In King v. BP Products North America, Inc., ARB No. 05-149, ALJ No. 2005-CAA-5 (ARB July 22, 2008), the ARB found that the ALJ had erroneously granted summary decision in favor of the Respondent where, viewing the evidence in the light most favorable to the non-moving party, there was a factual dispute regarding whether the Respondent followed its disciplinary procedures and thus whether its reason for terminating the Complainant was a pretext. One member of the Board dissented, stating that upon de novo review of the case he would have granted summary judgment to the Respondent on an insubstantial claim. Specifically, the dissenter would have found that the Complainant's response to the motion for summary judgment, which was based on the proffer of a legitimate non-discriminatory reason for the firing (causing a preventable accident), failed to demonstrate a genuine issue of material fact over why the Respondent fired him. What was material was not whether the Respondent followed its disciplinary procedures, but whether it fired the Complainant because of an alleged complaint to EPA and not because he caused a preventable accident.
[Nuclear and Environmental Digest XI C 1]
PRETEXT; TEMPORAL PROXIMITY MAY RAISE INFERENCE OF CAUSATION, BUT ONCE RESPONDENT ARTICULATES LEGITIMATE, NONDISCRIMINATORY REASON FOR ITS ACTIONS, COMPLAINANT HAS BURDEN OF SHOWING PRETEXT BY PREPONDERENCE OF THE EVIDENCE
Temporal proximity is sufficient to raise an inference of causation. But once an employer articulates a legitimate, nondiscriminatory reason for its actions, the employee then must prove by a preponderance of the evidence that the employer intentionally discriminated against him because of his protected activity, and that the employer's articulated reason was pretext.
USDOL/OALJ Reporter at 7 (footnotes omitted). In Barry, the Complainant had been fired only one month after engaging in protected activity, but failed to prove that the Respondent’s decision to eliminate his position for financial reasons was pretext.
XI.C.1. Decision to discharge reasonable
Lockert v. United States Dept. of Labor, 867 F.2d
513 (9th Cir. 1989).
Lockert was a quality control inspector at the Diablo Nuclear
Power Plant in California who claimed he was terminated in
violation of the ERA for conducting protected activity such as
industry code research and safety/quality problem reporting.
Employer alleged that Lockert was terminated because he twice
left his assigned work area without permission in violation of
the rules for employees, on one occasion to do industry code
research. Section 5851 provides that an employer may discharge
an employee who has engaged in protected conduct as long as the
employer's decision to discharge is not motivated by retaliatory
animus and the employer has reasonable grounds for the discharge.
Jones v. Flagship Int'l, 793 F.2d 714, 729 & n.17 (5th
Cir. 1986) (employer may discharge an employee who has engaged in
protected conduct under Title VII only if the employer has
reasonable grounds to believe that the employee is guilty of
misconduct).
[Nuclear & Environmental Whistleblower Digest XI C 1]
RETALIATORY MOTIVE; COMPLAINANT'S BURDEN TO ESTABLISH THAT AGENCY'S EXPLANATION OF LAWFUL MOTIVE IS NOT CREDIBLE
In Pickett v. Tennessee Valley Authority, ARB Nos. 02 056 and 02 059, ALJ No. 2001 CAA 18 (ARB Nov. 28, 2003), the ARB found that Complainant had failed to establish by a preponderance of the evidence that purported blacklisting engaged in by a TVA OIG investigator during an interview of an employer who had engaged Complainant in part time work was motivated in whole or in part by Complainant's protected activity under the environmental whistleblower statutes, where the investigator was asking questions about the employment pursuant to a request from OWCP relating to the Complainant's FECA disability award. The Board considered the evidence of record, and B reversing the ALJ found that if the investigator had any actual animus toward Complainant, it stemmed from the disability case.
[Nuclear & Environmental Whistleblower Digest XI C 1]
PRETEXT; COMPLAINANT MUST ESTABLISH MORE THAN THAT THE JOB
ACTION WAS UNJUST, UNFAIR OR INSENSIBLE IT MUST BE SHOWN TO BE A PHONY
REASON
In Gale v. Ocean Imaging, ARB No. 98 143,
ALJ No. 1997 ERA 38 (ARB July 31, 2002), the Complainant argued that "it was wrong,
unfair, or unjust for Respondents not to weigh the grounds that they cited against
Complainant's past performance and find in favor of retaining her, and that therefore
Respondents' rationale was pretext." The ARB rejected this argument, however, quoting
the Seventh Circuit: "[I]t is not enough for the plaintiff to show that a reason given for
a job action is not just, or fair, or sensible . . . [rather] he must show that the explanation is
a 'phony reason.'" USDOL/OALJ Reporter (HTML) at 8, quoting Kahn v. U.S. Secretary
of Labor, 64 F.3d 271, 277 (7th Cir. 1995), citing Pignato v. Am. Trans Air, Inc.,
14 F.3d 342, 349 (7th Cir. 1994).
[N/E Digest XI C 1]
PRETEXT; LEGITIMATE, NONDISCRIMINATORY REASON FOR ADVERSE
EMPLOYMENT ACTION; TRIER OF FACT'S DISBELIEF PERMITS INFERENCE OF
INTENTIONAL DISCRIMINATION
In Overall v. Tennessee Valley Authority, 97-ERA-53 (ALJ Apr. 1,
1998), the ALJ issued a recommended decision finding that Respondent's asserted legitimate,
non-discriminatory reasons for transferring, laying off, and refusing to recall Complainant
were a
pretext for discrimination based on the ALJ's finding that Respondent's asserted reasons were
false and associated with such a degree of mendacity to establish a strong circumstantial case of
intentional discrimination. Citing St. Mary's Honor Center v. Hicks, 509 U.S.
502, 511
(1993), the ALJ noted significant inconsistencies between the reasons given by Respondent and
the facts, and the "context of a concerted effort to conceal major safety hazzards by the
use
of defective ice condenser screws . . . and [Complainant's] admitted zeal and competence in
dealing with ice condenser problems...." Slip op. at 34.
PRETEXT, GENERALLY [N/E Digest XI C 1]
From Zinn v. University of Missouri, 93-ERA-34
and 36 (Sec'y Jan. 18, 1996):
Once the respondent articulates "...a legitimate,
nondiscriminatory basis for its action, the analysis shifts
to the issue of whether [the complainant] has demonstrated
that such basis is merely pretextual and that [the
respondent's] action was actually based on a discriminatory
motive....
[The complainant] may demonstrate that the reasons given
were a pretext for discriminatory treatment by showing that
discrimination was more likely the motivating factor or by
showing that the proffered explanation is not worthy of
credence. ... In order to determine that [the complainant]
has established discriminatory intent in regard to this
adverse action by the [respondent], however, "[i]t is
not enough . . . to disbelieve the employer; the factfinder
must believe the plaintiff's explanation of intentional
discrimination." St. Mary's Honor Center, 113
S.Ct. at 2749, 125 L.Ed. 2d at 424. . . . Although found to
be pretextual, an employer's stated reasons may nonetheless
be found to be a pretext for action other than prohibited
discrimination. See Galbraith v. Northern Telecom,
944 F.2d 275, 282-83 (6th Cir. 1991).
Slip op. at 9-10 (some citations omitted).
PRETEXT; COMPLAINANT'S BURDEN; PRETEXT FOR NONDISCRIMINATORY
REASONS [N/E Digest XI C 1]
Where the burden shifts back to the complainant to establish
that the respondent's articulated basis for the adverse
employment action was pretextual and that the respondent's action
was actually based on a discriminatory motive, the complainant
may demonstrate pretext by showing that discrimination was more
likely the motivating factor or by showing that the proffered
explanation is not worthy of credence. The proof must go beyond
disbelief of the respondent--the factfinder must believe the
complainant's explanation of intentional discrimination.
Further, the respondent's explanation may be pretextual, but
nonetheless found to a pretext for actions other than prohibited
discrimination. Frady v. Tennessee Valley
Authority, 92-ERA-19 and 34 (Sec'y Oct. 23, 1995).
XI C 1 PRETEXT; SHIFTING EXPLANATIONS OFTEN REVEAL RETALIATORY
MOTIVE
In Hoffman v.
Bossert, 94-CAA-4 (Sec'y Sept.
19, 1995), the Respondent testified that his only reasons for
laying off the Complainant were lack of work and low seniority.
Respondent's counsel introduced other evidence to the effect that
the Complainant was rude on occasion. The ALJ found this
confusing, so he questioned counsel at length about the
Respondent's theory of the case. In the recommended decision,
the ALJ found that the testimony about the Complainant's demeanor
was "inappropriate and irrelevant."
The Secretary disagreed, finding that this shift in the
theory of the Respondent's case was relevant because it strongly
indicated that lack of work and low seniority were a pretext.
XI.C.1. Pretext; complainant's burden
Where the respondent articulates a legitimate, nondiscriminatory
reason for the adverse action, the complainant has the ultimate
burden of persuading that the reasons articulated by the
respondent were pretextual, either by showing that the unlawful
reason more likely motivated the respondent or by showing that
the proffered explanation is unworthy of credence. Nichols
v. Bechtel Construction, Inc., 87-ERA-44 (Sec'y Oct. 26,
1992) (as corrected by Oct. 30, 1992 Errata Order).
XI.C.1. Ultimate burden of proof is on complainant
In an ERA whistleblower proceeding, the complainant bears the
ultimate burden of persuading that the legitimate reason
articulated by the respondent was a pretext for discrimination,
either by showing that the unlawful reason more likely motivated
it or by showing that the proffered explanation is unworthy of
credence. At all times, the complainant has the burden of
showing that the real reason for the adverse action was
discriminatory. St. Mary's Honor Center v. Hicks, 113
S.Ct. 2742, 125 L.Ed. 2d 407 (1993).
Samodurov v. General Physics Corp., 89-ERA-20
(Sec'y Nov. 16, 1993).
XI.C.1. Pretext; complainant's burden
Where the respondent articulates a legitimate, nondiscriminatory
reason for the adverse action, the complainant has the ultimate
burden of persuading that the reasons articulated by the
respondent were pretextual, either by showing that the unlawful
reason more likely motivated the respondent or by showing that
the proffered explanation is unworthy of credence.
Nichols v. Bechtel Construction, Inc., 87-ERA-44
(Sec'y Oct. 26, 1992), slip op. at 13.
XI.C.1. Pretext
If the employer successfully rebuts the employee's prima facie
case, the employee still has "the opportunity to demonstrate
that the proffered reason was not the true reason for the
employment decision . . .. [The employee] may succeed in this
either directly by persuading the court that a discriminatory
reason more likely motivated the employer or indirectly by
showing that the employer's proffered explanation is unworthy of
credence." Texas Dep't of Community Affairs v.
Burdine, 450 U.S. 248, 256 (1981) (Title VII case) (citation
omitted).
The trier of fact may then conclude that the employer's proffered
reason for its conduct is a pretext and rule that the employee
has proved actionable retaliation for protected activity.
Conversely, the trier of fact may conclude that the employer was
not motivated, in whole or in part, by the employee's protected
conduct and rule that the employee has failed to establish his
case by a preponderance of the evidence. Id. at 254-65.
Finally, the trier of fact may decide that the employer was
motivated by both prohibited and legitimate reasons, i.e., that
the employer had "dual motives."
Dartey v. Zack Company of Chicago, 82-ERA-2 (Sec'y Apr.
25, 1983).
XI.C.1. Reasonable grounds for discharge
Under section 5851, an employer may discharge an employee who has
engaged in protected conduct as long as the employer's decision
to discharge the employee is not motivated by retaliatory animus
and the employer has reasonable grounds for the discharge.
Lockert v. United States Dept. of Labor, 867 F.2d
513, 519 (9th Cir. 1989).
XI.C.1. First determination after articulation
In Thompson v. Tennessee Valley Authority, 89-ERA-
14 (Sec'y July 19, 1993), Complainant established a prima facie
case, and Respondent articulated a legitimate, nondiscriminatory
reason for the adverse action. The Secretary stated that the
first determination after rebuttal in considering whether
Complainant met his burden of showing intention discrimination is
whether the evidence shows that discriminatory reasons more
likely motivated the adverse action rather than the reasons
proffered by Respondent.
Complainant failed to meet his burden because there was evidence
that another employee who engaged in the same protected activity
as Complainant had no adverse action taken against him.
