DATE: February 1, 1995
CASE NO. 91-SWD-2
IN THE MATTER OF
PAULA D. NATHANIEL,
COMPLAINANT,
v.
WESTINGHOUSE HANFORD COMPANY,
RESPONDENT.
BEFORE: THE SECRETARY OF LABOR
DECISION AND ORDER
Complainant Paula Nathaniel brings the captioned complaint
of unlawful discrimination against her employer, the Westinghouse
Hanford Company (WHC), under the employee protection provisions
of the Solid Waste Disposal Act (SWDA), also known as the
Resource Conservation and Recovery Act (RCRA), 42 U.S.C.
§ 6971 (1988); the Comprehensive Environmental Response,
Compensation and Liability Act (CERCLA), 42 U.S.C. § 9610
(1988); the Clean Air Act (CAA), 42 U.S.C. § 7622 (1988);
and the applicable regulations which appear at 29 C.F.R. Part 24
(1994). In his March 6, 1992, Recommended Decision and Order
(R.D. and O.), the Administrative Law Judge (ALJ) determined that
the complaint should be dismissed because it was untimely,
because Complainant engaged in no protected activity under the
above statutes, and because Respondent did not retaliate against
Complainant. I disagree. Accordingly, the ALJ's decision is
rejected.
FACTUAL BACKGROUND
In mid-1989, Complainant Paula Nathaniel began work for
Respondent Westinghouse Hanford Company (WHC) as a chemical
scientist in its Analytical Chemistry Group assigned to assist in
[PAGE 2]
cleaning up the Hanford Superfund Site pursuant to an agreement
by WHC, the State of Washington, and the U.S. Department of
Energy (DOE). [1] Hearing Transcript (T.) 33. During the
midnight to noon shift on October 22, 1990, Nathaniel was
assigned to monitor hydrogen gas expelled or "vented" from
Underground Tank 241-SY-101 located at the site's waste storage
tank farm. [2]
T. 36-38. At 2:00 a.m., Nathaniel requested that Becky Reid, an
attendant Radiation Protection Technologist (RPT), survey
Nathaniel out of the instrument shack monitoring location -- a
radiation zone. [3] Reid refused, stating "that it wasn't her
job, and she proceeded to light up a cigarette." T. 42
(Nathaniel). "No Smoking" signs were posted prominently in the
area.
Nathaniel subsequently complained about Reid's refusal and
smoking, specifically about the perceived health (radiation) and
safety (explosion) hazards. Because of difficulty encountered in
locating various managers on the Hanford Site, Nathaniel lodged
her complaint as a priority message from General Delivery on the
CC mail computer, which she directed to David Dodd, her manager,
Thomas Lane, Dodd's deputy, and RPT Reid's managers. Compl. Exh.
7. This mail system is accessible to anyone on-site, including
"the Boeing people, the Westinghouse people, the Department of
Energy." T. 61, 63. Under site procedures, the report of such
an incident is catalogued as an "off-normal" report and
transmitted to DOE. T. 541, 563 (Dodd).
Upon receiving his computer mail, Manager Dodd telephoned
Nathaniel and directed her to rescind her message and destroy any
copies. Nathaniel refused. Dodd became "exasperated" and
"adamantly requested" rescission. T. 545-547 (Dodd). When
Nathaniel persisted in her refusal, Dodd "hung up on [her]."
T. 66-67. Dodd was concerned that Nathaniel's written complaint
could be obtained under the Freedom of Information Act (FOIA) and
that it might possibly end up on the front page of the Los
Angeles Times. T. 64, 463-465, 504, 558-562; Compl. Exh. 12 at 1
(seventh paragraph (par.)).
Less than two weeks later, Dodd met with Nathaniel to
discuss her performance appraisal, at which time he concurred
that she should rotate out of the Analytical Chemistry Group and
find a position elsewhere at WHC. T. 233-234; Respondent's
Exhibit 1 (Resp. Exh.) at 16-17. Thereafter, Dodd, along with
WHC personnel representatives, encouraged and assisted in
Nathaniel's rotation. T. 446-448, 466-468, 478-479; Compl. Exhs.
12, 14, 18 ("Decided to transfer [Nathaniel]. [Human Resource
Specialist] Nancy Montano helping find new job."). Although
Nathaniel decided to resign rather than rotate to a less
desirable position, she untimely departed WHC on a partial
[PAGE 3]
disability. [4]
DISCUSSION
A. The Legal Standard
To prevail on a whistleblower complaint, a complainant must
establish that the respondent took adverse employment action
against her because she engaged in an activity protected under
the applicable statute. A complainant initially must show that
it was likely that the adverse action was motivated by a
protected activity (prima facie showing). [5] Guttman v.
