DATE: May 24, 1995
CASE NO. 93-ERA-12
IN THE MATTER OF
SUSAN YULE,
COMPLAINANT,
v.
BURNS INTERNATIONAL SECURITY SERVICE,
RESPONDENT.
BEFORE: THE SECRETARY OF LABOR
FINAL DECISION AND ORDER
Complainant Susan Yule alleges that Respondent Burns
International Security Service (Burns) violated the employee
protection provision of the Energy Reorganization Act of 1974, as
amended (ERA), 42 U.S.C.A. § 5851 (West 1994), when it
discharged her from her position as a security officer assigned
to the Prairie Island Nuclear Generating Plant (Prairie Island)
in Minnesota. Burns contracted with licensee Northern States
Power Co. (NSP) to provide security guards at Prairie Island.
The Administrative Law Judge (ALJ) found that Burns violated the
ERA because it fired Yule in retaliation for her complaints about
safety and plant security at Prairie Island. Recommended
Decision and Order (R. D. and O.) at 23. [1] The ALJ's findings
of fact, R. D. and O. at 5-13, are well supported in the record
and I adopt them. However, I disagree with the ALJ because I
find as a matter of law that Burns proved that it legitimately
would have discharged Yule even if she had not raised any
concerns about nuclear safety. Accordingly, I dismiss the
complaint. [2]
Timeliness of the Complaint
Yule was discharged from her position with Burns effective
[PAGE 2]
September 3, 1992 and filed this complaint 58 days later, on
October 31, 1992. At the time of Yule's discharge, ERA Section
210 provided that an employee who believes she has been
discharged in violation of the employee protection provision may
file a complaint alleging a violation "within thirty days after
such violation occurs." 42 U.S.C. § 5851(b)(1) (1988).
Section 2902 of the Comprehensive National Energy Policy Act
of 1992 (CNEPA), enacted on October 24, 1992, amended Section
210(b) by, inter alia, enlarging the time for filing a
complaint to 180 days and renumbering Section 210 as Section 211.
Pub. L. No. 102-486, 106 Stat. 2776 (Oct. 24, 1992). Subsection
2902(i) of the CNEPA provides:
The amendments made by this section shall apply to
claims filed under section 211(b) of the Energy
Reorganization Act of 1974 (42 U.S.C. 5851(b)(1)) on or
after the date of the enactment of this Act.
Id. Respondent argues that the 180-day filing limit of ERA
Section 211(b) does not apply because, absent an explicit
provision in the statute, a new or extended statute of
limitations will not be applied retroactively to revive an
otherwise extinguished claim. Resp. Br. 20-21. [3] Burns
contends that Yule's claim was "extinguished" 30 days after her
discharge. Id. at 15.
Burns relies on Village of Bellwood v. Dwivedi, 895
F.2d 1521 (9th Cir. 1993), in support of its argument that the
old limitation period applies. Resp. Br. at 20. In that case,
the issue was whether a housing discrimination suit was barred by
the 180 day statute of limitations that existed prior to the Fair
Housing Amendments of 1988, which extended the limitation for
private suits to two years. In that case, "the [Fair Housing
Amendments] Act itself delay[ed] its effective date for 180 days
after its enactment." 895 F.2d at 1527. Congress therefore
ensured that any act of discrimination that occurred prior to the
date of enactment of the 1988 amendments would come under the
180-day limitation period and that the new two year period would
apply only to acts of discrimination that occurred on or after
the enactment of the amendments. Thus, it was logical for the
Court to state in Bellwood that a new statute of
limitations "would not apply to a claim that became barred under the old law
before the new one was enacted." Id.
In this case, however, the 1992 CNEPA amendment to the ERA's
limitation period took effect the exact date the Act was signed
into law. Subsection 2902(b) amends the ERA's time limitation to
180 days and subsection 2902(i) applies the 180 day limit to
"claims filed under section 211(b) . . . on or after the date of
[PAGE 3]
the enactment of this Act." Thus, by the CNEPA's terms, the new
180 day limitation applies to any claim filed on or after
October 24, 1992, including this claim filed on October 31 of
that year.
I find that the application of the 180-day limitation of
Section 211(b) is not retroactive in this case. Further, I find
that under the ERA, as amended by the CNEPA, Yule's complaint was
timely filed 58 days after her discharge. [4]
Discussion
For complaints filed under Section 211:
The Secretary may determine that a violation of
subsection (a) has occurred only if the complainant has
demonstrated that any behavior described in
subparagraphs (A) through (F) of subsection (a)(1) was
a contributing factor in the unfavorable personnel
action alleged in the complaint. [5]
42 U.S.C.A. § 5851((b)(3)(C) (West 1994).
Since Burns presented evidence to rebut Yule's prima
facie case of an ERA violation, it is not necessary to engage
in a lengthy analysis of all of the elements of a prima
facie case. Carroll v. Bechtel Power Corp., Case No.
