U.S. Department of Labor Administrative Review Board
200 Constitution Ave, NW
Washington, DC 20210
ARB CASE NO. 98-037
(ALJ CASE NO. 97-ERA-16)
DATE: March 31, 1999
In the Matter of:
ALFIO ADORNETTO,
COMPLAINANT,
v.
PERRY NUCLEAR POWER PLANT,
RESPONDENT.
BEFORE: THE ADMINISTRATIVE REVIEW BOARD
FINAL DECISION AND ORDER
This case arises under the Energy Reorganization Act of 1974, as amended
(ERA), 42 U.S.C. §5851 (1994). Complainant Alfio Adornetto alleges he was laid off by
Respondent Perry Nuclear Power Plant (PNPP) in retaliation for engaging in activities protected
under the ERA. The Administrative Law Judge submitted a Recommended Decision and Order (R.
D. and O.) in which he concluded that Adornetto failed to prove by a preponderance of the evidence
that PNPP discharged Adornetto because he had engaged in protected activity. R. D. and O. at 9.
We agree with the ALJ that Adornetto did not carry his burden of proof and, accordingly, dismiss
Adornetto's complaint.
[Page 2]
BACKGROUND
1. Facts.
The facts are stated in detail in the ALJ's recommended decision. See
R. D. and O. at 2-6. As the ALJ found, Adornetto worked as a senior engineering technician and
an advanced engineering technician in the Instrumentation and Controls unit (I&C) at PNPP from
1985 until his layoff in 1996. T. (Transcript of hearing) 10-12; 44. Adornetto made a complaint
to the Nuclear Regulatory Commission resident inspector on April 16, 1996, alleging that he had
been treated differently than other I&C technicians since making an internal complaint to
management in 1990 about adherence to proper procedures. He also complained to the NRC that
the procedures used by the PNPP's Quality Control department to close the 1990 complaint were
improper. R. D. & O. at 2. See also R- (PNPP's Exhibit) 1.1 In May and June 1996, Adornetto also raised
several quality and safety complaints internally to the plant ombudsman, and to PNPP's Quality
Control, security and human resources departments. T. 68-71; 306; 313-315; 319.
1 The NRC investigated this complaint,
and by letter of May 23, 1996 responded to Adornetto that it found no merit to his charge.
2 The record is not clear exactly
what date this decision was made, but it must have been between May 6, the date Wright learned
they had to cut one position in I&C, and July 16, the date PNPP's human resources review board
approved the I&C supervisors' recommendation to release Adornetto.
3 PNPP's forced ranking list of
employees was established by determining the best employee and comparing and ranking all others
in the same work group or unit to that individual. T. 187. The forced rankings were done on an
annual basis, and were used especially to determine salary. Id. Rankings of employees
within a work group involved input, review and decision-making by a number of individuals within
PNPP's management team. T. 188-189.
4 Adornetto's supervisors made
attempts to improve his performance by giving him weekly coaching and counseling and checking
back with him to assure that his tasks were being carried out. T. 259-60. The supervisors apparently
spent more time trying to improve Adornetto's performance than they did with the other technicians.
T. 261. Each of Adornetto's supervisors had similar experiences with him. Id.
5 The ALJ's discussion of the
shifting burdens of production in an ERA case is not accurate. The ALJ held that Adornetto must
establish a prima facie case by a preponderance of the evidence and that in response to
Adornetto's prima facie case, PNPP must establish by clear and convincing evidence that
it had a legitimate reason for its action. R. D. and O. at 9. There is no requirement that a
complainant establish a prima facie case by a preponderance of the evidence; a complainant
only is required to present evidence sufficient to raise an inference of discriminatory motivation to
establish a prima facie case. Furthermore, Respondent only has the burden at this point of
articulating a legitimate, nondiscriminatory reason for the adverse action. Complainant must prove
by a preponderance of the evidence that complainant's protected conduct was a contributing factor
in the adverse action taken. If complainant carries that burden, Respondent can avoid liability by
establishing by clear and convincing evidence that it would have taken the same action even in the
absence of protected activity. 42 U.S.C. §5851(b)(3)(C) and (D).
6 Before us Adornetto also raises
the issue of whether the ALJ afforded him sufficient discovery. Before the ALJ, Adornetto moved
for production of all the material in his personnel file as well as the performance appraisals and
rankings of other employees in the I&C unit. The ALJ granted the motion in part and ordered the
production of most of the material, including Adornetto's 1994 and 1995 performance appraisals,
which were admitted into evidence. The ALJ did not admit the performance appraisals of other
employees out of concern for their privacy. T. 340. We do not find that the ALJ abused his
discretion in this regard.
7 PNPP testified that the two
employees hired before Adornetto's layoff were needed in early 1996 because the maintenance
department, which includes the I&C unit, was implementing an improvement plan and because the
plant was going into an outage when work is very intensive. T. 269. Both employees were
considered for layoff along with all others when the decision was made to lay off Adornetto. Both
of the workers hired in late 1995 were determined to be good performers and therefor were not
selected for layoff. T. 270.