Passaic Valley Sewerage Comm'rs, Case No. 85-WPC-2, Sec.
Dec., Mar. 13, 1992, slip op. at 9, aff'd sub nom.
Passaic Valley Sewerage Comm'rs v. Department of Labor, 992
F.2d 474 (3d Cir.), cert denied, 114 S.Ct. 439 (1993).
The respondent may rebut such a showing by producing evidence
that the adverse action was motivated by a legitimate,
nondiscriminatory reason. The complainant then must prove that
the proffered reason was not the true reason for the adverse
action and that the complainant's protected activity was the
reason for the action. St. Mary's Honor Center v. Hicks,
113 S.Ct. 2742 (1993). In the event that a complainant
demonstrates that the respondent took adverse action in
part because she engaged in a protected activity, the burden
shifts to the respondent to demonstrate that the complainant
would have been disciplined even if she had not engaged in
the protected activity. Pogue v. U.S. Dep't of Labor, 940
F.2d 1287, 1289-1290 (9th Cir. 1991); Mackowiak v. Univ.
Nuclear Sys., Inc., 735 F.2d 1159, 1164 (9th Cir. 1984).
B. The Merits
Under the SWDA/RCRA, employees are protected against
discrimination for filing or instituting "any proceeding under
this chapter or under any applicable implementation plan . . ."
42 U.S.C. § 6971(a). The CERCLA provides:
No person shall fire or in any other way discriminate
against . . . any employee . . . by reason of the fact
that such employee . . . has provided information to a
State or to the Federal Government, filed, instituted,
or caused to be filed or instituted any proceeding
under this chapter, or has testified or is about to
testify in any proceeding resulting from the
administration or enforcement of the provisions of this
chapter.
42 U.S.C. § 9610(a). The CAA employee protection provision
is similar. 42 U.S.C. § 7622(a).
Internal complaints to management constitute activity
protected under the environmental statutes and the related
employee protection provision of the Energy Reorganization Act of
1974, as amended (ERA), 42 U.S.C. § 5851 (1988). Passaic
Valley Sewerage Comm'rs v. Department of Labor, 992
F.2d at 478;Jones
[PAGE 4]
v. Tennessee Valley Auth., 948 F.2d 258, 264 (6th Cir. 1991);
Kansas Gas & Elec. Co. v. Brock, 780 F.2d 1505, 1513 (10th
Cir. 1985), cert. denied, 478 U.S. 1011 (1986);
Mackowiak v. University Nuclear Sys., Inc., 735 F.2d at
1163. But seeBrown & Root, Inc. v. Donovan, 747
F.2d 1029, 1036 (5th Cir. 1984) (internal complaints not
protected). For example, in Passaic Valley, an employee's
internal complaints about possible violations of the Clean Water
Act constituted protected activity under that Act's employee
protection provision, which closely resembles the provisions at
issue here. SeeYellow Freight Sys., Inc. v.
Martin, 954 F.2d 353, 357 (6th Cir. 1992) (protection of
internal complaints under the analogous Surface Transportation
Assistance Act employee protection provision is not dependent on
actually proving a violation). Nathaniel thus filed an internal
safety and health complaint which ultimately was transmitted
externally to DOE. T. 563-564 (Dodd). The question then becomes
whether the substance of Nathaniel's complaint falls under the
particular "chapter[s]" or "applicable implementation plan[s]"
involved.
Nathaniel's complaint focused on procedures for monitoring
DST 241-SY-101, [6] which is operated in accordance with a
Double-Shell Tank System Dangerous Waste Permit Application.
That application is interpreted pursuant to the RCRA which
governs, inter alia, the treatment, storage,
transportation and disposal of dangerous waste. Compl. Exh. 1 at
iii. CERCLA provisions also apply. See, e.g., id.
at 2-26. The application expressly addresses tank ventilation,
monitoring for hydrogen emissions, and radiation control.
Id. at 4.2.8.2.1.1.4, 4.2.8.2.1.2.4, 6.4.5, 6.5.1.
See 40 C.F.R. §§ 260.10, 265.17 (1993)
(SWDA/RCRA requirements for ignitable, reactive or incompatible
wastes). [7] The application also recognizes the hazard
presented to the public by emission of regulated chemicals and
radionuclides into the air and expressly requires compliance with
the CAA. Id. at 4.2.8, 9.2.3, 13.2.