XI.C.1. Relationship between dual motive and
pretext analyses
Where the complainant contends that the employer's motives were
wholly retaliatory and the employer counters that its motives
were wholly legitimate, neither party is relying on a "dual
motive" theory in advancing its case. In this circumstance,
use of the "pretext" legal discrimination model is
appropriate because it focuses on determining the employer's true
motivation rather than weighing competing motivations.
McCuistion v. Tennessee Valley Auth., 89-ERA-6
(Sec'y Nov. 13, 1991). AccordShusterman v. Ebasco
Servs., Inc., 87-ERA-27 (Sec'y Jan. 6, 1992).
XI C 1 Summary judgment when Complainant unable
to show he was qualified for position
Summary judgment may be granted where it is shown that there
is no issue of material fact to be determined at trial. The
party moving for summary judgment has the burden of proof to
establish that the nonmoving party cannot prove an essential
element of his claim. Once the movant has met its burden of
proof, the burden shifts to the opposing party to show the
existence of a genuine issue of material fact.
In Smith v. Tennessee Valley Authority, 89-
ERA-12 (ALJ Apr. 26, 1994), an "essential element" of
the Complainant's case would be to show that there was no
legitimate reason for his non-selection and subsequent layoff.
The Respondent moved for summary judgment and met its burden of
proof by establishing that the Complainant would not have been
selected for the position because of his psychological medical
history, and that even assuming he was qualified for the
position, the Complainant's falsifications and omissions in his
application would have been grounds for disqualification and
termination from the position. The burden then shifted to the
Complainant to establish by evidence beyond the pleadings
themselves that there was a genuine issue of material fact. The
ALJ found that based on the overwhelming evidence of record, no
reasonable trier of fact could find that the Complainant
satisfied the requirements of the Site Security Manager position
and thus recommended granting the Respondent's Motion for Summary
Judgment and dismissing the complaint.
XI.C.1. Management discretion in personnel appraisal
Where the record indicated that management had considerable
discretion in determining how excused absences are factored into
a personnel appraisal, the ALJ concluded that there was
substantial leeway for applying this factor in a discriminatory
manner. Varnadore v. Oak Ridge National
Laboratory, 92-CAA-2, 5 and 93-CAA-1 (ALJ June 7, 1993)
(the Complainant had colon cancer).
In Nichols v. Bechtel Construction, Inc., 87-ERA-44
(Sec'y Oct. 26, 1992), slip op. at 13-17, the Secretary found
that the respondent's stated reason for laying off the
complainant, poor job performance and attitude, was not credible.
She noted, inter alia, that the testimony only recorded
three occasions when supervisors believed that the complainant
worked slowly, and that those occasions were not discussed with
either the complainant or the foreman's superiors. She noted
that three co-workers testified that the complainant was diligent
and not disrespectful. Compare Monteer v. Milky Way Transport
Co., Inc., 90-STA-9 (Sec'y July 31, 1990), slip op. at 4-5,
appeal filed, No. 91-3027-CV-S-4, (W.D. Mo., S. Div., Jan.
1991) (poor attitude not pretext where the employer established
complainant's use of profanity and persistent antagonism toward
his dispatcher); Connors v. State Auto Sales, 86-STA-13
(Sec'y Sept. 11, 1986), slip op. at 5-6 (poor attitude an
insolence credited where the complainant had affixed to his
superior's door an "impudent reply" to the superior's
inquiry about his job performance).
The Secretary found that testimony concerning the complainant's
job attitude under his former foreman was not relevant because it
concerned a decision to recommend the complainant for a transfer
that was not alleged to constitute adverse action. The Secretary
stated that the testimony was not relevant to the complainant's
performance after the transfer. Slip op. at 13 n.8.
[Nuclear & Environmental Digest XI C 2 a]
CIRCUMSTANTIAL EVIDENCE CASE
In Overall v. Tennessee Valley Authority, ARB No. 98-111, ALJ No. 1997-ERA-53 (ARB Apr. 30, 2001), Complainant was a power plant specialist at Respondent's Watt's Bar nuclear facility primarily responsible for the ice condenser system. He raised safety concerns about ice basket screws that could have substantially delayed the start up of the facility.
Respondent argued before the ARB that the ALJ had constructed a theory of an extensive conspiracy to remove Complainant from his job, which was not supported by the evidence of record, and was based on unwarranted assumptions and speculation. The ARB, however, found that the ALJ correctly applied the Burdine/St. Mary's Honor Center/Reeves discrimination model in finding a strong circumstantial evidence case to support a finding that Respondent engaged in a coverup of safety hazards to facilitate fuel load and start up at its nuclear facility, an integral facet of which was to remove Complainant from the ice condenser system at the facility, from employment at the facility, from contact with the ice condenser system, and ultimately from Respondent's employment altogether, because of Complainant's activities to ensure the safety of the ice condenser system.
The decision is too complex to distill adequately in a casenote, but the ARB's analysis focused on the temporal proximity of the adverse action and the protected activity: Complainant had an excellent work history prior to a decision to give him the option of either an"at-risk" transfer or transfer to an ostensibly secure position with an underfunded division only a few months after he raised the screw failure problem with "zeal and competence." A complete investigation of the screw problem potentially could have significantly delayed start up of the plant. The ARB thoroughly reviewed the record and found that each of Respondent's "legitimate" reasons for its actions were refuted by the weight of the evidence; thus the ALJ properly found that the unlawful motivation remained. See Reeves v. Sanderson Plumbing Products, Inc., 120 S.Ct. at 2108-2109 (once employer's justification eliminated, discrimination may well be most likely explanation, especially since employer is in best position to put forth actual reason for its decision).
[Nuclear & Environmental Digest XI C 2 a]
PRETEXT; CONFLICTING REASONS GIVEN FOR TRANSFER; EXTRAORDINARY
PENALTY OF SUSPENSION FOR EMPLOYEE WITH GOOD WORK HISTORY
In Jayco v. Ohio Environmental Protection Agency, 1999-CAA-5 (ALJ
Oct. 2, 2000), the ALJ found that the preponderance of the evidence showed that Respondent, the
Ohio Environmental Protection Agency (OEPA), held Complainant, a state EPA investigator, in
particular disfavor for reasons that could only be attributed to Complainant's vigorous
prosecution of an investigation to rule in or out excessive levels of contaminants as the cause of
high rates of leukemia in an area surrounding a school at Marion, Ohio. The ALJ found that
Complainant's approach was to leave "no stone unturned" while OEPA management
wanted to do something graduated and far less effective. The manifestation of this disfavor was
a transfer from the Marion investigation and a 10-day suspension.
The ALJ found that the evidence presented by Respondent to support its articulated reason
for the transfer a reorganization/realignment was conflicting, without substance, and
ultimately not credible. The ALJ found that the transfer was a deliberate retaliation for
Complainant's investigative activity. Likewise, the ALJ found that the reason given for
Complainant's suspension was pretext for retaliation. The suspension was based on alleged
violations of OEPA rules resulting from Complainant consumption of beer during a meal with
co-workers prior to a public meeting at which Complainant was to be an observer. Respondent
faulted Complainant for allegedly drinking while on duty, and for submitting a reimbursement
request that included the beer. The ALJ noted that the alleged violations were not raised until
three weeks following the meal, and held that Respondent's summary referral of a complaint of
theft to the Ohio State Highway Police without first presenting the matter to Complainant for
resolution was intended to hurt Complainant, both in the performance of his job and in his
reputation, for protected activities. Some of the circumstances noted by the ALJ were that the
amount claimed for the beer was de minimus, that Complainant's supervisor was present
during the consumption of the beer and said nothing; that the 10-day suspension was an
extraordinary penalty for a technical mistake by for an employee with a 6 1/2 year good,
discipline-free, work record.
[Nuclear and Environmental Digest XI C 2 a]
PRETEXT
In Fabricius v. Town of Braintree/Park Dept., 1997-CAA-14 n.10
(ARB Feb. 9, 1999), Respondent's purported reason for issuing a warning notice to Complainant
for leaving the work site was found to be pretext where Respondent had no formally documented
policy about leaving a work site to report an environmental hazard; even if a policy existed it was
not applied uniformly (co-worker who also left the site was not sent a warning notice); and, it
was unclear that such a policy was really violated (Complainant had stopped at the Town offices
to attempt to obtain information about possible asbestos at the work site; he did this on his way
back to the garage at the end of the work day).
[Nuclear & Environmental Digest XI C 2 a]
PRETEXT; EMPLOYEE NOT A "TEAM PLAYER"
In Timmons v. Franklin Electric
Coop., 1997-SWD-2 (ARB Dec. 1, 1998), the ALJ found that Respondent had
concluded that Complainant (a new hire) was not the "team player" Respondent
sought and that Complainant's objection to the burial of oil barrels was the last straw. The ARB
agreed with the ALJ's conclusion that Respondent did not consider Complainant to be a team
player, but clarified:
It is well-settled that the employee protection provided by the SWDA and similar statutes
does not prohibit an employer from imposing a wide range of requirements on
employees. See, e.g., Kahn v. U. S. Sec'y of Labor, 64 F.3d 271, 279 (7th Cir.
1995) (under the Energy Reorganization Act); see alsoSmith v. Monsanto
Chem. Co., 770 F.2d 719, 723 n.3 (8th Cir. 1985) (noting, in a case arising under
Title VII of Civil Rights Act of 1964, that employer may develop arbitrary, ridiculous
and even irrational policies as long as they are applied in a nondiscriminatory manner),
cert. denied, 475 U.S. 1050 (1986). When an employer applies an otherwise
legitimate criterion in such a way that it interferes with the exercise of specific
whistleblower rights, however, the employer acts in violation of the employee protection
provision of the corresponding statute. See Assistant Sec'y and Ciotti v. Sysco Foods
of Philadelphia, ARB No. 98-103, ALJ Case No. 97-STA-00030, July 8, 1998, slip
op. at 8 (citing Self v. Carolina Freight Carriers Corp., Case No. 91-STA-25,
Sec. Dec., Aug. 6, 1992, slip op. at 5).
An employer's expectation that an employee interact with
others in the company as a "team player" does not constitute a proscribed
criterion per se.See Odom v. Anchor Lithkemko/ International Paper,
ARB No. 96-189, ALJ Case No. 96-WPC-0001, Oct. 10, 1997, slip op. at 12;
Erb v. Schofield Mgmt., ARB No. 96-056, ALJ Case No. 95-CAA-1, Sept. 12,
1996, slip op. at 2-3. Nonetheless, the extension of that expectation to a point where it
interferes with protected activity is prohibited. Therefore, Akins legitimately could
require Franklin employees to follow management's lead unquestioningly in most aspects
of their work, including the scheduling of overtime work and the manner in which
Franklin's work generally was accomplished. However, Akins could not legitimately
penalize Timmons for raising SWDA-based objections to Franklin's plan to bury the
drums of oil.
The ARB concluded that Respondent was a close-knit company, that Complainant's performance
was commented on negatively by the company manager to other employees, and that
Complainant was considered an outsider. Nonetheless, the ARB found that the not-a-team-
player justification for termination of Complainant's employment was pretext where there was
temporal proximity between Complainant's protected activity and his termination, Respondent
could not explain adequately why it had waited until then to actually terminate the employment
(almost a month after Respondent purportedly had decided to do so), and testimony indicated
that Respondent's managers were still uncertain regarding whether or not to terminate
Complainant's employment as of the date of the protected activity.
[Nuclear & Environmental Digest XI C 2 a]
PRETEXT; SHIFTING EXPLANATIONS
A shift in Respondent's explanation for a termination action provides support for the
conclusion that the action was motivated byretaliatory intent. Timmons v. Franklin Electric Coop.,
1997-SWD-2 (ARB Dec. 1, 1998).
[Nuclear & Environmental Digest XI C 2 a]
PRETEXT; REJECTION OF RESPONDENT'S EXPLANATIONS OF POOR WORK
PERFORMANCE NOT A SUBSTITUTION OF BUSINESS JUDGMENT
In Timmons v. Franklin Electric
Coop., 1997-SWD-2 (ARB Dec. 1, 1998), the ARB found that Respondent had
failed to establish that Complainant's poor work performance was the sole reason for his
termination from employment, even though Respondent's manager had expressed concerns about
Complainant's performance to other workers. Respondent contended that the ARB's
"rejection of its explanation for the termination action effectively imposes a requirement on
employers to provide formal warnings prior to terminating whistleblowing employees on the
basis of unsatisfactory performance, even if such warnings are not required by the employer's
established practice or procedure."
