DATE: April 25, 1996
CASE NO: 95-ERA-00054
In The Matter of
THOMAS A BONANNO
Complainant
v.
STONE & WEBSTER ENGINEERING CORPORATION
Respondent
RECOMMENDED DECISION AND ORDER
DISMISSING COMPLAINT
This is a proceeding under the Energy Reorganization Act of
1974, §210, as amended, 42 U.S.C. §5801, "ERA", and its
implementing regulations. 29 C.F.R. Part 24.
A complaint of discriminatory employment practices was filed
by Thomas M. Bonanno, on September 8, 1995 against his former
employer Stone and Webster Engineering Corporation (S&W) from
Boston, Massachusetts.
Mr. Bonanno appeared at the hearing pro-se. He was advised
of his right to obtain counsel but declined. (TR 4-5).[1]
Although only S&W was named in the initial complaint as the
party allegedly discriminating against Mr. Bonanno, and the
Director's September 25, 1995 determination that a prima facie
"showing" had not been made addressed only S&W, the Claimant
argued at the February 9, 1996 hearing, and in his post hearing
brief and rebuttal dated March 21, 1996, that NNECO (Northeast
Nuclear Energy Corporation) and, piercing the corporate veil, NU
(Northeast Utilities), as well as S&W retaliated against him in
[PAGE 2]
violation of the ERA. On page 11, of his brief Mr. Bonanno
argues "conspirational conduct" on the part of S&W, NU and NNECO
against him. Mr. Bonanno states that the discriminatory action
by the named party(s) is the failure of payment for three (3)
weeks for which he claims compensation (three consecutive weeks
beginning March 13, 1995). The following exhibits have been
added to the file post hearing: RX 35, letter dated February 16,
1996 forwarding Mr. Bonanno's "sign up paperwork" dated April 3,
1995 with S&W; ALJX 15, post-hearing brief from S&W, and NNECO
dated March 11, 1996; ALJX 16, post-hearing brief and rebuttal
from Mr. Bonanno dated March 21, 1996; and ALJX 17, the hearing
transcript.
Early in 1995, Messrs. Privizzini and Senkewitcz began
making arrangements to staff the upcoming April 1995 outage of
NU's Millstone nuclear power station in Waterford, Connecticut.
An outage is a time requiring additional employee's to facilitate
maintenance modifications.[2] Mr. Senkewitcz coordinated with
Mr. Nicholas Barile, millwright general foreman for S&W at
Millstone, and with Mr. Skip Mallett, GPMA (General President's
Maintenance Agreement) representative or "bull foreman," to
identify crew foreman for the several millwright crews
anticipated to work during the outage. This work required, among
other things, two shifts for diesel work.
The NRC (Nuclear Regulatory Commission) imposes special
requirements on diesel repair work. Under NCR requirements, the
job lead must be "qualified" through specialized training to
supervise the work. At least one qualified lead must be present
while work is on-going. Mr. Privizzini planned to staff each
crew with two qualified leads, one lead from NNECO and the other
from S&W, so that work could continue uninterrupted. Long before
the outage began, Mr. Privizzini arranged for a contractor to
provide the necessary diesel qualification training at Millstone.
Because the course had to be rescheduled, Mr. Privizzini used
that training to qualify enough job leads for the upcoming
outage. Accordingly, Mr. Privizzini set aside two of the seats
in the diesel course for the use of the two crew foreman who
would eventually fill the day and night shift positions during
the upcoming outage.
Mr. Senkewitcz selected Mr. Michael Schulze, an S&W
millwright already working on S&W's payroll at the Millstone
site, to serve as day-shift foreman for a diesel repair crew.
After considering all available staff employees already on the
S&W payroll, the night-shift crew foreman position remained open.
To fill the remaining night-shift foreman vacancy, Mr. N. Barile
[PAGE 3]
reviewed a list of millwrights previously identified by the union
and Mr. Mallett to work during the upcoming outage. To fill the
position quickly, Mr. N. Barile decided that he would select two
names; call both; and then offer the position to whichever
candidate called back first.
