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| October 3, 2008 DOL Home > OALJ Home > Whistleblower Collection |
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USDOL/OALJ Reporter Office of Administrative Law Judges 211 Main Street - Suite 600 San Francisco, California 94105
(415) 744-6577
Dated: MAR 6 1992 In the Matter of
PAULA D. NATHANIEL v.
WESTINGHOUSE HANFORD COMPANY Appearances:
Thad M. Guyer, Esq.
Elaine Dodge, Esq.
Charles K. Macleod, Esq.
Gregory A. Edmiston, Esq. [Page 2]
Before: JAMES J. BUTLER
Statement of Case. This "whistleblower" action was brought by the employee against her employer for what she perceived to be certain proscribed discriminatory practices directed toward her in retaliation for her refusal to rescind, upon the admitted request of her immediate manager, an inter-office "message" to the supervisors of a fellow worker she observed igniting a cigarette in a plant area which the reporting employee mistakenly believed was a restricted zone where smoking was prohibited because the danger of a hydrogen explosion was thereby presented. It should be noted throughout the following discussions that upon the motion of employee and over the objection of employer, it was ruled that employee did not have the burden of showing that there was an actual risk in the area involved created by the lighting of a cigarette. It was only necessary that she show good faith in making the report that there was a real danger of explosion so presented. There will, however, be references to the presence of an actual danger involved. Pertinent Statutes and Regulations. Complainant, Paula D. Nathaniel (employee) in her complaint against Westinghouse Hanford Company (employer) brings her action under the protection provisions of the Resource Conservation and Recovery Act of 1976, 42 U.S.C. section 6971 (formerly known as the "Solid Waste Disposal Act"); the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, 42 U.S.C. section 9610 (commonly known as "Superfund"); and the Clean Air Act of 1977, 42 U.S.C. section 7622. See Amended Complaint filed here on October 23, 1991. All these statutes and the other therein identified are bound by the procedures found at 29 C.F.R. sections 24.1 to 25.9, the most pertinent parts of which provide: [Page 3] § 24.1 Purpose and scope.
[Page 4]
Glossary. The following is a partial vocabulary of specialized terms utilized in the testimony contained in the transcript of the hearing record (TR). 1. Nuclear magnetic resonance spectroscopy ("NMR"). Used to do structural elucidation of components, compounds, carbon, hydrogen compounds (TR 27). 2. Contract Laboratory Program ("CLP"). The mission of the Westinghouse Hanford laboratory was to become CLP certified under a tri-party (State of Washington, Department of Energy, and Westinghouse) to clean up environment at the Hanford site (TR 33). 3. SY tank farm. Part of the "2 west area" located in the 560-square-mile Hanford site some 25 miles from Richland. The SY tank farm has three tanks, one of which is "SY 101." The tanks are all buried underground approximately 7 feet from the surface. They vary in capacity from 500,000 to 1,000,000 gallons and store radioactive waste. The tanks are double shelled with both a primary and secondary layer and a steel-reinforced concrete outershell (TR 35). 4. A "burp" or tank venting episode. Team monitors gas expelled during a burp. Tank SY 101 has salt cake layer on it which is a mixture of concentrated aqueous organic components and radionuclides. Periodically the radionuclides go through a process with the organics (radiolytic process) where the organics in the aqueous form hydrogen gas. The hydrogen gas builds up on the bottom of the tank and causes the tank level to rise until the surface crust gives and the gas is expelled through the tanks ventilation system. The vents contain high-efficiency particulate filters (HEPA) through which the gas is vented into the atmosphere [Page 5] (TR 37-38). 5. Radiation Protection Technologist ("RPT" or "HPT"). Employees of Westinghouse who are charged with surveying other employees in and out of radiation zones (TR 41). 6. 3-CARE phone system. Westinghouse hotline phone extensions out at Hanford which allows you to dial 3 and C-A-R-E to anonymously report safety infractions which are immediately responded to and acted upon by the appropriate departmental managers at the earliest possible time (TR 65, 592-594, 599). 7. Employee Concerns. Part of Westinghouse Human Resources group which deals with, as the name implies, the concern of Westinghouse employees (TR 69, 444). 8. Spark Free one or Area. A zone or area with a potential for explosion where all sources of ignition are prohibited (TR 600). 9. Intrinsically safe equipment. That is equipment approved by a certifying agency as spark proof so as to be used in an explosive atmosphere - like for example Beryllium tools (TR 600). 10. Breach or break tank containment. Direct outside entry into the tank for monitoring purposes but does not include venting during a "burp" when containment always remains intact (TR 603). 11. Occurrences Notification Center. Westinghouse agency that complies and distributes both internal and external reports of all safety events that occur on site (TR 625-630). Some Background Facts. Employer has provided us some interesting background of its operation in Richland, Washington which are not at issue. Westinghouse Hanford Company (WHC) is a wholly owned subsidiary and business unit of the Westinghouse Electric Corporation. The Company is the operations and engineering contractor for the U.S. Department of Energy Field Office, Richland (RL) Hanford Site, a 560 square mile nuclear complex located near Richland in southeastern Washington State. The Department of [Page 6] Energy's Hanford operating and capital budget for fiscal year 1991 was approximately one billion dollars. Westinghouse Hanford Company's contract with the Department of Energy for Hanford expires in 1994. In March 1985, the Department of Energy announced its decision to consolidate eight onsite operating contractors to four. Westinghouse Electric Corporation was the successful bidder for the consolidated Operations and Engineering contract, assuming responsibility or operations on June 29, 1987. The defense materials production complex at Hanford consists of the N Reactor (recently ordered to be shut down), the Plutonium Uranium Extraction (PUREX) Facility, and the Plutonium Finishing Plant (PFP). Prinicpal products include plutonium and uranium compounds and plutonium metal which are shipped offsite for further processing. The Fast Flux Test Facility, a sodium-cooled fast reactor, provides an irradiation test environment for the advanced reactor development program, the space power program, and the nuclear fusion program. It is the world's most advanced fast reactor. Waste Management Safety operations receives, treats, and stores radioactive waste from the chemical processing plants and other site operations. Three major operations included in this area are the waste storage tank farms, the grout facility for low-level waste, and development of the Hanford Waste Vitrification Plant. The mission of WHC's operation is environmental remediation and restoration of the Hanford Nuclear Reservation site. This consists of a number of programs and projects directed at the cleanup of various portions of the site contaminated as a result of 45 years of nuclear operations. The cleanup also involves the decontamination and decommissioning of retired facilities. An array of service functions supports these programs, as well as all activities conducted by WHC and the other Hanford contractors, such as transportation, security and fire protection, utility and telecommunications, procurement, central stores, printing, mail, and mainframe and personal computer operations support.
