DATE: October 20, 1995
CASE NO. 94-ERA-32
IN THE MATTER OF
CHARLES J. BOYTIN,
COMPLAINANT,
v.
PENNSYLVANIA POWER AND LIGHT COMPANY,
RESPONDENT.
BEFORE: THE SECRETARY OF LABOR
DECISION AND ORDER OF REMAND
This proceeding arises under the whistleblower provision of
the Energy Reorganization Act of 1974, as amended (ERA or Act),
42 U.S.C. § 5851 (1988 & Supp. V 1993). Before me for
review is the Recommended Decision and Order (R. D. and O.)
issued by the Administrative Law Judge (ALJ) on March 14, 1995.
Complainant Boytin raised allegations in his complaint that
he was subjected to adverse and retaliatory action as a
consequence of his speaking to Nuclear Regulatory Commission
(NRC) staff regarding alleged security violations occurring at
Respondent Pennsylvania Power and Light Company's (PP&L)
Susquehanna nuclear power plant. Boytin is employed as a Senior
Security Officer at the Susquehanna facility.
The ALJ recommends dismissal of the complaint for Boytin's
putative failure to make a prima facie showing of
discrimination. The ALJ determined that PP&L did not engage in
retaliatory action against Boytin. R. D. and O. at 13. After
reviewing the entire record, including the hearing transcript,
the exhibits and the briefs filed by the parties, I disagree with
the ALJ's
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determination and find that Boytin has sustained his burden of
proof with regard to the discriminatory nature of the
Respondent's actions toward him. I therefore remand the case to
the ALJ for a determination of the appropriate relief to which
Boytin is entitled consistent with the opinion below.
BACKGROUND
The ALJ carefully reviewed the record and I concur in his
presentation of the relevant facts in this case. R. D. and O. at
1-8. Briefly stated, Boytin was hired as a Security Officer by
PP&L in 1982 and was promoted to a supervisory position of Senior
Security Officer in 1984. Company policy provides for each
employee to undergo a Performance Appraisal each year. In the
rating years from 1984 through 1988, Boytin was appraised in the
Fully Competent or Good category.[1] Claimant's Exhibits (CX)
6-10. In rating years 1989 through 1991, he was appraised in the
Exceeds Standards or Very Good category. CX 3-5. In January
1992, Darryl Zdanavage became Boytin's shift supervisor,
Transcript (T.) at 456-57, although Boytin's 1991 appraisal was
prepared by his supervisor for the preceding nine months. CX 3.
In March 1992, Boytin advised Zdanavage that he, Boytin,
had inadvertently violated a security procedure, although he
quickly remedied the situation at that time. T. at 25-26. In
all probability no one would have ever known of the breach had
Boytin not reported it to Zdanavage. T. at 520. Although
Zdanavage cited Boytin's security lapse in a memo, he also
praised Boytin for his honesty and said that turning oneself in
was "admirable and indicative of your character." CX 13.
There was an apparently normal business interaction between
Boytin and Zdanavage during the first nine months of 1992, at
least as perceived by Boytin and two other Security Officers
working in Zdanavage's shift. T. at 21-22 (Boytin); 104
(Oswald); 116 (Houseknecht). In September 1992, Boytin contacted
the NRC site representative to report what he believed were
serious breaches in security protocol by Zdanavage and the
Assistant Shift Supervisor, Ronald Kishbaugh. T. at 28-32.
Shortly after Boytin's action became known within the security
force, there was a marked change in Zdanavage's and Kishbaugh's
attitudes and working relationships toward Boytin. T. at 38-41;
104; 116; 363-64 (Kishbaugh); but see 463-64 (Zdanavage).
Zdanavage's annual appraisals of Boytin's general
performance in March 1993, and March 1994, placed him in the Good
category, which was a level drop from Boytin's three previous
annual appraisals. Although the general ratings Boytin received
after engaging in protected activity were the same ratings
Zdanavage gave the other two Senior Security Officers, Boytin's
fractional ratings, or the ratings of specific employment
elements upon which the overall rating was based, were
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significantly lower than those given to the other Senior Security
Officers. CX 1, 2 (Respondent's Exhibits [RX] 56, 57); RX 27,
28.[2] Boytin challenged the lowered performance ratings, but
they were upheld at each higher level of administrative review.
Boytin filed a complaint with Department of Labor Wage and
Hour Division on June 13, 1994. Subsequent to a factfinding
investigation, the Department of Labor found that Boytin was a
protected employee, engaged in a protected activity and that
discrimination was a factor in the actions about which he had
complained.[3] Respondent appealed the Wage and Hour
determination, and a hearing was held on October 27 and 28, 1994.