In these circumstances, Nathaniel's entire complaint
"touched on" subjects regulated under the pertinent statutes.
Johnson v. Old Dominion Security, Case Nos. 86-CAA-3,
et seq., Sec. Dec., May 29, 1991, slip op. at 13-15 and
n.8, citingAurich v. Consolidated Edison Co. of New
York, Inc., Case No. 86-CAA-2, Sec. Remand Dec., Apr. 23,
1987, slip op. at 4. Specifically, Nathaniel was concerned that
an explosion could have resulted in emission of dangerous
chemicals and radionuclides into the environment in violation of
the CAA and RCRA, and subject to disclosure under the CERCLA; and
Reid's radiation exposure and the confusion over radiation
surveying procedures were covered under the DOE-RL RCRA Permit
Application.
The ALJ found that Nathaniel did not believe in the
[PAGE 5]
existence of an explosion hazard. Rather, he attributed her
motivation to longstanding "controversy" between Nathaniel and
Reid "concerning the duties [that] an [R]PT owed a `scientist'
like Nathaniel," the implication being that these employees were
quarreling over status and accommodation. [8] R.D. and O. at 6,
10-12. Compare T. 298-299. The weight of the evidence
does not support these findings, and I reject them.
About six months prior to Nathaniel's complaint, DOE-RL had
raised concerns about the buildup of hydrogen gas in DST 241-SY-
101, and WHC had apprised its employees, including Nathaniel, of
special operating procedures being implemented around the tank.
T. 39-40, 42, 44, 48-49, 102; Compl. Exhs. 2-6. For example,
managers were directed: "Use only spark resistant tools; no
grinding, drilling, welding, or other activities which could
produce heat or sparks." Compl. Exh. 5 at 1. Many of these
procedures ultimately were incorporated into the RCRA Permit
Application. Seee.g., Compl. Exh. 1 at 6.5.1,
9.2.3.3. [9]
WHC's technical experts also began studying the tank in
order to formulate a program for its safe operation. Sidney
Hodge, WHC's Manager of Industrial Safety, testified: "I have
fire protection engineers, I have industrial hygienists, I have
safety engineers who work for me; and there was a number of us
that worked as a team with just a mountain of people, experts
from all over the place that started putting this program
together." T. 606. These experts subsequently "spent hours"
establishing areas for employee operation and generated
"truckloads of studies . . . while . . . putting this 101-SY
program together." T. 607-608, 616 (Hodge).
The DST 241-SY-101 ventilation system is designed and
operated to remove heat and vapor, including hydrogen gas, from
the tank while simultaneously containing the dangerous and
radioactive waste particulates. It consists of a primary (K1)
ventilation system which services the primary tank immediately
housing the waste and a secondary (K2) system which services the
"annulus" space between the primary and secondary tanks within
the double-shell configuration. Compl. Exh. 1 at
4.2.8.2.1.1.4.1, 4.2.8.2.1.2.4.1, F (Figure) 4-99. Filtered air
enters through "risers," migrates through the tank and annulus,
and is exhausted through a filtered stack. The exhaust stack
vents in an area removed "from the breathing space, the air space
that people occupy." T. 505 (Dodd).
Other risers extend out of the top of the tanks above ground
and are used for accessing tank contents. Manager Hodge
testified:
A. If they're going to breach containment [in the
tank], they remove a riser, a riser cover. . . . A
[PAGE 6]
riser is . . . a pipe that's attached to the tank that's covered,
protected, capped. And when we remove the cover, we can lower
probes into the tank . . . .
Q. So there's a direct entry from the outside to the
inside of the tank . . . .
A. Yes.
T. 601. He also testified that if containment is breached,
vapors, including hydrogen gas, can "come out right where you're
at, right where you're working. So that's why you would use
spark-proof tools to do that operation." T. 601-602. In other
words, you would "create a spark-free area around that particular
breach." T. 602. According to Hodge, because containment should
not be breached during a venting episode, RPT Reid's smoking
should not have posed an explosion hazard. [10] He testified,
however, that "there [was] some potential" for a fire in the
instrument shack and that he did not know whether such a fire
would ignite the tank or if WHC had studied that issue in
assessing safe operating procedures at DST 241-SY-101. [11]
T. 622-623.
In finding that Nathaniel did not believe in the existence
of an explosion hazard, the ALJ reasoned that the gas
chromatograph (GC) used by Nathaniel to monitor the hydrogen burp
was not intrinsically safe, i.e., it was not appropriate
for use in a spark-free zone, and that Nathaniel "surely" was
aware of her instrument's limitations. R.D. and O. at 11 (fourth
and fifth full pars.). The ALJ failed, however, to consider
other evidence. Nathaniel testified that although she believed
that the column in some GCs may be heated, she was not aware of a
specific heat source on her GC. T. 307. She also testified that
she was not technically knowledgeable about tank containment.
