[Note:caption is shown erroneously as "94-ERA-15"]
Date: December 11, 1995
Case No: 94-ERA-15
In the Matter of:
STEVEN BOUDRIE,
Complainant,
v.
COMMONWEALTH EDISON COMPANY,
&
BECHTEL CONSTRUCTION COMPANY,
Respondents.
Appearances:
Stephen M. Kohn, Esq.
David K. Colapinto, Esq.
Kohn, Kohn and Colapinto
Washington, D.C.
For the Complainant.
Robert M. Rader, Esq.
Winston and Strawn
Washington, D.C.
For the Respondent ComEd.
Glenn D. Newman, Esq.
Commonwealth Edison Company
Chicago, Illinois
For the Respondent ComEd.
Steven G. Rudolf, Esq.
Vedder, Price, Kaufman and Kammholz
Chicago, Illinois
For the Respondent Bechtel.
[PAGE 2]
Before: DANIEL J. ROKETENETZ
Administrative Law Judge
RECOMMENDED DECISION AND ORDER
This proceeding arises under the Energy Reorganization Act
of 1974, ("the Act"), as amended 42 U.S.C. § 5851, and its
implementing regulations, 29 C.F.R. Part 24. Section 5851(a) of
the Act prohibits a Nuclear Regulatory Commission ("NRC")
licensee and its subcontractors from discharging or otherwise
discriminating against an employee who has engaged in protected
activities as set forth in the Act.
On September 26, 1994, Steven Boudrie ("Complainant") filed
a timely complaint[1] with the Department of Labor against NRC
licensee Commonwealth Edison Company ("ComEd" or "Respondent")
and its subcontractor, Bechtel Construction Company ("Bechtel"),
for whom the Complainant was employed. The Complainant alleges
that he was subjected to harassment and a hostile work
environment in violation of the Act. The Complainant and Bechtel
have reached an amicable settlement, and accordingly, Bechtel is
dismissed from this action. (See Appendix A) Conversely,
ComEd contends that the Complainant voluntarily requested, and
was granted, a lay-off by his employer, Bechtel, and that no
discrimination occurred with regard to the Complainant's
compensation, terms, conditions or privileges of employment
during his work at ComEd's Zion facility.
On December 12, 1994, following an investigation, the
Administrator of the Wage and Hour Division, Employment Standards
Administration, Department of Labor, concluded that Complainant
had not been terminated in retaliation for engaging in protected
activities, but rather he had been terminated because he refused
to accept a reassignment for the short time remaining on the
project. On December 16, 1994, Complainant appealed the
Administrator's determination by way of letter to the Department
of Labor's Chief Administrative Law Judge. The matter was
docketed in the Office of Administrative Law Judges in
Washington, D.C. on December 19, 1994, and assigned to the
undersigned in January, 1995. On January 30, 1995, an Order was
issued setting the case for a hearing on March 8, 1995, in
Chicago, Illinois. A formal hearing in this matter was held
before the undersigned on March 8 and 9, 1995 in Chicago.
ISSUES
The issues in this case are:
[PAGE 3]
1. Whether the Complainant was subjected to harassment
constituting a hostile work environment during his employment
with Bechtel Construction at ComEd's Zion Nuclear Power Plant;
2. Whether the hostile work environment was created in
retaliation for Complainant's protected activities under the Act;
and,
3. Whether the hostile work environment forced the Com-
plainant to terminate his employment with the Respondents thereby
constituting a discriminatory constructive discharge.
Based upon a thorough analysis of the entire record in this
case, with due consideration accorded to the arguments of the
parties, applicable statutory provisions, regulations, and
relevant case law, I hereby make the following:
FINDINGS OF FACT AND CONCLUSIONS OF LAWBackground:
Respondent Commonwealth Edison operates the Zion Nuclear
Power Plant ("Zion") in Zion, Illinois. Respondent Bechtel
Construction Co. was the primary contractor supplying labor
during the plant's "outage" in 1993-94. In the course of
maintenance, the Zion facility went into a phase called "outage"
during which routine repair, cleaning and general maintenance
were performed. During the outage, ComEd needed laborers to
complete the "outage activities" and contracted with Bechtel to
supply such labor. In late 1993 and through early 1994, Bechtel
supplied ComEd with as many as 800 laborers. As the outage
activities were completed in certain units of the plant, these
units were reactivated and the laborers hired during the outage
were laid off.
