DATE: November 22, 1995
CASE NO.: 94-CAA-0018
In the matter of:
FRANCES MACLEOD,
Complainant,
v.
LOS ALAMOS NATIONAL LABORATORY,
Respondent.
APPEARANCES:
For Complainant:
THAD M. GUYER, ESQ.
Government Accountability Project
221 West Main Street, Suite 1
Medford, Oregon 97501
ALENE ANDERSON, ESQ.
Government Accountability Project
1402 Third Avenue, Suite 1215
Seattle, Washington 98101
For Respondent:
ELLEN M. CASTILLE, ESQ. and
FRANK L. DICKSON, ESQ.
Los Alamos National Laboratory
P.O. Box 1663
Mail Stop A-187
Los Alamos, New Mexico 87545
BEFORE: DANIEL L. STEWART
Administrative Law Judge
RECOMMENDED DECISION AND ORDER
This matter arises under Section 5851 of the Energy
Reorganization Act of 1974, as amended in 1992 (the "Act" or
"ERA"), 42 U.S.C.A. §5851 (1988 & Supp. 1995), and the
applicable
[PAGE 2]
regulations codified at 29 C.F.R. Part 24 (1995).[1] Section
5851 prohibits a Nuclear Regulatory licensee from discharging or
otherwise discriminating against an employee who has engaged in
activity protected by the Act.
Statement of the Case
On December 27, 1993, Complainant, Frances Macleod, filed a
complaint with the Department of Labor alleging that Respondent,
Los Alamos National Laboratory (LANL), terminated her employment
effective July 2, 1993, in retaliation for engaging in activities
protected by the Act. On June 23, 1993, approximately one week
prior to her discharge, Complainant casually mentioned the
existence of a leaking tank to a Department of Energy auditor,
assuming incorrectly that he was aware of it. On June 28, 1993,
Complainant's supervisor, Mary Ann Reimus and her deputy group
leader, Mark Dinehart, met with Complainant to inform her that a
letter would be placed in her personnel file documenting
Complainant's second failure to record the movement of special
nuclear material (plutonium) on the computer accountability
system (MAS). At the meeting, Complainant argued that she should
not be formally disciplined for a mistake she made while
performing work without proper training, certification, or
supervision. When her argument failed to persuade her superiors,
Complainant told Dinehart that if the letter would be placed in
her file, then she would see to it that "everyone would be held
accountable" for allowing her to work without the proper
certification or supervision. On July 1, 1993, Dinehart informed
Complainant that her assignment at LANL was terminated. Dinehart
made the decision to terminate Complainant. Complainant contends
that she was discharged from LANL in retaliation for the "threat"
she made to Dinehart, her comment to the DOE auditor, and the
numerous health, safety, and environmental concerns and
complaints she raised throughout her employment at LANL.
Respondent argues that its decision to terminate
Complainant's employment was unrelated to any protected activity
which she may have engaged in. Rather, Respondent contends,
Complainant was terminated for legitimate business reasons. More
specifically, Respondent claims that Complainant was discharged
because: (1) she was an at will employee; (2) she did not take
responsibility for her failure to record the MAS transaction; (3)
she was not a "team player;" (4) she was difficult to work with;
(5) she was unable to adapt to a nonunion way of doing business;
(6) she did not possess the required level of skills for the job;
and, (7) the project she was working on was overstaffed and
underfunded.
[PAGE 3]
Complainant counters that Respondent's proffered reasons for
her termination are merely a pretext and that Complainant was
terminated because she engaged in protected activity.
Alternatively, Complainant contends that Respondent's decision to
discharge her was motivated in part by her protected activities
and in part by legitimate reasons; and, further, that Respondent
would not have discharged Complainant but for the fact that she
engaged in protected activity.
Complainant seeks relief in the form of back pay, front pay,
compensatory damages, and affirmative actions by Respondent.
Complainant does not seek reinstatement.
Procedural History
Upon receipt of the complaint in this matter, the Department
of Labor, Employment Standards Administration, Wage and Hour
Division (DOL) conducted a fact-finding investigation. On August
25, 1994, DOL concluded that no violation of the Act had
occurred. On August 29, 1994, Complainant filed a timely request
for a hearing. A formal hearing was originally scheduled for
February 1, 1995, in Denver, Colorado. Upon Complainant's
unopposed motions, the hearing was rescheduled and held on April
19 and 20, 1995, in Santa Fe, New Mexico. At the hearing,
Complainant's exhibits 1-52 and Respondent's exhibits 1-48 were
received in evidence.[2] Complainant did not testify at the
hearing, but her deposition was received in evidence. On April
17, 1995, upon a joint motion filed by Complainant and Respondent
LANL, I dismissed respondent Ray Rashkin and Associates from this
proceeding. Pursuant to provisions made at the hearing, the
parties submitted proposed recommended decisions and orders on
May 31, 1995.
Summary of the Evidence
Los Alamos National Laboratory is a nuclear facility owned
by the United States Department of Energy (DOE) and operated by
the University of California. Complainant began working at LANL
on March 16, 1992, as an employee of Ray Rashkin and Associates,
a firm which contracts with LANL to supply labor on a temporary
basis. (LX-6.) She worked full time at the rate of $14.42 per
hour. (LX-6,7, 23.) When Complainant began working at LANL, it
was expected that her assignment would last for approximately one
year. (LX-6.) However, in October 1992, when Complainant
transferred to a different division at the Lab, LANL estimated
the length of her assignment to be "indefinite." (LX-23.)
