DATE: October 17, 1995
CASE NO.: 95-ERA-00013
In the Matter of
ROBERT SEATER
Complainant
v.
SOUTHERN CALIFORNIA EDISON COMPANY
Respondent
Appearances:
Edward A. Slavin, Jr., Esquire
For Complainant
Michael Healy, Esquire
Thomas A. Schmutz, Esquire
Paul Zaffuts, Esquire
George L. Edgar, Esquire (on the Brief)
For Respondent
Before: ROBERT D. KAPLAN
Administrative Law Judge
RECOMMENDED DECISION AND ORDER
This case arises under Section 210 of the Energy Reorgani-
zation Act of 1974, as amended, 42 U.S.C. §5851 ("the Act").
The Act protects employees who assist or participate in actions to
carry out the purposes of the federal statutes regulating the nuclear
energy industry. Section 210 provides, interalia, that
"no employer may discharge any employee or otherwise discriminate
against any employee with respect to compensation, terms, conditions,
or privileges of employment because the employee . . . notified his employer
of an alleged violation of this chapter or the Atomic Energy Act of
1954 (42 U.S.C. §2011, etseq.)." 42
[PAGE 2]
U.S.C. §5851(a)(1)(A).
Complainant, Robert Seater, was one of several contract
employees used by Respondent, Southern California Edison ("SCE"),
to open a Commercial Grade Items ("CGI") test laboratory at its
San Onofre Nuclear Generating Station ("SONGS"). Complainant's
duties included testing commercial grade items and training others in
the proper use of the laboratory's equipment.
Complainant alleges that because he filed a nuclear safety
"concern" regarding the safety of certain fasteners that were
tested at the CGI test laboratory for use at SONGS, he was
subjected to a hostile work environment and his employment
contract with Respondent was prematurely terminated on September 30, 1994.
Complainant also asserts that Respondent's actions against him
were part of a pattern or practice of retaliation against whistle-
blowers. Respondent concedes that Complainant engaged in
protected activity. However, Respondent contends that Complainant was not
subjected to a hostile work environment and that his discharge
was due to economic factors and to business decisions which were
unrelated to his protected activity.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
I. PROCEDURAL HISTORY
On or about June 27, 1994, Complainant filed a
complaint with the Administrator of the Wage and
Hour Division, Employment Standards Administration, U.S. Department of
Labor ("the Admini-strator"). (ALJ 2)[1] However, for reasons
that are not apparent in the record, the Administrator did not
forward the complaint to the appropriate district office for
investigation until August 11, 1994. On September 6,
1994, Complainant filed a supplemental complaint with the
Administrator. A copy of this complaint was served on Respondent by the
Administrator in a letter dated September 9, 1994.
On November 30, 1994, after the Administrator's
investigation, she issued a determination notice which found that Respondent had
discharged Complainant because of his protected activity.[2] (C
150) On December 15, 1994, Respondent filed a timely appeal of
the Administrator's determination with the Office of Administrative
Law Judges. The case then was assigned to the undersigned
administrative law judge.
After a series of pre-hearing orders that related to
narrowing the issues and resolving questions concerning discovery, a formal
[PAGE 3]
hearing was held before me on May 9 - 11 and May 23 - 25, 1995 in
San Diego, California, where the parties had full opportunity to
present their witnesses, evidence, and argument.
At the close of the hearing the parties agreed that all
motions to receive additional evidence would be filed on or
before June 13, 1995. Neither party sought to submit additional
evidence by the deadline of June 13, 1995. Therefore on June 20, 1995, I
ordered the record closed.[3]
The parties have filed post-hearing briefs and responsive
briefs.
This decision is based on an analysis of the record, the
arguments of the parties, and the applicable law.
II. THE METHODOLOGY OF ESTABLISHING A VIOLATION
The Secretary of Labor has held that the approach to cases
arising under Title VII of the Civil Rights Act of 1964 shall
apply to the employee-protection provisions adjudicated by the
Department of Labor. SeeDartey v. Zack Co. of Chicago,
82-ERA-2 (Sec'y Apr. 25, 1983).
A. Complainant's Prima Facie Case
Complainant initially has the burden of establishing a
primafacie case by a preponderance of the
evidence. To prove a primafacie case, an employee must
present evidence establishing each of the following elements:
(a) The employee engaged in protected activity;
(b) The employer knew that the employee engaged in
protected activity;
(c) The employer took some adverse action against the
employee; and
(d) The evidence is sufficient at least to raise an
inference that the protected activity was the
likely reason for the adverse action.
Sellers v. Tennessee Valley Auth., 90-ERA-14 (Sec'y Apr. 18, 1991)
Decisions of the OALJ and OAA, Vol. 5, No. 2,
Mar.-Apr. 1991, p. 165 at 166. See alsoThompson v.
Tennessee Valley Auth., 89-ERA-14
[PAGE 4]
(Sec'y July 19, 1993) Decisions of the OALJ and OAA, Vol. 7, No.
4, July-Aug. 1993, p. 316 at 319.
B. Respondent's Burden
Once the complainant establishes a primafacie
case, the respondent employer has the burden of proffering a
legitimate, nondiscriminatory reason for taking the adverse
action. McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973);
Texas Dep't of Community Affairs v. Burdine, 450
U.S. 248 (1981). See alsoLockert v. U.S. Dept. of
Labor, 867 F.2d 513, 519 & n. 2 (9th Cir. 1990). The Supreme
Court held in St. Mary's Honor Ctr. v. Hicks,
113 S. Ct. 2742 (1993), 125 L. Ed. 2d 407, that the
employer need only produce evidence of nondiscriminatory reasons,
whether ultimately persuasive or not, to rebut the presumption of
intentional discrimination. St. Mary's further defined
the employer's burden of production as the requirement "to introduce
evidence which, taken as true, would permit the conclusion that
there was a nondiscriminatory reason for the adverse action."
Upon articulation of such a reason, the McDonnell
Douglas/Burdineframework, with its presumptions and burdens,
becomes irrelevant and the trier of fact then must decide the ultimate
question of fact. Finally, however, St. Mary's makes it
clear that the ultimate burden of persuasion rests with the
complainant. 125 L. Ed. at 417.
C. Dual Motive Analysis
Where the employer's adverse action against the employee was
motivated by both prohibited and legitimate reasons, the dual
motive doctrine applies. Dartey, slip op. at 8-9; Mt.
Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274,
287 (1977). In such a case, the employer has the burden to show
by a preponderance of the evidence that it would have taken the same
action concerning the employee even in the absence of the
protected conduct. Dartey, slip op. at 9; Mt. Healthy, 429
U.S. at 287; Price Waterhouse v. Hopkins, 490 U.S. 228,
252 (1989) (plurality opinion); Consolidated Edison Co. of New
York v. Donovan, 673 F.2d 61, 62 (2d Cir. 1982). The employer
bears the risk that the influence of legal and illegal motives cannot
be separated. Mackowiak v. University Nuclear Sys., Inc.,
735 F.2d 1159, 1164 (9th Cir. 1984); Guttman v. Passaic Valley
Sewerage Comm'rs, Case No. 85-WPC-2, Final Dec. and Order,
Mar. 13, 1992, slip op. at 19, affirmed sub nom.,
Passaic Valley Sewerage Comm'rs v. U.S. Dep't of
Labor, 992 F.2d 474 (3d Cir. 1993).
[PAGE 5]
III. STIPULATIONS
At the commencement of the formal hearing, the parties
entered into the following stipulations (TR 79-80):
1. The parties are subject to the Act;
2. Complainant engaged in protected activity under the Act; and
3. Complainant acted with a good-faith belief that there was
a safety issue with respect to the fasteners that were
the subject of his nuclear safety concern.
IV. DISCUSSION
A. Complainant's Prima Facie Case
At the time he engaged in his protected activity,
Complainant was assigned to the CGI test laboratory which was part of the
Procurement Engineering Department. The CGI test laboratory was
staffed by a mix of directly hired and contract employees who
were sometimes referred to as "contractors." The function of the CGI
test laboratory is to test the quality of certain materials that
are purchased by Respondent to be used at SONGS. These materials
include the fasteners that were the subject of Complainant's
nuclear safety concern. "Fasteners" is a generic term that
includes the nuts, bolts, screws, and the like that are used in
various mechanical assemblies.
The CGI test laboratory was supervised by David Opitz.