The ARB disagreed, holding that its conclusion that Complainant's termination was
prompted by his protected activity was based on a number of factors, and did not run afoul of the
prohibition against DOL supplanting the employer's business judgment. The ARB held that the
failure of supervisory personnel to advise Complainant of any perceived shortcomings in his
work performance was a relevant factor, but did not itself play a determinative role in its
conclusion.
[N/E Digest XI C 2 a]
PRETEXT; FAILURE TO FOLLOW WELL-ESTABLISHED GRIEVANCE
RESOLUTION POLICY
In Van Der Meer v. Western Kentucky
University, 95-ERA-38 (ARB Apr. 20, 1998), evidence of improper
motivation
on the part of Respondent was established by, inter alia, its failure to follow a
well-established policy of informal resolution of faculty grievances.
[N/E Digest XI C 2 a]
PRETEXT; ACTING IN HASTE ON COMPLAINTS FROM PERSONS WHO HAD AN
AX TO GRIND WITH COMPLAINANT AND EPA
In White v. The Osage Tribal Council, 95-SDW-1 (ARB Aug. 8,
1997),
the ARB adopted the ALJ's findings in regard to pretext. Respondent had
discharged
Complainant, an environmental inspector with responsibility for monitoring and
reporting on
Respondent's compliance with certain provisions of the SDWA, for
"disloyalty" and
"misconduct". The charges against Complainant were found to be
based in
Complainant's dogged enforcement of the SDWA. The ARB noted that one
complaint filed
against Complainant by a leaseholder who had been cited for serious violations
and lost
substantial money because of EPA action initiated by Complainant was based on
a person
"who clearly had his own ax to grind with [Complainant] and the
EPA", and that
Respondent's taking this person's statements at face value, and acting on them
with haste, clearly
supported a finding of pretext. Earlier in the decision, the Board had found
that Complainant had
taken on "responsibilities to report on surface pollution problems
seriously and discharged
them in a professionally respected manner."
PRETEXT; SEIZING ON COMPLAINANT'S REVELATION THAT HE WAS
UNDER STRESS AS AN EXCUSE FOR RETALIATION [N/E Digest XI C 2 a]
In Diaz-Robainas v. Florida Power & Light
Co., 92-ERA-10 (Sec'y Jan. 10, 1996), the Secretary found
that a supervisor who ordered the Complainant to submit to a
psychological evaluation had the duty and responsibility to
insure that the people working for him were fit for duty, and
that the Complainant had told the supervisor and others that he
was under stress. Nonetheless, the Secretary found that stress
was not the reason for the order, but was seized on as an excuse
under the circumstances of the case.
XI.C.2.a. Removing complainant from area where whistle
likely to be blown; chilling effect
In Scerbo v. Consolidated Edison Co. of New York,
Inc., 89-CAA-2 (Sec'y Nov. 13, 1992), the Secretary
adopted the ALJ's findings in regard to pretext. The Complainant
had been transferred from the pipe yard to a less desirable
inside position in the warehouse. The Respondent contended that
the reason for the transfer was to separate the Complainant from
a supervisor, who the Complainant claimed had bumped or jostled
him on occasion. In part, the ALJ wrote:
There is no evidence of ongoing conflict, argument, or
resistance to supervision. The evidence is to the effect
that [the supervisor] regarded [the Complainant] as a good
worker who functioned in the highest estimation within
several parameters of performance. The real effect of the
transfer was to remove [the Complainant] from the locale
where he was observing and reporting on a situation of
potential contaminating influence. What happened is that
the whistleblower was removed from the area where the
whistle would most likely be blown. The chilling effect on
fellow workers' propensity to report problems would be the
unmistakable message sent by the company in moving [the
Complainant].
XI.C.2.a. Pretext established
In The Detroit Edison Co. v. Secretary, United States Dept.
of Labor, No. 91-3737, slip op. (6th Cir. Apr. 17, 1992)
(per curiam) (unpublished) (available at 1992 U.S. App. LEXIS
8280), the Sixth Circuit affirmed the Secretary's finding that
the Respondent's articulated reason for demoting the Complainant
-- she was reassigned so that other nuclear security officers
could receive temporary promotions -- was pretextual. Probative
factors included the timing of the adverse action (only two weeks
after gaining knowledge of the whistleblowing), the fact that the
Complainant's temporary promotion was rescinded several months
before it would have expired and that this was not normal
procedure, the demotion occurred while the Complainant's
immediate supervisor was on vacation and implemented over his
serious objection (the immediate supervisor's memo stating why
the demotion would undermine security also indicated that the
decision was not for legitimate business reasons), the testimony
of the two supervisors who demoted the Complainant indicated
(according to the ALJ) animus toward whistleblowers.
XI.C.2.a. Pretext not established
In Crosier v. Portland General Electric Co., 91-
ERA-2 (Sec'y Jan. 5, 1994), the Secretary found that Respondent's
clinical psychologist had ample reason to question Complainant's
trustworthiness and reliability and to recommend denial of plant
access under Respondent's established, written policy to
"maintain a continuous behavioral observation program which
is designed to [p]rovide prompt detection of aberrant
behavior" and "[e]xclude an individual displaying such
behavior from the protected, vital areas and restricted areas of
the plant." As such, Complainant failed to establish
pretext, and even for the sake of argument Complainant
established an illegitimate motive, Respondent established by a
preponderance of the evidence that it would have discharged
Complainant even if he had not engaged in protected activity.
XI.C.2.a. "Personality deficiency"
directly related to complaint activity
Where there was no evidence that the Complainant's alleged
personality or professional deficiencies [in interpersonal
relations] arose in any other context outside his complaint
activity, the Respondent's conclusion that the Complainant had a
personality problem or deficiency of interpersonal skills was
reducible in essence to the problem of the inconvenience the
Complainant caused by his pattern of complaints. Passaic
Valley Sewerage Commissioners v. United States Dept. of
Labor, No. 92-3261 (3rd Cir. Apr. 16, 1993) (available at
1993 U.S. App. LEXIS 7906).
XI.C.2.a. Pretext
The respondent's stated reason for discharging the complainant
(a crew boat skipper) -- abandonment of his crew, was not
credible where the testimony did not indicate that the
complainant was ordered to stay with the crew until a replacement
arrived, where alternative transportation was available, the
complainant initially learned he was fired prior to leaving the
area.
Neither was leaving the boat and equipment unattended a credible
reason for discharge of the complainant, where uncontradicted
testimony established that the respondent routinely left its
boats unattended and unlocked at public docks in high theft
areas.
Finally, interference with work crews was not a credible reason
for the discharge where no work crew members complained about
interference, where the complainant's "interference"
was objecting to and reporting an oil spill, and where there was
testimony that a worker who cares to keep his job would not take
photographs around an oil field and would not report an oil spill
to the Coast Guard without first reporting it to his employer,
and respondent's president mentioned the photographs and report
when he fired the complainant.
Adams v. Coastal Production Operators, Inc., 89-
ERA-3 (Sec'y Aug. 5, 1992).
[Editor's note: Adams v. Coastal Production Operators,
Inc., 89-ERA-3, did not arise under the Energy
Reorganization Act, although the OALJ gave it an "ERA"
docket number. It was actually a Federal Water Pollution Control
Act case.]
XI.C.2.a. "Problem" employee
In Pillow v. Bechtel Construction, Inc., 87-
ERA-35 (Sec'y July 19, 1993), Employer's witness testified that
Complainant was selected for layoff because he was a problem
employee. Two other employees selected for layoff were also
"problem" employees, one having excessive absences and
the other charged with keeping other employees from doing their
work.
The Secretary examined each of the purported problems with
Complainant's employment, and found that they there were not
convincing as a reason for lay off:
XI.C.2.a. Pretext; failure to follow normal procedures;
unrealistic period to comply with management
directives
The Respondent's assertion that it discharged a Complainant
because she did not own an automobile was pretext where (1) there
was corroborating testimony that owning an automobile was not an
employment requirement; (2) management knew for some time that
the Complainant did not own an automobile and never took action
against her until made aware of her protected activity; and (3)
the Complainant was subjected to disparate treatment because
tardy employees were normally subject to progressive discipline.
In the instant case, the Complainant was given only ten days to
obtain an automobile to get to work. She had been riding a
bicycle or catching rides.
An employer's failure to follow its normal procedures can, in an
appropriate case, suggest deliberate retaliation. DeFord v.
Secretary of Labor, 700 F.2d 281, 287 (6th Cir. 1983).
Moreover, an unrealistically short period of time allowed a
complainant to comply with a management ultimatum is evidence of
pretext. See Kansas Gas & Elec. Co. v. Brock, 780
F.2d 1505, 1513 (10th Cir. 1985), cert. denied, 478 U.S.
1011 (1986).
Johnson v. Old Dominion Security, 86-CAA-3, 4 and 5
(Sec'y May 29, 1991).
XI.C.2.a. "Personality deficiency"
directly related to complaint activity
Where there was no evidence that the Complainant's alleged
personality or professional deficiencies [in interpersonal
relations] arose in any other context outside his complaint
activity, the Respondent's conclusion that the Complainant had a
personality problem or deficiency of interpersonal skills was
reducible in essence to the problem of the inconvenience the
Complainant caused by his pattern of complaints. Passaic
Valley Sewerage Commissioners v. United States Dept. of
Labor, No. 92-3261 (3rd Cir. Apr. 16, 1993) (available at
1993 U.S. App. LEXIS 7906).
XI.C.2.a. Sufficiency of evidence of
pretext
Ample evidence supported the Secretary's finding that a nuclear
power plant had fired a quality assurance inspector based on
pretext (unverifiable references) where
the employer failed to offer any counseling or
warning prior to a meeting at which it was planned to
dismiss the complainant;
it had taken no action against other employees who
did not meet the educational prerequisites for
employment;
it only allowed a short period of time for
complainant to produce documentation of his educational
and employment qualifications;
that period was curtailed;
the complainant's superior removed the
complainant's discrepancy report from the typing
box and had it date stamped (?); and
the employer's refusal to re-employ the
complainant after the required documentation of
qualification was obtained.
Kansas Gas & Electric Co. v. Brock, 780 F.2d
1505 (10th Cir. 1985), cert. denied, 478 U.S. 1011, 92
L.Ed.2d 724, 106 S. Ct. 3311 (1986).
XI.C.2.a. Pretext established
The respondent's stated reasons for termination of the
complainant were shown to be pretext in Lederhaus v. Donald
Paschen & Midwest Inspection Service, Ltd., 91-ERA-13
(Sec'y Oct. 26, 1992), slip op. at 8-9. The complainant's
failure to lock a camera after each exposure in violation of NRC
and respondent's rules was not a credible basis for discharge
where the respondent observed the complainant taking pictures,
said nothing, and gave the complainant as
"satisfactory" rating on his performance with the
camera. The complainant's "falsification" of a
utilization log was an equally specious reason for discharge
where the respondent admitted that he had made precisely the same
kind of mistake himself, and where the respondent could not state
why this was a "falsification" as opposed to a mere
oversight, or why anyone would have anything to gain from
falsifying the log.
XI.C.2.a. Proof of Discriminatory Motive
Blake v. Hatfield Electric Co., 87-ERA-4 (Sec'y
Jan. 22, 1992).
The Deputy Secretary of Labor affirmed the Recommended Decision
of an ALJ which found that Respondent discriminated against the
Complainant in violation of the Energy Reorganization Act (ERA)
when it laid him off from his position of quality control
inspector at the Respondent's nuclear power plant. The Deputy
Secretary determined that the Respondent's articulated reasons
for its employment decisions were pretextual. A supervisor's
comment on a performance evaluation that Complainant "use[s]
N.R.C. (Nuclear Regulatory Commission) as a threat,"
virtually amounted to direct evidence of discrimination in and of
itself. In fact, the supervisor admitted that the Complainant
never made such threats, but was merely seen conferring with an
N.R.C. investigator on one occasion. The Deputy Secretary
further found that this remark could not be considered merely a
"stray remark," Price Waterhouse v. Hopkins, 490
U.S. 228, 277 (1989) (O,Connor, J., concurring), but rather,
spoke directly to the issue of discriminatory intent and related
to the specific employment decision in this case.
