DATE: May 9, 1995
CASE NO. 93-ERA-5
IN THE MATTER OF
WILLIAM DAVID SIMMONS,
COMPLAINANT,
v.
ARIZONA PUBLIC SERVICE CO./
ARIZONA NUCLEAR POWER PROJECT,
RESPONDENT.
BEFORE: THE SECRETARY OF LABOR
DECISION AND ORDER OF REMAND
Before me for review is the Recommended Decision and Order
(R.D. and O.) issued on April 15, 1993, by the Administrative Law
Judge (ALJ) in this case arising under the employee protection
provision of the Energy Reorganization Act of 1974 (ERA), 42
U.S.C. § 5851 (1988). [1] The ALJ has recommended that the
complaint of unlawful discrimination should be dismissed. I
disagree. Accordingly, the ALJ's decision is rejected. FACTUAL BACKGROUND
Complainant William David Simmons began work for Respondent
Arizona Public Service Company (APS) at its Palo Verde Nuclear
Generating Station in 1982 and by 1986 had advanced to the
position of lead radiation (rad) waste operator which entails
first line supervision. Simmons essentially functioned as a
foreman who monitored and performed alignments on the equipment
in the power plant. APS requires its operators to be "respirator
fit" which means that they must remain clean-shaven in order to
achieve a proper facial seal. In 1986 Simmons sustained a
degloving injury in a severe motor vehicle accident, that is to
[PAGE 2]
say that he was thrown into the windshield and the fleshy tissue
of his face was separated from his head. He also suffered
multiple facial lacerations. As a result, glass and other
objects are embedded in his facial tissue. His doctors advised
him not to shave, and he did not do so following the accident.
[2]
Upon returning to work after the accident, Simmons was
informed that he would be discharged under APS's fitness for duty
policy. "Emergency response" comprised five percent of his
duties as a rad waste lead which he could not perform because of
his inability to use APS's self-contained breathing apparatus
(SCBA) type of respirator. Although APS ultimately reconsidered
its discharge decision, it denied Simmons access to the
"protected area" of the plant because he was not SCBA qualified
and between January and the fall of 1987 assigned him clerical
duties. In late 1987 APS granted Simmons an exception permitting
him access to the protected area and assigned him the job of work
control evaluator. As an evaluator Simmons processed maintenance
work requests. While he was compensated at a level commensurate
to that of a rad waste lead, he was ineligible for the compulsory
overtime that is incorporated into the scheduling for that
position.
In 1988 Simmons learned that more than half the members of
the rad waste staff were not required to maintain respiratory
qualifications -- either they never had qualified or their
qualifications had lapsed. As a result, they were not qualified
to use the SCBAs, yet their employment was not restricted.
Simmons complained to APS management, but was ignored. In August
1988 he contacted the Nuclear Regulatory Commission (NRC).
Simmons' contact resulted in an investigation, and the NRC
ultimately disclosed to APS that Simmons had been the
complainant. In October 1989 APS discharged Simmons who
thereafter filed a complaint of unlawful discrimination under ERA
section 210. In December 1989 Simmons was reinstated as the
result of settlements reached in the section 210 action and in
Office of Federal Contract Compliance Programs (OFCCP)
proceedings. Although Simmons had understood that he would be
reinstated to his former rad waste lead position, [3] APS
instead assigned him to work control. Thereafter, Simmons was
warned by a co-worker to "be very careful because [Gene] Eimar
was out to get [him]." Hearing Transcript (T.) 356. Eimar,
APS's Unit II shift supervisor, was supervising Simmons at the
time. [4]
In July or August 1990 Simmons was transferred from work
control, an air-conditioned area, to the demineralizer ("demin")
area in the turbine building and was assigned to operate the
secondary chemistry system. The demin area is not air-
conditioned and proved uncomfortable in the Arizona heat. From
August 1990 until April 1991 Simmons was the only employee
[PAGE 3]
assigned to the turbine building work station for the entire
workday. All others worked out of the control room in the
control building, monitoring the equipment on their rounds.
Simmons was not permitted to work overtime while assigned to the
demin area. [5]
In August 1990 the qualification (qual) card issued to
Simmons in July was put on hold. While all other operators were
encouraged to qualify for work in all eight areas of the plant,
Simmons was denied the opportunity to obtain signatures toward
qualification until January 1992. The applicable APS posting
read: "On day shift, Dave Simmons should be operating demins
while the on-shift person works on quals." Exh. C-12.