[PAGE 4]
Throughout her employment at LANL, Complainant was classified as
a Technician, Level II ("Tech II"). (LX-6-23.)
Prior to working at LANL, Complainant worked as a technician
at another Department of Energy nuclear facility in Rocky Flats,
Colorado. (Tr. at 257.) A positive letter of recommendation,
dated January 16, 1991, written by Complainant's manager at Rocky
Flats, describes Complainant as a thorough, dedicated worker, a
quick learner, a "team player," and "very safety oriented." (CX-
13 at 27.)
Mark Devolder, a training records administrator at LANL,
participated in the decision to hire Complainant. (LX-6; Tr.
at 246, 256-57.) He testified that Complainant was
"enthusiastically received" at LANL, explaining:
Frances came specifically to Carol [the Deputy Group
Leader] and said, 'I want to work in waste management'
and Carol came back and said, 'we don't get people
coming up and saying they want to work in waste
management.' But Frances said that she saw this was a
wave of a future and Carol thought that was just great
and so she was hired on as a contractor.
(Tr. at 256.) In reviewing Complainant's qualifications,
Devolder learned that Complainant had worked at Rocky Flats and
that she had completed a forty-hour course in waste management.
He described this as "good experience for somebody coming into a
waste management operation." (Tr. at 257.) Devolder testified
that at the time Complainant was hired by LANL he thought she had
many assets to offer the lab and that he still thought so. (Tr.
at 257.)
At LANL, Complainant was initially assigned to work as a
technician in NMT-7, where she worked in the cement fixation
process under Chester Smith. (LX-6, Tr. at 72.) The cement
fixation process involves taking waste which does not meet
regulatory criteria and immobilizing it in cement in order to
meet that criteria. (Tr. at 77.) Pursuant to a reorganization
of NMT-7 during Complainant's assignment, the section of NMT-7 in
which she worked was redesignated NMT-2.[3]
In May of 1992, NMT-2 was "basically shut . . . down" when
LANL announced a moratorium on the generation of mixed and
hazardous waste[4] for which no approved treatment or disposal
method was available (Tr. at 89-90; CX-45, 48.) LANL informed
its employees of the ban in a memorandum which warned workers
[PAGE 5]
that violations of the ban could result in criminal prosecution.
(CX-48.)
In September of 1992, NMT-2 resumed its processing of mixed
waste. (Tr. at 91.) Concerned that she was violating the
moratorium, Complainant asked her supervisor, Chester Smith for a
letter of indemnification from LANL in order to avoid
prosecution. (Deposition of Frances MacLeod at 10-13; Tr. at
91.) Smith testified that other employees, including himself,
shared Complainant's concerns. (Tr. at 84-85.) After Smith
raised the issue with his managers, he told Complainant that they
were not violating the moratorium and that LANL would not provide
her with the requested letter of indemnification because it would
set a precedent for other employees, but that any employee who
preferred not to work in the cement fixation process could move
to another process or another group. (MacLeod Dep. at 11-12; Tr.
at 85.) Mark Dinehart, Complainant's deputy group leader at the
time of her termination, testified that he did not recall
Complainant's request for a letter of indemnification but that he
did discuss the mixed waste issue when another employee, Gene
Jacquez, asked Dinehart to explain the moratorium to him and
Complainant. (Tr. at 373-74.) According to Dinehart, he
explained to Jacquez and Complainant that under LANL policy they
could continue to generate mixed waste if to refrain from doing
so would pose a greater danger. (Id.; see also CX-
49, 51, LX-18.) Nonetheless, Complainant began looking for a new
job at LANL because she was concerned that if she stayed in NMT-
2, she would be engaging in illegal activities. (MacLeod Dep. at
13.)
Complainant negotiated a new job contract at LANL with Mark
Dinehart, who hired her to work on the DCHP project in NMT-3
effective October 27, 1992. (Tr. at 381, LX-23, MacLeod Dep. at
39, check labor release.) Dinehart testified that at the time he
thought Complainant sought the transfer because she was unhappy
working in NMT-2 and that NMT-3 had better assignments. (Tr. at
376.) Dinehart also testified that he did not recall the
transfer being associated with Complainant's request for a letter
of indemnification. (Id.) Dinehart explained that he
chose Complainant for the position because
It's pretty difficult to find individuals with
chemical processing experience, nuclear material
handling experience, and she definitely had that, both
at Los Alamos and at Rocky Flats.
She seemed like a very good worker. She was very
confident of herself. She was able to present her
qualifications and her skills to me in a meeting we had
[PAGE 6]
before, an interview-type situation.
She had a very keen sense, I felt, from either my
interactions with Gene Jacquez or interactions she was
telling me about during that interview of she saw the
world a little bit differently than Los Alamos
employees or myself, and I felt that could be a
benefit, that she might recognize things that we needed
to improve on or fix. I felt that was one of her
strengths.
