Duprey v. Florida Power & Light Co., 2000- ERA-5 (ALJ July 13, 2000)

U.S. Department of Labor

Office of Administrative Law Judges 2600 Mt. Ephraim Avenue Camden, NJ 08104 (856) 757-5312 856-757-5403 (FAX)

DATE: July 13, 2000

CASE NO.: 2000-ERA-00005

In the Matter of

DONALD DUPREY
    Complainant

    v.

FLORIDA POWER & LIGHT COMPANY
    Respondent

Appearances:

    Pivnik & Nitsche, Esquires
    For Complainant

    James S. Bramnick, Esquire
    For Respondent

Before: RALPH A. ROMANO
    Administrative Law Judge

   This is a proceeding under the employee protection provisions of the Energy Reorganization Act, 42 U.S.C.5851 (hereinafter "the Act").

   The matter was tried on January 24-25, 2000 and April 4, 2000, and briefs filed by the parties by June 26, 2000.

   Complainant charges that Respondent demoted him on January 28, 1999 in retaliation for reporting safety violations to management and to the Nuclear Regulatory Commission (NRC). Such retaliation is said to have been realized by Respondent's selective and disparate application to Complainant of its sick leave policy.

   Respondent counters that Complainant's demotion was legal as occasioned solely by his repeated absenteeism in violation of its sick leave policy.

   I hereinafter find that Complainant has established a prima facie case of a discriminatory demotion violative of the Act, but that Respondent has shown that it legitimately would have demoted Complainant even if Complainant had not engaged in the protected activity underlying such discriminative demotion.

   There is no question that Complainant¹ engaged in activity protected under the Act, that Respondent was aware of such activity, that Respondent took adverse employment action (demotion) against Complainant, and that an inference has been raised that Complainant's protected activity was the likely reason for the adverse action. Couty v. Dole, 886 F. 2d 147 (8th Cir. 1989).

   During his tenure with Respondent,² Complainant raised nuclear safety concerns (Tr.³ 32-36; 67-77), and he raised them forcefully (Tr. 192; 342-46; 385; 397; 453-56; 621-22). Respondent's management clearly was aware of this (Tr. 453-56; 621-24; 751; 759; 772). One instance of Complainant's raising of a safety concern (VCT purge procedure) occurred on November 24, 1998 (Tr. 67-70). Complainant was demoted on January 28, 1999 (R 22). Thus, I find that Complainant's demotion followed this instance of protected activity so closely in time as to permit the drawing of an inference of retaliatory motive. Zessin v. ASAP Express, Inc., Case No. 92-STA-33 (Sect'ry 1/19/93); Williams v. Southern Coaches, Inc., Case No. 94- STA-44 (9/11/95). Beyond this, the more powerful inference of retaliation is drawn from the testimonial assertion of Complainant's co-worker, Scott Meier, that Mr. Stamp⁴ told him that Mr. Jernigan⁵ told Stamp that "[Complainant] was a thorn in the plant's side and his [Jernigan's] side, specifically. That he [Jernigan] wanted him [Complainant] ... out of the company. And the only way they could go about that legally was attendance-wise." (Tr. 347-8) - see DUAL MOTIVE, infra.

   Accordingly, Complainant has made out a prima facie case of discriminatory demotion.

   Noted, is that both parties make much of whether or not Complainant's reporting to the NRC or to Respondent's in-house SPEAKOUT forum, of his view that Respondent's sick leave policy creates a safety hazard because such policy encourages employees who are sick to report to work, is protected activity and/or whether Respondent was aware of such reporting. I view

this controversy as a non-issue, because: (1) Complainant himself does not consider such reporting to have played any role in his demotion (Tr. 914-16; 66)⁶ , and (2) the legal disagreement between Complainant's union and Respondent whether Respondent's sick leave policy violates the union contract was put to rest by arbitration in Respondent's favor (Tr. 674-5; R 29; R 30), rendering any contrary expression of opinion non- threatening to Respondent.

   The record evidence goes further than establishing (at least inferentially) that Respondent demoted Complainant in response to his protected activity. The evidence also establishes that Respondent demoted Complainant for openly and repeatedly defying its sick leave policy, a legitimate reason, non-violative of the Act.

