DATE: March 21, 1995
CASE NO. 89-ERA-23
IN THE MATTER OF
NOAH JERRY ARTRIP,
COMPLAINANT,
v.
EBASCO SERVICES, INC.,
RESPONDENT.
BEFORE: THE SECRETARY OF LABOR
DECISION AND ORDER OF REMAND
This proceeding arises under the whistleblower provision of
the Energy Reorganization Act of 1974, as amended (ERA), 42
U.S.C. § 5851 (1988), and is before me for review of the
Recommended Decision and Order (R.D. and O.) issued by the
Administrative Law Judge (ALJ) on December 22, 1989. Complainant
raised a number of allegations in his complaint, including
retaliatory harassment, discharge, and failure to be rehired.
The ALJ recommends dismissal of the entire complaint. I disagree
and remand for the ALJ to determine the relief to which
Complainant is entitled.
BACKGROUND
Respondent is an engineering and construction company that
provides quality assurance services, both as a contractor and
subcontractor, in the nuclear power industry. Hearing Transcript
Volume II (T-II) at 121; Hearing Transcript Volume I (T-I) at 158. Complainant was employed by Respondent from 1982 until
1988, as an inspector, primarily in the area of paint coatings.
Paint coatings are an engineered safety feature at nuclear
facilities, which if installed incorrectly could jeopardize
public safety. T-I at 66-68.
Complainant worked at the Comanche Peak Steam Electric
Station in Glen Rose, Texas, for sixteen months and then was
[PAGE 2]
transferred to the South Texas station in Bay City, Texas, where
he worked until he was laid off in December 1988. T-I at 68.
While at Comanche Peak Complainant participated in a Nuclear
Regulatory Commission (NRC) investigation of coating failures and
quality issues. T-I at 69, 73. As a result of the
investigation, the NRC required a "major rework" of the station.
A Post Construction Hardware Validation Program (PCHVP) was
developed and essentially has been regenerating a "whole new
plant" since 1984. T-II at 105-106. After Complainant was
transferred to South Texas, he testified in a whistleblower
proceeding that had been commenced by his Comanche Peak
supervisor, and he participated in the related NRC investigation.
T-I at 72, 77.
In August of 1985, Complainant threatened to go to the NRC
concerning alleged retaliation by his supervisor at South Texas.
T-I at 83. In response, Respondent conducted an internal
investigation and the supervisor, Tom Gliddon, ultimately was
removed and transferred. Complainant's Exhibit (CX) 10. In 1987
the NRC conducted an extensive investigation of quality concerns
and allegations brought forth by current and former employees at
South Texas, including Complainant. T-I at 51, 91; CX 15. In
November and December of 1988, Complainant provided information
directly to the NRC regarding retaliation and quality issues at
South Texas. T-I at 92, 103-104; CX 16.
On November 30, 1988, in anticipation of an impending lay-
off at South Texas, Respondent compiled a master list of fifty-
eight South Texas employees "for whom new assignments are being
pursued." CX 25. The list, which included Complainant, was
distributed to certain managers at various projects where
Respondent was seeking either to hire directly, or to refer to
the contractor or licensee for hire. Specifically, Respondent
wanted to fill a request made by Texas Utilities, the licensee at
Comanche Peak, for thermolag inspection personnel. In addition,
Respondent had its own vacancies in vendor surveillance at the
Savannah River station, and also had requests from the contractor
at Savannah River for quality control inspectors. T-II at 21,
135-36, 152. In those situations where the contractor/licensee
made requests for personnel, it also made the ultimate hiring
decision, but Respondent placed the selected personnel on its
payroll. Respondent's Brief at 3.
In response to Texas Utilities' request at Comanche Peak,
Respondent's Quality Program Site Manager at that location, Jerry
Hoops, decided to submit the resumes of fourteen people from the
master list. Hoops recorded the names of those he selected in a
memorandum dated December 16, 1988. CX 26. Complainant was not
selected. Nor was Complainant selected for employment at
Savannah River. Anthony Cutrona, the Quality Program Site
[PAGE 3]
Manager at Savannah River, and Thomas Brandt had input into the
hiring decisions at that location. T-II at 53-54, 158.