In this case, the sole question was whether Respondent met its
burden of "proving by a preponderance of the evidence that
it would have made the same decision even if it had not taken the
illegitimate criteria (the NRC threat) into account."
Price Waterhouse, supra at 258.
There was also evidence that the Complainant's low performance
ratings and denial of a promotion in favor of a lesser qualified
individual were discriminatorily motivated because of the
pretextual reasons given by the supervisors. The Deputy
Secretary found those actions violated 42 U.S.C § 5851,
which prohibits discrimination because an employee is about to
commence a proceeding under the ERA.
XI C 2 a Pretext; timing; Complainant's
abilities; direct evidence
In Jenkins v. U.S. Environmental Protection Agency,
92-CAA-6 (Sec'y May 18, 1994), Respondent proffered that it
transferred Complainant because she had been working under a
supervisor whose section did not perform the work done by
Complainant (Complainant had been placed under this supervisor
because she had filed harassment charges against the supervisor
in charge of the section that did Complainant's type of work).
Respondent contended it transferred Complainant because she had
completed her current assignments because continued supervisor by
the current supervisor was awkward because he was not responsible
for and lacked expertise in Complainant's work.
The Secretary found this reason to be pretext because:
The timing was suspect. The "awkward"
arrangement had been going on for two years and was
changed only once Complainant's whistleblowing began to
elicit results and it became apparent that no
legitimate basis existed for disciplining her.
Complainant was very good at her work. The logical
choice would have been to transfer her back to the
section that did her kind of work because Complainant
was very good at this work, the supervisor against whom
she had brought charges no longer worked for
Respondent, that section's work had increased
dramatically as a result of a settlement of a law suit,
and she was not qualified to perform the type of work
done by the section to which she was transferred.
There was direct evidence that the supervisor of the
section to which she was qualified to be transferred
wanted her treated like other whistleblowers in the
agency: assigned administrative work of little
consequence.
XI.C.2.a. Need to repeatedly instruct complainant
resulted from complainant's insistence on adhering
to safety & quality guidelines
In Blake v. Hatfield Electric Co., 87-ERA-4 (Sec'y
Jan. 22, 1992), the respondent's articulated legitimate reason
for laying off the complainant -- his low numerical score on his
most recent performance evaluation -- was found to be a pretext
for retaliation. Among other factors, the supervisor's
explanation for a comment that the complainant was
"argumentative [and] has trouble accepting decisions from
superiors" and that the complainant needed to be given
repeated instructions, was found to be unconvincing. The alleged
need to give the complainant repeated instruction arose from his
insistence on adhering to safety and quality procedures requiring
that the plant blueprints take precedence over any other
standards or instructions, and his resistance to directives that
would have left a gap in the paper trial showing that those
procedures had been followed.
XI.C.2.a. Pretext
The "legitimate" motivation of job rotation proffered
as an explanation for a Complainant's job demotion shortly after
engaging in protected activity was rebutted as pretext where:
under the employer's system, any rotation
should have occurred at a six month interval rather
than, as here, midway through an assignment term;
Complainant was not apprised that job rotation
was the reason for the reassignment;
Complainant's reassignment made little sense
in the context of the employer's plant development
Complainant had received excellent performance evaluations and
had acquired considerable experience in programs that the
employer was under time constraints to implement. She had
received special training for the work she was performing at the
time of her abrupt reassignment, while her replacement was
inexperienced and untrained. Complainant's supervisor opposed
her reassignment because he believed that it would jeopardize his
ability to meet the program objectives and would raise concerns
with the NRC.
Larry v. Detroit Edison Co., 86-ERA-32 (Sec'y June
28, 1991).
XI. C. 2. a. Illustrative cases; pretext
established
When the respondent articulates a legitimate, nondiscriminatory
reason for the adverse action, the Complainant bears the ultimate
burden of persuading that the legitimate reasons articulated by
the respondent were a pretext for discrimination, either by
showing that the unlawful reason more likely motivated the
respondent or by showing that the proffered explanation is
unworthy of credence. At all times, the complainant has the
burden of showing that the real reason for the adverse action was
discriminatory. Thomas v. Arizona Public Service
Co., 89-ERA-19 (Sec'y Sept. 17, 1993).
In Thomas, the Complainant meet that burden. In
regard to the articulated reasons for denial of a promotion, she
rebutted each as follows:
In addition, there was evidence of a supervisor's positive
impression of Complainant's proficiency prior to the application
(he thought she already was a senior technician and qualified to
apply as an Associate Engineer; he named her as the contact
person in his absence). There was evidence that not as much
experience for promotion as was told was needed to Complainant
was actually required for promotion. (evidence of promotions of
other technicians with narrower experience and less seniority).
When Complainant applied for the even higher ranking position of
Associate Engineer, she was ranked fifth out of seventeen
applicants.
The Complainant also rebutted the articulated reason for
suspending her certifications to perform a number of tests.
Although there was undisputed evidence that Complainant had
difficulty administering the sixth test, the Secretary found that
it was not credible to use that difficulty as a ground for
suspending all of the Complainant's certifications. One of the
tests, for example, did not even use the same test panel as the
sixth test. There was also evidence that the re-certification
requirement was unique to Complainant, and was humiliating to
her.
XI.C.2.a. Poor attitude versus manifestation of protected
activity
In Dodd v. Polysar Latex, 88-SWD-4 (Sec'y Sept. 22,
1994), the Respondent maintained that it discharged the
Complainant because of poor work performance and poor attitude.
Reviewing the record, however, the Secretary concluded that what
the Respondent viewed as poor attitude were nothing more than the
result and manifestation of the Complainant's protected activity.
The Secretary stated that the right to engage in statutorily
protected activity permits some leeway for impulsive behavior,
which is balanced against the employer's right to maintain order
and respect in its business by correcting insubordinate acts. A
key inquiry is whether the employee has upset the balance that
must be maintained between protected activity and shop
discipline. See Asst. Sec. and Lajoie v. Environmental
Management Sys., Inc., 90-STA-31 (Sec'y Oct. 27, 1992), slip
op. at 10-11, and cases cited therein, appeal dismissed,
No. 92-2472 (1st Cir. Feb. 23, 1993); Kenneway v. Matlack,
Inc., 88-STA-20 (Sec'y June 15, 1989), slip op. at 6-7.
The Secretary determined that the balance weighs heavily in
Complainant's favor in the instant case. Even if the incident
immediately provoking the discharge involved the use of
intemperate language by Complainant, the incident was private,
was far from egregious, was not indefensible in the context of
the escalating conflict, and thus did not remove Complainant from
statutory protection.
In sum, the Secretary concluded that Complainant's termination
was based solely on his "attitude," which in this case
was a manifestation of his protected complaining. Even if the
decision also was based in part on Complainant's performance
and/or some legitimate attitudinal problems, Respondent failed to
prove that it would have fired Complainant in the absence of his
protected activity that immediately preceded his discharge.
[Editor's note: It is unclear whether the Secretary's
position is that Respondent's articulated reason was not
credible, or that it was pretextual.]
XI.C.2.a. Direct evidence of discrimination
In Blake v. Hatfield Electric Co., 87-ERA-4 (Sec'y
Jan. 22, 1992), the respondent's articulated legitimate reason
for laying off the complainant -- his low numerical score on his
most recent performance evaluation -- was found to be a pretext
for retaliation. Particularly persuasive in this regard was a
supervisor's comment on the performance evaluation that the
complainant "[u]ses NRC as a threat", which virtually
amounts to direct evidence of discrimination.
This was not merely a "stray remark" in the work place,
Price Waterhouse v. Hopkins, 490 U.S. 228, 277 (1989)
(O'Conner, J., concurring), but meets the test that the remark
"speak[s] directly to the issue of discriminatory intent,
[and] . . . relate[s] to the specific employment decision in
question." Randle v. LaSalle Telecommunications,
Inc., 876 F.2d 563, 569 (7th Cir. 1989); see also Beshears
v. Asbill, 930 F.2d 1348, 1354 (8th Cir. 1991), and cases
cited therein (comments by a manager or those closely involved in
employment decisions may constitute direct evidence of
discrimination).
Where there is direct evidence that discrimination motivated the
adverse employment decision, the sole question is whether the
respondent has met its burden of "proving by a preponderance
of the evidence that it would have made the same decision even if
it had not take the [illegitimate criteria] into account."
Price Waterhouse, 490 U.S. at 258 (plurality opinion).
In the instant case, the respondent, by relying exclusively on
the performance rating as justification for discharging the
complainant, did not offer any convincing non-discriminatory
rationale for its evaluation.
Even if an inference must be drawn from the supervisor's comment
that the evaluation was discriminatorily motivated, see Lee v.
Russell County Bd. of Educ., 684 F.2d 769, 774 (11th Cir.
1982) (no inference of discrimination required when direct
evidence is presented), the statement was strong evidence that
the complainant's low score was pretextual.
XI.C.2.a. Reorganization
In Jenkins v. United States Environmental Protection
Agency, 92-CAA-6 (ALJ Dec. 14, 1992), the ALJ ruled that
the Respondent failed to articulate a legitimate,
nondiscriminatory reason for reassigning the Complainant. In
Jenkins, there was evidence that the reassignment was
motivated at least in part by the protected activity. The
reason, reorganization, was also found to be pretextual -- it was
clear that the Complainant's conduct was an embarrassment to EPA
and that EPA's intent was to isolate the Complainant.
[Editor's note: The ALJ cited McDonald Douglas and the
"but for" test, but appears to have applied a pretext
test.]
XI.C.2.a. Reason made up for litigation is
pretextual
In Priest v Baldwin Associates, 84-ERA-30 (Sec'y
June 11, 1986), where a proffered reason for discharging
Complainant -- distracting another worker -- was not mentioned on
the termination slip as a reason for discharge, Respondent had
two opportunities to cut off the distraction by directly
informing Complainant and the other workers to move on and return
to work, the reason was pretext. The Secretary, quoting
Marathon Le Tourneau Co., Longview Division v. NLRB, 699
F.2d 248, 252 (5th Cir. 1983), stated that "[r]easons which
are a 'mere litigation figment or were not relied upon at the
time of the adverse action are pretextual.'"
XI.C.2.a. Employer's judgment of employee quality
In Blake v. Hatfield Electric Co., 87-ERA-4 (Sec'y
Jan. 22, 1992), the respondent attacked the ALJ's finding that
the complainant was one of the respondent's best inspectors and
should have been retained over a less experienced and effective
inspector. The respondent contended that management retains the
prerogative under the ERA of putting more emphasis on attitude
and eagerness to do the job than "sheer technical
competence."
The Secretary agreed that the ERA does not displace an employer's
judgment of what qualities it seeks in its employees and its good
faith evaluation of those qualities. Nonetheless, she indicated
that the employer's misjudging the qualifications of the employee
"'may be probative of whether the employer's reasons are
pretexts for discrimination.'" Slip op. at 12 (quoting
Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248,
259 (1981)). Thus, where the record supported the ALJ's
conclusion that the reasons for the complainant's poor rating
often were contradictory, had no basis in fact, or were not
credible when weighed against other testimony, the respondent's
professed reliance on the performance evaluation was pretextual
because the evaluation scores were motivated by discrimination.
See Norris v. Hartmarx Specialty Stores, Inc., 913 F.2d
253, 255-56 (5th Cir. 1990).
XI.C.2.a. Burden of production of evidence in
Respondent's control to support assertion of
firing of other employees in same
circumstances
In Priest v Baldwin Associates, 84-ERA-30 (Sec'y
June 11, 1986), one of the proffered reasons for discharging
Complainant was that he was out of his work area for 20-30
minutes. This reason was found to be pretext because
Complainant's immediate supervisor did not consider
Complainant to be out of his work area nor to have
violated any company policy
A company official testified that other employees had
been fired for being out of their assigned work areas,
but could not testify to any specific examples, and no
corroborating documents from company records were
introduced
The Secretary held that in such circumstances,
it is reasonable to look to the respondent
employer to produce such evidence in its control,
at least for the purpose of carrying its burden of
going forward. [citations omitted]
The only evidence of company policy provided for
termination for three consecutive days' absence without
notifying the timekeeper, but was silent regarding
being out of one's work area. It was difficult to
believe that an employee with one or two full days of
unexcused absences would be retained but one out of his
work area for 20-30 minutes would be
discharged.
