Date: June 27, 1994
Case No. 93-ERA-00049
OWCP No. 93-107-0862
CARMELA V. MARIEN,
Complainant,
v.
NORTHEAST NUCLEAR ENERGY CO.,
Respondent.
and
Case No. 93-ERA-00050
OWCP No. 93-107-08627
MARIANNE W. NERRICCIO,
Complainant,
v.
CONNECTICUT YANKEEATOMIC POWER CO.,
Respondent.
Appearances:
Norman A. Pattis, Esq.,
For the Complainants
Edward M. Richters, Esq. (at the hearing), Charles C.
Thebaud, Jr., Esq. and John E. Matthews, Esq. (on brief),
For the Respondents
Before: Ainsworth H. Brown
Administrative Law Judge
[PAGE 2]
RECOMMENDED DECISION AND ORDER
These consolidated cases arise under Section 210 of the
Energy Reorganization Act of 1974, as amended, 42 U.S.C. §
5851 ("the Act"). The Act protects employees who
assist or participate in actions to carry out the purposes of the
federal statues regulating the nuclear energy industry. Section
210 provides, interalia, that "no employer may
discharge any employee or otherwise discriminate against any
employee with respect to compensation, terms, conditions, or
privileges of employment because the employee . . . notified his
employer of an alleged violation of this chapter or the Atomic
Energy Act of 1954 (42 U.S.C. 2011 etseq.)." 42
U.S.C. § 5851(a)(1)(A).
Respondents are two subsidiaries of Northeast Utilities
Company engaged in the generation of nuclear power. Complainant,
Carmela V. Marien, is a Occupational Health Administrator at
Respondents' Millstone Nuclear Power Station located in Brief,
Connecticut. Complainant, Marianne Nerriccio, is an Occupational
Health Administrator at Respondents' Connecticut Yankee Haddam
Neck Plant located in Haddam, Connecticut. Complainants are
responsible, in part, for administrating the federally mandated
fitness for duty program which screens employees of nuclear
facilities for drug and alcohol use. See 10 C.F.R. §
26. The program is designed to promote the "goal of achieving a
drug free work place and a work place free of the effects of such
substances." 10 C.F.R. § 26.10(c).
In their Complaints filed on June 28, 1993, with the
Secretary through the Wage and Hour Division of the Employment
Standards Administration, Complainants allege that they have been
subjected to retaliatory harassment since they jointly raised
concerns regarding the computer software designed by Respondents
to implement the fitness for duty program. According to
Complainants, the software was defective in two ways. First,
inadequate measures existed to ensure that information generated
by or contained in the computer remained confidential. Second,
they noticed that certain individuals appeared to be selected for
random testing more often than others.
By letters dated July 29, 1993, the Wage and Hour Division
informed Complainants that it concluded that no violation of
Section 210 had occurred. By telegrams received on August 3,
1993, Complainants requested a formal hearing before the Office
of Administrative Law Judges. 29 C.F.R. § 24.4(d)(2)(i).
[PAGE 3]
A formal hearing was held on October 12 and 13, 1993 in New
London, Connecticut. Because the parties were unable to present
all of their testimony and documentary evidence in those two
days, the hearing was continued and ultimately concluded on
December 13 and 14, 1993 in Hartford, Connecticut. At the
commencement of the hearing, it was determined that since the
same or substantially similar evidence is relevant and material
to the matters at issue in both of these cases, they would
proceed in a consolidated fashion. (TR 5)[1] ; see also,
29 C.F.R. § 24.5(b). After the close of the hearing the
parties were given the opportunity to submit written briefs.
Since attorney Richters has been reassigned to a position outside
of Respondents' legal department, Charles C. Thebaud, Jr., Esq.
and John E. Matthews, Esq. entered their appearance and filed a
brief on behalf of Respondents. Complainants have filed their
brief.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
The findings of fact and conclusions of law which follow are
based upon my observation of the appearance and demeanor of the
witness who testified at the hearing and upon my analysis of the
entire record, arguments of the parties, and applicable
regulations, statutes, and case law.
I. Factual Background
In early January 1993, Respondents introduced a "new"
computer program designed to administer the federally mandated
fitness for duty program at the Millstone and Connecticut Yankee
facilities. Gerald Tavares, who is a supervisor in Respondents'
information resources applications development group, testified
that his group was responsible for developing this new system.