DISCUSSION
Respondent stipulated that Complainant engaged in activity
protected under the ERA and that it was aware of Complainant's
protected activity. The stipulation is well supported by the
record and the law. 42 U.S.C. § 5851(a)(1); McCuistion
v. TVA, Case No. 89-ERA-6, Sec. Dec., Nov. 13, 1991, slip op.
at 7 (safety complaint communicated to NRC protected); Blake
v. Hatfield Electric Co., Case No. 87-ERA-4, Sec. Dec., Jan.
22, 1992, slip op. at 4 n.3 (testimony in ERA hearing protected);
seeFrancis v. Bogan, Case No. 86-ERA-8, Sec. Dec.,
Apr. 1, 1988, slip op. at 2 (threat to go to the NRC protected).
[1]
The ALJ dismissed as time barred Complainant's allegations
of violations that occurred more than thirty days before
January 9, 1989, the date the claim was filed. He found the
allegation of retaliatory layoff timely, but without merit. In
making the finding that retaliation played no role in
Complainant's layoff, the ALJ noted that Complainant admitted as
much at the hearing. R.D. and O. at 6.
It is unnecessary to consider the propriety of Complainant's
layoff in this case. Complainant, who has been represented by
counsel throughout these proceedings, waived his claim of
unlawful discharge at the hearing and reiterated his position in
the brief that he filed before me. T-I at 150-51; Complainant's
Brief at 8. Complainant also explained that he seeks a remedy
only for acts of retaliation that occurred beyond his layoff on
December 9, 1988. Complainant's Brief at 6, 8. I find no reason
to disregard Complainant's decision to limit his claims and his
theory of recovery.
With regard to Complainant's claims of post-layoff
retaliation, the ALJ found that Complainant did not establish the
causal element of a prima facie case because four other
inspectors, who were not shown to be whistleblowers, also were
not rehired or transferred after the layoff. The ALJ further
found that Respondent articulated and proved legitimate
nondiscriminatory reasons for Complainant's failure to be rehired
or transferred. The ALJ credited Respondent's evidence that
Complainant was not as qualified as those actually hired for
positions at Respondent's other sites; found that at several
sites, Respondent was not the ultimate decisionmaker in hiring
personnel; and noted that Respondent demonstrated a corporate-
wide reduction of its quality control staff during the pertinent
time period. In conclusion, the ALJ stated that Complainant did
not show that he is more qualified for any position than the person actually hired, and the ALJ refused to "second guess
employment decisions." R.D. and O. at 7.
[PAGE 4]
The ALJ viewed the issues too narrowly. He focused
exclusively on Complainant's failure to be rehired, either by
Respondent or by the contractor/licensee. Complainant's
allegations, however, are broader. Complainant challenges: (1)
Hoops' failure to include him on the list dated December 16,
1988, that was referred to Texas Utilities for work at Comanche
Peak, (2) Cutrona's failure to refer him for work with the
contractor at Savannah River, and (3) Brandt's failure to rehire
him in vendor surveillance work at Savannah River. Thus,
Complainant is challenging Respondent's refusal to rehire
him and Respondent's refusal to refer him to a
contractor/licensee for employment consideration. An
employer's refusal to rehire a former employee constitutes an
"adverse employment action." Ruggles v. California
Polytechnic State Univ., 797 F.2d 782, 786 (9th Cir.
1986). Also, the Secretary and various courts have
recognized that an employer's interference with a former
employee's prospective employment opportunities constitutes
adverse action. [2] E.g., Egenrieder v. Metro. Edison
Co., Case No. 85-ERA-23, Sec. Dec., Apr. 20, 1987, slip op.
at 6-9 (blacklisting); Charlton v. Paramus Bd. of Educ.,
25 F.3d 194, 202 (3d Cir. 1994), cert. denied, 115 S. Ct.
590 (1994) (intervention in teaching license revocation
proceeding); Pantchenko v. C.B. Dolge Co., 581 F.2d 1052,
1055 (2d Cir. 1978) (refusal to provide reference); Rutherford
v. American Bank of Commerce, 565 F.2d 1162, 1164 (10th Cir.