Opitz reported to Thomas Herring, III, who was supervisor of the
Procurement Engineering Department. Herring in turn reported to
J. T. Reilly, manager of Engineering, Construction and Fuel
Services. Reilly reported to Richard M. Rosenblum, vice president of
Engineering and Technical Services. Rosenblum reported to Harold
B. Ray, senior vice president of the nuclear organization. (C 40,
69, 85, 153, 157, 158; R 25-29)
Complainant testified that in September 1993 he began to
question the safety of fasteners and the use of a testing
protocol known as "System 21" to test the quality of the fasteners that
were being purchased and used by Respondent. Rather than System 21,
Complainant advocated the use of the newer "System 22" method for
[PAGE 6]
testing these fasteners.[4] (TR 144-46, 602)
Between September 1993 and December 27, 1993, Complainant
engaged in informal discussions with his superiors regarding
System 21 versus System 22 testing. On December 27, 1993, Complainant
formalized his concerns by engaging in two protected actions.
First, Complainant bypassed at least four layers of supervisors
and called the office of Harold B. Ray, the senior vice president
ultimately responsible for the CGI test laboratory. Complainant
did not speak to Ray personally; his call was taken by a
secretary. (TR 604, 1201) Complainant testified that he took this action,
"Because I wasn't getting any response from [lower levels of]
management that I should be [getting] and I knew that there was a
real problem here." (TR 604) Several witnesses offered
uncontradicted testimony that Complainant's action of going
outside the "chain-of-command" was unprecedented. (TR 309-310, 1208,
1230)
Ray testified that he recalled having received an electronic
mail message from his secretary advising him that Complainant had
called. (TR 1201) As a result of Complainant's call, Ray sent an
electronic mail message to Rosenblum stating, "Would you
find out what this guy wants? I understand he works in
Procurement Engineering." (C 39; TR 604, 1204) Rosenblum informed
Complainant that he would have Respondent's Nuclear Concerns
Group investigate the "concern." (TR 605)
The Nuclear Concerns Group was headed by Willis Frick.
Frick testified that the group consisted of seven employees who
investigate employees' nuclear safety concerns. (TR 227) An
employee may confidentially submit a nuclear safety concern
regarding any aspect of the safety of the plant, either by
telephone or in writing. (TR 882; R 41-68) The purpose of the
group is to independently investigate and resolve these nuclear
safety concerns. (TR 881)
After his telephone call to Ray's office, Complainant was
contacted by Cheryl Adams and John Osborne, members of
Respondent's Nuclear Concerns Group, and an investigation into the concern was
launched. (TR 605; C 41) At the request of Adams and Osborne,
Complainant engaged in his second protected action by submitting
a written nuclear safety concern regarding the fasteners. (TR 605;
C 41, C 156) Complainant completed Respondent's "Nuclear Safety
Concern" form, describing his concern as follows (C 156):
1. Overcheck of material (fasteners) sent to the plant
for installation have failed reinspection, prior to
putting back in warehouse.
[PAGE 7]
2. 50% of the code, QA affecting materials in the
warehouse are non-conforming.
3. 60%-70% of reverse engineering nuts failed with no
NCR's or follow[-]up.
4. How do modified fasteners meet ASME/ANSI standards
and then what criteria for installation.
On the morning of the following day, December
28, 1993, Rosenblum reported back to Ray in the following
electronic mail message:
[Complainant] was contacted by Nuclear Safety Concerns
folks yesterday and a Safety Concern initiated. I spoke
to [Complainant] to ensure he was satisfied and told him
[I] would stay personally involved and if at the end of
the safety concerns investigation he was not satisfied to
tell me. I have the NOD [Nuclear Oversight Division]
folks handle this wiht (sic) kid gloves[.]
(C 39) Fifteen minutes later, after making further
inquiries, Rosenblum sent a second electronic mail message to Ray with his
preliminary assessment:
Apparently we got a new machine to check fasteners and
this is causing them all to show as out of spec[ifica-
tion]. The machine vendor apparently warned us of this
(I don't yet have details) and it has come to pass as
expected. Makes one wonder why we proceeded since
fasteners have been passing all other tests for quite a
while and folks (except [Complainant]) don't seem to
think failures are meaningful. I hope to get more
details on this today.
(C 51; R 31) Rosenblum testified that in his message to Ray he
was not pre-judging Complainant's nuclear safety concern but needed
to "make an immediate judgment about the significance" of the
concern because, "I can't imagine turning to somebody and telling them on
a nuclear power plant wait a month or two months or a year before
I decide whether there is any action to be taken." (TR 1044)
Steve Brown, Frick's assistant who acts in Frick's
absence, testified that he was on vacation when
Complainant's nuclear safety concern was filed. (TR 902) On the
following day, Frick asked Brown to return from his vacation and
take over the investigation of Complainant's nuclear safety
concern. (TR 902; C 41) Brown's
[PAGE 8]
diary of the investigation was introduced into evidence. (C 41)
Brown's notes reflect a flurry of activity in the days following
the submission of Complainant's nuclear safety concern, including
his several conversations with Complainant, Rosenblum, Frick and
others. On December 30, 1993, Brown also called Respondent's
outside counsel for legal advice regarding the concern.
Complainant was not acting alone. Others employed in the
CGI test laboratory shared his concerns about the fasteners. While
Complainant's co-workers did not file formal nuclear safety
concerns, they came forward and supported Complainant's position.
For example, in a January 5, 1994 meeting with Brown and Osborne,
contract employees Richard Clift and Gary Telford raised concerns
similar to Complainant's. (C 41) About the same time, Frank
Brewer, another contract employee, openly joined the group
questioning the safety of the fasteners. (TR 890) These four
individuals came to be identified by Respondent and their co-
workers as the originators of the nuclear safety concern. (TR
189-90, 314, 890; C 33)
Complainant was also supported by Stanley P. Johnson, the
chief executive officer of the Johnson Gage Company, the manu-
facturer of both System 21 and System 22. (TR 143) Johnson sold
the System 22 equipment to Respondent and had traveled to SONGS
in September 1993 to help explain how the system worked. (TR 146)
Johnson also contacted the Nuclear Regulatory Commission ("NRC")
and Respondent on several other occasions about the benefits of
the proper use of System 22. (C 12, C 46-47, C 92)
On January 5, 1994, following his meeting with Complainant
and his co-workers, Brown met with Rosenblum and other members of
management. (C 41) Brown noted that Rosenblum "commented that
the group appeared to [be] out of control in a technical sense as
engineering standards were not being applied." Brown also wrote
that Reilly was instructed by Rosenblum to "fix" the CGI test
laboratory.
Also in attendance at Brown's January 5, 1994 meeting with
Rosenblum and the others was Roger Reddy, an outside consultant.
Brown wrote that Reddy was asked to provide an "outsider's
evaluation" of the CGI test laboratory situation. (C 41) At the
hearing Rosenblum explained why he wanted outside help:
[W]hat we found was people were not dealing very well
with each other. They were coming to contradictory
results. They were not following normal procedures.
There were cases in which they weren't talking to each
[PAGE 9]
other and exhibiting the teamwork we would normally
expect from people who worked together, between different
groups. (TR 1163)
Reddy surveyed employees about their suggestions and
concerns and issued a report on February 18, 1994. (C 5) Reddy's report
explores the relationships between the different components of
the Procurement Engineering Department. The report also contains
many comments about the department by unnamed employees and calls for
reorganization of the department. Rosenblum testified:
[W]e elected to put that on the back burner because we
were concerned that taking the team building and reorgan-
izing and doing some of those other things might be per-
ceived externally as [having] a chilling effect on the
work force, that we were somehow dividing the people up
or maneuvering them together, it might be viewed nega-
tively by the work force and so we elected to put it on
hold. (TR 1168)
Following the filing of the nuclear safety concern, Herring
changed his attitude toward the individuals who were involved.
For example, Brewer testified, "I would say we [Brewer and Herring]
could pass within six inches of each other and not even speak."
(TR 255) At Brewer's going-away party in June 1994,
Herring said "absolutely not one word" about Brewer's service to
Respondent. (TR 269, 636) Complainant testified, "you know, he
used to be really friendly with me and then I think he really got
discouraged when I did that. After I submitted my concern." (TR
610) Herring denied changing his attitude toward his
subordinates. (TR 1532) However, he admitted that prior to Complainant's
protected activity he would go to lunch with Complainant but he
had not done so after Complainant filed his nuclear safety concern.
(TR 1520, 1531)
The technical investigation of the nuclear safety concern
progressed. (C 41) On March 10, 1994 Complainant was told by
Opitz and Herring that his annual employment contract would not be
renewed and that he would be released when his contract ran out
at the end of December 1994. (TR 1446, 1451-52; C 11; R 33, 116).
