Date: October 20, 1995
Case No.: 95-ERA-40
In the Matter of:
MICHAEL E. TIMMONS,
Complainant
vs.
MATTINGLY TESTING SERVICES, INC.,
Respondent
Appearances:
Stephen C. Mackey, Esq.
For Complainant
Mark Mattingly
For Respondent
Before: Thomas Schneider, Administrative Law Judge,
RECOMMENDED DECISION - DENYING COMPLAINT
Procedural history and issues
This case arises under the "whistleblower" protection of
§211 of the Energy Reorganization Act of 1974, 42 U.S.C.
§5851 (1995)(ERA), and the regulations at 29 C.F.R. Part 24.
A hearing was held in Billings, Montana on August 9, 1995.
Complainant, Michael E. Timmons (Timmons), appeared with counsel
and respondent, Mattingly Testing Services, Inc. (MTS) appeared
by its President, Mark Mattingly, and its Secretary Treasurer,
Suzanne D. Mattingly. Evidence was received. The transcript of
proceedings was received September 8, 1995.
In order to establish a prima facie case for relief under
ERA an employee must show: (1) That the party charged with
discrimination is an employer subject to ERA; (2) that he engaged
in protected conduct; (3) that he was subject to adverse
employment action; (4) that his employer was aware of the
protected conduct when it took the adverse action; and (5) that
sufficient evidence exists to raise the inference that the
protected conduct was the likely reason for the adverse action.
If the protected activity played at least some role in the
firing, the respondent has the burden of showing that the adverse
[PAGE 2]
action would have been taken even in the absence of the protected
activity. Mackowiak v. University Nuclear Systems, Inc.,
735 F.2d 1159 (9th Cir. 1984); Couty v. Dole, 886
F.2d 147 (8th Cir. 1989); Ertel v. Giroux Brothers
Transportation, Inc., 88-STA-24 (Sec'y. Feb. 16, 1989) DOL
Decs.[1] Vol. 3, No. 1, p. 162, 168; Moon v. Transport
Drivers, Inc., 836 F.2d 226, 229 (6th Cir. 1987).
Respondent is an employer subject to ERA because some of the
materials used in its inspections are radioactive. TR 9, 26.[2]
This satisfies requirement (1) above. There is no question that
Timmons was fired, which is an adverse action within the meaning
of requirement (3) above. The questions to be resolved are thus
whether Timmons engaged in protected activity, whether MTS was
aware of that, whether the protected activity was a reason for
the firing, and, if so, whether MTS would have fired Timmons had
he not engaged in protected activity.
Facts
MTS is a firm that provides nondestructive testing and
inspection services, including welding inspections, for a wide
variety of industrial, maintenance and construction projects. TR
9. Mark and Suzanne D. Mattingly are husband and wife and
president and secretary-treasurer, respectively, of MTS. Timmons
was employed by MTS from March 1994 until he was fired on April
17, 1995. TR 9-10, 22. Timmons is a certified welding
inspector, whose duties include conducting welding inspections.
TR 10-11, 19. Bart Kutt is MTS's area manager in Billings, vice
president of MTS, has worked for MTS since July 1990, and was
Timmons's direct supervisor. TR 266.
Timmons had some safety concerns and felt that when he
called them to the attention of Mark and Suzanne Mattingly they
were ignored. TR 124-125. Timmons and a co-worker, Sam Bruno,
contacted the Nuclear Regulatory Commission (NRC) on December 9
and December 14, 1994, complaining of unsafe radiography
activities at MTS. PX 2; TR 81, 252. As a result an NRC
investigator began an investigation of MTS on January 4, 1995.
TR 33. Timmons and Bruno then met with the NRC for approximately
three hours. TR 38. According to Timmons, Bart Kutt,
complainant's supervisor, 'was really shook up' about the
investigation. TR 39. An NRC investigation is a 'pretty
serious matter.' TR 169.
Timmons had not been working in the field but in the office
during December 1994, due to a work connected injury, a shattered
heel. TR 52, 109. His pay was not reduced during the possibly
400 hours he worked in the office (TR 106), although this time
was not chargeable to customers. TR 109, 132.
On January 5, 1995 the NRC investigators interviewed Bart
Kutt for about forty-five minutes at the MTS office in Billings
[PAGE 3]
while Timmons was outside in his truck. TR 45. Timmons
testified that when he came into the office at about 8:45 a.m.,
Kutt accused Timmons of turning MTS into the NRC. TR 44.
On January 7, at a meeting in the Billings office of MTS,
Mark and Suzanne Mattingly told all the employees that "no one's
job was at stake" and that it didn't matter who called the NRC,
that what mattered was to make certain corrections to MTS's
radiation safety program. TR 68, 86-87.
