DATE: June 29, 1995
CASE NO. 93-ERA-31
IN THE MATTER OF
RICHARD LASSIN,
COMPLAINANT,
v.
MICHIGAN STATE UNIVERSITY,
RESPONDENT.
BEFORE: THE SECRETARY OF LABOR
FINAL DECISION AND ORDER
Complainant Richard Lassin alleges that Respondent Michigan
State University ("Michigan State" or "the University") violated
the employee protection provision of the Energy Reorganization
Act of 1974 (ERA), as amended, 52 U.S.C. § 5851 (1988 and
Supp. IV 1992), when it reassigned, suspended, and discharged
him. The Administrative Law Judge (ALJ) found that Lassin did
not establish that his report of radioactive contamination to the
Nuclear Regulatory Commission (NRC) was a contributing factor in
Michigan State's actions toward him. The ALJ further found that
the University established by clear and convincing evidence that
it would have taken the same actions even if Lassin had not
reported the contamination to the NRC. I agree with and adopt
the ALJ's findings and conclusions, as modified below, and
dismiss the complaint.
BACKGROUND
Lassin worked as a health physicist for Michigan State's
Office of Radiation, Chemical and Biological Safety (ORCBS),
T. 24, and was the only ORCBS staff member assigned to the
University's National Superconducting Cyclotron Laboratory
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(Cyclotron). T. 27. In March 1993, Lassin discovered
radioactive contamination at the Cyclotron and informed his
superiors. T. 47-48. Lassin also telephoned a friend who worked
at the NRC to discuss the contamination because he believed it
was a "reportable incident" under the NRC's regulations. T. 51-
52. The friend notified his superiors at the NRC, who in turn
telephoned ORCBS to obtain more information concerning the
radioactive spill. T. 54-55.
The NRC promptly conducted an on-site inspection of the
University's handling of radioactive materials. T. 308. The
resulting NRC inspection report identified nine apparent
violations at the University, including failure to follow
Department of Transportation (DOT) regulations while transporting
certain equipment. CX 15 p. 2. The NRC also expressed concern
that "there has been a lack of managerial authority exercised by
[ORCBS] with regard to health and safety related activities at
the [Cyclotron]." CX 15 p. 3.
The University believed that the NRC's report jeopardized
its nuclear license and consequently planned a major effort to
ensure compliance in the handling of radioactive materials.
T. 257-258, 262-263. Among other things, Michigan State
performed a thorough survey of the laboratories that used
radioactive isotopes. T. 257-258. The survey required the
commitment of many employees' time and consequently the work
assignments of all ORCBS radiation safety staff were modified.
T. 313-316, 466-467.
As part of its efforts to remedy the NRC's concerns, the
University decided that the Cyclotron's safety coverage would be
provided by various ORCBS staff, rather than solely by one staff
member, Lassin. CX 16. Lassin was needed to assist in the
University-wide effort to remedy problems in handling radioactive
materials. T. 317-319, 468. Consequently, Lassin's immediate
supervisor, Kristin Erickson, informed him that as of April 12,
1993, he was to report to the ORCBS office each morning, rather
than the Cyclotron, "until further notice." CX 16 p. 2.
When Lassin reported to ORCBS, Erickson assigned him to work
on surveying and correcting one of the cited deficiencies in a
field in which he had experience, compliance with DOT regulations
for transporting nuclear materials. T. 94, 318-319. Erickson
told Lassin to work in the conference room temporarily until she
had time to find him an office at ORCBS. T. 371. Lassin
informed Erickson and ORCBS manager John Parmer that he disagreed
with the reassignment of his duties and was filing a grievance.
T. 449.
Lassin went to his old office at the Cyclotron to telephone
a union representative for advice. T. 99. When Lassin did not
respond to telephone messages and pages, Erickson and Parmer
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visited the Cyclotron to speak with him. T. 452. Parmer asked
why Lassin had not returned to his assigned work at the ORCBS
office. T. 452. Lassin responded that he had been advised not
to talk to them, but did not mention that a union representative
gave him the advice. Id.
Parmer told Lassin to bring a union representative to a
meeting later that day and left. T. 453. On advice from the
Employee Relations Department, Parmer promptly returned to the
Cyclotron and gave Lassin a direct order to report to the ORCBS
office. T. 454. Again, Lassin responded that he had been
advised not to talk to Parmer. Id. Parmer told Lassin
that refusing to respond would be interpreted as refusing the
order and Lassin still did not respond. T. 454. Parmer again
told Lassin to get a union representative. T. 455. After Lassin
said that no representative would be available until two days
later, id., Parmer suspended Lassin without pay "until
further notice." T. 456.