The Complainant is a twenty-seven year old high school
graduate who is a member of a laborers union. (Tr. 125) The
Complainant testified that he has five years of experience
working in nuclear power plants. Id. In the autumn of
1993, Bechtel Construction hired the Complainant to work in
ComEd's Zion plant as a laborer during the plant's outage.
Id. The Complainant started his assignment at ComEd on
October 10, 1993 and continued to work as a laborer at Zion until
his layoff on April 8, 1994.
The series of events leading to this action took place
between March 16, 1994 and April 7, 1994, and primarily during
the first week of April. The Complainant's position at ComEd was
as a member of the "As Low As Reasonably Achievable" (ALAR) crew.
(Tr. 127)
[PAGE 4]
The ALAR crew worked in the decontamination (decon) pad in the
auxiliary building, where there primary job task was
decontaminating tools. (Tr. 130) When working on the decon pad,
the Complainant wore protective clothing over his modesty
garments, which consisted of shorts and a T-shirt. Monitors
checking for radioactive particles were located in the mask room,
outside the auxiliary building, and at the gatehouse entrance to
the facility. (Tr. 132)
The Complainant testified that he began setting off the
monitors periodically in February, 1994. (Tr. 131) However, the
primary incident occurred on March 13, 1994. Id. On March
13, 1994, at the end of his shift, the Complainant changed out of
his protective clothing and into his personal clothing which he
had worn to the plant that day. Id. The Complainant then
exited the auxiliary building and passed through the monitors.
However, upon attempting to exit the facility, the monitors at
the guardhouse lit up "head to toe," thereby indicating that the
Complainant was carrying radioactive particles on his person.
(Tr. 133-136) The technicians at the guardhouse sent the
Complainant back to the auxiliary building where he again passed
through the monitors without activation. Id. The
Complainant then returned to the guardhouse where he again
activated the monitors upon attempting to leave. Id.
Subsequently, the Complainant was sent to the mask room.
Id. The mask room technicians found some contamination on
the back of the Complainant's neck and instructed him to take a
decontamination shower. Id. After his shower, the
Complainant again put back on his clothes and passed through
the mask room monitor. Id. Subsequently, however, the
Complainant once again activated the guardhouse monitor.
Id.
Thereafter, the Complainant returned to the mask room where the
technicians told him to wear a paper suit home. Id. The
Complainant's clothes were placed in a plastic bag and he was
instructed to wash the clothes twice. Id. The Complainant
went home and washed his clothes as instructed. Id.
On March 15, 1994, the Complainant again activated the
auxiliary building monitor upon ending his shift. (Tr. 140) A
radioactive particle was discovered on the Complainant's sweat-
shirt. Id. The sweatshirt was one of the items of
clothing that the Complainant had washed on March 13, 1994. (Tr.
141) Furthermore, the Complainant testified that he wore the
same sweatshirt to work on March 14, 1994 and did not activate
any monitors. (Tr. 142)
On March 16, 1994, the Complainant activated the guardhouse
monitor upon entering the facility to begin his shift. (Tr. 144)
After a series of body counts, a radioactive particle was found
in the pocket of his denim pants. Id. These pants were
also among the articles that the Complainant washed on March 13,
1994. (Tr. 145)
[PAGE 5]
Toward the end of his shift on March 16, the Complainant was
instructed to meet with Michael Zeien, ComEd's contamination
control coordinator, in Zeien's office. (Tr. 146) Zeien asked
the Complainant if he would consent to the inspection of his
motel room by ComEd technicians later that day. (Tr. 147) The
Complainant consented and Zeien, along with ComEd technician
Frank Palanski, union steward Bob Johnson, and Bechtel ALAR
coordinator Dana Houston went to the Complainant's motel room on
the evening of March 16, 1994. (Tr. 148) Using a hand-held
monitor, Frank Palanski examined the Complainant's clothes and
discovered some radioactive particles. (Tr. 148-49)
Subsequently, the Complainant began taking photographs of
Palanski and Zeien. (Tr. 150) The Complainant testified that he
wanted to document the search. Id. Mr. Zeien angrily
reacted to the Complainant taking his photograph. (Tr. 51; 151)
The Complainant testified that Zeien physically threatened him.
(Tr. 151) Zeien testified that he simply stated "don't take any
pictures of me, buddy boy." (Tr. 51) Zeien said he was angry
because of the contamination discovered in the motel room. (Tr.