DISCUSSION
The employee protection provision of the ERA, 42 U.S.C.
§ 5851(a), makes it unlawful for an employer to retaliate
against an employee for activities pertaining to alleged
violations of the Act. The Secretary has set forth the burdens
of persuasion and production in whistleblower proceedings,
requiring the complainant to first present a prima facie
case. To do this, a complainant must show: (1) that the
complainant engaged in protected activity; (2) that the employer
was aware of that activity; and (3) that the employer took some
adverse action against the complainant. Carroll v. Bechtel
Power Corp., 91-ERA-46, Sec. Dec. and Order, Feb. 15, 1995,
slip op. at 8-12, pet. for review docketed, No. 95-1729
(8th Cir. Mar. 27, 1995).
The ALJ found that: (1) Boytin engaged in protected activity
by his initial report to the NRC and subsequent cooperation with
the investigation of his allegations; and (2) PP&L had actual
knowledge of Boytin's protected activity. R. D. and O. at 8-10.
I agree. The record fully substantiates these findings.
The ALJ confused the distinction between making a prima
facie case and carrying the ultimate burden of proof. The
ALJ stated that "[C]omplainant failed to establish that his 1992
and 1993 appraisals constituted an adverse action. R. D. and O.
at 12. But, the ALJ went on to conclude that "[t]herefore,
[C]omplainant has failed to prove one of the elements of his
prima facie case . . . ." Id. As I have noted in
several decisions, see e.g. Carroll, slip op. at 8-12,
once a case has been fully tried on the merits, the answer
to the question whether the complainant presented a prima
facie case is no longer particularly useful. In this
situation, although the ALJ couched the determination in terms of
a prima facie case, it appears that the entire record was
evaluated in reaching the conclusion that Boytin failed to prove
an adverse action. However, I disagree with the ALJ's
conclusion.
The ALJ has too narrowly defined the adverse action element
of a retaliation case. The ALJ focusses on the fact that
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Boytin's general rating was in the Good range and as such,
determined that Boytin was not harmed with regard to his career
or salary and the appraisal "did not affect the terms of his
employment in any manner." R. D. and O. at 10. I do not agree
with the ALJ's assessment of the effects of the appraisals, nor
do I concur that the animus incurred by Boytin was contained
solely in the resultant appraisals.
Testimony by Richard L. Stotler, the manager of nuclear
security at PP&L's Susquehanna plant, substantiates Boytin's
allegation that his lower fractional ratings resulted in a
nominally lower salary increase relative to the other Senior
Security Officers. Although the total difference in dollars, as
calculated by Stotler, of $609.26, is not substantial, it is
indicative of Boytin's material loss. T. at 191-97; RX 12, 62.
Stotler further testified that the company was in a very tight
financial situation, T. at 189-90, and that an employee's
comparative fractional ratings could have a bearing on his job
retention if the company was faced with a reduction in force due
to deteriorating financial conditions. T. at 219-20.
The most drastic result of Boytin's allegations of security
improprieties to the NRC, however, was the degree of animus they
generated and how his life on the job changed for the worse.
Boytin's contentions of these adverse changes were substantiated
by his fellow workers, Oswald, T. at 103-04; and Houseknecht, T.
at 116-17. Even Kishbaugh, the Assistant Shift Supervisor
implicated in Boytin's allegations, admitted to the change in how
he related to Boytin after the NRC investigation. T. at 346-47.
Normal every day contact with the supervisors was all but
shut down. Prior to the NRC investigation, either or both
supervisors would spend approximately an hour on a post check
during each half of the twelve hour shift, or approximately two
hours each work day, with Boytin. They would chat with him,
passing the time of day, while he was at his work station
monitoring the activities of the Security Officers on field duty
in the facility. T. at 21-22. After Boytin's protected activity
the post checks changed to 15 to 20 stress-filled minutes by
either or both supervisors. The supervisors would stand silently
behind Boytin, staring at him, not saying anything until they
left, telling him to log them in for a post check. Id. at
94. Not surprisingly, Boytin's reactions to the stress of this
hostile work situation were a variety of physical ailments
requiring him to take additional sick leave.[4] Id. The
additional sick leave was subsequently determined by Zdanavage to
be a negative factor in his evaluation of Boytin's dependability.
The result was an adverse impact on Boytin's general performance
appraisal. CX 1, 2.