(Tr. at 381-82.)
Complainant worked in NMT-3 from October 27, 1992, until she
was discharged by Respondent on July 2, 1993. Benjie Martinez
supervised Complainant in NMT-3 until March of 1993, when he
requested a job reclassification from a supervisory technician
(Tech VI) to a non-supervisory technician (Tech V). (Tr. at 113,
116.) The vacancy created by Mr. Martinez's reclassification was
never filled; consequently, the next person in the chain of
command, Mary Ann Reimus, became Complainant's supervisor.[5]
(Tr. at 116.) Reimus's position in NMT-3 was as a "techniques
staff member" in the pyrochemical section of NMT-3; she is a
physical scientist and not a technician, like Martinez or
Complainant. During the 1992-1993 time frame, Reimus was mainly
in charge of MSC, but she was also in charge of setting up some
instrumentation to do particle analysis and surface area
analysis. (Tr. at 160.) In early 1993, Reimus took on the
additional responsibility of helping with the DCHP experiments
for the aqueous chloric section where Complainant worked. Her
duties at that time were distributed between those three
activities.
Complainant worked in Room 420 of NMT-3. During the time
she was supervised by Benjie Martinez, two job activities were
taking place in Room 420: the DCHP experiments and the
installation of EXCEL.[6] (Tr. at 110.) The DCHP experiment
involved "precipitating plutonium" - a purification process for
transforming plutonium from a liquid to a solid form for the
purpose of storing it. (Tr. at 110.) The installation of EXCEL
involved installing four new gloveboxes into Room 420. (Tr. at
111.) A glovebox is a windowed box containing plutonium with
attached leaded gloves through which workers perform a variety of
procedures involving plutonium. (Tr. 111.)
Throughout her employment at LANL, Complainant raised
numerous environmental, health and safety concerns with
management, the controversy over the mixed-waste moratorium being
[PAGE 7]
just one such example. (See, e.g. CX-25.) Having worked
at Rocky Flats, Complainant had a basis for comparing the safety
related practices and procedures at Rocky Flats and LANL.
Complainant's habit of voicing safety concerns, praising Rocky
Flats and complaining about LANL for their respective safety-
related practices and procedures, did not go unnoticed by her
coworkers and supervisors. As one LANL employee, Gene Jacquez,
testified, "there was a big joke that Frances always thought that
Rocky Flats was better than Los Alamos National Laboratory, so
nothing was ever good enough at the lab." (Tr. at 469.)
While the ERA protects employees who raise internal
complaints from retaliation, it is not necessary to summarize the
evidence related to each of the numerous environmental, health
and safety concerns which Complainant raised with management.
Complainant's allegation that she was terminated in retaliation
for engaging in protected activity is based primarily on three
grounds: her disclosure of a leaking tank to a DOE auditor, the
threat she made to Dinehart to report that she had performed work
without the requisite certification or supervision, and an
ongoing controversy between Complainant and management regarding
her absence from PF-4. Thus, although Complainant's reputation
for registering safety-related complaints is significant, I only
summarize in detail the evidence related to these three issues.
The ALARA Controversy
While assigned to NMT-3, Complainant worked in PF-4,[7] a
"hot" area where plutonium is kept. (Tr. at 122.) The glovebox
area, or laboratory, was located in Room 420 within PF-4;
computers and a lounge area for technicians were located in the
mezzanine which was also in the hot area. The mezzanine was
separated from the glovebox area such that it was not visible
from Room 420. (Tr. at 446.) PF-3 is cold laboratory space
approximately 200 yards from PF-4. (Tr. at 124.) The women's
change room, and the office of staff members, including Dinehart
and Reimus, were located in PF-3. (Tr. 423-425.) Gene Jacquez's
work area was also located in PF-3.
A certain amount of radiation exposure is inevitable at LANL
given the nature of the work. (See Tr. at 123-24.)
There is background exposure to radiation in the laboratory, but
it is very low and exposure levels are continuously monitored.
(Tr. at 389, 391.) "ALARA" stands for "as low as reasonably
achievable" and refers to a policy that "[l]aboratory managers .
. . ensure that personnel exposure to radiation is kept as low as
reasonably achievable." (LANL Environment, Safety, and Health
Handbook for
[PAGE 8]
Employees, CX-42 at 238.) Joel Williams, the group leader of
NMT-3 (Dinehart's superior) explained that there are
three principles that apply to ALARA. The time you
spend near a source; the shielding that you may have to
help mitigate the radiation of that source; and the
distance that you are from that source.
(Tr. at 441.)
Complainant, citing adherence to the ALARA policy, believed
that technicians should be in PF-3, in the cold area, unless
there was specific work to perform in PF-4. (Tr. at 124, MacLeod
Dep. at 61-62, 107.) Thus, in Complainant's view, the mezzanine
was an inappropriate area for technicians to spend their down
time. Complainant explained that she was not concerned about
background exposure to radiation in the mezzanine but rather, the
risk of exposure in the event of an accident:
my concern was that if you had a release downstairs,
the only way out was you had to go down the stairs to
exit the mezzanine, you would have to walk through it,
and you could not get your respirators without having
to walk through something.
(MacLeod Dep. at 107.)
