DATE: January 18, 1996
CASE NOS. 93-ERA-34
93-ERA-36
IN THE MATTER OF
KURT R. ZINN,
COMPLAINANT,
v.
UNIVERSITY OF MISSOURI,
RESPONDENT,
and
J. STEVEN MORRIS,
COMPLAINANT,
v.
UNIVERSITY OF MISSOURI,
RESPONDENT.
BEFORE: THE SECRETARY OF LABOR
FINAL DECISION AND ORDER
This case arises under Section 211, the employee protection
provision, of the Energy Reorganization Act of 1974 (ERA), as
amended, 42 U.S.C. 5851 (1988 & Supp. V 1993).[1] Before me
for review is the Recommended Decision and Order (R. D. and O.)
issued on May 23, 1994, by the Administrative Law Judge (ALJ).
The ALJ concluded that Respondent, University of Missouri (the
University), had violated the ERA by taking adverse action
against Complainants Kurt R. Zinn (Zinn) and J. Steven Morris[2]
(Morris) in retaliation for engaging in activity protected under
the ERA. The ALJ also recommended that the University be ordered
to take appropriate action to remedy its demotion of Morris and
its refusal to initiate the process for formal consideration of
Zinn for promotion. By Preliminary Order issued June 20, 1994,
[PAGE 2]
and pursuant to Section 211(b)(2)(A) of the ERA, I ordered the
University to comply with the ALJ's recommended order of relief
for the Complainants, and to do so immediately, rather than ten
days following issuance of the Secretary's final order, as had
been provided by the R. D. and O.[3]
Following a thorough review of the record and the arguments
of the parties, I basically agree with the findings of fact and
the ultimate conclusions of the ALJ. However, the following
discussion does clarify and supplement the ALJ's analysis of the
issue of discriminatory intent as it pertains to the Zinn
complaint, and the analysis of the issues of knowledge of
protected activity and discriminatory intent as it pertains to
the Morris complaint.
DISCUSSION
A. Factual background
Without exception, the findings of fact rendered by the ALJ
reflect a thorough review of the record and careful evaluation of
the evidence. R. D. and O at 2-31; see N.L.R.B. v. Cutting,
Inc., 701 F.2d 659, 667 (7th Cir. 1983); Cotter v.
Harris, 642 F.2d 700, 706-07 (3d Cir. 1981); Dobrowlosky
v. Califano, 606 F.2d 403, 409-10 (3d Cir. 1979). I
therefore adopt those findings of fact.
As background for the analysis to follow, I note the
following points. At the time the events giving rise to these
complaints occurred, both Morris and Zinn were scientists at the
Missouri University Research Reactor (MURR). R. D. and O. at 2-
3. In addition to being the largest research reactor in the
United States, MURR engages in the commercial irradiation of
targets, an enterprise that generates approximately $6 million
annually. R. D. and O. at 2. An error made in the course of
shipping radioactive materials from the reactor in July 1992 gave
rise to an investigation by the Nuclear Regulatory Commission
(NRC) and an enforcement conference was held in October 1992.
R. D. and O. at 6. In August 1992, a Shipping Task Force was
established to undertake a "global review" of shipping procedures
at the reactor in order to pursue, in connection with MURR
committees and subcommittees already in place, remedial steps to
prevent such shipping errors in the future. Id. The July
1992 shipping error had involved reversing the addresses for two
shipments, so that one of the addressees received a shipment
containing materials having greater radioactivity than was
expected. Id.
Over the next few months, a controversy developed between
Zinn and MURR managers concerning whether the "global review"
should address not only the issue of accuracy in addressing
shipments but also another issue related to the amount of
radioactivity in each shipment leaving the reactor, viz.,
the accurate description of the targets submitted for
irradiation, including any trace elements. R. D. and O. at 6-7,
[PAGE 3]
32-38. Although he met with resistance on this issue, Zinn was
persistent and succeeded in ensuring that the issue of accurately
determining target composition was addressed by MURR management
in its responses to the NRC in January and March 1993. R. D. and
O. at 7-12; 32-38. During this period, Morris not only privately
encouraged Zinn in his efforts regarding the target composition
issue but also actively pursued, in committee meetings and
otherwise, the need for MURR management to directly confront the
issue. He argued that the issue should be addressed fully in the
status report filed with the NRC in January 1993 and in the
presentations to the NRC investigators during their on-site
investigation of March 9 through 11, 1993. R. D. and O. at 11,
13; see R. D. and O. at 40-43; n.11, infra.
At the close of the on-site investigation, the NRC
investigators commended MURR staff for the steps that had been
taken toward remedial action concerning the accurate
determination of the composition of irradiation targets shipped
from the reactor. R. D. and O. at 12. Furthermore, the
investigators indicated that such efforts had prevented the
reactor from committing very serious, Level 1, violations of the
NRC regulations. Id.
In February 1993, the MURR Director advised Morris that
he would not go forward with the initiation of formal committee
consideration of Morris' recommendation of Zinn for promotion
from the position of Research Scientist to that of Senior
Research Scientist. R. D. and O. at 20-21. On the afternoon of
the day that the NRC on-site investigation ended, March 11, 1993,
the MURR Director advised Morris that he was being demoted from
his position of Nuclear Analysis Program Coordinator and Group
Leader of the Nutrition, Epidemiology and Immunology Group. R.
D. and O. at 28; MX 31.[4] Zinn had been advised by Morris on
February 7 or 8, 1993, of the Director's refusal to initiate
Zinn's formal candidacy for promotion. R. D. and O. at 35. Upon
being advised of the decision to demote Morris, an action which
Zinn felt also adversely affected him, as a scientist within the
Nutrition, Epidemiology and Immunology Group headed by Morris,
Zinn initiated this complaint under the ERA. ZX 25; T. 215;
see R. D. and O. at 12, 31. On April 27, 1993, Morris
filed his ERA complaint. MX 93; see R. D. and O. at 29.