The animus toward Boytin appears to be pervasive throughout
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the security organization. Roland Ferentz, the Security
Operations Supervisor, testified that although he had approved
Boytin's 1990 and 1991 Very Good general appraisals, T. at 324-
25, he did not consider Boytin's drop in ratings to the worst
rated Senior Security Officer in 1992 and 1993, either "harsh"
or "drastic." T. at 334.
John Paciotti, a security shift supervisor who had been
Boytin's assistant shift supervisor, began to find fault with
Boytin's work in 1993, T. at 394, even though he had previously
rated or concurred in Boytin's Very Good ratings on the 1989 and
1990 Performance Appraisals. CX 4 and 5. Security Manager
Stotler testified that: "I considered . . . [moving Boytin to a
different shift] and decided against it for a couple of reasons.
First of all, I'm sure officer Boytin considered whatever
repercussions may happen by taking the road he took. So, that
was his decision to do that." (Emphasis supplied). T. at
241. The decision not to move Boytin was apparently in
concert with the suggestion of Robert Gombos, PP&L's vice-
president for human resources, who thought, Stotler testified, it
would be best for Boytin and Zdanavage to resolve the issues, "to
get together, talk, come up with a plan of what they're going to
do to improve their relationships and this and that and that and
this." Id. at 178.
Zdanavage's supervisory style can be fairly
characterized as idiosyncratic. Zdanavage stressed his concern
for teamwork and harmony to the members of his shift. T. at 388.
Nevertheless, he criticized Boytin for not volunteering for more
routine overtime, at times when apparently enough shift members
were already volunteering for the additional pay. He also
criticized Boytin for volunteering to work overtime during the
Christmas holiday period, when most security personnel were
reluctant to work overtime. CX 1 at 8; CX 2 at 12; T. at 467,
476.
Zdanavage testified that he, as a supervisor, had never
given a subordinate employee an overall Very Good or Exceeds
Expectations rating. T. at 477. Zdanavage's ratings of the
specific elements of the 1992 Performance Appraisals of the three
Senior Security Officers on his shift, Boytin, Drury and Urban,
range from Very Good to Marginal. It is striking that
Zdanavage's numeric rating of Boytin is consistently less
favorable than that of either Drury or Urban, even when the
descriptive language used is almost identical word for word.[5]
Furthermore, although Zdanavage commented on Boytin's overall
performance as being above his peers, he ranked Boytin last among
the three Senior Security Officers in nine out of fourteen
appraisal elements. RX 56.
The underlying purpose of the whistleblower provision of the
ERA is to protect employees who become aware of, and report,
[PAGE 6]
violations of the Act by their employers. The scope of the Act
must therefore be broadly construed to prevent the intimidation
of workers through retaliation. DeFord v. Sec'y of Labor,
700 F.2d 281, 286 (6th Cir. 1983). This breadth of construction
includes the form that the discriminatory actions against the
employee may take and goes beyond a measurable dollar
loss, although that criterion is in fact met in this case.
See Blackburn v. Martin, 982 F.2d 125, 131 (4th
Cir. 1992)(emotional distress provides basis for compensatory
damages); Airtrip v. Ebasco Services, Inc, 89-ERA-23, Sec.
Dec. and Order of Remand, Mar. 21, 1995, slip op. at 6-7 (adverse
action need not be monetary loss); Bassett v. Niagara Mohawk
Power Corp., 85-ERA-34, Sec. Final Dec. and Order, Sept. 28,
1993, slip op. at 4;[6] seeDeFord v. T.V.A., 81-
ERA-1, Sec. Order on Remand, Apr. 30 1984, slip op. at 3-4
(mental pain and suffering are compensable).
Boytin's testimony that the adverse working conditions
occurred shortly after it became known that it was he who had
gone to the NRC site representative is corroborated by Security
Officers Oswald and Houseknecht. The temporal proximity of the
changed working conditions to Boytin's protected actions is
sufficient to establish an inference of causation. Couty v.
Dole, 886 F.2d 147, 148 (8th Cir. 1989). The temporal
inference in conjunction with the discriminatory performance
ratings, as set out above, show that Boytin carried his burden to
prove that his protected activity caused the adverse action.
Therefore, I determine that Boytin has proven by a
preponderance of evidence that an adverse action was taken
by PP&L against him and that it was motivated by Boytin's
protected activity. I do not determine that Boytin has made a
persuasive case that he would have been entitled to an overall
rating of Very Good (2), and is therefore entitled to be in the
higher salary group. Boytin's Performance Appraisal ratings
should be changed to reflect his actual job performance and his
back pay should be recalculated to meet the higher of the other
two Senior Security Officers. Boytin should also be entitled to
take advantage of any of the company's other compensable benefits
including its stock option and savings plans that may have been
adversely affected by PP&L's discriminatory conduct. T. at 192.