Complainant raised her ALARA concerns with Martinez, Reimus,
and Dinehart. (Tr. at 124, 205, 386.) Joel Williams also knew
about Complainant's position on ALARA. (Tr. at 453.) Dinehart
testified that he took Complainant's concerns very seriously and
installed a radiation detection device in the mezzanine, though
the device could not measure the radiation level since it was so
low. (Tr. at 389-90.) Complainant, however, felt that the
detection devices did not address her concern with exposure in
the event of an accidental release. (MacLeod Dep. at 107.)
A conflict arose between Complainant and Martinez over her
ALARA position because she left PF-4 unless she had specific
tasks to perform. (Tr. at 124, 138, 140-41.) The conflict
continued until Martinez stepped down from his supervisory
position in March of 1993. Martinez felt that Complainant should
have stayed within PF-4. (Tr. at 137-140.) Though Complainant
was never disciplined for continuing to leave PF-4, Dinehart
said he discussed the ALARA issue with Complainant several times.
(Tr. at 126, 188, 421.) Despite the continuing controversy over
ALARA, Dinehart acknowledged that no one considered Complainant
[PAGE 9]
to be insubordinate. (Tr. at 348.) According to Williams, it is
management's responsibility to determine where employees are to
work and the conditions in which they work. He added, however,
that if there are issues regarding safety or work assignments,
those are worked out jointly between the employee and management.
(Tr. at 439-440.)
After Complainant's discharge, LANL created a "tech office"
with computers, chairs and storage space for safety manuals and
the like. (Tr. at 453-54.) The tech office is in PF-3, a cold
area.
The Leaking Tank Incident
On June 23, 1993, a Department of Energy auditor went to PF-
4 to audit the sampling of "accountability" or "slab" tanks where
plutonium solutions are kept. (Macleod Dep. at 72; Tr. at 182.)
At some point prior to the auditor's visit, one of the tanks
leaked and some of the plutonium solution spilled on the glove
box floor; according to Reimus "it was a mess." (Tr. at 185.)
According to Complainant, she told the DOE auditor that she
"had found the results for the tests that we had taken before,
and from when the tank leaked." (MacLeod dep. at 72.)
Complainant thought that the auditor was aware of the tank leak.
[(Cx-25 at 99.) In response, the auditor asked "what tank leak?"
(MacLeod Dep. at 72-73.) At that point, according to
Complainant, David Romero looked at her "really mad." (MacLeod
Dep. at 72-73.) Fearing reprisal, Complainant changed her story
and told the auditor that she was mistaken: she was thinking of a
different tank. (MacLeod Dep. at 73.) Later, when she told
Reimus about the incident, Complainant said that Reimus
reprimanded her and told her "never ever tell the DOE anything
extra that they don't need to know[, a]nd that if we told them
everything, we wouldn't get anything done around here." (Macleod
Dep. at 72-73.) Complainant also stated that Reimus told her
before the audit not to tell the DOE anything. (Macleod Dep. at
75.)
Reimus testified that she heard Complainant tell the auditor
about the leaking tank because she was in the room. (Tr. at
185.) Reimus acknowledged meeting with Complainant after the
audit and telling her "not to offer extraneous information while
there was an audit being conducted." (Tr. at 186.) Although
Reimus did not know whether it was LANL policy or standard lab
practice, she conceded that most LANL employees would agree that
employees should not volunteer information to auditors. (Tr. at
[PAGE 10]
186-87.) Reimus explained further that Romero had been appointed
the technical point of contact for the auditors: Romero was the
employee appointed to sample the tank for the auditor. (Tr. at
219-20.) Complainant's comment about the leaking tank was
"extraneous" according to Reimus, because the auditor was there
to audit the sampling of the tanks. (Tr. at 221.)
According to Romero, he "was supposed to work the gloves and
. . . Reimus was supposed to be with the auditor," so that he
would do the practical work and Reimus would answer any of the
auditor's questions. (Tr. at 333-34.) Romero recalled:
[Complainant] was around the auditor and Mary Ann
Reimus and -- in the middle area and I was in the front
of the glove box and I remember something where -- sort
of like the audit team just sort of stopped, everything
just sort of got quiet when I guess Ms. MacLeod said
something to either Mary Ann or the auditors and I
didn't know what she said but I guess everything
resolved later or whatever happened was not discussed
during the audit.
(Tr. at 334-35.)
Mark Dinehart testified that he became aware of this
incident when either Reimus or Martinez or Romero told him about
it. (Tr. at 351-52.) He discussed the matter with Reimus and
agreed with her position that they should not offer extraneous
information to the auditors insofar as that meant that "we would
talk to the auditors about what they were there to talk about
specifically and not divert from that issue very far." (Tr. at
352.)