B. The Zinn complaint
The University contends that the ALJ improperly analyzed the
issue of discriminatory intent by placing the burden of
persuasion on the University. Respondent's Brief at 2-7. Under
the burdens of proof and production in "whistleblower"
proceedings, a complainant who seeks to rely on circumstantial
[PAGE 4]
evidence of intentional discriminatory conduct must first make a
prima facie case of retaliatory action by the respondent,
by establishing that he engaged in protected activity, that he
was subjected to adverse action, and that the respondent was
aware of the protected activity when it took the adverse action.
Simon v. Simmons Foods, Inc., 49 F.3d 386, 389 (8th Cir.
1995); Dartey v. Zack Co. of Chicago, Case No. 82-ERA-2,
Sec. Ord., Apr. 25, 1983, slip op. at 6-9 (citing Texas
Department of Community Affairs v. Burdine, 450 U.S. 248
(1981)). Additionally, a complainant must present evidence
sufficient to raise the inference that the protected activity was
the likely reason for the adverse action. Id. If a
complainant succeeds in establishing the foregoing, the
respondent must produce evidence of a legitimate,
nondiscriminatory reason for the adverse action. Dartey,
slip op. at 8.
The complainant bears the ultimate burden of persuading that
the respondent's proffered reasons are not the true basis for the
adverse action, but are a pretext for discrimination.
Thomasv. Arizona Public Service Co., Case No. 89-ERA-
19, Sec. Dec., Sept. 17, 1993, slip op. at 20 (citing St.
Mary's Honor Center v. Hicks, 113 S.Ct. 2742, 125 L.Ed. 2d
407 (1993)); see Yellow Freight System, Inc. v. Reich, 27
F.3d 1133 (6th Cir. 1994), aff'g Smith v. Yellow Freight
System, Inc., Case No. 91-STA-45, Sec. Dec., Mar. 10, 1993.
The complainant bears the burden of establishing by a
preponderance of the evidence that the adverse action was in
retaliation for protected activity. Thomas, slip op. at
20; see Yellow Freight System, Inc., 27 F.3d at 1139.
Pursuant to Section 211(b)(3) of the ERA, however, if it has been
established that the protected activity contributed to the
adverse action, the employer must demonstrate by "clear and
convincing evidence" that it would have taken the adverse action
in the absence of the protected activity. Dysert v. Florida
Power Corp., Case No. 93-ERA-21, Sec. Dec., Aug. 7, 1995
(construingSection 211(b) of the ERA, as amended by
Section 2902(d) of the Comprehensive National Energy Policy Act
of 1992, codified at 42 U.S.C. § 5851(b)(3)), appeal
docketed Dysert v. Sec'y of Labor, No. 95-3298 (11th Cir.
Sept. 28, 1995); see Johnson v. Bechtel Construction Co.,
Case No. 95-ERA-11, Sec. Dec., Sept. 28, 1995, slip op. at 2.
The ALJ properly concluded that Zinn had established the
requisite elements of protected activity, knowledge and adverse
action. R. D. and O. at 31-32, 36-37, 40; see Simon, 49
F.3d at 389; Dartey, slip op. at 7-8. The ALJ also
properly concluded that the temporal proximity between Zinn's
protected activity, beginning in August 1992 and continuing
through the time of the University's refusal in February 1993 to
[PAGE 5]
initiate formal consideration of Zinn for promotion to the
position of Senior Research Scientist, which is the adverse
action at issue here, was adequate to support an inference of a
causal link between the protected activity and the University's
adverse action. R. D. and O. at 40; see R. D. and O. at
32-35, 39; Simon, 49 F.3d at 389 (citing Couty v.
Dole, 886 F.2d 147, 148 (8th Cir. 1989)), 390; Kahn v.
Commonwealth Edison Co., Case No. 92-ERA-58, Sec. Dec., Oct.
3, 1994, slip op. at 5-6, aff'd, 64 F.3d 271 (7th Cir.
1995). At hearing, the University offered the testimony of James J.
Rhyne (Rhyne), the Director of MURR, in support of its contention
that Rhyne's failure to establish a committee to consider Zinn's
qualifications for promotion was based on Rhyne's decision that
Zinn had failed to meet objective promotion criteria rather than
Rhyne's intention to retaliate against Zinn for his protected
activity. T. 1034-38, 1056-71; see R. D. and O. at 20-25.
As the University thus met its burden of articulating a
legitimate, nondiscriminatory basis for its action, the analysis
shifts to the issue of whether Zinn has demonstrated that such
basis is merely pretextual and that the University's action was
actually based on a discriminatory motive. See Yellow Freight
System, Inc., 27 F.3d at 1139-40; Pillow v. Bechtel
Construction, Inc., Case No. 87-ERA-35, Sec. Dec., July 19,
1993, slip op. at 13 (citing St. Mary's Honor Center, 113
S.Ct. at 2749, 125 L.Ed. 2d at 419); Dartey, slip op. at
6-9.
Zinn may demonstrate that the reasons given were a pretext
for discriminatory treatment by showing that discrimination was
more likely the motivating factor or by showing that the
proffered explanation is not worthy of credence. Pillow,
slip op. at 14; Dartey, slip op. at 8. In order to
determine that Zinn has established discriminatory intent in
regard to this adverse action by the University, however, "[i]t
is not enough . . . to disbelieve the employer; the factfinder must believe the
plaintiff's explanation of intentional discrimination." St.
Mary's Honor Center, 113 S.Ct. at 2749, 125 L.Ed. 2d at 424;
seeYellow Freight System, Inc., 27 F.3d at 1139;
Pillow, slip op. at 14-15. Although found to be
pretextual, an employer's stated reasons may nonetheless be found
to be a pretext for action other than prohibited discrimination.