[Page 7] Westinghouse Hanford Company has over 9,800 employees including approximately 3,000 bargaining unit employees represented by the Hanford Atomic Metal Trades Council (HAMTC). Westinghouse Hanford Company has a separate agreement with the Hanford Guards Union (HGU) covering an additional 300 employees. This case involves a rotational scientist, Ms. Paula Nathaniel, who started work with WHC on June 7, 1989. Ms. Nathaniel had a Bachelor of Science degree in chemistry from Colorado State University and was hired by David Dodd, Manager, Analytical Chemistry, to work in the Analytical Chemistry Department as a rotational scientist. Ms. Nathaniel's position was nonbargaining unit and classified as exempt. Ms. Nathaniel's work location was the weather station (Bldg. 622 RG) located in the 600 Area of the Hanford Nuclear Reservation. During 1990 at various times Ms. Nathaniel had been assigned to the 200 Area tank farms to monitor "burps" of Tank 241-SY-101. These "burp" watches consisted of 12 hour shifts during limited time periods when the tank was expected to "burp." Statement of Pertinent Facts. On October 22, 1990, employee Nathaniel was assigned to the 12 midnight to 12 noon shift monitoring the underground Tank 241-SY-101. The watch was for the scheduled "burp" of hydrogen gas from the storage tank. Testimony disclosed that this venting was confined to the primary tank containment systems, but not to the open air outside that immediate area. It was employee's job to monitor and measure hydrogen in the containment system by use of a gas chromatograph. Employee was stationed in the 241-SY-271 area instrument building inside a known radiological area. This building had but one room a single door and no windows. It was located some 120 feet from the tank being monitored. The measuring instruments utilized by employee were located within the instrument building. A Health Physics Technician (HPT) named Becky Reid was also stationed in the instrument building with employee Nathaniel. All workers in this area were required to have special work permits and wear protective clothing including gloves, boots and hats and follow express rules for their personal safety in the radiological zone in which they worked. Around 2:00 a.m. employee Nathaniel deemed it necessary to [Page 8] leave the instrument building to go to the nearby Evaporator Building which was located outside the radiological area. Her purpose was to use the restroom and get something to eat. No smoking, eating, or drinking was allowed within the radiological area due to the potential dangers of the ingestion of radionuclides. It was the duty of the HPT to survey other employees leaving the radiological area to insure there was no radiation contamination on their clothing which could endanger the worker and others not protected. This personal survey is carried out by means of an instrument which detects radionuclides. Apparently, this inspection is carried out on this particular tank farm at the entrance to the Evaporator Building. In any event, when Nathaniel asked the HPT to survey her out at the exit point, the HPT refused to leave her post where she was, like Nathaniel, monitoring the "burp" at the instrument building. This was not the first time a controversy between HPT Reid and Nathaniel had arisen concerning the duties of an HPT owed a "scientist" like Nathaniel. Despite the risk of surveying herself out of the radiological zone in violation of the rule against such practice, Nathaniel nevertheless did so and entered the Evaporator Building. Before she did so, however, Nathaniel says she saw HPT Reid light up a cigarette which would be a violation of the strict radiological safety rule against doing anything as already mentioned, that would pose a risk of potential ingestion of radionuclides, like eating, drinking and, of course, smoking. On Wednesday, October 24, 1990, some two days after the events of the night of October 22, 1990, Nathaniel, without first consulting her manager, Dave Dood, composed and caused to be sent an in-house "cc: Mail" message to her two managers, Dodd and his deputy Tom Lane, and to HPT Reid's two managers in a separate department, Jeff King and Steve Johnson. The captioned subject of this communication was: "HPT Responsibilities Within the 101 SY Instrument Building." Reading of this message (Complainant's Exhibit No. 7) will clearly disclose that Nathaniel was attempting to establish the special duty of HPT Reid toward her because of her medical condition (hypoglycemia). Her concern about Reid smoking in "the radiation zone" because of a possible explosive condition was obviously not the primary purpose of the message. If it was, and she really believed Reid was smoking in a "spark free" zone as she later testified, that would have been the identified subject of [Page 9] what surely would have been a much earlier or immediate message and alarm. It should be carefully observed at this juncture that Nathaniel only directed her October 24, 1990 message to the company managers involved in the controversy. Most certainly, she did not direct the message to any federal or state agency. That fact was expressly clarified in the pre-hearing conference at page 18 of the transcript of those proceedings held on June 6, 1991. The message, however, touched off these proceedings when Nathaniel's supervisor, Dodd, admittedly requested her to rescind the message. Besides the fact that Nathaniel went over and around her manager in dealing directly with the managers of another department, the message indicates that two employees, charged with the safety of others were, while on duty, in a hassle over their personal conduct toward each other. Most importantly, perhaps, the message, written by someone who appeared knowledgeable, could cause no small amount of false apprehension of immediate danger on the part of anyone in the public sector who did not know better. As it turned out, the area where HPT Reid was observed smoking was not designated as a "spark free" zone and the possibility of the danger of explosion from smoking in the area had been long since investigated by experts in the field and found to be danger free from that source. But one of the most interesting things in this whole chain of