54) Zeien further testified that he reached his hand toward the
Complainant and requested the Polaroid photograph of himself.
(Tr. 53) The Complainant refused to surrender the photographs
and then ordered everyone to leave his apartment or he would
telephone the police. (Tr. 152) Zeien then apologized for
upsetting the Complainant. (Tr. 56) Thereafter, it was agreed
that Zeien and Palanski would leave and Houston and Johnson would
await the arrival of Nuclear Regulatory Commission (NRC)
officials. (Tr. 152) The NRC officials arrived later and
searched the Complainant's entire motel room and his car. (Tr.
153-54) Later that night, Sonny Traver, Bechtel's general
foreman, telephoned the Complainant and told him to report to
work on the day shift the next morning, as opposed to reporting
at midnight for the night shift as had been the Complainant's
assignment. (Tr. 155)
Upon reporting to work on March 17, 1994, the Complainant
was met by Dana Houston, who informed him that a meeting would be
held later that day. (Tr. 156) Subsequently, the Complainant met
with Greg Kassner, Health Physics Services Supervisor of the Zion
facility, and Bob Johnson. (Tr. 157) At the meeting, the Com-
plainant expressed his concerns over the apparent inefficiency of
the monitors. Id. The Complainant testified that he was
not satisfied with the answers he was given, so he immediately
went to talk with NRC official Pat Louden. Id.
The Complainant did not report to work on March 18, 1994
because he was having nightmares about the contamination
incidents and he was "really stressed out." (Tr. 158) However,
later that day, the Complainant came to the facility to speak
with Bruce
[PAGE 6]
McKenzie, the Bechtel site manager. (Tr. 159) The meeting with
McKenzie was arranged by the Complainant's business manager, who
the Complainant had telephoned earlier on that same day.
Id. The Complainant testified that McKenzie told him
that Bechtel was "behind [him] 100%." Id. Bruce McKenzie
testified that the Complainant was moved to the day shift to
facilitate the contamination investigation because most of
ComEd's management worked the day shift. (Tr. 108) McKenzie also
testified that he told the Complainant that he heard that ComEd
was going to terminate the Complainant's security clearance. (Tr.
102) However, the Complainant's security clearance was never
terminated. (Tr. 120-21)
The Complainant also testified that he spoke with a reporter
from his hometown newspaper, the Monroe (MI) Evening News,
because he was concerned about the contamination. (Tr. 160-163)
However, the Complainant did not contact any other media outlet.
(Tr. 164) Furthermore, Monroe, Michigan is approximately 300
miles from the Zion facility. Id. Additionally, the
Complainant testified that all of his contamination incidents
were below the NRC levels for permissible exposure, but that
nonetheless, he was extremely concerned and believed that
contacting the media was proper. (Tr. 165)
The Complainant also experienced two separate incidents of
contamination on April 5, 1994. (Tr. 165) Upon leaving the decon
pad and activating the monitor, contamination was discovered on
the Complainant's modesty garments. (Tr. 166) Later,
contamination was found on the Complainant's turtleneck at the
guardhouse monitor. (Tr. 166-67)
On the morning of April 6, 1994, the Complainant again met
with Michael Zeien. (Tr. 167) Zeien wanted to discuss the
personnel contamination event (PCE) forms that the Complainant
had completed following his contamination events. (Tr. 168)
Zeien also wanted to determine whether the Complainant's
contamination was caused by the failure of the protective
clothing or the improper use of protective clothing. (Tr. 73)
Zeien testified that he was disturbed by the Complainant's
flippant answer to one question. (Tr. 76) A question on the PCE
form requested the employee to suggest possible ways to prevent
contamination, to which the Complainant answered "not come to
work." Id. Zeien responded that the Complainant should
not "screw around" with the forms. (Tr. 170) The Complainant
further testified that Zeien wanted to know about safety
violations being committed by other employees. Id. The
Complainant stated that before he could give such information, he
needed protection from ComEd. Id. Zeien allegedly
declined to offer the Complainant protection and informed him
that it was the Complainant's duty to report violations. (Tr.