See Galbraith v. Northern Telecom, 944 F.2d 275, 282-83
[PAGE 6]
(6th Cir. 1991). The ultimate inquiry is thus whether
Zinn has demonstrated that Rhyne decided not to initiate the
formal consideration of Zinn as a candidate for promotion because
of Zinn's protected activity regarding safety issues related to
shipments to and from the reactor.
Contrary to the University's argument, the ALJ, in analyzing
the issue of discriminatory intent toward Zinn, did not
improperly shift the burden of persuasion to the University. The
ALJ concluded that the promotion criteria cited by Rhyne at
hearing were not formally in effect in January and February 1993,
"when critical decisions were being made" that culminated in the
promotion of another research scientist, Hector Neff (Neff), but
not Zinn. R. D. and O. at 39. The ALJ also concluded that "the
criteria were more rigorously applied to Dr. Zinn than to Dr.
Neff." R. D. and O. at 40. The ALJ thus effectively found the
University's contention, that Rhyne based his decision not to
initiate the formal consideration of Zinn as a candidate for
promotion on objective criteria, to be "not worthy of credence,"
see Pillow, slip op. at 14; Dartey, slip op. at 8.
This conclusion is fully supported by the record evidence and is
therefore accepted. Furthermore, consistent with the holding of the United
States Supreme Court in St. Mary's Honor Center, having
found the reason articulated by the University to be pretextual,
the ALJ proceeded to complete the analysis of the complainant's
case by evaluating the evidence of retaliatory animus toward
Zinn.[5] R. D. and O. at 40; seeYellow Freight System, Inc.,
27 F.3d at 1139; Thomas, slip op. at 20. As indicated
supra, the ALJ also properly considered the temporal
proximity between Zinn's raising of concerns about the
composition of targets shipped to the reactor for irradiation and
Rhyne's decision regarding the question of Zinn's candidacy for
promotion. R. D. and O. at 40; see Simon, 49 F.3d at 389,
390; Kahn, slip op. at 5-6. As indicated by the ALJ,
Zinn's pursuit of the target composition concerns became
particularly significant in January 1993, when MURR management
was preparing a status report for the NRC and there was heated
debate among staff members concerning how much
[PAGE 7]
information should be included regarding the target composition
issue. R. D. and O. at 11-12, 13-14, 34-36, 40-41, 42.
I reject the University's contention that, in determining
Rhyne's intent, the ALJ erroneously relied on evidence concerning
Rhyne's hostility towards Zinn that was manifested after February
1993, when Rhyne made the decision not to initiate formal
consideration of Zinn as a candidate for promotion. I further
reject the University's contention that hostility towards Zinn
that was demonstrated by the Associate Director of MURR, Charles
McKibben (McKibben), and the Assistant Director, William Reilly
(Reilly), and the services engineer for the reactor, Steve Gunn
(Gunn), should not have been relied upon by the ALJ because only
Rhyne was responsible for consideration of Zinn's promotion.
Respondent's Brief at 8-9. Particularly in view of the close
working relationship of the foregoing officers with Rhyne, their
superior, see R. D. and O. at 36, as well as the evidence
of a pattern of hostility toward individuals engaged in
protected activity that is presented in the record of these
consolidated complaints, see R. D. and O. at 6-13, 15-20,
34-38, 40, the foregoing evidence further supports the conclusion
that the likely cause of Rhyne's refusal to initiate the formal
consideration of Zinn for promotion was Zinn's protected
activity.
I also reject the University's contention that the ALJ
failed to consider "other possible causes" for comments made by
Rhyne in his August 1993 personnel evaluation of Zinn, which were
found by the ALJ to indicate hostility toward Zinn for his
protected activity. In support of this contention, the
University cites a legal action filed by Zinn and his wife that
did not arise under the ERA and urges that the ALJ should have
considered whether the filing of such action in August 1993
contributed to the tone of Rhyne's comments in Zinn's personnel
evaluation. Respondent's Brief at 9-10; see n.3,
supra. The ALJ carefully considered Rhyne's admonition to
Zinn, in the August 1993 evaluation, regarding Zinn's
"antagonistic" and "adversarial" approach to interaction with the
"MURR and University administration and to some degree" Zinn's
colleagues. R. D. and O. at 35-36, see R. D. and O. at
17-18; RX 38. The ALJ then concluded that these comments "echoed
McKibben's complaints pertaining to Zinn's pursuit of the target
composition issue" in the August 1992 through March 1993 period.
R. D. and O. at 35-36. The inference that Rhyne's comments in
the August 1993 evaluation reflect a continuation of the
hostility toward Zinn's protected activity prior to February 1993
is reasonable and I adopt it. See Simon, 49 F.3d at 390.
Also, as noted by the ALJ, R. D. and O. at 38, Zinn's filing
of his complaint under the ERA in April 1993 constitutes
[PAGE 8]
protected activity. 42 U.S.C. § 5851(a)(1)(D)(1988 & Supp.
V 1993). Documentary evidence, as well as testimony at hearing,
demonstrates explicit hostility toward Zinn because of the filing
of his ERA complaint on the part of at least one member of
Rhyne's immediate staff, the Assistant Director, Reilly. ZX 6;
T. 876-78; see R. D. and O. at 15-17. Such evidence also
supports the conclusion that Zinn was subjected to a pattern of
hostility by the management at the reactor resulting from his
protected activity.
Also contrary to the University's contention, Respondent's
Brief at 11-12, the ALJ properly concluded that Rhyne's
initiation of the formal promotion process for Neff, in
comparison with his contemporaneous adverse decision concerning
Zinn's candidacy for promotion, supports the conclusion that
Rhyne intentionally discriminated against Zinn. The ALJ credited
the testimony of Michael D. Glascock (Glascock), a MURR Senior
Research Scientist and Group Leader who had recommended Neff for
promotion and who was familiar with the work of both Neff and
Zinn, that he considered Zinn to have been as "equally qualified"
to be a candidate for promotion as was Neff, T. 76-77; see
T. 68-75, 79-81, 137-49, 153-58. R. D. and O. at 23.
Glascock also discussed the relative qualifications of Neff and
Zinn under the requirements contained in the promotion guidelines
relied on by the University at hearing, and discussed how Zinn
actually met one area of the criteria, the service requirement,
that was not met by Neff. T. 72-76.
