U.S. DEPARTMENT OF LABOR
SECRETARY OF LABOR
WASHINGTON, D.C.
DATE: May 15, 1995
CASE NOS. 91-ERA-47
91-ERA-49
IN THE MATTEROF
BONNIE R. COLLINS,
and
EDWARD S. WOLLESEN,
COMPLAINANTS,
v.
FLORIDA POWER CORPORATION,
RESPONDENT.
BEFORE: THE SECRETARY OF LABOR
FINAL DECISION AND ORDER
This case arises under the employee protection provision of the Energy Reorganization
Act of 1974, 42 U.S.C. § 5851 (1988) (the ERA). [1] Complainants Bonnie R. Collins
and Edward S. Wollesen alleged that they were fired by Respondent Florida Power
Corporation (Florida Power) in retaliation for engaging in activity protected by the ERA.
Following a lengthy hearing on the merits, the Administrative Law Judge (ALJ) issued a
Recommended Decision and Order (R.D. and O.) dismissing the case. After careful analysis
of the R.D. and O., the record, and the briefs filed before me, I concur with the ALJ'sdetermination and dismiss the case.
BACKGROUND
Edward S. Wollesen was employed by Florida Power for over ten years, and Bonnie
R. Collins was employed at Florida Power for over 11 years, prior to May 10, 1991. R.D.
and O. at 53. Wollesen's office was at Crystal River 3 (CR3), a nuclear power generating
unit, some 14 miles from the Training Center where Collins worked as a nuclear training
clerk. Id. Because of the nature of Wollesen's work as a senior nuclear quality
assurance specialist, [2] on many occasions he participated in activities that could reasonably
be
[PAGE 2]
considered to be protected under the Act. Thus, for example, in 1988 he participated in a
surveillance to identify instruments at CR3 which were not being calibrated correctly.
Id. at 3.
In November 1990 the surveillance group in which Wollesen worked was merged with
Florida Power's auditing group. Id. In Florida Power parlance, Wollesen became a
"displaced person." Id. at 63. Florida Power offered Wollesen a position as an
electrician, at a significant cut in pay. Id. However, as a result of written and oral
communications between Wollesen and his Florida Power supervisors, Wollesen was retained
in the merged department on a temporary basis as a senior quality auditor, and was placed in
a permanent position as soon as an opening occurred. Id. at 63. Between November
1990 and May 10, 1991, Wollesen, as well as other members of the newly combined unit,
performed both audit and surveillance work at CR3.
Starting in the fall of 1990 Bonnie Collins became engaged in a business called "The
Pleasure Company," a pyramid sales enterprise in which attendees at parties placed orders
from the Pleasure Company catalogue. The Pleasure Company's line of products ranged from
lingerie to a variety of sexual devises, lotions, and how-to books. Respondent's Exhibit (RX)
4. Although Collins held Pleasure Company parties on her own time and outside of the
Florida Power facility, she prepared several Pleasure Company related materials on her
personal computer at work. Id. at 11.
Wollesen had for some time engaged in a variety of businesses in addition to his
position with Florida Power. Id. at 4, 57. At various times he and his wife sold
birds, dogs, and horses. Id. at 4. He sold shoes and pool chlorinator equipment.
Id. He was involved in car sales, marketing advertising services, and he was a notary
public. Id. at 4-5. He also sold prepaid legal insurance. Id. at 4. In April
1991 he became involved with the Pleasure Company through Collins. Id. at 6.
Wollesen also became romantically involved with Collins. Id. at 6, T. 113.
In early May 1991 Florida Power officials learned of Wollesen's and Collins'
association with the Pleasure Company, and were presented with evidence which indicated
that Wollesen and Collins had been engaging in Pleasure company business during Florida
Power business hours and using Florida Power equipment. See, e.g., Id. at 24-25. On
the morning of May 10, 1991, Collins was interviewed by Florida Power security investigator
John Pelham and was then informed by her second level supervisor, Larry Kelly, that she was
being dismissed for violating Florida Power's written policy against engaging in a for-profit
business on Florida Power property, and Florida Power time, using Florida Power equipment.
