Kahn v. Secretary of Labor, 64 F.3d 271 (7th Cir. 1995)
In the
United States Court of Appeals
For the Seventh Circuit
No. 94-3751
JOHN KAHN,
Petitioner,
v.
UNITED STATES SECRETARY OF LABOR,
Respondent,
and
COMMONWEALTH EDISON COMPANY,
Intervening Respondent.
On Petition for Review of a Final Order
of the Secretary of Labor
ARGUED MAY 31, 1995--DECIDED AUGUST 24, 1995
Before POSNER, Chief Judge, RIPPLE, Circuit Judge,
and NORGLE, District Judge.*
NORGLE, District Judge. Commonwealth Edison ("Com-
Ed") constructively discharged John Kahn ("Kahn"), a
Quality Control Auditor assigned to its Zion, Illinois,
nuclear station. Kahn claims that this termination violated
the Energy Reorganization Act ("ERA" or the "Act"), 42
U.S.C. sec. 5851, which protects so-called "whistleblowers"
from discrimination due to their employment-related ac-
tivities. After a hearing, an Administrative Law Judge
("ALJ") concluded that the dismissal of Kahn was for
lawful reasons not prohibited by the Act. The Secretary
of Labor adopted and affirmed the ALJ's decision. Since
the Secretary's decision is supported by substantial evi-
dence in the record, we affirm.
I.
ComEd first hired Kahn on July 8, 1991. Kahn worked
as a Quality Control Auditor and was assigned to the
Zion, Illinois, nuclear power plant./1 ComEd hired Kahn
to perform safety-related audits to determine whether
ComEd operated its nuclear plant in accordance with its
own safety requirements and those of the Nuclear Regu-
latory Commission ("NRC"). Kahn was required to report
violations of such regulations to his superiors and other
coworkers. On Kahn's first day, he conducted himself in
a sarcastic, argumentative, and condescending manner
towards another employee, Susan White/2 ("White"). White
would later complain to her boss of Kahn's conduct. Sev-
eral days after beginning at the plant, when Kahn in-
quired about a delay in receiving his first paycheck, Kahn
displayed a loud, abusive, and belligerent demeanor.
Cheryl Orsini ("Orsini") complained of this behavior to
her assistant manager. As a result of Kahn's unruly be-
havior, David Bump ("Bump"), Kahn's immediate super-
visor, counseled him regarding the impropriety of his con-
duct toward White and Orsini. Kahn reacted to the coun-
selling by shifting the blame to Orsini and stating that
he did not appreciate the "kangaroo court."
Later that month, a third coworker, Kathy Wagner
("Wagner"), complained to her superiors that Kahn had,
on several occasions, used suggestive and lewd language
with her and touched her in an inappropriate manner.
Kahn was then advised by the human resources super-
visor, Norman Breseman ("Breseman"), that such conduct
was in violation of company policy against sexual harass-
ment. Breseman warned Kahn that a subsequent similar
occurrence could lead to his discharge. Kahn admitted in
his testimony before the ALJ that he had touched Wagner
and that Breseman warned him about his conduct toward
Wagner.
On October 16, 1991, Kahn received his first perform-
ance evaluation. Bump checked the "fully meets expec-
tations" box, but testified that he did so even though he
still had lingering concerns about the complaints regard-
ing Kahn. Bump explained that he gave Kahn "the benefit
of the doubt" since the three episodes occurred in "a
three-week time frame when [Kahn] first started" and be-
cause two months had elapsed since the complaints.
In mid-March 1992, Kahn made a total of five "internal"/3
complaints regarding violations of safety procedures and
NRC regulations. First, Kahn advised Bump, the Nuclear
Quality Program superintendent, of what he perceived to
be improper handling of nuclear fuel bundles prior to a
"smear test" to determine radiation contamination. Sec-
ond, Kahn advised Williams, his supervisor, of an alleged
storage problem. Kahn complained that certain materials
were stored in an uncontrolled environment rather than
stored in the required temperature and humidity levels.