As noted by the University in its response brief, at 11,
Judson D. Sheridan (Sheridan), Vice-Provost and Research Dean for
the graduate school at the University of Missouri at Columbia,
testified, based on a review at hearing of Zinn's curriculum
vitae and June 1992 personnel evaluation, that he did not believe
that Zinn met the promotion guidelines. T. 962-70. Sheridan
also testified that he had approved Neff's promotion and that he
believed that Neff had been qualified under those guidelines, T.
960-63; however, on cross-examination, Sheridan failed to explain
that conclusion in view of Neff's failure to meet the service
requirement contained in the guidelines, T. 974-75, 978-80.
See also T. 1066-67, 1097-99 (testimony of Rhyne
acknowledging Neff's shortcomings under the promotion
guidelines).[6] The record thus supports the ALJ's reliance on
the testimony of Glascock to conclude that Rhyne's failure to
initiate formal promotion consideration of Zinn was
discriminatory.
I also reject the University's contention that the ALJ
engaged in a flawed analysis under the "dual motive" doctrine.
Under the dual, or mixed, motive doctrine, when the evidence
establishes that discriminatory intent played a role in an
adverse action, the employer may avoid liability only by
[PAGE 9]
demonstrating that the action would have been taken on the basis
of a legitimate motive alone. Yellow Freight System, Inc.,
27 F.3d at 1137, 1140 (holding that St. Mary's Honor
Center did not disturb mixed motive doctrine);
Mackowiak, 735 F.2d at 1163-64 (citing Mt. Healthy City
School District v. Doyle, 429 U.S. 274 (1977)[further
citations omitted]). Under the dual motive analysis, the
employer "bears the risk that 'the influence of legal and illegal
motives cannot be separated . . . .'" Mackowiak, 735 F.2d
at 1164 (quoting NLRB v. Transportation Management Corp.,
462 U.S. 393, 403 (1983)); see Harrisonv. Stone &
Webster Engineering Group, Case No. 93-ERA-44, Sec. Dec.,
Aug. 22, 1995, slip op. at 9-10; Pillow, slip op. at 14-
15. Furthermore, as discussed in the Secretary's decision in
Dysert, supra, the 1992 Amendments to the ERA provide that
an employer can escape liability under the dual or mixed motive
analysis only by presenting clear and convincing evidence that
the adverse action would have been taken in the absence of the
protected activity. Section 211(b)(3)(D) of the ERA, codified at
42 U.S.C. § 5851(b)(3)(D); Dysert, slip op. at 3-6.
The ALJ found that Rhyne had not acted on a legitimate
motive in deciding not to initiate Zinn's formal candidacy for
promotion. R. D. and O. at 40. He then concluded by finding
that, even if the evidence had established that Rhyne was
motivated in part by legitimate factors, the evidence did not
establish that Rhyne would have taken the action against Zinn in
the absence of Zinn's protected activity. Id.; see R. D.
and O. at 31-32. Thus, and contrary to the University's
contention, the ALJ did not find that the evidence established
that Rhyne was motivated even in part by nondiscriminatory
factors, viz., the promotion criteria, in taking the
adverse personnel action against Zinn.[7] Assuming,
arguendo, that the dual motive analysis were reached,I agree with the ultimate conclusion of the ALJ and find that
clear and convincing evidence does not support a conclusion that
Rhyne would have taken the challenged personnel action in the
absence of Zinn's protected activity.[8] See 42
U.S.C. § 5851(b)(3)(D); Dysert, slip op. at 3-
6; see also Grogan v. Garner, 498 U.S. 279
(1991)(discussinghigher clear and convincing evidence
standard in comparison with preponderance of the evidence
standard within context of Section 523(a) of the Bankruptcy Code,
11 U.S.C. § 523(a)); see generally Director, OWCP v.
Greenwich Collieries, 114 S.Ct. 2251 (1994)(addressing
requirement under Section 7(c) of the Administrative Procedure
Act, 5 U.S.C. § 556(d), that "except as otherwise provided
by statute, the proponent of a rule or order has the burden of
proof.").
I agree with the ALJ's conclusion that the record
establishes that Rhyne's decision not to initiate the formal
[PAGE 10]
candidacy of Zinn for promotion was motivated by retaliatory
intent against Zinn for his protected activity. Zinn has therefore established that the University violated the ERA in
that regard.[9]
C. The Morris complaint
The ALJ properly concluded that Morris had established the
requisite elements of protected activity, knowledge and adverse
action. R. D. and O. at 28-29, 31-32; see Simon, 49 F.3d
at 389; Dartey, slip op. at 7-8. The ALJ also properly
concluded that the temporal proximity between the protected
activity engaged in by Morris during January and February 1993
and the decision to demote Morris, which was ultimately reached
in February 1993, was adequate to support an inference of a
causal link between the protected activity and the University's
adverse action. R. D. and O. at 42-43; see R. D. and O.
at 11, 13, 27, 28; Simon, 49 F.3d at 389 (citing Couty
v. Dole, 886 F.2d 147, 148 (8th Cir. 1989)), 390;
Kahn, slip op. at 5-6.
