Rizzo v. Pennsylvania Power & Light Susquehanna, 2001-ERA-44 (ALJ Mar. 28, 2002)

U.S. Department of Labor

Office of Administrative Law Judges 2 Executive Campus, Suite 450 2370 Route 70 West Cherry Hill, NJ 08002 (856) 486-3800

Issue date: 28Mar2002

CASE NO: 2001-ERA-00044

In the Matter of

JOHN S. RIZZO
    Complainant

v.

PENNSYLVANIA POWER & LIGHT SUSQUEHANNA
    Respondent

Appearances:

    John S. Rizzo, pro se
    For Complainant

    Thomas A. Schmutz, Esq.
    For Respondent

Before: RALPH A. ROMANO
    Administrative Law Judge

   This is a proceeding under the employee protection provisions of the Energy Reorganization Act, 42 U.S. C. 5851 (hereinafter "the Act").

   The matter was tried in Philadelphia, Pennsylvania on January 17-18, 2002, and briefs filed by the parties by February 6, 2002.

   In order to establish his prima facie case, Complainant must establish that: (1) he engaged in protected activity; (2) Respondent had knowledge of this activity; (3) Respondent took some adverse employment action against him; and, (4) sufficient evidence exists that at least raises an inference that the protected activity was the likely reason for such adverse action. Harrison v.Stone & Webster Engineering Group, 93 ERA 44(11/8/94), and citations therein.

   I am compelled to find that Complainant has failed to establish, as to the first of his alleged protected activities (3/20/87 letter to congressman), knowledge of such activity on the part of the individual at Respondent who terminated his employment, and, as to the second of his alleged protected activities (5/11/99 draft condition report), has failed to establish that such was a protected activity.

   CX 1¹ is a copy of the letter Complainant wrote to a Congressman addressing the consideration of building a new bridge across from Respondent's nuclear plant for the purpose of improving the safety of evacuation, as well as easing commuting and traffic conditions² . He suggests in this letter that he would be able to obtain a petition in support of his idea signed by the majority of his co-employees and residents of the area. He closes this letter by proposing to solicit, in the event another (presumably preemptive) bridge project has not been finalized, Respondent's management "- - to see if they are amenable to investigating the possibility [of such a project]". The letter is dated March 20, 1987, some four (4) years before George Jones, Respondent vice-president who terminated Complainant's employment in February, 2001, joined Respondent (Tr.357,383). Without contradiction in this record, Jones denies that he had any knowledge of this letter and Complainant's authorship thereof, until the instant suit was filed in August, 2001 (Tr. 361-2), except that he had heard that "[s]omebody suggested building a bridge and involving the company money- - [a] sort of - - passing comment- - )) (Tr.361). Complainant never discussed this letter with Jones, nor is he aware of anyone who did (Tr. 129).

   Complainant argues that pre-termination knowledge of this letter by Jones should be found inferentially because: (a) it is not reasonable to not so find, since this admitted mention to Jones of the "story" of the bridge proposal without also mentioning Complainant's name in association therewith would be pointless (Br.@5), and (b) Jones must have deduced, upon authorizing a 1994 promotion for Complainant (see form at CX 4@5), that Complainant was the owner of the bridge idea and/or author of the letter (Pre-hearing statement @3,4; Br.@5).

   First, I find no compelling reason to conclude that because Jones was advised that such a bridge idea had been raised at some time prior to his joining Respondent, he was also at some point in time necessarily advised that the idea was Complainant's, and was contained in a letter of Complainant to a Congressman. As vice president, presumably Jones meets with his staff on a regular basis, and may on occasion discuss, among other things, the environs of Respondent's plant. The mention of the bridge idea may well have been made in this context as a passing matter. Since it is as likely that Complainant's name was not mentioned as it is that it was, the inference Complainant asks be made is neither irresistible nor necessary. Moreover, that Jones would have necessarily become aware that Complainant was associated with the bridge idea upon his reviewing of the promotion form he signed, is, to say the least, a stretch!. This form, per Complainant, in disclosing his work history, including his

