determination of damages, after
finding that Complainant, Regino R. Diaz-Robainas (Robainas)
proved that Respondent, Florida Power & Light Company (Florida
Power) violated the employee protection provision of the Energy
Reorganization Act of 1974, as amended (ERA), 42 U.S.C. §
5851 (1988).[1] Florida Power ordered Robainas to submit to a
psychological fitness-for-duty evaluation as a tool to discourage
Robainas from revealing protected concerns to the press or the
Nuclear Regulatory Commission (NRC). When Robainas refused to
comply, Florida Power fired him.
Florida Power requests that I reconsider my conclusion that
the order to submit to a psychological evaluation was an "adverse
employment action." According to Florida Power, that conclusion
is contrary to the Secretary's decision in Mandreger v.
Detroit Edison Co., Case No. 88-ERA-17, Sec. Dec., Mar. 30,
1994, slip op. at 14, and is fundamentally wrong because the
order did not constitute an "ultimate" employment decision.
Florida Power relies on Page v. Bolger, 645 F.2d 227 (4th
Cir. 1981), cert.
[PAGE 2]
denied, 454 U.S. 892 (1981), as additional authority for the
proposition that only an "ultimate" action taken by an employer
may constitute an actionable adverse action.
I disagree and reaffirm my prior decision.[2] While the
court in Page did contrast "ultimate employment
decisions," such as promoting and hiring, with "interlocutory or
mediate decisions," Florida Power has misconstrued that decision.
In making the contrast between ultimate and mediate employment
decisions, the court was criticizing Page's attempt to shift the
focus of the pretext analysis from the reasons for his failure to
be promoted to the reasons for the absence of any black members
on the promotion review committee -- a personnel action that
neither affected Page directly nor constituted the employment
action initially or ultimately challenged by Page. It is also
significant that the court in Page was interpreting the
language of Section 717 of Title VII, i.e., "personnel
actions affecting [covered] employees." 42 U.S.C. § 2000e-
16(a).
The ERA forbids discrimination with respect to the
employee's "compensation, terms, conditions, or privileges of
employment." Robainas v. Florida Power & Light Co., Case
No. 92-ERA-10, Sec. Dec., Jan. 19, 1996, slip op. at 6, quoting
42 U.S.C. § 5851(a) and citing DeFord v. Secretary of
Labor, 700 F.2d 281, 286 (6th Cir. 1983) (Section 5851
prohibits discrimination in practically any job-related fashion).
Actionable discrimination certainly is not limited to economic
harm, as Florida Power implies. Meritor Savings Bank v.
Vinson, 477 U.S. 57, 63 (1986), cited by Varnadore v. Oak
Ridge Nat'l Lab., Case No. 92-CAA-2, Sec. Dec., Feb. 5, 1996,
slip op. at 77 n.93. In this case the psychological evaluation
was made a condition of Robainas' continued employment.
The Secretary previously has recognized that "adverse
action" may include conditions and terms of employment that have
the potential to adversely affect the employee. For example, an
employee may challenge an adverse work evaluation that has the
potential to harm his chances for job security or advancement; he
is not limited to complaining in the future about the loss of a
job or promotion that resulted from the adverse evaluation.
See Boytin v. Pennsylvania Power and Light Co., Case No.
94-ERA-32, Sec. Dec., Oct. 20, 1995, slip op. at 6-7; Bassett
v. Niagara Mohawk Power Corp., Case No. 85-ERA-34, Sec. Dec.,
Sept. 28, 1993, slip op. at 3, citing Yartzoff v. Thomas,
809 F.2d 1371, 1375-76 (9th Cir. 1987); see also Helmstetter
v. Pacific Gas & Elec. Co., Case No. 86-SWD-2, Sec. Dec.,
Sept. 9, 1992, slip op. at 5-6. Accordingly, I reject Florida
Power's position that an employer's order to submit to a
psychological evaluation is not actionable unless it results in
discharge or further adverse action. See also Benoit v. City
of Claremont, No. 94-268-JD,
[PAGE 3]
1995 U.S. Dist. LEXIS 16606, at *21-23 (D. N.H. Nov. 3, 1995)
(entertaining employee's claim of retaliatory order to undergo
psychological exam even though exam resulted in fit-for-duty
conclusion).