After reviewing the two candidates with Mr. Mallett, Mr. N.
Barile called Messrs. Bonanno and Shallcross to offer them the
vacancy in the diesel course and the forthcoming night foreman's
job. Mr. N. Barile selected Mr. Bonanno as one of the two
candidates because he considered Mr. Bonanno capable of
performing the work. Afterward, he informed the millwright
business agent, Mr. Joseph Barile, of his two calls and his plan
to give the position to the first man to call back.
Mr. Bonanno called back first. During their conversation,
Mr. N. Barile stated that he explained to Mr. Bonanno:
(1) that, if he accepted, he would fill the night-shift
foreman position on diesel work during the upcoming
outage;
(2) that he would have the opportunity to attend a valuable
diesel training course, costing more than ,500 per
person, free of charge;
(3) that this training was necessary to qualify him for the
foreman position;
(4) that he would come to work at Millstone once the plant
started hiring millwrights for the outage and would
become foreman when the diesel work began; and
(5) because he was not an S&W employee, he would not be
paid for his time during the course.
Mr. J. Barile, the union business agent, also contacted Mr.
Bonanno with the same information and added that Mr. Schulze, who
was already working on the site, had accepted the day-shift
foreman position and would also be attending the course.
Mr. Bonanno evaluated the offer, considered it and,
accepted. Nothing was/is in writing at this time frame about
said agreement.
Although the dates of the class were known, Mr. N. Barile
states that he did not provide Mr. Bonanno with a specific date
[PAGE 4]
to begin work because he did not know when the unit would
actually begin the diesel repair work. (ALJX 15).
Mr. Bonanno agrees with the above except that he states that
he was told by Mr. N. Barile that he would go to work immediately
after completing the diesel course. (Page 49-50 of his
deposition, CX 2). However, he admitted at page 48 that no
specific dates were mentioned for the diesel course or the start
of employment.
Mr. Bonanno completed the five (5) day diesel course on
March 17, 1995 and began his employment with S&W on April 3, 1995
(See RX 35). I note from the transcript, (TR 82-84) that Mr.
Bonanno asked for immediate employment after completing the
diesel school and that S&W tried to find work for him. In fact,
which is not disputed, S&W did offer Mr. Bonanno a carpenters job
in the interim before he could be hired as a millwright. Mr.
Bonanno declined.
Because Mr. Bonanno was not paid while attending the five
(5) day diesel course, or the two (2) weeks immediately after
completing the diesel course, he claims discriminatory employment
practice and seeks wages for such three (3) weeks.
Section 5851. Employee protection
(a) Discrimination against employee
(1) No employer may discharge any employee or otherwise
discriminate against any employee with respect to his
compensation, terms, conditions, or privileges of employment
because the employee (or any person acting pursuant to a request
of the employee)
(A) notified his employer of an alleged violation of
this chapter or the Atomic Energy Act of 1954 (42
U.S.C. 2011 et seq.);
(B) refused to engage in any practice made unlawful by
this chapter or the Atomic Energy Act of 1954 [42
U.S.C.A. §2011 et seq.];
(C) testified before Congress or at any Federal or
State proceeding regarding any provision (or proposed
provision) of this chapter or the Atomic Energy Act of
1954 [42 U.S.C.A. §2011 et seq.];
[PAGE 5]
(D) commenced, caused to be commenced, or is about to
commence or cause to be commenced a proceeding
under this chapter or the Atomic Energy Act of
1954, as amended [42 U.S.C.A. §2011 et seq],
or a proceeding for the administration or
enforcement of any requirement imposed under this
chapter or the Atomic Energy Act of 1954, as
amended;
(E) testified or is about to testify in any such
proceeding or;
(F) assisted or participated or is about to assist or
participate in any manner in such a proceeding or
in any other manner in such a proceeding or in any
other action to carry out the purposes of this
chapter or the Atomic Energy Act of 1954, as
amended [42 U.S.C.A. §2011 et seq.].
