DATE: December 1, 1994
CASE NO. 92-ERA-37
IN THE MATTER OF
GREGORY A. SPRAGUE,
COMPLAINANT,
v.
AMERICAN NUCLEAR RESOURCES, INC.,
RESPONDENT.
BEFORE: THE SECRETARY OF LABOR
DECISION AND ORDER
Gregory Sprague complained that Respondent American Nuclear
Resources, Inc. (ANR) violated the employee protection provision
of the Energy Reorganization Act of 1974 (ERA), 42 U.S.C.
§ 5851 (1988), [1] when it terminated his employment. In a
Recommended Decision and Order (R.D. and O.), the Administrative
Law Judge (ALJ) found that the reasons ANR gave for termination
were not credible and that ANR violated the ERA. I agree with
the ALJ's recommendation and find that Sprague also prevails
under an alternative analysis.
I. Preliminary Issue
ANR has moved to strike Complainant's brief as untimely
filed. Resp. Reply Br. at 3. The March 18, 1993, briefing order
in this case provided that both parties submit briefs within 30
days of receipt of the order. Return receipt cards show that
Sprague received a copy of the briefing order on March 24, 1993,
and that his counsel received a copy the next day. Accordingly,
Sprague's brief was due within 30 days of March 25, or on
April 24, 1993. [2] Sprague served a copy of his brief on June
9, 1993, without requesting either an enlargement of time or
leave to file the brief out of time.
Since Sprague has provided no explanation for the lateness
[PAGE 2]
of his brief, ANR's motion to strike the brief is granted.
Complainant's brief to the Secretary will be placed with the
record in this case but it has not been considered in reaching
this decision.
II. Facts
The entire record has been reviewed. I find that the ALJ's
findings of fact, R.D. and O. at 2-6, are well based in the
record and I adopt them. I repeat here only the facts essential
to understanding the discussion of the law.
ANR, a contractor at the D.C. Cook Nuclear Plant, hired
Sprague in January 1992 as a tool accountability technician.
T. 14, 37. Although the job was intermittent, ANR informed
Sprague that it was expected to continue through September 1992.
T. 16.
On March 19, 1992, Sprague volunteered to stay in the
containment area of the plant after some radiation had escaped
and become airborne. T. 51. Sprague complained to his
supervisor, Georgina Emanuel, that the radiation protection
personnel (RPs) did not know what they were doing. T. 52.
Emanuel testified that Sprague was yelling at the time, T. 52,
but Sprague denied it. T. 119.
The same day, Emanuel determined that Sprague was one of
four tool accountability employees to be laid off. T. 54.
Emanuel initially intended to recall all four employees when the
work picked up. Id.
Sprague reported to work the next day for a required "full
body count" of his radiation contamination. T. 16. It took a
few minutes to do the count of the other three employees who were
laid off, but Sprague's count took two hours because his
radiation level was abnormally high. T. 17. Emanuel said that
Sprague yelled at the RPs for about one hour during the process.
T. 59. Sprague testified that he became upset with RPs but did
not argue with them. T. 120-122.
According to Emanuel, all four employees received a copy of
their exposure reports. T. 60. When Sprague asked for a copy of
the results of the body count test as well, [3] Emanuel denied
it because she believed that employees never receive them. T.
88-89. The RPs also denied Sprague's request for a copy. T. 17,
30, 123.
Emanuel testified that Sprague's behavior with the RPs
convinced her to terminate his employment permanently. T. 82.
Sprague's final lay off notice stated that he would not be
rehired because of "poor work quality and bad attitude," T. 61-
63; RX 1, but Sprague did not see it and no one informed him that
his lay off was permanent. T. 21. Later that day, Sprague spoke
with a representative of the Nuclear Regulatory Commission (NRC),
[PAGE 3]
asked whether he was entitled to a copy of the results of the
full body count, and was told he would receive it soon. T. 17.
A few weeks later Sprague inquired about being recalled
and the Personnel Department told him that ANR would no longer
need his services. T. 22. Sprague filed this complaint alleging
that ANR fired him for carrying out the purposes of the ERA when
he asked for the results of the body count and also spoke with
the NRC representative about it.