Third, Kahn made complaints to Bump regarding his dis-
agreement with a ComEd policy. ComEd had a policy of
keeping track of all employee violations in each of the
violators' personnel files. Kahn believed that this policy
discouraged cooperation with safety audits. Fourth, Kahn
notified Robert Whittier ("Whittier") of his opinion that
the auditors should use more reliable means of reporting
audit observations, as opposed to using ComEd's Field
Monitoring Reports. Finally, Kahn advised Whittier that
he thought the questions used in the audits were out-
moded.
Also in March 1992, Bump began receiving additional
complaints relating to Kahn. Bump learned that Kahn was
working overtime without obtaining the necessary ap-
proval. Kahn admitted in the hearing before the ALJ that
he knew that he was supposed to secure permission for
such overtime. Bump also received complaints that Kahn
was abrasive and aggressive with workers whose organiza-
tions he was auditing. Other complaints questioned the
thoroughness of some of his investigations. As a result
of the complaints, Bump counseled Kahn on March 11,
1992. In response, Kahn blamed the conduct on the "un-
due resistance" of the audited organizations. Bump investi-
gated the alleged resistance, but found that other auditors
had not encountered the alleged resistance.
Later in March, Kahn was assigned to work on an audit.
Whittier was the team leader of the audit. Before the
audit, Whittier met with the entire audit team, advised
each team member of his individual responsibilities, and
then met with each worker separately. In this separate
meeting, Whittier authorized Kahn to work up to four
hours of overtime, if necessary, to complete a specific ac-
tivity. Whittier also expressed to Kahn that Kahn must
complete the assignment by March 31, 1992. Yet, on
March 31, Kahn had not completed the assigned work.
Moreover, although Kahn had worked the full four hours
of authorized overtime, the overtime had not been spent
on the specified activity.
On April 2, 1992, Whittier asked Kahn for an explana-
tion for Kahn's failure to complete the assigned work.
Kahn reacted with loud, verbal abuse and two pokes to
Whittier's chest. Whittier, in turn, used similar loud and
offensive language. Russell Williams ("Williams") testified
that, at the same time Whittier confronted Kahn, he was
en route to ask Kahn why he had worked the overtime.
As he approached Kahn's cubicle, Williams heard Kahn
using foul language. Kahn later admitted that he had used
"four-letter words," touched Whittier, and had been upset.
The entire incident was reported to Bump, who at the
time was out of town. Bump requested Whittier, Williams,
and a coworker who had witnessed the confrontation to
document what had happened. On his return, Bump re-
viewed their reports. On April 14, 1992, Bump had a
discussion with Whittier, Williams, the coworker, and his
supervisors regarding the incident, as well as Kahn's en-
tire work history with ComEd.
Kahn's supervisors, Bump and Ron Roman ("Roman"),
and Rick Erwin ("Erwin"), a supervisor of the Industrial
Relations Department, then met with Kahn to allow him
to tell his version of the incident. Kahn was told at this
meeting that ComEd was considering discharging him.
After the meeting, the supervisors decided that Kahn
should be terminated due to the number of incidents of
unacceptable behavior in the ten months Kahn was em-
ployed with ComEd. ComEd offered Kahn the choice be-
tween resignation or termination. Kahn later resigned.
After Kahn's departure, he reported safety concerns to
the NRC.
On May 12, 1992, Kahn filed a complaint with the Sec-
retary of Labor alleging that ComEd terminated him in
violation of the Energy Reorganization Act ("ERA"). The
ALJ conducted a hearing on December 9 and 10, 1992,
at which eight of Kahn's former coworkers and super-
visors testified. All eight ComEd employees had some-
thing negative to say regarding Kahn's ability to interact
with other people, an integral part of an auditor's per-
formance. Two coworkers, Darlene Murphy ("Murphy")
and Syed Jaffery ("Jaffery"), also testified. Murphy stated
that, in her opinion, Kahn could have conducted "certain
aspects of his job" without "upsetting everybody," and
that, at times, Kahn was not helpful "to [the] auditing
mission." Jaffery testified that Kahn had "a very short
temper" which effectually hindered both Kahn and Jaffery
in the performance of their audit duties. Bump and Erwin,
two of the three supervisors involved in the decision to
terminate Kahn, testified that the dismissal was triggered
solely by Kahn's conduct.
