DATE: May 31, 1995
CASE NO: 92-ERA-33
IN THE MATTER OF
LONNIE KETTL,
COMPLAINANT,
v.
GULF STATES UTILITIES CO.,
RESPONDENT.
BEFORE: THE SECRETARY OF LABOR
FINAL DECISION AND ORDER
This proceeding arises under the employee protection
provision of the Energy Reorganization Act of 1974, 42 U.S.C.
§ 5851 (1988) (ERA). [1] Complainant Lonnie Kettl alleges
that he was denied advancement and training by Gulf States
Utilities Company (GSU) in retaliation for safety related
complaints made both internally to management and externally to
the Nuclear Regulatory Commission (NRC). On December 30, 1992,
the Administrative Law Judge (ALJ) issued a Recommended Decision
and Order (R.D. and O.) that the complaint be dismissed. The ALJ
thoroughly summarized the testimony of the witnesses in the R.D.
and O. at 3-10, but made few findings of fact. After a review of
the entire record, I agree with the ALJ's recommended decision to
dismiss the case, but make appropriate corrections to the
analysis of the case, as set out below.
BACKGROUND
Findings of Fact
Complainant Kettl worked at GSU for 19 years and was working
as a Licensed Control Room Operator (LCO) at the time of the
hearing. T. 236. Kettl worked as an LCO for approximately six
years and wanted to be upgraded to a Senior Reactor Operator
[PAGE 2]
(SRO). As a SRO, Kettl would receive more money, more benefits
and a chance to become a manager at GSU. CX 23 at 1. [2]
Kettl had to obtain training and pass examinations offered
by the NRC and GSU in order to become a SRO. GSU admitted that
its' standards to become a SRO were more stringent than those
required by the NRC. T. 333. Counsel for Complainant stipulated
that GSU and the NRC had different standards. T. 337.
GSU had a system in place for selecting individuals for the
SRO training. T. 129-32, 293-97, 315-16. First, GSU determined
how many slots would be filled based upon staffing needs and
budgetary considerations. The shift supervisors were then asked
to submit the names of LCOs who they felt were qualified to be
upgraded. The employees with the most recommendations were
reviewed to verify that they had all of the necessary
qualifications and experience. The most qualified employee(s)
were placed into the available training slots.
Kettl believed that the SRO upgrade and training should be
based on seniority, rather than subjective selection by
management. T. 277. However, Philip Graham, the Plant Manager,
credibly testified that a SRO needed to demonstrate good ability
to operate the controls, good judgment, decision making abilities
and leadership qualities. These factors are subjective and can
not be determined solely based on seniority. T. 309-311, R.D.
and O. at 8. Graham only used seniority as a factor if two
candidates were equal in all other respects. T. 290-92.
GSU conducted two or three SRO training sessions per year.
Kettl was first selected for SRO training on January 7, 1991.
Kettl was removed from the January training after he failed the
"control and command" portion of the simulator exercise. After
Kettl was removed from the January, 1991 training program, he was
told that he would need remedial training in order to pass a
future exam. Kettl alleged that he was promised a space in the
next training session. T. 267.
With regard to Kettl's performance in GSU's training
program, Gary DeGraw, an evaluator in the simulator exercise,
testified that Kettl met NRC standards but did not meet GSU's
stricter standards. T. 331 et seq., CX 19, p. 31, 32.
James McGee, a contract instructor for GSU, testified that Kettl
had problems with consistency. T. 335-36. Kettl told McGee that
he had contacted the NRC within "the last few weeks," but McGee
did not know that Kettl had contacted the NRC at the time of
Kettl's exam. T. 339.
Shortly after Kettl was not selected for the April, 1991 SRO
training, Kettl saw Vice President J.C. Deddins at the plant.
Kettl told Deddins that he was removed from the upgrade program
in January and was not selected for the April program as
promised. T. 266. That conversation prompted a meeting, later
[PAGE 3]
that day, between Kettl and several upper managers, including
Philip Graham, Plant Manager, Joe Schippert and Joe Venable,
Operations Supervisors, and James Boyle, Kettl's Shift
Supervisor. T. 266. Kettl cut that meeting short, but when it
continued, on another day, he covertly tape recorded the meeting.