The Certification Complaint
After working at LANL for several months, Complainant
realized that she had been performing various procedures for
which she lacked the requisite certification, such as bag outs,
running the trolley, and pulling samples. (MacLeod Dep. at 39-
40.) Pursuant to Department of Energy regulations, a formal
certification process must be in place at a facility such as LANL
in order to ensure that work is performed only by trained
individuals. (Tr. at 249-50; 247; LX-2(a); see also CX-20
at 38.) According to the training records administrator for NMT-
2 in 1992, Mark Devolder, certification and the corresponding
training programs are important to occupational health and safety
because:
[PAGE 11]
The Department of Energy would not accept just turning
somebody loose in a facility like TA-55 and . . . let
them do whatever they wanted to do, you know, even if
they had worked at another nuclear facility or another
chemical plant. The DOE wants to be very sure that
people are trained to site-specific [sic] requirements,
emergency requirements or process operating
requirements.
(Tr. at 251.)
Devolder explained that at the time of Complainant's
employment at LANL, the process for training and certifying
employees varied depending upon the procedure, the employee's
supervisor and/or her group. (Tr. at 253-55.) Typically,
however, an employee became certified on a procedure after
receiving general training at LANL's training center and on-the-
job training under a specific supervisor who monitored the
employee's progress. (Tr. at 247.) The employee's knowledge of
the procedure was then tested by a written or oral exam or by a
demonstration. (Tr. at 253, 255.) If the employee passed the
test to the satisfaction of the supervisor, then the employee was
given a certification to perform the particular procedure. (Tr.
at 247.) Thus, an employee who was not certified in a particular
process could perform the procedure only if a certified
technician was present to supervise the work. (Tr. at 177, 179-
80.) According to LANL's Personnel Training and Certification
Procedure, technical management is responsible for assuring
that work is performed by certified personnel. (CX-39 at 205.)
Complainant initially thought she was allowed to perform
various procedures because she had received formal training to do
so at LANL's training center. (MacLeod Dep. at 40.) When she
transferred to NMT-3, she learned that she also needed on-the-job
training and certification. (MacLeod Dep. at 43.) Concerned
that she had performed work without the necessary certification
while assigned to NMT-2, Complainant raised the issue with
Devolder. (Tr. at 251.) Devolder then contacted Chester Smith,
Complainant's supervisor in NMT-2 and based on the information he
received from him, Devolder determined that although Complainant
had not been certified in the cement fixation process, she had
worked as a trainee under Smith's guidance. (Tr. at 251.)
Complainant testified that Devolder and Smith argued with her and
said that if a Radiation Control Technician was present, then
Complainant was allowed to perform the procedures in question.
(Macleod Dep. at 14.) Moreover, although Complainant concedes
[PAGE 12]
that Radiation Control Technicians were present "at times" while
she performed work for which she was not certified, she testified
they could not train her because their job is to protect workers
from contamination. (Macleod Dep. at 43.) In any event,
Complainant contends that she sometimes worked alone or with
uncertified employees. (Macleod Dep. at 44.)
While Devolder was satisfied with Smith's explanation,
Complainant was not. According to Devolder, Complainant said
that the facility could be shut down, to which Devolder responded
"If you really believe," you know, "that the facility
could be shut down, that's something I need to go to "
-- you know -- "work up through the chain of command
with, even if I have to go to Del Harbur," [the
division leader].
(Tr. at 281.) In contrast, Complainant contends that Devolder
and Smith "threatened to take [her] to Del Harbur," the division
leader. (Macleod Dep. at 14.) Complainant explained that she
interpreted this as a threat because she thought it meant that
she was going to get fired by Mr. Harbur. (MacLeod Dep. at 52-
53.) Complainant explained further that she refused to go and
the matter was dropped because she transferred to another group,
NMT-3. (Macleod Dep. at 53-54.)
While assigned to NMT-3, Complainant worked in a glovebox
performing hydroxide precipitations (HP's), one of the four
processes which make up the DCHP experiment.[8] (Tr. at 112.)
Most new employees in NMT-3 begin by learning the HP procedure
because it is basic and they must become certified on it. (Tr.
at 134-136.) While working under Martinez, Complainant became
certified to perform the HP process; she never did become
certified to perform the other three procedures that make up the
DCHP experiment. (Tr. at 135.) According to Martinez, LANL
wants new employees to learn one process at a time, although the
processes are related. (Tr. at 135-136.) Martinez did not
permit Complainant to work on the other DCHP processes. (Tr. at
120.) After Martinez stepped down from his supervisory position
in March of 1993, Reimus allowed Complainant to work on the DCHP
project because, as Reimus explained they "were under a crunch,
there was a lot to do" and Complainant was available and
enthusiastic. (Tr. at 163.)
According to both Complainant and Reimus, a problem arose
between Complainant and a coworker, David Romero, when
Complainant began working on the DCHP experiment. Romero told
[PAGE 13]
Complainant that she was not supposed to be working on the DCHP
experiment. (Tr. at 167, Macleod Dep. at 67.) Both Reimus and
Complainant testified that Reimus responded to Complainant's
complaint by meeting with her and Romero and explaining to Romero
that Complainant was supposed to assist with the DCHP experiment
when work was slow, that is, when Complainant did not have HP's
to do. (Tr. at 163-66; 218-19; Macleod Dep. at 67-68.) Reimus
also testified that after the meeting, Complainant complained
again that Romero was not helping her on the DCHP process and
Romero told Reimus that he tried to help Complainant but that she
was difficult to work with. (Tr. at 218-19.) Reimus said she
attributed Complainant's and Romero's difficulties working with
each other to a "communication problem." (Tr. at 219.)