Around this same time, all other contractors in Procurement
Engineering were told that they would be released between June
and December 1994.[5] (TR 89, 1446, 1667)
On April 5, 1994, a telephone conference was held between
representatives of Respondent and the NRC regarding the technical
merits of Complainant's concern. (C 25; R 34) In attendance for
Respondent were Adams, Frick, Herring, Osborne, and four others.
Notes written by Osborne following the conference call show that
[PAGE 10]
Respondent suspected that Complainant, Brewer, Telford, and
Johnson were planning to go to Washington, D.C., to meet with
Congressional staff members later in that month. (C 24)
Earlier on April 5, Rosenblum had instructed Walter Marsh,
Respondent's manager of nuclear licensing to give "Tom Dennis
[Vice President in Respondent's Washington, D.C., office] a full
briefing and find out what committee and when they are talking to. Also
need to think [how] we should be prepared to provide counter
witnesses to defend ourselves, etc. Also warn NEI [Nuclear
Energy Institute] (whoever is appropriate now) etc." (C 53)
Rosenblum prepared for the potential consequences from the
Washington trip by Complainant and the others by sending letters
to the Institute of Nuclear Power Operations and the Nuclear Energy
Institute, two nuclear industry trade associations, setting forth
Respondent's position that the testing of the fasteners was
adequate and the fasteners were safe. (C 48, 56) Rosenblum also
participated in drafting a briefing paper for Dennis' use in the
event that questions about the visit were directed to him. (C
152)
Complainant engaged in additional protected activity when
he, Johnson, Brewer, and Telford went to Washington on April 15,
1994. On the morning of April 15, they met with staff members of the
NRC. Later that day, they met with staff members of a Senate
committee. (TR 148, 265, 614-16, 733) The topic of discussion at both meet-
ings was the fasteners.
Johnson testified that following his trip to Washington he
was called by Herring who told him, "Before you go to Congress again,
be sure that you advise me first." (TR 149) Johnson described
Herring's tone as one of "anger" and that his voice was raised
and "unpleasant." (TR 149)
On April 22, 1994 a routine monthly meeting of the CGI test
laboratory staff was held. Brewer testified that Herring told
him at that time, "You don't even have the capacity to understand
fasteners." (TR 256) Clift recalled Herring saying to Brewer "if
he had the mental capacity to understand, he would understand how
wrong he was." (TR 323) Clift added, "That to me was very
offensive and that stuck in my mind, because Frank's over 70
years old, and to me, that was a direct slur on him being an older
person." (TR 323) Telford also heard Herring's statement. (TR
733-36) Brewer recalled that Herring said something to Complainant
about Complainant not being a mechanical engineer. (TR 260-61)
Complainant responded, "I am not a mechanical engineer. I am a
safety engineer licensed by the State of California." Brewer
[PAGE 11]
testified "I felt it was a totally intimidating or attempt at
intimidation statement." (TR 261) Clift provided a similar
version of this exchange. (TR 322) Brewer stated that Herring
"Essentially kind of barked it out...It was very curt and terse...It was not
just in normal conversation." (TR 322) Telford also heard this
comment. (TR 733-36) Clift said that there were no more
questions, "because we did not want to get blasted back at by [Herring]."
(TR 324) Complainant said the conversation was "almost...heated" and
"turned everybody off in the room." (TR 617) Telford agreed,
"And after what I saw what he did to the first two, my hand stayed
down. I didn't say a word after that on fasteners in the group." (TR
737)
Following the meeting, Herring telephoned Mike Ramsey, an
engineer in Respondent's Safety Engineering group who was
involved in investigating the concern, to tell him about the meeting.
Following his telephone call with Herring, Ramsey sent an
electronic mail message to Willis Frick. (C 15) Ramsey's message
discusses the technical issue raised and states that a comment
regarding the differences between safety engineers and mechanical
engineers was made at the meeting. Ramsey also wrote, "Tom
[Herring] said that he had not used any four[-]letter words
during the discussion, but it was obvious he would have liked to."
Ramsey also wrote that he had instructed Herring to call Frick.
On April 25, 1994, Frick sent an electronic mail message in
which he stated that Herring had called and had "express[ed] his
concern that he had taken an inappropriate action." (C 13) Frick
wrote that he told Herring that in his opinion Herring had done
nothing wrong but Frick requested that Herring make some notes of
the event. Frick noted that Herring also had called Ramsey who
in turn contacted Frick. As a result of his contact with Ramsey,
Frick requested that Ramsey "write up some phone notes" and
survey some of the others present at the meeting.
At the request of Ramsey, Opitz also prepared a "MEMO FOR
FILE" on April 26, 1994. (C 17, 18) Opitz recorded the
attendance at the meeting. Herring summarized the technical discussion
which had taken place at the meeting. Opitz's notes confirm that
Complainant was the first to raise the fastener safety issue and
that Herring responded with comments related to Complainant's
background as a safety engineer versus the perspective of a
mechanical engineer. (C 17)
On April 27, 1994, there was an "all-hands" meeting in the
warehouse in which members of management addressed questions from
members of the procurement engineering department. Complainant
recalled raising the fastener issue but was told by Reilly
[PAGE 12]
something to the effect "that's just one engineer's opinion that
there's a problem." (TR 618) In addition, Clift testified that
he did not like standing for a long time and did not consider it a
normal way to do business and found it "a little demeaning
standing there" in the warehouse. (TR 324)
On May 15, 1994, Herring issued a memo to employees
entitled, "Free Flow of Safety Information." (C 20) In the memo Herring
stated that in response to the discussions at the April 22 and 27
meetings, "I want to take a moment to restate the policy of
[Respondent] to encourage open, professional, technically sound,
personally courteous, and objective discourse on safety issues."
Herring also wrote, "the existence of a nuclear safety concern
does not, in any way, reflect negatively on the individual raising the
concern or on the organization from which it arises."
Following the issuance of Herring's memo, the contract
employees were told that instead of being released between June
and December, they would be released between June and September due
to budget difficulties. Herring testified that he met with Brewer
and the other contract employees on May 25, 1994 to inform them of
their new release dates. (TR 1473; R 6) Herring testified that
he also wanted to inform Complainant on this date but "If memory
serves, [Complainant] was on vacation at this time, so...I
believe...we met with him June 2nd." (TR 1473) Complainant did
not recall the exact date he learned about his early release;
Herring's desk calendar confirms that he met with Complainant on June 2. (R
6)
On June 2, 1994, K.A. Slagle (head of the Nuclear Oversight
Department, a part of which includes the Nuclear Concerns Group)
sent identical letters to Complainant, Clift, and Telford,
stating that the nuclear safety concern had been investigated and
resolved. Essentially, the letter says that the fasteners were safe. (C 30-
32) Although the letter addresses Complainant's written nuclear
safety concern line by line, the introductory paragraph to Clift
and Telford states that the basis for the letter to them was
their January 5, 1994 meeting with Brown and Osborne. Clift testified
that he was "very surprised" to get the letter at home and was
upset that it was sent to his house. (TR 316-17) Telford was
similarly upset to be contacted at home. (TR 858-64)
Complainant, Clift and Telford testified that they found the technical
discussion in the letter to be inadequate. (TR 308-309, 624,
759)
Telford testified that sometime later in June 1994
Opitz told him "his [Opitz's] career was ruined because of
Complainant's nuclear safety concern...Management blamed him for
not being able
[PAGE 13]
to control [Complainant]." (TR 768-69) This conversation
occurred in Opitz's office. (TR 769, 831) Opitz testified, "I don't think
I used those words." (TR 1692) Opitz admitted, "I felt left out"
of the process to resolve the nuclear safety concern and he was
feeling "frustrated" when he spoke to Telford. (TR 1694)
However, Opitz denied that he was ever told by any member of management
that his career was ruined. (TR 1694-95)
The June 2, 1994 letters to Complainant, Clift, and Telford
did not end the fastener issue. In an electronic mail message
dated June 21, 1994, Brown wrote to Frick, "Just had an extended
discussion with [Ramsey] on the letter he got from one of the
submitters and surrounding information. It seems we (SCE) now
need to decide if it's time to cease our effort to satisfy the CGI
gang and let the investigation stand on its merit or whether we want
to take another shot at satisfying them." (C 33) In the same
message Brown wrote, "The submitters have already played most of their
cards and now seemed bent on a nonconstructive course of shutting
down the plant and disrupting operations at the warehouse."
Brown then requested a meeting "to pinpoint the issues and develop
proposal...to close out this issue."