events is that at exactly 10:45 a.m. on October 24, 1990, a little less than two hours after Nathaniel sent her message about HPT Reid, the employer's 3-Care Safety Concern Hotline received an anonymous phone call that Reid was smoking in a no smoking area the night before. Unlike Nathaniel's message the same day, this call correctly spelled HPT Reid's name and fixed the day of the incident on October 23, 1990 instead of October 22, 1990. In addition, the caller apparently knew the area involved was a "no smoking area" instead of a "spark free" zone. It should also be noted that this report of an "unusual occurence", unlike Nathaniel's in-house message, is distributed to over 60 outside sources of concern, including 6 offices of the U.S. Department of Energy, various laboratories and several universities. The action taken on the occurence reported to the hotline is also fully documented as well as the times and dates of the action taken. (See Respondent's Exhibits Nos. 6 & 7.) [Page 10] It is seen that employer has its own internal "whistleblower" system which is widely externally distributed along with the reports of the appropriate action taken. Just why Nathaniel did not avail herself of this simple and most effective means to report what she now alleges was an immediate serious safety hazard remains unknown. The only possible conclusion is that Nathaniel did not intend her October 24, 1990 message to be a report of a safety incident or condition, but only a means to force HPT Reid to at last comply with her special need to be surveyed out of the area at her direction and, at the same time, somehow justify her unauthorized act of surveying herself out of the radiological area two days earlier. Something should also be said about the judgment Nathaniel had demonstrated at times in the past which may shed some light on the rationality of her impetuous decision to by-pass her manager and deal directly with the manager of another department concerning the duties of one of their people. First, the October 24, 1990 cc: Mail message is not the only such letter authored by Ms. Nathaniel and addressed to another department head without her manager's knowledge and permission. On May 25, 1990, some 122 days before the October 24, 1990 missile was launched from Nathaniel's only too handy keyboard, she excitedly fired a frantic almost hysterical shot at a supervisor of the employer's Purchasing Department and his staff. This letter must be read to appreciate the nature of its content (Respondent's Exhibit No. 5). Ms. Nathaniel's manager, Dave Dodd, was understandably not pleased when he became aware of the latter letter and a revised version, also prepared by Nathaniel. He thought they were both petty and unprofessional and told her so (TR 511). It should be noticed that the May 25, 1990 message, like the later October 24, 1990 one, reflects more anger and hostility toward her fellow-workers than concerns for their safety. Next, and much more frightening, Nathaniel is in the habit of carrying a loaded handgun on her person. She once tried to carry one aboard a commercial airplane but was apprehended by the security authorities at the San Diego airport. She was charged with a criminal offense to which she pleaded no contest. She was fined $300.00, placed on probation, and the handgun was destroyed. She does not recall whether she has carried a handgun onto employer's premises.
[Page 11] Following the smoking event on October 22, 1990, and the charges which bring us all to the instant inquiry, Nathaniel, sometime in December of 1990, participated in a high speed trip from Richland to Spokane, Washington when the vehicle she was driving reached speeds of 110 miles per hour. Although she believed a car was following her, she claims her first priority was to timely keep an appointment with a Mr. Backer of the U.S. Department of Labor. When she reached the federal building in downtown Spokane she first entered but when she observed the check-point found it necessary to return to her vehicle to place her handgun there (TR 143-150). It can be reasonably assumed that had the check-point not been there, she would have taken her handgun to the meeting with Mr. Backer. David Dodd, Nathaniel's manager, was also the subject of her questionable motives and actions when, on November 6, 1990, during the course of a private meeting on employer's premises between she and Dodd to discuss her annual employee evaluation, she secretly taped their conversation without any knowledge whatsoever on Dodd's part that she was doing so. Nathaniel testified that the voice-made activator on the recording device in her briefcase inadvertently triggered the recording. She said she accidently discovered that she had recorded the meeting when later playing the tape for another purpose. Of course, if that were true she could have ignored it, erased it, or reported the event to Dodd for his further direction. Instead, she transcribed the tape while at home and gave it to her lawyer for his use in her behalf (Respondent's Exhibit No. 1). There is no use to further chronicle the erratic behavior of this young woman before and after the smoking incident of October 22, 1990. It is primarily the employer's conduct which is under inquiry, not hers. This employee, however, has charged that employer's act, through its department manager, Dodd, injured her "reputation for honesty" and her professional reputation "by asking her to rescind her message regarding smoking and HPT Reid of October 24, 1990. It was her refusal to withdraw this message which, she says, later gave rise to acts of discrimination and harassment by co-workers causing the emotional and mental pressures to leave the worksite (Amended Complaint filed October 23, 1991). Actually, this employee's troubles at work began long before the October 24, 1990 computer message which she claims initiated her problems. Nathaniel has documented for the U.S. Department of [Page 12] Labor a meticulous account of her work history while with employer (Respondent's Exhibit No. 2). In the cover letter dated December 7, 1990, Nathaniel asks redress for "two years of (her) life spent in Hell" at employer's facility. (She began work on June 7, 1989.) The focus of her real or imagined problem