Romero's testimony differs markedly. He stated that he
never told Complainant that she should not work on the DCHP
experiment. (Tr. at 324.) Nor could he recall meeting with
Reimus and Complainant together to discuss the issue, though he
does concede that Reimus may have met with him alone. (Tr. at
325.) Moreover, Romero testified that he did not see himself as
a supervisor, instructor, or teacher to Complainant and that he
had no instructions to play that role. (Tr. at 326.) Rather,
Romero saw himself as "just a coworker" to Complainant.
(Id.) He described their relationship thus:
Well, as two people working on a process, I just
considered myself -- I was -- if I was working and she
was -- she was working along side me, I had no major
gripes about, you know, working with her. I just sort
of did my job and whatever she had to do, she did. If
she did it, fine, if not I had to work -- I had a job
to do and I did my job and I didn't really go into her
work day to instruct her for anything.
(Tr. at 327.)
Romero also testified that he was certified on the DCHP
process, and although he did not know whether Complainant was
certified on it, she did not know as much as he did about the
DCHP experiment. (Tr. at 326.) Moreover, according to Romero,
he did not explain the DCHP procedures to Complainant, but he did
explain the "experimental plans as to what [they] were doing in
the experiment." (Tr. at 329.) On occasion, Complainant
responded by asking Romero questions which he characterized as
sometimes an attempt to learn and sometimes an exercise in
argument. (Tr. at 330.)
[PAGE 14]
On June 25, 1993, Complainant pulled a sample of "special
nuclear material" (SNM),[9] and brought it to the sample room in
NMT-4, but failed to document it on "MAS," a computerized system
for tracking the movement of SNM. (Tr. 168-70; MacLeod Dep. at
77-78.) According to Complainant, she did not record the
movement of the sample on MAS because she "didn't have
documentation to follow when [she] was doing these procedures"
and was without supervision, though she conceded that she could
have called someone for assistance. (MacLeod Dep. at 78, 85-86.)
Reimus testified that she was not present when Complainant took
the sample and she did not know if Romero was present; nor did
she investigate whether anyone else was present when the mistake
was made. (Tr. at 178.) Reimus became aware of the error when
someone from NMT-4 notified her that a sample was in the sample
room, but not on MAS. (Tr. at 169.)
According to Reimus, when she confronted Complainant about
the incident the next day, Complainant acknowledged her error and
explained that "she felt rushed, there [were] a lot of things to
do and she just must have forgot." (Tr. at 174.) Because
Complainant had made the same mistake before and received a
verbal reprimand, Reimus wanted to document this second incident
and her reprimand of Complainant by putting into Complainant's
file a "memo describing what happened and . . . how to prevent
this from happening again." (Tr. at 172-73; MacLeod Dep. at 82.)
When Reimus told Complainant that she wanted to document the
incident, Complainant tried to "defend the fact that she made
this mistake by saying, well, she did this for DCHP. She wasn't
certified on DCHP. She didn't think that she should be
reprimanded for that 'cause she wasn't certified on DCHP." (Tr.
at 174-75.) Later, Complainant called Reimus and told her that
she was still concerned about the matter and that she did not
want Reimus to put a letter in her file, explaining that the more
she thought about it, the more unfair it seemed since she was
uncertified, unsupervised and without procedure or documentation
to follow. (Tr. at 176; MacLeod Dep. at 85-86.) In response,
Reimus brought Complainant to meet with Dinehart, Reimus's
supervisor, to discuss the matter. (Tr. at 176.)
Reimus stated that Complainant did not retract her admission
that she made the mistake at the meeting with Dinehart. (Tr. at
177.) She did, however, say that "she did not feel she should
have a letter put in her file because she was doing this in the
course of the DCHP work, she wasn't certified on the DCHP work so
she shouldn't be held accountable for the mistake." (Tr. at
177.) She also complained of not having the supervision of a
lead tech. (Id.) Furthermore, according to Reimus,
Complainant
[PAGE 15]
"said something to the effect that if she was going to be held
accountable, then everybody on up the line should be held
accountable." (Tr. at 181.) Reimus conceded that if on the
assumption that no other tech was present and therefore an
uncertified person had performed this task, either Reimus or
Romero should have been disciplined because they were the only
two people who were certified on that procedure. (Tr. at 182-
183.)[10]
Similarly, Dinehart testified that at the meeting
Complainant discussed the fact that she was not certified and
without supervision. (Tr. at 370-371.) He also testified that
Complainant said "she would make people accountable for this and
people would get in trouble for it or something." (Tr. at 370.)
Dinehart acknowledged that he viewed this as a threat "somewhat."
(Tr. at 370.)
After Complainant's termination, the DOE conducted an
investigation of the safety violations at LANL alleged in
Complainant's complaint. (LX-42.) The DOE report documenting
the results of its investigation substantiated Complainant's
allegation that she performed procedures for which she was not
certified at the direction of supervisors. The report notes that
LANL management acknowledged that, in the past, it was
possible for unqualified and/or incompletely trained
technicians to perform standard operating procedures
and that documentation of on-the-job-training for a
specific procedure was not always complete and current.