   As noted, Meier testified that Stamp told him that Jernigan told Stamp that Complainant was a "...thorn in ... his side ..."⁷ and that the company's attendance policy would be used to get him "...out of the company". I credit Meier's testimony over that of Stamp and Jernigan, who denied that such statement was made, because Meier is still employed by Respondent and has every reason not to testify as he did, while Stamp and Jernigan, high ranking managers of Respondent, have every reason to make their denials to protect their jobs and Respondent's integrity. This credited statement of animus⁸ towards Complainant, together with Respondent's awareness of his protected activity and adverse action close in time to such activity, forms a sufficient factual basis of discriminatory action violative of the Act.

   On the other hand, the record is replete with substantial evidence demonstrating Complainant's repeated and open defiance of Respondent's sick leave policy. Complainant's absentee record over the period of four to five years preceding his demotion amply demonstrates regular and continual excessive absenteeism, generating continuous warnings and discipline by Respondent, culminating in the deactivation of his badge for entry into Respondent's premises (Tr. 611-12; 687; 853-4; 872; 897; 901; R 42). The evidence of Complainant's recalcitrance in this regard is credible, consistent and overwhelming. He was throughout continuously counseled and warned in this regard with resultant failure to correct/improve his behavior (Tr. 92-4; 105-6; 124; 152; 457-70; 480-1; 495-8; 581-2; 690; 715-16; 750; 760-62; 769; 788-9; 830; 841-2; 836-9; 856-7; 869-72; R1; 2; 3; 4; 5; 7; 8; 9; 10; 16; 22). That Respondent had valid business/personnel reasons to seriously maintain, implement and enforce its sick leave policy, is evident (Tr. 577-79; 609-10; 629; 748-49; 794). Complainant plainly and knowingly decided to express his disagreement with company policy through behavior violative of the sick leave policy. And he did so with the knowing risk of sustaining the discipline ultimately imposed by the company.⁹

   Complainant's insistence that other employees were treated differently or less

   Accordingly, I do not find that this record supports the proposition of selective application to Complainant of Respondent's sick leave policy, or retaliatory disparate treatment of him in this regard. Complainant was legitimately and appropriately disciplined for continued, regular violation of Respondent's sick leave policy. As previously discussed, however, Complainant was also demoted for the illegitimate reason of retaliation for his protected activity.¹⁰

   At all times, Complainant has the burden of establishing that the real reason for his discharge was discriminatory. St. Mary's Honor Center v. Hicks, 113 S.Ct. 2742 (1993); Thomas v. Arizona Public Service Co., Case No. 89-ERA-19, Sec. Dec., Sept. 17, 1993, slip op. at 20. Williams v. Southern Coaches, Case No. 94-STA-44 (Sect'ry, 9/11/95).

   To prevail, a complainant must prove, by the preponderance of the evidence, that respondent intentionally discriminated against him because of his protected activity. Jackson and Roskam v. Ketchikan Pulp Co., Case No. 94-WPC-4 (Sect'ry 3/15/96).

   Once the employee shows that an illegal motive played some part in the discharge, the employer must prove that it would have discharged the employee even if he had not engaged in protected conduct Mt. Healthy City School District v. Doyle, 429 U.S. 274 (1977). And, such proof must be in the form of "... clear and convincing evidence ..." 42 U.S.C. 5851(b)(3)(D). The courts have recognized such level of evidence to be a higher burden than "preponderance of the evidence," but less than "beyond a reasonable doubt" Grogan v. Garner, 498 U.S. 279 (1991).

   I find that the evidence of record, on balance, shows clearly and convincingly that Respondent would have demoted Complainant even if no improper motive existed, i.e. even if Complainant's protected activity had not occurred.

   I am particularly convinced of this conclusion by the constant, regular, consistent efforts of Respondent beginning early in Complainant's tenure to impress upon

Complainant the significance of his absenteeism record, and Complainant's continual refusal/unwillingness to correct his behavior in this regard (Tr. 92-96; 124; 195; 459-60; 465-9; 611; 749; 856-7; 900-01; R 1-10; 16; 22; 40; 42).¹¹ Each and every of Respondent's witnesses who were familiar with Complainant's continued defiance of the sick leave policy testified credibly, consistently and corroboratively of such defiance and neglect of improvement. Complainant's refusal to accept responsibility for this behavior does not render same harmless, nor is such behavior insulated from adverse consequences thereby. Complainant, as it were, fought the fight raised by the tension between the sick leave rights as envisioned by himself and his union as against those rights as envisioned by his employer, but not without paying the (legitimate) cost attendant thereto (demotion). The evidence pointing to the importance/significance of Complainant's excessive absenteeism is much too compelling, singular and discrete to ignore insofar as this "dual motive" analysis is concerned. Each and every of the violations and warnings was memorialized in written form beginning early in Complainant's employ. Each and every of his new superiors was confronted with his dismal record and began efforts to improve on such record upon assuming responsibility for Complainant. That many management people were, early on and continually, concerned with and looking at his attendance problems, is clearly demonstrated in this record. This striking, long-standing and documented focus upon Complainant's attendance record simply demands predominant and controlling attention, and clearly overwhelms as mere distraction the proposition that Respondent would not have demoted Complainant in the absence of his protected activity.

