DATE: April 13, 1995
CASE NO. 93-ERA-32
IN THE MATTER OF
GERALDINE SLUDER,
COMPLAINANT,
v.
DETROIT EDISON CO.,
RESPONDENT.
BEFORE: THE SECRETARY OF LABOR
FINAL DECISION AND ORDER
The Administrative Law Judge ("ALJ") submitted a Recommended
Decision and Order ("R.D. and O.") in this case arising under the
employee protection provisions of the Energy Reorganization Act
of 1974 ("ERA" or the "Act"), as amended, 42 U.S.C. §
5851(a). The ALJ determined that Complainant was not fired for
engaging in protected activity and recommended that the complaint
be dismissed. For the reasons given below, the R.D. and O. is
affirmed.
BACKGROUND
The complainant, Geraldine Sluder, was employed by Detroit
Edison Company, a privately owned public utility. Detroit Edison
operates a nuclear power generation facility in Monroe County,
Michigan. Sluder worked at this facility as a member of its
Nuclear Security organization. The Nuclear Security organization
employs approximately 75 uniformed security officers and
approximately 26 non-uniformed personnel. The non-uniformed
personnel perform various administrative and technical functions.
Sluder was one of two Access Authorization Coordinators in the
non-uniformed group.
[PAGE 2]
On Friday, March 12, 1993, Sluder discussed in confidence
with Jeffrey Boudrie, a fellow employee, her recent experience of
smelling what she believed to be alcohol on the breath of another
employee, Karen Krolikowski. In this conversation, Sluder also
related her observations regarding hand tremors, unsocial
behavior and general appearance on the part of Krolikowski.
Sluder testified that she believed Boudrie was, at the time of
the conversation, acting in a supervisory capacity. Boudrie
testified that he recommended to Sluder that she relate her
concerns either to Michael S. Candela, her immediate supervisor;
Rich Fitzsimmons, the Fitness for Duty Administrator; or to
Joseph Korte, the Director of Nuclear Security. Boudrie did not
take any further action. Sluder similarly appears to have taken
no further action.
Following the receipt of an anonymous tip regarding
Krolikowski's fitness for duty, the Nuclear Regulatory Commission
("NRC") instituted an investigation into the matter. On
March 16, 1993 Gary Pirtle of Region III of the NRC informed
Korte that the NRC would formally request Detroit Edison to
investigate the allegations against Krolikowski. After
notification to his superiors, Korte began his investigation. On
March 17, 1993, Korte learned of the gist of Sluder's
observations regarding Krolikowski as related to Boudrie on
March 12, 1993. Boudrie told another co-employee Paul Smiscik,
and he told Korte. (T.36-7)
In the course of his investigation of the anonymous tip to
the NRC, Korte interviewed Sluder on March 17, 1993. Korte did
not single Sluder out and ask if she told anyone of her
observations concerning Krolikowski. He asked her, just like he
asked numerous other people, if she ever had observed alcohol
related behavior by Krolikowski. (T. 44). Sluder denied ever
having made such an observation. (T. 256-8). The reason Sluder
gave for denying her observations of Krolikowski's alcohol
related behavior was that she was "suspicious of Korte's motives
and thought she was being 'set up' because Korte was giving her
the same information she just gave Boudrie about Krolikowski."
Complainant's Post-Hearing Brief at 8.
On March 18, 1993, Korte again asked Sluder if she had ever
made a personal observation of alcohol related behavior by
Krolikowski. Once, again Sluder denied ever having made such an
observation. (T. 260). On March 24, 1993, Sluder, for the third
time, denied having any personnel knowledge of Krolikowski's
alleged alcohol use. (T. 264). It was only during this first
meeting on March 24, 1993, that Sluder was informed of Boudrie's
disclosure to Korte (through Smiscik) regarding the substance
Sluder's personal observation of Krolikowski's alcohol related
behavior. (T. 264). Sluder continued to deny any such
[PAGE 3]
observations.
Following these denials by Sluder, later in the day on
March 24, 1993, Korte informed Sluder and Boudrie that because he
was unable to reconcile their statements, he would have to
suspend an employment privilege, i.e., unescorted access
authority. Prompted by this action, Sluder recanted her earlier
denials and admitted the truth of Boudrie's statement. Based on
Sluder's admission that she had lied on three occasions Korte
recommended to his superiors that she be terminated as being
unreliable and untrustworthy. Korte's recommendation was
accepted and Sluder was discharged, on March 24, 1993.
DISCUSSION
First Complainant must make a prima facie showing
that protected activity motivated Respondent's decision to take
an adverse employment action against her. Respondent may rebut
this showing by producing evidence that the adverse action was
motivated by a legitimate, nondiscriminatory reason. Complainant
must then establish that the reason proffered by Respondent is
not the true reason. At all times, Complainant has the burden of
establishing that the real reason for the discharge was
discriminatory. Carroll v. Bechtel Power Corp., Case No.
