DATE: September 18, 1995
CASE NOS. 90-ERA-29
90-ERA-46
90-ERA-53
IN THE MATTER OF
CURTIS GIBSON,
COMPLAINANT,
v.
ARIZONA PUBLIC SERVICE COMPANY,
RESPONDENT.
BEFORE: THE SECRETARY OF LABOR
FINAL DECISION AND ORDER
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 January 2, 1992.
Complainant, Curtis Gibson, was employed by Butler Service
Group, Inc. (Butler) as a temporary plant electrician at Palo
Verde Nuclear Generating Station (Palo Verde) from February 1989
until January 1990, when he was laid off. Transcript (T.) at
149. Respondent, Arizona Public Service Company (APS), a public
utility that furnishes electric service throughout Arizona,
manages the operation of Palo Verde. Gibson was supervised by
APS personnel. T. at 159.
After his lay-off, Gibson filed three complaints against
APS. He alleges that APS violated the ERA when it (1) released,
suspended, and reprimanded him in December 1989, (2) misplaced
his application for reemployment at Palo Verde, and (3) refused
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to rehire him in April 1990. The complaints were consolidated
for hearing. After conducting a lengthy hearing, the ALJ
determined that the allegations should be dismissed. I agree, as
explained below.
DISCUSSION
After recounting the evidence, the ALJ correctly indicated
that the burdens of proof and persuasion in whistleblower cases
are set forth in Dartey v. Zack Co. of Chicago, Case No.
82-ERA-2, Sec. Dec., Apr. 25, 1983, slip op. at 7-9. R.D. and O.
at 16. Although he made several errors in finding that Gibson
established a prima facie case, the errors do not change
the outcome of this case.
In view of these errors, the ALJ's ruling that Gibson
established a prima facie case is suspect. However, as
the Secretary has explained in numerous cases, once the case is
"fully tried on the merits," the answer to the question whether
the complainant made a prima facie showing is not
particularly useful. E.g., Carroll v. Bechtel Power
Corp., Case No. 91-ERA-0046, Sec. Dec., Feb. 15, 1995, slip
op. at 11, appeal filed, No. 95-1729 (8th Cir. Mar. 27, 1995).
APS articulated legitimate, nondiscriminatory reasons for its actions, and
thus, the question becomes whether the explanation is pretextual and
whether Gibson met his ultimate burden to prove by a
preponderance of the evidence that the actions were taken in
retaliation for protected activity. Carroll, slip op. at
11-12; seeSt. Mary's Honor Center v. Hicks, 113 S.
Ct. 2742, 2747 (1993). The ALJ proceeded to consider the entire
record and reached the conclusion that Gibson failed to meet his
ultimate burden. After thoroughly reviewing the evidence, I find
that the ALJ's conclusion is sound.
I first note that it is unnecessary to consider Gibson's
second claim that APS mishandled his December application for
reemployment. In his brief before the Secretary, Gibson, who has
been represented by counsel throughout the proceeding, waives
that claim. Brief at 2 n.1. In addition, the propriety of
Gibson's lay-off is not an issue in this proceeding.
Protected Activity and Adverse Actions
There is no dispute that Gibson was subjected to adverse
employment actions and that he engaged, to some extent, in
protected activity during the course of his employment. On
December 19, 1989, Gibson threatened to contact the NRC, and he
subsequently followed through. See 42 U.S.C. §
5851(a)(1), (3); Saporito v. Florida Power & Light Co.,
Case No. 89-ERA-7/17, Sec. Dec., Feb. 16, 1995, slip op. at 5
(threat to go to the NRC protected); McCuistion v. TVA,
Case No. 89-ERA-6, Sec. Dec., Nov. 13, 1991, slip op. at 7
(safety complaint communicated to NRC protected).
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Contrary to APS' argument, Gibson also engaged in protected
activity prior to December 19. As early as May 1989, Gibson
began complaining that a particular electrical procedure,
13JZZI004, was too confusing to be followed with accuracy.
See T. at 166-67. In September 1989, Gibson raised a
concern about radiation exposure resulting from valve operation,
and he suggested that APS alter the mechanism to reduce exposure.
T. at 162, 248; Complainant's Exhibit (CX) 29. In November, he
complained that he was being assigned to work on a reactor with
insufficient training. T. at 177, 256. He also questioned,
continuously during his employment, whether APS was providing
adequate maintenance of gear boxes. T. at 170-75. Questioning
safety procedures and raising safety issues internally constitute
protected activity. See Bechtel Const. Co. v. Secretary of
Labor, 50 F.3d 926, 931 (11th Cir. 1995); Mackowiak v.
University Nuclear Sys., Inc., 735 F.2d 1159, 1162 (9th Cir.
1984).
The fact that many other Palo Verde workers raised similar
internal safety concerns in the course of performing their jobs,
though relevant to issues of causation, does not render Gibson's
concerns unprotected. Cf. Jopson v. Omega Nuclear
Diagnostics, Case No. 93-ERA-0054, Sec. Dec., Aug. 21, 1995,
slip op. at 6 (reporting safety violations even in the course of
one's regular duties is protected). In addition, there is
evidence that in November, Gibson told the Employee Concerns
manager that he was considering contacting the NRC about safety
and morale problems in the shop. T. at 89, 182-83.
