DATED:
CASE NO. 86-SWD-2

In the Matter of

GUY HELMSTETTER
    Complainant

    v.

PACIFIC GAS & ELECTRIC COMPANY
    Respondent

Guy Helmstetter
2129 Randolph Drive
San Jose, California 95128
    In Pro Per

Maureen L. Fries, Esq.
Pacific Gas & Electric
77 Beale Street
San Francisco, California 94106
    For the Respondent

Before: ALEXANDER KARST
    Administrative Law Judge

   Guy Helmstetter filed a complaint on June 16, 1986, under the employee protection provisions of the Solid Waste Disposal Act (SWDA) 42 USC § 6971(a)(1982). He alleged that his employer, respondent Pacific Gas & Electric (hereinafter PG&E) discriminated against him because PG&E resented his attempts to promote compliance with environmental protection laws.

   The matter was initially heard by Administrative Law Judge Matera who found that all the alleged acts of discrimination save a disciplinary letter were time barred, and granted summary judgment against complainant on the disciplinary letter charge. The Secretary of Labor affirmed the time bar rulings, but remanded for a hearing on the disciplinary letter. The Secretary indicated that the key questions to be resolved are whether the disciplinary letter constituted a harm to complainant, and whether the placing of the disciplinary letter in complainant's personnel file was a result of discriminatory motive. The Secretary added that on remand I should decide whether PG&E's reasons for writing the disciplinary letter were pretextual as alleged. The Secretary also required findings on whether the letter of reprimand became a permanent part of complainant's file; whether Mr. Helmstetter has the right to have it removed from the file for good behavior after one year; and whether the disciplinary letter was actually removed at the employee's request after one year. The Secretary's Decision and Order of Remand, pp. 5-6. Claimant alleges that the letter was pretextual. He says this is shown by the failure of the company to investigate the allegations of the vendor before issuing an apology to the vendor and a warning to complainant, the lack of notice to or an opportunity for complainant to defend himself, and the "accusatory manner" in which complainant was informed of the discipline.

   Pursuant to the Secretary's Remand, and mindful of her admonition that "... evidence about Respondent's actions predating the disciplinary letter may be admissible on remand if relevant to Respondent's motive for the disciplinary letter", (Id. at 7) a hearing was held. The complainant, who previously had counsel, appeared pro se, represented that while he is not a licensed lawyer he graduated from a night law school, and indicated that he wished to proceed pro se.

   Mr. Helmstetter, 53, described himself as a longtime "active conservationist and environmentalist". Cl Hrg Brief, p. 1. It appears that environmental issues are the principal focus of his life. Prior to coming to PG&E he worked as a runner in the securities business, a taxi driver, construction worker, and a bowling alley attendant, and he owned a bar and restaurant. TR 206. He started with PG&E in 1980 as an attic insulation inspector, an entry level job. He was quickly promoted to conservation specialist, then to solar coordinator, and in 1984

became a regional environmental supervisor, a newly created temporary position at pay level 4. His supervisor led him to believe that when his temporary environmental supervisor position became a permanent one it would probably be level 7 or 8, and that he would get it. But about the time his temporary position became permanent in 1985 this supervisor left. Contrary to Mr. Helmstetter's expectations, the permanent job was assigned pay level 6, and several other candidates were also considered for it. The job was offered to Mr. Helmstetter, and he was urged to take it with the promise that if he took it, an effort would be made to raise it to pay level 7. However, Mr. Helmstetter, apparently feeling that PG&E breached its promise, refused to interview for the job and eventually turned it down ostensibly because of the lower pay level. The job was then filled by someone else at level 6 and continues to be so. Cl 5, pp. 12-15. Mr. Helmstetter was transferred to the Marketing Department where he came from, at the same pay level he had when he was environmental supervisor, i.e. level 4. TR 221-222. To help him in the new position in Marketing, he was given a computer for his home, and his salary was adjusted so he could buy a car which he needed in his new marketing job. TR 223. After he was transferred out of the environmental department, he continued to offer unsolicited "suggestions" to his former department, and appears to have taken umbrage when his "suggestions" were not adopted.