begins with her relationship with Steve Metcalf, her designated team leader. These conflicts with Metcalf, according to Nathaniel, began to heat up in February 1990 and she requested and had a private meeting with Metcalf and his manager, Dodd, to discuss the problem. Besides requiring her to do menial tasks at work, Metcalf was thought to be excluding Nathaniel from important team meetings. After a group meeting in April of 1990, Nathaniel felt that Metcalf would hopefully change. She states that another team member later told her that Metcalf was "insecure" around her and was "intimidated" by her intelligence. Nathaniel, it is clearly seen, felt the whole conflict was attributable entirely to Metcalf and only his perverse personality. Apparently this unhappy relationship at work continued until she left around December 10, 1990. Notwithstanding the fact that Metcalf remains in a higher supervisory position in the same department and the fact that her "two years in Hell" began and continued with what she viewed as a totally unacceptable inter-reaction with Metcalf, Nathaniel asked to remain with the same group on a permanent basis and not rotate to another department. She now wishes an order forcing her return to that same group despite her claims of past discrimination and sexual harrassment there. Those requests are, quite obviously, altogether inconsistent with her allegations of past episodes of unbearable treatment at the hands of her employer. The account of work history furnished the U.S. Department of Labor by Nathaniel, while it does not absolutely confirm them, strongly support employer's position that: 1. Nathaniel never believed that smoking presented a real explosion hazard at the instrument shack and elsewhere in the same designated area; 2. That she well knew all along that the area in which she caught HPT Reid smoking was a "No Smoking" area instead of a dangerous "Spark Free Zone"; and,
[Page 13] 3. That the recording and transcription of a private meeting with her manager, Dodd, was a surreptitious intentional act which says much about the weight of her overall creditability in this whole matter. Although the October 24, 1990 computer message involving HPT Reid is mentioned in the history given the Department of Labor, there is not even a suggestion that smoking in the area involved presented any danger of explosion (Respondent's Exhibit No. 2 at p. 10). The subject problem was surveying out of zones and HPT Reid's smoking in the tank farms. Nothing whatsoever is said about the great danger of hydrogen explosions created by the ignition of a cigarette which she claims was somehow communicated by her to the Department of Energy. According to Nathaniel, the letter "documenting these issues" was confined to surveying and smoking. Another thing remains obvious: Why would anyone want a letter rescinded that contained no more than the safety report already called to the 3-CARE hotline attention and already acted upon. It was not the safety report of smoking that management objected to, but the strong implication in the large bulk of the letter that two employees on duty were unproductively hassling over well defined safety matters about which they each should have been aware and for that matter, responsible for, as part of their respective duties. The document furnished the Deparment of Labor by Nathaniel repeatedly reflects the fact that she was well trained in the use of the instruments she was assigned to use as part of her particular duties. On October 22, 1990, the night she observed the smoking infraction, she was assigned to the instrument on the tank farm to monitor and measure hydrogen concentrations in the vapor space of the tank expecting a "burp." None of her duties had anything to do with measuring hydrogen concentrations in the instrument shack itself or in the open air around the shack or any tank. There were no instruments provided for this other purpose. Nathaniel claims that she thought the entire tank farm area was a "No Spark" (spark free) zone and that Steve Metcalf had provided her with this information. Testimony by Dodd refutes the fact that the area was so designated. In fact, Dodd stated that the very instrument utilized by Nathaniel that night, and with which she says she was so familiar, is not "intrinsically safe" and its use is prohibited in a "spark free" zone because its internal [Page 14] heat source is such that it could possibly set off an explosion in a zone so designated. The instrument itself was an ignition source. Surely, Nathaniel was aware of the fact that the area was safe in her role of a trained chemist and scientist. Why else would she be using an instrument prohibited in a "spark free" zone? Why was the instrument placed there in the first place if it were not in a zone where it could be safely used for the purpose for which it was designed and constructed? It may be concluded, I believe, that Nathaniel's subjective concern about the explosion hazard presented by smoking was only her means of gaining added attention to her complaints about HPT Reid's conduct on the night in question. That does not constitute good faith on Nathaniel's part. Besides that, Nathaniel knew full well that there had long been plenty of smoking going on around the instrument shack by many others yet no one had ever before expressed any apprehension or concern about the danger of a hydrogen explosion being thereby presented. Nathaniel even testified that "... there were cigarette butts everywhere" (TR 115). Had she been genuinely concerned about the smoking and the resultant hazard of an explosion she should have reported the inherent danger she believed was presentedlong before she decided to single out Reid for some sort of anticipated disciplinary action. But the fact that she really believed no such hazard actually existed is most vividly demonstrated by her frequent calm presence in the very area she would have others believe is highly dangerous because of the smoking of cigarettes. Finally, before leaving Nathaniel's long written history given the U.S. Department of Labor, we turn to the admission that she intended to record her private meeting with Dodd without his knowledge and was happy she did so. She states that she "couldn't believe