In late 1990 APS declined to promote Simmons to the position
of Water Process System Supervisor. [6] Simmons believed that
his isolated assignment to the demin area had hurt his chances of
being promoted to the supervisory position. T. 360-361.
In November or December 1991 Simmons requested to be
transferred out of the demin area. In January 1992 APS restored
him to an "on-shift" auxiliary operator position. [7] At this
point, Simmons was qualified to work only in areas seven (work
control) and eight (demin/turbine building) of the plant. His
duties as an operator required him to qualify in the remaining
six plant areas. All of Simmons' peers had been granted a waiver
from new, more onerous qual card requirements applicable to
operators hired after August 1, 1990. APS training coordinator
Danny Ensign insisted, however, that Simmons not only comply with
these new requirements, but that he do so within an abbreviated
time period. [8] Simmons complained that Ensign harassed him
about qualifying and badgered him and his supervisors about his
progress. T. 377-380, 384; Exh. R-58.
In October 1992 APS issued a revised Occupational Safety and
Health Manual which required the presence of two operators when
transferring hazardous chemicals, one of whom would act as the
safety person remaining out of the area of immediate hazard and
assisting in the event of an accident. Exh. R-35 at 101.
Although Simmons had been "allowed to do those transfers for
years," T. 435, APS restricted him from acting as the safety
person. APS lifted this restriction after Simmons filed the
instant section 210 complaint.
At the time of the February 1993 hearing in the case,
Simmons was permitted to qualify in all eight areas of the plant,
but was restricted from standing independent watch in
radiologically controlled areas 3, 4, and 7. [9] Simmons
testified that this restriction inhibits career progression.
DISCUSSION
To prevail on whistleblower complaints, complainants must
establish that the respondents took adverse action against them
[PAGE 4]
because they engaged in activity protected under the ERA.
Section 210(a) of the ERA provides:
No employer . . . may discharge any employee or
otherwise discriminate against any employee with
respect to his compensation, terms, conditions, or
privileges of employment because the employee . . . (1)
commenced, caused to be commenced, or is about to
commence or cause to be commenced a proceeding under
this chapter or the Atomic Energy Act of 1954 . . . or
a proceeding for the administration or enforcement of
any requirement imposed under this chapter or the
Atomic Energy Act of 1954 . . . (2) testified or is
about to testify in any such proceeding or; (3)
assisted or participated or is about to assist or
participate in any manner in such a proceeding or in
any other manner in such a proceeding or in any other
action to carry out the purposes of this chapter or the
Atomic Energy Act of 1954 . . . .
42 U.S.C. § 5851(a). Accordingly, Simmons engaged in
protected activity in late 1988 when he complained to APS
management and contacted the NRC about SCBA qualifications and in
late 1989 when he filed an ERA section 210 complaint after being
discharged. He now alleges that APS engaged in the adverse
employment restrictions and assignments described above because
of this protected activity.
Under the ERA, a complainant must file a discrimination
complaint "within 30 days after such violation occurs . . . ."
42 U.S.C. § 5851(b)(1). Since Simmons waited until October
1992 to file his section 210 complaint, all of APS's actions fall
outside the limitations period, with the exception of the October
1992 duties restrictions. The ALJ found Simmons' complaint to be
untimely with respect to the earlier actions. I disagree.
In discussing the concept of a "continuing violation" in
OFCCP v. CSX Transportation, Inc., Case No. 88-OFC-24,
Sec. Remand Dec., Oct. 13, 1994, slip op. at 21-26, I cited the
decision of Judge Larson in Elliott v. Sperry Rand Corp.,
79 F.R.D. 580 (D. Minn. 1978). Judge Larson noted the difficulty
in determining when a violation occurred in instances where
employment practices cannot logically be viewed as discrete
"incidents" occurring at a particular point in time and
identified four situations where violations typically are
considered continuing. The second of these situations, which is
applicable to this case, involves an employee who challenges a
series of allegedly discriminatory events only one of which
occurred within the limitations period. "An employee, for
example, may be repeatedly denied a benefit; so long as the most
[PAGE 5]
recent denial occurred within the appropriate time period, no
'continuing violation' question really arises, for the recent
event fully supports jurisdiction." Id., 79 F.R.D. at
585-586. See Gillilan v. Tennessee Valley Authority, Case
Nos. 92-ERA-46, 92-ERA-50, Sec. Dec., Apr. 20, 1995, slip op. at
4-5; Garn v. Benchmark Technologies, Case No. 85-ERA-21,
Sec. Remand Dec., Sept. 25, 1990, slip op. at 6 (complaint is
timely under continuing violation theory "where there is an
allegation of a course of related discriminatory conduct and the
charge is filed within thirty days of the last discriminatory
act").