Later that day, Parmer attempted to inform Lassin that he
could report to work when he was ready to comply with his job
assignment. T. 457. When Lassin heard Parmer's voice, he hung
up the telephone. Id. Union representative Kay Butcher
gave Lassin the message and advised him to return to work. T.
458.
A few days later, Lassin again hung up the telephone when
Parmer called to convey information. T. 459. Consequently,
Butcher informed Lassin about a meeting on April 15 to discuss
the suspension and advised him to attend. T. 230-231. Butcher
was aware that Lassin's failure to attend could result in his
discharge. T. 231.
Although a union representative attended the April 15
meeting, Lassin did not, citing "personal reasons." T. 460.
Parmer sent Lassin a letter discharging him for failure to comply
with orders and to report to his job assignment. CX 21, 22. The
letter advised that the discharge would be final if Lassin did
not provide a valid reason for his absence from the April 15
meeting. Id. The union responded that Lassin did not
attend because of Parmer's angry and uncontrollable behavior. CX
16. The University considered Lassin's explanation not to be a
valid excuse. T. 461.
MOTIONS TO REOPEN THE RECORD
Lassin has filed two motions to reopen the record to admit
newly discovered evidence. Since the close of the record in this
case, an arbitration hearing has been held concerning the
grievances filed by Lassin. No transcript was made of the
arbitration hearing. Lassin seeks to reopen the record to
receive his and his attorney's affidavits attesting to testimony
given by Erickson and Parmer at the arbitration hearing.
Under the governing regulation, once the record is closed,
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"no additional evidence shall be accepted into the record except
upon a showing that new and material evidence has become
available which was not readily available prior to the closing of
the record." 29 C.F.R. § 18.54(c). Testimony at a
subsequent hearing obviously was not available prior to the close
of the record in this case. Since "strong federal policies"
favor arbitration agreements arrived at through collective
bargaining procedures, the Secretary generally considers arbitral
proceedings and decisions in cases concerning discrimination
under an employee protection provision. See Roadway Express,
Inc. v. Brock, 830 F.2d 179, 181 (11th Cir. 1987) (finding
that Secretary should consider arbitration decision in
whistleblower complaint under Surface Transportation Assistance
Act). The Secretary has discretion to determine the weight to be
accorded an arbitral decision with regard to the facts and
circumstances of each case. Roadway, citing Alexander
v. Gardner-Denver Co., 415 U.S. 36, 60 n.21 (1974).
In this case, Lassin seeks not to introduce an arbitral
decision or even a transcript of an arbitration hearing, but
rather asks the admission into the record of his own recounting
of some of the testimony of opposing witnesses at an arbitration
hearing. The University strongly disagrees with Lassin's version
of the testimony. See Respondent's Responses to both of
Complainant's Motions to Reopen Record. In view of my discretion
to accord arbitral proceedings whatever weight they are due, and
my belief that one party's account of testimony is inherently
unreliable, I decline to admit Lassin's version of the testimony.
Lassin's motions to reopen the record are DENIED.
DISCUSSION
In a case such as this in which Michigan State introduced
evidence to rebut a prima facie case of a violation of the
employee protection provision, it is unnecessary to engage in a
lengthy analysis of the elements of a prima facie case.
See Carroll v. Bechtel Power Corp., Case No. 91-ERA-0046,
Final Dec. and Order, Feb. 15, 1995, slip op. at 11 and n. 9,
petition for review docketed, No. 95-1729 (8th Cir. Mar.
27, 1995). The question to be resolved is whether Lassin
established by a preponderance of the evidence that his report to
the NRC was a contributing factor in the University's adverse
actions against him. 42 U.S.C.A. § 5851(b)(3)(C) (West
1994).
After a thorough review of the record, I agree with the
ALJ's reasoning and conclusion that Lassin did not establish by a
preponderance of the evidence that his protected activities were
a contributing factor in the University's decisions to reassign,
suspend, and discharge him. R. D. and O. at 6-9. I also agree
that even if his protected activities were a contributing factor,
[PAGE 5]
Michigan State demonstrated by clear and convincing evidence that
it would have taken the same actions against Lassin, even if he
had not informed the NRC about the contamination. Id. at
9;
42 U.S.C.A. § 5851(b)(3)(D).
Lassin argues that the memorandum requiring him to report
each morning to the ORCBS office shows that his reassignment was
a pretext for discrimination. He faults the need for a written
memorandum because the University could have invited him to the
March 19 staff meeting at which all the other ORCBS employees
learned that their job duties would be altered. Complainant's
Exceptions (Com. Exc.) at 18-19.