what (she) heard from that man (Dodd)" and that "I'm glad I recorded the conversation." She even sent along a copy of her transcription of the meeting with her history (Respondent's Exhibit Nos. 1 & 2 and TR at 168). Something should also be said here about the real danger said to have been perceived by Nathaniel for the first time following her observation of Reid lighting a cigarette in her presence and the actual danger previously ascertained by the employer after extensive studies of the operations to be conducted in the area [Page 15] affected by safety experts. The employer called Sidney G. Hodge, its Manager of Industrial Safety, to the stand on the morning of October 31, 1991 (TR 598-623). After explaining his role in the 3-CARE program and what is meant by the terms "spark-free zone," "intrinsically safe" and "containment," either intact or breached, Mr. Hodge testified that there was no potential in the area in. question of an explosion caused by smoking. There was, he said, a a real contamination danger created by smoking, but no danger of smoking causing an explosion. According to Mr. Hodge, this had been carefully determined by experts in the field months earlier when the program for the 101-SY monitoring was first put together. Mr. Hodge said that the 3-CARE report furnished to him on October 24, 1990 "was a radiological concern because," contrary to Nathaniel's testimony, the area "was not a spark-proof or spark-free area." That is, no doubt, why the report of smoking was sent to the radiological group for attention as there was really no threat of explosion caused by smoking. That question had been "worked through a thousand times" (TR at 619). There was not, in other words, "a potentially known and visible explosive condition" present as the message claims. Turning now to the employee's complaint that she was subjected to retaliatory discrimination following her refusal to rescind her c.c. mail report of October 24, 1990, it should first be now clear that any safety issue raised by that report was then known by everyone concerned, including Nathaniel, to have been almost simultaneously raised and procedures related thereto triggered by the telephone call reporting the same or like incident in the identical area referred to in the c.c. mail. Again, what purpose could be served by uselessly retracted a report of a safety issue already reported to the proper authority elsewhere. It is true that the "3-CARE" report mentioned nothing about smoking being a potential explosion hazard, but that potential, as we have seen, had already been fully investigated and discounted months before. Ms. Nathaniel's manager (Dodd) testified that he did not wish to quash the smoking report already fully activated elsewhere, but only the language in the main text of the message which conveyed the impression that two support team members were hassling over safety rules while on duty during a "burp" watch. Nathaniel, herself, should have been most anxious to defuse that unmistakable and somewhat alarming perception. Although the "cc-mail" computer message was never withdrawn and effectively amended, Nathaniel now says the request that she do so was "injurious to her professional reputation for adherence to safety rules, and to her personal [Page 16] reputation for honesty" (Amended Complaint at 6). The fact that she was using an instrument that was not designated as "intrinsically safe" in an area she thought was a "spark-free" zone does not help her "professional reputation for adherence to safety rules." And, of course, the act of secretly recording the content of a private evaluation meeting at work does little for her "reputation for honesty." However, her charge that employer's administrative personnel forced her to either quit, transfer or take a leave of absence best demonstrates the depth of the last trait she allegedly values so highly. Ms. Nathaniel left Richland, Washington on December 7, 1990. She now lives in Connecticut with her husband to whom she was recently married. She is on a disability program in which she receives benefits and salary continuation. She had only actively worked for the employer for 18 months. Although she is welcome to return to work with the employer when she recovers from some measure of disability not identified on the record, she has not gone back for over a year now. The employer enlisted its Human Resources Department, its Benefits officials, its Employee Assistance Program, its Employee Concerns Program, its Equal Opportunity Department and even its Security Department, to try and help this young woman through a list of seemingly endless problems beginning well before and continuing after the so called "safety report" of October 24, 1990. Nancy Sue Conard was called to testify by the employer. She first explained the role of the employer's Employee Concerns program:
Instead of ignoring Nathaniel, Ms. Conrad sought her out in November, 1990 in an effort to help with what a manager had reported was apparently a problem. Conrad said that Nathaniel [Page 17] described her troubles as follows:
[Page 18]
Nancy Montano, a specialist with employer's Department of Human Resources was then called. She explained her functions in this capacity:
Although Montano never had any personal contact with Nathaniel who was off work during their relationship, she had several phone conversations with her concerning her future with employer. Montano was primarily helping Nathaniel find other work with employer as she understood Nathaniel did not want to return to her previous work station. Montano testified that at no time did she ever instruct Nathaniel to remove her belongings from her office. Further testimony by Montano that followed denied another one of Nathaniel's charges set forth in her history given the Department [Page 19] of Labor:
Employer also called Joan Eckert to the stand on October 30, 1991 (TR 491-498). Ms. Eckert was a 25 year employee then serving as a Human Resources Specialist in Employee Relations. Eckert said that Nathaniel and her attorney were solely interested in a leave of absence. It was Eckert who advised Nathaniel that she perhaps qualified for disability, and with it get salary continuation rather than an unpaid leave of absence.