On February 24, 1993, following the two day hearing,
the ALJ issued a recommendation order dismissing Kahn's
complaint. The ALJ found that although Kahn had made
complaints of safety hazards protected by the ERA, it was
not because of these complaints that he was fired. To the
contrary, the ALJ concluded that the behavior and con-
duct of Kahn had been the sole reason for his discharge.
On October 3, 1994, the Secretary of Labor ("Secre-
tary") issued his decision and order adopting the ALJ's
recommendation. The Secretary found that Kahn had es-
tablished a prima facie case, but that he failed to prove
that ComEd's legitimate, non-discriminatory reason for
terminating him was pretextual. Accordingly, the Secre-
tary dismissed the complaint. Kahn appealed. We affirm.
II.
The court has jurisdiction pursuant to 42 U.S.C. sec. 5851(c).
This section states, in pertinent part, that "[a]ny person
adversely affected or aggrieved by an order issued
[by the Secretary of Labor] . . . may obtain review of
the order in the United States Court of Appeals for the
circuit in which the violation, with respect to which
the order was issued, allegedly occurred." 42 U.S.C.
sec. 5851(c)(1). Kahn alleges that ComEd unlawfully ter-
minated him while he was assigned to the Zion, Illinois,
nuclear power plant. Because the alleged violation of the
Energy Reorganization Act occurred within this circuit,
we have jurisdiction to review the Secretary of Labor's
final order.
In reviewing cases arising under the ERA, we are re-
quired to conform to the standard of review set forth in
the Administrative Procedure Act. 42 U.S.C. sec. 5851(c)(1).
Thus, we may overturn the Secretary's decision only if we
find that it "is unsupported by substantial evidence or if
it is arbitrary, capricious, an abuse of discretion, or other-
wise not in accordance with the law." 5 U.S.C. sec. 706(2)(A),
(E); Lockert v. United States Dept. of Labor, 867 F.2d 513,
516-17 (9th Cir. 1989). Substantial evidence is that which
is "more than a mere scintilla. It means such relevant
evidence as a reasonable mind might accept as adequate
to support a conclusion." Richardson v. Perales, 402 U.S.
389, 401 (1971) (quoting Consolidated Edison Co. v. NLRB,
305 U.S. 197, 229 (1938)). "Substantial evidence may be
less than a preponderance of the evidence, . . . and a
reviewing body may not set aside an inference merely be-
cause it finds the opposite conclusion more reasonable or
because it questions the factual basis." Freeman United
Coal Mining Co. v. Stone, 957 F.2d 360, 362 (7th Cir.
1992) (quoting Smith v. Director, OWCP, 843 F.2d 1053,
1057 (7th Cir. 1988)).
When reviewing the Secretary's final decision, we are
mindful that "where Congress has made an explicit or im-
plicit grant of power to an agency over certain matters,
[such as review of claims arising under the ERA], that
grant of power embodies congressional recognition of the
agency's 'special competence' to handle those matters, and
compels deference from the courts in reviewing how that
power is exercised." National Fuel Gas Supply Corp. v.
FERC, 811 F.2d 1563, 1569-70 (D.C. Cir. 1986) (citing
Chevron U.S.A., Inc. v. Natural Resources Defense Coun-
cil, Inc., 467 U.S. 837, 843-44 (1984)); see also NLRB v.
Local 554, Graphic Communications Int'l Union, AFL-
CIO, 991 F.2d 1302, 1304 (7th Cir. 1993) (giving "substan-
tial deference" to National Labor Relations Board because
"Congress delegated to the Board primary responsibility
for developing and applying national labor policy").
III.