In Mandreger I was not faced with the factual pattern
presented in Robainas. I was persuaded that Mandreger's
referral to employee assistance counseling by his employer was
warranted because the testimony and evidence substantiated
Mandreger's aberrant behavior in the workplace. Slip op. at 16,
19-22, 25. In effect, unlike Robainas, Mandreger failed to meet
his ultimate burden to prove that the referral was a retaliatory
adverse action.
Citing Paul v. Federal Nat. Mtg. Assn., 697 F. Supp.
547 (D. D.C. 1988) and Smith v. Texas Dep't of Water
Resources, 818 F.2d 363 (5th Cir. 1987), cert. denied,
484 U.S. 1059 (1988), Florida Power also argues that Robainas was
required to "obey now/grieve later." As indicated in my January
19 decision, Robainas is distinguishable from these cases
since the refusal at issue did not involve a work assignment or
particular job function or activity. Slip op. at 8. Further,
Robainas' refusal was not disorderly or disruptive of the
workplace.
Unlike Paul, in which the court went on to find
insufficient evidence to support a causal connection between the
protected activity and the termination, the evidence of
retaliatory intent in Robainas is overwhelming.
See slip op. at 15-20. Florida Power's explanation for
the order was a pretext for silencing Robainas' "increasingly
adamant" protected complaints, and his refusal to comply with the
order, resulting in termination, was "the culmination of [those]
persistent complaints." Armstrong v. Index Journal Co.,
647 F.2d 441, 448 (4th Cir. 1981) (employer violated Title VII
when it fired employee who refused to handle account); cf.
Bourque v. Powell Elec. Mfg. Co., 617 F.2d 61, 66 (5th Cir.
1980) (distinguishing single act from course of retaliatory
action).
Florida Power also refers to Yates v. Manale, 377
F.2d 888 (5th Cir. 1967), cert. denied, 390 U.S. 943
(1968), in which the court summarily held that an employer was
justified in discharging for insubordination an employee who
refused to submit to a requested examination. The decision in
the Yates case makes it clear that the court believed that
the employee actually was mentally incompetent. The issue of
retaliatory motive was not raised.
In Marquart v. McDonnell Douglas Corp., 859 F. Supp.
366 (E. D. Mo. 1994), aff'd, 56 F.3d 69 (8th Cir. 1995),
an employer terminated the plaintiff employee because she failed
to comply with its order to obtain psychiatric diagnosis and
treatment. However, the facts of that case showed that "[t]ime
and again,
[PAGE 4]
plaintiff displayed abnormal behavior at work." 859 F. Supp. at
369. Based on her irrational and bizarre behavior, the court
found that the employer's request that she submit herself for
evaluation and treatment was reasonable. Her termination for
insubordination of such an order was likewise reasonable,
legitimate, and non-pretextual, with "no connection whatsoever"
with her protected claim under Title VII.
The facts in Marquart, as well as Mandreger,
are in sharp contrast to those in Robainas. Florida
Power's order that Robainas undergo a psychological evaluation
was unreasonable, illegitimate, and retaliatory, and culminated
in Robainas being fired on pretextual grounds. The record does
not substantiate that Florida Power observed, or that Robainas
engaged in, abnormal or aberrant behavior suggestive of any risk
to public health and safety. See 10 C.F.R. §
73.56(b)(2)(iii) (1995); Robainas, slip op. at 17-19.[3]
Thus, this decision does not undermine the employer's duty to
participate in the NRC's behavioral observation program and to
refer or remove an employee whose fitness it questions.
See 10 C.F.R. § 26.27(b)(1).
SO ORDERED.
ROBERT B. REICH
Secretary of Labor
Washington, D.C.
[ENDNOTES]
[1] The amendments to the ERA, Pub. L. No. 102-486, 106 Stat.
2776 (Oct. 24, 1992), do not apply to this case in which the
complaint was filed prior to the effective date of the
amendments.
[2] Because I deny Florida Power's motion substantively, I do
not reach Robainas' arguments that the motion should be denied on
procedural grounds.
[3] Florida Power explains that the NRC requires:
Behavioral observation, conducted by supervisors and
management, designed to detect individual behavioral changes
which, if left unattended, could lead to acts detrimental to
the public health and safety.
10 C.F.R. § 73.56(b)(2)(iii).