Id. at 12. Wollesen was interviewed by the same security investigator later on May
10, and was then informed that he, too, was being dismissed for engaging in a for-profit
business on Florida Power property and time and using Florida Power equipment. Id.
at 7. Collins and Wollesen then filed timely complaints of retaliation against Florida Power,
and this case ensued.
THE ALJ'S RECOMMENDED DECISION
The ALJ wrote a copious recommended decision, including a 53-page summary of the
[PAGE 3]
evidence presented. [3] Based upon that evidence he concluded that:
* Collins did not prove that she had engaged in
protected activity. R.D. and O. at 55-56.
*Therefore, the only theory upon which Collins could prevail was that Florida Power
retaliated against Wollesen for engaging in protected activity, and fired Collins in
order to mask its true motive for firing Wollesen. Id. at 56.
*Wollesen had proved that he had engaged in protected activity, Florida Power knew
it, and took adverse action against him. Id. at 55.
*However, Wollesen failed to prove that his protected activity was the likely cause of
Florida Power's adverse action. Id. at 56-63. [4]
*Because Collins, claim "rises or falls depending on the merits of Wollesen's claim,"
Collins also did not prove retaliation. Id. at 56.
Accordingly the ALJ dismissed the case.
DISCUSSION
The Complainants failed to prove, by a preponderance of the evidence in the record as
a whole, that they were retaliated against for activity protected by the ERA.
A. Evidence Regarding Wollesen.
The ALJ found that Wollesen had engaged in protected activity within the meaning of
the ERA. That finding is amply supported by the evidence. First, Wollesen's positions, as a
senior nuclear quality assurance specialist and a quality auditor, were precisely the kind that
lead to daily actions that could constitute protected activity. Both the surveillance and the
audit functions involve evaluating the quality of procedures and processes in the nuclear
power plant. As the Ninth Circuit noted in Mackowiak v. University Nuclear Systems,
Inc., 735 F.2d 1159, 1163 (1984), employees engaged in this type of quality control work
in a nuclear power generation facility are precisely the people that the ERA whistleblower
provision is designed to protect.
Second, Wollesen testified regarding some specific activities which could be
considered to be protected. For example, in 1988 Wollesen expressed concerns regarding the
methods Florida Power was using to ensure that instruments were calibrated in a timely
manner. R.D. and O. at 3.
Third, for reasons that are not made clear in the record of this case, a Nuclear
Regulatory Commission (NRC) investigator interviewed Wollesen the day before he was
terminated. R.D. and O. at 2, 6, 55. Wollesen reported this contact to his supervisor, Ray
Yost, immediately before he was interviewed by security investigator Pelham and asked Yost
what he should do about future contacts. R.D. and O. at 7, 32, 55. The NRC communication
[PAGE 4]
clearly is protected activity, and it occurred and was communicated to Florida Power officials
immediately before Wollesen was terminated. Thus, there is no dispute that Wollesen
engaged in protected activity.
However, the evidence is overwhelming that Wollesen was terminated not because of
activity protected by the ERA, but because Florida Power believed that he had engaged in a
potentially embarrassing for-profit business using company equipment and time. A recitation
of the events leading up to Wollesen's termination will place this issue in its proper context.
Bonnie Collins became a Pleasure Company distributer in the fall of 1990. Id.
at 38. Wollesen learned of the Pleasure Company through Collins, and in April 1991
Wollesen also became a Pleasure Company distributor. Id. at 6. Prior to his
termination he had set up one Pleasure Company party. Id.
Also in April 1991 Bernie Komara (an instructor at the Florida Power Training Center
where Collins worked) reported to Ken Yost, Wollesen's supervisor, that Wollesen was
spending lots of time at the Training Center in the early morning, and was leaving with large
amounts of documents. Id. at 31. In the meantime, Bruce Hickle, Director of Quality
Programs and Wollesen's third level supervisor, received the same information. Hickle did
two things with this information. First, he informed Training Center Director Larry Kelly that
Wollesen was spending time at the Training Center early in the morning and was removing
documents, that Wollesen was not engaged in audit work relating to the Training Center, and
that Wollesen would be told to stop going to the Training Center. Id. at 24, 37.