(TR 681) He stated that this system was designed in response to
problems encountered with the older system that had been in use
for several years. (TR 681). Mr. Tavares explained that rather
than develop this new program from scratch, it was developed on
one of the main computer systems already in use at Respondents'
facilities. (TR 684). Mr. Tavares also explained that Bryan
Cook, who is employed as an occupational safety and health
administrator by Respondents, was his point of contract between
the information resources group and the fitness for duty program.
(TR 687).
Complainant, Marianne Nerriccio, testified that when the new
program was installed she was told by Bryan Cook that it was "In
a test mode. Play with it." (TR 27). Following his
[PAGE 4]
instructions, Ms. Nerriccio testified that "there were problems
with . . . implementation from day one." (TR 27). For example,
she learned that Carmela Marien was able to add and delete names
from the random list of employees to be tested on any given day.
(TR 27). She also stated that she learned that she could
inadvertently send the random list to the wrong printer which
might allow an individual to know that they were going to be
tested in advance. (TR 30).
Ms. Nerriccio testified that she began to call these
problems to the attention of her superiors. (TR 34). However,
"it got to the point where I felt like every time I called, I
would hear defense on the other side. Like, in other words,
'It's you again, now what's the problem?' So, I finally got to
the point where I just kept a list of my problems, and stopped
calling." (TR 34).
Sometime in the middle of May 1993, the Nuclear Regulatory
Commission (NRC) was conducting a routine security audit of the
Connecticut Yankee facility. At the time, Nerriccio was
approached by a NRC inspector, Edward B. King. Ms. Nerriccio
testified that in response to King's questions, she related some
of her concerns regarding the computer system. (TR 36). As a
result of this conversation, Mr. King contacted Carmela Marien at
the Millstone facility and a meeting was held involving
Complainants, the NRC, and other supervisory employees of
Respondents. (TR 36). The minutes of this meeting were
introduced as RX 1.
The minutes of the May 12, 1993 meeting show that the
purpose of the meeting was to discuss concerns related to the
computer system. Complainants have not challenged the accuracy
of these minutes. The minutes indicate that many issues were
discussed and solutions identified. It is apparent from these
minutes that while some issues were resolved, it was anticipated
that several of the problems were going to take some time to
remedy. Finally the minutes indicate that "Mr. King concluded
the meeting by stating that the NRC is satisfied with
[Respondents'] FFD Program, and that he considered his role to be
one of facilitating improvements to the program." (RX 1).
Then on June 8, 1993 a regular monthly staff meeting was
held. All of Respondents' key personnel responsible for the
fitness for duty program were present at this meeting. It is
uncontested that the first item of the agenda was the computer
system. Ms. Nerriccio testified that one item of concern to her
was that it appeared that some names were being selected for
[PAGE 5]
random testing more often than others. (TR 39). Ms. Nerriccio
then stated that Bryan Cook assured her and Ms. Marien that the
system had been checked. Ms. Nerriccio testified that in
response, Ms. Marien "spoke up" but then "Bryan [Cook] said that
if she didn't go to all the outside agencies . . . that we
wouldn't have these problems. I mean, he really just got up off
his chair, red faced, and yelled at her." Ms. Nerriccio further
testified that "I was accused at that meeting twice by David
Heritage of calling the NRC." (TR 42). Complainants allege that
it is the events of this meeting that constitute a violation of
Section 210.
When detailing her damages as a result of her whistle-
blowing activity, Ms. Nerriccio testified that: "I come to work
everyday and I do my job to the best of my ability, and I will
continue to do that. But as far as my personal life, it's
destroyed." (TR 48). However she also stated that she suffered
no loss of privileges of employment, no demotion, no loss of pay
raise, no transfer and no denial of vacation time. (TR 119). In
fact, she was given additional paid leave with no reduction in
sick, vacation, or personal days. (TR 158-159). Apparently Ms.
Nerriccio said it best when she stated "Let me tell you one
thing. As far as doing my daily job, nothing from the May or
June meeting has interfered with my daily job." (TR 105).
Carmela Marien offered a similar history of the events
leading up to the June 8, 1993 meeting. She stated that she also
received a copy of the new computer program with instructions
from one of her supervisors, David Heritage, who is manager of
occupational safety and health for Respondents. Ms. Marien
testified that she was told to "see if you could break this one."
(TR 190). She too noticed problems with the program and sought
assistance. However, "every time we would call with something
different it was very apparent that tensions were starting to
build." (TR 191). As an example of problems she found with the
system, the Complainant related two occasions where she was able
to alter someone else's log-on ID which might have a negative
impact on the system's security. (TR 194-195). Like Ms.
