DATE: January 18, 1996
CASE NOS. 95-ERA-41
In the Matter of
WILLIAM DAVID SIMMONS
COMPLAINANT
v.
ARIZONA PUBLIC SERVICE CO./
ARIZONA NUCLEAR POWER PROJECT
Respondent
BEFORE: RUDOLF L. JANSEN
Administrative Law Judge
RECOMMENDED DECISION AND ORDER
GRANTING SUMMARY JUDGMENT
On November 16, 1995, counsel for the respondent mailed
a Motion for Summary Decision which was received by this office
on November 20, 1995. Service of all documents other than
complaints is deemed effective at the time of mailing. 29 C.F.R.
§ 18.4(c)(2). The complainant had ten days to respond to
the motion (29 C.F.R. §18.6(b)) and an additional five days
was provided since the motion was filed by mail. 29 C.F.R.
§ 18.4(c). Therefore, a response was due by the complainant
on or before December 1, 1995. No response was filed by counsel
for the complainant until December 8, 1995, which makes the
complainant's response seven days late. No showing of good cause
as to the reason for the late filing has been submitted.
Following the filing of the complainant's response to the Motion
for Summary Decision, the respondent, on December 13, 1995,
mailed a reply.
The Motion for Summary Decision includes the affidavit of
Jeanne Copsey who is employed by Arizona Public Service Company
[PAGE 2]
(hereinafter APS) in the position of Human Resources Client
Services Consultant. She has held that position since September,
1995 and before that time served as the Human Resources Represen-
tative for APS from September, 1990 to August 31, 1995. The
motion also contains an attachment captioned Frontline Selection
relating to a corporate re-engineering process; a job description
for the position of Nuclear Auxiliary Operator IL/SR
(Intermediate and Senior); a document captioned Workforce
Management Guideline for Non-Management Employees (Attachment 3);
a document captioned Palo Verde Redeployment Guidelines effective
November 15, 1994 (Attachment 4); an APS business record
reflecting evaluations for the position sought by the complainant
during the re-engineering process (Attachment 5); a routine APS
business record containing scores for each of the individuals who
applied for the Nuclear Auxiliary Operator position in the fall
of 1994 (Attachment 6); a handwritten note which the affiant
prepared on November 17, 1994 which documents the verbal appeal
request of the complainant (Attachment 7); and a copy of an
electronic message from the complainant dated November 19, 1994
which confirms his appeal request. (Attachment 8) The motion
also contains as a submission the confidential statement
addressed to the complainant on January 13, 1995 which notified
him of his successful appeal. (Attachment 9).
The affidavit of Ms. Copsey further indicates that she was
responsible for developing and interpreting Human Resources
Policies and Procedures, providing advice to management on Human
Resource issues and developments and that she was actively
involved in providing advice to management during the APS
re-engineering which occurred throughout 1994 and 1995.
Ms. Copsey represents in her affidavit that she is over the
age of eighteen, of sound mind and that she has personal
knowledge of the facts stated in her affidavit. The affidavit
relates the facts involved to be as follows:
In 1993, APS planned a corporate re-engineering,
which it implemented during 1994 and 1995. As part of
the re-engineering process, APS formed various Selection
Panels, consisting of three to five manager/supervisor
employees, to evaluate the candidates' qualifications for
the various positions. The makeup and responsibility of
these Selection Panels is shown in Attachment 1, an APS
business record, describing the process by which APS
selected frontline employees.
To assess each candidate's qualifications, the
[PAGE 3]
Selection Panels assigned numerical ratings for designated
cultural and technical "competencies," e.g., adaptability,
technical knowledge, creativity, communication, problem solving,
and drive/energy. Each area of competency had a designated
weight. A candidate's score, therefore, consisted of the sum of
each rating multiplied by the assigned weight of the area of
competency.
Attachment 2 is the job description for an APS Nuclear
Auxiliary Operator position and provides applicants with the
position's competencies and respective weights. Attachment 2 is
also a routine APS business record.
After the Selection Panel performed the initial
evaluation of the candidates, a Review Board reviewed the
process and results to ensure compliance with company
policies and the law. At the conclusion of the Review
Board's work, the candidates with the highest scores
received notice that they were selected. Similarly, the
candidates with the lower scores also received notice of
the results, as they existed at this stage of the
process. The process, however, was not complete and the
results for the non-selected candidates were not final.
Attachment 3 is the APS Workforce Management Guideline
for reducing non-management employees and is another
routine APS business record.