1977) (blacklisting); Sparrow v. Piedmont Health Sys. Agency,
Inc., 593 F. Supp. 1107, 1118 (M.D. N.C. 1984) (refusal to
provide customary recommendation letter).
The ALJ's analysis does not resolve the questions presented.
For example, the ALJ found that Respondent
was not the "ultimate decisionmaker in the hiring of personnel"
and was undergoing a corporate-wide staff reduction. R.D. and O.
at 7. These are not significant conclusions in the context of
whether Respondent retaliated against Complainant by refusing to
refer him to a contractor/licensee. Charlton, 25 F.3d at
202 (defendant's lack of direct authority for ultimate adverse
decision does not eliminate a potential Title VII violation).
The ALJ's finding that Complainant was not as qualified as those
actually hired for positions at Respondent's other sites is
unexplained and undocumented. Upon thorough consideration of the
record in conjunction with the ALJ's decision, I conclude that
Complainant failed to prove either of his allegations concerning
prospective employment at Savannah River, but met his burden and
proved his allegation of Respondent's retaliatory refusal to
refer him for employment at Comanche Peak.
The allegations concerning Savannah River
Complainant contends that he made a prima facie
showing that
[PAGE 5]
Respondent refused both to refer him for employment at Savannah
River and to rehire him there in retaliation for his protected
activities. Further, Complainant alleges that Respondent failed
to meet its burden to produce any legitimate, nondiscriminatory
reason for these actions. Although Charles Healy, Respondent's
Director of Quality Assurance, testified that Complainant was not
qualified for any of the positions that were filled at Savannah
River after December 1, 1988, T-II at 152-53, Complainant implies
that Healy's statement does not constitute the "reason" for
Respondent's action. Complainant's position is that Healy merely
deferred to the judgment of his subordinates, Cutrona and Brandt,
neither of whom testified. Brief at 44. I reject the argument.
I find Healy's testimony sufficient to meet Respondent's
burden of production. Healy's testimony adequately raises
Complainant's qualifications as a fact at issue regarding the
question of whether Respondent discriminated against Complainant.
St. Mary's Honor Center v. Hicks, 113 S. Ct. 2742, 2747
(1993). [3] In claiming retaliatory refusal to hire or rehire
after layoff, a complainant ordinarily must show as part of his
prima facie case that he was minimally qualified for an
available job. Samodurov v. General Physics Corp., Case
No. 89-ERA-20, Sec. Dec., Nov. 16, 1993, slip op. 9-10, citing
McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802
(1973); seeBlake, slip op. at 5. The burden of
proving his qualifications for an available job at Savannah River
is on Complainant. [4]
The record does not establish that there were jobs available
at Savannah River after Complainant's lay off, either with
Respondent directly or with the contractor, for which Complainant
was qualified. The only specific evidence of available jobs at
Savannah River during the pertinent time period is Respondent's
Exhibit (RX) 10. RX 10 is a list of the quality assurance
personnel who were transferred, rehired, or newly hired by
Respondent between December 1, 1988, and June 13, 1989. There is
no evidence that there were any openings at Savannah River after
December 9, 1988, which were not on the RX 10 list. Hoops' vague
testimony that the Savannah River project was hiring is
insufficient. T-II at 52. Furthermore, unlike the Comanche Peak
allegation discussed below, there is no evidence that Cutrona
actually refused to refer Complainant to the contractor.
Except for the vendor surveillance positions, Complainant
does not point to or show any Savannah River job on the RX 10
list for which he was qualified. See T-II at 161. [5] Healy
convincingly explained that the positions open in vendor
surveillance dealt with equipment while Complainant's vendor
surveillance experience dealt solely with coatings. T-II at 163.
Healy's opinion is uncontroverted and is consistent with
Complainant's resume. Accordingly, Complainant does not prevail
[PAGE 6]
on either claim of retaliation at the Savannah River station
because he failed to prove he was qualified for any available
job.