The Release, Suspension, and Reprimand
The record fully supports the ALJ's decision to credit APS'
explanation of why it released, suspended, and reprimanded Gibson
in December 1989. Gaylon Olson, Gibson's supervisor, testified
that he decided to release Gibson in mid-December, almost
immediately upon confirming that Gibson violated a company
policy. Olson explained that he wanted to demonstrate his firm
position on that policy. T. at 341-42. Considering the record
as a whole, Olson's testimony is inherently probable and highly
credible.
During 1989 morale was low in Gibson's department. T. at
183. There was a significant amount of friction, name-calling,
and finger-pointing between the workers. T. at 69, 104.
According to Gibson, there was "massive confusion, backstabbing,
. . . distrust, suspicions, [and] accusations." T. at 183. The
primary conflicts were over pro-union and anti-union sentiments
and between direct employees and contract employees. T. at 336,
190. Eventually, one of the workers, Kathy Smith, filed a
complaint with APS' Employee Concerns Department in October 1989,
alleging that Gibson and several others were harassing her
because she was a "whistleblower." See T. at 66-67, 70-
71, 103,
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116, 134-35; Respondent's Exhibit (RX) 5. In turn, several
workers filed complaints with the APS supervisor alleging that
Smith was harassing them. T. at 139-40. APS concluded the
investigation of these complaints by issuing a memorandum, which
a manager read aloud on December 1, 1989. T. at 103. The memo
advised that incidents of harassment will not be tolerated, and
further stated:
Any employee engaging in comments or conversations
regarding an employee who has contacted Employee
Concerns could face disciplinary action and possible
termination. APS employees will be disciplined using
the step-wise method and contract employees will be
disciplined through their respective companies. . . .
I'll ask you to refrain from finger pointing and the
use of names. . . . It should be noted that failing to
follow these instructions may subject you to
disciplinary actions.
RX 5. Gibson was informed personally of the memo and its warning
on December 1. T. at 194, 275.
On December 10, Smith complained that Gibson was harassing
her again. T. at 116-17. It is undisputed that Gibson made a
derogatory remark about Smith several days after the December 1
memo was issued. T. at 201, 276-77; RX 10. On December 19,
following an investigation, Gibson was notified that he was being
terminated or, more precisely, "released back" to Butler, his
contractor. T. at 202-203; CX 31.
This evidence that Gibson engaged in wholly unprotected
misconduct immediately before Olson's decision belies a causal
connection between earlier, ongoing protected activity and
Olson's decision. See Monteer v. Milky Way Transp. Co.,
Inc., Case No. 90-STA-9, Sec. Dec., Jul. 31, 1990, slip op.
at 4. Moreover, the ALJ credited Olson's testimony that at the
time he decided to release Gibson he had no knowledge of Gibson's
having raised safety concerns. T. at 344. Gibson does not claim
that he raised his concerns with Olson, and again, Olson's
testimony is believable in view of his minimal contacts with
Gibson; the large size of the department and number of foremen
underneath Olson; and the distant location of his office in
relation to the shop. T. at 268, 333-34. Thus, Gibson's pre-
December 19 protected activities could not have motivated Olson's
decision.
Furthermore, Gibson admitted that APS upper management and
foremen constantly encouraged employees to raise their safety
concerns. T. at 238-243, 248. His department had safety
meetings almost weekly, during which he and others raised
concerns. T. at 244, 246, 249. Numerous people raised concerns
about 13JZZI004. T. at 250. According to Gibson, "[u]pper
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management at Palo Verde let it be known that they wanted us to
reduce radiation levels." T. at 249. Given this compelling
evidence of a pervasive policy encouraging safety complaints, I
am unpersuaded that retaliation was a factor in Olson's decision.
See Moon v. Transp. Drivers, Inc., 836 F.2d 226, 229 (6th
Cir. 1987).
After being informed of Olson's decision, Gibson requested a
meeting with James Levine, APS' Vice-President of Nuclear
Production. T. at 205, 28, 287. In complaining about the
release, Gibson threatened to take safety concerns to the NRC.
T. at 205. Gibson conceded that Levine never discouraged him
from contacting the NRC. T. at 282. As a result of the meeting,
Levine reversed Olson's decision to release Gibson, and Gibson
instead was suspended for three days. Levine testified that he
concluded that the violation was not severe enough to warrant release. T. at 46. The ALJ credited Levine's testimony, and I
find no reason to disturb his finding.
In reducing Gibson's punishment, APS also issued a written
reprimand, dated December 22, 1989. CX 37. Olson did not order
or authorize the reprimand and Levine did not recall knowing of
the reprimand until he gave his deposition. Both testified that
they believed it was against APS' policy to reprimand a contract
employee. T. at 49, 360. Ron Eban, who was substituting for
Olson while he was on vacation in late December, signed the
letter of reprimand. T. at 375. Gibson claims that APS failed
to articulate a rationale sufficient to meet its burden with
regard to the letter of reprimand. I disagree.
