Bonanno v. Stone & Webster Engineering Corp., 96-ERA-7 (ALJ July 12, 1996)

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USDOL/OALJ Reporter
Bonanno v. Stone & Webster Engineering Corp., 96-ERA-7 (ALJ July 12, 1996)

Dated: July 12, 1996

Case No. 96-ERA-7

In the Matter of

THOMAS M. BONANNO

Complainant

STONE & WEBSTER ENGINEERING CORP.

AND

NORTHEAST UTILITIES d/b/a/ NORTHEAST NUCLEAR ENERGY CO.

Respondents

Thomas M. Bonanno, pro se

Michael McInerny, Esq.
Boston, Massachusetts

For Stone and Webster

Charles C. Thebaud, Esq.
Timothy P. Matthews, Esq.
Washington, DC

For Northeast Utilities

Before: JEFFREY TURECK
Administrative Law Judge

RECOMMENDED DECISION AND ORDER

This is a case arising under the provisions of the Energy Reorganization Act of 1974 as amended, 42 U.S.C. §5851 ("ERA" or "the Act"), and the applicable regulations at 29 C.F.R. Part 24. A complaint was filed with the Department of Labor on January 5, 1996 by Thomas M. Bonanno ("complainant"), who alleged that he was laid off on December 7, 1995 from his job at Northeast Utilities' Millstone Station ("Millstone") in retaliation for a complaint he filed with the Nuclear Regulatory Commission in 1992. Complainant seeks damages for lost wages totalling $20,136. The complaint was investigated by the Department of Labor's Employment Standards Administration, Wage and Hour Division, which concluded that the layoff was not related to the

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1992 NRC complaint. Complainant appealed this determination and requested a hearing in a timely manner. The hearing was initially scheduled to be held in Norwich, Connecticut on March 26, 1996, but was continued at the joint request of the parties. The hearing finally was held on June 18, 1996 in New London, Connecticut.

At the hearing, following the presentation of the complainant's case, respondents moved for dismissal, contending that the complainant had not established a prima facie case. I issued a bench decision recommending that respondents' motion be granted. This Recommended Decision and Order formalizes that bench decision.

FINDINGS OF FACT AND CONCLUSIONS OF LAW¹

Background

Complainant is a 44 year old high school graduate who works as a millwright. He is a member of Local 24 of the United Brotherhood of Carpenters and Joiners ("Union"). He is also a Viet-Nam veteran. Since 1980, he has been employed on a temporary basis at Millstone approximately nine or ten times for periods varying from about one month to as long as six months during outages at the facility (TR 50; RX 3). When he works at Millstone, he is not employed by Northeast Utilities. Rather, he is employed by a contractor. According to the complainant, hiring of millwrights and carpenters at Millstone is done through the Union, which provides the number of craftsmen requested by the contractor.

On April 8, 1991, while working at Millstone for C.N. Flagg Co., complainant received an injury to his head due to what he alleges was tooling which was known to be malfunctioning (TR 51-54). Because he was not wearing a hard hat when this injury occurred, he was reprimanded by Flagg.² When this matter was not resolved to his satisfaction, he filed a complaint with the NRC in February, 1992 accusing Northeast Utilities of willful safety negligence and misconduct (TR 53-54). No action was taken against Northeast Utilities by the NRC due to this complaint.

Subsequent to filing this complaint with the NRC, complainant was hired to work at Millstone on five different occasions. He worked for Fluor Contractors from April to approximately December 1992; from July, 1993 to October, 1993, for either Flagg or Stone and Webster; and January to May, 1994, April 3 to June 2, 1995, and October 23 to December 7, 1995 for Stone and Webster. (RX 3; TR 56-57). He does not contend that he was ever denied employment at Millstone or laid off from a job there in retaliation for filing the 1992 complaint

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with the NRC until the layoff on December, 7, 1995 (TR 63-65).³ Complainant was out of work from December 7, 1995 through April 8, 1996, when he became employed by O & G Construction Company.