On July 4, 1994, Rosenblum sent an electronic mail message
to Ray. (C 55) Rosenblum wrote, "the fastener issue is far from
dead. We feel fairly confident that our existing technical analysis is
as thorough as necessary and are constantly upgrading it to respond
to new issues raised..." Rosenblum continued:
The contractor layoffs have been on the books since the
beginning of the year and have been visible for several
months. We accelerated some a few months, due to the
work situation, but kept [Complainant] (the original
alleger) at the original date as a measure of protection
to avoid any perception of retribution for raising
[nuclear safety] concerns. (C 55)
During the remainder of July and August, events seem to have
taken a summer hiatus. Then, in early September, Telford was
involved in a confrontation with a co-worker, Wendy Murray.
Telford testified that Murray "really got into a turmoil one day,
she accused me of trying to shut the plant down, might as well go
home, we're all going to get laid off. She was yelling at the
top of her voice and throwing things around." (TR 724)
On September 8, 1994, Complainant, Clift, and Telford
attended a meeting regarding a forthcoming NRC visit to the plant. As the
[PAGE 14]
attendees were filing into the room, Jim McKeown, a quality
control inspector, pointed to Clift, Telford, and Complainant and said
"there's the troublemakers." (TR 333, 739) Brown and Adams also
were in attendance but apparently did not hear the remark or
react to it. (TR 333-34, 621-22, 740, 919) Clift said he was not
frightened by McKeown's statement and did not bring it to anyone's
attention because he did not think management would do anything
about it. (TR 367-369) Telford testified he did not "feel good
at all because I didn't like being singled out. I was already going
through retaliation and intimidation with the company so I didn't
need that." (TR 741)[6] Benaj Basu was also in attendance at
this meeting and heard McKeown's comment. (TR 1849) Basu testified,
"I thought he was joking, and that's the way he does. I know
McKeown. That's the way I heard it. It was a joking manner." (TR 1849)
Daniel J. Czapski similarly stated, "I felt that he made it,
knowing Mr. McKeown, having worked with him for a couple of
years, I believe it was a relatively flippant remark, in jest." (TR
1874)
At a September 21, 1994 meeting, Complainant and Telford
heard McKeown remark, "It's all their fault." (TR 675, 743) Czapski
heard this remark too. (TR 1876) He testified, "Again, I
believe...that it was a jovial type of remark." (TR 1876)
Complainant's last day of employment with Respondent was
September 23, 1994, but he was paid for five vacation days
through September 30, 1994. (TR 636; C 6, C 42)
In November 1994, approximately two months after
Complainant's departure, Respondent began to implement some of Reddy's recom-
mendations and the Procurement Engineering Department was trans-
ferred to the Quality Assurance Organization. (TR 1542) This
transfer effectively removed Herring as the manager of the
Procurement Engineering Department and the CGI test laboratory.
(TR 1542)
Complainant testified that he has not worked since being
released by Respondent. (TR 636) He has applied for about 125
jobs but has had no offers. (TR 636-37) Complainant further testified
that his health is "not too good...My blood sugar goes up and
down and every once in a while I need to eat something to keep my
blood sugar up and I get sluggish and this whole thing has bothered me
mentally, this whole issue that I'm undergoing right now because
I feel responsible for some of these people." (TR 643)
Clift and Telford testified that they would never submit a
nuclear safety concern again. (TR 352, 760) Clift further
testified that Complainant is not happy any more and "He's just
not
[PAGE 15]
the same guy." (TR 354) Telford agreed, "[Complainant] has been
looking really bad lately. He doesn't look anything like he used
to. His hair has really grayed over more. He hasn't been ---
he's been uptight and withdrawn. He's not the Bob Seater I've seen at
work." (TR 870)
Complainant's primafacie case of
discrimination can be summarized as follows: After filing a
nuclear safety concern with Respondent on December 27, 1993,
Complainant was informed on March 10, 1994 that he would no
longer be employed by Respondent as a contract employee after December
1994. After pursuing his concern further by travelling to
Washington, D.C. on April 15, 1994 to meet with staff members of
the NRC and the staff of a Congressional committee, Complainant
was told on June 2, 1994 that his release date had been moved up to
sometime in September 1994.
I find that Complainant has established a primafacie case of discrimination. Couty v. Dole, 886
F.2d 147, 148 (8th Cir. 1989). This finding is based on the following
facts: 1) Respondent has stipulated that Complainant's conduct
constitutes protected activity; 2) Respondent does not dispute it
knew that Complainant engaged in the protected activity; 3)
Respondent took adverse action against Complainant when it
informed him that he would be released as a contract employee and, later,
when the release date was accelerated from December to September
1994; and 4) the timing of the adverse actions Respondent's
notification that Complainant would be discharged occurred less
than three months after he submitted the nuclear safety concerns,
and Complainant's continuing protected activity was quickly
followed by the acceleration of his release from December to
September 1994. The foregoing circumstances raise the inference
that Respondent's actions against Complainant were motivated by
his protected activity.
On the other hand, not all of the evidence introduced by
Complainant supports his primafacie case. For
example, Complainant argues that Brown's December 30, 1993
telephone call to Respondent's outside counsel is evidence of
improper animus. Without divulging the substance of the call,
Brown testified that the attorney offered "preliminary regulatory
advice." (TR 905) Although Brown testified that calls were
placed to outside counsel in "very few" cases (TR 904), I find that such
conduct does not constitute evidence of unlawful animus.
Another of Complainant's allegations I do not accept is that
the transfer of the Procurement Engineering Department from
Herring's control is evidence of improper animus. Herring
[PAGE 16]
testified that he was "confident" that the transfer was not the
result of Complainant's protected activities. (TR 1542) Herring
added:
I have received nothing but 100 percent reinforcement of
this with Mr. Reilly and Mr. Rosenblum. I'm really very
confident on (sic?) my management on this issue. I have
no fear at all that there will be some sort of action
taken against me because someone in my organization
submitted a nuclear safety concern. I'm very, very
confident of that.
(TR 540) Complainant has introduced no evidence to contradict
Herring's testimony that the transfer was done "according to
plan."
(TR 1542)
I further find that Complainant has not established a
prima facie case that he was subjected to a hostile work
environment. The Secretary has recognized that the Act protects an employee
from being exposed to a hostile work environment as a result of his or
her protected activity. English v. General Dynamics Corp.,
85-ERA-2 (Sec'y Feb. 13, 1992). The Supreme Court has observed,
"Conduct that is not severe or pervasive enough to create an
objectively hostile or abusive work environment -- an
environment that a reasonable person would find hostile or abusive -- is
beyond Title VII's purview." Harris v. Forklift Sys., Inc., 114
S. Ct. 367, , 126 L. Ed. 2d 295, 302 (1993). The harassment
complained of must relate to the "terms, conditions, or
privileges" of employment. Kotcher v. Rosa and Sullivan Appliance Ctr.
Inc., 957 F.2d 59, 62 (2nd Cir. 1992) (citing 42
U.S.C. §2000e-2(a)(1)). Moreover, "The incidents must be repeated
and continuous; isolated acts or occasional episodes will not
merit relief." Id. (citingCarrerro v. New York City
Hous. Auth., 890 F.2d 569, 577 (2nd Cir. 1989)).
To support his claim of a hostile work environment,
Complainant introduced evidence of remarks make by McKeown, one
of his co-workers, towards him and his fellow "submitters" at two
separate meetings. There is no evidence that Respondent had any
knowledge of, or condoned, these remarks. In fact, Brown
testified he did not hear Mr. McKeown's remarks but would have reacted to
them if he had heard them. (TR 919) Others who heard these
remarks understood that they were made in jest.
Murray's September 1994 outburst in Telford's presence is
the only co-worker incident Complainant was able to conclusively
demonstrate that Respondent was aware of. However, this incident
did not involve Complainant nor did he testify that he was
affected by it. Furthermore, Opitz testified that he counseled Murray
after
[PAGE 17]
her outburst. (TR 1702-03)[7]
While McKeown's comments and Murray's outburst were inap-
propriate, they do not rise to the level of creating a hostile
work environment as contemplated by the Supreme Court. SeeMeritor Savings Bank v. Vinson, 477 U.S. 57, 67
(1986)(citingRogers v. EEOC,454 F.2d 234, 238 (5th
Cir. 1971, cert.denied, 406 U.S. 957 (1972)(mere
"offensive utterance" insufficient to state a claim for a hostile
work environment)). Accord, Steiner v. Showboat
Operating Co., 25 F.3d 1459, 1463 (9th Cir. 1994).
Therefore, I find that these isolated incidents did not create a hostile
work environment and are not attributable to Respondent.