T. 256-57. The managers learned of Kettl's tape recording
because Kettl told several employees, including Boyle, about the
tape recording.
On June 20, 1991, Joe Venable wrote a warning letter to
Kettl admonishing his negative behavior in general and
specifically reprimanding him for tape recording the meeting.
CX 10. Venable believed that Kettl became so distracted by the
fact that he was not chosen for the SRO training program that he
developed a poor attitude toward upper management. T. 41, 51-53.
Venable told Kettl that he would need to change, "to roll with
the flow." T. 262-63. Kettl felt this meant he was supposed to
"stop identifying problems...." However, I find, based upon the
entire record, that Venable meant that Kettl would have to get
along better if he hoped to be upgraded to a SRO and management.
The relevant SRO training sessions were in January, April
and July of 1991, and February, 1992. Kettl was not selected to
participate in any of the training sessions subsequent to his
failure to complete the January, 1991 training. At the time of
the most recent training selection, February 1992, three
individuals were initially chosen to participate in the training.
GSU did not deviate from the normal SRO selection process in
choosing the February participants.
Of all the names submitted for the February, 1992 training,
Terry Wymore and Todd Brumfield received unanimous
recommendations from the shift supervisors. T. 132. A third
employee, R.C. McDaniel, received four or five out of six
possible recommendations, although he did not have sufficient
experience to become a SRO. T. 132. Kettl received only two
recommendations. T. 132. Only Wymore and Brumfield were asked
to join the SRO training in February, 1992. T. 132. Terry
Wymore also made safety related complaints to management and the
NRC throughout his tenure with GSU. James Boyle, Kettl's Shift Supervisor, testified that he
recommended Kettl for the SRO training three times. T. 164.
However, Boyle did not recommend Kettl for the February, 1992,
program because Boyle knew of Kettl's conflicts with upper
management, particularly over the tape recorded meeting. T. 165
et seq. Kettl made safety related complaints to the NRC in 1989 and
1992. [3] The exact timing of the 1992 complaints is not clear
from the record. T. 268-69. However, in Kettl's written
complaint to the Wage and Hour Division of the Department of
[PAGE 4]
Labor, he claims that a particular safety concern was "discovered
on 1/31/92 and submitted on 2/3/92." CX 23 at 1. Based upon
this evidence I find that Kettl contacted the NRC on February 3,
1992 in connection with the present complaint.
However, GSU knew that Kettl had contacted the NRC in 1989.
Additionally, I find that GSU knew or suspected that Kettl made
safety related complaints to the NRC in 1992. James Boyle,
Kettl's Shift Supervisor testified that he knew generally that
Kettl had spoken to the NRC about safety related matters,
although Boyle did not know the timing of said complaints.
T. 182. While Joe Venable, an Operations Supervisor, claimed
that he had no knowledge of Kettl making complaints to the NRC
(T. 133), Philip Graham, Plant Manager, recalled rumors about
Kettl contacting the NRC around February, 1992. Graham further
stated that the rumors were never confirmed and that it did not
matter anyway, because contacting the NRC was encouraged. T.
297, 307. Kettl believed that GSU must have known that he made
complaints to the NRC due to the specific nature of his
complaints. T. 255.
DISCUSSION
Procedural Matters
A briefing schedule was issued which allowed for briefs and
reply briefs, the last of which was due on or about April 12,
1993. Kettl's counsel filed a brief on his behalf. Kettl,
apparently without benefit of counsel, attempted to file several
additional documents on March 11, 1994. Such documents were not
timely filed. Complainant did not demonstrate a compelling
reason why such documents should be exempt from the previously
imposed time standards and therefore the documents are
inadmissible. If Complainant has additional complaints against
GSU they must be filed separately.