91-ERA-0046, Final Dec. and Order, Feb. 15, 1995, slip op. at 11
and n. 9, petition for review docketed, No. 95-1729 (8th
Cir. Mar. 27, 1995). I agree with the ALJ's finding that Yule
established a prima facie case. See R. D. and O. at 18.
The burden then shifted to Burns to articulate a legitimate
reason for the discharge, see Carroll, slip op. at 10, and
Burns did so by explaining that it fired Yule for refusing her
superior's order to sign a memorandum indicating her
understanding of the operation of a special door lock.
Yule had the opportunity to counter Burns' evidence by
establishing that the asserted legitimate reason was a pretext
for discrimination. Id. The ALJ found that Burns'
actions immediately prior to the discharge demonstrated that
Yule's protected activities were a contributing factor in the
decision to discharge her. R. D. and O. at 18. I agree. Larry
Jones, who was Burns' Interim Site Security Manager, notified
Yule by letter that she was suspended pending an investigation of
her insubordination of August 25-26, 1992. The notice indicated
that the investigation also would include Yule's earlier warnings
and reprimands for insubordination. CX 14. As the ALJ
explained, the earlier warnings and reprimands concerned some of
the protected activities in which Yule had engaged. R. D. and O.
at 18. For example, Burns earlier had reprimanded Yule
concerning her complaint about the posting of an unarmed guard,
[6] and relied on that incident in its report on the
investigation of the final incident of insubordination which
precipitated Yule's
[PAGE 4]
discharge. See RX 10 and attachment 6. I find that Burns
itself demonstrated that Yule's protected activities were a
contributing factor in the discharge decision.
Since illegitimate motives played a part in Burns' decision,
this case turns on the application of a "dual motive" analysis.
See Carroll, slip op. at 10. The new statutory language
at § 5851 (b)(3)(C) and (D) raises the respondent's burden of
proof under a dual motive analysis, as explained below.
Under former Section 210(b), where the fact finder concluded
that the complainant has proven that the employer acted, at least
in part, for retaliatory reasons, the burden shifted to the
employer to prove by a preponderance of the evidence that,
although improper motive played a part in its action, it would
have taken the same action regarding the complainant even if no
improper motive existed. Carroll, slip op. at 10 (under
ERA prior to 1992 amendments); Ewald v. Commonwealth of
Virginia, Case No. 89-SDW-1, Dec. and Remand Order, Apr. 20,
1995, slip op. at 13 (under analogous provision of several
environmental statutes).
Under the amended ERA, a respondent may avoid the ordering
of any relief for an alleged ERA violation "if the employer
demonstrates by clear and convincing evidence that it
would have taken the same unfavorable personnel action in the
absence" of the complainant's protected activities. 42 U.S.C.A.
§ 5851(b)(3)(D) (emphasis added). See R. D. and O.
at 15. While there is no precise definition of "clear and
convincing evidence," the courts recognize that it is a higher
burden than "preponderance of the evidence" but less than "beyond
a reasonable doubt." [7] E.g., Grogan v. Garner,
498 U.S. 279, 282 (1991) and Pacific Mutual Life Ins. Co. v.
Haslip, 499 U.S. 1, 22 n. 11 (1991).
Turning now to this case, I will determine whether Burns
demonstrated by clear and convincing evidence that it would have
discharged Yule in the absence of her engaging in protected
activities. Burns' witnesses testified that security officers
must obey orders promptly and without question. T. 398-399, 483-
484. The company contends, therefore, that it was lawful to
discharge Yule for refusing her superior's order.
As part of a routine inspection at Prairie Island on
August 24, 1992, an NRC inspector asked a security guard about
his knowledge of a door with a special electromagnetic lock. T.
366, 405-406; RX 5. The guard replied that he knew nothing about
the door, RX 5, and the inspector expressed concern to the NSP
Security Shift Supervisor that the guard did not understand the
operation of the door. RX 5, RX 10; T. 406. As a result, Burns
decided to reissue an earlier memorandum explaining the door's
locking device. CX 13; T. 407. The security guards were given
[PAGE 5]
time to reread the memorandum and ask questions concerning the
operation of the door. The guards were then asked to sign a
document attesting to having read the memorandum and having
received answers to any questions they had about the operation of
the door. T. 86, 93-94, 103, 366, 390-392, 407-408, 411, 449-
450; RX 5.
At a briefing prior to the start of a shift later that day,
Lt. Stephen Bangasser distributed the earlier memorandum
concerning the door's locking device, read a portion of it to the
assembled guards, and gave them the opportunity to ask questions.