It is understandable that Brewer, Clift and Telford
considered Herring's comments during the April 22, 1994 meeting to be
offensive. Indeed, Herring was concerned enough about his
remarks to call Frick immediately after the meeting to alert him that the
meeting had been volatile. However, Herring's comments and
general attitude during the course of 1994, although certainly unpleasant
for Complainant and his fellow submitters, do not rise to the
level of creating a hostile work environment. Likewise, having to
stand for a few hours at the April 27, 1994 all-hands meeting, even if
considered an oppressive act, does not create a hostile work
place. SeeKing v. Board of Regents, 898 F.2d 533, 537
(7th Cir. 1990) ("Although a single act can be enough,...generally,
repeated incidents create a stronger claim of hostile
environment, with the strength of the claim depending on the number of
incidents and the intensity of each incident."); Carr v. Allison Gas
Turbine Div., General Motors, 32 F.3d 1007, 1010 (7th Cir.
1994)(requiring "more aggressive affronts than mere words.").
Other evidence introduced by Complainant is difficult to
assign either to the wrongful discharge or to the hostile work
environment claims. For example, Complainant introduced
testimony that following his deposition in March 1995, some six months
after Complainant left his position with Respondent, Opitz
removed a sign in the CGI test laboratory that stated "principle
above politics." (TR 1704-10; C 67) Similarly, a letter from the
NRC was circulated by Herring in January 1995 with the notation
"copy all pe" and a doodle of a smiling face. (C 7) Like the
"principle above politics" incident, Complainant has not
demonstrated how an event that occurred almost four months after
Complainant left his position is relevant.[8]
Taken as a whole, I find that the isolated and unconnected
incidents cited by Complainant were not frequent or severe enough
to establish a primafacie case that Complainant
was exposed to a
[PAGE 18]
hostile work environment.
Finally, we come to Complainant's contention that his
treatment by Respondent was part of a pattern or practice of
retaliation against whistle-blowers. In support of this
allegation, Complainant introduced the testimony of Addison DuBoi
and Clift. DuBoi testified that he believes Respondent
transferred him because he submitted a Nuclear Safety Concern on July 30,
1990. (TR 1962) DuBoi had difficultly recalling the exact details of
the events that followed the filing of his concern. He cautioned,
"One thing before I start this, I'd just say, this has been several
years for me and some of the things are somewhat foggy." (TR
1962- 63) DuBoi testified that he believes that he was transferred as
a result of his nuclear safety concern, but he provided no evidence
to support his claim. (TR 1985-86)
Clift testified that in addition to his concern about the
fasteners, in September 1994 he filed a separate nuclear safety
concern related to "relays". (TR 345-51) Clift testified that
management's reaction to the relay concern was similar to its
reaction to the fastener concern, "they tended to try to argue
with us when we were at a meeting, and tell us everything was really
all right and we didn't know what we were talking about." (TR 350-51)
I find that Respondent's disagreement with Clift does not by
itself indicate a discriminatory animus. Further, despite having been
associated with two nuclear safety concerns within one year,
Clift continues to be employed in the laboratory. (TR 365)
Complainant has produced insufficient evidence to establish,
prima facie, that Respondent's treatment of other whistle-
blowers was unlawful, let alone that it constitutes a pattern or
practice, or a common design, to discriminate against whistle-
blowers. Therefore, Complainant has not shown by prima
facie evidence that Respondent's actions against him were
part of such a pattern or practice.
Since I have found that Complainant has established a
primafacie case of unlawful discrimination under
the Act, the burden is shifted to Respondent to proffer a legitimate,
nondiscriminatory reason for its adverse action against
Complainant.
B. Respondent's Legitimate, Nondiscriminatory Reason for
Complainant's Discharge
Respondent posits that its legitimate, nondiscriminatory
reason for releasing Complainant from his contract position had
its origin in the shutdown of one of its three nuclear power
generating
[PAGE 19]
units at SONGS. As a result of this shutdown, the hundreds of
full-time employees of Unit 1 were told that they would be
transferred to positions located elsewhere at SONGS. In many
cases these positions were held by contract personnel, including
Complainant. Respondent further argues that Complainant's
position at the CGI test laboratory was temporary and would have been
eliminated even had Unit 1 not been shut down. Respondent
alleges that it reached its initial determination to release Complainant
by December 1994 prior to his protected activity. However,
subsequent to Complainant's protected activity, budget pressures forced
Complainant's release date to be accelerated to September 1994.
As further evidence that there was no relationship between
Complainant's discharge and his protected activity, Respondent
alleges that it was because of his protected activity that
Complainant was spared from an even earlier termination.
Rosenblum testified that the CGI test laboratory was opened
in 1991 in order for Respondent to upgrade its capability to analyze
and test commercial grade materials, including fasteners. (TR
991; C 144) Responsibility for the CGI test laboratory was placed in
the Procurement Engineering Department under Herring. (C 158)
Rosenblum testified that in general the labor force at SONGS
is a mix of directly hired employees and contract employees.
(TR 993) The exact composition of this labor force has varied
depending on the needs of Respondent's operations.
Rosenblum testified that, like the plant in general, the CGI test
laboratory initially was staffed with a mix of directly hired
employees and contract personnel. (TR 992) However, Rosenblum
stated that Respondent's long-term goal was to staff the
laboratory wholly with Respondent's own directly hired employees and
to replace the contract personnel. This goal was motivated by a
number of factors, including the lower cost of directly hired
personnel.
Complainant was one of several contract employees hired by
Respondent to open the CGI test laboratory. While Complainant
had been a contract employee at the time he engaged in his
protected activity, this had not always been the case. For
approximately five and a half years, between 1985 and 1991,
Complainant had been a direct employee of Respondent. However,
as a result of his father's illness, in early 1991 Complainant
resigned his position at SONGS and planned to relocate. (TR
595-96) For reasons that are not apparent in the record, Complainant did
not move, and he was engaged by Respondent to assist in opening
the CGI test laboratory starting in June 1991 as a contractor. (TR
596; C 6)
Complainant's services were secured through the use of
Premier
[PAGE 20]
Temporary Services ("Premier"), which is not affiliated with
Respondent. Complainant testified that Respondent submitted a
purchase order to Premier to supply a specific employee or
employees to work at SONGS. Complainant submitted his time cards
to Premier. Premier periodically billed Respondent for Complain-
ant's time. And Premier paid Complainant's salary. (TR 638-642)
The purchase order that governed Complainant's employment
refers to a document titled "General Terms and Conditions [-]
Supplementary Personnel." (R 1-3) This document provides that
any contract employee, or the entire purchase order, may be
terminated by Respondent at any time upon written notice to Premier.
Long before Complainant engaged in his protected activity,
Respondent was forced to examine its overall relationship with
its contract employees. Rosenblum testified:
In early 1992, as a result of activities with the
California Public Utilities Commission, we agreed to shut
down San Onofre Unit 1 when the fuel that was at that
time in the plant ran out. And there are three units at
San Onofre, so nominally we were going to eliminate one
of the three. And that made available a large staff of
skilled people who worked on Unit 1. We elected to
absorb those people into the work force in a transition
as we shut down the unit and displaced contractor
personnel that could be displaced and for which we had
jobs, they could be retrained to do those jobs.
(TR 994; see also R 30: January 16, 1992, "Special Information
Release" signed by Harold B. Ray to Nuclear Organization
Employees announcing shut down of Unit 1 and plan to relocate displaced
employees elsewhere).
In an August 19, 1992 electronic mail message, Bill Davidson
wrote "I have been tasked with establishing non-SCE staffing
reduction targets for each Division." (R 89) Davidson further
wrote, "We are still trying to sort out the data that was
provided by the Finance Team to determine how many people those dollar
reductions equate to...My belief is that we...are still talking
about 300-400 people and instead of being at year-end, we may
have to start sooner."
Respondent's pending shutdown of Unit 1 was responsible, in
part, for an "Open Letter" addressed to "Fellow Employees" dated
August 25, 1992 and signed by John E. Bryson, Respondent's
Chairman of the Board. (R 24) In his open letter Bryson wrote:
[PAGE 21]
I have asked the Finance Team to take the necessary steps
to reduce 1992 expenditures by at least $15 million by
year end. Specific actions will include substantial
reductions in expenditures for consulting services, part-
time, temporary and supplemental personnel and a company-
wide hiring freeze effective immediately...[W]e expect
continued difficulties in reducing the appropriate
[spending] levels for 1993 and 1994.
Rosenblum testified that as part of the plan to transfer
employees from the closed Unit 1 to other positions at SONGS, two
studies were commissioned to determine the ideal staffing levels
at SONGS. (TR 1010) One study was conducted by Tim D. Martin, an
outside consultant, in early to mid-1993. This study became
known as the "TDM study." The second study was conducted in-house in
June 1993 by Brian Katz, and was referred to as the "BK study."