   In January 1986, some six months after his transfer to Marketing, Regional Manager Radford received a letter from a PG&E vendor named Dannenberg who complained that Mr. Helmstetter, while attempting to purchase some energy saving devices valued at around $50.00, was arrogant and quarrelsome. Jt Exh 2. Two weeks later, on January 24, Mr. Helmstetter was asked to meet with two of his supervisors, Wing and Mejia. The Dannenberg letter was one of the subjects discussed at the meeting and Mr. Helmstetter was apparently admonished to avoid confrontations when representing PG&E. Also discussed were Mr. Helmstetter's complaints about his low performance rating and that his last "suggestion" to the environmental department was ignored. Cl 6. The specific "suggestion" discussed at the January 24 meeting was a 25 page memo to his former boss in the environmental department, which among other things, contained Mr. Helmstetter's uninvited "review" of PG&E's environmental violations, and a 15 page single spaced exposition of Mr. Helmstetter's view of environmental laws. Mr. Helmstetter warned that PG&E's

environmental management may go to jail if they ignored his suggestions and continued not to comply with the law as he saw it. Cl 6. The meeting on January 24, 1986 appears to have been very unpleasant.

   Three months after the January 24 meeting, on April 21, 1986, Mr. Helmstetter wrote to Mr. Dannenberg that Dannenberg's complaint of January 8, 1986 was "libelous", that it "impuned" [sic] his reputation, caused him "professional embarrassment", "personal anguish", "caused a strained relationship... between [his] superiors and [him] and caused [his] career with PG&E to languish". The letter demanded an apology and threatened a lawsuit if he did not get it. Jt Exh 3. Mr. Helmstetter had the letter typed by a company secretary. It was copied to Mr. Radford, and blind copied to four other PG&E executives. When his supervisor Mejia learned of the letter, he concluded that it improperly involved PG&E, and he personally retrieved the letter from Mr. Dannenberg's office before it was opened. TR 70. On May 21, 1986, Mr. Helmstetter received a disciplinary letter for what his superiors viewed as insubordination in writing the threatening letter to Dannenberg. Jt Exh 4, TR 225.

   Upon receiving the disciplinary letter, Mr. Helmstetter became physically and emotionally ill, and saw a psychiatrist at his employer's suggestion and cost. TR 189. The psychiatrist concluded that senile Mr. Helmstetter is fit enough to continue working, he suffers from personality disorders, has no family or friends, is emotionally rigid, moralistic, self-righteous, and contentious, and suffers from "TMJ syndrome" caused by stress. Cl 16. He apparently ground his teeth so severely that he lost them. Mr. Helmstetter also saw a company psychologist, and had two long meetings with the Regional Manager Radford wherein Mr. Helmstetter had an opportunity to explain all of his environmental concerns and problems and the Dannenberg incident. TR 190-191.

   Mr. Helmstetter filed this action in June 1986. He also has pending a California civil action against PG&E for unfair treatment or discrimination. In a separate pending action against PG&E before the Department of Labor he alleges that PG&E is treating him disparately in violation of law by failing to provide him with information he is seeking in connection with his personal "investigation" of a PG&E oil spill which he has conducted after his transfer to marketing.

   In this case, Mr. Helmstetter alleges that he was involuntarily transferred out of his environmental job because PG&E resented his pro-environmental work, and that his disciplinary letter, lack of promotions, harassing meetings, and the ignoring of his environmental "suggestions" are all part of concerted effort by PG&E to thwart, punish and harass him for his pro-environmental activities.

   Pursuant to the order of the Secretary of Labor I have reviewed the record and weighed the evidence presented and make the following findings on the issues directed in the remand order:

   1. Did the disciplinary letter constitute harm to Complainant?

    No. While it is clear that Mr. Helmstetter was emotionally traumatized by it, I find that he was not otherwise harmed by the disciplinary letter. He was not fired or demoted in any way. Complainant attempted to show that in 1988 he received a low performance rating and was denied the opportunity to have his name included on a published paper. However, there is no evidence before me to show that the people responsible for these alleged slights had seen or were even aware of the disciplinary letter. What evidence there is, is clearly to the contrary. RT 110:1-8. Mr. Helmstetter has shown nothing except his suspicions that he is unfairly treated and persecuted for his environmental zeal.