(LX-42.) Moreover, the DOE found that "the primary work control
to ensure that only qualified individuals performed assigned
tasks was an administrative one between the supervisors and the
workers," though "there have been past examples of workers
assigned to perform work without having completed the formal
training." (Id.)
The DOE investigators also substantiated Complainant's
allegation that a technician was contaminated by radioactive
material in part due to the lack of training and qualification
for the task she was performing. In reviewing the Radiological
Incident Report and Occurrence Report for the event, the DOE
found no mention of unqualified personnel being a contributing
factor to the event. (Id.)
By the time of the DOE investigation in January of 1994,
LANL established the Area Work Supervisor position to provide
coordination and better controls for all work, including ensuring
[PAGE 16]
that worker qualifications are complete and current. Thus, the
DOE investigators concluded that "[e]ffective implementation of
the Area work Supervisor concept will provide verification that
. . . certification is current." (Id.)
Respondent's Termination of Complainant
According to Dinehart, after Complainant left the meeting he
spoke with Reimus about the "fact that [Complainant] didn't
accept ownership of this issue," meaning that she did not accept
responsibility for the mistake. (Tr. at 404-405.)
Significantly, Dinehart testified that Complainant's threat to
hold him and the chain of command responsible "contributed" to
the decision to terminate her "[i]n the sense that [Complainant]
was not taking ownership of the issue." (Tr. at 371-72.)
Dinehart explained further that Complainant would not have been
terminated if she had said "I recognize I made a mistake. It is
the second time I've made this mistake. I either don't
understand the process or I need some help on it or I need to pay
more attention to this part of the experiment." (Tr. at 406.)
Immediately after the meeting, Dinehart and Reimus discussed
how they should document the matter, but they did not have a
specific action in mind at that time. (Tr.. at 404-405.) Later,
according to Dinehart, he attempted to meet with Complainant
again but
[s]he refused a couple of times . . . . Actually it was
kind of hard to even locate her to get her to refuse to
meet with me. But when I felt that she was refusing
and it was not a good situation, I felt it was my
responsibility at that point to notify our security,
accountability organization and have her MASS
privileges removed and her access to the nuclear
material facility.
(Tr. at 407.) Dinehart described his next course of action thus:
I think we sat down and discussed whether this was
really worth it and whether, I think Mary Ann came and
said this just isn't providing any service to the
experiment. We're spending a lot of time on this
issue. The experiment's kind of winding down or
getting close to being done. I think it just became
apparent that we weren't really in need of her services
anymore. And if we couldn't have discussions and
things with her and try to resolve the problem, I don't
[PAGE 17]
know where we're going to get to.
(Tr. at 409.)
Dinehart had called Contract Personnel Services about getting a
meeting together when Complainant told him that she had set up a
meeting with her contract representative. (Tr. at 410.)
Meanwhile, Dinehart explained that the first meeting caused him
to think about other issues regarding Complainant and had
received clearance from his management to terminate Complainant's
employment. (Tr. at 405, 411.) However, Dinehart testified that
when the second meeting commenced on July 1, 1993, he had not
made up his mind to terminate Complainant, though he had
discussed the possibility with his management, Reimus, and Karen
Burkette, from Contract Personnel Services, and it "was a likely
event." (Tr. at 411.) Specifically, Dinehart testified that he
and Reimus determined that they could complete the DCHP
experiment without Complainant's assistance. (Tr. at 419.)
Reimus testified that in between the first meeting on June
28, 1993, and the second meeting on July 1, 1993, she learned
that Dinehart had decided to terminate Complainant. (Tr. at
189.) She further testified that Dinehart did not discuss the
reasons for Complainant's termination except to say that funding
for the project was running out, the project would be coming to a
close at the end of the year, at which point Complainant "would
have been let go." (Tr. at 189-90.)
On June 29, 1993, two days before the second meeting, a
termination notice was sent to Complainant from her contractor,
Ray Rashkin and Associates (RRA). (LX-36; Deposition of Rose Ann
Casale at 15-16.) Rose Ann Casale, Complainant's contact at Ray
Rashkin and Associates signed the termination notice which was
effective July 2, 1993. (LX-36.) Casale explained that it is
standard operating procedure to send out a termination notice if
their client tells RRA that an employee is being terminated or
laid off. (Casale Dep. at 16.) Complainant contends that when
she received the termination notice from Casale, she telephoned
Casale who told her to ignore the letter because it was an
accident. (MacLeod Dep. at 13.) At that point, Complainant
faxed a letter to Casale outlining the events of the preceding
week and her view of the situation. (LX-35; Casale Dep. at 15.)
Dinehart informed Complainant that LANL "no longer needed
her services" at the second meeting, held on Thursday, July 1,
1993, and attended by Dinehart, Complainant, Casale, and
Burkette. (Tr. at 411; LX-37; Casale Dep. at 13.) Dinehart
[PAGE 18]
testified that at the meeting they discussed Complainant's
refusal to meet with him, the MAS incident, Complainant's absence
from PF-4, the fact that she was not contributing to the
experiment and other "general problems." (Tr. at 410.)
