Date: January 17, 1996
CASE NO. 95-ERA-52
In the Matter of:
BRIAN EVANS,
Complainant
v.
WASHINGTON PUBLIC POWER SUPPLY SYSTEM,
Respondent
Appearances:
John M. Cooper, Esq.
For the Complainant
Melvin N. Hatcher, Esq.
For the Respondent
Before: Henry B. Lasky, Administrative Law Judge
RECOMMENDED DECISION AND ORDER
The Complainant Brian Evans commenced this proceeding under
the Energy Reorganization Act of 1974, as amended, 42 U.S.C.
§5851, hereinafter called the Act. He initially filed an
undated, unsigned complaint on July 7, 1995 with the United
States Department of Labor. In a letter dated September 14, 1995
the Department of Labor notified the Complainant that a fact
finding investigation did not verify that discrimination in
violation of the Act was a factor in his termination of
employment by the Respondent herein.
Thereafter Complainant requested a hearing on September 18,
1995. On September 27, 1995 the matter was assigned to the
undersigned administrative law judge and a notice of hearing
was issued on said date. The trial was ultimately conducted on
December 5, 1995 in Richland, Washington.
The matter was submitted subject to an order requiring the
parties to file proposed findings of fact and conclusions of law
on or before January 5, 1996 and the waiver by the parties of any
time requirements to the contrary for the issuance of a
recommended decision and order. Respondent filed proposed
findings and conclusions as ordered. Complainant failed to file
[PAGE 2]
proposed findings and conclusions within the time required. The
record was closed on January 5, 1996.
FACTUAL BACKGROUND
The Respondent, an electrical utility, is a municipal
corporation which operates a boiling water nuclear power reactor
(BWR termed WNP-2) at the so-called Hanford site in Southeastern
Washington state. The Hanford site is approximately 15 road
miles from the cities of Richland, Kennewick, and Pasco,
Washington. The Respondent employs approximately 1300 people in
support of the WNP-2 operations. WNP-2 operates under a license
issued by the Nuclear Regulatory Commission (NRC). The
Respondent acknowledges the Department of Labor subject matter
jurisdiction in this matter.
Mr. Evans began his employment with the Supply System in
January of 1990 as an engineer. He characterized his position
with the Respondent as a motor operating valve technical planner.
Mr. Evans testified that on January 3, 1995 he received approval
from his immediate supervisor, Bliss, to attend a motor operated
valve user group (MUG) conference in Charlotte, North Carolina
which was scheduled for January 31 and February 1-2, 1995.
Subsequent to this authorization but prior to January 12, 1995
the Supply System assessed the utility of continued attendance at
MUG conferences. This assessment resulted in a decision by Mr.
John Sampson, who was the acting maintenance manager, to limit
the number of attendees at such conferences. Mr. Sampson decided
to only send Mr. Daniel Farley, the MOV functional coordinator,
and directed Mr. Farley to communicate this decision to the
affected parties, including Mr. Evans. This was done on January
12, 1995.[1]
In Mr. Evans' complaint to the Department of Labor filed
July 7, 1995 at page 4, he acknowledges that on January 12, 1995
he received a voice mail message on his telephone from Mr. Farley
who stated that Farley had met with Mr. John Sampson and Bob
Morris and that they had decided to send Farley to Charlotte and
that he (Farley) was sorry it didn't work out for both of them to
go. The exact communication to Mr. Evans by Mr. Farley is set
forth in Complainant's complaint on page 4 as follows:
"Hey Brian this is Dan, I know you are in training today
but I want to let you know just in case you are tying to
make some travel plans or wanting to make some travel
plans...I met with Morris and Sampson, and basically they
had committed to send me to Charlotte and for us to switch
off for the summer one, or if there is something else you
would rather attend other than the MUG, a MOV region IV
training or something like that. Basically they are going
back to committing us to one trip a year, they want us to
[PAGE 3]
try to figure out early in the year-budget on where they
may be and they will try to honor that, is the way they put
it....so call me back and give me any comments, uh sorry it
didn't work out for both of us to go but it looks like we
at least convinced them to not completely delete us from
all of our MOV conferences, they have committed to at least
one of us, so give me a call. Thanks, Dan"
In addition Mr. Evans acknowledges in his complaint filed
July 7, 1995 on the same page that a few days after the aforesaid
January 12, 1995 phone message from Farley "Dan and I very
briefly discussed attendance of the conference, he said he was
sorry that I couldn't go." (Respondents Exhibit 2, page 4)
Mr. Evans testified that after his initial approval on
January 3, 1995 to attend the conference in Charlotte, he made
personal travel plans which involved his wife traveling to
Orlando, Florida to visit friends the week before the conference
and for Mr. Evans to join his wife in Orlando, Florida
immediately following the conference.