XI.C.2.a. Anger over failure to follow chain of
command
Under the ERA whistleblower provision, an employer may not, with
impunity, hold against an employee his going over his superior's
head, or failing to follow the chain of command, when the
employee raises a safety issue. See, e.g., Pogue v. United
States Dep't of Labor, 940 F.2d 1287, 1290 (9th Cir. 1991).
Thus, where the complainant's foreman admitted to being upset
that the complainant had raised a safety issue with the foreman's
superior because the foreman had instructed the complainant to
come to him first, that fact supported the Secretary's conclusion
that the respondent's proffered reason for selecting the
complainant for layoff was pretext. Nichols v. Bechtel
Construction, Inc., 87-ERA-44 (Sec'y Oct. 26, 1992), slip
op. at 17.
XI.C.2.a. Evidence of deliberate retaliation
The court agreed with the Secretary's finding that the following
constituted evidence that employee's transfer was a deliberate
retaliation:
<
TVA did not follow its normal procedure in transferring
employee;
employee had received superior performance ratings prior
to the NRC investigation;
employee worked well with his immediate supervisors;
and
negative remarks were made about employee.
DeFord v. Secretary of Labor, 700 F.2d 281, 287
(6th Cir. 1983).
XI.C.2.a. Pretext not established
In Crosier v. Portland General Electric Co., 91-
ERA-2 (Sec'y Jan. 5, 1994), the Secretary found that Respondent's
clinical psychologist had ample reason to question Complainant's
trustworthiness and reliability and to recommend denial of plant
access under Respondent's established, written policy to
"maintain a continuous behavioral observation program which
is designed to [p]rovide prompt detection of aberrant
behavior" and "[e]xclude an individual displaying such
behavior from the protected, vital areas and restricted areas of
the plant." As such, Complainant failed to establish
pretext, and even for the sake of argument Complainant
established an illegitimate motive, Respondent established by a
preponderance of the evidence that it would have discharged
Complainant even if he had not engaged in protected activity.
XI C 2 a Articulated reason lacked credibility
In Nathaniel v. Westinghouse Hanford Co., 91-SWD-2
(Sec'y Feb. 1, 1995), where there
was evidence that the Respondent was concerned about media
exposure, the Complainant had sent an
E-mail message complaint about a health and safety issue which
she declined to rescind, and the
evidence concerning other reasons for the adverse employment
action (effort to have Complainant
rescind the E-mail message and subsequent transfer to less
desirable employment) were not credible,
the Secretary found that the Complainant had established
entitlement to relief. Since this finding was
that the Respondent was not motivated by any legitimate reason,
dual motive analysis was not applied.
XI.C.2.a. Layoff when employer had backlog of work;
irregularities in method of layoff
In Williams v. TIW Fabrication & Machining,
Inc., 88-SWD-3 (Sec'y June 24, 1992), the Respondent's
proffered reason for laying off the Complainant -- insufficient
work -- was found to be pretext where the evidence established
that the time the Respondent was amassing a backlog of work
calling for the Complainant's skills, and irregularities in the
notice and method used to lay off the Complainant.
XI C 2 a Pretext established
In Artrip v. Ebasco Services, Inc., 89-EA-23
(Sec'y Mar. 21, 1995), the Secretary
found that the Complainant, who had been laid off, proved that
the Respondent violated the ERA by
refusing to refer the Complainant to a licensee that had
requested a list of former inspectors for
employment consideration. The Secretary found that Respondent's
site manager knew of a prior NRC
investigation in which the Complainant participated that resulted
in substantial delays and untold
financial loss, knew that Complainant had a prior connection with
the supervisor at the licensee who
made the request for personnel, and knew of Complainant's
well-known reputation as a whistleblower.
Thus, the Secretary concluded that the site manager did not make
the referral because he knew, or at
least suspected, that the licensee's supervisor would not be
interested in rehiring the Complainant.
In Redweik v. Shell Exploration and Production Co, ARB No. 05-052, 2004-SWD-2 (ARB Dec. 21, 2007), the Complainant had contended that the Respondent used his violations of expense account rules as a pretext for forcing him to resign in retaliation for protected activity. The ALJ, however, found that the Respondent's investigation into the expense account violations had been very thorough and that the official who made the decision to terminate the Complainant had not blindly accepted the recommendation to terminate. On appeal, the Complainant argued that the ALJ had erred in ignoring evidence that supported a pretext theory. The ARB, however, found that the preponderance of the evidence did not support the Complainant's pretext theory.
[Nuclear and Environmental Digest XI C 2 b] PRETEXT; INSUFFICIENT TO SHOW THAT RESPONDENT MISINTERPRETED THE TONE OF THE COMPLAINANT'S COMMUNICATIONS OR THAT THE COMPLAINANT BELIEVED THAT HIS ACTIONS WERE IN THE RESPONDENT'S BEST INTERESTS
In Stojicevic v. Arizona-American Water, ARB No. 05-081, ALJ No. 2004-SOX-73 (ARB Oct. 30, 2007), the Respondent's articulated reason for terminating the Complainant's employment was inappropriate behavior and insubordination. The Complainant argued that his e-mails – which the Respondent considered to be hostile and rude – were misunderstood because English was not his first language. The ARB agreed with the ALJ's finding that the Complainant had not been merely misunderstood in his e-mails. Moreover, the ARB indicated that merely establishing that the Respondent misinterpreted the e-mails was not sufficient to establish that the Respondent had an unlawful motive to discriminate in violation of the SDWA. The Complainant's burden was to establish that the proffered explanations were false and a pretext for discrimination. Similarly, the Complainant showed up for work on a day on which he was scheduled to serve a suspension and told to leave. He later showed up at a work site with a client. The Respondent found this to be insubordination contributing to the decision to discharge. The Complainant argued that he had previously scheduled the meeting with the trade representative, and that he had not had a chance to cancel the meeting. The ARB indicated that even if the Complainant believed that his actions were in the Respondent's best interests, this did not show that he had been suspended in retaliation for protected activity rather than because he insubordinately refused to comply with the suspension.
[Nuclear and Environmental Digest XI C 2 b] PRETEXT; DISPARATE TREATMENT
In Patrickson v. Entergy Nuclear Operations, Inc., ARB Nos. 05-069 and 05-070, ALJ No. 2003-ERA-22 (ARB Aug. 32, 2007), the Complainant had been placed on a PIP, and later discharged when the Respondent concluded that he was not meeting his goals and that his performance was deteriorating. The Complainant claimed pretext. The ARB, however, found that the Complainant failed to prove pretext by a preponderance of the evidence because the Complainant presented no proof or even argument that any of the reasons given by the Respondent for the discharge were false. The ARB also found that the record did not support the ALJ’s conclusion that the Complainant had been treated differently from similarly situated employees. The Respondent had not dismissed another employee who had been on a PIP for longer than the Complainant, but the ARB found that this employee was not similarly situated, being in a different job and having made steady improvement and having met all of his deadlines, unlike the Complainant. Although other employees had not been discharged for failing to complete health systems reports on time, they did not have the additional performance problems that the Complainant had exhibited. Finally, other employees had not taken projects with them when they changed departments, whereas the Complainant had. However, the ARB found that the record showed that the Complainant had volunteered to take the project when he transferred.
PRETEXT; WHERE THE ONLY TWO WITNESSES WHO TESTIFIED WERE THE COMPLAINANT AND THE RESPONDENT'S OWNER, WHO GAVE CONFLICTING TESTIMONY, AND THE ALJ BELIEVED THE OWNER, PRETEXT IS NOT ESTABLISHED
In Murphy v. Atlas Motor Coaches, Inc., ARB No. 05-055, ALJ No. 2004-STA-36 (ARB July 31, 2006),
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the Respondent was a motor coach company. The Complainant failed to establish that the Respondent's stated ground for dismissal (that the Respondent's main client had asked that the Complainant not drive routes contracted to it because of an allegation that the Complainant had misappropriated a passenger's cell phone) was pretext. The only witnesses were the Complainant and the Respondent's owner/president, who gave differing versions of the cell phone incident. Since the owner/president's version constituted substantial evidence (which the ALJ accepted), the ARB was obliged to uphold the ALJ's finding that the Complainant was fired for legitimate, non-discriminatory reasons.
IX C 2 b Evidence that other
employees were also discharged
Where the Complainant and seven other employees had prepared a
list of grievances while away from
their work site for over one hour -- only the last of which
involved a safety issue -- and presented the
list to a supervisor, who then merely glanced at the list and
immediately discharged all eight employees
for insubordination, the Secretary accepted the ALJ's credibility
assessment and found that the
supervisor did not realize the grievance list contained a
safety-related complaint at the time Complainant
was discharged, though he had previously discussed all of the
issues on the grievance list with the
employees. Although Complainant had made safety complaints
throughout his five month employment,
the Secretary agreed with the ALJ that pretext had not been shown
-- that it was inconceivable that all
eight employees would be fired in retaliation for Complainant's
safety related complaints. Seal v. The American Inspection Co., 92-ERA-6 (Sec'y Mar. 17,
1995), amended (Sec'y Mar. 24,
1995).
[Nuclear and Environmental Whistleblower Digest XI C 2 b]
PRETEXT; BELIEF THAT THE COMPLAINANT POSED A THREAT OF VIOLENCE AT WORK; EX PARTE RESTRAINING ORDER
In Morriss v. LG&E Power Services, LLC, ARB No. 05-047, ALJ No. 2004-CAA-14 (ARB Feb. 28, 2007),
PDF |
HTM
the ALJ erroneously placed the burden upon the Respondent to prove that the Complainant posed a threat of violence at work. Rather, the Complainant had the burden of proving that the Plant Manager did not genuinely believe that the Complainant posed a threat of workplace violence and therefore, his asserted reliance on this belief was merely a pretext for discrimination. The Board wrote: "There is a crucial distinction here. It is not sufficient for [the Complainant] to establish that the decision to terminate [the Complainant]'s employment was not "just, or fair, or sensible . . . rather he must show that the explanation is a phony reason." Thus, [the Complainant] must show that the [Plant Manager]'s proffered explanations are false and a pretext for discrimination." Slip op. at 42 (footnote omitted).
The ALJ had declined to infer that "ex parte Domestic Relations Orders raise an inference of a tendency toward violence against fellow employees or anyone else at work." The ARB found that the ALJ's ruling ignored pertinent facts: that the restraining order was entered after a domestic relations state court judge heard evidence and that the Complainant's wife was herself an employee of the Respondent who had been the subject of violence at the Complainant's hands. The Board wrote: "We do not believe that it was necessary for [the Plant Manager] to wait until the Complainant more seriously injured [his wife] or another employee while at work to reasonably believe that the Complainant might pose a threat of workplace violence and to act to fulfill his duty to provide his workforce, including [the Complainant's wife], with a safe and secure work environment. Thus, while the evidence of record did not convince the ALJ that [the Complainant] posed a threat of violence in the workplace, we find that [the Complainant] has failed to establish by a preponderance of the evidence that [the Plant Manager] did not genuinely believe this to be true.
[Nuclear and Environmental Whistleblower Digest XI C 2 b]
LEGITIMATE NON-DISCRIMINATORY REASONS FOR ADVERSE ACTION; PRETEXT NOT SHOWN
In Schlagel v. Dow Corning Corp., ARB No. 02-092, ALJ No. 2001-CER-1 (ARB Apr. 30, 2004), the ARB reviewed the evidence and found that the Complainant failed to establish by preponderance of the evidence that the Respondent had discriminated against him by transferring, suspending and ultimately firing the Complainant where the record showed
-- that employees were encouraged to raise environmental issues and concerns, and that that the Complainant's concerns had been investigated and either been addressed and resolved or proven to be unfounded;
-- that, although that Complainant's technical engineering skills were respected, performance appraisals (including one prior to his protected activity) noted a need to improve leadership skills;
-- that Complainant was offered a new position because an upcoming reduction in production made it impossible for the Complainant to stay in his manufacturing position, and testimony indicated that the new position was a good fit for the Complainant and was not a demotion;
-- that the Complainant was justifiably suspended when he sent an e-mail to the Respondent's CEO stating that he had been bullied into the job and later sent an e-mail to everyone at the facility (including non-employee contractors) disparaging his potential supervisor.