Second, Hickle asked Yost to find out what Wollesen was doing at the Training Center, and
to tell Wollesen that if his visits were not related to official business, to stop going to the
Training Center.[5] Id. at 24. Yost told Wollesen not to go to the Training Center
unless he had some stated business at that facility. Id. at 31.
Around this time Yost had another meeting with Wollesen. Yost had been told by
Hickle and by one of his subordinates, Jeffrey Peet, that Wollesen had been engaging in a
variety of outside business activities on company time. Id. Yost questioned Wollesen
about these activities, and although Wollesen mentioned some of his business activities to
Yost, he did not mention his involvement in the Pleasure Company. Id. Yost stated in
a contemporaneous memorandum that he told Wollesen that outside business activity was
prohibited, and if it continued Wollesen could face termination. Id; Complainant's Exhibit
(CX) 29 at 3.[6]
In the meantime Larry Kelly became concerned that Wollesen might be removing
lesson plans from the Training Center to sell to other utilities. Id. at 40. Therefore,
on May 2 he asked Terry Kamann, Collins, immediate supervisor, to find out from Collins
what Wollesen was removing from the Training Center. Id. at 37. Collins was the
logical person to ask because she worked in the Training Center library and was in charge of
the electronic masters of all lesson plans. Id. at 9. Kamann reported back to Kelly
that Wollesen had only removed one or two lesson plans. Id. at 37.
However, Kelly spoke to Bernie Komara, who stated that he had seen Wollesen
carrying away more materials than just a few lesson plans. Id. Because of the
inconsistency
[PAGE 5]
between Collins, statement (as reported by Kamann) and what he was told by Komara, Kelly
decided to ask Florida Power's security department to investigate. Id. at 37, 70. [7]
Thus, on the morning of May 7 Kelly met with security official John Pelham and told him
that Wollesen had been seen removing papers from the Training Center on numerous
occasions. Id.
Komara evidently gave Kelly another bit of information; he disclosed that he had seen
evidence that a lot of electronic mail had been going back and forth between Wollesen and
Collins. Id. At Kelly's request, Michael Pombier, the operator of the Training Center's
electronic mail network retrieved from the system a message from Wollesen to Collins. Id;
RX 9b, p. 34. Attached to that message was a list of Pleasure Company products.
Id.; RX 9b, p. 35. Kelly concluded from these documents that Collins and Wollesen
were in business together. R.D. and O. at 37. After Collins had left for the day Pombier, at
Kelly's direction, found a computer disk at Collins, work station which contained Pleasure
Company materials. Id. at 37, 70. Kelly copied the materials and gave the
information to Pelham that day. Id.
Based on the added information received from Kelly, Pelham and Pombier went to
Wollesen's work area at CR3. Pelham opened a locked file cabinet and retrieved copies of
electronic mail correspondence between Wollesen and Collins. Id. at 41, 44, 47.
On May 9 Pelham had a meeting with Hickle and Kelly at which he displayed the
electronic mail traffic between Wollesen and Collins, copies of the Pleasure Company
documents Pelham had found on Collins, computer disk, and a Pleasure Company catalogue
which had evidently been sent by Collins through Florida Power's interoffice mail system to
the roommate of Pelham's secretary. Id. at 24-25, 41, 45. Late in the day on May 9
Hickle and Kelly met with Jim DeLonzo, manager of Florida Power's human resources
department. Kelly and Hickle explained the information they had regarding Wollesen's and
Collins' Pleasure Company business activities and asked whether these activities could be
deemed a dischargeable offense. Id. at 25-26. DeLonzo checked with the Vice
President in charge of human resources and then assured Hickle and Kelly that Wollesen's
and Collins, activities, as represented by the materials obtained, would constitute a
dismissable offense under two company policies: conflict of interest and misuse of company
micro-computers. Id. at 26.