   2. Was the disciplinary letter placed in Complainant's file as a result of a discriminatory motive?

    No. I find that the disciplinary letter was motivated by proper business reasons and was not a pretext to punish Complainant for his environmental activities. I find PG&E's policy to have its employees avoid quarrels with customers and suppliers to be a proper policy, and I find PG&E's handling of the chain of events following Dannenberg's complaint within bounds of propriety. PG&E did nothing to discipline Mr. Helmstetter for the Dannenberg incident, other than tell him to avoid confrontations in the future. There is credible testimony that Mr. Radford and other supervisors took little note of the Dannenberg letter because Dannenberg had a history of making complaints for little or no reason. Cl 5, p. 40.

   I find no reasonable basis for Mr. Helmstetter's suspicion that that January 24 meeting was designed to harass him, and conclude that while the meeting was admittedly not well conducted, it was in conception an appropriate method to instruct an employee to conduct himself politely when on company business. I further find that Mr. Helmstetter acted improperly in making a libel threat to Dannenberg in a way clearly calculated to give it some of official PG&E trappings and to involve PG&E without at least some preliminary discussion and guidance from his superiors or the PG&E legal department. Mr. Helmstetter's actions strike me as particularly improper in light of his legal training.

   I find the disciplinary letter to Mr. Helmstetter to have been appropriate discipline for the libel letter, and not a pretext to harass Mr. Helmstetter for his environmental activities. Indeed, PG&E's disciplinary letter appears to me to be a rather measured discipline against an employee who, after being admonished, without warning to or discussion with PG&E. threatened a supplier with libel for a trivial complaint.

   3. Is PG&E's alleged failure to investigate the allegations of Mr. Helmstetter's rudeness to Dannenberg before apologizing to Dannenberg evidence of improper motive for issuing the disciplinary letter?

   No. It appears very clearly from the record before me that the Dannenberg complaint was given little credence or importance by everyone except Mr. Helmstetter, and that no adverse consequences to Mr. Helmstetter would have followed had he acted appropriately under the circumstances. It is significant that for 3 months after the January 24 meeting no steps were taken to discipline Mr. Helmstetter in anyway for the Dannenberg incident. I conclude that the Dannenberg complaint was essentially forgotten by his superiors until Mr. Helmstetter threatened libel. In my view an "investigation" of Dannenberg's complaint under the circumstances would have been excessive and superflous for the minor complaint. Moreover, Mr. Radford apparently did go to the trouble of ascertaining from Mr. Helmstetter's supervisors that Mr. Dannenberg was of dubious credibility, and Mr. Helmstetter was given an opportunity to explain what really happened in the January meeting. Cl 5, pp. 40-41.

   In addition, contrary to Mr. Helmstetter's assumption,

there is no showing that Radford conceded the impropriety of Helmstetter's conduct toward Dannenberg. Radford's letter to Dannenberg simply acknowledged the complaint and said it was being referred for appropriate handling. That strikes me as a routine answer to a complaint and not an apology conceding an employee's misconduct.

   4. Was the alleged lack of notice to Mr. Helmstetter, or denial of opportunity "to defend himself", evidence of improper motive for the disciplinary letter?

   No. I find that Mr. Helmstetter was in fact given notice and had ample opportunity "to defend himself". The January 24 meeting wherein Mr. Helmstetter was told of the Dannenberg complaint was appropriate notice, and at that meeting and at two later ones with Mr. Radford himself, Mr. Helmstetter had an opportunity to tell his superiors what really happened. In fact he did so. I also note that for a prodigious memo writer like Mr. Helmstetter the most appropriate way to "defend himself" would have been to simply write a memo to his supervisors after the January 24 meeting setting forth what happened with Dannenberg.

   5. Was the allegedly "accusatory manner" in which Complainant was informed of the letter evidence of improper motive for issuing it?

   No. I find no evidence, other than Mr. Helmstetter's own feelings, that the manner in which he was advised that the letter of discipline was being placed in his file was "accusatory".

   6. Did the letter of reprimand become a permanent part of Mr. Helmstetter's file?

   No. PG&E disciplinary letters are customarily removed after one year. PG&E stipulated to remove the letter in the course of the earlier hearing before Judge Matera, and the letter was in fact removed from Mr. Helmstetter's file in January 1987. TR 259, 87.

   By reason of the above findings, I conclude that

complainant's allegations against PG&E have not been proven, and the complaint should be dismissed.

       ALEXANDER KARST
       Administrative Law Judge

Dated: JUL 18 1991
San Francisco, California