   On the basis of the foregoing, I recommend the complaint be DISMISSED.

      RALPH A. ROMANO
      Administrative Law Judge

DATED: July 13, 2000
Camden, New Jersey

NOTICE: This Recommended Decision and Order will automatically become the final order of the Secretary unless, pursuant to 29 C.F.R. §24.8, a petition for review is timely filed with the Administrative Review Board, United States Department of labor, Room S- 4309, Frances Perkins Building, 200 Constitution Avenue, N.W., Washington, DC 20210. Such a petition for review must be received by the Administrative Review Board within ten business days of the date of this Recommended Decision and Order, and shall be served on all parties and on the Chief Administrative Law Judge. See 29 C.F.R. §§24.8 and 24.9, as amended by 63 Fed. Reg. 6614 (1998).

¹ Who presented as an intelligent, well- informed, credible, and sincere witness.

² As an Associate Nuclear Plant Operator, Nuclear Plant Operator and Senior Plant Operator, from February, 1993 to his demotion on January 28, 1999.

³ References are "Tr." - transcript of hearing; "C" - Complainant's exhibits; "R" - Respondent's exhibits.

⁴ Respondent's Nuclear Plant Supervisor

⁵ Respondent's Plant General Manager

⁶ "I think the major part of my harassment which led to my demotion was the fact that I am continually causing work slowdowns and issues that cause ... and cost the company money and time." (Tr. 915). "[I think I was demoted] ... because I brought up a lot of concerns that cost them [Respondent] time and money (Tr. 66). See also Tr. at 207 "... as compared to a lot of other issues ... I think [absenteeism] ... is minor". "I don't think I was singled out for excessive absenteeism, no, I don't." (Tr. 104). See also Tr. at 216 "I think [Respondent's selective use of its sick leave policy to retaliate against me, was used] ... as [Respondent's] means to an end...."

⁷ Stamp testified that Complainant was considered a "... pain in the butt to management ...", not because of the substance of the concerns he raised but because of the manner in which the concerns were raised, i.e., adversarial, competitive (Tr. 621-2). Since, however, there is no evidence that Complainant in this regard overstepped the bounds of otherwise defensible conduct, i.e., obscene language, etc., or otherwise abused his status, Dunham v. Brock, 794 F. 2d 1037 (5th Cir., 1986), such mode of expression of concerns cannot form a legitimate basis for adverse action against him.

⁸ There is not sufficient proof relative to the exact meaning of Jernigan's statement. That is, the "thorn in his side" could have referred to either protected or non-protected activity, including Complainant's absenteeism. The benefit of doubt here is given to Complainant insofar as recognition that this statement is some evidence that Respondent wanted him out of its employ. Weighted as such, to be sure, this does not amount to "smoking gun" type evidence in the sense of being accepted as direct evidence of intentional discriminatory behavior.

⁹ Respondent's sick leave policy certainly leaves room for discretion with management in its implementation (Tr. 450-1; 794-5). And, it is this aspect of the policy which appears to have offended Complainant and his union, in light of the fact that the union contract (C 3) provides for specified sick leave periods, unfettered by management discretion, at least in Complainant's and the union's view (although, as already noted, this issue was arbitrated in the company's favor).

   In his exchange with counsel relative to his view of the sick leave policy (Tr. 207-11), Complainant apparently refuses to accept that application of the policy in his case played any significant role in his discipline (see also Tr. 65-6; 914-5), and, taken in full context, Complainant's attitude appears to be that a superior employee, such as himself, is not appropriately subject to such a "minor" issue as absenteeism.

¹⁰ Complainant has thus established that Respondent's proffered reason for the adverse action taken against him, i.e. that he was demoted solely for violation of its sick leave policy, is pretextual. Carroll v. Bechtel, Case No. 91-ERA-46 (2/15/95).

¹¹ Complainant admits, for example, that he simply failed to bring in a doctor's note he knew was required for him to be paid for several sick day absences. Tr. 124; 152; 842; R 9.