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Issue Date: 23 September 2003
CASE NO.: 2001-ERA-00043
In the Matter of
DENNIS DOHERTY Complainant
v.
HAYWARD TYLER, INC. Respondent
Appearances:
Edwin L. Hobson, Esquire, Burlington,
Vermont, for the Complainant
Mark H. Scribner, Esquire (Carroll & Scribner)
Burlington, Vermont, for the Respondent
Before: Daniel F. Sutton
Administrative Law Judge
DECISION, PRELIMINARY ORDER AND RECOMMENDED FINAL ORDER
I. Statement of the Case
This case arises from a complaint filed by Dennis Doherty against Hayward Tyler, Inc. pursuant to Section 211 of the Energy Reorganization Act of 1974 ("ERA"), as amended, 42 U.S.C. § 5851 (2000), and the implementing regulations found at 29 C.F.R. Part 24 (2000). The ERA, in pertinent part, provides that "[n]o employer may discharge any employee or otherwise discriminate against any employee with respect to his compensation, terms, conditions, or privileges of employment because the employee" notifies a covered employer about an alleged violation of the ERA or the Atomic Energy Act ("AEA"), 42 U.S.C. § 2011 et seq. (2000), refuses to engage in a practice made unlawful by the ERA or AEA, testifies regarding provisions or proposed provisions of the ERA or AEA, or commences, causes to be commenced or testifies, assists or participates in a proceeding under the ERA or AEA." 42 U.S.C. § 5851(a)(1) (2000).
1 The documentary evidence admitted to the record will be referred to as "ALJX" for jurisdictional and procedural documents admitted by the Administrative Law Judge, "CX" for documents offered by the Complainant, and "RX" for documents offered by the Respondent. References to the hearing transcript will be designated as "TR".
2 The excerpts from Doherty's pre-hearing deposition, at which Hayward Tyler was represented by counsel and thus had an opportunity for cross-examination, contain Doherty's testimony in response to questions regarding his use of measurement instruments that had not been properly calibrated in accordance with Hayward Tyler's quality assurance policies. While Hayward Tyler assented to the admission of most of the excerpts, it objected to three pages on the ground that Doherty's testimony contained therein exceeded the scope of the matters on which he was cross-examined at the hearing. TR 738. The disputed deposition testimony contains Doherty's statements about Hayward Tyler's calibration procedures and records as well as his statement that he was instructed by Doug Roszman, Hayward Tyler's quality assurance manager, to use out-of-calibration instruments. Review of the hearing transcript shows that Doherty testified and was specifically cross-examined about these statements at the hearing. TR 442-445, 45-452. Since Doherty testified about these statements at the hearing and was subject to cross-examination, the challenged deposition testimony is admissible as a non-hearsay prior witness statement within the meaning of Rule 18.801(d)(1).
3 Roszman testified that he actually gave this second raise in February 2000 because there were no problems with Doherty's performance. TR 831.
4 Walter Sperko testified at a deposition that he was appointed as Hayward Tyler's level 3 welding examiner on June 27, 2000. CX 13 at 6. He said that sometime during the summer of 2000, he was provided with Hayward Tyler's procedures on qualification and certification of welding examiners, as well as Roszman's resume and work experience, and he found Roszman's qualifications made him suitable to be a level 2 visual examiner. Id. at 13-14, 19. However, he also testified that Roszman had never worked under his supervision, that he never certified Roszman as a level 2 visual welding examiner and that he was not aware of any evidence that Roszman had one month of on-the-job training under the supervision of a level 3 examiner as required by QIP 11. Id. at18-21. Roszman testified that he could not recall Talbot ever telling him that Speko's appointment as the level 3 visual examiner was not done properly. TR 669.
5 Doherty testified that the confrontation with LaRock occurred in Talbot's presence when he asked Talbot whether cracks were acceptable, and Talbot responded in front of LaRock and Roszman that they were not. TR 391-392. Talbot's recollection was that this conversation with Doherty regarding cracks took place over the telephone, and he said that when he later examined the welds in question, he saw no cracks and was unsure whether they had been repaired or never existed. TR 538, 573.
6 This latter incident occurred in September 1999 when Doherty reportedly made comments of sexual nature to a female job applicant. Roy complained about the incident in an e-mail dated September 20, 1999 to Hayward Tyler's comptroller (RX 2), but Doherty was never disciplined, and there is no contention made by Hayward Tyler that this incident played any part in the decision to terminate his employment with the company.
7 In this regard, Talbot testified that during his routine monitoring at Hayward Tyler, "I chose to monitor the calibration portion of the manual. It was probably just luck that I picked a particular item that we use for testing that had, in fact, expired its certification." TR 581-582. He further testified that after he found one instrument out of calibration, he went looking for others which resulted in his placing a hold on final documentation for some products until such time as the affected instruments could be sent out to a test lab for calibration. TR 575-576, 582.
8 Doherty was provided with a copy of the Employee Handbook at the time that he was hired. RX 3b.
9 In finding that Hayward Tyler did not follow its progressive discipline procedure and did not further warn or discipline Doherty for attitude or performance deficiencies, I have given no weight to the series of NCRs on which Roszman penned critiques under the date of August 9, 2000. There is no evidence that any of these criticisms were ever discussed with Doherty, and the timing of Roszman's comments (i.e., conveniently dated one day prior to Roszman's profanity-laced outburst at Doherty for marking welding defects on the base plates) in addition to the problems with Roszman's credibility and his demonstrated hostility toward Doherty's protected activity, raises a strong inference that the annotated NCRs represent an opportunistic ex post facto attempt to create a pretext to mask the true reason for Doherty's discharge. In a similar vein, I note that Roszman, in his zeal to portray Doherty as an insubordinate troublemaker, testified that he found out that Doherty was telling people to do rework when "if there were real problems they should have been documented on an NCR if it was still in-process." TR 472. Ironically, Roszman is finding fault with Doherty for doing what he had been instructed to do in Roszman's April 28, 2000 e-mail message which stated that NCRs and IRs should not be used if rework was not expected to take much time. RX 16
10 It is noted that Hayward Tyler attempted to establish during cross examination that Doherty's testimony regarding this issue and, specifically, whether he had any responsibility for calibration of instruments was inconsistent with his testimony at a pre-hearing deposition. TR 446-448. The alleged inconsistency lies in Doherty's "yes" answer to a long, multi-part question at the deposition which he revised when questioned at the hearing. TR 447. Based on my observation of Dohertys' demeanor generally as well as during this particular exchange, I find that any inconsistency is more likely attributable to an honest misunderstanding of the deposition question than any mendacity on Doherty's part.
11 In view of this finding, the issue over the admissibility of Doherty's income tax returns is moot.
12 The amount of back pay owed for 2003 will be calculated by multiplying the daily rate of back pay for 2003 by the number of days from January 1, 2003 to the date of the offer of reinstatement. The daily rate of back pay for 2003 ($50.35) is calculated by dividing the adjusted gross loss of earnings determined by Dr. Bancroft for 2003 ($18,379) by the number of days in the year (365).