Early on May 10, Hickle and Pelham met with Wollesen's immediate supervisor, Ray
Yost, and showed him the evidence that had been gathered regarding the Pleasure Company
business. Id. at 32. Later that day Yost sat in on an interview between Pelham and
Wollesen, at which Wollesen admitted using the company electronic mail system to discuss
Pleasure Company business with Collins, and admitted sending one Pleasure Company form
over the electronic mail system. RX 14 at 20. Yost and Pelham then met with Hickle. They
summarized the interview with Wollesen, and Yost recommended to Hickle that Wollesen be
discharged because he had used company property, engaged in business activities on company
time, and had not been forthright and honest with Yost regarding his business activities at
their May 3 meeting. R.D. and O. at 32. Hickle then spoke with Senior Vice President for
Nuclear Operations, Percy Beard, Jr. He described the interview with Wollesen and
recommended that Wollesen be terminated. Id. at 26. Beard concurred, and Hickle
informed Wollesen that he was being terminated. Id.
[PAGE 6]
There is no reason to conclude, based upon the facts recited here, that Wollesen was
terminated in retaliation for his protected activities. First, if Florida Power had wanted to
terminate Wollesen in retaliation for any protected activity, the company passed up several
good opportunities to do so. Thus, for example, when Florida Power merged the surveillance
and audit functions, Wollesen's position was "displaced.,, Presumably he could have been laid
off at that point, or placed in a position in which he could not have a daily impact on safety
related issues. Florida Power took neither of these actions, however. Instead, it retained
Wollesen over its budgeted positions in the newly merged unit until a vacancy occurred in
April 1991, and then placed Wollesen in that position. Id. at 22, 30. The record
supports the conclusion that far from being a thorn in Florida Power's side, in the month
immediately prior to his discharge, Wollesen was a valued employee of Florida Power.
Second, it is clear that Wollesen violated at least one company policy. The Company
Policy Manual policy on security states in pertinent part:
Florida Power microcomputers may . . . be used for limited nonbusiness usage if
certain conditions are met: usage must be after regular business hours, only
for non-profit-making situations, and the employee's non-business related
files or programs must be maintained on personally-owned diskettes.
RX 8 at 5. Emphasis in original. Wollesen conceded that he had used his computer for
Pleasure Company business. He asserted that he only worked on Pleasure Company business
outside of business hours; however, the ALJ did not credit that testimony. R.D. and O. at 57.
In any event Florida Power's policy applied to any for-profit work. And, although
Complainants argued that Florida Power should have employed the company's progressive
discipline policy rather than terminating them, there is nothing in the record to support a
conclusion that Florida Power failed to apply progressive discipline for illicit reasons. As the
ALJ aptly noted, Florida Power was entitled to fire the Complainants for good reasons, bad
reasons, or no reason, "as long as it's not a discriminatory reason." Transcript at 525.
Third, although Complainants attempted to establish that Wollesen was treated more
severely than other employees who conducted outside businesses on company time, there is
significant evidence in the record to distinguish the Pleasure company business from the other
businesses described. Briefly, there was testimony that the following businesses were carried
on at Florida Power without disciplinary action being taken: Avon products were sold and
distributed (R.D. and O. at 5, 9); Tupperware products were distributed (Id. at 9); one
employee occasionally sold burritos (Id. at 9, 10); another employee sold silk flowers
(Id. at 10); and one employee sold chicken dinners for his church (Id.). There
was also testimony that supervisor Kamann and his wife owned a gift shop, and that Kamann
on occasion displayed crafts for sale in his office. Id. at 10, 17. Some of these
business activities (Avon, Tupperware, Kamann's crafts) would appear to be comparable to
the Pleasure Company business, and might raise the suspicion that Wollesen was disciplined
for his protected activity and not for engaging in a for-profit business at Florida Power.
However, the supervisors who took action against Wollesen testified that they did not know
of these other business activities. R.D. and O. at 27 (Hickle), 40-41 (Kelly), [8]20 (Beard).
The ALJ explicitly credited that testimony (R.D. and O. at 61-63), and so do I.
[PAGE 7]
More importantly, however, it is absolutely clear that Florida Power officials thought
that the Pleasure Company business was different in character than the other businesses
mentioned. Thus, Hickle testified that he felt that the nature of the business might lead to a
perception that Florida Power condoned a hostile working environment. Id. at 25, 29.
Hickle and Yost both felt that Wollesen had not been honest in discussing his outside
activities with Yost on May 3. Id. 27, 32. Beard thought that the nature of the
Pleasure Company was an aggravating factor, and that disclosure that company employees
were engaged in the business of selling sexual devices would reflect discredit on his division.