Contrary to the University's contention, Respondent's Brief
at 13, the record provides ample support for the ALJ's conclusion
that Rhyne possessed the requisite knowledge of Morris' protected
activity. McKibben testified that he kept Rhyne informed
regarding developments on the Shipping Task Force in a "general"
manner. T. 848; see R. D. and O. at 6. Although Rhyne's
hearing testimony contains neither a denial nor an express
acknowledgement that Rhyne was aware of Morris' role in pursuing
the target composition concerns that had initially been raised by
Zinn,[10] Rhyne did acknowledge that he was kept informed, in a
"cursory" manner, of the work of the reactor committees
concerning these safety concerns. T. 1116; see T.1050, 1073-78.[11] Rhyne also testified that, although he
ordinarily did not become involved in decisions concerning
technical NRC licensing matters, he would become involved if
there were an "impasse" among specific members of his supervisory
staff ordinarily responsible for such matters. T. 1049, 1076-77.
As found by the ALJ, the record indicates that, following
the October 1992 NRC enforcement conference, Rhyne and the MURR
staff were aware of the potential for loss of the reactor's NRC
license and the consequent closing of the reactor. T. 177
(Zinn), 661-63 (Gunn), 722 (Ernst), 843-44 (McKibben), 872, 887-
88 (Reilly), 1073 (Rhyne); see R. D. and O. at 6. There
was extensive discussion concerning the best course to follow to
alleviate the NRC concerns that prompted the enforcement
conference. T. 180-88, 197 (Zinn), 401-05, 408, 410-11, 445-454,
481-84, (Morris), 561-67 (Meyer), 635-41, 658-59, 675-76 (Gunn),
807-10 (McKibben), 874-76, 883-901 (Reilly); see R. D. and
O. at 6-13. With regard to Rhyne's knowledge of Zinn's protected
activity, the ALJ expressly found that "it is inconceivable" that
[PAGE 11]
members of Rhyne's immediate staff did not contemporaneously
apprise Rhyne of the developments pertaining to Zinn's pursuit of
his concerns about target composition. R. D. and O. at 36;
see Simon, 49 F.3d at 390. The record supports a similar
conclusion in regard to Morris' protected activity regarding
safety concerns pertaining to shipments to and from the reactor
beginning in August 1992. In addition, Morris testified that
Rhyne, McKibben and Reilly were present at a meeting of the
Reactor Services Subcommittee on February 1, 1993, at which he
expressed concern regarding the target composition issue. T.
446-451; see MX 93; n.11, supra. I therefore
reject the University's contention that Morris failed to
establish that Rhyne was aware of Morris' protected activity when
Rhyne demoted Morris.
The University also contends that the demotion of Morris was
a legitimately motivated personnel action based on the conclusion
of Rhyne and other University and MURR officials that the reactor
operation was "out of control." Respondent's Brief at 16-17;
see R. D. and O. at 27-28. The University asserts that
the ALJ improperly shifted the burden of persuasion to the
University by requiring the University to demonstrate that it was
not motivated by retaliatory intent, rather than requiring Morris
to establish that the legitimate basis advanced by the University
was pretextual. Respondent's Brief at 14-16. The ALJ concluded,
in effect, that the record established that the University was
motivated in part by retaliatory animus toward Morris for his
protected activity and that the University had failed to
demonstrate that it would have demoted Morris in the absence of
such protected activity. R. D. and O. at 41-43. Although I
agree with the foregoing conclusions, it is necessary to supplement and clarify the ALJ's analysis of the issue of
retaliatory intent regarding Morris.
As discussed supra in the analysis of the Zinn
complaint, a complainant may demonstrate that the reasons given
were a pretext for discriminatory treatment by showing that
discrimination was more likely the motivating factor or by
showing that the proffered explanation is not worthy of credence.
Pillow, slip op. at 14; Dartey, slip op. at 8. The
ALJ did not find that the basis presented by the University for
its demotion action was merely pretextual, however, and the
evidence of record does not support such conclusion. Rather, and
as found by the ALJ, R. D. and O. at 25-28, 41-42, the record
indicates that Morris and Rhyne had experienced increasing
friction over various issues concerning the administration of the
reactor for more than a year prior to Morris's demotion in March
1993, and that Morris had not established that Rhyne's decision
to relieve Morris of his group leader status was not motivated,
at least to some degree, by Rhyne's interest in regaining control
of administrative matters
[PAGE 12]
at the reactor.
As the ALJ further concluded, however, the record
establishes that Rhyne was also motivated by retaliatory intent
against Morris for his protected activity. This conclusion is
supported by the sequence of events preceding Rhyne's decision
regarding demotion, the evidence of hostility generated by the
protected activity engaged in by Morris and Zinn beginning in
August 1992, and the evidence indicating that other members of
the MURR staff who also actively opposed Rhyne in regard to
various administrative matters did not suffer adverse
consequences. The foregoing evidence also supports the further
conclusion that, under a dual motive analysis, the University has
failed to refute Morris' case by establishing by clear and
convincing evidence that it would have taken the demotion action
in the absence of Morris' protected activity. See Johnson,
slip op. at 2; Dysert, slip op. at 3-6.
Specifically, the record indicates that, although Rhyne had
felt an increasing distance developing between himself and Morris
since only a few months after Rhyne became Director of the
reactor in December 1990, and Rhyne had been concerned for "about
a year" regarding Morris' involvement in opposing Rhyne on
several administrative issues, Rhyne determined to take adverse
action against Morris "around January" or "early February" of
1993. T. 1002, 1009-11, 1041; see R. D. and O. at 3, 25-
29, 41-42. At that time, Rhyne testified, he had received
comments that MURR was "out of control," that "Morris and his
group were running the center," and that "there was a lot of
dissension going on primarily led by [the] Morris group. . . ."