III. Merits
The ERA's employee protection provision proscribes
discharging an employee because he has "assisted or participated
or is about to assist or participate in any manner" in a
proceeding brought under the ERA. 42 U.S.C. § 5851(a)(3).
To make a prima facie case, the complainant must show that he
engaged in protected activity, that he was subjected to adverse
action, and that respondent was aware of the protected activity
when it took the adverse action. Complainant must also raise the
inference that the protected activity was the likely reason for
the adverse action. Dartey v. Zack Co. of Chicago, Case
No. 82-ERA-2, Sec. Ord., Apr. 25, 1983, slip op. at 8.
There is no dispute that Sprague's contact with the NRC
representative regarding his exposure to radiation was protected
under the ERA. Resp. Br. at 4. ANR contends, however,
that the ALJ erred in finding that Sprague's protected activities
included asking the RPs questions and requesting from them a copy
of the results of the body count. Resp. Br. at 8-11. Although
the RPs worked for a contractor other than ANR, I find that
Sprague's questions to them constituted protected internal
activities, since the RPs were responsible for Sprague's
radiological safety as an ANR employee.
The majority of courts agree that internal safety complaints
are protected by the ERA. Jones v. Tennessee Valley
Authority, 948 F.2d 258, 264 (6th Cir. 1991); [4] Kansas
Gas & Elec. Co. v. Brock, 780 F.2d 1505, 1513 (10th Cir.
1985), cert. denied, 478 U.S. 1011 (1986); Mackowiak v.
University Nuclear Systems, Inc., 735 F.2d 1159, 1163 (9th
Cir. 1984). But see, Brown & Root, Inc. v.
Donovan, 747 F.2d 1029 (5th Cir. 1984) (ERA protects only
complaints to external governmental entities).
In keeping with the "broad, remedial purpose of protecting
workers from retaliation based on concerns for safety and
quality," Mackowiak, 735 F.2d at 1163, I have held that an
employee's "questioning of the safety procedure [a foreman] used
was tantamount to a complaint that the correct safety procedure
was not being observed" and thus constituted protected activity
under the ERA. Nichols v. Bechtel Construction, Inc.,,
Case No. 87-ERA-0044, Dec. and Ord. of Remand, Oct. 26, 1992,
slip op. at 10-11, appeal of final decision docketed, Bechtel
Constr. Co. v.
[PAGE 4]
Reich, No. 94-4067 (11th Cir. Jan. 11, 1994). See
also, Dysert v. Westinghouse Elec. Corp., Case No. 86-
ERA-39, Final Dec. and Ord., Oct. 30, 1991, slip op. at 1-3
(employee's complaints to team leader about procedures used in
testing instruments constituted protected internal complaint).
For example, in Lockert v. U.S. Dep't of Labor, 867 F.2d
513 (9th Cir. 1989), the court affirmed the Secretary's finding
that protected activity included an employee's seeking
information from his employer in certain circumstances.
Sprague's repeated requests to the RP personnel about what
was happening during the two hour process of taking his whole
body count was similar to the questioning in Nichols. As
the ALJ reasoned, R.D. and O. at 9:
The record in this case clearly supports a finding that
the Complainant requested a full body count report from
the [RP's] out of concern for his safety. Moreover, I
find that his concern about radiation levels was a
valid one, as his readings were abnormally high. . . .
It would disserve the protective purposes of the Act if
an employer was free to fire an employee for requesting
information concerning the amount of radiation to which
he had been exposed, or, in this case because he asked
for the information in a manner deemed unacceptable to
the Respondent.
Keeping in mind that I should avoid a "narrow,
hypertechnical reading" of the ERA's employee protection
provision, which would "do little to effect the statute's aim of
protection," Kansas Gas & Elec., 780 F.2d at 1512, I agree
with the ALJ that Sprague's "questioning of the [RPs] was a
legitimate health and safety concern which afforded him the
protection of the statute." R.D. and O. at 9. [5]
There is no dispute that Sprague's discharge was an adverse
action under the ERA and that Emanuel was aware of Sprague's
questioning the RPs when she decided that Sprague would not be
recalled after lay off.