171) The Complainant
[PAGE 7]
testified that Zeien told him that the modesty garment
contamination would be classified as "improper use of protective
clothing" and the turtleneck contamination would be classified as
"undetermined." (Tr. 172) The Complainant did not believe that
"improper use of protective clothing" was accurate because he
believed he used the protective clothing properly. Id. In
actuality, the incident was classified as "failure of protective
clothing" which indicated that the contamination was not the
Complainant's fault. (Tr. 75-76) After his meeting with Zeien,
the Complainant spoke with a NRC official who allegedly informed
him that it was not his job to report safety violations by
co-workers. (Tr. 172-73)
On the morning of April 7, 1994, Zeien went to the decon pad
to observe the work practices of the deconners, including the
Complainant. (Tr. 496-97) Zeien testified that he found it
necessary to observe the workers himself because the Complainant
was uncooperative with his attempt to determine the cause of the
contamination. Id. The Complainant testified that he was
intimidated by Zeien's presence and wondered if Zeien was looking
for a reason to fire him. (Tr. 176-77) Both the Complainant and
Zeien testified that an exchange occurred between the men. (Tr.
80; 176) The Complainant alleges that Zeien described his work
in a derogatory manner and blamed him for the contamination. (Tr.
175)
Thereafter, the Complainant complained to his foreman, Gene
Smith, and Bechtel general foreman Sonny Traver about Zeien's
"harassment." (Tr. 177-78) At 9:30 A.M. on April 7, the Com-
plainant spoke with Sonny Traver, who offered the Complainant a
layoff so to avoid Zeien's "harassment." (Tr. 230) Immediately
upon leaving his meeting with Traver, the Complainant testified
that he was physically threatened by a co-worker because the co-
worker believed the Complainant was reporting him to management.
(Tr. 181) The Complainant believed that the co-worker was
suspicious after he saw the Complainant talk to Sonny Traver at
break time. (Tr. 230) A short time thereafter, the Complainant
was assigned to work on the roof of the building picking up
pieces of plastic. (Tr. 180) After working for approximately two
hours on the roof, the Complainant requested to Traver that he be
laid off. (Tr. 235) The Complainant was laid off, at his request,
beginning April 8, 1994.
Applicable Law:
The basis for this complaint is the allegation that
Respondent ComEd, specifically through the actions of its
Contamination Control Coordinator Michael Zeien, harassed the
Complainant and created a hostile work environment. The
Complainant alleges that
[PAGE 8]
such harassment was in retaliation for voicing concerns regarding
ComEd's contamination monitors and the frequency of his
contamination. Furthermore, the Complainant alleges that ComEd's
harassment forced his requested layoff, thereby constituting a
constructive discharge. Such being the case, the Complainant
contends that ComEd's actions are in violation of the Act.
Forty-two U.S.C. § 5851(a) states that no employer subject
to the Act "may discharge any employee or otherwise discriminate
against any employee with respect to his compensation, terms,
conditions, or privileges of employment" because the employee
engaged in protected activity.
In order to satisfy a prima facie case of discrimina-
tion under the ERA's employee protection provision, the
Complainant must demonstrate that:
1) the party charged with discrimination is an employer
subject to the Act;
2) the employee engaged in protected conduct;
3) the employer took some adverse action against the
employee; and,
4) the protected conduct was the likely reason for the
adverse action.
DeFord v. Secretary of Labor, 700 F.2d 281, 286 (6th Cir.
1983) (ERA claim). Under the ERA's implementing regulations, as
amended, the Complainant is required to prove that his protected
conduct was a "contributing factor" in the unfavorable personnel
action alleged in the complaint in order to make out a prima
facie case under the Act. 42 U.S.C. § 5851(b)(3)(C).
However, the Secretary has interpreted the regulations to require
simply that a complainant present evidence "sufficient at least
to raise an inference" that the protected activity was the likely
motive for the adverse action. Howard v. Tennessee Valley
Authority, 91-ERA-36 (Sec'y Jan. 13. 1993). If the
Complainant does not make this prima facie showing, the
complaint must be dismissed. 42 U.S.C. §
5851(b)(3)(A). Furthermore, if the complaint's alleged
facts, even if proven, nonetheless fail to make out a prima
facie case of discrimination and thereby fail to entitle him
to relief against the named Respondent under the whistleblower
provision, then the complaint must be dismissed.
In the case now before me, the parties are in agreement that
ComEd satisfies the Act's definition of employer. Furthermore,
no dispute exists that the Complainant engaged in protected
activity under the Act. He voiced his concerns over his
continued contamination internally to both ComEd and Bechtel
management, and he also reported such contamination to outside
entities including NRC
[PAGE 9]
officials and the media. Thus, due to his protected activity,
the Complainant is protected under the Act from discrimination at
the hands of ComEd. Therefore, I find that the Complainant has
satisfied the first two elements of his discrimination claim.