A. The Energy Reorganization Act
Kahn alleges that he was unlawfully terminated on April
14, 1992, and subsequently filed his complaint with the
Secretary of Labor on May 12, 1992. Thus, we must look
to the Energy Reorganization Act as it stood during that
time period./4 The Act stated, in pertinent part, as follows:
No employer, including a Commission licensee, an ap-
plicant for a Commission license, or a contractor or
a subcontractor of a Commission licensee or applicant,
may discharge any employee or otherwise discrimi-
nate against any employee with respect to his com-
pensation, terms, conditions, or privileges of employ-
ment because the employee (or any person acting pur-
suant to a request of the employee)--
(1) commenced, caused to be commenced, or is
about to commence or cause to be commenced a pro-
ceeding under this chapter or the Atomic Energy Act
of 1954, as amended [42 U.S.C. 2011 et seq.], or a
proceeding for the administration or enforcement of
any requirement imposed under this chapter or the
Atomic Energy Act of 1954, as amended;
(2) testified or is about to testify in any such pro-
ceeding or;
(3) assisted or participated or is about to assist or
participate in any manner in such a proceeding or
in any other manner in such a proceeding or in any
other action to carry out the purposes of this chapter
or the Atomic Energy Act of 1954, as amended [42
U.S.C. 2011 et seq.].
42 U.S.C. sec. 5851(a)(1)-(3). Congress added this sec. 5851 to
the Act in 1978. The related Senate report states:
This amendment is substantially identical to provi-
sions in the Clean Air Act and the Federal Water
Pollution Control Act. The legislative history of those
acts indicated that such provisions were patterned
after the National Labor Management Act and a sim-
ilar provision in Public Law 91-173 (FMSA) relating
to the health and safety of the Nation's coal miners.
S. Rep. No. 84, 95th Cong., 2nd Sess. at 29, 1978 U.S.
Code Cong. & Ad. News at 7303. The provisions of sec. 5851
serve to protect workers "from retaliation based on their
concerns for quality and safety." Mackowiak v. Univer-
sity Nuclear Sys., Inc., 735 F.2d 1159, 1163 (9th Cir.
1984). Both the ERA's legislative history/5 and NRC regu-
lations/6 are evidence of this purpose. Kansas Gas & Elec.
Co. v. Brock, 780 F.2d 1505, 1512 (10th Cir. 1985).
B. Standard for Proving Discrimination
Both the ALJ and the Secretary of Labor utilized the
framework set forth in McDonnell Douglas Corp. v.
Green, 411 U.S. 792 (1973) for defining the burdens in
proving "whistleblower" discrimination. This circuit has
yet to determine the applicable burden allocations in a
retaliatory discharge case arising under the Energy Re-
organization Act. While the McDonnell Douglas method
of proving discrimination, commonly known as the burden-
shifting or inferential method, was originally created to
address actions arising under the Civil Rights Act of 1964,
42 U.S.C. sec. 2000e et seq., this circuit utilizes the method
in discrimination claims arising under other Congressional
acts. See Giacoletto v. Amax Zinc. Co., Inc., 954 F.2d
424 (7th Cir. 1992) (using the method in a case regarding
the Age Discrimination in Employment Act). We see no
reason why the method prescribed by McDonnell Douglas
should not be employed in "whistleblower" retaliation
claims as well./7
There are three phases to the burden-shifting method.
In the first phase, the burden rests squarely on the em-
ployee. The employee can create an inference of discrim-
ination by establishing a prima facie case. A prima facie
case is established when the employee shows four ele-
ments: "(1) the employer is governed by the [Energy
Reorganization] Act; (2) the employee engaged in pro-
tected activity as defined in the Act," Bechtel Construc-
tion Co. v. Secretary of Labor, 50 F.3d 926, 933-34 (11th
Cir. 1995) (citing 42 U.S.C. sec. 5851); (3) the employee's sub-
sequent discharge; and (4) a nexus exists between the pro-
tected activity and the discharge. Simon v. Simmons
Foods, Inc., 49 F.3d 386, 389 (8th Cir. 1995) (citing Couty
v. Dole, 886 F.2d 147, 148 (8th Cir. 1989)). "Proximity in
time is sufficient to raise an inference of causation." Bech-
tel, 50 F.3d at 934 (citing Couty, 886 F.2d at 148).
The employee's burden of satisfying the four elements
of a prima facie case is not onerous; rather, a prima facie
showing is "quite easy to meet." Texas Dep't of Com-
munity Affairs v. Burdine, 450 U.S. 248, 253 (1981); Villa-
nueva v. Wellesley College, 930 F.2d 124, 127 (1st Cir.