-- that the e-mail to the entire work force attached confidential information and caused disruption at the plant requiring the plant manager to explain to the workers that the safety and environmental concerns had already been investigated and resolved.
[Nuclear & Environmental Whistleblower Digest XI C 2 b]
PRETEXT; ABSENCE OF PRIOR DISCIPLINE; ERA WHISTLEBLOWER
PROVISION IS A DISCRIMINATION STATUTE, NOT A PERSONNEL MANUAL
In Gale v. Ocean Imaging, ARB No. 98 143,
ALJ No. 1997 ERA 38 (ARB July 31, 2002), the ALJ had found Respondent's articulated reasons
for discharging Complainant to be insignificant, and therefore pretextual, in large part because
Complainant had not been disciplined prior to her termination. The ARB reviewed the evidence
of record, and came to the opposite conclusion, largely because each of the instances of conduct
alleged by Respondent to have led to Complainant's discharge did occur. In regard to the lack
of prior discipline, the ARB wrote:
The absence of disciplinary action against Complainant prior
to her protected activity does not establish that Respondents' alleged reasons for
her discharge were pretextual. Ventura testified without contradiction that Gale
was terminated under the same process as any other employee and that
Respondent did not have a policy requiring it to bring decrements in an
employee's performance to the employee's attention. T. 197. The ALJ's
contention that the absence of prior disciplinary acts showed pretext assumes
that Respondent had to take other disciplinary measures before dismissing
Complainant. There was no evidence that Respondent had a policy or practice of
progressive discipline, under which it imposed lesser sanctions prior to
terminating employment, nor does the ERA require Respondents to have had
such a policy or practice. Similarly, Respondents' failure to weigh the favorable
comment of a patient in August against the earlier comment on Gale's rudeness,
made by a different patient in March, does not establish pretext. "We
[courts] do not sit as a super personnel department that reexamines an entity's
business decisions." Morrow v. Wal Mart Stores, Inc. 152 F.3d
559, 564 (7th Cir. 1998). Section 5851 of Title 42 of the U.S. Code is a
discrimination statute, not a code of sound personnel
management.
[Nuclear & Environmental Whistleblower Digest XI C 2 b]
PRETEXT NOT ESTABLISHED
In Pafford v. Duke Energy Corp., ARB No. 02 104, ALJ No. 2001 ERA 28 (ARB Jan. 30, 2004), an accidental electrical fire and small explosion occurred at one of Respondent's facilities, and following an investigation Complainants were discharged on the ground that they made false and misleading statements about their role in the accident. Complainants contended that Respondent actually fired them because they engaged in protected activity. Following a hearing the ALJ found that the investigation into the accident was "thorough and fair" and that Respondent's management sincerely and reasonably relied upon it in finding that Complainants had lied to and misled the investigators. The ARB found that the ALJ had thoroughly analyzed all of the evidence and correctly applied relevant law in finding that Complainants had failed to establish pretext.
[Nuclear & Environmental Whistleblower Digest XI C 2 b] ULTIMATE QUESTION OF RETALIATORY MOTIVE; PROTECTED ADVOCACY THAT INTERFERS WITH PERFORMANCE OF ASSIGNED DUTIES
In Jenkins v. United States Environmental Protection Agency, ARB No. 98 146, ALJ No. 1988 SWD 2 (ARB Feb. 28, 2003), the ARB concluded that although Complainant was "free vigorously to report what she considered to be violations of the environmental laws without reprisal... it was her responsibility to carry out EPA policy as senior management determined it [and] she was not at liberty to disregard or thwart the instructions of her supervisors...." The Board found that Complainant was not removed from certain assignments for her advocacy per se, but on account of her employer's business needs. The Board wrote that it distinguished "between protected complaints and unprotected failures to complete work assignments as requested...."
[Nuclear & Environmental Whistleblower Digest XI C 2 b] RETALIATORY MOTIVE; RELATIVE NEED TO RESOLVE DISPUTES OVER SCIENTIFIC AND POLICY DISPUTES
The ARB's role is not to resolve scientific or policy questions over which a complainant and her employer may disagree or have differing views of priorities, but to determine whether the respondent reliatated against the complainant for expressing her views. SeeJenkins v. United States Environmental Protection Agency, ARB No. 98 146, ALJ No. 1988 SWD 2 (ARB Feb. 28, 2003).
[N/E Digest XI C 2 b]
PRETEXT NOT ESTABLISHED
In Olsovsky v. Shell Western E&P, Inc., 96-CAA-1 (ARB Apr. 10,
1997), Complainant conceded that he may have been legitimately disciplined for
his misconduct,
but maintained that discharge was unreasonably harsh in light of his conduct
and in comparison
with discipline imposed on other employees. The Board found that pretext for
discharge was not
established where Complainant had failed to show that other employees
similarly situated
(i.e., those with substantially similar disciplinary records) received
more lenient
treatment; Complainant's discharge occurred only after counseling and
progressive discipline;
many witnesses indicated that Complainant was difficult to get along with and
sometimes
worked in an unsafe manner; many of Complainant's performance problems began
before he
engaged in any protected activity.
[N/E Digest XI C 2 b]
EMPLOYER'S MISTAKEN BUT HONEST ACTIONS
In Keene v. Ebasco Constructors,
Inc., 95-ERA-4 (ARB Feb. 19,
1997), Complainant (who had unescorted access clearance) was treated as a
"visitor"
and given a Fitness-for-Duty drug test when, accompanying a friend to the work
site, a worker
had noticed alcohol on Complainant's breath. The Board found that the test
had not been given
as
a means of discouraging Complainant's return to work because of protected
activity, but based on
a reasonable and honest belief that Complainant should be treated as a
"visitor". The
Board held that even if that was a mistake, such a mistake was not a violation
of the ERA under
the circumstances.
RETALIATORY MOTIVE; REMOVAL FROM SITE FOR MEDICAL REASONS;
COMPLAINANT PLACED IN RESPONSIBLE POSITION
[N/E Digest XI C 2 b]
Where the Respondent was aware of the Complainant's
reputation as a whistleblower and his commitment to
correcting certain violations, and had placed the
Complainant in a position of responsibility for correcting
the violations based on his qualifications and knowledge,
the Secretary found the Complainant's theory that the
Respondent had sent him to a doctor to prevent the
Complainant from reporting and correcting problems to be
"improbable." Smith v. Esicorp,
Inc., 93-ERA-16 (Sec'y Mar. 13, 1996).
XI C 2 b Pretext not established
Where the Respondent began advertising for a replacement for the
Complainant nearly a month before it learned of the Complainant's
protected activity, and where there was ample evidence that the
Respondent terminated the Complainant's employment because of
poor attitude, abuse of overtime, and complaints from clients,
the Complainant failed to establish that he protected activity
either led to, or played a role in the Respondent's decision to
discharge the Complainant. Jopson v. Omega Nuclear
Diagnostics, 93-ERA-54 (Sec'y Aug. 21, 1995).
XI C 2 b CAUSATION; UNPROTECTED CONDUCT IMMEDIATELY PRIOR TO
ADVERSE EMPLOYMENT ACTION; PERVASIVE POLICY OF ENCOURAGING SAFETY
COMPLAINTS; REDUCED PUNISHMENT
Evidence that a complainant engaged in wholly unprotected
misconduct immediately prior to the respondent taking adverse
employment action may belie a causal connection between earlier,
ongoing protected action and the adverse action. SeeGibson v. Arizona Public
Service Co., 90-ERA-29, 46
and 53 (Sec'y Sept. 18, 1995), citing Monteer v. Milky Way
Transp. Co., Inc., 90-STA-9 (Sec'y July 31, 1990).
Evidence of a pervasive policy by the respondent of
encouraging safety complaints may assist in persuading the
factfinder that retaliation was not a factor in the decision to
take adverse employment action against a complainant. See
id.
The mere fact that the respondent takes an adverse
employment action that deviates from company policy does not, in
itself, establish retaliatory motive. See id.
The fact that adverse employment action may be reduced as a
result of a complainant's protected activity does not establish
actionable retaliation where it is established that the original
punishment was warranted for legitimate and nondiscriminatory
reasons. See id. (Complainant's punishment may
have been reduced as a result of his threat to go to the NRC).
XI C 2 b Progressive discipline policy; absence of
evidence that failure to use
was for illicit reasons and presence of evidence
that Complainants'
behavior was different in nature that others who
engaged in similar
behavior
In Collins v. Florida Power Corp., 91-ERA-47 and 49
(Sec'y May 15, 1995), the
Complainants were immediately terminated from employment upon the
Respondent's discovery that
they had been using Respondent's computers for a private business
purpose. Although the
Complainants argued that the Respondent should have used its
progressive discipline policy, the
Secretary found that there was no evidence that there was a
failure to apply a progressive discipline
for illicit reasons. The Secretary quoted with approval the
ALJ's observation that the Respondent
"was entitled to fire the Complainants for good reasons, bad
reasons, or no reason, 'as long as
it's not a discriminatory reason.'" Slip op. at 12-13,
quoting transcript at 525.
In addition, the Secretary dismissed the Complainants' evidence
that other private businesses were
being carried on at the Respondent's facility without
disciplinary action based on credible testimony
that the persons who disciplined the Complainant did not know
about the other businesses, and based
on evidence that the Respondent believed that the nature of the
Complainants' business (which
included the sale of sexual devices) would discredit and
embarrass the company. Further, one
Complainant had not been entirely forthcoming in discussing his
outside activities when confronted
prior to the discharge.
XI.C.2.b. Pretext not established
In Chavez v. Ebasco Services, Inc., 91-ERA-24
(Sec'y Nov. 16, 1992), the respondent established legitimate,
nondiscriminatory reasons for the complainant's layoff, and the
complainant failed to show that these reasons were a pretext for
discrimination where
the nuclear power plant mandated layoffs by the
respondent, a contractor, because of a reduction in
force.
the complainant was one of many employees laid
off.
testimony indicated that the respondent was not
aware of the complainant's protected activity at the
layoff selections were made.
testimony indicated that the personnel involved in
selecting the complainant for layoff never mentioned
safety complaints or other problems with the
complainant, and the record showed that the complainant
had been given a "good" evaluation and was
eligible for rehire.
testimony indicated that the complainant's
difficulty in being rehired related to his status as a
traveler from a different union local.
XI.C.2.b. Simultaneous discharge of employee who did
not engage in protected activity
In Seraiva v. Bechtel Power Corp., 84-ERA-24 (ALJ
July 5, 1984), adopted (Sec'y Nov. 5, 1985), the fact that
another employee who did not engage in protected activity was
also discharged for being involved in the same violation as
Complainant indicated that stated reason for Complainant's
discharge was not pretext.
XI.C.2.b. Self-evident that excessive frivolity at
nuclear facility could create safety problems
The Secretary dismissed the complainant's argument that the
respondent's stated reason for terminating the complainant's
employment, past horseplay, was pretext, because there was no
testimony to support the ALJ's conclusion that the alleged joking
on the job could endanger the safety of fellow employees, on the
ground that "it should be evident that excessive frivolity
at a nuclear facility could very easily create safety
problems."
Young v. CBI Services, Inc., 88-ERA-8 (Sec'y Dec.
8, 1992), slip op. at 8.
XI.C.2.b. Past behavior and performance of complainant
In Kettl v. Gulf States Utilities Co., 92-ERA-16
(ALJ Dec. 30, 1992), the ALJ found that Respondent had a
reasonable independent basis for not recommending Complainant for
management training even if he had not engaged in protected
activity, namely, he was not recommended by the majority of his
supervisors due to an inability to get along with them.
Specifically, he had shown past poor judgment in stressful
situations, and had surreptitiously tape recorded a conversation
with a vice-president complaining about his mistreatment by
Respondent.
XI.C.2.b. Requiring Complainant to submit to
psychological testing
In Diaz-Robainas v. Florida Power & Light Co.,
92-ERA-10 (ALJ Oct. 29, 1993), the ALJ found that requiring a
employee to attend a psychological evaluation was a legitimate
management decision under the circumstances. Respondent had a
reasonable suspicion that Complainant's fitness for duty may have
been questionable because important aspects of his performance
were repeatedly below average and Complainant had discussed his
stress, fatigue and medical problems with numerous people. The
ALJ noted that NRC regulations require that senior engineers are
fit for duty, and that Respondent's fitness for duty policy
included psychological testing. The ALJ found that the person
who directed Complainant to submit to evaluation did not know
that Complainant had made internal complaints, and that
Complainant did not go to the NRC until after he was directed to
submit to evaluation.
