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Finally, Respondent cited Phillips' refusal to cooperate with Respondent's
internal investigation (including lying at the time to Respondent's officials), upon which
Respondent concluded that Complainant was untrustworthy, as an aggravating factor leading to
its decision to terminate Phillips. Phillips' conduct must, however, be evaluated within the
whistleblower context in which it arose. Carter v. Electrical District No. 2,
supra, slip op. at 11-12; Kenneway v. Matlack, 88-STA-20, Sec'y Final Dec.
& Ord., slip op. at 5-6 (June 15, 1989).
Within the instant context of Complainant's whistleblowing activities, it
was not unreasonable for Complainant to refuse to cooperate in Respondent's internal
investigation. For reasons of self-preservation it is certainly understandable that an employee,
such as Phillips, might be less than candid during management's efforts to assess blame for his
protected activity. He should not be forced to put himself at immediate risk of adverse action
for failing to divulge his role in such activity. To hold otherwise would discourage potential
whistleblowers, contrary to public policy. "The ability of nuclear industry employees to
come forward to either their employers or to regulators with safety concerns without fear of
harassment or retaliation is a key component of our system of assuring adequate protection of
public health and safety from the inherent risks of nuclear power." H. Rep. No. 102-
474(VIII) at 79 (1992), reprinted in 1992 U.S.C.C.A.N. 2282, 2297.
Under the ERA, the relevant question, which I would decide in
Complainant's favor, is whether he established that his protected activity was a contributing
factor in Respondent's decision to terminate his employment. 42 U.S.C.
§5251(b)(3)(C). Clearly, based upon the preponderance of the evidence of record, it was.
But of course, under the ERA this is not the end of the analysis. If Respondent Smith Security
was to demonstrate "by clear and convincing evidence that it would have taken the same
unfavorable personnel action in the absence of such behavior," Respondent still would not
be liable. 42 U.S.C. §5851(b)(3)(D). Creekmore v. ABB Power Systems Energy
Services, supra, slip op. at 5. "For employers, this is a tough standard, and
not by accident." Stone & Webster Engineering Corp. v. Herman, 115 F.3d at
1572 (citing ERA 1992 legislative history).
As noted previously, the only additional basis cited by Respondent for
Complainant's discharge is his failure and refusal to cooperate, and be "forthcoming and
honest," in Respondent's internal investigation of the television reports. However, given
the context, this cannot serve as an independent basis for Phillips' termination. Phillips had the
right under the ERA to anonymous and unfettered communication of his concerns regarding the
security of the guard restructuring plan, which communication under the facts he reasonably
believed was in furtherance of the purposes underlying the ERA. Respondent cannot lawfully
assert an employment-related obligation on Phillips' part for full disclosure of his role in
derogation of this federal right. Therefore, Phillips' reticence and apparent deceptiveness during
the company's investigation of the news leaks cannot furnish an independent, nondiscriminatory
basis for his dismissal. See Stone & Webster Engineering Corp. v. Herman, 115
F.3d at 1573-74; Kahn v. U.S. Secretary of Labor, 64 F.3d 271, 279-81 (7th Cir.
1995).22
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For the foregoing reasons, I would thus hold that Respondent Stanley
Smith Security terminated Complainant Phillips' employment in violation of the whistleblower
protection provision of the ERA.
E. COOPER BROWN
Member