1991). The establishment of a prima facie case creates a
rebuttable presumption that the employer's decision to
terminate the employee was the result of impermissible
factors in violation of the ERA. Rand v. CF Indus., Inc.,
42 F.3d 1139, 1144-45 (7th Cir. 1994).
Once an inference of retaliation is created, the burden
shifts to the employer to "articulate a legitimate, [nondis-
criminatory] reason for the discharge." Weiss v. Coca-Cola
Bottling Co., 990 F.2d 333, 336 (7th Cir. 1993). In this
second phase, if there is no evidence that dual motives
exist, the employer need not persuade the court; the
burden is simply one of production. St. Mary's Honor
Center v. Hicks, 113 S. Ct. 2742 (1993). The burden of
proof remains on the employee at all times. Id. However,
"once the plaintiff has shown that the protected activity
'played a role' in the employer's decision," Mackowiak,
735 F.2d at 1163-64, the employer has the burden to
prove by a preponderance of the evidence that it would
have terminated the employee even if the employee had
not engaged in the protected conduct."/8 Passaic Valley
Sewerage v. United States Dep't of Labor, 992 F.2d 474,
481 (3rd Cir. 1993) (citing Mt. Healthy City School Dist.
Bd. of Education v. Doyle, 429 U.S. 274, 287 (1977))./9 Once
the employer satisfies his burden, either of persuasion or
production, the rebuttable presumption is dissolved. Loyd
v. Phillips Bros., Inc., 25 F.3d 518, 533 (7th Cir. 1994).
The employee is then required to prove that the em-
ployer's proffered reason for the termination is a mere
pretext for an unlawful discharge. Fisher v. Transco Serv.
Milwaukee, Inc., 979 F.2d 1239, 1243 (7th Cir. 1992).
In both dual motives and burden-shifting cases, the em-
ployee must prove that the lawful justification for the ter-
mination was "phony." McKennon v. Nashville Banner
Publishing, 115 S. Ct. 879, 884-85 (1995) (citing Mt.
Healthy, 429 U.S. 274, 284-87 (1977)). To meet the burden
of persuasion in the third phase, the plaintiff need not
produce direct evidence to contradict the employer's pur-
ported reason. Bechtel, 50 F.2d at 934. Rather, the em-
ployee may simply persuade the trier of fact "by estab-
lishing either that the unlawful reason, the protected ac-
tivity, more likely motivated [the employer] or that the
employer's proffered reason is not credible and that the
employer discriminated against him." Id. "It is not enough
for the plaintiff to show that a reason given for a job ac-
tion is not just, or fair, or sensible . . . [rather,] he must
show that the explanation is a 'phony reason.' " Pignato
v. Am. Trans Air, Inc., 14 F.3d 342, 349 (7th Cir. 1994).
It is clear that Kahn established a prima facie case of
retaliatory discharge. As both the Secretary of Labor and
the ALJ noted, there is no dispute as to the first and
second elements. ComEd is an employer subject to the
ERA, and Kahn is an employee of ComEd. Furthermore,
the third and fourth elements exist as well. Kahn was
constructively discharged from employment on April 14,
1992. This discharge occurred less than a month after he
made internal safety-related complaints to his supervisors
pursuant to his job requirements as a Quality Control
Auditor, and, therefore, the proximity of time between
his protected activities and his discharge creates an infer-
ence of unlawful termination.
Since Kahn properly established a prima facie case, the
burden then shifts to the employer, ComEd. Neither the
Secretary of Labor nor the ALJ concluded that Kahn ef-
fectively proved that his protected activities "played a
role" in his termination. Rather, both held that Kahn
simply created an inference. Therefore, the Secretary em-
ployed the McDonnell Douglas method, involving a defen-
dant's mere burden of production, as opposed to the Mt.
Healthy dual motive method, which places a much greater
burden, a burden of persuasion, upon the defendant. The
Secretary determined that ComEd met the burden of pro-
duction by "outlining Kahn's abusive and inappropriate
behavior toward White, Orsini, Wagner, and Whittier."
ComEd asserted Kahn's belligerent and improper conduct
towards his coworkers and supervisors as the legitimate,
non-discriminatory reason for his termination. ComEd was
not required to substantiate the simple assertion. The
mere articulation of a lawful reason for Kahn's firing
satisfies the employer's burden.