T. 127-128.
Nathaniel was a chemist, not an engineer. Her job consisted
primarily of setting up, testing, and monitoring analytical
methods and instrumentation and establishing a site laboratory.
T. 33; Compl. Exh. 1 at 8-16 (chemist/scientist). Even Chemist
Supervisor Dodd, Manager of the Analytical Chemistry Group,
testified that he was not, as a scientist or manager, "competent"
to judge whether the cigarette smoking at issue constituted an
explosion hazard. T. 537-538. Rather, he relied on the safety
analysis performed by WHC experts, which was not available to
Nathaniel. Viewed from Nathaniel's perspective, the
circumstances reasonably suggested an explosion hazard, and I am
aware of no evidence refuting her stated concern that a hazard
existed. Accordingly, Nathaniel engaged in protected
activity. [12]
Nathaniel also suffered adverse employment action. The
[PAGE 7]
statutes at issue prohibit employers from discharging employees
or otherwise discriminating against them with respect to their
compensation, terms, conditions or privileges of employment
because they have engaged in protected activity. The applicable
regulations provide that "[a]ny person is deemed to have violated
the particular federal law and these regulations if such person
intimidates, threatens, restrains, coerces, blacklists,
discharges, or in any other manner discriminates against [the
protected] employee . . ." 29 C.F.R. § 24.2(b). Thus, the
intimidation and coercion brought to bear by Nathaniel's
supervisor in his attempt to rescind the complaint constituted
adverse action as did WHC's decision to transfer Nathaniel to a
less desirable position. [13] The issue of causation is closer,
however.
Respondent argues that Manager Dodd pressured Nathaniel to
rescind her complaint because it was "confusing." Dodd testified
on direct examination: "But there was so much superfluous
information contained in it, the safety portion of it was lost.
And as a result of that, I asked her to withdraw it, to clean up
the verbage, to state her position." T. 502. I am not
persuaded, however, that Dodd was concerned with Nathaniel's
"verbage."
Nancy Conrad, a WHC Employee Concerns Representative who
assisted Dodd in transferring Nathaniel, testified that Dodd
objected to Nathaniel's raising the issue of Reid's smoking with
RPT managers and rendering the information accessible to the
media under the FOIA. [14] T. 463-465; Compl. Exh. 12 (notes of
Dodd interview). Dodd's hearing testimony on cross-examination
is consistent with Conrad's account, T. 558-559, and during an
earlier deposition he testified that, in directing Nathaniel to
rescind her complaint, he was attempting to dispose of the issues
without involving the press or DOE. T. 561-562. [15] Finally
and importantly, Dodd similarly directed Kenneth Kunzweiler, one
of Nathaniel's co-workers, to rescind his very concise electronic
mail message about Reid's smoking, which markedly lacks the
"verbage" that Dodd assertedly found objectionable in Nathaniel's
message. Compl. Exh. 7 at SY 4; Resp. Exh. 1 at 6. Based on
this evidence, I find that the substance of Nathaniel's complaint
motivated Dodd to demand recission.
Nathaniel complained about Reid's smoking on October 24,
1990, and Dodd attempted to coerce rescission of her message
immediately upon its receipt. He criticized Nathaniel for
complaining less than two weeks later during their November 6
meeting concerning her performance appraisal. Resp. Exh. 1 at 3,
6. During that meeting Dodd also discussed Nathaniel's rotation
out of his group. Dodd and others [16] pressured her to rotate
thereafter, and at some point prior to early December, Dodd or
[PAGE 8]
other WHC management decided to transfer her. Compl. Exh. 18.
On December 4, 1990, Nathaniel decided that, rather than accept a
transfer, she would quit. Resp. Exh. 2 at 13 (fourth full par.).
The proximity in time between the protected activity and adverse
action supports an inference of causation for purposes of a prima
facie case. [17] Moreover, other evidence persuades me that
Nathaniel's protected activity was the reason for the adverse
action.
Complainant's Exhibit 18 was provided by WHC in response to
a discovery request, but efforts to ascertain the identity of the
author were unsuccessful. T. 646. The fourth and fifth pages of
the exhibit (numbered 002006 and 002007) comprise a witness
statement provided by Thomas Lane, Dodd's deputy, to an
investigator in WHC's Security/Internal Investigation Section.