Id. at 19-20. Kelly, who was Collins, supervisor, felt that the nature of the Pleasure
Company business was an embarrassment to Florida Power. Id. at 38, 63. The ALJ
correctly concluded, based upon this credible evidence, that "Wollesen . . . failed to show that
the individuals responsible for the decision that he be terminated discriminated against him by
allowing others to operate private, for-profit businesses on FPC property with immunity,
while firing Wollesen for the same activity." Id. at 63.
B. Evidence Regarding Collins.
There is no credible evidence that Collins engaged in activity protected under the
ERA. See R.D. and O. at 55-56. Thus, the only possible theory upon which she could
prevail is that Florida Power retaliatorily discharged Wollesen and discharged Collins at the
same time in an effort to obscure its motives. As discussed above, Wollesen was not
retaliated against for engaging in protected activity. Thus, Collins' claim must fail.
CONCLUSION
The fact that Florida Power officials reacted in a decisive and unforgiving manner to
the evidence that Wollesen and Collins had conducted some Pleasure Company related
business on Florida Power property and with Florida Power resources does not make the
termination actionable under the ERA. The ERA does not protect workers even from
unreasonable or arbitrary actions on the part of an employer. The ERA only protects workers
from actions taken in retaliation for engaging in activities protected by the ERA. The
Complainants failed to prove that Florida Power engaged in retaliatory conduct. Therefore, I
agree with the ALJ's decision and dismiss the case.
SO ORDERED.
ROBERT B. REICH
Secretary of Labor
Washington, D.C.
[ENDNOTES]
[PAGE 8]
[1] The amendments to the ERA contained in the National Energy Policy Act of 1992,
Pub. L. No. 102-486, 106 Stat. 2776 (Oct. 24, 1992), do not apply to this case in which the
complaint was filed prior to the effective date of the Act. For simplicity's sake I will
continue to refer to the ERA whistleblower provision as codified in 1988.
[2] A quality assurance specialist verifies, within a narrowly defined scope, compliance
with nuclear quality and safety requirements. R.D. and O. at 16.
[3] The ALJ's summary of the evidence is accurate. Therefore factual citations are
usually to the R.D. and O.
[4] The ALJ concluded that "Wollesen has failed to establish a prima facie case since it
was most unlikely that he was fired because of this protected activity." R.D. and O. at 73.
However, it is clear from other language in the R.D. and O. that the ALJ did not base his
decision on a finding that Wollesen had not established a prima facie case. Rather,
the ALJ held that Wollesen had not proved by a preponderance of the evidence that he was
retaliated against because he engaged in protected activity. Therefore, there is no need to
discuss whether Wollesen overcame the minimal burden of presenting a prima facie
case. See Carroll v. Bechtel Power Corp., Case No. 91-ERA-0046, Sec. Dec. and
Ord., Feb. 15, 1995, slip op. at 11, appeal pending, Docket No. 95-1729 (8th Cir.).
[5] There was evidence that Wollesen was preparing an article for a journal, and was
using some work plans from the Training Center to prepare that article. R.D. and O. at 34.
However, there was no evidence presented that any Florida Power supervisors other than Ray
Yost were aware that he might have had a legitimate reason for removing documents from the
Training Center at the time that they began to investigate Wollesen's activities.
[6] Wollesen testified that he did not remember Yost's warning, however, the ALJ
explicitly credited Yost's version of this meeting. Id. at 62. The record fully supports
the ALJ's determination in this regard.
[7] The ALJ found:
Because Collins' statement as to the volume of material being removed varied
considerably with what Hickle had reported, Kelly questioned Bernie Komara, a
training instructor at the Training Center . . . . Having received conflicting reports,
Kelly requested corporate security to conduct an investigation to identify the materials
removed by Wollesen and to determine for what purpose they were removed . . . .
R.D. and O. at 70. Citations omitted. These findings are amply supported by the record.
[8] Kelly testified that he did know that Kamann had brought in some flower
arrangements once and had placed them in the Training Center lobby with his gift shop's card
on them. R.D. and O. at 39-40, 62-63. However, Kelly immediately asked Kamann to
remove the arrangements and told Kamann that it wasn't appropriate. Id. at
39.