Discussion

Initially, in cases brought under the ERA and other similar statutes protecting whistleblowers, it is the complainant's burden to make a prima facie showing that:

1. The complainant engaged in conduct protected by the applicable statute;

2. The party charged with unlawful discrimination knew of the employee's protected activity;

3. The complainant was subjected to adverse action; and

4. The adverse action was motivated, in whole or in part, by the employee's protected activity.

See, e.g., Dartey v. Zack Co., 82-ERA-2 (April 25, 1983); McCuiston v. TVA, 89-ERA-6 (Nov. 13, 1991); see also Mackowiak v. University Nuclear Systems, Inc., 735 F.2d 1159 (9th Cir. 1984). If the complainant can establish each of these elements, then the burden shifts to the employer to articulate a legitimate, non-discriminatory reason for its action. I find that the complainant has failed to establish the last of these elements, that the adverse action was motivated in any way by his protected activity.

The respondents concede that the complainant's 1992 complaint to the NRC constitutes protected activity, and that the December 7, 1995 layoff is an adverse action. In addition, for the purposes of considering respondents' motion to dismiss, I will presume that the second element--that the parties charged with unlawful discrimination knew of the employee's adverse action--has been established, since it is not unreasonable considering complainant's litigation history with the respondents to presume that most of respondents' supervisory employees were familiar with the fact that complainant filed a complaint with the NRC in 1992. That leaves only the last element to be established in order for the complainant to meet his prima facie burden.

However, complainant has produced absolutely no evidence to establish that he was laid off on December 7, 1995 in retaliation for the 1992 NRC complaint. For one thing, the NRC complaint was filed so long ago that it cannot be presumed without further evidence that it played a role in claimant's layoff. In addition, complainant does not contend that Stone and

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Webster's layoff of eight of its 20 millwrights and transfer of two others on December 7, 1995 was for anything other than legitimate business reasons.⁴ Rather, it is complainant's contention that he was selected as one of the eight millwrights laid off on December 7, 1995 in retaliation for the 1992 NRC complaint; and to show that his layoff was retaliatory he contends that Stone and Webster violated its own affirmative action policy for Viet-Nam era veterans by laying him off prior to laying off non-veterans. According to complainant's testimony, which I accept as true for purposes of the motion to dismiss, at least four non-veteran millwrights--Jeffrey Senkewitcz, Charles Mrowka, Edward Gencarelli, and William Shallcross--were not laid off on December 7, 1995.

However, complainant's argument fails completely; for Stone and Webster's affirmative action policy for Viet-Nam era veterans did not apply after December 31, 1994 (see CX 3, at p. 57). Moreover, even when it was in place, it did not require the company to retain veterans as opposed to non-veterans when implementing layoffs (id.; see also CX 2). The affirmative action policy merely required it to treat veterans fairly.

Other than this contention regarding his status as a veteran, complainant does not even have a tenable theory to support his position that he was laid off in retaliation for his 1992 complaint to the NRC. He does not have any idea how it was determined which employees were laid off or who actually made that determination. He does not even know whether that decision was made by Stone and Webster or Northeast Utilities, or both acting in concert (TR 78). Instead, the record shows that complainant has been hired to work at Millstone on five separate occasions since he filed the NRC complaint; that he was one of only two people sent at Stone and Webster's expense to a lengthy training course to improve his supervisory skills; and that all of his previous layoffs from employment at Millstone were legitimate layoffs due to lack of work.

Therefore, I find that complainant has failed to establish that his layoff on December 7, 1995 was related in any way to the complaint he filed with the NRC in 1992, and he has failed to meet his prima facie burden of proof. Therefore, it is recommended that this complaint be dismissed.

RECOMMENDED ORDER

JEFFREY TURECK

Administrative Law Judge

[ENDNOTES] ¹Citations to the record of this proceeding will be abbreviated as follows: CX--Complainant's Exhibit; RX--Respondents' Exhibit; TR--Hearing Transcript.

²This reprimand was eventually rescinded (TR 105).

³Complainant did file an earlier complaint against the respondents contending that he was discriminated against by not receiving a salary while attending a training course paid for by Stone and Webster. An Administrative Law Judge recently recommended that this claim be dismissed.

⁴The rest of the millwrights were laid off or transferred about three weeks later. See TR 80-82.