Nerriccio, Ms. Marien kept a list of problems with the system.
This list was introduced as RX 7 and contains many of the same
concerns that Complainants testified to. Ms. Marien also
confirmed that she was called by Mr. King of the NRC and spoke to
him. (TR 206). She explained that "One doesn't refuse to talk
to the NRC if they want to talk to you." (TR 206).
Ms. Marien also remembers the staff meeting of June 8. She
stated that she was discussing the computer system and "I started
to say something else and I remember him [Bryan Cook] leaning
[PAGE 6]
over the table red faced and shaking and screaming at me, 'you
deserve everything you get for going to all those places and all
those outside agencies.'" (TR 219). Ms. Marien also testified
that the stress of these events was too much for her asthmatic
condition so she had to leave the room. (TR 220). She also
recalled David Heritage saying to Marianne Nerriccio "well, you
called the NRC." (TR 220).
Ms. Marien was also questioned regarding her current work
environment:
Q. Do you feel comfortable raising concerns about the
integrity of the fitness for duty program?
A. No, sir, I do not.
(TR 240). Ms. Marien stated that she had heard some unidentified
individual insinuate that her position might be in jeopardy. (TR
257). However she admitted that no one had given her a direct
reason to fear for her employment. (TR 254).[2]
Complainants also offered the testimony of Katherine L.
Duncan a registered nurse who is a contract employee for
Respondents. She testified that she works regularly at the
Millstone facility approximately four days a week. (TR 383).
She testified that she also has experienced problems with the
security of the random list and speculated that unauthorized
access was possible. (TR 388). Ms. Duncan also independently
confirmed many of the problems identified by Complainants. (TR
389-395). Ms. Duncan testified that she had the opportunity to
observe Carmela Marien's demeanor the day after the June 8
meeting and surmised that Ms. Marien appeared to be upset. (TR
406).
Complainants' final witness was Angelica Anderson. Like
Complainants, she is an occupational health administrator for
Respondents. (TR 425). She is based in the Berlin, Connecticut
corporate headquarters. (TR 424). She recalls being present at
the June 8, 1993 meeting. (TR 428). She said that the meeting
initially was "joking" in tone but rapidly turned "professional."
(TR 429). Later the tone changed again. Ms. Anderson stated,
"I'm not going to use the word if it was not professional, but
there seemed to be -- people were just rasing their voice." (TR
432).
Jeanne Johnson, a fitness for duty administrator for
Respondents is employed at the Berlin, Connecticut headquarters.
[PAGE 7]
(TR 812). She testified that she was present at the June 8, 1993
meeting and did not hear the remark allegedly made by Bryan Cook.
(TR 820).
Sheila Oates, who is also a fitness for duty administrator
for Respondents at the Berlin, Connecticut headquarters,
testified that she was present at the June 8, 1993 meeting and
that Bryan Cook did not get out of his chair or make any
allegations regarding the NRC. (TR 837).
On direct examination Bryan Cook recalled being at the
meeting but stated that he did not yell or turn red faced. (TR
852). However, on cross-examination, he conceded that "If I
raised my voice it was only because she [Marien] was on the other
complete end of the table." (TR 860). He also conceded that "I
may have" gotten red faced. (TR 860).
David Heritage testified that he is manager of occupation
safety and health for Respondents. (TR 455). Mr. Heritage
testified that the fitness for duty program is part of his
overall responsibilities. (TR 456). He stated that he did not
consider the new computer program to be in its final version when
it was placed on the computers in early 1993. (TR 458). He
testified that he was aware that Ms. Marien had been able to
change log-on ID's. (TR 460). Mr. Heritage testified that as a
result of the growing complaints related to the computer system,
he ordered Bryan Cook to develop a master "punch list" of
problems to be resolved. (TR 462). This list was developed in
early May 1993 and was introduced as RX 2.
The master punch list identifies several problems that the
Millstone and Connecticut Yankee facilities were encountering
with the new software. These problems largely relate to ease of
use, security, and the apparent lack of randomness in the
individuals selected for testing. (RX 2).
Mr. Heritage testified that he was the chairman of the June
8, 1993 meeting. (TR 468). He stated that at that time he
considered the Complainants' security and confidentiality
concerns to be valid. (TR 469). He recalled Ms. Marien leaving
the room at one point and that while she was gone Ms. Nerriccio
stated that Ms. Marien feared for her job. (TR 471). Mr.