APS afforded each non-selected employee the oppor-
tunity to have the initial decision reviewed by an APS
Appeals Board. The Appeals Board consisted of three
supervisory/management employees and had the authority to
either approve or overturn the initial decision. The
Appeals Board received additional support from an APS
Human Resource representative and legal counsel.
While the Appeals Board reviewed an employee's
initial evaluation, the employee was preliminarily deemed
"surplus" or "over-complement." Nevertheless, that
employee continued to work in his or her existing
position and retained the same job title, position, and
pay while the Appeals Board performed its review. In
November 1994, APS instituted a policy that prevented the
involuntary lay-off of employees whose appeals were
ultimately turned down by the Appeals Board. The
company's new Redeployment Guidelines, applicable to the
Palo Verde Nuclear Generating Station ("PVNGS"), provided
that over-complement employees would continue to work in
their existing job classifications and departments until
they received another position, or voluntarily elected to
resign or accept a severance package. It did not
[PAGE 4]
establish a maximum time limit after which an employee was
subject to termination.
Attachment 4 is APS' PVNGS Redeployment Guidelines
for finding over-complement employees alternate positions within
the company. It is also a routine APS business record.
In October 1994, APS re-affirmed the existing job
description, minimum requirements, and designated
competencies for the job of Nuclear Auxiliary Operator
(Intermediate and Senior) within the re-engineered
organization. (See Attachment 2). Mr. Simmons was an
incumbent Senior Nuclear Auxiliary Operator who expressed
interest in retaining that position. Attachment 5 is an
APS business record reflecting Mr. Simmons' evaluations
for the positions that he sought during the re-engineer-
ing process. In accordance with the established re-
engineering process, a Selection Panel evaluated Mr.
Simmons' qualifications for the Senior Nuclear Auxiliary
Operator position. The Selection Panel's evaluation
resulted in Mr. Simmons receiving a composite score of
75. (See Attachment 5). The Review Board concurred with
this evaluation on November 15, 1994.
In addition to Mr. Simmons, 131 other employees also
applied for the Nuclear Auxiliary Operator position. APS
selected 96 candidates for this position, and it selected
17 others for other positions in the company. One
employee withdrew his name from consideration. Eighteen
employees -- including Mr. Simmons -- were not initially
selected. Only persons with scores above 83 received
offers. The scores of those not selected ranged from 66
to 82. Attachment 6 is a routine APS business record,
which contains a print-out of the scores for each of the
individuals who applied for the Nuclear Auxiliary
Operator position in the fall of 1994; however she
removed the names of the candidates except for Mr.
Simmons.
On November 17, 1994, Mr. Reginald Taylor, Mr.
Simmons' supervisor, informed Mr. Simmons that the
Selection Panel had not selected him for the position of
Nuclear Auxiliary Operator. I was also present when Mr.
Taylor informed Mr. Simmons. I explained to Mr. Simmons
that under APS' re-engineering procedures, the Selection
Panel's initial decision was not final and that he had
the right to request that an APS Appeals Board review the
initial decision.
[PAGE 5]
Mr. Simmons verbally informed me on November 17,
1994, that he wished to continue the process by re-
questing that an Appeals Board reconsider his evaluation.
Attachment 7 is a handwritten note that I prepared on
November 17, 1994, in which I documented Mr. Simmons'
verbal appeal request. Two days later, on November 19,
1994, Mr. Simmons provided me with an electronic message
confirming his appeal request. See Attachment 8.
Between November 17, 1994, and December 13, 1994,
personnel from the PVNGS Human Resources Department and
PVNGS management, who were familiar with the Nuclear
Auxiliary Operator selection process and Mr. Simmons'
performance, gathered additional information from Mr.
Simmons and others to submit to the Appeals Board. On
December 20, 1994, the Appeals Board reviewed Mr.
Simmons' evaluation and determined that the Selection
Panel had not reviewed some new performance information,
which would have supported an elevated score and would
have qualified Mr. Simmons for selection as a Senior
Nuclear Auxiliary Operator. On or about December 20,
1994, Mr. Simmons received notice of this favorable
action.
Under APS' existing re-engineering procedures, APS
will place an employee who prevails before the Appeals
Board in the next available opening of the job for which
he or she had applied or a comparable job for which the
person was qualified. APS, however, provided Mr. Simmons
with an extraordinary remedy. It did not have Mr.
Simmons wait for the next available Nuclear Auxiliary
Operator vacancy. Nor did it assign him to a comparable
position. Rather, APS created an additional Senior
Nuclear Auxiliary Operator position specifically for Mr.