Internal Complaints
Kettl made numerous internal complaints to the management of
GSU throughout his employment. Since this case arises in the
Fifth Circuit I am bound to follow the Court's holding in
Brown & Root, Inc. v. Donovan, 747 F.2d 1029 (5th Cir.
1984). The Court in Brown & Root held that the filing of
an internal quality control report was not protected under the
ERA, 42 U.S.C.
§ 5851(a)(3). However, the Brown & Root case was
legislatively overturned, effective October 24, 1992, thus
rendering this issue moot in all cases filed after the date of
the amendment. 42 U.S.C. § 5851(a)(1)(A).
Timeliness of Kettl's Complaint
An employee who believes that he has been discharged or
otherwise discriminated against in violation of 42 U.S.C.
§ 5851(a) must file a complaint with the Secretary of Labor
[PAGE 5]
within 30 days after such discriminatory act. 42 U.S.C.
§ 5851(b). [4] Kettl filed his complaint with the
Secretary of Labor on March 3, 1992. The time period for
administrative filings begins running on the date that the
employee is given definite notice of the challenged
employment decision. Delaware State College v. Ricks, 449
U.S. 250, 101 S.Ct. 498, 66 L.Ed.2d 431 (1980) (emphasis added).
Kettl was notified that he would not be selected for the most
recent SRO upgrade program on February 3, 1992. I find that
Kettl's claim was timely filed with regard to the most recent
allegations of discrimination.
Kettl also alleges that he was removed from the January,
1991 training and not selected for the April and July, 1991 SRO
training sessions because of safety related complaints. All
three of these alleged discriminatory acts fall outside the 30
day filing period. Therefore, these claims are untimely unless
Kettl can show that the continuing violation theory is
applicable, or that the time limit was equitably tolled.
Kettl was removed from the January, 1991 training because he
failed the command and control portion of the simulator exercise
and therefore, needed remedial training before he could pass the
exam. Kettl did not have an opportunity to take the necessary remedial training before the April training session. Kettl
claimed that regardless of the remedial training he was promised
a slot in the "next" training session by Joe Venable and Bill
Trudell. Venable admitted telling Kettl that he would probably
be able to get into the next class, but Kettl's abilities were
not upgraded in time. T. 152. As for the July 1991 training
session, I find no evidence of safety related complaints by Kettl
to the NRC, other than those made in 1989 and 1993. Kettl was
selected for the SRO upgrade program after making the 1989
complaint and the 1993 complaint did not occur until after his
non-selection for the April and July, 1991 training sessions.
Based upon all of evidence, I find that Kettl's allegations of
discriminatory removal from the January training and
discriminatory non-selection for the April and July training were
not timely filed. There is simply no evidence in the record to
toll the filing period pursuant to either equitable tolling or, a
continuing violation theory.
Burdens of Proof
Under the burdens of proof and production in "whistleblower"
proceedings, Complainant must make a prima facie showing
that protected activity motivated Respondent's decision to take
an adverse employment action. Respondent may rebut this showing
by producing evidence that the adverse action was motivated by a
legitimate, nondiscriminatory reason. Complainant must then
establish that the reason proffered by Respondent was pretextual.
At all times, Complainant has the burden of establishing that the
[PAGE 6]
real reason for his discharge was discriminatory. St. Mary's
Honor Center v. Hicks, 113 S.Ct. 2742 (1993); Thomas v.
Arizona Public Service Co., Case No. 89-ERA-19, Sec. Dec.,
Sept. 17, 1993, slip op. at 20.
Since GSU presented evidence to rebut Kettl's prima
facie case of an ERA violation, "the answer to the question
whether [Complainant] presented a prima facie case is no
longer particularly useful." Carroll, slip op. at 10. As
pointed out in the Carroll decision, logic dictates that
"[i]f a complainant has not prevailed by a preponderance of the
evidence on the ultimate question of liability it matters not at
all whether he presented a prima facie case."
Carroll, slip op. at 11. While I find that Kettl did
engage in protected activity when he made safety related
complaints to the NRC, he has not carried his ultimate burden of
proof to show that he was denied SRO training for that reason.