XI.C.2.b. Work refusal
In Abu-Hjeli v. Potomac Electric Power Co., 89-WPC-
1 (Sec'y Sept. 24, 1993), Complainant was given a
"marginal" rating on his performance review by a new
supervisor (a much lower rating than that given by the
predecessor), largely because Complainant had refused to perform
a review on a study unless he could have access to the raw data.
The Secretary, in agreeing with the supervisor's assessment,
noted that as a subordinate, Complainant was not in a position to
dictate the conditions for his review of the study. Pensyl v.
Catalytic, Inc., 83-ERA-2 (Sec'y Jan. 13, 1984)
("Employees have no protection [under an analogous employee
protection provision] for refusing work simply because they
believe another method, technique, or procedure or equipment
would be better or more effective.") The supervisor had
given Complainant the option of qualifying his review with a
written statement about the conditions under which it was
performed.
XI.C.2.b. Pretext not established merely because
additional steps were taken in performance
evaluation
In considering whether Complainant established pretext for the
stated reason for a poor performance evaluation -- that
Complainant was not aggressively pursuing his new assignment --
the Secretary found that the fact that Complainant and his
supervisors submitted written rebuttal and surrebuttal regarding
the performance evaluation and held an "unusual"
conference, showed only that Complainant and his supervisors
disagreed and, quite typically, became combative over the
evaluation. Bassett v. Niagara Mohawk Power Corp.,
85-ERA-34 (Sec'y Sept. 28, 1993).
XI.C.2.b. No adverse action taken against another
employee who engaged in same protected activity
In Thompson v. Tennessee Valley Authority, 89-ERA-
14 (Sec'y July 19, 1993), Complainant established a prima facie
case, and Respondent articulated a legitimate, nondiscriminatory
reason for the adverse action. The Secretary stated that the
first determination after rebuttal in considering whether
Complainant met his burden of showing intention discrimination is
whether the evidence shows that discriminatory reasons more
likely motivated the adverse action rather than the reasons
proffered by Respondent.
Complainant failed to meet his burden because there was evidence
that another employee who engaged in the same protected activity
as Complainant had no adverse action taken against him.
XI.C.2.b. Reasonableness of discharge
Lockert v. United States Dept. of Labor, 867 F.2d
513 (9th Cir. 1989).
Lockert was a quality control inspector at the Diablo Nuclear
Power Plant in California who claimed he was terminated in
violation of the ERA for conducting protected activity such as
industry code research and safety/quality problem reporting.
Employer alleged that Lockert was terminated because he twice
left his assigned work area without permission in violation of
the rules for employees, on one occasion to do industry code
research. Lockert claimed that industry code research is
condoned on the job but now being used to discharge him. The
facts make clear that very few co-workers or supervisers worked
well with Lockert. Both the ALJ and the Secretary of Labor
concluded that Lockert's discharge was not in retaliation for his
safety related activities so the whistlebower protection did not
apply. They relied primarily on two witnesses (supervisors) who
were found to be credible, Lockert's admission to leaving work
without permission, and Lockert's failure to submit any evidence
establishing that he made unusually numerous or serious safety
complaints. The Court of Appeals affirmed, noting that it might
have ruled differently had the matter been before it de novo
instead of as a deferential review of the factual findings.
XI.C.2.b. Other employees not shown to have been granted leave
denied to Complainant
Where the Respondent denied the Complainant's request for leave
without pay to take a course not related to his job duties, the
reason for the denial -- not wishing to set a precedent -- was
not shown to be pretextual where the record was silent in regard
to whether other employees had been granted such leave and under
the terms of the personnel manual, employees are not entitled to
leave without pay as a matter of right. Furthermore, the
Complainant's discharge came only after he decided to stay away
from work to take the course, and persisted in refusing to return
to work despite warning that he would be deemed to have resigned.
Devine v. Buncombe County Dept. of Engineering
Services, 87-SWD-1 (ALJ June 19, 1987), aff'd
(Sec'y June 28, 1990).
XI.C.2.b. Recurring work deficiencies
When an employee has recurring work deficiencies, the employer
legitimately may respond with low performance ratings, suspension
and discharge. Jain v. Sacramento Municipal Utility
District, 89-ERA-39 (Sec'y Nov. 21, 1991) (recurring
deficiencies in performance justified adverse performance
appraisal); Sellers v. Tennessee Valley Authority, 90-ERA-
14 (Sec'y Apr. 18, 1991) (inability or lack of desire to perform
work in a timely manner justified adverse performance rating and
discharge), aff'd mem., No. 91-7474 (11th Cir. Apr. 30,
1992).
Crosby v. Hughes Aircraft Co., 85-TSC-2 (Sec'y Aug.
1, 1993).
XI.C.2.b. Previous discharge of different employee for same
violation
The testimony of another district manager that he had previously
discharged an employee for failure to complete the same forms the
Complainant failed to complete, under similar circumstances, was
found to be credible evidence in regard to the issue of pretext
in Monteer v. Casey's General Stores, Inc., 88-SWD-1
(Sec'y Feb. 27, 1991).
XI.C.2.b. Protected activity does not immunize
insubordinate employee
Even when an employee has engaged in protected activities,
employers legitimately may discharge for insubordinate behavior,
work refusal, and disruption. See, e.g., Dunham v. Brock,
794 F.2d 1037, 1041 (5th Cir. 1986); Hale v. Baldwin
Associates, 85-ERA-37 (Sec'y Sept. 29, 1989),
adopting, (ALJ Oct. 20, 1986) (no statutory violation
where employee discharged for not accepting assignments and for
disrupting the work place); Couty v. Arkansas Power &
Light Co., 87-ERA-10 (Sec'y Feb. 13, 1992). Abu-Hjeli
v. Potomac Electric Power Co., 89-WPC-1 (Sec'y Sept. 24,
1993) (record established incidents of shouting at the workplace
and insubordination; during and after meeting with new Vice
President, Complainant's behavior was erratic).
XI.C.2.b. Employer's belief, not fairness of
discharge, is what is relevant
In Seraiva v. Bechtel Power Corp., 84-ERA-24 (ALJ
July 5, 1984), adopted (Sec'y Nov. 5, 1985), Complainant
was discharged for failing to verify that safety tags had been
put where they should have been. The ALJ found that
Complainant's supervisors believed that it was Complainant's
responsibility to verify the placement the tags, and although
Complainant disputed whether it was really his responsibility to
make that verification, the ALJ found that it did not matter
whether the discharge was warranted under the circumstances but
only whether the discharge was in retaliation for protected
activity. The ALJ quoted Turner v. Texas Instruments, 555
F.2d 1251, 1257 (5th Cir. 1977): "Title VII and section
1981 [Equal Rights Under the Law, including freedom from employer
retaliation] do not protect against unfair business decisions --
only against decisions motivated by unlawful animus."
XI.C.2.b. Pretext not established
In Dysert v. Westinghouse Electric Corp., 86-ERA-39
(Sec'y Oct. 30, 1991), the Respondent's stated reason for
discharging the Complainant was that he assaulted a co-worker,
and the Complainant contended that the stated reason was pretext,
inter alia, based on the lack of a fair hearing. The
Complainant's burden was to show, not a lack of due process which
is not applicable to a private employer's decision making, but
that the procedures were so inherently unfair that discrimination
can be inferred from it. Morgan v. Massachusetts General
Hospital, 712 F. Supp. 242, 253 (D. Mass. 1989) (termination
decision reviewed by several people with no knowledge of
plaintiff's situation, but without a "full and fair
hearing", does not justify inference of discrimination),
aff'd in part, vacated in part, on other grounds, 901 F.2d
186 (1st Cir. 1990). In Dysert, the Respondent's
investigation depended on the credibility of the Complainant and
the other employees interviewed. The Respondent's decision to
believe the other employees and not the Complainant did not imply
discrimination.
XI.C.2.b. Fact that Respondent assigned quality
control work to Complainant made unconvincing
Complainant's contention of retaliation
Where the record indicated that Respondent appeared to value
Complainant's statistical analysis of reports used to obtain
licenses and permits under the FWPCA (it continued to assign him
to statistical reviews despite his severe criticism of an earlier
report and changed its statistical analysis in response to
Complainant's suggestions), Complainant's contention that
Respondent retaliated against him because of his criticisms of
its environmental studies was unconvincing. Abu-Hjeli v.
Potomac Electric Power Co., 89-WPC-1 (Sec'y Sept. 24,
1993).
XI.C.2.b. Pretext not established
In Chavez v. Ebasco Services, Inc., 91-ERA-24
(Sec'y Nov. 16, 1992), the respondent established legitimate,
nondiscriminatory reasons for the complainant's layoff, and the
complainant failed to show that these reasons were a pretext for
discrimination where
the nuclear power plant mandated layoffs by the
respondent, a contractor, because of a reduction in
force.
the complainant was one of many employees laid
off.
testimony indicated that the respondent was not
aware of the complainant's protected activity at the
layoff selections were made.
testimony indicated that the personnel involved in
selecting the complainant for layoff never mentioned
safety complaints or other problems with the
complainant, and the record showed that the complainant
had been given a "good" evaluation and was
eligible for rehire.
testimony indicated that the complainant's
difficulty in being rehired related to his status as a
traveler from a different union local.
XI.C.2.b. Pretext not established
In Atchison v. Tompkins-Beckwith, Inc., 82-ERA-12
(Sec'y Jan. 28, 1988), Respondent learned at the same time that
Complainant was testifying before the NRC and that he had been
fired rather than laid off from his prior position as he had told
the recruiter. It was after receiving information that the
reason for the firing was failure to carry out assigned functions
and receiving confirmation of this fact from Complainant that
Complainant was fired by Respondent.
The Secretary assumed arguendo that a prima facie case had been
established, and analyzed the case under the pretext approach.
Based on extensive evidence that Complainant was hired as part of
a reinspection program in which the need for qualified and
trustworthy inspector was paramount, the Secretary concluded that
the reasons stated for firing Complainant were not pretextual.
The Secretary's discussion of the evidence is lengthy. The
following paraphrases that discussion:
Complainant's untrustworthiness was amply documented in
that it was widely reported in the media that he had lied on
his resume when seeking employment with his prior employer,
and in that he had lied about being fired when interviewed
for the position with Respondent.
Less than three weeks before Complainant was fired, four
inspectors had been fired for making sloppy inspections.
Although Respondent did not permit Complainant to try to
explain his firing while did allow a explanation by another
employee, this was because upon contacting the former
employer it refused to talk about Complainant but stated
that the other employee was fired for a personality
conflict. Considering Complainant's reasons would have
required an evaluation of a "case" then being
litigated in another forum. [Editor's note: Complainant
had brought a thick folder of papers to the interview about
the firing, and the supervisor refused to let him
"present his case"]
Although Complainant was made to fill out an employment
application after returning from the NRC testimony,
Complainant's theory that this was done in the hope that he
would give Respondent some reason for terminating him was
pure speculation.
The Secretary credited the testimony of Complainant's
immediate supervisor that he did not know the reason for
Complainant's request for leave until afterwards (to testify
before the NRC), so that his statement that he should not go
to supervisors because it was for personal reasons was
credited rather than Complainant's theory that it was
because of the NRC testimony.
The Secretary found Complainant not to be a credible
witness based on the credibility findings of an ALJ in a
hearing concerning Complainant's discharge from his former
employer (the ALJ who conducted the hearing in the present
case died prior to decision, so the Secretary was making
independent credibility determinations), and because
Complainant failed to tell the truth at his employment
interview, and other indicia of lack of truthfulness.
Although Complainant's discharge was overseen by high
level company supervisors after consulting with counsel, the
fact that Respondent was acting with excess caution because
of its awareness of section 5851(a) of the ERA did not show
pretext.
The Secretary concluded that "it is neither the function of
the ALJ, nor mine to determine which misrepresentations made to
an employer are material or represent egregious conduct.
Whistleblower protection provisions are not intended to deprive
employers from using their best business judgment as to whom they
will employ or retain in employment, so long as that judgment is
untainted by unlawful motive. See Dunham v. Brock, 794
F.2d 1037, 1040-1041 (5th Cir. 1986)."