Kahn contends that ComEd's proffered reason is not a
lawful reason. According to Kahn, ComEd is in violation
of the ERA if it fires any Quality Control Auditor who
"creates friction in his relation with coworkers and
superiors" since such friction inherently arises due to the
nature of Kahn's job. Since "conflicts between such audi-
tors and other employees are common at nuclear facil-
ities," Kahn argues, the termination of a "whistleblower"
employee for such conflicts is an unlawful reason. Thus,
Kahn contends that ComEd failed to proffer a legitimate
reason for his termination, and the inference of unlawful
discrimination remained unrebutted.
We find Kahn's argument unpersuasive. Kahn's attempt
to hide behind his protected activity as a means to evade
termination for non-discriminatory reasons is flawed. The
cases to which Kahn cites, Kansas Gas & Elec. Co. v.
Brock, 780 F.2d 1505 (10th Cir. 1985), Mackowiak, and Gia-
colleto v. Amax Zinc Co., Inc., 954 F.2d 424 (7th Cir. 1992),
do not stand for the proposition that an employer may
not discharge an employee for poor behavior or for rude
and uncommunicative conduct as Kahn suggests. Rather,
these three cases involve a trier of fact's conclusion that
the purported behavioral reasons proffered by the em-
ployer as a legitimate, non-discriminatory reason for dis-
charge were pretextual. Such is not the case here. We
have consistently held that an employee's insubordination
toward supervisors and coworkers, even when engaged
in a protected activity, is justification for termination.
Sullair P.T.O., Inc. v. NLRB, 641 F.2d 500, 502-04 (7th
Cir. 1981) (shouting vulgarities towards management war-
rants discharge); NLRB v. Truck Drivers, Oil Drivers,
Etc., 630 F.2d 505, 508-09 (7th Cir. 1980) (distributing a
letter "to the employer's executive board during a political
luncheon for Chicago's then mayor to the potential em-
barrassment of their employer" justifies termination).
Moreover, communication made in the form of threats of
violence or insubordination, during the course of other-
wise protected activity, is removed from protection. See
Florida Steel Corp. v. NLRB, 529 F.2d 1225, 1234 (5th
Cir. 1976); Corriveau & Routhier Cement Block, Inc. v.
NLRB, 410 F.2d 347, 350 (1st Cir. 1969). "[T]he rights
afforded to the employee" are a shield against employer
retaliation, not a sword with which one may threaten or
curse supervisors." Id.
Certainly Congress did not intend "to tie the hands of
employers in the objective selection and control of per-
sonnel" in enacting various laws proscribing employment
discrimination. Hockshatdt v. Worcester Foundation, 545
F.2d 222, 231 (1st Cir. 1976). It is well-settled in this cir-
cuit and other circuits that an employer may terminate
an employee for any reason, good or bad, or for no reason
at all, as long as the employer's reason is not proscribed
by a Congressional statute. NLRB v. Knuth Bros, Inc.,
537 F.2d 950, 954 (7th Cir. 1976); Ad Art, Inc. v. NLRB,
645 F.2d 669, 679 (9th Cir. 1981). No such statute pro-
scribes the discharge of an employee who exhibits inap-
propriate behavior while on the job. As such, ComEd's
proffered reason is both legitimate and non-discriminatory.
Therefore, the inference of discrimination is dissolved.