The allegation concerning Comanche Peak
A. Violation
Hoops conceded that Complainant was qualified for the
thermolag position at Comanche Peak by virtue of his civil
coatings and structural background. T-II at 46, 94, 99. In
deciding who to include on the December 16 referral list to Texas
Utilities for the thermolag positions, Hoops testified that he
reviewed resumes in depth, reviewed availability lists, and
talked to people at various active projects. T-II at 15-16.
Respondent has no particular referral policy and Hoops claimed
that the decision was based solely on his assessment of relative
qualifications. In particular, he stated that because Doug Snow
of Texas Utilities had requested multi-certified personnel, if
possible, he selected applicants with "as broad a background in
as many disciplines as possible," including specific "coatings or
fireproofing or thermolag experience." T-II at 20, 21-22, 28,
82-83.
Complainant has established that Hoops' explanation is a
pretext and has established by a preponderance of the evidence
that he was retaliated against in violation of the ERA. See
Carroll v. Bechtel Power Corp., Case No. 91-ERA-0046, Sec.
Dec., Feb. 15, 1995, slip op. at 8-12 (restating and clarifying
the burdens of proof in whistleblower cases). Hoops ultimately
admitted that Complainant's resume indicates a multi-disciplined,
broad base of experience. T-II at 50. Although Complainant did
not have specific thermolag experience, neither did any of the
other persons on Hoops' December 16 list, and only a couple of
those on the list had actual fireproofing backgrounds. T-II at
63. At least one person included on the list had a certification
background narrower than Complainant's, and that person was most
recently employed in an area or discipline that Hoops testified
was unimportant to the thermolag position. Compare RX 4E
with T-II at 83. Of the entire South Texas Civil Coatings Staff,
as it existed on December 9, only Complainant was either omitted
from the December 16 list or not hired at Comanche Peak. RX 8.
There is no evidence that any of the others had been employed at
Comanche Peak previously. Although Hoops testified that he reviewed resumes in depth,
he then testified, "I don't know for a fact that I reviewed his
[Complainant's] resume." T-II at 16, 43-44. However, Hoops had
an intimate familiarity with Complainant's employment history
even though he had never been stationed in the same facility with
Complainant. I conclude that Hoops was familiar with Complainant
because Complainant's reputation and history as a whistleblower
[PAGE 7]
was well known among Respondent's managers, including Hoops.
Hoops hired Complainant to work at Comanche Peak initially.
At that time, and until early 1988, Hoops worked out of the home
office in New York and had responsibility over all administrative
type matters in the field. During those years the site manager
at South Texas reported to Hoops. T-II at 113. Hoops was aware
that Complainant had been transferred to South Texas. CX 3-7.
Cutrona was the site manager at South Texas until February
1988. See T-II at 180. Respondent's own personnel
manager, Bill Urell, testified that Cutrona referred to
Complainant as a "whistleblower." T-I at 51. Cutrona was fully
aware of Complainant's participation in the Comanche Peak ERA
hearing and Complainant's 1985 threat to contact the NRC, and he
suspected more. CX 10, letter from Cutrona to Hurst, dated
November 13, 1985; T-I at 51. [6]
Considering Hoops' responsibilities at South Texas during
the time when Complainant's threat to contact the NRC led to a
significant administrative action, i.e., Gliddon's
removal, and considering the working relationship between Cutrona
and Hoops, I find that Hoops knew of Complainant's involvement
and reputation as a whistleblower. Hoops admits that he was
aware that Complainant had testified at the ERA hearing at
Comanche Peak. See T-II at 106; see also CX 3-7.
In May 1988 Hoops became Respondent's site manager at
Comanche Peak. T-II at 14. Hoops testified that Doug Snow, who
made the request for personnel on behalf of Texas Utilities, was
a supervisor in the Quality Control Department at Comanche Peak
at the same time Complainant worked in that facility. T-II at
104. Hoops was aware of the magnitude of the Comanche Peak NRC
investigation, the prior connection between Complainant and Snow,
and Complainant's well-known reputation as a whistleblower.