[Page 20] It appears that every way Nathaniel turned she got more help from employer. Nathaniel, however, insisted on direct testimony that the Human Resource group only gave her the options of rotating out of the department to which she would not return, quit altogether, "or take a leave of absence without pay" (TR 70). Just exactly how she instead went on and is still on employer's paid disability program was not explained by Nathaniel. There is, by the way, absolutely no medical evidence anywhere in the record to support a physical or mental impairment and resultant disability. I believe Nathaniel concocted her story about the terms or conditions of her separation from the employer for the simple reason that she was never required to exercise any one of the options she says were the only ones offered to her. She has never rotated out of the department she initially joined, she did not quit and is, in fact, still an employee on the employer's payroll, and she certainly is not on a leave of absence without pay. She had a very good reason for inventing those alleged conditions of separation, however, as it is only the continuing implementation of those terms that would possibly keep the 29 C.F.R. § 24.3(b) complaint timely. Thanks to Nathaniel's recording and the following transcription of the November 6, 1990 performance evaluation meeting, however, all other elements of her alleged violations were by that date firmly in place and obviously known to her. Accordingly, she should have filed her complaint no later than December 6, 1990. Instead, she did not file her complaint until December 10, 1990 (Complainant's Post-Hearing Brief at 1). Before moving to the ultimate findings and conclusions, another and stronger look should be taken at employer's safety reporting system which was available to Nathaniel the early morning of October 22, 1990. The employer maintains a full-time hotline for safety concerns which we have seen is known as "3-Care Safety Concern Hotline" staffed and operated by its Industrial Safety and Fire Protection Group. Every employee may call in a safety concern, even anonymously, to the hotline and the appropriate action is assigned to the supervisors concerned (TR 592-595). It seems logical that had the sole thrust of Nathaniel's letter of October 24, 1990, not been a quarrel with Reid about when Nathaniel should or should not be surveyed out of the area, because [Page 21] of her medical condition, the safety concern would have surely been directed at the 3-Care hotline on October 22, 1990, where it would have received immediate attention soon after the smoking infraction occurred. If Nathaniel was earnestly concerned about a real safety danger involving smoking in the tank farm area she would not have previously ignored the fact that the cigarette butts she saw "everywhere" had obviously earlier been ignited and smoked in the same zone. She singled out Reid only after Reid refused to survey her out of the area when she asked. The hazard she perceived and reported two days later was evidently not thought to be sufficiently volatile until she observed Reid's contribution toward that imagined risk following the survey refusal. In short, I do not believe Nathaniel conceived the added hazard she alone attributes to smoking at the tank farm until she could somehow make Reid a disciplinary target for her particular participation in that proscribed activity. Ultimate Findings and Conclusions. I have searched for but cannot find any solid evidence that Nathaniel was "engaged" in any protected activity prior to the time she alleges some proscribed discrimination against her took place. There is no evidence in the whole record for decision that Nathaniel, either directly or indirectly, commenced or caused to be commenced, or is about to commence or cause to be commenced, a proceeding under any one or more of the Federal statutes listed in 29 C.F.R. § 24.1, or a proceeding for the administration or enforcement of any requirement imposed under such Federal statutes. Further, there is no evidence that Nathaniel testified or is about to testify in any such proceeding, or assisted or participated, or is about to assist or participate in any manner in such proceedings or in any other action to carry out the purposes of such Federal statutes. But, Nathaniel argues, it was her October 24, 1990 report of the smoking incident two days earlier which triggered employer's "10 day occurrance report" and her report therefore qualifies as a protected activity which brings her under the statutes relied on. That imaginative contention has no merit, however, and must be turned aside for three good reasons. First, the October 24, 1990 cc Mail letter was directed by Nathaniel to only the supervisors of Becky Reid and her own (Complainant's Exhibit No. 7 at 1). All cc Mail transmissions go [Page 22] only to the parties designated by the sender (TR 405). Secondly, it was not Nathaniel's letter of October 24, 1990, but the anonymous report by a telephone call the same day to "3-CARE" hotline which actually precipitated the subject "10 day occurrance report" distributed by employer's Industrial Safety group to various agencies, including the U.S. Department of Energy (TR 591-597 and 625-627; Respondent's Exhibits Nos. 6 & 7). Lastly, Nathaniel did not intend her October 24, 1990 message as a safety report when it was dispatched. Although not being even aware of the actual designation of the area affected, she entitled her subject as "HPT Responsibilities Within the 101 SY Instrument Building." That is hardly a preface that would alert anyone that a report of a serious safety infraction was to follow. In fact, the first paragraph tells you what the message is really all about. The smoking incident was only a secondary afterthought (Complainant's Exhibit No. 7). It was intended to get someones attention and, as we have seen, it most certainly did. The mere act of sending the message, however, does not measure up to the standard of a "protected activity." At most, it was only computer "finger pointing," having no public safety or health purpose whatsoever. Another thing, lest anyone imagine that Nathaniel was somehow concerned at anytime with Reid's well-being, Nathaniel dispelled that notion with her statement on the stand that, "If she (Reid) ingested radiation, that was her business" (TR 113). Furthermore, I do not find that the appended reference to the danger of an explosion contained in Nathaniel's October 24, 1990 message about the responsibilities of HPTs in the instrument building was added in good faith. It is all but inconceivable that Nathaniel was unaware that the instrument building was not in a "spark-free" zone. Why else would a highly trained instrumentation technician and chemist familiar with the area be safely using what would otherwise have been an "intrinsically unsafe" instrument (gas chromatograph) inside that very building. She was not that foolish. I believe that the reference to an explosion danger from smoking in the message served only as a handy and dramatic "red flag." Most certainly, the anonymous phone call to 3-CARE about the same smoking incident mentioned nothing about an attendant explosion danger. Neither did the message about the same incident transmitted by K.L. Kunzweiler, Nathaniel's co-worker, the [Page 23] following day (Complainant's Exhibit No. 7 at 4). Alleged Discriminatory Action. Although no protected activity has been found, some of the employer's actions in this matter should be addressed. Ms. Nathaniel contends that all her problems began with her manager's request that she withdraw her message of October 24, 1990. She has blown this managerial request all out of proportion. To begin with, action on her concerns were initiated that day by her manager. More importantly, action on the safety concern were also triggered the day of the message by the anonymous call to 3-CARE. So the withdrawal of her message on what she titled another subject could not have had any effect on the progression of 3-CARE's fixed procedures, including the issuance of the "10 day occurrance report." None of Nathaniel's safety concern about smoking were either ignored or turned aside. Nathaniel was aware of this and she even attempted to rescind the message but it was then too late (Respondent's No. 1 at 5). I am satisfied that Dodd, Nathaniel's manager, was not attempting to quash any safety report by anyone. Instead, he wanted to eliminate the impression clearly implied in the message that members of a "burp" watch support group were busy hassling with each other over safety procedures while on duty. Further, if the subject of the message was a safety report, it should have said so. It has been seen that the message's "subject" indicated otherwise. It should also be observed along the way that the public health and safety would not have been adversely affected even if the message of October 24, 1990 had never been initiated by Nathaniel. Its withdrawal would, of course, have been equally insignificant. One need only read Nathaniel's transcription of her recorded evaluation meeting on November 6, 1990, to discover the reason why her status was returned to rotational from fixed hire. It did not have anything to do with the withdrawal of any message. Instead, it was the unhappy relationship with Steve Metcalf, her team leader, which was causing her emotional distress (Respondent's Exhibit No. 1 at 14-16).