Section 5851(b)(3)(A)
The Secretary shall dismiss a complaint filed under
paragraph (1), and shall not conduct the investigation
required under paragraph (2), unless the complainant has
made a prima facie showing that any behavior described in
subparagraphs (A) through (F) of subsection (a)(1) of this
section was a contributing factor in the unfavorable
personnel action alleged in the complaint.
BURDENS OF PROOF AND PRODUCTION
Under the burdens of proof and production in whistleblower
proceedings, the complainant first must make a prima facie
showing that protected activity motivated the employer's decision
to take adverse employment action. The employer may rebut this
showing by producing evidence that the adverse action was
motivated by a legitimate, nondiscriminatory reason. The
employer, however, bears only a burden of production or rebuttal
evidence; the ultimate burden of persuasion of the existence of
retaliatory discrimination rests with the complainant. Hence,
the complainant must establish that the reason proffered by the
employer is not the true reason. The complainant may persuade
directly by showing that the unlawful reason more likely
motivated the employer or indirectly by showing that the
employers' referred explanation is not credible. Shusterman
v. Ebasco Servs., Inc., 87-ERA-27 (Sec'y Jan. 6, 1992);
Larry v. Detroit Edison Company, 86 ERA-32 (Sec'y June 28,
1991); Dartey v. Zack Co., 80-ERA-2 (Sec'y Apr. 25, 1983).
[PAGE 6]
ELEMENTS OF A PRIMA FACIE CASE
A prima facie case requires a showing sufficient to support
an inference of unlawful discrimination, but this burden is not
onerous. Texas Dept. of Community Affairs v. Burdine, 450
U.S. 248, 101 S.Ct. 1089 (1981). To establish a prima facie
case, the complainant must show
that he or she engaged in protected activity,
that he or she was subject to adverse action, and
that the employer was aware of the protected activity when
it took the adverse action.
Larry v. Detroit Edison Company, 86-ERA-32 (Sec'y June 28,
1991). The complainant also must present evidence sufficient to
raise the inference that the protected activity was the likely
reason for the adverse action. Direct evidence is not required
for a finding of causation. The presence or absence of a
retaliatory motive is provable by circumstantial evidence, even
if witnesses testify that they did not perceive such a motive.
Ellis Fischel State Cancer Hosp. v. Marshall, 629 F.2d
563, 566 (8th Cir. 1980), Cert. denied, 450 U.S. 1040, 68
L.Ed.2d 237, 101 S.Ct. 1757 (1981). AccordMackoviak
v. Univ. Nuclear Systems Inc., 735 F.2d 1159, 1162 (9th Cir.
1984).
Mr. Bonanno has failed to establish a prima facie showing of
discrimination within the meaning of the Act and his claim is
hereby dismissed.
There is no issue of a protected activity in this matter.
Mr. Bonanno refers to a 1991 incident that was ultimately
dismissed, and S&W recognize this as a protected activity within
the Act that could result in an action, under different
circumstances.[3]
There are two (2) basic arguments by S&W that I accept. The
first being the length of time between the 1991 incident and the
claimed retaliation (1995) by a different employer. The record
is clear that S&W was not the employer at the time of the 1991
incident.
The second argument is that Mr. Bonanno has brought forth no
evidence to establish any relationship between the 1991 incident
and his nonpay status while attending diesel school and the
[PAGE 7]
following two (2) weeks before being employed by S&W. No claim
or allegation was made by Mr. Bonanno that either the schooling
dates or the dates of the "outage" were set or adjusted to cause
him a loss in pay or other inequities. His complaint is that
there was a conspiracy to mislead him that he would go to work as
soon as the diesel school was complete. However, Mr. Bonanno
produced nothing in writing to this effect and no witnesses
substantiated his claim. In fact two (2) witnesses testified to
the contrary. Mr. N. Barile (TR 42-43) and Mr. Mallett (TR 81-
82).