Consequently, my focus shifts to the third and fourth
elements of the Complainant's discrimination claim. The record
is clear that the Complainant voluntarily separated himself from
Bechtel's employ at ComEd's Zion Nuclear Power Plant on April 7,
1994. Furthermore, I find that ComEd took no overt adverse
employment action against the Complainant, i.e. transfer,
suspension, discharge, etc.,[2] which would satisfy the third
element of the Complainant's prima facie case. Therefore,
the issue turns to whether sufficient evidence exists to support
the Complainant's contention that he was subjected to a hostile
work environment, and subsequently forced to resign, as a result
of having voiced safety concerns.
As stated, the Act prohibits an employer from discriminating
against an employee for engaging in protected activities. The
Secretary of Labor has interpreted the Act to protect employees
not only from retaliatory discharge or suspension, but also from
harassment constituting a hostile work environment. English v.
General Dynamics Corp., 85-ERA-2 (Sec'y February 13, 1992).
The Secretary suggested that the Supreme Court's standard set
forth in Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57
(1986), a sexual harassment case under Title VII, should be
applied when determining whether the alleged conduct amounts to
harassment constituting a hostile work environment.
In Meritor, the Supreme Court defined the type of
conduct which would constitute a hostile work environment. In
order for harassment to rise to the level of discriminatory
conduct, it must be "sufficiently severe or pervasive 'to alter
the conditions of [the Complainant's] employment and create an
abusive working environment.'" Meritor, supra, at
67 (quoting Rogers v. EEOC, 454 F.2d 234, 238 (5th
Cir. 1980). The Court further noted, however, that "not all
workplace conduct that may be described as 'harassment' affects a
'term, condition, or privilege' of employment." Meritor,
supra, at 67. A "mere utterance of . . . [an] epithet
which engenders offensive feelings in an employee would not
affect the conditions of employment to sufficiently significant
degree" to constitute prohibited discrimination. Id.
(quoting Rogers, supra.)
It is the Complainant's burden in a hostile work environment
discrimination claim to prove by a preponderance of the evidence
that:
[PAGE 10]
1) he was subjected discriminatory conduct;
2) that such conduct was unwelcome and abusive to him at
the time it occurred; and,
3) that such conduct permeated the workplace and was
"sufficiently severe or pervasive to alter the conditions
of employment and create an abusive working environment"
as viewed by a reasonable person.
Harris v. Forklift Systems, Inc., 507 U.S. ___, 114 S. Ct.
367 (1993)(citing Meritor, supra.) Thus, the
Supreme Court has declared that evidence of an alleged hostile
work environment must satisfy both an objective and subjective
test in order to constitute discriminatory conduct. The Court
stated that "[c]onduct 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 not discriminatory. Id., 507 U.S. at ___, 114
S. Ct. at 370. "Likewise, if the victim does not subjectively
perceive the environment to be abusive, the conduct has not
actually altered the conditions of the victim's employment" and
there is no violation. Id.
The United States Court of Appeals for the Seventh Circuit,
under whose appellate jurisdiction this complaint arises, has
recognized that the line which separates "a merely unpleasant
working environment" and a "hostile" one is not bright.
Baskerville v. Culligan Int'l Co., 50 F.3d. 428, 431
(1995). Thus, whether or not certain workplace interactions
amount to the creation of a hostile work environment relies
primarily on the specific persons and situations involved. The
Seventh Circuit has listed some criteria to consider when
determining the extent of possibly hostile activity. Such
criteria include: whether the remark was made in a public or
private setting, accompanied by a threatening gesture, or
delivered a short distance from the victim's face so to invade
the victim's private space; as well as the disparity in size, if
any, between the harasser and the victim. Id. The Supreme
Court also identified several factors to consider when
determining whether the conduct alleged rises to a level of
impermissible harassment. Harris, supra, at 369.
Such factors are: 1) the frequency of the harassing conduct; 2)
its severity; 3) whether it is physically threatening or
humiliating, or a mere offensive utterance; 4) whether it
unreasonably interfered with an employee's work performance; and
5) whether it results in psychological injury to the victim.
Id.
Additionally, the Seventh Circuit has stated that "the
employer's legal duty is discharged if it takes reasonable steps
to
[PAGE 11]
discover and rectify acts of . . . harassment of its employees."