In February or March Timmons was asked by Mark Mattingly if:
"I [Timmons] had talked to the NRC, and I said 'Yes, I
did,' and if I knew who had called them...and I said, 'Yes,
I do, but I'm not going to say who it is,' and he said,
'well, its awful funny that there was -- they have
paperwork that could only come from this office [the
Billings office], and you were in the office most of the
time.'" TR 48, 87-88.
When Suzanne Mattingly asked Sam Bruno whether he had
contacted the NRC, he said, "No." TR 259. Bart Kutt asked each
of the employees whether they had called the NRC and each of them
said no. TR 286.
On Friday, April 7, 1995, just before starting his vacation,
Timmons was testing large I-beams, used in bridge construction,
at Roscoe Steel. TR 52. He spent an hour-and-a-half testing
five I-beams. TR 53. The inspection was a 'magnetic particle
inspection' which includes a visual inspection. TR 70. Timmons
made no 'findings,' i.e., he noted no items that needed repair.
TR 72. He found no 'relevant indications,' i.e., defects. TR
55. He told Carl Solheim at Roscoe Steel that the items he
inspected were okay. TR 199. His testing equipment was working
sufficiently for the work although it was intermittently
defective. TR 56, 112-113. He then worked at Scott Company for
about one hour and then began his vacation. TR 57.
There were still five more I-beams to inspect at Roscoe
Steel and Bart Kutt undertook the inspection of them on the
following Monday. He found a significant number of "indications"
on these, and was surprised that the first half of the same job
had revealed none. He therefore re-inspected the five that
Timmons had done and found 32 indications. TR 157-158, 160; ALJ
1. Carl Solheim, who is in charge of quality control at Roscoe
Steel (TR 197) accompanied Kutt to look at the girders Timmons
had inspected the previous Friday and Solheim visually saw some
indications (TR 201) where mag particles had been applied. TR
203. All five of the girders inspected by Timmons had to come
back into the shop for repairs. TR 202.
Suzanne Mattingly testified that they never had that
[PAGE 4]
dramatic a discrepancy between two inspections. "Zero to many is
definitely an attention getter." TR 149-150. It appeared as if
Timmons might not have done the inspection at all. TR 163, 164,
181-182.
When Timmons came back on Monday, April 17, he was told he
was fired. TR 58-61.
Protected activity and employer knowledge
The foregoing facts clearly establish that Timmons's
contact with the NRC was protected activity.
Even though Mark Mattingly testified that he and the firm
were not aware that Timmons was a whistleblower until the instant
proceeding, Suzanne Mattingly stated that they knew Timmons had
made a call requesting information. TR 12. I find that the
Mattinglys had a very strong suspicion that Timmons was a
whistleblower. And Kutt was convinced in his own mind that
Timmons initially called the NRC. I therefore find that MTS had
the knowledge which forms a part of the complainant's prima facie
case.
The protected conduct as the likely reason for the
firing
There are two ways here to raise the inference that the
protected conduct was the likely reason for the firing. One is
that Timmons justifiably felt nervous because he was being
scrutinized for mistakes by Kutt, that Kutt did the scrutinizing
because of the protected activity, and that the nervousness was
the cause of doing the Roscoe Steel inspection badly. Although
Timmons raised this scenario, he admitted, "I should have been
able to concentrate more on the inspection at hand." TR 113.
Further, it is hard to distinguish Kutt's feelings about Timmons
because of the NRC investigation from his feelings arising out of
Timmons's being at the office with a leg injury and not earning
billable time for the company. Nevertheless, this scenario
supports the finding that the protected activity played some
role, if a minor one, in MTS's ultimate adverse action.
The second is that the Mattinglys and Kutt were angry with
Timmons for his protected activity and wanted to retaliate
against him for this reason. This seems more probable and more
usual.
The cloud of whistleblowing hung over Timmons when MTS made
the decision to fire him, although more than three months had
passed since the investigators came. He testified that right
after the investigation began he felt that Bart Kutt monitored
his activity closely and Timmons felt "that I had one chance to
make a mistake, and that it would be my last chance." TR 46. In
February or March Sam Bruno told Timmons to 'watch his butt'
because Bart Kutt was watching him. TR 135. The conversation
with Mark Mattingly in February or March heightened his feelings
of being watched and "scrutinized for any kind of mistake that I
[PAGE 5]
might make." TR 48. Even though Suzanne Mattingly implied that
heightened scrutiny was required to get the radiation safety
program on line (TR 83), I find that Timmons's contacts with the
NRC were still enough on the minds of the Mattinglys and Kutt to
color their perception of him.
Whether Timmons would have been fired regardless of his
contacting NRC
Suzanne Mattingly stated that Timmons was fired because
the inspection he conducted at Roscoe Steel was insufficient, his
disregard for the importance of that inspection, and his lack of
explanation for his insufficiency. TR 69.
I find that the Roscoe Steel inspection was such a serious
error that Timmons would have been fired even if he had never
contacted the NRC.