Simmons. Attachment 9 is a memorandum in which APS
confirmed Mr. Simmons' Senior Nuclear Auxiliary Operator
assignment.
Throughout the entire re-engineering process, Mr.
Simmons never ceased working as a Senior Nuclear Auxil-
iary Operator. His official duties, responsibilities,
compensation, terms and conditions of employment, as well
as his title, office, crew, working hours, and benefits
never changed.
The response to the APS Motion for Summary Decision is a
five and one-half page statement apparently authored by Michael
G. Helms
[PAGE 6]
as counsel for the complainant. No affidavits or other
documentary materials were submitted as responsive data. The
statement contains a variety of representations concerning a
longstanding and continuous effort by APS to retaliate against
Mr. Simmons for engaging in protected activity. The response
offers no dispute as to the basic facts alleged in Ms. Copsey's
affidavit and, in fact, adopts portions of those facts as being
true. No dispute is taken as to the dates of the applicable acts
mentioned in the affidavit. The complainant does interject as a
defense the legal theory of continuing violation as being a basis
for the extension of the limitation period and suggests that his
retention in one of the pools associated with the re-engineering
process caused his complaint filing here to be timely. No
affidavits or other documentary materials were submitted in
support of that contention. Similarly, with the adverse
employment action argument contained within the response of the
complainant, only argument was made as to why the facts alleged
would not support a summary judgment here. A vague reference is
also made of the existence of "other issues" to be determined at
the time of the hearing. Upon this basis, the complainant
requests that the Motion for Summary Judgment be denied.
CONCLUSIONS OF LAW
A Motion for Summary Judgment in an Energy Reorganization
Act (hereinafter ERA) case is governed by the provisions of 18
C.F.R. §§ 18.40 and 18.41. Trieber v. Tennessee
Valley Authority, Case No. 87-ERA-25, Sec. Dec. & Ord.,
September 9, 1993, Slip Op. at 7. A party opposing a Motion for
Summary Judgment "must set forth specific facts showing that
there is a genuine issue of fact for hearing." 19 C.F.R. §
18.40(c). The standard for granting a Motion for Summary
Decision under 29 C.F.R. § 18.40 is the same as that for
summary judgment under the analogous Fed. R. Civ. P. 56(e). The
moving party must show that there is no material issue of fact
and that he is entitled to prevail as a matter of law.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986);
Eisner v. U.S. Environmental Protection Agency, Case No.
90-SWD-2, Dec. & Ord. of Remand, December 8, 1992, Slip Op. at 4.
As was noted above, the response of the complainant to the
Motion for Summary Decision was filed seven days late.
Therefore, a genuine issue arises as to whether the statement of
the complainant should be considered at all. However, due to
it's content, that issue is rendered moot since the responsive
statement does not serve to defeat the summary judgment motion.
It was incumbent upon
[PAGE 7]
the complainant to submit specific facts demonstrating the
existence of a genuine issue for trial. That has not been done
in this case.
I am cognizant of the fact that it is necessary to deny a
Motion for Summary Decision "whenever the moving party denies
access to information by means of discovery to a party opposing
the motion." 29 C.F.R. § 18.40(d). This case file gives no
indication that the complainant has experienced any difficulty in
obtaining responses to discovery requests. Therefore, that rule
provision is inapplicable. The complainant cannot rest merely on
the allegations or denials of his pleadings.
THE COMPLAINT IS TIME BARRED
The ERA provides an employee 180 days within which to file a
complaint under Section 211. 42 U.S.C. § 5851(b)(1). The
180 day period commences on the date that the complainant
received notice of the adverse action and not on the date that
the complainant is effected by company adverse action. Kang
v. Department of Veterans Affairs Medical Center, 92-ERA-31
(Sec. Dec. February 14, 1994); Bonanno v. Northeast Nuclear
Energy Co. et al, 92-ERA-40 and 41 (Sec. Dec. August 25,
1993). It is undisputed that the complainant was placed in the
over-complement pool on November 17, 1994. It was on that date
that the complainant's supervisor advised him that the selection
panel had not selected him for the position of Nuclear Auxiliary
Operator. Although it was also explained to the complainant at
the same time that the initial decision was not final and that he
had the right to request a review, the record is clear that any
adverse action that may have resulted from the action of APS
impacted at that time. Since the complaint of Mr. Simmons was
filed on May 22, 1995, it was not submitted until 186 days after
the time of the adverse action and is therefore, untimely under
the statute. No argument is made that the doctrine of equitable
tolling is applicable.