Heritage testified that he told Ms. Nerriccio that Ms. Marien was
mistaken. Heritage denied that Bryan Cook because upset or that
anyone made any reference to the NRC.
David Heritage's testimony on this point is not entirely
[PAGE 8]
credible because he testified that after this meeting he informed
his superiors of the strained relationships between those
involved in administering the fitness for duty program. He
stated that he was instructed not to speak to anyone for few days
so that everyone would have a chance to calm down. Eventually a
"team-builder," Robert DeLisa, was employed to help restore a
positive working environment between the parties involved. I am
unpersuaded that Respondents would gone to these great lengths
had the meeting been as sedate as described by Heritage and Cook.
The first "team-builder" to be retained, Robert DeLisa,
testified that he is the owner of the DeLisa Consulting Group, a
company that helps organizations with promoting "team
development, organizational development, [and] conflict
mediation." (TR 515). He stated that the was contacted by
Virginal Fleming who is a personnel manager for Respondents. (TR
517). DeLisa stated that Fleming gave the impression that this
was an urgent matter. DeLisa stated that when he was retained he
"was not there to make a right or wrong call, who did good things
or who did bad things. I was to mediate." (TR 519). DeLisa
testified that he was given the names all the persons involved in
the June 8, 1993 meeting. (TR 520-521). He stated that, with
the promise of anonymity, he spoke to each of the individuals
involved. He recalled, "In my opinion, I would say that
everybody I spoke to, without exception, was cooperative and open
in their responses and honest." (TR 527).
Mr. DeLisa stated that one of the Complainants told him that
she heard Bryan Cook say to Carmela Marien "If you hadn't gone to
all those outside agencies you wouldn't feel this way." (TR
529). DeLisa stated that he thought that this was significant
enough of a statement that he "checked it" through the other
interviews and no one else had heard it. (TR 529). His
findings on this point are in direct conflict with Complainants'
hearing testimony where they both testified that they heard this
remark. After this first round of interviews, DeLisa concluded
that "it appeared to me that the core conflict was among three
key people." (TR 535). They were Ms. Marien, Ms. Nerriccio, and
Mr. Heritage. DeLisa testified that after identifying the
conflict among these individuals, he contacted Virginia Fleming
to report his results. (TR 536). DeLisa testified that the was
then instructed to speak to David Heritage to formulate a course
of action.
Mr. DeLisa recalled his meeting with Heritage: "His general
reaction was he wanted to get it resolved, and whatever it took
he would be willing to do so, as long as there was a sense of
[PAGE 9]
fairness and balance." (TR 537). DeLisa testified that he then
called each of the Complainants at home to discuss his findings
and recommendations. He described Ms. Nerriccio as uncooperative
and as a result he felt "completely stymied." (TR 545). DeLisa
described his conversation with Ms. Marien as a more "give and
take conversation." (TR 546). At this point, DeLisa stated that
he "felt awful" that he was unable to bring the parties together
but observed that "you can't force it. It's like forcing two
kids in a playground to shake hands. It doesn't work." (TR
549). Mr. DeLisa stated that he then reported his findings to
Virginia Fleming.
Virginia Fleming testified that after DeLisa had abandoned
his efforts, she contacted a second "team-builder", Barry C.
Jentz, to help facilitate an end to the dispute. However, it is
unclear how far Jentz progressed considering Complainants deny
receiving Jentz's c.v. and other materials that were apparently
sent in a letter dated September 7, 1993. (RX 6 & RX 7).
With respect to the technical problems with the software,
Mr. Tavares testified that the information resources group was
aware in the breach involving the changed log-on ID. (TR 690).
He explained that this breach "was taken very seriously" and that
"within approximately eight hours" corrections were made to
prevent a similar occurrence. (TR 690). However, he also stated
that a log-on ID is similar to a street address while a password
is the actual key to someone's house. Therefore, he felt that
knowledge of someone's log-on ID was not a problem to the degree
Complainants thought it to be. He also explained how the other
problems were corrected. Mr. Tavares testified that he was
unaware of any other unresolved problems with respect to the
computer program. (TR 695).[3] He concluded, "I am months
behind on projects because of the diversion of resources that
check, double check and triple check, and go back and investigate
every allegation that's ever been raised against a particular
system . . . I mean we are bending over backwards to try to do
this, and do this right. Any concern is investigated." (TR
738).