Carl E. Solheim, the quality control person at Roscoe Steel
was a very credible witness. The day after Timmons was fired he
went to talk to Solheim. Solheim testified as follows about
that conversation.
A. When Mike [Timmons] came out, what I got out of the
conversation was he pretty much came out and apologized for
what had happened, and that he was a better inspector than
that, and it shouldn't have happened, and he'd been having
some problems that had been weighing on his mind, if you
will -- these aren't his exact words -- but he pretty much
came out and apologized. And I don't know what else to say,
but that's --
Q. Did you feel that -- Do you think the overlooking of
indications on five bridge girders is no big deal?
A. No, it is a big deal. This is serious for Roscoe. We
must know that our product is a quality product, and that it
meets the job specification requirements, in this particular
case for weld quality. This was a bridge for the State of
Wyoming. You're talking public safety. TR 206.
...
Q. If I tell you that Mr. Kutt apparently found 32
indications on the five girders, and the Mr. Timmons found
none, would you find that to be a rather substantial - I
mean in your opinion, is that a large number of differences
to find on five girders?
A. Heavens to Betsy, yes. TR 207.
[PAGE 6]
Timmons asked Solheim whether Roscoe Steel would be willing
to accept him as an inspector if he went into business for
himself. Timmons was apparently pleased with the answer he got.
But Solheim testified:
I have a different opinion now of what I told him. It's
easier to be a coward and not say exactly what you're
thinking at the time when you're face to face with somebody,
kind of like electricity and take the easy route. And I
told him I would not be concerned, but the truth of the
matter is I would be concerned. TR 215.
The inadequate inspection that Timmons performed at Roscoe
Steel was obviously a major event. Carl Solheim was Roscoe
Steel, an important customer, as far as the Mattinglys were
concerned. He thought the discrepancies between Timmons's
findings and the findings by Kutt were extremely important. He
did not feel that he would use Timmons as an inspector if he were
in business for himself. And Bart Kutt was the man most often
requested by Roscoe Steel to do their inspections. TR 167, 204.
This error was clearly the overwhelming reason for the
firing.
It is conceivable that, if Timmons had been an outstanding
and valuable employee, he might not have been fired for the
Roscoe Steel event. But Timmons was not. He had been
accommodated beyond legal requirements for his workers'
compensation injury, costing money without doing billable work,
and did not get along well with Kutt, a long time and valuable
employee and officer of the company.
Timmons felt that Bart Kutt was angry at him even before the
NRC investigation because Timmons had light office duty instead
of field work. TR 88, 138. Allegedly Kutt had told him, "Get
off your butt in the office and go do the [Wyoming] job [in the
field]." TR 130. Suzanne Mattingly testified as follows:
Q. [By the court] What was your understanding of the
tension that you mentioned between Mr. Kutt and Mr.
Timmons?
A. Well, we knew that when he had called in different
times, as far as -- One phone call in particular, he [Kutt]
said, 'Now I've got both of his [doctor's] releases, I sent
him out to a job, you said go ahead and work him, and he
called in, and he needed to go home. I let him go home. Do
you want me to continue to let him go home?' And over the
course of the releases and various things, we had continued
to ask Bart [Kutt] to fit jobs to his abilities, and I just
[PAGE 7]
sensed that he just was getting kind of tired of doing that.
Q. And I gather from the tone of your voice you kind of
agreed with him? TR 189-190.
She agreed that Timmons should be let go 'if he could not
explain this because I didn't want to continue to fit stuff to
the man's schedule, and I didn't want to -- if it meant dramatic
inspection results would come back[.]' TR 147.
If there was tension between Timmons and Kutt the
Mattinglys would clearly side with Kutt.
Although Timmons apologized to Solheim for his inadequate
inspection, he did not apologize to the Mattinglys or have an
explanation for them. When Suzanne Mattingly asked Timmons
shortly after his termination what accounted for the dramatic
difference between his inspection and Bart Kutt's, Timmons
replied that she needed to be aware of what was going on in
Billings and other people had done worse. TR 94.
I find that Timmons would have been fired for his inadequate
inspection even if he had not engaged in protected activity.
I recommend that the Secretary enter the following
ORDER
The complaint of Michael E. Timmons is denied.
Thomas Schneider
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., NW, Washington, DC 20210. The
Off ice 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] DOL Decs. refers to the publication of the United States
Department of Labor entitled "Decisions of the Office of
Administrative Law Judges and Office of Administrative Appeals."
Secretary of Labor Decisions are also available on a CD ROM
published by the Office of Administrative Law Judges, entitled
"Whistleblower Library" for sale by the U.S. Government Printing
Office, Superintendent of Documents.
[2] TR refers to transcript of hearing; PX refers to
Complainant's exhibits, which are labelled "Plaintiff's
exhibits;" RX refers to Respondent's exhibits; ALJ refers to ALJ
exhibits.