T. 203-205, 287, 292-293, 309, 367-368; RX 4; RX 6 at p. 1.
Bangasser told the guards to reread the memorandum during the
course of the shift, ask any other questions, and sign it
indicating that they had read the memorandum. T. 205, 209-210,
367-368; RX 6.
Lt. Bangasser testified that Yule read the memorandum and
asked him questions about the security device, that he answered
Yule's questions, and that Yule told him that she understood the
operation of the device. T. 370-371, 391; RX 6 at p. 1-2; R. D.
and O. at 16. Yule conceded that she knew how to operate the
door and so informed Bangasser. T. 209, 288. When Bangasser
asked Yule to sign the memorandum documenting her understanding
of the device, Yule refused because she believed she had not
received proper training concerning the operation of the door.
T. 207-208, 289, 371-374; RX 6 at p. 2. Yule further testified
that she told Bangasser that she believed having her sign the
memorandum was a "coverup to the NRC." T. 208, 210-212, 291-292.
According to Bangasser, Yule stated that she would not sign
the memorandum because training on security equipment should
occur in a training center, not during a guard shift and that her
signature would indicate that informal training was acceptable.
T. 373, 452-453; RX 4; RX 6 at p. 2. The ALJ credited
Bangasser's version of events, that Yule did not mention an NRC
coverup. R. D. and O. at 16-17. I concur in the ALJ's
credibility assessment. [8]
Upon being hired by Burns when it took over the contract to
provide security at Prairie Island, Yule signed a document
acknowledging that insubordinate conduct directed toward a
supervisor constituted sufficient cause for immediate discharge.
CX 3. It is undisputed that Burns gave Yule several opportunities to sign the memorandum. [9] Yule conceded that
Bangasser directed her to sign the memorandum. T. 289-290. The
ALJ credited Bangasser's testimony that he warned Yule that
refusal to sign would be an act of insubordination that would not
be tolerated. R.D. and O. at 17. Yule informed Bangasser that
she preferred to be written up rather than sign the memorandum.
T. 373; RX 10 at Attach. 2 and 4.
[PAGE 6]
Notwithstanding the established policy of discharge for
insubordination, the finding that Yule disobeyed her supervisor's
order to sign the memorandum, and the additional finding that
"Burns has shown that it discharged [other] employees who refused
to obey the direct order of a superior," R. D. and O. at 23, the
ALJ nevertheless found in favor of Yule. The ALJ stated that:
Since Burns has not shown that it has discharged any
other employee for refusing to sign a training
document, and having determined that Burns does not
always discharge its employees who commit
"insubordination," I conclude that Burns has not proven
that it would have terminated Ms. Yule's employment
even if she had not engaged in protected activity.
Id.
Under the ALJ's analysis, Burns' only means to avoid
liability was to show that it took the same action against an
employee for the identical offense. The ALJ faulted Burns for
not showing that it had discharged other employees "who committed
a minor act of insubordinate conduct." R. D. and O. at 23. The
ALJ found the evidence that Burns had discharged several other employees for refusing a superior's direct order too dissimilar
to be persuasive. Id.
I disagree with the ALJ's analysis because it holds Burns to
a higher burden of proof than clear and convincing evidence.
Labor Relations Manager Guy Thomas gave five instances in which
Burns discharged employees for refusing to obey a supervisor's
order. T. 487-490. I disagree with the ALJ's implicit
assessment that the orders disobeyed by the other five employees
were more significant or important than the order that Yule
disobeyed. For example, Burns discharged a guard for disobeying
an order to leave the plant when he entered the cafeteria to eat
a late lunch after the conclusion of his work shift. T. 487-488;
RX 16. I consider entering the cafeteria against orders to be no
more or less significant an act of disobedience than refusing to
sign a memorandum reflecting understanding of a security device.
I find that Burns established unequivocally that it viewed
disobedience of any direct order as an offense meriting
discharge. [10]
I further find that Burns was consistent in firing Yule for
refusing to sign the safety device memorandum and firing a
different security guard, Ms. Pasquale, for refusing to sign a
reinstatement agreement arising out of an arbitration decision.
See T. 489-490. The ALJ distinguished Pasquale's firing
because it was later overturned by an arbitrator. R. D. and O.
at 23. Whatever the merit, under the union-management bargaining
agreement, of firing Pasquale, it nevertheless showed that Burns
[PAGE 7]
viewed refusing an order to sign a document as a serious offense.
I am also not convinced by the ALJ's reasoning that since
Yule was not discharged for a previous incident of
insubordination, she should not have been discharged for refusing
to sign the memorandum. Yule's February 1992 insubordinate
conduct consisted of questioning her supervisor's judgment about
the posting of an unarmed guard, not disobeying a direct order.
I find it reasonable for Burns not to discharge Yule for the
February incident and to discharge her for her later refusal of a
direct order to sign a document.