   Complainant advances as a second protected activity, his deletion, under intimidation by his supervisor Pagodin, of a portion (entitled "ACTIONS TO CORRECT CONDITION") of his May, 1999 draft condition report relating to a cracked turbine pedestal (RX1@6). He claims that because he was in fear of losing his job, and considering the history of his prior demotion (see ftn. 2 supra), he permitted this supervisor to intimidate him into deleting a portion of his draft presumably relating to the safety of the operation of the plant (Br.2,3-4,6-9).³ But, having been intimidated into deleting what Complainant considered a safety recommendation⁴ , absent the expression of his disagreement with such deletion⁵ , is not the equivalent of having engaged in a protected activity! The intimidation, silently endured by Complainant, resulted in Complainant's decision not to engage in protected activity. Complainant did not engage in activity protected under the Act, he was afraid to engage in such activity by reason of his perceived intimidation, i.e., fear of loss of job, a repeat of the prior demotion(Br.@8-9). Complainant's only "activity" was his decision to withdraw part of his draft recommendation, and thus eliminate the risk of job loss or other sanction, and must now accept the unavoidable consequence of not having "blown the whistle". Complainant simply backed-off. He was engaged in protected activity in the writing of his draft recommendation for "augmented" inspections (see ftn.4, supra.), and would have been so engaged had he refused to delete this portion of his draft or taken other action open to him so as to register his objection to the deletion (Tr.449). Had he been able to

show that he was fired for any of these activities⁶ , the Act may have provided relief for him. Complainant might have been able to show that Respondent was "out to get him"⁷ , but he has failed to show what Respondent was out to get him for, at least insofar as the two would-be protected activities here asserted.

   On the basis of the forgoing, it is recommended that the complaint be DISMISSED.

      RALPH A. ROMANO
      Administrative Law Judge

NOTICE: This Recommended Order will automatically become the final order of the Secretary unless, pursuant to 29 C.F.R. Section 24.8, a petition for review is timely filed with the Administrative Review Board, United States Department of Labor, Room S-4309, Frances Perkins Building, 200 Constitution Avenue, N.W., Washington, DC 20210. Such a petition for review must be received by the Administrative Review Board within ten business days of the date of this Recommended Order, and shall be served on all parties and on the Chief Administrative Law Judge. See 29 C.F.R. Section s24.8 and 24.9, as amended by 63 Fed. Reg. 6614 (1998).

¹References are: "CX", Complainant's exhibits; "RX", Respondent's exhibits; "Tr.", Transcript of trial.

²Complainant notes that he was demoted "immediately" after this letter was written for a five year period (Compl't 1/11/02 pre-hearing statement @2; Compl't Br. @2). No relief in the instant proceeding is recognized as being sought as a result of this demotion, as none is expressly sought, and by reason of obvious statute of limitations considerations. 42 U.S.C. 5851 (b) (1).

³ The final condition report (RX 2), issued in August, 1999, appears to track, in all material respects, the draft report (RX 1) except for the "USE-AS-IS" disposition added at page 1, and the noted deletion of "ACTIONS TO CORRECT CONDITION" at page 6. This deletion was found necessary by Pagodin because the suggested "action" in the draft suggested no action at all to correct the crack condition, but merely left same in place until the next scheduled/available inspection (Tr. 140; 448; 453). Complainant's inclusion of this section in his draft was thus considered duplicative and unnecessary (Tr. 443-5).

⁴Complainant insists that the deleted portion of his draft recommended an "augmented" inspection of the crack (Tr.140). But, since the "DUE DATE[S]" for the recommended inspections appearing on the deleted page of the draft correspond with the regularly scheduled ongoing, routine inspections (Tr.139-40;447;453), it is doubtful that his draft recommendations added anything to the otherwise expected inspections of the condition.

⁵Complainant never expressed his disagreement to delete to Pagodin or any other manager (Tr.141-2;150;449-50). In fact, Pagodin had every reason to believe that Complainant had no problem with the deletion, as Complainant expressed no objection thereto (Tr.448-50).

⁶Respondent claims to have terminated Complainant due to his misuse of its computer facilities (see EX. B folder, annexed to Respondent's motion for summary judgment).

⁷The overall integrity and balance of Respondent's investigation of computer abuse and ultimate personnel sanctions (RX 14,15 et.al.), is not altogether beyond attack.