U.S. Department of Labor Administrative Review Board
200 Constitution Avenue, N.W.
Washington, D.C. 20210
ARB CASE NO. 97-031
ALJ CASE NO. 96-ERA-13
DATE: November 25, 1997
In the Matter of:
THOMAS ABRAHAM,
COMPLAINANT,
v.
LAWNWOOD REGIONAL
MEDICAL CENTER,
RESPONDENT.
BEFORE: THE ADMINISTRATIVE REVIEW BOARD
FINAL DECISION AND ORDER
The Administrative Law Judge (ALJ) submitted a Recommended
Decision and Order (R. D. and O.) in this case under the Energy Reorganization Act (ERA),
as amended, 42 U.S.C. § 5851(a) (1994), recommending that the complaint be
dismissed. The record in this case has been thoroughly reviewed. We find that it fully
supports the ALJ's findings and conclusions that Complainant Thomas Abraham (Abraham)
was not fired for engaging in ERA protected activities, but for his behavior towards another
employee, R. D. and O. at 7. Boschuk v. J. & L. Testing, Inc., ARB Case No.
[Page 2]
97-020, ALJ Case No. 96-ERA-16, ARB Fin. Dec. and Ord., Sept. 23, 1997, slip op. at 1-2;
Nickerson v. Corrpro Companies, Inc., ARB Case No. 97-030, ALJ Case No. 96-TSC-9, ARB Fin. Dec. and Ord., Jun. 30, 1997, slip op. at 1-2; Remusat v. Bartlett
Nuclear, Inc., Case No. 94-ERA-36, Sec. Fin. Dec. and Ord., Feb. 26, 1996, slip op.
at 2; Stockdill v. Catalytic Industrial Maintenance Co., Inc., Case No. 90-ERA-43, Sec. Fin. Dec. and Ord., Jan. 24, 1996, slip op. at 2.
1 The R. D. and O. at 5 and
8 incorrectly states Abraham's termination date as August 15, 1996, rather than 1995.
2 Burgin did not
testify at the hearing. By that time, he was no longer employed by Lawnwood, having lost his job due
to reorganization of departments. Burgin deposition, CX 19 at 8. His deposition is consistent with
Hammer's testimony, T. 266-333, regarding the August 9 incident.
3 Although
Shadani's request precipitated the events leading to Abrahams's discharge, one of the vagaries of this
case is Shadani's inability at the hearing to recall the failed test or his request that Hammer pursue his
lack of notification thereof. T. 162, 169.
4 Riley, rather than
Stouffer, suspended Abraham because Stouffer was absent and Riley believed immediate action was
warranted. T. 451-52.
5 Abraham's
complaint to HRS resulted in an investigation by its Office of Radiation Control, which determined that
three of his twenty-one allegations were either partially or fully substantiated. CX 4, CX 9, T. 437-38.
6 Abraham's
discharge was viewed as a matter of management discretion and prerogative by the Florida
Unemployment Compensation Appeals Bureau in awarding him unemployment compensation benefits.
. . . The law provides that a claimant who has been discharged for misconduct
connected with the work shall be disqualified from receiving benefits.
"Misconduct connected with work" means a willful or wanton act
or course of conduct in violation of the worker's duties and obligations to the
employer.
The evidence in this case shows that the claimant was discharged following an
incident which occurred approximately August 8, through 10, 1995. In cases
of misconduct, it is incumbent upon the employer to show by a preponderance
of the evidence that the claimant has committed an act or engaged in a course
of conduct meeting the above definition. That burden has not been met. While
it is evident that there was a problem between the claimant and managers of
another department, the evidence presented is not sufficient to establish that the
claimant acted in a manner that was so inappropriate or egregious as to conclude
misconduct. While the claimant might have been more calm in dealing
with the individuals, the fact of the matter is he was involved with a patient at
the time this incident was being discussed with him. Testimony was presented
that the claimant is normally a serious individual and it is apparent he resented
the interruption during the workday. While the employer may have made a
sound business decision in terminating an employee with whom they were
dissatisfied, they have simply not shown misconduct on his part.
Notice of Decision of Appeals Referee, Feb. 27, 1996, CX 24 at 2 (emphasis added).
7 Abraham's reliance
on Consolidated Edison Co. of New York v. Secretary of Labor, 673 F.2d 61 (2nd Cir.
1982), is misplaced. Unlike the instant case, the complainant here was able to demonstrate that his
protected activities played a role in his discharge and a coworker supported his denial of threatening
another employee. Consolidated Edison, 673 F.2d at 63.
8 According to
Riley, the decisional process was as follows:
[Abraham] needed to be terminated immediately . . . . I chose to have Marjorie
[Bruggink] go and tell him to go on home and Mr. Stouffer would terminate him
on Monday. But that he was terminated . . . . That Thomas was through and
he would not be returning . . . . [Stouffer's role was] to inform Mr. Abraham
that he was terminated and to find out if there was some wild explanation as to
why he shouldn't be -- like he wasn't there that day. I mean something
substantial.
T. 454-56.
9 Stouffer referred
to Riley's action as a suspension. "In my mind, you [sic] being suspended is being suspended until
my return. It's a termination. Maybe it's semantics, but in my mind, it's -- you were suspended from
employment . . ." T. 382. He believed that he had the authority to overturn Riley's action. T.
432, 434, 443.
10 The only time
Stouffer could recall discussing quality matters with Abraham was during his probationary evaluation
that spring. T. 398, 401-02, 425-26, 436. However, Stouffer was aware upon his return that Abraham
had threatened to file a complaint with the Florida HRS after his suspension by Riley. T. 393. At his
meeting with Stouffer, Abraham informed him that he had called HRS, but Stouffer could not recall
whether Abraham had related that information before or after being informed of his termination. T. 396-97. In any event, the record is clear that Abraham was terminated for the Hammer incident, not for his
subsequent action informing HRS of alleged problems in his unit.