Despite the heretofore described communication of January
12, 1995 from Mr. Farley to Mr. Evans and their subsequent
conversation following the aforesaid phone message, the Claimant
nevertheless disregarded the communications and traveled to the
MUG conference in Charlotte, North Carolina at the Supply System
expense and attended the conference on January 30, 1995 through
February 2, 1995 and then flew to Orlando, Florida to meet his
wife and friends on February 3, 1995. He and his wife returned
home on February 10, 1995 and he reported to work on Monday,
February 13, 1995.
On Monday, February 13, 1995 Mr. Albert, acting manager for
Planning and who works for Mr. Sampson, asked Complainant if he
had been directed not to attend the conference by Mr. Farley and
Claimant denied that he had ever been told by Mr. Farley that he
was not to attend. Mr. Monopoli, Respondent's maintenance
manager and supervisor of Mr. Sampson, returned from a thirteen
week management course and was briefed by Mr. Sampson regarding
Mr. Evans unauthorized attendance at the MUG conference at Supply
System expense. Mr. Evans testified that approximately a month
or so after the conference Mr. Sampson had asked him why he went
to the conference when Mr. Farley had communicated that he was
not to do so and Complainant told Sampson that Farley did not
communicate such information but only that he (Farley) was sorry
that he had been selected to go.
On or about April 11, 1995 Mr. Monopoli met and discussed
the matter with Mr. Evans as he really couldn't believe that
anybody would do what Mr. Evans had done and he wanted to find
out for himself so he decided to talk to Mr. Evans.
[PAGE 4]
(Complainant's Exhibit 1, page 36, lines 18 -24). In the
discussion with Mr. Monopoli, Mr. Evans acknowledged that he knew
he was not to attend the conference but decided to go anyways
because in his judgment it was in the best interest of the Supply
System. Mr. Monopoli decided to terminate the Complainant for
this unauthorized travel. He alone made the decision to
terminate because there were no mitigating circumstances since
Evans admitted knowing that he was not to go after his prior
authorization had been revoked for budgetary reasons and this
change was communicated to Evans by Mr. Sampson, understood by
him, and nevertheless Evans went to the conference at the Supply
System's expense. Mr. Monopoli felt that Complainant made a
willful decision for which there was no excuse.
Complainant testified and denied that Mr. Monopoli had ever
asked him whether he was aware that he was not to go to the MUG
conference. This denial I find to be incredible and consistent
with other portions of Complainant's testimony to the effect that
he did not understand Mr. Farley's communication to him on
January 12, 1995 as meaning that he was not to go. Further the
conversation a few days after the January 12, 1995 phone message
between Mr. Evans and Mr. Farley was also not viewed by Mr. Evans
as a communication that he was not to go to the conference. This
testimony is on its face inherently incredible as any rational
person would understand the communication of Mr. Farley both on
January 12, 1995 and a few days thereafter, in person, that Mr.
Farley's expression of regret that Mr. Evans couldn't go to the
conference meant anything other than Mr. Evans was not to go to
the conference. Compounding his untruthful testimony, the
Complainant, after first denying that Farley's communications did
not direct him not to attend the conference, thereafter testified
he wasn't sure what Farley's communications meant. Yet he
acknowledged in his own complaint that Mr. Farley had told him a
few days after the phone message that he regretted that
Complainant could not go to the conference. This communication
Mr. Evans characterized as being vague. This characterization is
unworthy of belief. Significantly, Complainant never made any
attempt to clarify what he characterizes as vague any of the
messages from Mr. Farley with either Mr. Farley or even his own
immediate supervisor.
Complainant's immediate supervisor, Mr. Bliss, who, on
January 3, 1995, had originally authorized Mr. Evans to attend
the conference was never informed that Mr. Evans was told by Mr.
Farley on January 12, 1995 that only Mr. Farley was going to
attend the conference. Mr. Bliss stated in his affidavit which
was admitted into evidence by stipulation that he would have
expected Mr. Evans to come to him to seek clarification if there
was any vagueness in the direction he received from Mr. Farley.