Therefore, I find that Hoops excluded Complainant from the
December 16 list because he knew, or at least suspected, that
Snow would not be interested in rehiring a former inspector from
his department who had participated in an NRC investigation that
forced the PCHVP, caused substantial delay in the project, and
left the company with untold financial loss. [7] Bartlik v.
TVA, Case No. 88-ERA-15, Sec. Dec., Apr. 7, 1993, slip op. at
2-3; see Reich v. Hoy Shoe Co., Inc., 32 F.3d 361, 368
(8th Cir. 1994) (adverse action based on employer's suspicion of
protected activities violates OSHA). Complainant proved
that Respondent violated the ERA by refusing to refer him to
Texas Utilities for the thermolag job. [8]
B. Remedy
The ERA provides that upon finding a violation the Secretary
shall order the respondent to take affirmative action to abate
the violation and reinstate the complainant to his former
[PAGE 8]
position together with the compensation (including back pay),
terms, conditions, and privileges of his employment.
Compensatory damages are also available, and a complainant may
recover all costs and expenses reasonably incurred in bringing
the complaint. 42 U.S.C. § 5851(b)(2)(B).
This case is unique because the violation was committed by a
former employer who interfered with Complainant's prospects of
future employment. Because of the indirect employment
relationship, reinstatement is of course inappropriate.
Sibley Memorial Hosp. v. Wilson, 488 F.2d 1338, 1342 (D.C.
Cir. 1973). The more difficult question is whether Complainant
is entitled to the remedy of back pay. After thoroughly
reviewing the relevant case law, I conclude that he is.
Respondent's retaliatory refusal to refer Complainant's name
on the December 16 list eliminated Complainant's chance of being
hired in the thermolag job. Respondent
controlled access to the employment and denied Complainant such
access based on invidious criteria. Under these circumstances
Respondent should bear the burden of disproving Complainant's
entitlement to lost wages. SeeRutherford, 565
F.2d at 1164; Sibley Memorial Hosp., 488 F.2d at 1342.
I rely on the general principle that once discrimination has
been proven, a presumption of entitlement to back pay arises.
Lewis v. Smith, 731 F.2d 1535, 1538 (11th Cir.
1984). The burden then shifts to the employer to rebut
the presumption by showing that the discriminatee would not have
been hired absent the discrimination. Id.; Ostroff v.
Employment Exch., Inc., 683 F.2d 302, 304 (9th Cir. 1982)
(placing burden on discriminating employment agency). The
Department of Labor has applied this legal analysis in
determining damages in other discrimination cases.
OFCCP v. PPG Indus., Inc., Case No. 86-OFC-
9, Dep. Asst. Sec. Dec., Jan. 9, 1989, slip op. at 32-33.
[9]
Although the ALJ made a summary finding that Complainant was
not as qualified as those actually hired, the finding cannot be
upheld. Respondent did not present evidence concerning the
qualifications of all those selected and hired for the thermolag
jobs, and it is too late to do so now. See T-II at 38.
I recognize that in this case Respondent did not have
ultimate hiring authority over the thermolag positions.
Respondent argues there is "no way to speculate whether Snow
would have selected Artrip for hire." Respondent's Reply Brief
at 5. However, Respondent could have called Snow to testify, or
could have produced pertinent records regarding all the hires.
Considering Respondent's close, intertwined employment
relationship with the decisionmaking contractor, Texas Utilities,
the witness and the records should have been easily
accessible.
In determining the amount of back pay to which Complainant
[PAGE 9]
is entitled, the ALJ on remand shall be guided by the general
principles previously enunciated by the courts and the Secretary.