II. Complainants' Prayer for Relief
At the opening of the formal hearing in this matter,
Claimants' counsel requested the following relief:
1. A written and verbal apology from David Heritage and
Bryan Cook for their treatment of Claimants during the
June 8, 1993 meeting;
[PAGE 10]
2. A written acknowledgement from senior management of
Respondents stating that intimidation and harassment
was practiced against Claimants;
3. A written promise that this sort of intimidation and
harassment will never happen again for any reason, not
just for rasing concerns that are warranted by law;
4. A written statement and reiteration to all company
employees, including senior management, that the
practice of intimidation and harassment is not
acceptable, and will not be tolerated; and
5. The sum of $50,000 for each Claimant to compensate for
the stress and emotion turmoil they and their families
had undergone as a result of Respondents' treatment of
them, and second to send a message to the nuclear
industry that attempts to penalize whistle-blowers will
not be tolerated.
(TR 7-8).
III. The Law
In this case, Complainants initially have the burden of
proving a primafacie case by a preponderance of
the evidence. To prove a primafacie case, an
employee must establish each of the following elements:
(a) That the employee engaged in protected activity;
(b) That the employer knew that the employee engaged in
protected activity;
(c) That the employer took some adverse action against the
employee; and
(d) The employee must present evidence sufficient to at
least raise an inference that the protected activity
was the likely reason for the adverse action.
Sellers v. Tennessee Valley Authority, 90-ERA-14
(Sec'y April 18, 1991) Decisions of the OALJ and OAA, Vol. 5, No.
2, March-April 1991, p. 165 at 166. See alsoThompson
v. Tennessee Valley Authority, 89-ERA-14 (Sec'y July 19,
1993) Decisions of the OALJ and OAA, Vol. 7, No. 4, July-Aug.
1993, p. 316 at 319.
Once Complainants have established their primafacie case,
[PAGE 11]
Respondents have the burden of presenting evidence that the
alleged adverse action was motivated by legitimate,
nondiscriminatory reasons. Id.; See alsoLockert v. U.S. Dept. of Labor, 867 F.2d 513, 519 & n. 2
(9th Cir. 1990).
If Respondents articulate a legitimate, nondiscriminatory
reason for their action, Complainants must establish that
Respondent's proffered reason was not its true reason, but,
rather, a pretext. Id.
IV. Discussion
In addition to acknowledging that this action is covered by
the Act, Respondents concede the first two elements of
Complainants' primafacie case. To show that they
are clearly proven, I will briefly discuss the first two
elements.
To establish the first element of Complainants' primafacie case, they must prove that they have engaged in
protected activity. The fitness for duty program is an important
component of the overall safety scheme of any nuclear facility.
See 10 C.F.R. § 26.10. Prior to the 1992 amendments
to the Act it was uncertain if internal complaints were adequate
to constitute a protected activity. See e.g.,
Mackowiak v. University Nuclear Systems, Inc., 738 F.2d
1159, 1163 (9th Cir. 1984). See alsoBivens v.
Louisiana Power & Light, 89-ERA-30 (Sec'y June 4, 1991)
Decisions of OALJ and OAA, Vol. 5, No. 3, May-June 1991, p. 152
at 153. However, the 1992 amendments to the Act have made it
clear that an employee has engaged in protected activity if, as
in the instant case, he or she has "notified his employer of an
alleged violation." 42 U.S.C. § 5851(a)(1)(A).
Furthermore, while not formally contacting the NRC, Complainants
also voiced their concerns to a NRC inspector. Therefore, I find
that Complainants' have established the first element of their
primafacie case.
To establish the second element of Complainants'
primafacie case, they must prove that their
employer knew that they have engaged in protected activity. The
uncontradicted testimony of all of the witnesses and the minutes
of the May 12, 1993 involving Edward King of the NRC,
Complainants, and other employees of Respondents establish that
Respondents were aware of Complainants' protected activity.
See (RX 1).
To establish the third element of Complainants' primafacie case, they must prove that Respondents took some
adverse action against them. In this case, Complainants allege
that the adverse
[PAGE 12]
action against them came in the form of harassment and
intimidation, particularly at the June 8, 1993 meeting.
Unfortunately, several different versions of the events of
that meeting were offered by the witnesses. Human nature being
what it is, people may have different memories and perceptions of
the an event and may offer contradictory, yet honest, testimonial
descriptions. Without question, tensions were at the peak during
this meeting regarding the shortcomings of the computer system.