In testimony, both Mr. N. Barile and Mr. Mallett testified
at the time of initially talking with Mr. Bonanno, and his
acceptance of attending school, neither of them knew of the
specific dates for the forthcoming outage. They both further
stated that they were not in the decisional process for
determining such date(s). Therefore, it is clear from the
evidence that they did not know the forthcoming outage dates and
accordingly they could not advise Mr. Bonanno of such date(s).
In this connection, Mr. Bonanno never really claims or
disclaims that either Mr. Mallett, Mr. J. Barile or Mr. N. Barile
knew of such outage date(s). He simply states that he was
advised by them that he would go to work when the diesel school
ended. He then alleges a conspiracy between, S&W, NNECO, and NU
in an adverse action. (The adverse action being that he neither
worked or received pay for the one (1) week he attended diesel
school or the two (2) weeks after he completed diesel school).
From reviewing the entire file, and the testimony at the
hearing, I can find neither conspiracy or an adverse action
against Mr. Bonanno by S&W, NNECO or NU. Mr. Bonanno agreed to
attend the diesel school without compensation. Mr. Bonanno was
not an employee at that time and did not become such until April
3, 1995. (RX 35). This was the first day of the outage and he
was included in the first group hired for the outage.
Further, no proximity exists between Mr. Bonanno's perceived
harm and his earlier protected activities sufficient to raise an
interference of a retaliatory motive. Mr. Bonanno filed both his
prior NRC and DOL claims in 1992 based on an industrial accident
that occurred in 1991. According to Mr. Bonanno, NNECO and S&W
were motivated to retaliate against him because he filed these
old claims and lost. But Mr. Bonanno worked at Millstone for
various maintenance service contractors since then -- in 1992,
1993, and 1994 -- without incident. Mr. Bonanno is at a loss to
explain why, after all these years, NNECO and S&W would suddenly
[PAGE 8]
become imbued with a retaliatory motive and seek retribution for
a matter raised years ago, in which S&W played no part and in
which NNECO was fully exonerated of any wrongdoing.
Mr. Bonanno also claims discrimination because of the fact
that Mr. Schulze was paid while attending the diesel school and
he was not. I note that even in Mr. Bonanno's March 21, 1996
Argument (ALJX 16) that he clearly understood and agreed that he
would not be paid while attending said schooling. S&W's brief
(ALJX 15) agrees that Mr. Schulze was paid while attending
school, but explains that he was an employee of S&W at that time
and returned to the maintenance shop daily to perform certain
chores. I find this reasonable and, therefore, non
discriminatory.
Accordingly, since Mr. Bonanno has failed to establish any
discriminatory or retaliatory act, he has failed to establish a
prima facie case of showing that the agreed to 1991 protected
activity motivated any adverse, discriminatory or retaliatory
action in 1995.
Therefore, the complaint of Mr. Thomas Bonanno IS HEREBY
DISMISSED.
FRANK D. MARDEN
Administrative Law Judge
Dated: April 25, 1996
Camden, New Jersey
FDM/hb
NOTICE: This Recommended Order and the administrative file
in the matter will be forwarded for review by the Secretary of
Labor, Room S-4309, 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. Part 24 and 1978. See 55 Fed.
Reg. 13250 (1990).
[ENDNOTES]
[1] The following references will be used herein: TR for
transcript, CX for Claimant's exhibit, RX for Employer's exhibit
and ALJX for Administrative Law Judge's exhibit.
[2] Mr. Paul Privizzini, NNECO's General Supervisor of Unit 3
Maintenance, augments NNECO's in-house mechanical maintenance
staff with S&W millwrights. Mr. John Senkewitcz, an S&W
employee, serves as area foreman for those S&W millwrights
augmenting Unit 3 maintenance.
[3] Mr. Bonanno extensively discusses the 1991 incident and
protected activity at pages 2-5 of his March 21, 1996 brief (ALJX
16). NO comment or discussion is included herein since S&W
agrees that such incident did occur. See pages 6, 7, 25, and 26.
(ALJX 15).