T. 1042-43. As indicated supra, Zinn was a member of
the Nutrition, Epidemiology and Immunology Group headed by
Morris. R. D. and O. at 3. In February 1993, Rhyne
discriminatorily decided that he would not initiate Zinn's formal
candidacy for promotion. R. D. and O. at 20. This sequence of
events supports the inference of a causal connection between
Morris' protected activity that began in August 1992 and the
February 1993 demotion decision. See Simon, 49 F.3d at
389, 390; Kahn, slip op. at 5-6. Morris and Zinn engaged
in a course of protected activity that began in August 1992 and
which was of particular importance in January 1993. Rhyne's
reference to the "Morris group," coupled with the temporal
proximity between such protected activity and Rhyne's February
1993 decision to demote Morris, further supports the conclusion
that retaliatory intent contributed to Rhyne's motivation in
demoting Morris. See generallyEllis Fischel State
Cancer Hospital v. Marshall, 629 F.2d 563, 566 (8th Cir.
1980), quoted in Mackowiak, 735 F.2d at 1162 (addressing
the significance of circumstantial evidence in establishing the
presence or absence of retaliatory motive).
[PAGE 13]
I also reject the University's argument, Respondent's Brief
at 20, that the record does not provide support for the ALJ's
finding, R. D. and O. at 43, that the hostility towards Zinn
beginning in August 1992 due to his protected activity "spilled
over" to Morris. First, it is important to recognize the very
close professional association between Zinn and Morris. Morris
had been associated with Zinn, academically and professionally,
for approximately ten years at the time the protected activity
took place. T. 165-171 (Zinn), 368-70 (Morris). Morris had
initially acted as Zinn's academic advisor while Zinn completed a
Master's Degree and later served as Zinn's Group Leader. See
id. As noted by the ALJ, R. D. and O. at 3, Zinn considered
Morris to be his mentor. T. 355-56.
As found by the ALJ, the record demonstrates that a
considerable degree of hostility was generated among members of
Rhyne's immediate staff flowing from the controversy over the
target composition safety concerns raised by Zinn and supported
by Morris. See R. D. and O. at 6-13, 17-20, 32-38. As
also found by the ALJ, the effort spearheaded by Zinn forced MURR
management "to come to grips with the target composition
issue. . . ." R. D. and O. at 38; see R. D. and O. at 19
n.5. Some of the opposition to that effort was based on the
belief that drawing the NRC's attention to further safety
problems related to the shipping of irradiation targets to and
from the reactor would further jeopardize the reactor's NRC
license. See R. D. and O. at 18-19, 32; T. 722 (Ernst),
843-44 (McKibben), 872, 887-88 (Reilly), 1073 (Rhyne).
Reilly's letter of April 30, 1993, which was circulated at
the reactor after the filing of Zinn's ERA complaint, reflects a
view of Zinn's whistleblower activity as "traitorous." ZX 6;
see R. D. and O. at 15-17; see also T. 84-86
(Glascock), 215-16, 218-19 (Zinn);R. D. and O. at 18-20.
Furthermore, the corroborated testimony of Zinn and Morris
indicates that, with the exception of Walter Meyer (Meyer),
Acting Reactor Manager, Morris alone provided support for Zinn's
pursuit of the target composition issue in the committee
proceedings taking place at the reactor during the August 1992
through January 1993 timeframe.[12] T. 441-42 (Morris), 232-34
(Zinn), 637-38 (Gunn); see T. 566 (Meyer), 807-10
(McKibben), 883-84, 893-94 (Reilly acknowledging Meyer's role in
decision to voluntarily provide certain documentation to NRC
investigators during March 1993 on-site investigation); R. D. and
O. at 11-12. Contrary to the University's argument, Respondent's
Brief at 20, the record thus provides ample support for the ALJ's
conclusion that the hostility towards the protected activity
engaged in by Zinn beginning in August 1992 "spilled over" to
Morris. See Simon, 49 F.3d at 390.
Finally, the evidence of record indicates that various other
[PAGE 14]
staff members at MURR had opposed Rhyne's administrative policies
and had actually taken leading roles in doing so. See, e.g.,
T. 109-21 (Glascock), 745-46 (Erhardt); MX 25 (memorandum of
Dr. W. B. Yelon, MURR scientist); see also R. D. and O. at
29-31; T. 135-36 (Glascock). Nonetheless, the record does not
indicate that any of those individuals were subjected to adverse
action; rather, as found by the ALJ, Rhyne offered Glascock the
position of Program Coordinator and Group Leader from which
Morris had been demoted. T. 121 (Glascock); R. D. and O. at 31-
32. In support of its position that Rhyne was not motivated by
retaliatory animus against whistleblower activity, the University
notes that Meyer had supported pursuit of the target composition
issue but suffered no adverse consequences as a result.
Respondent's Brief at 18-19; see T. 567 (Meyer). This
factor does not undermine the well-supported conclusion that
Rhyne's demotion decision was motivated, at least in part, by
retaliatory animus toward Morris for engaging in protected
activity. See DeFord v. Secy. of Labor, 700 F.2d 281, 286
(6th Cir. 1983).
Morris thus established by a preponderance of the evidence
that the demotion action was in retaliation for protected
activity, Thomas, slip op. at 20; see Yellow Freight
System, Inc., 27 F.3d at 1139; and, the University failed to
demonstrate, under Section 211(b)(3) of the ERA, by "clear and
convincing evidence" that it would have taken the adverse action
in the absence of the protected activity, seeJohnson, slip op. at 2; Dysert, slip op. at 3-6; see
also Yellow Freight System, Inc., 27 F.3d at 1137, 1140
(holding that St. Mary's Honor Center did not disturb
mixed motive doctrine).
E. Attorneys' fees
Pursuant to the ERA, the Complainants are entitled to payment
of attorneys' fees and costs reasonably incurred in bringing the
complaint. 42 U.S.C. § 5851(b)(2)(B)(1988 & Supp. V 1993).
In a Recommended Decision and Order on Attorney Fees issued
October 24, 1994, the ALJ awarded a total of $35,797.71 for
attorney's fees and costs to Complainant Zinn and a total of
$5,089.22 for attorney's fees and costs to Complainant Morris.