[Page 24] Dodd testified that by September of 1990 the "personality conflict" between Nathaniel and Metcalf was not getting any better and he did not believe it was in the best interests of his department that Nathaniel become a permanent member of the very department in which she was still having an on-going problem. It appears that Nathaniel and Metcalf had reached a point in their relationship that they were not even talking unless they were arguing (TR 522). The decision that Nathaniel was not being a productive member of the department was made, however, prior to the October 24, 1990 message. As previously indicated, the long history of her problems documented by Nathaniel,for the Department of Labor reflect her long-standing pre-existing problems with Metcalf as does the conversation with Dodd she recorded and transcribed. It is also clear from the cross-examination of Dodd that the question of rotation was held open as of November 6, 1990, pending the possible resolution of the Nathaniel-Metcalf differences through counselling (TR 533, 514). Nathaniel also complains that her performance appraisals were "below the ratings she would have otherwise received had she not made her report" (Amended Complaint at 6). This allegation is not factually supported in the record. Dodd testified that except for one sub-category, her ratings were the same both before and after the October 24, 1990 message. That sub-category was "effectiveness of work relationships." Her rating was understandably reduced from "3" to "2" in that sub-category because of her still ongoing problems not only with Metcalf but with the purchasing department as well. Still, her overall rating, which is the sum of all the sub-categories, remained to be "3" (TR 521). Turning again to the pivotal question of the apparent untimeliness of the instant complaint, it is once again emphasized that Nathaniel was aware of every essential element of her subsequent allegations of retalitory discrimination no later than November 6, 1990. This is vividly demonstrated by her own transcription of the secret recording she made of the private evaluation meeting at work that date. Accordingly, pursuant to 29 C.F.R. § 24.3(b), her complaint should have and must have been filed no later than December 6, 1990. Instead, it was filed 4 days later on December 10, 1990. RCRA, CERCLA and CAA provide the same or similar Statutes of Limitations, requiring complaints to be filed within 30 days after such alleged violation occurs. See 42 U.S.C. § 6971(b), 42 U.S.C. § 6910(b), 42 U.S.C. § 7622(b).
[Page 25] The statutory limitation adopted by Congress may not be ignored. "... The choice of the appropriate time is not entrusted to the administrative agency or to the courts. It is the result of legislative determination made after weighing the various interests at stake .... It is not for us or the Secretary to casually ignore the statutory limitation." City of Allentown v. Marshall, 657 F.2d 16, 20 (3rd Cir. 1981), citing Biggans v. Bache Halsey Stuart Shields, Inc., 638 F.2d 605, 611 (3rd Cir. 1980). As not one of the categories necessary in order that equitable tolling may be utilized are present here, the failure to file a complaint within the prescribed 30 days requires a decision in favor of respondent. City of Allentown, supra, at 19-20. It should also be noticed that while the taping of the private conversation may have been accidental, the transcription of the tape was certainly not. (TR 168-170, indicating that the recording was made "indirectly" and Respondent's Exhibit No. 2 at 1, lines 10-13, which indicates recording was intentional.) Although we will never know whether Nathaniel's transcription is a verbatim account of the conversation, as the tape somehow disappeared from the "safe place" in which she put it (TR 170), Nathaniel is nevertheless inextricably bound by the content of her transcription. It is the recited state of knowing the elements of the later alleged discrimination reflected in the text of the transcription of the November 6, 1990 meeting which renders the complaint of December 10, 1990 untimely. She has, in other words, fully substantiated the employer's statutory thirty day limitation defense by the transcription of the dated meeting in evidence. In any event, and although complainant has not raised the point, any prejudice to complainant which might result because of the short period between the violation and the filing of the complaint "... is simply irrelevant when Congress has drawn a line at the point where it believed claims should be barred." City of Allentown, supra, (657 F.2d at 20). Nathaniel has charged that her "emotional and mental pressures" brought on by the withdrawal request caused her to leave the worksite on December 17, 1990. The factual circumstances of her leaving work and returning to Connecticut to live with her husband are vague at best. It is known that she never exercised any of the only three options she says were given her by her employer. Instead, she freely elected to go on long term disability with salary continuation at the suggestion, I assume, of [Page 26] a staff member of employer's Human Resources group. The exact nature of her physical or mental disability remains unknown, but they all must have resolved because, although she needs no such order from me, she now asks to be returned to the very same job which she earlier claimed provided her with "two weeks in Hell." If her voluntary departure from the worksite on December 17, 1990 in someway constitutes a discriminatory "constructive termination or suspension," thereby tolling the statute of limitations, that has not been suggested or explained anywhere. Besides that, all of the alleged acts of proscribed discrimination supposedly occurred prior to the date she filed her complaint on December 