The first and second pages of the exhibit (numbered 002003 and
002004) are notes of a telephone interview with Dodd compiled in
early December 1990. In this interview, the notations that WHC
had "[d]ecided to transfer P[aula] N[athaniel]. Nancy Montano
helping find new job," "N. Montano stated PN no longer worked for
Dodd other than on paper. To receive new position," and "Dodd
was not aware if PN was to report to him or H[uman] R[esources]
on Monday" appear along with the notation: "Dodd Fri. - Montano
stated P.N. will be on the front pages of the Herald.
Unsolicited comment." As discussed above, the possibility of
media access motivated Dodd to coerce rescission of Nathaniel's
complaint. It likewise appears linked to WHC's transfer
decision.
Also recorded in Complainant's Exhibit 18 is the notation:
"Problem with PN for 6 months. Personnel problems. H[uman]
R[esources] was monitoring." This rationale suggests a
legitimate motivation for transferring Nathaniel. Dodd's
testimony on this issue is contrary.
As early as February 1990, Nathaniel experienced
difficulties with Steve Metcalf, her team leader. Although,
during the summer of 1990, Dodd attempted to arrange
"facilitator" sessions with Jenepher Field, an Employee
Assistance Specialist in WHC's Human Resources Department, no
sessions were held until the fall. Dodd testified: "I believe
that I began trying to set up the meetings with Jenepher in June
or July, and with vacations and I was gone and she was gone, Paula was gone, it was probably fall when we finally got
together." T. 515. Later Dodd testified:
In the early fall, I guess September, the
personality conflict again with Steve Metcalf was
not getting any better. . . . I really did not
know . . . whether this was in our mutual best
[PAGE 9]
interests that [Nathaniel] become a permanent member of that very
organization where she was having the concern. I wanted us to
look at it and wait and see whether the meetings with Jenepher
could help bridge that communication or that interaction because
Steve was the team leader
. . . and it would not be a very productive
organization if the two of them were . . . not
speaking or arguing when they did speak.
T. 522. Dodd and Nathaniel discussed Metcalf extensively during
their November 6 meeting.
Q. At the time of this meeting, had you
given up on Ms. Nathaniel --
A. No.
Q. -- as someone that was going to stay in
your department?
A. I had not given up on her. I considered
her to be an energetic employee, very
competent to proceed, to be trained.
T. 530 (Dodd).
Dodd also testified, however, that at the time of the
meeting he had not decided whether Nathaniel should remain in his
group. He testified: "I wanted to hold that open until we had
been a little bit farther in the process with the meetings with
Jenepher Field to make sure that that -- to give some more
assurance that their differences would be worked out." T. 533.
Several days after the meeting, on November 9, Nathaniel departed
WHC to attend to a family emergency in Ohio and did not return to
work until November 27. Nothing in the record suggests any
incident between Nathaniel and Metcalf prior to her departure or
after her return, yet in early December WHC was documented as
having decided to transfer Nathaniel out of the group. Compl.
Exh. 18.
Although the conflict with Metcalf dated from February 1990,
Dodd waited until the summer and fall of 1990 to attempt
amelioration. Moreover, he testified that, as late as
November 6, he intended to await the results of further
facilitation before deciding whether to retain Nathaniel in his
group. This evidence persuades me that the conflict was not the
reason for Nathaniel's transfer. Rather, Nathaniel had angered
Dodd in refusing to rescind her complaint to the extent that he
raised his voice and ultimately hung up on her. He criticized
her for complaining shortly thereafter when discussing her job
performance. WHC management was sensitive to media disclosure,
[PAGE 10]
and Nathaniel's complaint was accessible because she had refused
to rescind it. Complainant's Exhibit 18 establishes that WHC
anticipated Nathaniel's willingness to talk to the press. I find
that Nathaniel's protected activity motivated WHC to transfer
her. [18] C. Relief
Rather than rotate out of the Analytical Chemistry Group,
Nathaniel decided to resign her position. Although she
ultimately departed on a disability, which WHC offered upon
learning about her decision to resign, her case realistically
presents the equivalent of a constructive discharge issue.
"Constructive" discharge assumes that a complainant was not
formally discharged, the issue being whether she was forced to
resign or whether she quit voluntarily. A finding of
constructive discharge requires proving that working conditions
were rendered so difficult, unpleasant, unattractive, or unsafe
that a reasonable person would have felt compelled to resign,
i.e., that the resignation was involuntary. Johnson v.