In so doing, the ALJ rejected the University's objections to the
number of hours and the hourly rate requested by counsel to Complainant Zinn. The ALJ noted that the University did not
object to the fees and costs requested by Complainant Morris.
The ALJ's award of costs and fees to Complainant Zinn was
comprised of 196 hours of attorney services at $150.00 per hour,
plus 6 hours at lesser hourly rates for services rendered by
legal staff affiliated with the counsel's firm, and $6,165.46 for
litigation costs. The award of costs and fees to Complainant
Morris was comprised of 62 hours of attorney services at $85.00
per hour, and $2,089.22 for litigation costs. A review of the
[PAGE 15]
record indicates that the ALJ's decision awarding attorneys' fees
and costs is in accordance with pertinent law. As found by the
ALJ, the larger award to Complainant Zinn's counsel as the lead
counsel in the case is appropriate. See Hensley v. Eckerhart,
461 U.S. 424 (1983); see generally Goldstein v. Ebasco
Constructors, Inc., Case No. 86-ERA-36, Sec. Dec., Apr. 7,
1992, slip op. at 17-28 (addressing various factors to be
considered in setting hourly rate and allowing attorneys' fees
for services claimed under the ERA). Furthermore, in support of
the fee petition, Zinn's counsel provided documentation of the
prevailing market rates in the relevant community. See Blum
v. Stenson, 465 U.S. 886, 895 (1984). The award to
Complainant Morris' counsel is also supported by appropriate
documentation and in accord with pertinent law. See Hensley,
461 U.S. at 433. I therefore adopt the recommended decision
of the ALJ concerning attorneys' fees and costs.
ORDER
I affirm the preliminary order for immediate relief that I
issued on June 20, 1994,[13] and order additionalappropriate relief, to wit:
1)The Respondent is ordered to establish a committee to consider
Complainant Zinn's suitability for promotion to Senior Research
Scientist in accordance with the terms and conditions set forth
in the ALJ's Recommended Decision and Order, at 43.
2)If Complainant Zinn is recommended for promotion by such
committee, the Respondent is ordered to promote Complainant Zinn
in accordance with that recommendation and to reimburse
Complainant Zinn in the amount of the differential between the
salary of a Research Scientist and that of a Senior Research
Scientist for the period from February 4, 1993 to the date of the
promotion. Respondent is also ordered to pay Complainant Zinn
interest on this back pay award, to be calculated at the rate
provided at 26 U.S.C. § 6621 (1988).[14]
3)The Respondent is ordered to reinstate Complainant Morris as
Nuclear Analysis Program Coordinator.
4)The Respondent is ordered to reinstate Complainant Morris as
the Group Leader of the Nutrition, Epidemiology and Immunology
Group or its equivalent.
5)The Respondent is ordered to post on all bulletin boards of the
Missouri University Research Reactor, where Respondent's official
documents are posted, a copy of this Decision and Order for a
period of 60 days, ensuring that it is not altered, defaced or
covered by any other material.
6)The Respondent is ordered to pay $40,886.93 in attorneys' fees
and litigation costs awarded in this case pursuant to the ALJ's
Recommended Decision and Order on Attorney Fees of October 24,
[PAGE 16]
1994 and to assume liability for any additional attorneys' fees
and costs reasonably incurred to date.
7)Complainants Zinn and Morris are granted a period of 30 days
from the date of this order to submit petitions for costs and
expenses, including attorneys' fees, not covered by the ALJ's
October 24, 1994 Recommended Decision and Order on Attorney Fees.
The Respondent may file a response to such petitions within 60
days of the date of this order.
SO ORDERED.
ROBERT B. REICH
Secretary of Labor
Washington, D.C.
[ENDNOTES]
[1]
Section 211 of the ERA was formerly designated Section 210, but
was redesignated pursuant to Section 2902(b) of the Comprehensive
National Energy Policy Act of 1992, Pub. L. No. 102-486, 106
Stat. 2776, which amended the ERA effective October 24, 1992.
[2]
The caption reflects the correction of Complainant Morris' name
from Steven J. Morris as it appeared on the ALJ's R. D. and O.
and on orders issued by the Office of Administrative Appeals.
See Complainant Morris' Brief at 15; R. D. and O. at 31.
[3]
In response to the Order issued May 4, 1995 by the Director of
the Office of Administrative Appeals, the parties have filed a
Joint Status Report addressing the impact on these consolidated
complaints of an agreement entered into on January 18, 1995, by
Zinn and his wife, Dr. Tandra Chaudhuri, with the University.
Although that agreement formed the basis for the settlement and
dismissal of a complaint filed by Dr. Chaudhuri, see Chaudhuri
v. The Curators of the University of Missouri, Case No. 94-
ERA-42, Sec. Order Approving Settlement and Dismissing Complaint,
May 1, 1995, and provides for a limit on the amount of damages
recoverable by Zinn in this case, the parties in these
consolidated complaints have indicated that they wish to proceed
with the adjudication of these claims filed by Zinn and Morris.
Joint Status Report at 2. As the parties have not sought
disposition of the Zinn and Morris complaints based on the
January 18, 1995 agreement, such agreement is not before me for
review in this case. See 42 U.S.C. 5851(b)(2)(A)
(Secretary may not terminate a proceeding on the basis of a
settlement without the participation and consent of the
complainant); see generally Macktal v. Secy. of Labor, 923
F.2d 1150 (5th Cir. 1991)(holding that Secretary erred in
modifying settlement agreement); Thompson v. United States
Dept. of Labor, 885 F.2d 551 (9th Cir. 1989)(holding that
Secretary's addition of "with prejudice" to the dismissal
condition agreed to by the parties was error). I therefore
render no ruling on the adequacy of such agreement with regard to
Zinn and Morris, see generally Fuchko and Yunker v. Georgia
Power Co., Case Nos. 89-ERA-9, 89-ERA-10, Sec. Ord., Mar. 23,
1989, slip op. at 1-2 (addressing standard under which
settlements submitted for approval will be reviewed by the
Secretary), and consider the January 18, 1995 agreement germane
to these consolidated complaints only to the extent that it
indicates compliance with the preliminary order for relief issued
on June 20, 1994.