The final element of a prima facie case is raising the
inference that the respondent took the adverse action because of
the complainant's protected activities. Dartey, slip op.
at 8. Emanuel testified that she decided that Sprague's lay off
should be permanent because of the way he questioned the RPs. T.
82. I therefore find that Sprague established causation and a
prima facie case of an ERA violation.
Respondent had the burden of articulating a legitimate
reason for the discharge, Dartey, slip op. at 8, and ANR
did so by stating that Sprague should not be rehired because of
"poor work quality and bad attitude." RX 1.
As Complainant, Sprague had the burden of showing that the
[PAGE 5]
reasons ANR gave for the discharge were a pretext for
discrimination. Dartey, slip op. at 8. At all times,
Sprague had the burden of establishing that the real reason for
the discharge was discriminatory. Thomas v. Arizona Public
Service Co., Case No. 89-ERA-19, Final Dec. and Order, Sept.
17, 1993, slip op. at 20; St. Mary's Honor Center v.
Hicks, 125 L.Ed. 2d 407, 418-419 (1993).
ANR argues that even if Sprague engaged in a
protected activity when he spoke with the RPs, nevertheless it
was lawful to discharge him "for the disruptive manner in which
he conducted that activity." Resp. Reply Br. at 1-2. I agree
that even when an employee has engaged in protected activities,
employers legitimately may discharge for insubordinate behavior,
work refusal, and disruption. See, e.g., Dunham
v. Brock, 794 F.2d 1037, 1041 (5th Cir. 1986) ("[a]busive and
profane language coupled with defiant conduct or demeanor justify
an employee's discharge on the grounds of insubordination" even
though the employee had also engaged in protected activity);
Abu-Hjeli v. Potomac Elec. Power Co., Case No. 89-WPC-01,
Final Dec. and Order, Sept. 24, 1993, slip op. at 15-18 (employer
legitimately discharged employee who refused work and whose
shouting and explosive tantrums disturbed the work of others);
Couty v. Arkansas Power & Light Co., Case No. 87-ERA-10,
Final Dec. and Order on Remand, Feb. 13, 1992, slip op. at 2 (no
violation where Complainant engaged in abusive, disruptive,
profane, and threatening behavior towards supervisors); Hale
v. Baldwin Associates, Case No. 85-ERA-37, Final Dec. and
Order, Sep. 29, 1989, adopting ALJ Recommended Dec. and Order,
Oct. 20, 1986, slip op. at 26 (no statutory violation where
employee discharged for not accepting assignments and for
disrupting the work place).
As the ALJ stated, the Secretary has recognized that it is
normal for employees engaging in protected activities to exhibit
impulsive behavior and that such employees may not be disciplined
for insubordination so long as their behavior is lawful and their
"conduct is not indefensible in its context." R.D. and O. at 9-
10, citing Kenneway v. Matlock, Inc., Case No. 88-STA-20,
Sec. Dec. and Order, June 15, 1989, slip op. at 6. In this case,
the ALJ correctly balanced Sprague's purported loud behavior
against his right to express a legitimate safety concern about
the amount of radiation to which he had been exposed. Like the
ALJ, I find that Sprague's behavior did not impede the orderly
operation of ANR's business activities. R.D. and O. at 10.
Sprague did not refuse any assignments or disrupt the work of
others. Where, as here, the complainant's alleged misconduct was
"nothing more than the result and manifestation of his protected
activity," the conduct does not remove the complainant from
statutory protection. Dodd v. Polysar Latex, Case No. 88-
SWD-00004, Dec.
[PAGE 6]
and Order, Oct. 6, 1994, slip op. at 15-17.
I further agree with the ALJ's assessment that the stated
reasons for firing Sprague, poor work quality and bad attitude,
RX 1, are not credible and were a pretext for discrimination. [6]
SeeDodd, and cases cited therein at slip op at
15-17. R.D. and O. at 11. I therefore affirm the ALJ's
conclusion that Sprague persuaded that ANR fired him because he
engaged in protected activities.