91-ERA-0046, Sec. Dec., Feb. 14, 1995, slip op. at 9., citing
St. Mary's Honor Center v. Hicks, 113 S.Ct. 2742, (1993).
In order to establish a prima facie case, a
Complainant must show that: (1) the complainant engaged in
protected conduct; (2) the employer was aware of that conduct;
(3) the employer took some adverse action against her; and (4)
there is evidence sufficient to raise the inference that the
protected activity was the likely reason for the adverse action.
Thomas v. Arizona Public Service, Co., Case No. 89-ERA-19,
Final Dec. and Order, Sept. 17, 1993, slip op. at 20; see
also Mackowiak v. University Nuclear Sys., Inc., 735 F.2d
1159, 1162 (9th Cir. 1984); McCuisition v. TVA, Case No.
89-ERA-6, Sec. Dec., Nov. 13, 1991, slip op. at 5-6.
There is only one, limited, variant to this general format.
Where an employee proves (i.e., established by a
preponderance of the evidence) that illegitimate reasons played a
part in the employer's decision, the employer then has the burden
of proving by a preponderance of the evidence that it would have
taken the adverse action against the employee for the legitimate
reason alone. Price Waterhouse v. Hopkins, 490 U.S.1 at
228(19), Carroll, slip op. at 10. [1]
Internal complaints are a protected activity consistent with
the broad remedial purposes of the whistleblower provisions of
the ERA. See Passaic Valley Sewerage Comm'rs. v. Dept. of
Labor, 992 F.2d 474 (3d Cir. 1993); Couty v. Dole, 886
F.2d 147 (8th Cir. 1989); Consolidated Edison Co. of N.Y.,
Inc. v. Donovan, 673
[PAGE 4]
F.2d 61 (2d Cir. 1982); Mackowiak, 735 F.2d at; Kansas
Gas and Electric Co. v. Brock, 780 F.2d 1505 (10th Cir.
1985). The ALJ found that Sluder engaged in protected activity.
R.D. and O. at 5. Sluder alleged that Boudrie was acting in a supervisory
capacity when she made the complaint to him. (T. 254). Boudrie
did act as a supervisor at specified times -- during vacations
and when a supervisor was absent from the work situs. R.D. and
O. at 4-5. Complainant's immediate supervisors was not readily
available at the time she had the conversation with Boudrie.
R.D. and O. at 5. I find that Sluder established a prima
facia case of engaging in protected activity. She "presented
evidence sufficient to prevail until contradicted and over come
by other evidence." Carroll, slip op. at 11.
Sluder also established the other elements of a prima
facia case. Detroit Edison, specifically the Director of
Nuclear Security, Joseph Korte, was aware of Sluder's statements
to Boudrie concerning Krolikowski's alleged alcohol problem. On
March 17, 1993, Korte was informed of the substance of Boudrie's
March 12, 1993 conversation with Sluder. (T. 36-37). On
March 24, 1993, just 12 days after her initial conversation with
Boudrie, Sluder was terminated. The temporal proximity between
Sluder's protected activity and the adverse action is sufficient
to raise the inference that Sluder's protected activity was the
likely reason for the discharge. Carroll, slip op. at 15.
The burden of production then switches to the respondent to
show that the adverse action was motivation by a legitimate,
nondiscriminatory reason. Detroit Edison offered evidence in
support of its contention that Sluder was discharged because she
lied and thus impaired its investigation. The ALJ found Detroit
Edison's evidence to be persuasive and specifically found that
Sluder's conversation with Boudrie, concerning Krolikowski, was
not a contributing factor in her discharge. I agree with the
ALJ's conclusions regarding the legitimate reasons for Sluder's
discharge by Detroit Edison. But, I disagree with the ALJ's
conclusions that Sluder carried her burden of proof to show that
she engaged in protected activity in the first place.
I find that, although Sluder present a prima facia
case, she failed to prove that she made a protected internal
complaint. Complainant's argument that she lied about her
observations of Krolikowski because she wanted to preserve her
anonymity is contradicted by her argument that she intended to
file an internal complaint by talking with Boudrie. If
Complainant was intending to file a whistleblower complaint with
one of her supervisors, as she alleges, and believed that Boudrie
had an obligation to pursue the complaint, again as she alleges,
then certainly she should not have been surprised to find that
Korte knew the specifics of her complaint. I find that Sluder
made the
[PAGE 5]
statement to Boudrie concerning Krolikowski "in confidence" and
expected that if would go no further. Therefore, she did not
engage in protected activity because she never intended to blow
the whistle on Krolikowski. Sluder's complaint must be dismissed
based upon her failure to prove by a preponderance of the evidence that she was discharged for engaging in protected
activity.
SO ORDERED.
ROBERT B. REICH
Secretary of Labor
Washington, D.C.
[ENDNOTES]
[1] The employer's burden in a "dual motive" case is thus
handled much like an "affirmative defense: the plaintiff must
persuade the fact finder on one point, and then the employer, if
it wishes to prevail, must persuade it on another." Price
Waterhouse v. Hopkins, 490 U.S.1 at 246(19).