Yet, this does not end the discussion. We next address
whether there was substantial evidence to support the
Secretary's determination that ComEd's proffered reason
for terminating Kahn was the true reason. In support of
his conclusion, the Secretary unequivocally stated that
"[t]he evidence of record overwhelmingly supports the
reason [ComEd] gave for discharging Kahn, his inappro-
priate behavior and language toward co-workers, which
culminated in the shouting and poking incident with his
team leader, Whittier." (Decision and Order of Secretary
of Labor, at 6). In further support of his conclusion, the
Secretary adopted the ALJ's "voluminous evidence indi-
cating that [ComEd] constructively discharged Kahn be-
cause of his behavior and not for reasons proscribed by
the ERA." (Decision and Order of Secretary of Labor,
at p. 7). The ALJ and Secretary pointed to the following
events, all of which lead to Kahn's termination: (1) Kahn's
"sarcastic, argumentative, and condescending" behavior
towards White; (2) Kahn's "loud and abusive demeanor"
towards Orsini; (3) Kahn's nonconsensual and "inappropri-
ate touching" of Wagner, in addition the various suggestive
comments and unwanted sexual advances; (4) Kahn's
abrasive and aggressive manner in which he associated
with workers whose organizations he was auditing; (5)
complaints of less-than-thorough investigations by Kahn;
(6) Kahn's use of unauthorized overtime; and (7) Kahn's
"admitted and witnessed outburst and use of foul language
with Whittier," coupled with unconsented and unwar-
ranted touching of Whittier's person. This evidence clearly
amounts to substantial evidence. The evidence is much
more than a "mere scintilla" and certainly represents that
amount from which a reasonable person could conclude
that Kahn was terminated due to his abrasive, belligerent,
and antagonistic conduct rather than the protected activ-
ities in which he was engaged./10
Kahn further contends that since ComEd condoned Kahn's
inappropriate behavior, it waived its reliance on that be-
havior to justify Kahn's termination. This argument is
based on inaccurate facts. Kahn claims that his supervisors
"never even communicated [to him] that the behavior prob-
lems alleged to have occurred during those incidents were
a problem." (Brief of Petitioner, at 19.) Not so; both the
Secretary and ALJ cite to numerous times when Kahn
was counselled for his inappropriate and obnoxious be-
havior. Moreover, Kahn argues that the October 16, 1991
performance review included a "Fully Meets Expectations"
rating and stated that Kahn's "performance and behavior
consistently achieve[d] expected levels of performance."
(Brief of Petitioner, at 19). Thus, according to Kahn, Com-
Ed cannot terminate him for any incidents that occurred
prior to the date of the performance review. This argu-
ment is patently irrational and without merit. As already
stated, an employer may fire an employee for any reason
at all, as long as the reason does not violate a Congres-
sional statute./11 Even taking this erroneous argument as
true, the termination was, for the most part, due to the
incident with Whittier which occurred more than five
months after the performance review. Therefore, even if
we were to adopt the "waiver and condonation" theory,
which we do not, Kahn's argument would still fail.
Our role as a court of review is clear. "We do not sit
as a super-personnel department that reexamines an en-
tity's business decisions. No matter how medieval a firm's
practices, no matter how highhanded its decisional proc-
ess, no matter how mistaken the firm's managers, [the
Energy Reorganization Act] does not interfere." McCoy
v. WGN Continental Broadcasting Co., 957 F.2d 368, 373
(7th Cir. 1992) (citations omitted). Rather, our inquiry is
restricted to whether the Secretary of Labor's finding that
ComEd proffered an honest, legitimate, non-discriminatory
reason for Kahn's termination is supported by substan-
tial evidence. We find that it is. We also find no indica-
tion that the Secretary's decision is arbitrary, capricious
or that the Secretary abused his discretion in any way.
Accordingly, we affirm.
FOOTNOTES
*
The Honorable Charles R. Norgle, Sr., United States
District Judge for the Northern District of Illinois, sit-
ting by designation.
/1
Kahn had been hired and assigned to the Zion station
because the station had been placed on the "watch" list
by the Nuclear Regulatory Commission. Nuclear power
facilities are placed on the list if they are determined to
be a "problem plant." Brief of Petitioner, p. 3 (citing ALJ
Hearing Transcript, p. 22).
/2
White was responsible to "process Kahn in" after he
arrived at the Zion facility.
/3
An internal complaint is one lodged with a supervisor
of the company itself. An external complaint is one lodg-
ed with an outside agency, such as the Nuclear
Regulatory Commission. Although the Energy Reorganiza-
tion Act, as amended, specifically includes internal com-
plaints as protected, the Act as it stood in April 1992 did
not expressly include such complaints within the defini-
tion of protected activity. The Act spoke only of exter-
nal complaints. However, the Secretary of Labor has
regularly viewed such complaints as protected under the
Act. Other circuits have agreed. See Kansas Gas & Elec.