Old Dominion Security, Case Nos. 86-CAA-3, et seq.,
Sec. Dec., May 29, 1991, slip op. at 19-22 and n.11. Thus, the
adverse consequences flowing from an adverse employment action
generally are insufficient to substantiate a finding of
constructive discharge. Rather, the presence of "aggravating
factors" is required. Clark v. Marsh, 665 F.2d 1168, 1174
(D.C. Cir. 1981). Unless constructively discharged, a
complainant is not eligible for post-resignation damages and back
pay or for reinstatement.
The record in the instant case does not show that WHC took
the requisite aggravating action to coerce Nathaniel's
resignation. Most of the stress that Nathaniel experienced
during her eighteen months at the Hanford site predated the
protected activity and adverse action and cannot be attributed to
WHC. See T. 194-198, 219-221. [19] A possible exception
involved her assigned computer. Upon returning from Ohio at the
end of November, Nathaniel learned from co-workers that WHC
management had accessed the computer. She believed that she was
being set up. Her co-workers testified that management merely
was attempting to retrieve procedures that she had been assigned
to develop. In any event, this single incident does not meet the
standard set forth above. Accordingly, Nathaniel's relief is
limited to recovering costs and expenses, including attorney
fees, reasonably incurred in bringing her complaint. [20]
D. Timeliness
Under the applicable statutes, a complainant must file a
complaint of unlawful discrimination within 30 days after the
violation occurs. Courts recognize an equitable exception to
statutory limitations periods for continuing violations "`[w]here
the unlawful employment practice manifests itself over time,
[PAGE 11]
rather than as series of discrete acts.'" Waltman v. Intern.
Paper Co., 875 F.2d 468, 474 (5th Cir. 1989), quotingAbrams v. Baylor College of Medicine, 805 F.2d 528, 532
(5th Cir. 1986). In order to invoke the exception, a plaintiff
must show that an ongoing violation, and not just the effects of
a previous violation, extended into the statutory period.
Bruno v. Western Elec. Co., 829 F.2d 957, 960 (10th Cir.
1987). SeeEnglish v. Whitfield, 858 F.2d at 962-
963 (discrete, consummated, immediate violation is not
"continuing" merely because its effects carry forward);
compareHeld v. Gulf Oil Co., 684 F.2d 427, 430-432
(6th Cir. 1982) (where, throughout employment, plaintiff's
disproportionately heavy workload never lightened, sex-based
innuendoes continued, and plaintiff absolutely was excluded from
using the supply terminal; sex discrimination continued through
date of constructive discharge). The court in Berry v. Bd. of
Supervisors of LSU, 715 F.2d 971 (5th Cir. 1983), cert.
denied, 479 U.S. 868 (1986), considered whether the acts
involved the same type of discrimination, were recurring, and
lacked permanent adverse effect.
Here, Nathaniel was pressured to rescind her electronic mail
message on October 24, 1990, she endured increasing pressure to
rotate out of Dodd's group during November and early December; at
some unknown point WHC decided to transfer her; and on December 4
she decided to quit rather than rotate. She filed her complaint
of unlawful discrimination on December 10. Because of the
uncertainty associated with the timing of WHC's transfer
decision, I am inclined to find that that violation occurred on
December 4 when the pressure to rotate finally caused Nathaniel
to resign. The December 10 complaint of unlawful discrimination
therefore was timely as to that violation. Furthermore, the
October 24 violation met the standards for extension into
the statutory period. [21] Accordingly, Nathaniel's complaint
is not time-barred.
CONCLUSION
Although Complainant established that Respondent
discriminated against her because she engaged in activity
protected under the employee protection provisions of the
RCRA/SWDA, CERCLA, and CAA, and her complaint of unlawful
discrimination is not time-barred; relief is limited because she
voluntarily resigned her employment. Accordingly, Respondent is
ordered to refrain from unlawfully discriminating against
Complainant, to post and circulate this decision at its Hanford
Superfund Site, and to compensate Complainant for costs and
expenses, including attorney fees, reasonably incurred in
bringing her complaint. Counsel for Complainant is permitted a period of 20 days from receipt of this decision in which to
submit any petition for costs and expenses. Respondent
[PAGE 12]
thereafter may respond to any petition within 20 days of its
receipt.
SO ORDERED.
ROBERT B. REICH
Secretary of Labor
Washington, D.C.