[4]
The following abbreviations are used herein for references to
the record: Hearing Transcript, T.; Zinn Exhibit, ZX; Morris
Exhibit, MX; Respondent's Exhibit, RX.
[5]
When read in context, the ALJ's statement that "The University
has not made a convincing case that Zinn was denied promotion
consideration for legitimate reasons," R. D. and O. at 40,
clearly does not indicate that he placed the burden of persuasion
on the University. See R. D. and O. at 31-32.
[6]
The University also urges that the ALJ erred in disregarding
Rhyne's testimony "that there were other scientists who were at
least as qualified for promotion as Zinn" who had also not been
promoted. Respondent's Brief at 12. Rhyne's testimony on this
point, however, is cursory and merely cites some specific factors
that would support the formal candidacy for promotion of each of
the other three scientists that are referred to; Rhyne does not
provide an overall assessment of any of the scientists under the
promotion guidelines. T. 1067-68. Furthermore, documentation to
support the University's contention, in the form of the curricula
vitae and personnel assessments of such scientists, was not
offered in evidence.
[7]
Consequently, the University's contention that, under the
court's decision in Mackowiak, the ALJ erroneously failed
to "sort out the motives" in Zinn's case is wholly without merit.
[8]
The University suggests that a legitimate basis for the
University's adverse action toward Zinn would be hostility
resulting from "Zinn's method of presentation" of his safety
concerns. Respondent's Brief at 8. The facts in this
case are clearly distinguishable from those in which the
complainant has engaged in disruptive conduct such that a
legitimate basis for adverse action exists. Cf. Gibson
v. Arizona Public Service Co., Case No. 90-ERA-29, Sec. Dec.,
Sept. 18, 1995 (complainant participated in "shop bickering" and
harassed another employee); Rainey v. Wayne State Univ.,
Case No. 89-ERA-48, Sec. Dec., Apr. 21, 1994 (complainant created
turmoil and disruption unrelated to protected activity and
harassed co-workers, who asked for his termination); see
generally Dunham v. Brock, 794 F.2d 1037 (5th Cir. 1986) and
cases cited therein; Lajoie v. Environmental Management
Systems, Inc., Case No. 90-STA-31, Sec. Dec., Oct. 27, 1992,
slip op. at 10-14, and cases cited therein.
[9]
The University also contends that the ALJ committed reversible
error in failing to admit the report, proferred by the University
at hearing, see T. 956-59, of a task force of three
tenured professors from the University faculty who investigated
the question of whether Zinn and Morris had been discriminated
against by the University. Respondent's Brief at 10-11; see
[Rejected] RX 17. As indicated by the ALJ at hearing, T.
959, the University's willingness to convene a task force for
this purpose, in response to the Complainants' requests, does not
provide probative evidence of the University's motivation at the
time of the adverse actions here at issue. Furthermore, the
questionable reliability of a report authored by the Respondent's
employees and the potential for undue prejudice to the
Complainants is evident. Cf. Roadway Express, Inc. v. Brock,
830 F.2d 179, 181 (11th Cir. 1987)(addressing role of
arbitration decisions rendered under collective bargaining
agreements as evidence in administrative proceedings).
Although, as a general rule, the ALJ should admit such evidence
for whatever probative value it does have, see Fugate
v. Tennessee Valley Authority, Case No. 93-ERA-0009, Sec.
Dec., Sept. 6, 1995, slip op. at 3-4 (citing Builders Steel
Co. v. Commissioner of Internal Rev., 179 F.2d 377 (8th Cir.
1950)(addressing lessened significance of technical rulings on
admissibility of evidence in non-jury trials)), any error by the
ALJ in failing to do so in this instance is harmless.
[10]
In addition to Morris' protected activity in January regarding
pursuit of the target composition concerns that is referred to by
the ALJ, R. D. and O. at 11, 13; T. 409-11, Morris also testified
that he raised safety concerns in a meeting of the Shipping Task
Force that was held in August 1992, T. 400-01; see T. 653-
54 (Gunn), and participated in a meeting of the Reactor Services
Subcommittee on February 1, 1993, at which he raised objections
concerning the issue of irradiation target certification by
reactor customers, and also pursued this issue after that
meeting, T. 446-54. Furthermore, Morris testified that, once he
was aware of the opposition that Zinn was encountering in the
Shipping Task Force, he pursued this subject in meetings of the
Reactor Services Subcommittee and the Reactor Safety
Subcommittee, of which Morris was a member. T. 442-43. The
raising of these concerns would also constitute protected
activity under the ERA although, as was found by the ALJ, Morris'
activity in regard to the exempt license controversy, R. D. and
O. at 14-15, would not be protected under the Act.
[11]
Although evasive on this point, Rhyne's testimony on cross-
examination indicates that he was aware of Zinn's disputes with
others on the Shipping Task Force and the Irradiation Sub-
committee. T. 1073-74; see also T. 1070 (Rhyne's
statement that he "barely knew about" Zinn's activity on the task
force and sub-committee).
[12]
Although Glascock testified in support of the view that the
target composition concerns pursued by Zinn and Morris were of
considerable significance, T. 86-91, he was apparently not a
member of the Shipping Task Force or the Irradiation
Subcommittee, T. 81-91.
[13]
As indicated in n.3, supra, the settlement agreement
dated January 18, 1995 indicates compliance with some of the
provisions of the Preliminary Order of June 20, 1994 with regard
to Complainant Zinn.
[14]
See Johnson v. Bechtel Construction Co., Case No. 95-
ERA-0011, Sec. Dec. (Sept. 28, 1995), slip op. at 2-3.