In 1989 Kettl made safety related complaints to the NRC.
Nevertheless, Kettl was chosen for the January, 1991, SRO
training program. Additionally, Terry Wymore, who began working
at GSU after Kettl, made internal and external complaints and was
chosen for the February, 1992 SRO upgrade program. It is not
credible that GSU would seek to promote Kettl after making one
complaint to the NRC and then refuse to promote him for making a
second similar complaint. Further, it is not credible that GSU
would promote one whistleblower, Wymore, over another, Kettl, for
discriminatory reasons.
The problems between Kettl and upper management began after
he did not successfully complete the upgrade program in January,
1991. Kettl believed that he had been promised a slot in the
next training session (April, 1991), and when he was not selected
he became upset. This led Kettl to ask Vice President Deddins to
intervene, which in turn led Kettl to secretly tape record a
meeting with upper management. Venable testified that the tape
recording incident was upsetting and caused them to look at Kettl
differently. Once an employee became an SRO, they usually became
part of the management team. The upper management at GSU did not
want a member of the team who would secretly tape conversations
in hopes of using it against them in the future. Boyle, who was
Kettl's shift supervisor, admitted that he did not submit Kettl's
name for the February, 1992, SRO training. Boyle knew that upper
management was displeased with Kettl's current attitude.
In February, 1992, GSU did not deviate from the normal SRO
selection process. Kettl only received two recommendations from
Shift Supervisors, while the participants were unanimously
recommended. All of GSU's managers testified regarding the
selection process for the SRO upgrade training, which involved
several steps. First recommendations were accepted from shift
[PAGE 7]
supervisors, then the candidates' qualifications were reviewed
and verified. There was no evidence presented concerning how
long the selection process took, but from all descriptions it
took more than one day. Kettl contacted the NRC on February 3, 1992, the same day
that GSU announced the participants for the February training
program. Because the selection process took more than one day,
it does not matter whether Kettl contacted the NRC prior to or
subsequent to GSU's announcement regarding the training session.
Either way, the decision not to include Kettl in the February
training was made prior to his most recent protected activity.
Therefore, GSU could not possibly have discriminated against
Kettle for that reason. Further, GSU presented credible
testimony as to why Kettl was bypassed for the upgrade training.
Therefore, I find that GSU articulated legitimate, non-
discriminatory reasons for not selecting Kettl for the February,
1992, training session. I further find that Kettl did not prove
by a preponderance of the evidence, that GSU's reasons were
pretextual and that he was not promoted because he engaged in
protected activities. [5]
CONCLUSION
For the forgoing reasons, I find that Kettl was not denied
entry into the SRO upgrade program due to his protected activity and in violation of the ERA. The recommended decision of the ALJ
is accepted and the complaint is dismissed.
SO ORDERED.
ROBERT B. REICH
Secretary of Labor
Washington, D.C.
[ENDNOTES]
[1]
The Amendments to the ERA in the National Energy Policy Act of
1992, Pub. L. No. 102-486, 106 Stat. 2776 (Oct. 24, 1992), do not
apply to this case because the complaint was filed prior to the
effective date of the Act. For simplicity's sake I will continue
to refer to the provision as codified in 1988.
[2]
References in this decision to CX refer to exhibits submitted by
the Complainant. Neither the ALJ or the Respondent submitted any
exhibits.
[3]
Complainant also made numerous internal complaints which are
addressed on page eight of this decision.
[4]
The ERA was amended to allow claimants 180 days after an
allegedly discriminatory act to file a complaint with the
Department of Labor for all cases filed after October 24, 1992.
As previously noted, Kettl's complaint pre-dates the amendment.
[5] Kettl was upset that he did not pass the January, 1991 SRO
training which in turn led to a deterioration in his relationship
with management. I find that Kettl is a good worker and has
maintained good relations with his co-workers and foreman. This
leads me to believe that Kettl could repair the damage in
relations with upper management and therefore be chosen for SRO
training at a date in the near future.