Id., at 432. Thus, if "prompt and appropriate remedial
action" to correct workplace harassment is taken, the employer
suffers no liability. Id. (citing Carmon v.
Lubrizol Corp., 17 F.3d 791, 194 (5th Cir. 1994). If,
however, the alleged conduct by the employer and its agents "did
not even reach the threshold at which it could reasonably be
thought to create a hostile working environment," no remedial
action is required of the employer. Id.
Furthermore, circumstances that might adequately establish a
hostile work environment will not necessarily suffice to
establish a constructive discharge. Landgraf v. USI Film
Prod., Inc., 968 F.2d 427, 430 (5th Cir. 1990). Thus, in
order for an employee to succeed in proving he was constructively
discharged, and thereby obtain back pay (a remedy sought by the
Complainant), he must prove that his employer made his working
conditions so intolerable that a reasonable person would have
believed he has no real choice but to quit. Chambers v.
American Trans. Air, Inc., 17 F.3d 998, 1005 (7th Cir.),
cert. denied, 115 S. Ct. 512 (1994). Employer conduct
which detracts from an employee's work performance or discourages
him from remaining on the job may constitute a hostile work
environment, but in order to establish a constructive discharge,
the severity and the pervasiveness of the harassment must be so
great to compel the reasonable person to resign. Saxton v.
American Tel. & Tel., Co., 10 F.3d 526, 536-37 (7th Cir.
1993); See alsoHarris, supra, at 114 S. Ct.
at 370-71.
The Complainant bases his complaint on his contentions that
after he voiced safety concerns regarding the contamination of
his clothing with radioactive particles and the failure of
certain monitors to detect such contamination, he was harassed,
subjected to a hostile work environment, and eventually forced to
request a lay-off as the only means of escaping the hostile
environment. Specifically, the Complainant alleges: 1) he was
continually contaminated with radioactive particles and thus
subjected to unsafe working conditions; 2) he was physically
threatened by Michael Zeien after he took a photograph of Zeien
during ComEd's inspection of his motel room and wardrobe; 3) he
was verbally harassed by Zeien in Zeien's office when Zeien
informed him "don't screw around with me;" 4) he was harassed by
Zeien when Zeien observed him working and then told the
Complainant he did not "know how to f---ing work properly;" 5) he
was physically threatened by co-worker Michael Johnson who
suspected the Complainant of reporting him to superiors; and 6)
he was transferred to a job on the roof which he did not enjoy.
Certainly, even assuming all the Complainant's allegations
to
[PAGE 12]
be true, no single incident stands out as sufficiently hostile in
and of itself to constitute a hostile work environment or compel
a reasonable person to resign. Presumably, the Complainant
relies on the cumulative effect of the allegedly discriminatory
acts. Nonetheless, even the totality of these acts does not
support an inference that the Complainant was forced to request a
lay-off when he did. ComEd actively investigated the
Complainant's contamination complaints. Furthermore, the
Complainant testified that his level of contamination was below
the NRC's permissible exposure. Thus, the Complainant's first
allegation that ComEd harassed him by subjecting him to unsafe
working conditions is meritless.
The Complainant also contends that Zeien harassed him on
multiple occasions. Each of Zeien's alleged acts of harassment
took place in the scope of investigating the Complainant's
contamination. Initially, I note that I do not find that Zeien's
actions, as described by the Complainant, constitute harassment,
but rather examples of a supervisor exhibiting brief moments of
anger at, what he believes to be, an uncooperative employee.
Furthermore, even assuming Zeien's acts did constitute
harassment, I find that such acts were not significantly severe
or pervasive to create a hostile work environment. Finally, the
record indicates that, although he had many opportunities, the
Complainant did not complain about Zeien's harassment until his
final hours at ComEd.
Next, the Complainant alleges that a co-worker's threat is
evidence of the hostile work environment created by ComEd. No
evidence was presented that ComEd knew anything about the threat
to the Complainant by one of his co-workers. Thus, I do not find
that the threat of physical violence, assuming it occurred, by a
co-worker against the Complainant to be attributable to ComEd.
Finally, no evidence was presented that the Complainant's assign-
ment to the roof was caused by discriminatory animus on the part
of ComEd.
