Fritts v. Indiana Michigan Power Co., 2001-ERA-33 (ALJ Feb. 13, 2002)

U.S. Department of Labor

Office of Administrative Law Judges 36 E. 7th Street, Suite 2525 Cincinnati, OH 45202 (513) 684-3252 (513) 684-6108 (FAX)

Case No: 2001-ERA-0033

In the Matter of

CRAIG H. FRITTS
    Complainant

    v.

INDIANA MICHIGAN POWER COMPANY
    Respondent

BEFORE: RUDOLF L. JANSEN
    Administrative Law Judge

   This proceeding arises under the Energy Reorganization Act of 1974 ("ERA"), 42 U.S.C. §§ 5801-5891 and the regulations promulgated thereunder at 29 C.F.R. Part 24 which are employee protection provisions of the ERA or of the Atomic Energy Act of 1954 as amended, 42 U.S.C. §§ 2011, et seq. The Secretary of labor is empowered to investigate and determine "whistleblower" complaints filed by employees at facilities licensed by the Nuclear Regulatory Commission ("NRC") who are allegedly discharged or otherwise discriminated against with regard to their terms and conditions of employment for taking any action relating to the fulfillment of safety or other requirements established by the NRC. This matter is presently before me on Respondent's Motion for Summary Decision. Briefs have been filed by both parties.

   The regulations governing these proceedings provide that in deciding a motion for summary decision, I must consider all the materials submitted by both parties, drawing all reasonable inferences in a manner most favorable to the non-moving party. Fed. R. Civ. P. 56(c); Adickes v. S.H. Kress & Co., 398 U.S. 144 (1970). Summary judgment is rendered when there is no genuine issue as to any material fact, the moving party is entitled to judgment as a matter of law, and reasonable minds could come to but one conclusion, which is adverse to the party against whom the motion is made. See, LaPointe v. United Autoworkers Local 600, 8 F.3d 376, 378 (6th Cir. 1993); United States v. TRW, Inc., 4 F.3d 417, 423 (6th Cir. 1993), cert denied 114 S.Ct. 11370 (1994).

    To establish a prima facie case of retaliatory discharge under the whistleblower provision invoked here, a complainant must show that: (1) the complainant engaged in protected activity; (2) the employer was aware of that protected activity; and (3) the employer took some adverse action against the complainant. The complainant must present evidence sufficient to raise the inference that the protected activity was the likely reason for the adverse action. Sartey v. Zack Co. Of Chicago, 82-ERA-2 (1983). To determine if there was a retaliatory discharge under the environmental whistleblower laws the seminal issue is whether or not the complainant engaged in protected activity. Only if the activity is deemed to be protected are the other elements of a prima facie case addressed.

   Complainant Craig H. Fritts was hired in April of 1999 by Indiana Michigan Power Company ("I&M") as a principal engineer at the Donald C. Cook Nuclear Power Plant ("The Plant"). Mr. Fritts was assigned to the Maintenance Rule Program, a project designed to capture and analyze historical data regarding the performance of systems, structures, and components against approved performance criteria, governed by the U.S. Nuclear Regulatory Commission's Maintenance Rule, 10 C.F.R. §50.65. Mr. Fritts expressed concern over the pace and quality of the progress made in the Maintenance Rule Program, eventually resulting in a one day suspension of the project. The project suspension occurred on December 6, 2000 and Mr. Fritts was subsequently terminated on December 8, 2000.

   I&M asserts that Mr. Fritts alleged protected activity was halting work on the Maintenance Rule project on December 6, 2000. Mr. Fritts asserts that his performance during the entire project constitutes protected activity, as he was trying to assure the quality of the project while under increasing scheduling pressures. The ERA explicitly protects a few acts, such as testifying in a safety proceeding. 42 U.S.C. § 5851(a)(1)(E). The statute also includes a catch-all provision that protects employees "in any other action [designed] to carry out the purposes of [the safety statutes]." Id. at § 5851(a)(1)(F); American Nuclear Resources, Inc. v. U.S. Dept. of Labor, 134 F.3d 1292,(6th Cir. 1998). To constitute a protected safety report, an employee's acts must implicate safety definitively and specifically. Bechtel Construc. Co. v. Secretary of Labor, 50 F.3d 926, 931 (11th Cir.1995).

   In this case, Mr. Fritts was working on a Maintenance Rule project, prescribed by 10 C.F.R. §50.65, designed to monitor structures, systems, and components. Ten C.F.R. §50.65(a)(1) provides in pertinent part:

(a)(1) Each holder of a license to operate a nuclear power plant under §§ 50.21(b) or 50.22 shall monitor the performance or condition of structures, systems, or components, against licensee-established goals, in a manner sufficient to provide reasonable assurance that such structures, systems, and components, as defined in paragraph (b), are capable of fulfilling their intended functions. Such goals shall be established commensurate with safety and, where practical, take into account industry-wide operating experience.

   It is reasonable to infer that the performance goals for the plant, which were to be monitored under the Maintenance Rule Program, were definitively and specifically related to the safe operation of the nuclear facility. Furthermore, any efforts specifically and definitively taken by Complainant to ensure a quality Maintenance Rule Program and to maintain compliance with the ERA constitutes protected activity. Taking all reasonable inferences in favor of the non-moving party, genuine questions of material fact exist as to the relationship of the Maintenance Rule Program to the safe operations of the plant, and whether Mr. Fritts' actions were definitively and specifically aimed at that goal.

   Further, the issue of I&M's motivation for terminating Mr. Fritts is a key element in this case. Respondent asserts that a disciplinary process was begun and the decision to terminate Mr. Fritts was made prior to any protected activity. Mr. Fritts points out that termination was not required under the disciplinary process, and he asserts that the protected activity pre-dates the initial disciplinary activity. In retaliatory intent cases that are based on circumstantial evidence, fair adjudication of the complaint "requires full presentation of a broad range of evidence that may prove, or disprove, retaliatory animus and its contribution to the adverse action taken." Timmons v. Mattingly Testing Servs., Case No. 95-ERA-40, slip op. at 10-11 (ARB June 21, 1996); Seater v. Southern California Edison Co, 95-ERA-13, slip op. at 5 (ARB Sept. 27, 1996); see generally K.C. Davis, Administrative Law, 2d Ed., Vol. 3, Ch. 16, Evidence (1980). Proof of Respondent's motive and intent are likely to be inferred from facts in the record. Richter v. Baldwin Assoc., Case No. 94-ERA-9 (Sec'y March 12, 1986). In considering a motion for summary decision, those inferences must be drawn in Mr. Fritts' favor.

   Genuine issues of material fact exist regarding the nature of Complainant's activities and Respondent's motivation. Therefore, summary decision is inappropriate and Respondent's Motion for Summary Decision is hereby DENIED.

      Rudolf L. Jansen
      Administrative Law Judge