(TR 1011, 1014; R 19)
Reilly testified that he was familiar with the program to
reduce the number of contract employees at SONGS due to the
shutdown of Unit 1 and that, apart from that reduction, the plan
had been to eventually reduce the number of contract employees in
the CGI test laboratory. Reilly testified that the BK study
called for a staffing level of thirty and the elimination of all
contract employees in Procurement Engineering by the end of 1994. (TR
1275,
1278, 1311) Rosenblum explained that the BK study proposed a
staffing level for the Procurement Engineering Department of
thirty people. However, at the time of the study, the staffing level in
Procurement Engineering was "about ten to twelve people higher
than that." (TR 1014) The TDM study proposed the same staffing
levels. As a result of these studies, Rosenblum explained, "We would have
been shooting for procurement engineering to reach thirty at the
end of 1994." (TR 1022)
Rosenblum testified that he directed his staff "to use that
[BK] study as a staffing level and to create contractor reduction
schedules and provide them to me." (TR 1025) Herring testified
that he knew that under the BK study staffing levels he would be
required to release all contract personnel, including
Complainant, by the end of 1994. (TR 1443-44, 1452)
The Procurement Engineering budget for 1994 was set at 92.1%
of the 1993 budget. (R 17, dated 1/4/94) This budget projected
cost savings, in part, through the elimination of eleven contract
employees. Earlier versions of this budget called for spending
that was 90.0%, 90.8%, and 93.5% of the 1993 budget level, in
part accomplished through the elimination of contractors. (R 7 & 8,
dated 8/19/93; R 9, dated 11/1/93; R 15 & 16, dated 12/9/93).
[PAGE 22]
In a memorandum dated January 5, 1994, Herring informed
Rosenblum and Reilly that he could meet the "Target = 30 Total"
by releasing all contract personnel by December 1994. (R 10) Herr-
ing's memorandum identified twelve contract employees who would
be released during 1994. The earliest was scheduled to be released
in January. The last, a group of five including Complainant, was to
be released in December.
On March 3, 1994, Herring sent a second memorandum to
Rosenblum and Reilly advising that one contract employee had been
released in January. All other contract employee release dates
remained unchanged. (R 11)
David Hadley testified that his duties included keeping the
budget figures for the Procurement Engineering Department. (TR
403, 442) In a March 7, 1994 memorandum, Hadley informed Herring that
the department was overspending its budget by $97,872 and
projected a deficit of $176,374 by the end of the year. (R 104)
Herring testified that he had been requesting permission
from his superiors to inform the contract employees that they were
scheduled to be released. (TR 1446) Eventually permission was
granted, and during the week of March 8, 1994 Complainant and
several other contract employees were informed by Herring and
Opitz that they would be released between June and December 1994. (TR
1667; R 11, 33, 116)
Garret H. Dokter, Jr., testified that he is a budget analyst
for Respondent and is responsible for monitoring the Procurement
Engineering budget. Dokter testified that by the end of March
1993 the Procurement Engineering budget was running a current deficit
of $134,000. (TR 1773-74) Dokter further testified that the budget
deficit continued to grow throughout the remainder of 1994. (TR
1774-75; R 18)
Dokter testified that during 1994 his budget figures did not
always agree with Hadley's calculations due to differences in
their accounting methods. (TR 1781-1816) However, Dokter testified
that his budget was based on the company's records and was the budget
that agreed with the corporate records. (TR 1754; R 73-84)
Despite their differences, Dokter and Hadley were in agreement that in
the early months of 1994 the Procurement Engineering Department was
running a deficit that was projected to increase if left
unchecked.
(TR 517)
Hadley's report to Herring dated April 4, 1994, listed a
[PAGE 23]
current deficit of $98,805 and projected a year-end deficit of
$173,315. (R 105) While that report contained a current deficit
that was larger than that contained in the March report, this
deficit projection was approximately $3,000 lower than Hadley's
year-end deficit projection prepared in March. Dokter's report
for the same period projected a $167,506 deficit by the end of the
year. (R 76)
On April 29, 1994, Herring sent a third memorandum to
Rosenblum and Reilly setting forth revised contractor release
dates. (R 12) Under this revised schedule, Complainant and the
four others to be released in December had their release dates
changed to September 1994. The memorandum stated that the
termination dates were "Revised due to budget shortfall."
Following the release of some of the contract employees and
the new release dates of the remaining contract employees,
Hadley's May 2, 1994 report noted a smaller current deficit of $87,708 and
a year-end budget surplus of $166,075. (R 106) Hadley
testified (TR 511):
A. The reason why the projection now shows a surplus
is because the computer code that I had developed
to calculate this projection was revised to reflect
the early departure or release of contractors and
based on the release dates that we knew of at this
point in time.
Q. So that took into account the fact that the
contractor personnel were going to be released and
it resulted in going from a fairly substantial
deficit to a surplus, correct?
A. That's correct.
Q. So by releasing that personnel, it solved the
budget problem, as far as your budget projection
showed, correct?
A. Yes.
Although the Procurement Engineering Department was cutting
its budget to such a large extent that it was projecting a
surplus, other departments were experiencing budget problems. In a June
9, 1994 letter addressed to "Nuclear Organization SCE Personnel",
Ray wrote that the transition of Unit 1 personnel to positions in
Units 2 and 3 had been "successfully completed over the past year..."
[PAGE 24]
Ray added, "Our transition plan has included a significant
reduction in the level of contractor support...and this reduction
will continue. However, it is also necessary for us to now
reduce the current level of SCE staffing by 45 management and
administrative employees and 16 bargaining unit employees." (R 23)
Despite continuing budget pressures, Complainant was spared
from an even earlier termination. In a June 22, 1994 electronic
mail message from Rosenblum to Ray, Rosenblum wrote: "FYI,
[Reilly] also told me that [Complainant] (the originator of the bolting
concern) was originally scheduled to leave late in the year but
because of budget cash flow issues contractor reduction in this
area is being accelerated. [Reilly] was seeking input on what to
do with [Complainant]. I told him to keep him until the
scheduled date so we avoid the appearance of some adverse change." (C 2)
Four hours later on June 22, 1994, Reilly followed his
conversation with Rosenblum by sending an electronic mail message
to Herring. (C 166; R 39) Reilly wrote:
In response to our Budget discussion. I talked to
[Rosenblum] about the current forecast and the impact of
originally scheduled contractor reduction. I told him we
had concluded we need to move the contractor reduction
schedule forward to July to achieve our budget objec-
tives. I indicated I was concerned about the perception
the work force might have as a result of moving [Com-
plainant's] scheduled date forward. We agreed that we
should not change [Complainant's] schedule date. It is
more important to maintain respect for the concern
process and that the small budget improvement that would
result did not justify any change. Therefore please move
the contractor reductions forward to July as we discussed
with the exception of [Complainant's]. [Complainant's]
release date should remain 9/31/94 as originally
scheduled.
Rosenblum testified (TR 1031):
I elected to freeze [Complainant's] date and not make any
further changes at that time because he had raised a
nuclear safety concern and I wanted to clearly communi-
cate that there was no action here associated with the
nuclear safety concern so that it would not appear to
people outside that any action had been taken on him that
would prevent them from also raising safety concerns.
[PAGE 25]
The budget pressure on the Procurement Engineering
Department continued into July. (C 78; R 72) In an electronic mail message
dated July 1, 1994, Dokter wrote: "Reilly is committing to the
Nuclear Organization that he will be on budget at year end."
However, Dokter testified:
The entire nuclear organization was under budget pressure
during the year. Mr. Reilly had been instructed to do
everything he could to stay within his budget and he was
also instructed to absorb new issues that came up during
the year. There was considerable pressure to contain the
costs throughout the whole nuclear organization.
(TR 1776) Dokter explained "the biggest single [new issue was]
about a million dollars worth of canceled capital projects."
(TR 1777; see also TR 1299 (Reilly)) Dokter's memorandum shows
that Procurement Engineering's "impact" was to "be $100K under
budget." (TR 1302)
After being instructed not to advance Complainant's release
date, Herring continued to accelerate the release of other
contract personnel. (R 13) In a memorandum dated July 11, 1994, Herring
informed Rosenblum and Reilly that Lowe and Outlaw had been
released and that all other contractor release dates had been
moved to July. This group of contractors included the four originally
scheduled to be released in December along with Complainant.
However, Complainant remained scheduled to be released in
September. Like the April 29, 1994 memorandum, the contractor
release dates were noted as "Revised due to budget shortfall."
