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
RECOMMENDED DECISION AND ORDER
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.
[Page 2]
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 primafacie 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.
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.