10, 1990, some 7 days before she even left work for whatever reason she now claims. Notwithstanding the fact that Nathaniel's complaint is untimely, the merits of her allegation should be further addressed in case the complaint somehow be later found to be timely. Nathaniel had the initial burden of proving a prima facie case that her message of October 24, 1990 was a substantial or motivating factor in employer's decision to discriminate against her. Mt. Healthy City School District v. Doyle, 429 U.S. 286, 97 S.Ct. 568, 50 L.Ed. 2d 471 (1977); McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed. 2d 668 (1973). "The ultimate burden of persuading the trier of fact that defendant intentionally discriminated against the plaintiff remains at all times with the plaintiff." Texas Department of Community Affairs Burdine, 450 U.S. 248, 101 S.Ct. 1089, 67 L.Ed. 2d 207 (1981). See also Mackowiak v. University Nuclear Systems, Inc., 735 F.2d 1159 (9th Cir. 1984). But see Adams v. Dole, Secretary of Labor, 927 F.2d 771 (4th Cir. 1991) holding that § 210 of the Energy Reorganization Act of 1974 (42 U.S.C. § 5851) was wholly inapplicable to plants, like the subject one, owned by the Department of Energy. I regret that I cannot assign any credit to Nathaniel's account of the action that followed the request that she rescind her message. Her scenario of the events arising out of message and its subsequent effects on her life differ markedly from time to time. First, she tells the U.S. Department of Labor that her job was akin to "two years spend in Hell." Under oath, however, she says, "I love my job." [Page 27] On another occasion she furnished the U.S. Department of Labor with a transcription of a conversation with her manager she recorded "for protection." On the stand, she implies that the recording was accidental, a mistake "indirectly" made. Although she was forced to exercise none of them, she stated under oath that employer's Employee Concerns group told her she could either rotate out of the group, take a leave without pay, or quit. Those option limits were refuted by everyone supposedly involved and by Nathaniel herself when she took instead a long term disability leave with salary continuation. Nathaniel stated under oath that she was concerned that the ignition source created by smoking could cause an explosion but did not immediately report the hazard because she did not know what numbers to call (TR 113). A fellow chemist also assigned at times to the "burp watch" in the instrument shack testified that contrary to what Nathaniel said, the phone numbers of the management chain are in the shack and could be called anytime in the Evaporator building where Nathaniel exited without the survey (TR 418). Nathaniel certainly knew her manager's phone number at home as she had previously called him there at 5:45 in the morning to complain that the shift supervisor had adamantly insisted that there be no reading material in the instrument shack other than that provided by the company (TR 515-516). Surely, the imminent danger of an explosion, had there been any, would have been a far more vital concern than only the material one is allowed to read while on duty. If Nathaniel really believed that a life threatening hazard was invoked by smoking she would have called her manager, I find, instead of causually leaving the area to get something to eat and then returning. If the danger had actually existed, as she now so vigorously insists, she would have sounded some kind of alarm. She could have, she should have, and she would have given some warning. Her failure to timely act in a more effective fashion persuades me that she knew precisely in what zone the instrument shack was located and that the only danger there posed by smoking a cigarette was ingestion of radiation. Further, it is all but impossible to imagine how the safety manager is supposed to follow up on a so-called "safety report", as Nathaniel expects, when it was never furnished him. He did, however, fully follow-up on the 3-CARE telephone report the same day. That particular report, unlike Nathaniel's tardy message not [Page 28] furnished him, mentioned nothing about any explosion danger arising as the result of smoking in the instrument shack. As already mentioned, that particular potential hazard had already been fully investigated by the employer and its experts and found to be non-existent long before the October 22, 1990 smoking incident. She should have known that. All in all, when you assign to Nathaniel's testimony all the weight it intrinsically commands, but take into account all that detracts from it, including all the above, what she said from the stand about the real purpose of her October 24, 1990 message and the alleged acts of retalitory discrimination that supposedly followed, must be counted as plainly incredible.
For the above assigned reasons I find that: 1. The failure to file the Complaint within the thirty day limitation rigidly fixed by Congress in the statutes relied on by Complainant in bringing this action requires a decision in favor of Respondent. Accordingly, the Complaint of December 10, 1990 is dismissed. 2. Notwithstanding the untimely Complaint, the Complainant engaged in no "protected activity" within the meaning of the statutes and regulations relied on which preceded the tardy Complaint. Accordingly, as this office is without subject matter jurisdiction, the Complaint of December 10, 1990 is dismissed. 3. That Respondent did not subject Complainant to any unlawful discrimination because of her participation in some employment-related activity, protected or otherwise. Accordingly, as no violation of any law has been shown, the said Complaint of December 10, 1990 is dismissed.
JAMES J. BUTLER
JJB:mj
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