Even assuming that Sprague's attitude and purported loudness
were legitimate bases to fire him, I find that ANR also had an
impermissible reason, Sprague's insisting on obtaining more
information about the radiation hazard to which he was exposed.
When the employer's adverse action against the employee was
motivated by both prohibited and legitimate reasons, the dual
motive doctrine applies. Dartey, slip op. at 8-9;
seeMackowiak, 735 F.2d at 1163; Mt. Healthy
City School District Board of Education v. Doyle, 429 U.S.
274, 287 (1977). In such a case, the employer has the burden to
show by a preponderance of the evidence that it would have taken
the same action concerning the employee even in the absence of
the protected conduct. Dartey, slip op. at 9;
Mackowiak, 735 F.2d at 1164; Mt. Healthy, 429 U.S.
at 287; Price Waterhouse v. Hopkins, 490 U.S. 228, 252
(1989) (plurality opinion). The employer bears the risk
that the influence of legal and illegal motives cannot be
separated. Mackowiak, 735 F.2d at 1164; Guttman v.
Passaic Valley Sewerage Comm'rs, Case No. 85-WPC-2, Final
Dec. and Order, Mar. 13, 1992, slip op. at 19, aff'd sub
nom.Passaic Valley Sewerage Comm'rs v. United States
Dept. of Labor, 992 F.2d 474 (3d Cir. 1993).
Here, the allegedly loud behavior occurred while Sprague was
asserting his need for more information regarding radiation
exposure and cannot be separated from the protected activity. I
find that ANR has not sustained the burden of showing that it
would have fired Sprague even if he had not engaged in protected
activities. Therefore Complainant prevails under the dual motive
analysis as well.
IV. The Remedy
The ALJ ordered reinstatement and payment of back pay from
the date of lay off until reinstatement. R.D. and O. at 11. [7]
He further ordered that back pay is to be computed based on the
average hours worked by tool accountability technicians. [8]
Id. I find that back pay shall be computed from March
20, 1992 through the date of reinstatement to a tool
accountability technician or comparable position (or the date of
declination of an offer of reinstatement). If ANR demonstrates
that there are no tool accountability techinician or any
comparable positions, back pay shall end on the date the tool
accountability technician position ended. See R.D. and O.
at 11. I agree with the ALJ
[PAGE 7]
that back pay shall be based on the average number of hours
worked by the tool accountability technicians.
The ALJ did not order payment of interest on the back pay
award, although the Secretary consistently has required it.
SeeBlackburn v. Metric Constructors, Inc., Case
No. 86-ERA-4, Dec. and Order on Damages, Oct. 30, 1991, slip op.
at 18-19, aff'd in relevant part and rev'd on other
grounds, 982 F.2d 125 (4th Cir. 1992). Accordingly,
Respondent shall pay interest on the back pay at the rate
specified in 26 U.S.C. § 6621 (interest on underpayment of
Federal income tax) until the date of compliance with this Order.
The ALJ correctly noted that the back pay award is to be
offset by Sprague's interim earnings, but not by unemployment
compensation he received. The tool accountability technicians'
work schedule was periodic; employees worked for a period of
weeks, followed by some weeks of lay off. T. 16. Sprague
testified that during a lay off from ANR he would have been able
to do the "odds and ends" job about which he testified. T. 23-
24. The earnings from any interim positions that Sprague would
have been able to hold even if ANR had not discriminated against
him should not be deducted from the back pay award. SeeMarcus v. U.S. Environmental Protection Agency, Case No.
92-TSC-5, Order of Remand, Sept. 27, 1994, slip op. at 2-3.
Therefore, the $550 Sprague earned doing odd jobs should not be
deducted from the back pay.
ORDER
1. Respondent shall make Complainant whole for any losses he
suffered as a result of the discriminatory lay off. Respondent
shall pay Complainant back pay from the date of lay off
(March 20, 1992), until the date of reinstatement to his former
or a comparable position (or until declination of the offer).
Back pay is to be computed based on the average hours worked by
tool accountability technicians for the period of time the
Complainant would have been employed but for the unlawful lay
off. If there are no tool accountability or comparable
positions, back pay is to be computed to the date on which the
tool accountability technician position ceased to exist.