By August 1, 1994, Complainant was the last remaining
contract employee not only in the CGI test laboratory but in the entire
Procurement Engineering Department. (R 14) Complainant's last
day of employment was September 23, 1994.
Despite the budget cuts and the elimination of all contract
employees, Dokter testified that Procurement Engineering finished
1994 with a budget deficit of $5,817.00. (TR 1776) Reilly
testified that the department as a whole was unable to meet its
budget and ended the year more than one million dollars over
budget. (TR 1303)
The foregoing circumstances support Respondent's contention
that it had a legitimate nondiscriminatory reason for terminating
Complainant, viz., its plan to eliminate the contract personnel
which was motivated by financial considerations. The Supreme
Court
[PAGE 26]
has noted that at this stage the fact-finder shall not make a
"credibility assessment" of Respondent's proffered reason. St.
Mary's, 113 S. Ct. at , 124 L. Ed. 2d at 416. In the words
of St. Mary's, I find that, "By producing evidence
(whether ultimately persuasive or not) of nondiscriminatory reasons,"
Respondent has "sustained [its] burden of production, [and] thus
placed [itself] in a `better position than if [it] had remained
silent'" Id.
Therefore, the applicable presumptions have dropped out and
the record must be considered as a whole in order to determine
whether Complainant has satisfied his ultimate burden of proof.
C. Complainant's Ultimate Burden
In response to Respondent's contention that Complainant's
termination was due to budget considerations rather than
retaliation for his protected activities, Complainant argues that
the budget problems were deliberately created by Respondent so
that it could discharge him. To prove this point, Complainant alleges
that money was actually available in the budget to pay him
through the end of the year but was hidden through Respondent's
manipulation of the budget.
To support his contention that the budget was intentionally
altered, Complainant relies on the testimony of Hadley who stated
that three new accounting codes were created in the Procurement
Engineering budget after Complainant filed his nuclear
safety concern on December 27, 1993. (TR 451, 496) Respondent
contends that these budget codes were created to cover
destructive testing, supply expense activities, and "NEDO" support.
Complainant argues that these budget changes were made in
response to his protected activity, in order to manipulate the Procurement
Engineering budget. However, Hadley's testimony is contradicted
by the evidence submitted by Respondent. An August 30, 1993
memorandum from Leroy Rice to Herring states that Procurement
Engineering will have to budget for destructive testing because
funding for this activity will no longer be provided by "material
support." (R 103, R 111) Another August 30, 1993 memorandum from
Dokter to Rice discusses the same topic. (R 114) In a December
17, 1993 electronic mail message Hadley himself wrote that new budget
codes would have to be created to track these new budget items.
(TR 501-02; R 102) Dokter testified that the decision to add a
budget item for destructive testing was made in early September 1993.
(TR 1767) Contrary to Complainant's contention, I find that Dokter
did not present an "arrogant, pompous demeanor." (Complainant's post-
hearing brief, p. 46) I also reject Complainant's attempt to
demonstrate bias on Dokter's part because he owns $40,000 in
[PAGE 27]
Respondent's stock and "knows where his bread is buttered."
(TR 1824; Complainant's post-hearing brief, p. 47, n. 9) Based
on Dokter's credible testimony and the documentary evidence, I find
that Respondent's use of the new budget codes was unrelated to
Complainant's protected activity.
Complainant also alleges that the large discrepancy between
Hadley's end-of-year 1994 budget estimates and Dokter's budget
estimates is further evidence of budget manipulation. Hadley
explained that in preparing his reports he calculated the
contract employees' labor rates by multiplying the hourly wage times the
number of hours worked. (TR 523) Hadley did not account for
payroll taxes and did not know who paid them. (TR 524) Hadley
alsofailed to account for paid vacations because he had been unaware
that they were provided by Respondent. (TR 530)
Dokter testified he was aware that his budget estimates and
Hadley's were divergent. By December 16, 1994 their estimates
were $181,124 apart. (R 115) At the end of 1994, Hadley requested
that Dokter account for the differences, but Dokter did not do so.
Dokter testified he was busy with "other priorities." (TR
1791-92) However, in connection with this litigation, Dokter finally
attempted to reconcile the figures. (TR 1809-10) In his recon-
ciliation, Dokter identified a series of errors made by Hadley.
(R 116) For example, Hadley used the wrong billing rate for the
contract employees. (TR 1794) Dokter observed, "In one case the
rate was simply rounded to the nearest whole dollars instead of
dollars and cents. In other cases, the rate changed." (TR 1794)
Other mistakes made by Hadley included failing to account for
paid vacations and payroll taxes. (TR 1795) Dokter was able to
account for all but a small fraction of the differences between his
report and Hadley's.
In addition, Hadley himself conceded he had never seen any
evidence that the budget was changed to deprive Complainant of
his position. (TR 534)
Based on the foregoing, I find Complainant has not
established that Respondent manufactured or manipulated its budget figures.
Therefore, I reject this modality of refuting Respondent's
proffered nondiscriminatory motive.
Complainant also argues that Respondent's business-decision
defense is pretextual because the release of Complainant was
contrary to good business judgment. Complainant bases this
contention on the claim that at the time he was released there
remained training of personnel to complete, and therefore the CGI
[PAGE 28]
test laboratory's ability to fully function was compromised by
his termination. However, Herring testified that when Complainant
left, there remained employees who had attained the same level of
training possessed by Complainant. (TR 1482) Complainant
acknowledged that he had trained directly-hired employees to the
same level of qualification that he possessed, but Complainant
stated he would have preferred additional time to train his
replacement. (TR 660-63, 705) The certification records
maintained by Respondent show that after Complainant's termination there
remained employees able to perform all the job functions formerly
performed by Complainant. (R 96-97, 99-100) As Herring
testified, Complainant's function was to "work yourself out of a job" by
training Respondent's direct employees to replace him. (TR 1483)
Therefore, even though there may have been functions that
Complainant could have continued to perform, there is no evidence
that Respondent had a need to retain Complainant to perform these
functions.
Complainant further contends that an inference of animus may
be drawn from Respondent's decision not to seek outside work for
the CGI test laboratory which would have provided a revenue
source for his salary. With respect to this issue, Herring testified
that "one of my great hopes" was to have the CGI test laboratory
"doing work for others than the Southern California Edison." (TR 1555)
Herring testified that the plan was scuttled after speaking to a
company lawyer who told him, "don't hold out much hope." (TR
1554-55) Herring recalled, "he ran through [t]his long scenario of
stories on why liability was such an awful issue." (TR 1555)
Herring continued, "It was just this mountain of ... legal
garbage that got in the way." (TR 1557) Herring added, "It's a test of
how economical is it, how much money would it make, and we didn't
meet their test. It didn't even come close." (TR 1557) I find that
Complainant has failed to establish that Respondent had an
improper motive in rejecting the idea that the CGI test laboratory perform
work for other companies.
To sum up, I find the evidence establishes that Respondent
had determined in mid-1993, based on the BK study which was issued
prior to Complainant's protected activity, that the Procurement
Engineering staff would be reduced to thirty full-time employees
by eliminating the ten or twelve contract personnel in that depart-
ment. The Procurement Engineering budget for 1994, which also
was developed prior to Complainant's protected activity, was set at a
level lower than the 1993 budget. And it was anticipated that
the cost-savings between the 1993 and 1994 budgets would be achieved
through the elimination of all contract personnel. Complainant
himself testified he was aware of Respondent's plan to transfer
[PAGE 29]
displaced Unit 1 employees to other positions at SONGS. (TR 657)
Complainant also testified he was aware that the positions made
available to Unit 1 employees would be at the cost of other
contract personnel. (TR 658)
Complainant also alleges that Respondent accelerated his
release from December 1994 to September 1994 because of his
protected activity.
In the first few months of 1994, although Dokter's and
Hadley's figures did not always agree, they both projected a six-
figure budget deficit for the Procurement Engineering Department
if spending remained at its current level. Herring testified that
contract employees were "the only real variable I had in my
budget to address my emergent budget items." (TR 1457) Therefore,
Respondent accelerated the release date of its contract employees
in the Procurement Engineering Department. Then, in late June,
Respondent decided that the small cost savings that could be
achieved by releasing Complainant were offset by its desire to
maintain the integrity of the nuclear concerns program. However,
even after deciding in late June that Complainant's release date
would not be changed again, Respondent revised its contract
employee release schedule in July. Thereafter, contract
employees and direct employees continued to be released from their employ-
ment. Complainant was the last contract employee to be released
from the Procurement Engineering Department.