Conclusion
I find that Burns demonstrated by clear and convincing
evidence that it would have discharged Yule for refusing her
superior's order to sign the memorandum, even if she had never engaged in activities protected under the ERA. Accordingly, the
complaint is dismissed. [11]
SO ORDERED.
ROBERT B. REICH
Secretary of Labor
Washington, D.C.
[ENDNOTES]
[1] The Recommended Decision and Order was issued on June 24,
1993. The ALJ also issued a Supplemental [Recommended] Decision
and Order Granting Attorney's Fee on October 22, 1993.
[2] In light of the dismissal, the ALJ's Supplemental Decision
awarding attorney's fees to Complainant is moot.
[3] Burns has taken inconsistent positions during the course of
this case. In a December 1992 Petition to Dismiss a Frivolous
Complaint, Burns argued that the CNEPA amendments applied and
required dismissal of the complaint. The ALJ denied the petition
in the January 6, 1993 Order Denying Respondent's Motion to
Dismiss.
[4] In light of my finding that the complaint was timely under
the 180-day limitation period of Section 211(b), there is no need
to determine whether the 30 day limitation of former Section
210(b) was equitably tolled in this case. See R. D. and
O. at 3-4. I find the ALJ's R. D. and O. internally inconsistent
because on the one hand, the ALJ found that the 30-day limitation
of former Section 210 applied and was tolled equitably, and on
the other hand, the ALJ applied the burdens of proof of new
Section 211. See R. D. and O. at 3-4 (limitation period)
and 13 (applying amended burden of proof).
[5] Section 5851(a)(1)(A) through (F) is set out below:
(a)(1) Discrimination against employee
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 (or any
person acting pursuant to a request of the employee)--
(A) notified his employer of an
alleged violation of this Act or
the Atomic Energy Act of 1954 (42
U.S.C. 2011 et seq.);
(B) refused to engage in any
practice made unlawful by this Act
or the Atomic Energy Act of 1954,
if the employee has identified the
alleged illegality to the employer;
(C) testified before Congress or at
any Federal or State proceeding
regarding any provision (or any
proposed provision) of this Act or
the Atomic energy Act of 1954;
(D) 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, as
amended, or a proceeding for the
administration or enforcement of
any requirement imposed under this
chapter or the Atomic Energy Act of
1954, as amended;
(E) testified or is about to
testify in any such proceeding or;
(F) 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, as amended.
[6] I agree with the ALJ's finding that Yule's complaint to her
supervisor about the unarmed guard was protected under subsection
(a)(1)(A). See R. D. and O. at 16.
[7] The courts simply state whether enumerated evidence either
meets or does not meet the "clear and convincing" level. For
example, in Ballard v. Commissioner of Internal Revenue,
740 F.2d 659, 662 (8th Cir. 1984), the court found that a
taxpayer's pattern of underreported income, failure to report any
business activities in certain years, statements to his tax
preparer falsely denying business activities in those years, and
failure to maintain adequate records of business transactions
constituted clear and convincing evidence of fraudulent intent.
By contrast, in Henson v. Commissioner of Internal
Revenue, 835 F.2d 850, 854 (11th Cir. 1988), the court found
that a witness's statements were so "equivocal" that they did not
constitute legitimate evidence regarding the date of certain
documents and did "not amount to clear and convincing evidence of
fraud."
And in a federal employee whistleblower case, the court
found that a witness's "subjective evaluation" and the "weak
corroboration of the other witnesses cannot amount to clear and
convincing evidence in support of the agency's actions."
Hampsonv. Department of Transportation, 1994 U.S.
App. LEXIS 419 (Fed. Cir. Jan. 7, 1994).
[8] My analysis would be very different if Yule had expressed to
her supervisor that she believed signing the memorandum
constituted a coverup to the NRC.
[9] All of the other guards signed the memorandum. Resp. Br. at
29, 31.
[10] The record is replete with testimony that Burns' security
guards operated under a system of military-style discipline in
which disobeying any order was considered a serious offense.
E.g., T. 398-399 (Larry Jones); 483-484 (Guy Thomas)
("There is simply not room for an employee, in a nuclear site,
concerning nuclear security, . . . for an employee to be able to
second-guess or question supervisors in times of direction.").
[11] Under the CNEPA amendments, which applied in this case,
Upon the conclusion of [a] hearing and the
issuance of a recommended decision that the
complaint has merit, the Secretary shall
issue a preliminary order providing the
relief prescribed in subparagraph (B), but
may not order compensatory damages pending a
final order.
42 U.S.C.A. § 5251(b)(2)(A). The relief prescribed in
subparagraph (B) consists of action to abate the violation,
reinstatement to the complainant's former position, and back pay.
42 U.S.C.A. § 5251(b)(2)(B).
The failure to issue such a preliminary order in this case
is moot in light of this order dismissing the complaint.