In addition, I am satisfied that given the hostile working
conditions and the degree of animus at the Susquehanna facility,
that Boytin's request for a transfer to another PP&L facility
within a 30 mile radius of his home, with equivalent pay and
supervisory group responsibilities, is reasonable and should be
accommodated by the company, if possible. On remand, the ALJ
shall consider what other relief may be appropriate, including
front pay,[7] if such a transfer is not possible.
Finally, Boytin should be awarded reasonable attorney's fees
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and costs. 42 U.S.C. § 5851(b)(2)(B); DeFord, 700
F.2d at 288-89.
Accordingly, this case is remanded to the ALJ for a
Recommended Decision on the amount of appropriate damages,
including back pay and benefits, attorney's fees and costs,
consistent with this decision.
SO ORDERED.
ROBERT B. REICH
Secretary of Labor
Washington, D.C.
[ENDNOTES]
[1] The company modified its appraisal forms, descriptive
terminology and its numeric rating system during the periods in
question. This decision will use terminology consistent with the
actual ratings rather than the terminology then in use. The
rating periods overlapped the calendar year, starting in March.
Each rating period was designated by the year the period began,
so rating year 1993 would encompass from March 1993 to March
1994.
[2] The record contains the 1992 performance appraisals for the
other two Senior Security Officers, and conforming testimony from
Richard L. Stotler, PP&L's Manager of Nuclear Security at the
Susquehanna plant. T. at 248. The record does not contain RX 31
and 32, which are the 1993 performance appraisals for the two
other Senior Security Officers, but I take notice of the
fractional ratings these officers received as cited in
Complainant's brief before the Secretary at 11, and not disputed
by Respondent in its reply brief. There is no explanation why
these appraisals were not introduced into evidence at the
hearing.
[3] Letter dated July 13, 1994 to H.G. Stanley, VP Nuclear
Operations, PP&L, from Michael J, Corcoran, District Director.
[4] It is not necessary to analyze this as a hostile work
environment case since the actions of the Respondent caused
tangible job detriment. Meritor Savings Bank v.
Vinson, 477 U.S. 57, 64 (1986).
[5] The following excerpts are from each of the Senior Security
Officers' 1992 Performance Appraisals. It should be noted that
the lower the rating number the better the rating.
John Drury - Accomplishment 1 "Through out the evaluated
period, John has performed with qualities indicative of a fully
competent Sr. Security Officer. He has the ability to accurately
assess situations, and possesses the skills to effectively
control the actions of the Security Force during day to day
activities. Performance Level: 2.8"
Frank Urban - Accomplishment 1 "Frank has demonstrated all
the qualities of a fully competent Sr. Security Officer. He
makes quick and accurate assessments and can effectively deploy
Security Force members to adequately neutralize a situation.
Performance Level: 2.8"
Charles Boytin - Accomplishment 1 "Throughout the evaluated
period, Chuck has demonstrated the qualities indicative of a
fully competent Sr. Security Officer. He makes quick and
accurate assessments and displays the effectiveness to deploy
Security Force members to neutralize a given situation.
Performance Level: 3.0"
John Drury - Accomplishment 5 "John is extremely
knowledgeable of the personal computers that are utilized to
complete a multitude of security related documents. When these
documents are submitted for supervisory review, they are complete
accurate and generally error free. Performance Level: 2.5"
Frank Urban - Accomplishment 5 "Frank understands computer
applications. He effectively makes use of computer equipment and
facilities to document and compile reports relevant to Security.
Frank's work is extremely neat and is generally error free.
Performance Level: 2.8"
Charles Boytin - Accomplishment 5 "Chuck possesses a
competent knowledge of computer fundamentals and makes effective
use of available equipment. He insures all activities of the
shift are chronologically annotated. In most cases, Chuck's
submitted paper work is error free. Performance Level: 3.0"
[6] I disagree with the ALJ's distinguishing the Bassett
decision fromthis case. In Bassett the
complaint was denied because the Complainant failed to show
temporal proximity to the adverse action and the Respondent was
able to present an unrebutted nondiscriminatory reason for the
adverse action. The Secretary did find, however, that negative
comments in a performance evaluation constituted an adverse
employment action.
[7] The Secretary has not yet ruled on the appropriateness of
an award of front pay in whistleblower cases where reinstatement
does not appear to be in a complainant's best interest. The
issue is, however, squarely before the Secretary in the case of
Creekmore v. ABB Power Systems Energy Services, Inc., 93-
ERA-24, in which an ALJ recommended front pay damages.