However, I cannot conclusively determine that Bryan Cook or David
Heritage actually made comments regarding Complainants contacting
the NRC or that Bryan Cook raised his voice and turned red.
Assuming for the sake of argument that they did, although it may
be unpleasant to be present at the meeting where voices are
raised and accusations are made, I cannot say that these events,
by themselves, are sufficient to be regarded as an adverse action
on the part of Respondents. If raised voices in business
meetings would be actionable, a litigation explosion of an
infinite dimension would result. Difficulties and tensions are
merely part of the everyday fabric of the work place.
Complainants' allegations of an adverse impact on their medical
and emotional health are wholly unsubstantiated.
Complainants themselves have testified that they have had
suffered no other form of retaliation such as reassignment, loss
of pay, adverse performance evaluation, or denial of a vacation.
Furthermore, Respondents have actually taken affirmative
remedial measures to facilitate an amicable end to the tension
respecting impaired communication acknowledged by most of the
witnesses. First, Robert DeLisa was employed to identify the
problems between the parties and to "team build" a stronger
organization. After he was unsuccessful, Barry Jentz was
employed to try to resume where DeLisa left off. At the hearing,
none of the witnesses expressed any negative sentiment towards
Complainants and universally expressed a desire to resolve their
differences and work towards a more cooperative relationship.
I find that Complainants' have failed to establish a
primafacie case because they have not proven that
Respondents took any adverse action against them.
When some of the factual disputes degenerate to whether a
person at a meeting became red faced it was certainly a time to
"team build," but that issue falls short of a patters of adverse
activity or a hostile environment. The allegation of "ruin" is
understood as hyperbole.
[PAGE 13]
At the top of page 14 of their closing argument, the
Complainants make a point of their perceived deficiencies in the
Respondents' investigative efforts respecting the complaint of
harassment. This contention overlooks the purpose of the hearing
to afford them an opportunity to air their compliant of
harassment, that is, to prove that they suffered harassment.
This task is aided by the due process rights embodied in the
Administrative Procedures Act including the right to an impartial
decision maker, the right call and cross-examine witnesses, and
the right to a written decision on the record. The focus is not
on the nature of any investigative efforts of Northeast, but what
actions Northeast perpetrated against Complainants as a result of
their protected activities. What is relevant is whether Ms.
Marien and Ms. Nerriccio were injured by their employer. Without
an injury, there is no remedy.
Having found that Complainants have not met their threshold
burden of establishing a primafacie case, their
Complaint must be dismissed.
RECOMMENDED ORDER
For the reasons stated above, it is recommended that the
instant Complainants of Carmela V. Marien (93-ERA-00049) and
Marianne W. Nerriccio (93-ERA-00050) be dismissed in their
entirety.
Ainsworth H. Brown
Administrative Law Judge
Dated: June 27, 1994
Camden, New Jersey
NOTICE: This Recommended Decision and Order and the
administrative file in this matter will be forwarded for review
by the Secretary of Labor to the Office of Administrative
Appeals, U.S. Department of Labor, Room S-4309, Frances Perkins
Building, 200 Constitution Ave., NW, Washington, DC 20210. The
Office of Administrative Appeals has the responsibility to advise
and assist the Secretary in the preparation and issuance of final
decisions in employee protection cases adjudicated under the
regulations at 29 C.F.R. Parts 24 and 1978. See 55 Fed.
Reg. 13250 (1990).
[ENDNOTES]
[1] The following references will be used herein: CX for
Complainants' exhibits; RX for Respondents' exhibits; and TR for
the transcripts of the hearings held before me in New London and
Hartford, Connecticut.
[2] During the time period relevant to this action, both
Complainants received a whistle at their office. (CX 1; CX 2).
However, Complainants have been unable to prove the source of
these whistles and their meaning. In fact, Ms. Marien testified
that at first she though the whistle sent to her "was a joke" but
that "no one came forward, unlike the rat poison I've got and the
other whistles I've got, and the dead rats that I've got." (TR
235). If co-workers of a whistle-blower will send rat poison as
a gag gift, then certainly two anonymous whistles in the mail are
so ambiguous that I cannot draw any conclusion from the mere fact
that they were sent to Complainants.
[3] I note, however, that Complainants still maintain that the
computer will select some individuals for testing more often than
others. If true this result would be a violation of 10 C.F.R.
§ 26.3 which requires that "all persons within that group
have an equally probability of selection." However, my inquiry
is limited to determining whether Complainants have suffered any
adverse action because of their complaints.