The Complainant appears to want it both ways. He wanted
ComEd to correct the contamination problem, but he did not want
Michael Zeien, ComEd's contamination control coordinator, to
bother him about it. As aforementioned, the record indicates
that ComEd was prompt in its efforts to correct the contamination
events of which the Complainant complained. In fact, it was
ComEd's attempts to correct the problem which constitutes the
bulk of ComEd's alleged harassment toward the Complainant.
During each of the Complainant's interactions with Zeien of which
the Complainant complains, the purpose of the interaction was
Zeien's attempts to solve the contamination mystery. Quite
obviously, it was necessary for Zeien to interview the
Complainant, examine his clothes and
[PAGE 13]
living quarters, and even observe his work in order to attempt to
discern the cause of the contamination. Furthermore, it was the
Complainant's lack of cooperation in the investigation that, at
least in part, forced Zeien's zealous pursuit of the "root cause"
of the unwanted contamination. Unfortunately, the Complainant
was so offended by Zeien's pursuit of a resolution to the
unwanted contamination problem that he accused Zeien of
harassment.
As shown above, such a situation is not a hostile working
environment in the eyes of the law, nor would it force a
reasonable person to resign his employment. Even if I found
Zeien to be "a heavy-handed manager who dealt poorly with
subordinates (which I do not), that kind of manager is not a rare
breed, and simple mismanagement does not constitute constructive
discharge." Phaup v. Pepsi-Cola Gen. Bottlers,
Inc., 761 F.Supp. 555, 561 (N.D. Ill. 1991)(quoting
Miller v. Illinois, 681 F.Supp. 538, 544 (N.D. Ill.
1988). Consequently, I find that the actions of Michael Zeien
were reasonable under the circumstances, and do not constitute a
violation of the Act.
Finally, I find that more plausible explanations for the
Claimant's requested layoff were presented. The record indicates
that the Complainant's position with Bechtel working at ComEd's
Zion Nuclear Power Plant was coming to an end. (Tr. 112) One
week after the Complainant's layoff, the number of Bechtel
laborers remaining at the Zion facility had been reduced to nine.
Id. At most, the Complainant's position would have
continued for four more weeks. (Tr. 114) Furthermore, many of
the Complainant's friends had already been laid off when the
Complainant requested a layoff. (Tr. 122) Thus, if an inference
is to be drawn from the record, the most reasonable inference is
that the Complainant quit because he knew his position was to be
terminated in the near future.
Conclusion:
The Complainant has failed to prove, as a matter of law,
that his claim of a hostile work environment should prevail. The
Respondent's actions, specifically the personal management style
of Mr. Zeien, may have had an adverse effect on the Complainant,
but such actions do not constitute actionable discriminatory
conduct under the Act. Furthermore, I do not find that ComEd's
treatment of the Complainant was so demonstratively pervasive nor
so severe that it would compel a reasonable employee to request
to be laid off. Consequently, the Complainant has failed to
prove that ComEd created a hostile work environment or that he
was constructively discharged. As such, the Complainant has
failed to establish a prima facie case of discrimination
under the ERA's employee protection
[PAGE 14]
provision. Accordingly,
RECOMMENDED ORDER
It is hereby RECOMMENDED that the complaint of Steven
Boudrie against Commonwealth Edison Company be DISMISSED.
It is further RECOMMENDED that Respondent Bechtel
Construction Company be DISMISSED from this action under the
terms of the settlement agreement reached by the parties and
submitted to the undersigned for consideration. (See
Appendix A)
DANIEL J. ROKETENETZ
Administrative Law Judge
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., N.W., Washington, D.C. 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 ERA permits 180 days for filing a complaint of
discrimination under its employee protection provision. 24 C.F.R.
§ 5852(b)(1). The Complainant filed his complaint within
180 days of his alleged "constructive discharge" with the
Respondents on April 8, 1994. Thus, the complaint filed on
September 26, 1994 is timely.
[2]
Evidence was presented indicating that the Complainant was
instructed to leave the decon pad and work on the roof on the
morning of April 7, 1994, the last day of his employment with
ComEd. The Complainant requested to be laid off approximately
two hours thereafter. Such being the case, I am unable to
determine whether the ComEd's transfer of the Complainant to work
on the roof was permanent, which could constitute an adverse
employment action, or simply a brief and temporary assignment
after which the Complainant would return to the decon pad.
Because the Complainant's transfer to the roof was terminated by
the Complainant's requested lay-off, I cannot find that such
transfer constitutes an adverse employment action.