See, e.g., Pillow v. Bechtel Const., Inc., Case No. 87-
ERA-35, Sec. Dec., Jul. 19, 1993, slip op. at 25 (complainant has
burden to establish gross amount); Lederhaus v. Paschen,
Case No. 91-ERA-13, Sec. Dec., Oct. 26, 1992, slip op. at 10
(burden then shifts to respondent to prove failure to mitigate);
Williams v. TIW Fabrication & Mach., Inc., Case No. 88-
SWD-3, Sec. Dec., June 24, 1992, slip op. at 10-11 (addressing
numerous issues including disability, interim earnings,
unemployment compensation, and interest). On remand the ALJ must
also consider the issues of compensatory damages, attorneys'
fees, and expenses, and shall order posting or other appropriate
relief. Nathaniel v. Westinghouse Hanford Co., Case No.
91-SWD-2, Sec. Dec., Feb. 1, 1995, slip op. at 23.
Accordingly, this case IS REMANDED for the ALJ to fashion
appropriate relief.
SO ORDERED.
ROBERT B. REICH
Secretary of Labor
Washington, D.C.
[ENDNOTES]
[1] Because this case arises within the appellate
jurisdiction of the United States Court of Appeals for the Fifth
Circuit, I do not rely on Complainant's purely internal safety
complaints as protected conduct. See Brown & Root, Inc. v.
Donovan, 747 F.2d 1029 (5th Cir. 1984) (ERA does not protect
intracorporate reports).
[2] I note that Complainant clearly was an "applicant" for
reemployment. Complainant was included on the November 30 list
of potential hires that was circulated among Respondent's
managers with hiring authority. Furthermore, it is
uncontradicted that at the time of his layoff Complainant was
told by his supervisor that all of the inspectors in his
department would be referred for the thermolag jobs at Comanche
Peak. T-I at 107. An employer may provide its employees with
many benefits that it is under no obligation to furnish, but
those benefits may not be doled out in discriminatory fashion.
Hishon v. King & Spalding, 467 U.S. 69, 75 (1984).
[3] In its briefs, Respondent offers additional reasons for the
adverse employment decisions. These reasons, not previously
clearly articulated, are insufficient to meet Respondent's
burden, and I do not consider them. Texas Dept. of Comm.
Affairs v. Burdine, 450 U.S. 248, 255 n.9 (1981).
[4] Contrary to the ALJ's ruling, a complainant need not show
that he was "treated differently from other similarly situated
employees" to establish a prima facie case. DeFord v.
Secretary of Labor, 700 F.2d 281, 286 (6th Cir. 1983);
Helmstetter v. Pacific Gas & Electric Co., Case No. 91-
TSC-1, Sec. Dec., Jan. 13, 1993, slip op. at 9.
[5] I do not accept Complainant's attempt to bring clerical
jobs into this dispute. The loss of a clerical job clearly was
not the subject of his complaint.
[6] There is evidence that Complainant's immediate supervisor
at South Texas, Gliddon, also perceived Complainant as a
"troublemaker" because he had been involved in whistleblower
allegations at Comanche Peak. CX 10 Statement of Russell Boutin;
see T-I at 133.
[7] I reject Hoops' claim that at the time he prepared the
December 16 list for referral to Texas Utilities he could not
"recollect" if Complainant had been involved in the Comanche Peak
coatings investigation. T-II at 106. Hoops knew that
Complainant had been a coatings inspector there when the major
NRC investigation into coatings failures took place and the
resultant stop-work order ensued. See T-II at 112, 65; T-
I at 56. Although Hoops was unaware of Complainant's protected
activity in November and December, 1988, Hoops' refusal to refer
Complainant was based on earlier protected activity.
[8] Even assuming this to be a case of "dual motives,"
Respondent failed to prove, or argue, that it would have made the
same decision -- to exclude Complainant's name from the December
16 list -- even if Complainant's protected activity did not play
a role in that decision. Price Waterhouse v. Hopkins, 109
S. Ct. 1775, 1787-88 (1989).
[9] I am aware that in Charlton the court stated that
the employee must demonstrate that but for the former employer's
intervention, the "revocation proceeding [which would result in
lost employment] would not have gone forward." 25 F.3d at 202.
This case is different. The revocation proceeding in
Charlton could have gone forward based on the employee's
conduct, irrespective of the employer's intervention. Here, the
employer's omission is an independent cause of Complainant's
failure to be considered for the thermolag job.