[PAGE 5]
Had Mr. Evans informed Mr. Bliss that he had been told not to
attend the conference, Mr. Bliss would have contacted Mr. Farley
and Mr. Sampson to discuss and resolve the situation.
(Respondent's Exhibit 9)
It is quite clear that the impeached testimony of the
Complainant is not worthy of any credibility and that his
decision to attend the conference in Charlotte, North Carolina at
the Supply System's expense was motivated by the fact that he had
personal travel arrangements scheduling a visit to friends in
Orlando, Florida following the conference. His wife had already
had travel plans to travel to Orlando, Florida one week prior to
the conference.
It should be noted that in 1993 Mr. Evans was disciplined
for attending a motor operated valve (MOV) conference in Arizona.
Apparently immediately prior to the Arizona conference in 1993,
the Complainant attended a planning session for a special Nuclear
Regulatory Commission emergency drill exercise. Mr. Evans
attended the meeting on February 19, 1993 where the NRC exercise
was discussed and was scheduled for February 23, 1993. After the
meeting he did not return to the office but instead drove to
Portland, Oregon to catch a plane to attend an Arizona conference
scheduled the following week from February 22 through February
26. Mr. Evans made the conscious decision that the MUG meeting
was more important than the NRC emergency exercise and failed to
communicate to management that he had a conflict in the schedule.
From Arizona, on February 22, 1993, the Complainant called and
advised management that they would have to find a replacement for
him for the NRC exercise and put management in a position of
finding a replacement at the last minute. Mr. Evan's decision
not to communicate this conflict in his schedule created a
situation which impacted upon many other individuals and
departments. (Respondent's Exhibit 4) When Mr. Evans was asked
why he did not inform management of his conflict in 1993, Mr.
Evans stated that he was concerned that management would not let
him attend the MUG conference. (Respondent's Exhibit 3) Mr. Evans
was disciplined since the MUG conference was clearly secondary to
his responsibilities for the emergency response commitment and
Mr. Evans was specifically warned that subsequent similar
occurrences could result in the termination of his employment.
(Respondent's Exhibit 3) At the time of this 1993 discipline, Mr.
Evans acknowledged that he had made an error in judgment and
accepted the disciplinary letter. He never challenged the 1993
discipline and accepted it. At the time of the trial herein he
apparently testified for the first time that he now felt that the
discipline in 1993 which was imposed and which he accepted was
"unfair".
In an apparent effort to fabricate liability under the Act
[PAGE 6]
herein, Complainant testified that his termination was due to his
filing a PER in 1994,[2] and allegedly because of his
instigating another PER thereafter in the spring of 1994 which in
fact was filed by Robert Morris. Certainly the filing of PERs
would be considered protected activity. However the aforesaid
PERs apparently filed in the spring of 1994 had no causal
relationship to Complainant's ultimate termination of his
employment. At the Respondent's plant there are three PERs filed
per day and approximately 1200 per year and they are encouraged
by management to be filed by the employees in an effort to make
things better and improve the operational facility. Management
as testified by Mr. Monopoli want personnel to identify problems
so that they can be addressed and corrected. Such was done with
the two PERs identified by Mr. Evans.
Mr. Monopoli's investigation of Mr. Evan's unauthorized trip
to North Carolina was not in any way affected by problem
evaluation requests generated by Mr. Evans as he was unaware of
them. (Complainant's Exhibit 1, page 5, lines 20 -24, page 6,
lines 6 -12.) Mr. Monopoli made the decision to terminate
Complainant following his personal investigation that Mr. Sampson
had put out a policy that only one person was to travel for any
of these industry events, and that Complainant was aware that he
was not the person who was suppose to travel to the conference in
North Carolina. Mr. Evans acknowledged knowing such and his sole
response as to why he performed such travel was "it was the right
thing to do for the Supply System." Mr. Monopoli's assessment
was that it was viewed by him as a "pretty straight forward
misappropriation of public funds. If you want to call that
stealing, I guess that's what that is, and it sure seemed pretty
black and white to me, and I couldn't find much that would
mitigate it." (Complainant's Exhibit 1, page 27, lines 19 -25,
page 28, lines 1-7) It was solely on this basis that Mr.