[ENDNOTES]
[1] According to Complainant's Exhibit 1 (Compl. Exh.) (Double-
Shell Tank System Dangerous Waste Permit Application), the
Hanford Site, located northwest of the city of Richland,
Washington, is owned by the U.S. Government and managed by the
U.S. Department of Energy-Richland Operations Office (DOE-RL).
For purposes of regulation under the RCRA and the State of
Washington Administrative Code, WHC and DOE-RL are co-operators
of dangerous waste management units on the Hanford Site.
Selected by the U.S. Army Corps of Engineers in the early 1940's
for the production and purification of plutonium, the Hanford
Site currently is engaged in waste management and environmental
restoration. Stated differently, the site's "defense mission"
has given way to a "waste cleanup mission." Compl. Exh. 1 at 3-
1.
[2] The tank in question is a Double-Shell Tank (DST) used for
long-term (up to 50 years) storage and treatment of high-activity
mixed waste, i.e., waste containing both dangerous and
radioactive components. Referred to generically as a "million-
gallon" tank, DST 241-SY-101 (actual capacity -- 1,200,000
gallons) has been in operation since early 1977, Compl. Exh. 1 at
T2-1, and was "nearly full" as of early 1990. Compl. Exh. 2.
The waste stored in DST 241-SY-101 is considered "ignitable" and
"reactive" because it generates hydrogen, a flammable, explosive
gas. Compl. Exh. 1 at 3-21, 3-23. "Hydrogen buildup occurs
. . . when the gas is trapped under the crust that forms over the
surface of the waste. After sufficient pressure to crack this
crust is attained, a `burp' occurs, releasing the trapped gas
. . . ." Id. at 4-155. Nathaniel testified that during
one such episode, the hydrogen vented under pressure sufficient
to "bl[o]w the HEPA [High-Efficiency Particulate Air] filters
right out of the [exhaust] stack." T. 128. The HEPA filters
control radioactive particulate emissions.
[3] Nathaniel explained protocol in the radiation zone:
[I]n order to enter into the tank farm area, we had to
suit up in [Special Work Permit] clothing, which is
white coveralls, you were completely closed and you had
rubber boots on, you had your hood on. And during the
venting episode we were to put on . . . Self-Contained
Breathing Apparatus gear, while we were out there
monitoring; and the mask, and the face mask gear.
T. 43. RPTs "survey out" employees exiting radiation zones to
ensure that their clothing is not contaminated. Compl. Exh. 1 at
8-7 (technician responsibilities). Nathaniel's hypoglycemia
necessitated expeditious departure so that she could get
something to eat. T. 41, Compl. Exh. 7. Her condition requires
immediate response in order to avoid debilitating symptoms. T.
262, 264-265, 267-270.
[4] Nathaniel developed gastritis and a gastric ulcer as the
result of stress. Resp. Exh. 2 at 11; Resp. Exh. 4.
[5] In order to make this "prima facie" showing, a complainant
must show that she engaged in protected activity, that she was
subjected to adverse action, and that the respondent knew about
the protected activity when it took the adverse action. A
complainant also must present evidence sufficient to raise the
inference that the protected activity was the likely reason for
the adverse action. Causation may be established by showing that
the respondent was aware of the protected activity and that
adverse action followed closely thereafter. Couty v.
Dole, 886 F.2d 147, 148 (8th Cir. 1989).
[6] In particular, Nathaniel (1) cited an explosion hazard
created by Reid's smoking, (2) reported Reid's possible exposure
to radiation, and (3) requested that responsibility for surveying
employees out of the radiation zone be delineated.
[7] That regulation provides, inter alia, that "[t]his
waste must be separated and protected from sources of ignition or
reaction including but not limited to: Open flames, smoking,
cutting and welding, hot surfaces, frictional heat, sparks . . .
spontaneous ignition . . . and radiant heat." 40 C.F.R. §
265.17(a). It also specifies: "While ignitable or reactive
waste is being handled, the owner or operator must confine
smoking and open flame to specially designated locations. `No
Smoking' signs must be conspicuously placed wherever there is a
hazard from ignitable or reactive waste." Id.
[8] The complaint unquestionably constituted protected
activity, however, to the extent that it addressed the health
hazard posed by Reid's refusal which required Nathaniel to survey
herself out of the radiation zone. Although Nathaniel was
capable of performing a "self-survey," she was not certified to
do so in the area in question. T. 114-119.
[9] The following safety precautions were instituted: (1) work
would be performed only in the presence of a minimum amount of
hydrogen gas, under specified conditions for wind and humidity,
and when no lightning was detected within a 50-mile radius; (2)
the site would be evacuated if monitoring detected gases in the
breathing zone; (3) employees were required to wear respiratory
protection and use nonsparking tools and electrically-bonded
equipment; and (4) specified safety devices were installed.