David Heler, APS' Supervisor of Employee Relations, and
another manager actually drafted the letter. T. at 382. Heler
testified straightforwardly that he issued the letter at the
request of Levine, in consultation with Butler, and that it was
based strictly on Gibson's violation of the December 1 memo. T.
at 381-82, 384. Even though the letter was out-of-the-ordinary
and was issued on APS stationary, I am not convinced that
retaliatory animus was a factor, particularly since Levine's
reversal of the initial disciplinary decision was itself
atypical. See T. at 396, 413. Butler's site
representative, Betty Drake, testified that she was consulted but
asked Heler to draft the letter. She believed Gibson should have
been released as originally decided. See T. at 407-408.
Nor does the fact that Levine did not recall the reprimand letter
render Heler's explanation void or even contradicting. I,
therefore, reject Gibson's arguments that the letter was
retaliatory because it deviated from company policy.
There is considerable evidence indicating that Gibson
threatened to go to the NRC on December 19 as "leverage."
See T. at 406, 288, 285. While the ERA prohibits
retaliation based on
[PAGE 6]
protected activity regardless of the whistleblower's motives,
Carter v. Elec. Dist. No. 2, Case No. 92-TSC-11, Sec.
Dec., Jul. 26, 1995, slip op. at 19, in this case the adverse action
was initiated before Gibson's December 19 protected activity. At
that time APS already had determined, for legitimate and
nondiscriminatory reasons, that punishment was warranted. While
the punishment may have been reduced as a result of Gibson's
protected activity during the December 19 meeting with Levine,
Gibson's suspension and reprimand cannot be considered actionable
retaliation within the meaning of the ERA.
The Refusal to Hire
In March 1990, Gibson was one of seventeen workers referred
to APS for possible reemployment on a valve crew. He was not one
of the eight selected. The decision was made by Warren Weems,
who succeeded Olson upon his retirement. T. at 445, 352. Weems
had been a foreman in Gibson's department, and though he never
supervised Gibson directly, he was aware of Gibson's involvement
in the "childish bickering" and was aware that Gibson violated
the December 1 memo. See T. at 428-433. In addition,
Weems testified candidly that Gibson told him about contacting the NRC
and using it as leverage to keep his job. T. at 434, 467.
Weems explained, however, that his decision was based on his
knowledge and information about the applicants' work experience
and work habits. See T. at 445-451. Specifically, he
decided not to select Gibson based on Gibson's limited nuclear
experience and education, lack of apprenticeship, remarks about
other workers, and poor quantity of work. T. at 453-54, 469-70.
I have considered the arguments and relevant evidence
carefully, and I find that Gibson failed to meet his burden to
prove that Weems' explanation is a pretext for retaliation.
While Gibson had extensive experience as an electrician, he had
less nuclear experience than any of those selected. In fact,
Gibson only claimed that two of the eight who were hired were
less qualified than he. T. at 235-36. In his deposition, Gibson
even conceded that he "had no quarrels" about one of the two. T.
at 297. All eight had recent experience at Diablo Canyon Nuclear
Power Plant in addition to Palo Verde; Gibson did not.
See RX 14-21; T. at 490, 552-54, 595.
Further, Weems relied upon past contact with Gibson in
making the decision not to hire him. In August 1989, Weems
assisted in investigating the morale problem and interviewed
Gibson. It is undisputed that at that time Gibson "expressed a
desire not to work with Manny Salcido, Dick Wendt, and Kathy
Smith." T. at 258. Weems claims that Gibson actually stated
that "if he ever got assigned to work with those people, that he
wouldn't work with them, he would go home sick." T. at 430.
Weems' version is more credible because it is partially
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corroborated by documentary evidence, RX 9, and is consistent
with Gibson's otherwise hostile attitude. For example, in
responding to other conflicts in the workplace, Gibson publicly
commented that he would "take care of the problem" himself. T.
at 266. It is not surprising that Gibson's remarks about co-
workers "stuck" in Weems' mind, T. at 453, especially since
Salcido was working on the job with the valve crew members. T.
at 464, 487, 587.
Weems testified that it seemed like Gibson spent too much
time in the shop talking and doing other things when he should
have been working. T. at 454. Weems' perception is reasonable
since Gibson played such a prominent and active role in the shop
bickering. Contrary to Gibson's argument, Weems' perception was
not based solely on Gibson's behavior after December 19, rather,
Weems referred to the whole of Gibson's employment. Id.
Nor does the record establish that Gibson was more productive
than one of the chosen applicants, as Gibson alleges. In
contrast, the record shows that several of the eight Weems hired,
including Gibson's two sons, also had engaged in protected
activity of which Weems was aware. T. at 249, 455, 486, 590.
I conclude that Gibson's protected activity played no part
in Weems' decision. Even assuming that Gibson's protected
activity played some part in the decision, Respondent has shown
that it would not have selected him in any event, based on
relative qualifications and his remarks about co-workers. See
Price Waterhouse v. Hopkins, 490 U.S. 228, 244-45 (1989).
Accordingly, this case IS DISMISSED.
SO ORDERED.
ROBERT B. REICH
Secretary of Labor
Washington, D.C.