[Editor's note 1: The Fifth Circuit issued a slip opinion in
this matter, but I do not have a copy of it. Atchison v.
McLaughlin, No. 88-4150 (5th Cir. Nov. 7, 1988).]
[Editor's note 2: Complainant's complaint against his former
employer was litigated in case no. 82-ERA-9. The Secretary found
Atchinson to have been discriminated against in that case, but
the Fifth Circuit in Brown & Root v. Donovan, 747 F.2d
1029 (5th Cir. 1984), found that Atchinson's internal complaints
were not protected under the ERA.]
XI.C.2.b. Pretext not established
Where the uncontradicted testimony adduced at hearing indicated
that the complainant failed to follow instructions, was
inflexible, and lacked diplomacy in interacting with the staff,
and where the complainant was one of twelve employees hired to
report safety concerns and none of the others were discharged,
the complainant failed to prove that the articulated reason for
his discharge was pretextual. St. Laurent v. Britz,
Inc., 89-ERA-15 (Sec'y Oct. 26, 1992), slip op. at 3-
5.
XI.C.2.b. Documentation of reason for discharge not required
where such documentation not shown to be normal
business practice
In Thompson v. Tennessee Valley Authority, 89-ERA-
14 (Sec'y July 19, 1993), the ALJ accepted as worthy of credence
Respondent's proffered explanation for Complainant's discharge --
ineffective leadership -- even though there was no documentation
to back up the testimony to this effect. The Secretary found
that there was no requirement of such documentation where
Respondent presented testimony that its practice was not to
document for senior managers such as Complainant because they
served at the pleasure of the Board, and Complainant did not
present any evidence that documentation was required.
XI.C.2.b. Pretext not established
Where the Respondent's articulated reason for discharging the
Complainant was that he assaulted a co-worker, the Complainant
failed to establish pretext based on disparate treatment between
him and another worker who had an argument with the same co-
worker assaulted by the Complainant and had at one point grabbed
the co-worker's arm and moved him toward a wall. The Respondent
had concluded that this incident was not comparable to the
Complainant's attack, and there was nothing in the record to
prove that the Respondent's conclusion was pretext. See
McDonald v. Santa Fe Trail Transportation Co., 427 U.S. 273,
283 n.11 (1976) (plaintiff must show that offenses "of
comparable seriousness" were committed by other employees
who were not fired); Moore v. Charlotte, 754 F.2d 1100,
1107 (4th Cir. 1985) (court must assess "the gravity of the
offenses on a relative scale . . . 'in light of the harm caused
or threatened to the victim or society and the culpability of the
offender.'") Dysert v. Westinghouse Electric
Corp., 86-ERA-39 (Sec'y Oct. 30, 1991).
XI.C.2.b. Inappropriate behavior
Where the evidence of record overwhelmingly supported the reason
the Respondent gave for discharging the Complainant, his
inappropriate behavior and language toward co-workers, which
culminated in the shouting and poking incident with his team
leader, the Secretary adopted the ALJ's discussion of the
voluminous evidence indicating that the Respondent constructively
discharged Kahn because of his behavior and not for reasons
proscribed by the ERA. Kahn v. Commonwealth Edison
Co., 92-ERA-58 (Sec'y Oct. 3, 1994).
XI.C.2.b. Complainant retained longer than he would have been
because he engaged in protected activity
InScott v. Alyeska Pipeline Service Co., 92-TSC-2
(ALJ Jan. 29, 1993), Complainant obtained confidential, non-
discoverable documents prepared by attorneys for Respondent to
assess the ramifications of an investigation of Complainant. The
investigation began when a television documentary aired --
"The Scottish Eye" -- about the Exxon Valdez oil spill
(Complainant's last name is Scott). That program included
confidential company documents, and Respondent decided to launch
an undercover-type investigation.
The documents showed that at the end of an owner's meeting, it
was determined that Complainant should be terminated, but not for
having caused the leaks because it was clear that the owners were
concerned was improper and may have been illegal. The record
established that Complainant had been recommended for termination
of employment by other Officers who had no knowledge of the
investigation and whose recommendations were based solely on job-
related factors.
The ALJ was clear in his conclusion that Complainant's work
history "was such that it is remarkable he still was
employed at the time the Wackenhut investigation began."
The ALJ was also clear that he found Complainant to be totally
lacking in credibility.
[Editor's note: This is a very brief summary of a long and
detailed opinion, but in essence, Complainant's protected
activity actually delayed his firing rather than caused it.
Complainant obtained the attorney's notes after they were leaked
by a Congressional committee]
XI.C.2.b. Pretext not established: management
decision on who to promote; that Complainant
may have lacked recent supervisory experience
was not an impermissible consideration even
though it was possibly due to prior
discrimination where there was not a timely
complaint about the prior
discrimination; reasonable time limits
may be placed on quality control work
In Bassett v. Niagara Mohawk Power Co., 86-ERA-2
(Sec'y Sept. 28, 1993), Complainant alleged that he was denied a
promotion during a company reorganization because of past
protected activity. The Secretary found that Complainant's
protected activity played no part in his failure to receive a
promotion:
The ALJ found the supervisor who made the decision not
to promote Complainant to be a credible witness and
accepted his explanation of the motivation -- the
Secretary found this conclusion to be supported by the
evidence and the law
The supervisor testified that Complainant was
technically competent and assigned him a "key
assignment" [which the Secretary noted was not a
less desirable job -- it was just not a management
position], but did not place him in a management
position because he had "shortcomings" when
compared to other candidates. Specifically, others had
more cumulative or recent managerial experience and
better relative performance records. In addition, the
supervisor testified that Complainant had not
demonstrated to him the necessary administrative and
leadership abilities, and gave specific examples.
These reasons are legitimate and nondiscriminatory.
The supervisor was permitted to take into consideration
the lack of recent supervisory experience, even though
it may have occurred as a natural consequence of an
earlier demotion that Complainant had contended was
discriminatory. Since Complainant did not timely
challenge the demotion, Respondent was entitled to
treat the demotion as lawful. United Air Lines,
Inc. v. Evans, 431 U.S. 553, 557 (1977).
Although the supervisor relied in part on perceptions
of Complainant's failed performance on a project to
coordinate comments on revisions to internal quality
assurance procedures, and certain aspects of such work
may have been protected activity, the aspect of the
work that led to the supervisor's disapproval of
Complainant's performance was not protected -- failure
to complete the assignment within the time allotted.
The time limits had not been shown to be unreasonable
or unnecessary. See Lockert v. United States Dept.
of Labor, 867 F.2d 513, 518 (9th Cir. 1989)
(employer has the right to place certain reasonable
restrictions on employee's performance of protected
activity, and employee's failure to comply is not
protected); see also Jefferies v. Harris County
Community Action Assoc., 615 F.2d 1025, 1036 (5th
Cir. 1980) (not all "opposition" activity is
protected under Title VII; employee's conduct must be
reasonable in light of the circumstances). The record
showed that the supervisor sincerely believed that
Complainant failed to follow supervisory instructions,
and the supervisor did not discriminate in acting on
that belief. See Jefferies, 615 F.2d at 1036;
Dister v. Continental Group, Inc., 859 F.2d
1108, 1116 (2d Cir. 1988) (reasons tendered need only
be nondiscriminatory).
The supervisor had announced, on assuming his job, that
there would be a reorganization and started recruiting.
This was before the most recent of Complainant's
protected activity. The new managers placed above
Complainant were hired from the outside, at levels well
above Complainant at the time they were hired. The
supervisor was aware of Complainant's participation in
certain claims of unfair treatment and the Secretary
concluded that it would have been unlikely that the
supervisor would have retaliated at that point. (the
supervisor had come on board after an earlier group of
incidents involving Complainant and protected activity;
many prior managers left and the new supervisor had
demonstrated a commitment to change and improvement;
the new supervisor had prior opportunity to retaliate
against Complainant and had not done so).
XI.C.2.b. Pretext not established; all employees fired;
lack of knowledge
Where eight technicians had been engaged in the preparation of a
grievance petition while waiting for work authorization in their
assigned area, and had been out of contact with superiors during
that time, and were fired immediately upon presentation of the
petition, the respondent's stated reasons for the mass firing
were completely credible: the company for which the respondent
was performing under contract was extremely sensitive about the
amount of work contracting employees did and about their being in
unauthorized areas.
Pretext was not shown. All eight technicians were fired, many of
whom apparently had not expressed concerns about safety matters.
The supervisor who actually fired the complainant did not know
that the grievance petition contained a safety related complaint.
Morris v. The American Inspection Co., 92-ERA-5
(Sec'y Dec. 15, 1992), slip op. at 9-10.
XI.C.2.b. "Provoked" protected employee is
not automatically absolved from overstepping
defensible bounds of conduct
In Dunham v. Brock, 794 F.2d 1037 (5th
Cir. 1986), the ALJ found that although Complainant was brought
into a counseling session for the impermissible motive of trying
to modify his attitude and behavior in regard to protected
activity, Complainant's behavior during the counselling session
provided a genuine overriding impetus for termination of his
employment. The ALJ found that the counselling session was not a
set-up to provoke Complainant, and that Complainant's foul
language and disdainful conduct, essentially telling his
supervisor to "take his job and shove it," was the
reason for the discharge, not retaliation for protected activity.
The Fifth Circuit, applying a substantial evidence review
standard, found that substantial evidence supported the ALJ's
factual findings. The court stated that abusive or profane
language coupled with defiant conduct or demeanor justify an
employee's discharge on the ground of insubordination. The court
stated that the foul language and mere resistance to change,
without more, may have led to a different conclusion, but that
when taken together with Complainant's cavalier attitude and his
repeated encouragement that Complainant show him to the door, the
facts supported a reasonable inference of insubordination
sufficient to justify a discharge. Section 210 does not sanction
this type of abuse, and an employer need not tolerate it.
Complainant contended that his discharge was automatically
invalid because it was provoked by and inextricable from the
improperly motivated counseling session during which it
transpired. The court stated that a fact-finder is to weigh the
evidence and determine whether a particular employee response to
improper employer provocation is justified. An otherwise
protected "provoked employee" is not automatically
absolved from abusing his status and overstepping the defensible
bounds of conduct.
XI.C.2.b. Threatening behavior
A company may discipline a worker who makes threats against other
employees.
See, e.g., Homen v. Nationwide Trucking, Inc.,
Case No. 93-STA-45, Sec. Dec. and Ord., Feb. 10, 1994, slip
op. at 6-7 (discharge for insubordination legitimate where
complainant told fellow employee he was "messing with
the wrong guy");
Couty v. Arkansas Power & Light Co., Case No.
87-ERA-10, Fin. Dec. and Ord. on Remand, Feb. 13, 1992, slip
op. at 2 (discharge did not violate ERA where complainant
engaged in abusive and threatening behavior towards
supervisors).
In Floyd v. Arizona Public Service Co., 90-ERA-39
(Sec'y Sept. 23, 1994), the Secretary agreed with the ALJ that
revealing a pact to kill executives if any harm came to the
Complainant or another whistleblower provided ample reason for
ordering the Complainant to submit to a drug and alcohol screen
and a psychological evaluation and suspending him with pay
pending the results of the evaluations, and for issuing a written
reprimand and ordering a one day suspension of the Complainant's
pay.
XI.C.2.b. Pretext not established
Where Respondent established that it was involved in a
program to standardize and upgrade its quality assurance program
in all plants, and in accordance with that program made it
mandatory that an applicant for an engineering position have an
engineering degree or its equivalent, and where Complainant did
not have such a degree or its equivalent, and there was no
support for Complainant's allegation that others who did not have
engineering degrees were promoted, Complainant failed to
establish that the denial of a promotion to an engineering
position was based on his performance of quality assurance
function duties. Similarly, his removal from a procurement
position was not shown to be discriminatory where that position,
even prior to reorganization, was an engineering function, and
where his status and job description had not qualified him for
the procurement position. The removal merely put him back to the
functions of his job description. Batts v. Tennessee
Valley Authority, 82-ERA-5 (Sec'y Mar. 6, 1985).
XI.C.2.b. Weapons brought into previous employer's
facility
A legitimate reason for the denial of site access to a nuclear
facility is discovery that the Complainant had admitted having
taken a pistol into and out of the secured area at another
facility. Crosier v. Westinghouse Hanford Co., 92-
CAA-3 (Sec'y Jan. 12, 1994).