Monopoli made the decision to terminate Mr. Evans. (Complainant's
Exhibit 1, page 27, lines 15-16) The allegation that the
generation of two PERs by Mr. Evans in the Spring of 1994 played
a part in the decision to terminate him is not believable,
factually unsupportable and I reject the Complainant's testimony
containing such allegations.
LEGAL ANALYSIS
The law applicable to this case is summarized in Darley
v. Zack Company of Chicago, 82-ERA-2 (Sec'y April 25, 1993)
slip op. at 7-9:
"The employee must initially present a prima facie case
consisting of a showing that he engaged in protected
conduct, that the employer was aware of that conduct and
that the employer took some adverse action against him.
[PAGE 7]
In addition, as part of his prima facie case, 'Plaintiff
must present evidence sufficient to raise the inference
that...protected activity was the likely reason for the
adverse action.' Cohen v. Fred Mayer, Inc., 686 F2d
793 (9th Cir. 1982).... If the employee establishes a
prima facie case, the employer has the burden of
producing evidence to rebut the presumption of
disparate treatment by presenting evidence that the
alleged disparate treatment was motivated by
legitimate, nondiscriminatory reasons. Significantly,
the employer bears only a burden of producing
evidence at this point; the ultimate burden of
persuasion of the existence of intentional discrimination
rests with the employee.... If the employer successfully
rebuts the employee's prima facie case, the employee still
has 'the opportunity to demonstrate that the proffered
reason was not the true reason for the employment
decision.... The employee may succeed in this either
directly by persuading the Court that a discriminatory
reason more likely motivated the employer or indirectly by
showing that the employer's proffered explanation is
unworthy of credence'.... Texas Department of Community
Affairs v. Burdine, 450 U.S. 248 (1981) at 256.
The trier of fact may then conclude that the employer's
proffered reason for its conduct is pretexted and rule
that the employee has proved actionable retaliation
for protected activity. Conversely, the trier of fact
may conclude that the employer was not motivated, in
whole or in part, by the employee's protected conduct and
rule that the employee has failed to establish his
case by a preponderance of evidence. Id. at 254 265.
Finally the trier of fact may decide that the employer
was motivated by both prohibited and legitimate reasons,
i.e., that the employer had 'dual motives.'
...If the trier of fact reaches the latter conclusion, that
the employee has proven by a preponderance of the evidence
that the protected conduct was a motivating factor in the
employer's action, the employer in order to avoid
liability, has the burden of proof or persuasion to show by
a preponderance of the evidence that it would have reached
the same decision even in the absence of the protected
conduct. (citations omitted.)
A recent decision raised the employer's burden from a
preponderance to "clear and convincing" evidence. Yule v.
Burns International Security Service, 93-ERA -12 (Sec'y May
24, 1995).
In this case the Complainant, if credible, has alleged that
[PAGE 8]
as a result of his involvement in the generation of two problem
evaluation requests in the spring of 1994 which constituted
protected activity, it resulted in the creation of animus on the
part of management and was a motivating factor in his termination
on April 11, 1992. As part of Complainant's prima facie case Mr.
Evans has the burden of presenting evidence sufficient to raise
the inference that his protected activity was the likely reason
for the adverse action. At this point it is a conclusion of the
undersigned that the employee herein has not presented a prima
facie case as his testimony is so inherently incredible that he
is unworthy of relief. Even assuming that he was involved in the
filing or generating of two problem evaluation requests in 1994,
such PERs are encouraged by management and his, in fact, were
addressed and resolved. No adverse action was taken against him
for the generation of the two PERs. In addition there is no
causal relationship between such protected conduct and his
termination. The decision by Mr. Monopoli to terminate Mr. Evans
was made without any awareness on the part of Mr. Monopoli,
which I fully believe, of the generation by Mr. Evans of the two
problem evaluation requests. Complainant has not presented
credible evidence sufficient to raise the inference that such
protected activity was the likely reason for the adverse action,
but to the contrary, the credible evidence herein is that such
protected activity bore no causal relationship to Mr. Evans'
ultimate termination on April 11, 1992. As a consequence, I
conclude that the employee herein has not established a prima
facie case.
Notwithstanding the aforesaid conclusion, the employer
produced evidence which was credible that the termination of Mr.
Evans was for a legitimate nondiscriminatory reason to wit, his
traveling to a conference in January of 1995 which was knowingly
unauthorized, at the Supply System's expense because he was
motivated to fulfill his own personal and family travel
arrangements which had been made incident to his attendance at
the Conference in question. The employer's evidence presented
was clear and convincing. The employee herein has not met his
ultimate burden of persuasion of the existence of any intentional
discriminatory reason for the termination of his employment.