See T. 44 (Nathaniel observed WHC personnel digging
trenches and installing lightning rods to prevent lightning from
traveling across the ground and striking metal fixtures
accessible to the tank).
[10] Although Nathaniel's instrumentation was "tapped into" the
tank ventilation system, T. 39, the record does not explore this
point.
[11] Nathaniel observed Reid smoking both inside the instrument
shack and outside the shack in the area directly above the tank.
T. 108-110, 123. The instrument shack contained flammable
materials, including papers, Special Work Permit clothing, and
cylinders containing compressed hydrogen. T. 43.
[12] Because her hypoglycemia required immediate response,
Nathaniel performed a "self-survey" rather than wait the twenty
to thirty minutes required for another RPT to arrive, and she
anticipated that a notation to this effect would appear in her
personnel file. While Nathaniel may not have appreciated Reid
for causing her personnel problems, and her complaint about Reid
may have been retaliatory to a degree, R.D. and O. at 11-12
(carryover par.), it also quite legitimately sought to delineate
responsibility for surveying procedures. Furthermore, animosity
toward a co-worker would not foreclose independent concerns about
an explosion hazard and should not diminish protection under the
statutes involved.
[13]
Nathaniel's position in the Analytical Chemistry Group was
uniquely suited to her educational background, and she was
coordinating her occupation with a doctoral program in chemistry.
T. 90-93, 518-519; Resp. Exh. 4 at 1 (second par.). Adverse
action may include transfer to a less desirable position even
though no loss of salary is involved. DeFord v.
Secretary of Labor, 700 F.2d 281, 283, 287 (6th Cir. 1983)
(although rate of compensation not changed, transferred employee
"found he was not welcome, that he was no longer a supervisor,
and that his job was by no means secure"). SeeJenkins
v. U.S. Environmental Protection Agency, Case No. 92-CAA-6,
Sec. Dec., May 18, 1994, slip op. at 15-16 and cases cited
therein.
[14] Because DST 241-SY-101 was controversial, the media
periodically requested that WHC's electronic mail computer system
be searched for the designation "101-SY." T. 62-64.
[15] Dodd wanted to investigate "without th[e] aura of a
crisis" and "pressures" exerted by the news media and DOE. Dodd
testified that WHC frequently received adverse media coverage,
including "billboards depicting cows that were supposedly
irradiated from the Hanford site" posted throughout western
Washington State. T. 556-557. Dodd was concerned that the Los
Angeles Times would emphasize "the confusion, the arguments
between the individuals and the whole network of disagreements
that exist in the technical ranks of the Hanford project" as well
as the explosion issue. T. 557-559.
[16] As directed by management, Employee Concerns Program
personnel "sought [Nathaniel] out" to discuss her complaint and
assist her in rotating out of Dodd's Analytical Chemistry Group.
T. 446-448, 466-468, 482.
[17] The inference is strengthened by Nathaniel's testimony
that after she refused to rescind her complaint, Dodd generally
avoided her and failed to return her telephone calls. T. 67-68,
100.
[18] Because WHC was not motivated by any legitimate reason,
and its single motivating reason was illegal; I do not apply a
dual motive analysis.
[19] As discussed above, the conflict between Nathaniel and her
team leader developed early on and was being remedied at the time
that WHC took adverse action. In addition, Nathaniel testified
that she was being followed by unknown individuals, she was
forced into a high speed automobile chase, she was harassed by a
social acquaintance, she received unusual late night telephone
calls and suspected that her telephone was tapped, her apartment
was entered on several occasions and her belongings were
disrupted, the brakes on her motorcycle were tampered with, and
her fiance's car was vandalized. WHC was not shown to have been
responsible for these events.
[20] Although Nathaniel requests recovery of compensatory
damages for emotional distress, T. 76, 82; Complainant's Post
Hearing Br. at 38-39 and attached affidavit at 3-4, pars. 9, 10,
she has not established, on this record, that the discrete
pressure exerted by WHC to rescind her complaint and rotate out
of Dodd's group caused injury.
[21] Unlike a poor performance appraisal or demotion, being
pressured to rescind a complaint lacks the degree of permanence
which should trigger an employee's awareness of and duty to
assert her rights, or which should indicate to the employee that
the continued existence of the adverse consequences of the act is
to be expected without being dependent on a continuing intent to
discriminate. Berry, 715 F.2d at 981.