The strongest evidence of unlawful animus towards
Complainant is Herring's attitude toward his subordinates after Complainant
filed his nuclear safety concern and Herring's conduct at the
April 22, 1994 meeting. However, although it is clear that Herring was
personally displeased with Complainant, there is insufficient
evidence that Herring or anyone else in authority at Respondent took
any action against Complainant because of his protected activity.
Complainant argues that additional evidence of Herring's
improper animus is his failure to mark "favorable" or
"unfavorable" on his "Termination/Change of Status Notification." (C 4)
However, Herring testified that he forgot to mark the box but "I would
have checked favorable if I'd remembered to do so." (TR 1528) Herring
also testified, "he's a good man. He did a lot of good work for
us." (TR 1483) I find that Herring's testimony is credible on
this point. Therefore, I find Herring's failure to mark "favorable"
or "unfavorable" on this form is not evidence of improper animus.
Complainant further alleges that Herring's failure to check
favorable or unfavorable is an attempt at post-employment
[PAGE 30]
discrimination. However, it is unclear from the record if this
document is shown to third-parties or is intended for internal
use only. Moreover, Complainant has not introduced any evidence that
demonstrates that Herring's failure to mark this particular box
had, or has the potential to have, any discriminatory impact on
Complainant's efforts to secure other employment.
Complainant's remaining arguments that the evidence estab-
lishes unlawful animus are also wanting.
Complainant argues that Rosenblum's assurance to Ray that
Complainant's nuclear safety concern would be "handle[d]...with
kid gloves" is evidence of unlawful animus towards Complainant. (C
39) Complainant cites the first, literal, definition of "kid gloves"
as gloves made out of a goat's skin. (C 145 - Oxford English
Dictionary) Although Rosenblum could not offer an exact reason why he
chose to use the phrase "handle with kid gloves" in his message
to Ray (TR 1041-42), in common parlance the term connotes that the
subject should be treated carefully or gently. Therefore,
I find this message does not indicate that Respondent acted with
improper animus towards Complainant.
Another example of a misinterpreted incident relates to
Opitz's comment to Telford that his own career was ruined. While
I do not credit Opitz's denial that he made this comment, there
is no evidence that Opitz literally believed that his career was
ruined. Moreover, there is no evidence that Opitz's comments
were ever communicated to Complainant. Even if this comment was
somehow construed to be evidence of improper animus, it could not have
impacted on Complainant's employment situation because this
conversation occurred several weeks after the decision was made
to release Complainant in September and no further action was taken
against him following Opitz's comment. Finally, the record
establishes that subsequently Opitz was not treated adversely by
Respondent. Rather, in November 1994 Opitz was promoted and
given responsibility over a staff performing quality control of
received materials, in addition to his supervision of the CGI laboratory
staff. (TR 1660)
Brown's June 21, 1994 electronic mail message to Frick
contains comments that indicate his antagonism toward Complainant
and the other submitters. (C 33) In his message Brown refers to
the submitters as a "gang" that was "bent" on shutting down the
plant. Brown stated that he uses the word "gang" to talk about
his family, a work group, or his T-ball team. (TR 900) Brown also
testified that his use of the word "bent" was neutral in tone.
(TR 895) I do not credit Brown's denial that his statements
reveal his displeasure with Complainant and the other submitters.[9]
However, the decisions to discharge Complainant were made by
Rosenblum, Reilly, Herring, and Opitz, and there is no evidence
that Brown's remarks were known to or heeded by any of those
individuals. Moreover, the day after the June 21, 1994
memorandum was written, Reilly made the decision not to subject Complainant
to any further acceleration of his release date, even though the
release date of the other contractors was moved from September to
July. At the hearing, Reilly testified that Brown's comments
were "ludicrous." Reilly also stated, "There's no way this issue was
going to shut down the power plant." (TR 1361) Herring testified
that he did not believe Complainant intended to shut down the
plant because of his nuclear safety concern. (TR 1578-79) I find that
Brown's antagonistic attitude toward Complainant is insufficient
to indicate that Respondent had an unlawful motive in discharging
Complainant.
For all of the reasons set forth above, I find Complainant
has failed to establish by a preponderance of the evidence that
Respondent's decisions to discharge him and to move his
termination to an earlier date than it was originally scheduled were
motivated in whole or in part by his protected activity.
As I have found Complainant has failed to establish that
illegal animus, in whole or in part, motivated Respondent's
actions against Complainant, there is no need to apply the "dual motive"
analysis in this case.
V. CONCLUSION
Complainant has failed to establish that Respondent was
motivated by unlawful animus in terminating his job. Moreover,
Respondent has come forward with credible evidence that Complain-
ant's discharge was the result of business decisions that were
unrelated to Complainant's protected activity. Consequently, I
find that Complainant has failed to establish that Respondent
violated the Act.
In light of the foregoing, Respondent is not responsible for
Complainant's attorney's fees.
RECOMMENDED ORDER
The Complaint of Robert Seater is dismissed.
ROBERT D. KAPLAN
Administrative Law Judge
Camden, New Jersey
NOTICE: This Recommended Decision and Order and the
administrative file in this matter will be forwarded for review
by the Secretary of Labor to the Office of Administrative Appeals,
U.S. Department of Labor, Room S-4309, Frances Perkins Building,
200 Constitution Ave., NW, Washington, DC 20210. The Office of
Administrative Appeals has the responsibility to advise and
assist the Secretary in the preparation and issuance of final decisions
in employee protection cases adjudicated under the regulations at 29
C.F.R. Parts 24 and 1978. See 55 Fed. Reg. 13250 (1990).
[ENDNOTES]
[1] The following references will be used herein: "ALJ" for
Administrative Law Judge's exhibits; "C" for Complainant's
exhibits; "R" for Respondent's exhibits; and "TR" for the hearing
transcript.
[2] Complainant argues that I should give the Administrator's
determination precedential value. However, I give the
Administra-tor's findings no weight because the proceeding before
me is denovo. Mosbaugh v. Georgia Power
Co., 90-ERA-58 (Sec'y Sept. 23, 1992).
[3] On August 24, 1995, Complainant moved for the admission of
additional evidence relating to his search for employment
subsequent to his termination by Respondent. (C 176) Respondent
opposed the receipt of C 176. As the submission of C 176 is
untimely and Complainant has failed to provide any reason why
this exhibit was submitted long after the record closed, I
sustain Respondent's objection to C 176.
[4] It is not necessary to determine the technical merit of
Complainant's concern in order to resolve the sole issue in this
case: whether Complainant was the victim of unlawful
discrimination by Respondent due to his, admittedly, protected
activity.
[5] Following this meeting, Herring reported to Rosenblum that
Complainant had stated that he (Complainant) intended to inform
Respondent's chairman of the board that the "contractor
reductions" would jeopardize the plant's safety. (C 11)
[6] There also may have been comments made at this meeting by a
co-worker named Paulson about "guys in white hats vs. guys in
black hats." (TR 744) However, the recollections of witnesses to
this incident were too vague to find with certainty that this
comment was made. In fact, Complainant himself offered
conflicting testimony on this point. Initially he testified that
"black hats" were management and the "white hats" were the
workers. (TR 673) Later, Complainant testified that the "black
hats" were the workers while the "white hats" were management.
(TR 674)
[7] David Axline's conclusion that "This is one area where we
might have some [legal] exposure" does not make it so. (C 26,
date and time: 9/13/94 1:31 PM) It is apparent from Axline's
message that he was primarily concerned with the Murray incident
which, as Opitz stated, had been addressed and "noted in the
worker's [Murray's] mid-term performance appraisal." Axline
added that Herring stated, "this was the only such incident that
he knew about." This type of remedial action by Respondent would
be relevant in the event Complainant was able to establish a
primafacie case of a hostile work environment and
could serve to relieve Respondent of liability. Kotcher,
957 F.2d at 65.
[8] One of Complainant's allegations is wholly unsupported: that
he was subjected to illegal surveillance by Respondent. The
record contains only statements that Complainant and some of his
colleagues had the "gut instinct" that improper electronic
surveillance was going on. The evidence that video cameras were
used by Respondent does not establish that there was illegal
surveillance. (C 89: videotape of CGI test laboratory
inspection; R 98: documentation of MESA Access Control System
that states "No camera's (sic) will be located to where they are
monitoring specific personnel/work activities.")
[9] Contrary to Complainant's contention, I find that the
training materials Brown used do not indicate animosity against
whistle-blowers. The training materials accurately describe the
rights and protections of whistle-blowers and set forth an
employer's appropriate responses to and ways of dealing with
employees' protected activities. (C 35; R 41-68)