Clearly the termination of Mr. Evans was for his
insubordinate and unauthorized attendance at a MUG conference at
the expense of Supply System's travel funds and despite receiving
direction not to attend such conference. Mr. Evans had
previously received a warning for similar conduct in 1993. The
termination of Mr. Evans was legitimate, justified and did not
constitute any violation of the Act herein.
Mr. Evans had the opportunity to demonstrate that the reason
he was terminated was not the true reason for the employment
[PAGE 9]
decision but has failed to do so. Complainant has not presented
any persuasive evidence that a discriminatory reason in any way
motivated the employer directly or indirectly or that the
employer's proffered explanation was unworthy of credence. The
employer's reasons for terminating the Complainant were not a
pretext and the employee has not proven or convinced the
undersigned that his termination was in fact retaliation for
protected activity. The sole credible evidence presented herein
was on behalf of the employer. I conclude that the employer was
not motivated, in whole or in part, by the employee's protected
conduct in the spring of 1994. 1 specifically rule that the
employee has failed to establish his case by a preponderance of
the evidence or for that matter any standard of credible evidence
since I find his testimony as being inherently incredible.
To summarize, Complainant was not engaged in activity
protected under the Energy Reorganization Act when he traveled to
a North Carolina conference at the employer's expense after it
was communicated to him that he was not selected to attend said
conference, which he acknowledged he knew and understood that he
was not to attend such conference but elected to travel to said
conference notwithstanding. He had been advised in 1993 that
such conduct could result in his termination and yet he elected
to do so in order to satisfy his own personal travel plans.
Under the Energy Reorganization Act, an employer may
appropriately discharge an employee as long as the employer's
decision to discharge the employee is not motivated by
retaliatory animus and the employer has reasonable grounds for
discharge. Lockert v. U.S. Department of Labor, 867 F.2d
513 (9th Cir. 1989). Certainly the employer's decision herein
to discharge the employee was reasonable and there is no credible
evidence that it was motivated by retaliatory animus. A
termination of employment does not violate the "whistleblower"
protection provisions of the Energy Reorganization Act,
notwithstanding an employee's claim that he was discharged for
engaging in protected activity, when there is clear and
convincing evidence that the discharge was not motivated by
retaliatory animus and that reasonable grounds existed for
discharging the employee for insubordination and unauthorized
travel at employer's expense.
The proposed findings of fact and conclusions of law
submitted by Respondent are adopted and incorporated by reference
insofar as they are consistent with this opinion.
ORDER
For the aforesaid reasons, it is recommended that this
complaint be dismissed.
HENRY B. LASKY
Administrative Law Judge
NOTICE: This Recommended Decision and Order and the
administrative file in the matter will be forwarded for review by
the Secretary of Labor, Room S4309, Frances Perkins Building,
200 Constitution Avenue, 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] Mr. Evans' chain of command had an established reporting
relationship from a supervisor up to the Maintenance Manager. In
the 1993 time frame, Mr. Evans' immediate supervisor was Mr. R.A.
Morris. In the 1994 and 1995 time frame, Mr. Evans' immediate
supervisor was Mr. C.L. Bliss. During the January to March 1995,
time frame, however, Mr. Bliss was detailed to a training
assignment and Mr. T.R. Eldhardt was assigned as an acting
supervisor over Mr. Evans and other individuals. Messrs. Bliss
and Eldhardt reported to T.W. Albert. Mr. Albert reported to Mr.
J.R. Sampson, and Mr. Sampson reported to Mr. M. M. Monopoli, the
Maintenance Manager.
During the 1995 time frame, Mr. Evans worked in the
Electrical Planning functional area. Mr. Evans was one of
several planners; however, unlike the other planners in his
group, Mr. Evans' work was greater than 90% in support of the MOV
program. TR 73:19-20. This special dedication resulted in a
unique working relationship for Mr. Evans in that he routinely
received work-related direction from individuals outside his
chain of command. For example, it was common for Mr. Evans to
receive direction from the MOV Team Leader (Mr. Farley) with
regard to hours of work, the general discharge of his duties and
responsibilities, training, and the scheduling of time off.
[2] A PER is a Problem Evaluation Request.