The adverse actions at issue here are not so much isolated
employment decisions as they are recurring restrictions imposed
on complainant's terms of employment which adversely affected his
ability to advance. In the words of one co-worker, the APS
managers continuously "were setting up impediments, stumbling
blocks [for Simmons] that other people just didn't face." T. 196
(Training instructor Jamie Mintz). This conduct, then,
essentially created a pattern of discrimination. Because APS's
"actions" represented a "constant ongoing type process,"
id., including a duty restriction which occurred within the
limitations period, I find that the entire complaint is timely.
I note that even if all but the last claim were held
untimely and not actionable, evidence of all APS's actions
properly could "be considered to 'shed light on the true
character of the matters occurring within the limitations
period.'" Yellow Freight System, Inc. v. Reich, 27 F.3d
1133, 1141 (6th Cir. 1994). See Malhotra v. Cotter & Co.,
885 F.2d 1305, 1310 (7th Cir. 1989) ("Evidence of past
practices may illuminate . . . present patterns of behavior.").
Accordingly, APS's earlier actions properly would bear on the
issue of its later motivation.
With regard to APS's October 1992 restrictions on Simmons'
duties, the ALJ found that Simmons failed to establish a prima
facie case of unlawful discrimination. R.D. and O. at 6-7.
I disagree.
A complainant initially must show that it was likely that an
employer's adverse action was motivated by a protected activity
(prima facie case). Ewald v. Commonwealth of Virginia,
Case No. 89-SDW-1, Sec. Remand Ord., Apr. 20, 1995, slip op.
at 11-14; Carroll v. Bechtel Power Corporation, Case No.
91-ERA-46, Sec. Dec., Feb. 15, 1995, slip op. at 8-10. In
particular, a complainant must show that he engaged in protected
activity, that he was subjected to adverse action, and that the
respondent knew about the protected activity when it took the
adverse action. A complainant also must present evidence
sufficient to raise the inference that the protected activity was
the likely reason for the adverse action. Causation may be
established by showing that
[PAGE 6]
the respondent was aware of the protected activity and that
adverse action followed closely thereafter. Couty v.
Dole, 886 F.2d 147, 148 (8th Cir. 1989).
As discussed above, Simmons engaged in protected activity in
1988 and 1989 and thereafter continuously was subjected to
adverse job restrictions and assignments. Numerous co-workers
testified about management's hostility toward Simmons following
his 1989 reinstatement, particularly on the part of Roger
Middleton, APS's operations supervisor, and Danny Ensign, the
training coordinator who was responsible for scheduling overtime.
Training instructor Mintz testified that management
consistently made derogatory comments about Simmons beginning in
January 1990 and that Middleton made it very obvious that he was
not "well intended" toward Simmons. T. 218. "It was along the
general lines of [Simmons] is gonna mess up one of these days and
I'm gonna get him." T. 221. Mintz believed that hostility was
directed against Simmons "because [he] went to not just the NRC,
but the Department of Labor and . . . generally had brought up
concerns." T. 228. Mintz testified that "Roger Middleton was so
angry during the process that he did not keep it a secret."
Id. According to APS coordinator Ray King, Middleton was
directly responsible for the August 1990 decision to put Simmons'
qual card on hold. T. 277. See Exh. C-12.
Auxiliary operator Charlie Allen testified that in
discussing Simmons' merit review, Middleton referred to Simmons
as "his problem child [a]nd the voice -- it was done in such a
manner that uppity managerial attitude that was commonly held
about Mr. Simmons." T. 293-294. He also testified:
[I]t's a well-known common fact at unit two, among
operators at least, that [Simmons] has been subjected
to a number of less than even-handed practices. It's
based on who's promoted and who's not. It's based on
the general understanding that we have at Palo Verde
that if you -- forgive my language, piss the wrong guy
off you're going to pay for it for years to come.
That's a well known fact.
T. 297-298. Testimony by APS valve test technician Sarah Thomas is consistent, T. 239-257, as is that by APS coordinator King.