Respondent shall deduct from the back pay any interim earnings
that Complainant would not have earned had he remained employed
by Respondent. Unemployment compensation Complainant received
shall not be deducted from the back pay award. Respondent shall
pay interest on the back pay at the rate specified in 26 U.S.C.
§ 6621, through the date of Compliance with this order. If
the parties cannot agree on the amount of back pay and interest,
they shall so inform the ALJ, who will resolve the issue in a
Supplemental Recommended Decision and Order.
[PAGE 8]
2. Any adverse reasons for termination stated in the
Complainant's personnel file shall be expunged and such reasons
shall not be used against Complainant in the event he applies for
any future employment opportunities with Respondent, or in
providing a reference concerning Complainant to any other
potential employers.
3. Respondent shall reimburse Complainant's attorney fee and
the costs incurred in bringing and prosecuting the complaint.
Complainant's counsel shall, within 30 days of the date of this
Decision and Order, submit an itemized fee petition to the
Administrative Law Judge and provide a copy to Respondent.
Respondent shall have 30 days after receipt of Complainant's
petition to submit any objection thereto.
4. The ALJ shall issue a Supplemental Recommended Decision
and Order establishing the amount of the attorney fee and costs,
and if necessary, the amount of back pay and interest.
SO ORDERED.
ROBERT B. REICH
Secretary of Labor
Washington, D.C.
[ENDNOTES]
[1] The amendments to the ERA contained in the National Energy
Policy Act of 1992, Pub. L. No. 102-486, 106 Stat. 2776, do not
apply to this case in which the complaint was filed prior to the
effective date of the Act.
[2] ANR timely served its brief on April 23, 1993.
[3] The exposure report is in an easily readable form, whereas
the results of the body count are not. T. 88.
[4] The decisions of the Sixth Circuit are controlling in this
case, which arose in Michigan. I disagree with ANR (Resp.
Br. at 9) that in Deford v. Secretary of Labor, 700 F.2d
281 (6th Cir. 1983), the Sixth Circuit ruled that participation
in an NRC investigation or enforcement proceeding is the only
activity protected under the ERA. In that case, the respondent
"conceded that DeFord participated in an NRC proceeding within
the purview of the Act." 700 F.2d at 286. In any event, the
Court more recently has indicated that internal complaints are
protected under the ERA. Jones, 948 F.2d at 264.
[5] ANR argues that Sprague's complaint did not include an
allegation that the information request to the RPs was a
protected activity. Resp. Br. at 5. Sprague alleged that he
asked for a copy of the results of the whole body count
immediately after it was completed, and later asked the NRC for a
copy. ALJX 1 Par. 4. He further alleged that, "[i]n requesting
information about his body count, Complainant was acting under
his rights available by law. He was also entitled to contact the
Nuclear Regulatory Commission." ALJX 1 Par. 7. I find that the
complaint clearly alleged that Sprague was terminated for
requesting safety information internally as well as from the NRC.
Similarly, I do not credit ANR's statement, Resp. Br. at 5-6,
that it did not call any of the RPs to testify because it was
unaware that Sprague contended that his dealing with the RPs was
a protected activity. I also reject the argument that the ALJ
could not consider Sprague's request for information from the RPs
because the allegation was time barred and he failed to exhaust
his administrative remedies concerning it. See Resp. Br.
at 7-8.
[6] I affirm the ALJ's finding that the sole example Emanuel
gave about the allegedly poor quality of Sprague's work in fact
was a misunderstanding on Sprague's part that did not merit
disciplinary action. R.D. and O. at 11.
[7] Sprague testified that he expected his position to continue
until September 1992. T. 16. ANR conceded that had
Sprague remained employed by ANR, he would have been laid off
approximately in October 1992 when the plant went back on line.
T. 67-68. The ALJ also ordered that if the tool accountability
technician position no longer exists, back pay would terminate on
the date the position was eliminated. R.D. and O. at 11.
[8] The parties stipulated the average hours worked from March
20 through September 6, 1992. T. 69.