Accordingly, concerning allegations of Mr. Simmons as to
discrimination relating to his placement in the over-complement
pool, there is no genuine issue of material fact concerning his
failure to satisfy the statutory requirement of filing his
complaint within 180 days of the alleged violation. His
complaint was filed six days late. Therefore, I recommend that
the Motion for Summary Judgment of APS be granted. That finding
is consistent with the conclusion of the Assistant District
Director.
[PAGE 8]
COMPLAINANT HAS SUFFERED NO ADVERSE EMPLOYMENT ACTION
APS also contends that Summary Judgment must be entered
against complainant because Mr. Simmons cannot establish a
primafacie case since he suffered no adverse
employment action. In his complaint of May 22, 1995, Mr. Simmons
alleges that APS "retaliated against me and placed me in the
employee over-complement pool to remove me from my position." He
further suggests that the action was not justifiable and that it
created an intolerable amount of mental stress and anguish for
him.
The discriminatory allegations relate to the complainant's
placement in the over-complement pool and the company's intention
of removing him from his position. The complaint contains no
factual allegations in support of the representations made and,
in fact, Mr. Simmons also mentions in his complaint that in the
latter part of 1995, he overturned the company decision to place
him in the over-complement pool as a result of an internal appeal
process. The basic facts are all consistent with the facts
alleged in the affidavit of Ms. Copsey. The formal record of
this case contains no other affidavits, discovery materials or
personal representations made by the complainant concerning the
alleged factual scenario resulting in the complaint filing.
To establish a primafacie case under the ERA,
the complainant must establish that the respondent discriminated
against him with respect to his compensation, terms, conditions
or privileges of employment. 42 U.S.C. § 5851(a) (1988).
It is necessary for the complainant to show that APS directed
some form of adverse action against him. Carroll v. Bechtel
Power Corp., 91 ERA 46, Sec. Dec., February 15, 1995.
The factual representations contained within the Copsey
affidavit stand essentially unrefuted. Under both 29 C.F.R.
§ 18.40 and Fed. R. Civ. P. 56(e), the party opposing a
Motion for Summary Judgment must set forth specific facts showing
that there is a genuine issue for trial and the party may not
rest upon mere allegations or denials of the pleadings. The
representations made by Mr. Simmons in his complaint do not
constitute an opposing affidavit since the suggestions of
retaliation and discrimination are not based upon personal
knowledge but rather on information and belief. Schroeder v.
McDonald, 55 F.3d 454 (9th Cir. 1995); Columbia Pictures
Industries, Inc. v. Professional Real Estate Investors, Inc.,
944 F.2d 1525 (9th Cir. 1991).
Mr. Simmons acknowledges in his complaint that the company
action of placing him in the over-complement pool was overturned
as a result of his appeal. Those factual representations are
consistent with the facts stated in the Copsey affidavit. The
facts demonstrate that the company designation of Simmons was
[PAGE 9]
temporary. After having received notification on November 17,
1994 by the selection panel, Mr. Simmons remained in his existing
position. During the appeal process, nothing changed from an
employment standpoint. After it was determined by the Appeals
Board that he should have been qualified as a Senior Nuclear
Auxiliary Operator, APS created an additional Senior Nuclear
Auxiliary Operator position specifically for the complainant.
During the entire re-engineering process, his working condition
did not change. Those facts are undisputed.
Counsel for complainant, in the Response to the Motion for
Summary Judgment, makes generalized allegations that Simmons'
placement in the over-complement pool changed his career path and
was stressful. The responsive statement indicates that the
company's failure to properly evaluate Mr. Simmons initially
constituted harassment and discrimination. Informing him of the
action and advising him of the need to qualify for another
position also constituted adverse action. All of these
representations constitute allegations or denials of fact, but
the denials are unaccompanied by specific admissible facts
tending to frame the issues in dispute.
Based upon this record, William D. Simmons has failed to
demonstrate that he suffered any form of adverse employment
action, and therefore, cannot establish a primafacie case of discrimination under the ERA. In
considering the content of the Copsey affidavit and the complaint
filed by Mr. Simmons, I find that there exists no genuine issue
of fact for hearing relating to an adverse employment action
suffered by complainant.
Therefore, it is my recommendation that the Motion for
Summary Decision filed by APS be granted for this reason, in
addition to the complaint filing having been untimely.
________________________
Rudolf L. Jansen
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
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)