At the time, Lassin worked only at the Cyclotron, did not
have an office at ORCBS, and normally did not attend meetings of
the ORCBS staff. T. 309. Erickson testified convincingly that
the March 19 meeting called by Parmer was "impromptu with just
whatever radiation safety staff were present" at the ORCBS
office. T. 312. Although Lassin had been present at the ORCBS
office prior to the impromptu meeting, I do not find it unusual
that Erickson and Parmer did not think to invite him. Erickson
explained, "if [Lassin] had been working in our office, he would
have been in on those meetings and a part of [the verbal
reassignments]." T. 370.
The University reassigned Lassin's duties in an effort to
attain compliance with the NRC's regulations and preserve its
license to handle nuclear materials. Lassin contends that one of
the initial assignments given to him upon reporting to the ORCBS
office does not make sense because the NRC did not cite "bioassay
reports and spreadsheets" as an area of concern or violation.
Com. Exc. 19. Erickson testified that she assigned Lassin to
work on the bioassay reports to address "one of [the NRC's]
verbal concerns that they communicated during the broad license
inspection." T. 318. In any event, Lassin's initial assignment
was to work on complying with DOT regulations for transporting
radioactive materials, which was the subject of three of the
apparent violations the NRC found in its inspection report.
T. 319; CX 15 p. 2 at ¶ 6, 7, and 8.
Lassin asserts pretext because the University found no
suitable office space for him in the nine days between issuing
the reassignment memorandum (April 3) and the date he reported to
the ORCBS office (April 12). Erickson testified that she had
been out of town for four days and that she placed Lassin
temporarily in the conference room, which she acknowledged to be
inadequate as office space. T. 320, 325, 372. Moreover, no one
told Lassin to move out of his Cyclotron office, which he could
keep. T. 319-320. Further, Lassin did not know that working in
the conference room was to be temporary because he cut off
communication and refused to discuss the issue. T. 320, 325-326.
[PAGE 6]
Lassin contests the propriety of his suspension because the
University did not afford him a hearing at which a union
representative was present. Comp. Exc. at 15-16. When Parmer
determined that he might take disciplinary action, he directed
Lassin to have a union representative present at a one o'clock
meeting on April 12. After telephoning a union representative,
Lassin informed Parmer that no union representative would be
available until two days later, on April 14. T. 105, 455. I do
not find fault with Parmer's decision to suspend Lassin
immediately rather than wait two days purportedly to accommodate
the availability of a union representative. Moreover, Lassin's
credibility on this issue is slight because the union
representative testified that she told Lassin that she would be
available after 2 p.m. on April 12 and all day on April 13.
T. 223, 227. Lassin did not convey that information to
Parmer.[1]
Lassin contends that discharging him for not appearing at a
meeting on April 15 was unfair since he had prior approval to
take off that day. Comp. Exc. at 18. However, Parmer had
canceled Lassin's scheduled time off during the suspension.
T. 458. Moreover, union representative Butcher testified that
she informed Lassin about the meeting and advised him to attend.
T. 230-231.
The University afforded Lassin the opportunity to explain in
writing the basis for not attending the April 15 meeting. CX 21,
22. No other witnesses corroborated Lassin's excuse for not
attending, that he had been "subjected to unwarranted verbal
abuse" by Parmer and did not wish to be subjected to it again.
See CX 23. Whereas Lassin testified that Parmer's voice
was strained and tense in earlier conversations, he admitted on
cross examination that Parmer never swore, used abusive words, or
demeaned him in person. T. 191-192. I agree with the University
that Lassin's excuse for not attending the meeting was not valid.
Finally, Lassin faults the ALJ for crediting the testimony
of Michigan State's witnesses rather than his testimony when
there were conflicting versions of events. Comp. Exc. at 6-15;
see R. D. and O. at 9. Since the ALJ observed the
witnesses' demeanor, his determinations of credibility are given
special weight. Pogue v. United States Dep't of Labor,
940 F.2d 1287, 1289 (9th Cir. 1991). My review of the record
substantiates the validity of the ALJ's credibility assessments.
CONCLUSION
Lassin did not persuade me that his protected activities
were a contributing factor in the University's adverse personnel
actions. Assuming that his protected activities were a
contributing factor, I find that the University demonstrated by
clear and convincing evidence that it would have taken the same
[PAGE 7]
actions against Lassin in the absence of his protected
activities. Accordingly, the complaint is DISMISSED.
SO ORDERED.
ROBERT B. REICH
Secretary of Labor
Washington, D.C.
[ENDNOTES]
[1]
Lassin contends that "[a]t any time, the Respondent could have
postponed the discipline and waited an hour or two as originally
planned so that both parties could be prepared and hopefully,
represented properly." Comp. Exc. at 16. I find this argument
disingenuous, since Lassin admitted that he told Parmer that the
union representative would not be available until two days later.
T. 105.