T. 285-289. [10]
Upon consideration of the evidence, I find that Simmons has
shown that APS's ongoing adverse action following his 1989
reinstatement likely was motivated by his protected activity and
thus has made a prima facie case of unlawful
discrimination. Because the ALJ summarily dismissed Simmons'
complaint at the conclusion of his case-in-chief, Respondent has
not been accorded an opportunity to defend. Accordingly, the
case must be remanded
[PAGE 7]
to the ALJ for further proceedings. In order to rebut Simmons'
prima facie case, APS must produce evidence that its
adverse action was motivated by a legitimate, nondiscriminatory
reason. Simmons then must prove that the proffered reason is
pretextual and that the true reason for the adverse action was
his protected activity. In the event that Simmons demonstrates
that APS took adverse action, in part, because he engaged
in protected activity, the burden shifts to APS under a dual
motive analysis to demonstrate that it would have taken action
even if Simmons had not engaged in protected activity.
CONCLUSION
Simmons' complaint of unlawful discrimination encompassing
the period 1990-1992 is timely, and Simmons has shown that
Respondent's adverse action likely was motivated by
his protected activity. The case IS REMANDED to the ALJ for
further proceedings consistent with this decision.
SO ORDERED.
ROBERT B. REICH
Secretary of Labor
Washington, D.C.
[ENDNOTES]
[1]
The amendments to the ERA contained in the National Energy
Policy Act of 1992, Pub. L. No. 102-486, 106 Stat. 2776 (Oct. 24,
1992), do not apply to this case in which the complaint was filed
prior to the effective date of that Act. For purposes of this
case, I will continue to refer to the provision as codified in
1988.
[2]
In 1992, however, Ron Flood, APS's plant manager, approached
Simmons about being respirator fit tested, a procedure which
would require him to shave his beard. This offer was made in an
effort to conciliate claims filed by Simmons with the Office of
Federal Contract Compliance Programs. Simmons at first objected,
but later reconsidered. He shaved, reported to the APS plant,
and passed the fit test. His face became painful and irritated,
he developed ulcerations, and upon reporting for work immediately
after the test, he suffered a heart attack.
[3]
OFCCP had determined that APS could accommodate Simmons in the
rad waste lead position by assigning him duties that would not
require him to use a SCBA.
[4]
Another co-worker, Sarah Thomas, testified that following
Simmons' reinstatement Eimar told her and APS employee Linda
Mitchell that he planned to "get rid of Simmons," "document and
fire" him, T. 240, 248, and that the documented reason for
discharge would be "performance problems." T. 253. Co-worker
Charlie Allen testified that in early 1990 Eimar stated that
Simmons "was a troublemaker out to make something out of nothing
on the company's part." T. 293.
[5]
As a demin operator Simmons worked eight hours a day, five
days a week. In contrast, rad waste or auxiliary operators
alternated between 12-hour shifts, a day shift from 6:30 a.m. to
6:30 p.m. and a night shift from 6:30 p.m. to 6:30 a.m. This
scheduling was referred to as working "on-shift." Toward the end
of Simmons' tour in the demin area, APS scheduled him for a four
day/12 hour rotation, concomitantly assigning two other permanent
demin operators to the area. Exhibit (Exh.) R-52.
[6]
Jamie Mintz, an APS senior instructor for training, testified
that the selection process was irregular, that Simmons exceeded
qualifications for the position, and that the position was
awarded to a less experienced employee who previously had erred
procedurally causing tanks to become chemically contaminated. T.
189-193, 198-200, 211-215.
[7]
Under an October 1987 reorganization, APS's rad waste
department had been placed in the operations group and rad waste
operators had been redesignated auxiliary operators. Auxiliary
operators are one step below reactor operators on the career
ladder.
[8]
Whereas other operators had been accorded a period of four
years in which to qualify, Simmons was required to complete his
qualifications within six months of being permitted to use his
qual card.
[9]
Standing watch entails signing logs detailing equipment
checks, temperatures, and pressure readings; generally assuming
responsibility for an area; and assisting in the event of an
emergency. Simmons testified that when he came back "on-shift"
he was told that he would be permitted to qualify in all eight
areas but would not be permitted to run the equipment. Then he
encountered some "back and forth . . . [r]estrictions added,
restrictions lifted." T. 373. Finally, APS decided that the
only restriction would involve standing watch.
[10]
Thomas testified that she "know[s] for a fact" that there is a
general threat of discharge and getting even with employees who
file section 210 complaints. After she prevailed in her own
whistleblower case in 1989, "there has been continued retaliation
and there have been NRC documentation to the fact that there has
been continued retaliation." T. 249.