Co. v. Brock, 780 F.2d 1505, 1510-12 (10th Cir. 1985);
Mackowiak v. University Nuclear Systems, Inc., 735 F.2d
1159, 1162-63 (9th Cir. 1984). But see Brown & Root, Inc.
v. Donovan, 7467 F.2d 1029, 1036 (5th Cir. 1984) (holding
that such internal complaints are not protected acts under
the ERA.)
/4
Congress made several amendments to the Act effec-
tive October 24, 1992.
/5
"Any worker who is called upon to testify or who gives
information with respect to an alleged violation of the
Atomic Energy Act or a related law by his employer or
who files or institutes any proceeding to enforce such law
against an employer may be subject to discrimination.
This section would prohibit any firing or discrimination
and would provide an administrative procedure under
which the employee or his representative could seek
redress for any violation of this prohibition." S. Rep. No.
848, 95th Cong., 2nd Sess. at 29, U.S. Code Cong. & Ad-
min. News 1978, pp. 7303, 7304.
/6
"Employees are an important source of such informa-
tion and should be encouraged to come forth with any
items of potential significance to safety without fear or
retribution from their employers. The purpose of [sec. 5851]
is to ensure that employees are aware that employment
discrimination for engaging in a protected activity . . .
is illegal and that a remedy exists throughout the Depart-
ment of Labor. The organizations subject to the rule
should understand that the Commission will not permit
any interference with communications between the Com-
mission's representatives and employees of such organiza-
tions." 55 Fed. Reg. 10397, 10402 (March 21, 1990).
/7
"Whether or not the Secretary's use of the [McDonnell
Douglas] test is 'required by the Act, [it] is at least per-
missible under it . . ., and in these circumstances [the
Secretary's] position is entitled to deference." Mackowiak,
735 F.2d at 1164 (quoting NLRB v. Transportation
Management Corp., 103 S.Ct. 2469, 2475 (1983)).
/8
In cases in which the employee has proven that the
employer had an illegal motive to discharge him, the
burden of proof fairly rests upon the employer. In that
case, "[t]he employer is a wrongdoer; the employer has
acted out of a motive that is declared illegitimate by the
statute. It is fair that he bear the risk that the influence
of legal and illegal motives cannot be separated, because
. . . the risk was created by his own wrongdoing." NLRB
v. Transportation Management Corp., 103 S. Ct. at 2475.
/9
The Supreme Court has previously given its approval
to the use of the dual motive discharge test in cases aris-
ing under similar acts, such as the National Labor Rela-
tions Act. NLRB, 103 S. Ct. at 2475.
/10
At oral argument, Kahn's attorney contended that the
ALJ and Secretary of Labor should have made their fin-
dings of fact in light of other whistleblower cases.
However, case law has no effect on a finding of fact. Facts
are independent of any legal standard. No amount of cases
can dispute the simple fact that an employee must com-
ply and accede to the requirements of his employer.
/11
On page 17 of his brief to this court, Kahn includes
a quote from In Re Gateway Theatre Corporation, 277
NLRB No. 186 (1986). The National Labor Relations
Board found that the employer had tolerated the miscon-
duct of two employees and that the employer should be
estopped from using such misconduct to discharge the
employees. However, the D.C. Circuit quickly reversed
the Board's decision and refused to enforce the NLRB
order. The circuit court stated that it was "utterly
astonished that the Board found violations of the Act",
NLRB v. Gateway Theatre Corp., 818 F.2d 971, 972 (D.C.
Cir. 1987), and that there was no support for the finding
that the employer ever tolerated the employees' previous
misconduct. Id. at 977 n. 22. The court further stated that
the employer was justified in relying upon the miscon-
duct as a basis for discharge. Id. None of the other cases
to which Kahn cites, Phillips Industries, Inc., 295 NLRB
No. 75 (1989), HS Healthcare, Inc., 295 NLRB No. 41
(1987), and Churchill's Supermarkets, 285 NLRB No. 21,
concern the "waiver and condonation" rule as suggested
by Kahn. Further, these cases are distinguishable in that
they involved a discharged employee who was discharged
for conduct exhibited by many other employees. Thus, in
those cases, the employees were singled out and charg-
ed with violations of various work rules which were not
enforced against others.