According to Casale, she learned of Dinehart's reasons for
terminating Complainant at the meeting: she was not a team
player; she had problems with co-workers [sic]; and she had a
"Rocky Flats mentality." (Casale Dep. at 14-15.) Complainant
recalled Dinehart saying that she was not a team player and that
he had pulled her aside several times to talk to her, but she
maintains that he never did so. (MacLeod Dep. at 108.)
After the meeting, Dinehart wrote an internal memorandum to
Karen Burkette, documenting the reasons for Complainant's
termination. (LX-37; Tr. at 412.) Dinehart testified that he
had asked Burkette and Casale prior to the meeting if he needed
to generate the memo in order to provide some justification for
Complainant's termination and they told him it was not necessary
since he could end her assignment at any time. (Tr. at 412.)
But Burkette called Dinehart after the meeting and asked him to
write a memo documenting the reasons for Complainant's
termination. (Tr. at 412.) In pertinent part, the memo reads:
Several reasons exist for our rather abrupt
termination of this contract employee. The primary
reason for her termination is her inability to work as
a member of a team. Co-workers [sic] and supervisors
have complained that she is difficult to work with.
Frances has not been able to adapt to a non-union way
of doing business. She has some previous work
experience at Rocky Flats and has carried this "union
mentality" over to this job.
In addition, her level of skills is far below what
we expected when we hired her. Although she is
familiar with Special Nuclear Materials (SNM) related
work from her previous experience with NMT-2 and at
Rocky Flats, she has very few skills related to the
chemical processing of SNM. We have had to spend a
great deal of time training her to perform very basic
tasks.
Finally our work load and mission is constantly
changing with the significant changes in world
politics. We currently find ourselves overstaffed and
can easily reassign Laboratory employees with equal or
greater skills to fill this position.
(LX-37.)
[PAGE 19]
Dinehart elaborated on these reasons at the hearing. First,
he explained that when he stated that the primary reason for
Complainant's termination was her inability to work as a member
of a team and that coworkers and supervisors found her difficult
to work with, he did not mean that Complainant did not get along
well on a personal level with her coworkers and supervisors.
(Tr. at 414.) Rather, he was referring to the fact that
Complainant "didn't act as a member of [the] team because she
wasn't available in the workplace." (Tr. at 414.) Second,
Dinehart explained his statement regarding Complainant's
inability to adapt to a nonunion way of doing business:
What that means to me is that a union technician
work force does the job much differently than a Los
Alamos, a non-union [sic] work force . . . [insofar as]
a union work force is very compartmentalized, does one
singular task, doesn't understand the entire scope of
the process[,] whereas [at] Los Alamos we expected them
to understand the entire scope of the process . . . and
not be just focused on one small task.
(Tr. at 415-416.) According to Dinehart, Complainant carried
this "one-task" mentality from Rocky Flats to her work at LANL.
(Id.) Dinehart also acknowledged that his statement
regarding Complainant's union mentality referred in part to some
of the environmental, safety, and health concerns she raised at
LANL. (Tr. at 358-60.)
Third, Dinehart stated that he became aware of Complainant's
lack of chemical processing skills when she asked for a
reclassification from a Tech 2 to a Tech 3 in March of 1993.
(CX-28; Tr. at 398-99.) In response to Complainant's request,
Dinehart asked Reimus to determine whether Complainant should be
advanced to a higher position. (CX-28; Tr. at 399.) In the
process of this evaluation, Dinehart testified that "[i]t became
very obvious to [Reimus] and I that [Complainant] barely had the
level of skills to be at the technician level that she was right
then, a Level 2." (Id.). Dinehart explained further that
Complainant did not "have near the broad base of skills that we
expected." (Id.) Accordingly, Dinehart and Reimus wrote
a job description tailored to Complainant and specifying that she
"[b]e present for all experiments [in order] to learn all steps
of the process." (CX-29; Tr. at 384.) Additionally, Dinehart
testified that when he personally certified Complainant on a
procedure he observed that "she didn't have a very good grasp of
general chemistry." (Tr. at 417-18.)
[PAGE 20]
Finally, Dinehart explained his comment regarding the fact
the DCHP project was overstaffed:
That was kind of an ending statement. . . . This
project had a very definitive time. Money was running
out at a certain time. It was a pretty small project.
I just felt that we weren't going to continue this, and
indeed, that project didn't continue.
(Tr. at 418.)
Other witnesses at the hearing also testified regarding
Complainant's skill level, her union mentality, her relationship
with coworkers and supervisors, and most extensively regarding
her absence from PF-4. Chester Smith, Complainant's supervisor
in NMT-2 from March 1993 to October 1993, testified that
Complainant was intelligent and conscientious, explaining
further:
She was looking at things, what we were doing, and
bringing up suggestions of how we could change things,
how we could do things a little bit different and what
have you like this. And that shows me that, yes, the
person is conscientious of what they're doing and they
are trying to work forward in the process.
(Tr. at 75.) Smith added that Complainant exhibited initiative
and made a good effort in completing her work. (tr. at 75-76.)
When Complainant transferred out of his section, Smith asked her
if she would reconsider her decision to leave NMT-2 because, as
he explained, "I considered her to be valuable in the sense that
I had already spent several months trying to get her up into a
certification state." (Tr. at 76.) Regarding Complainant's
relationship with coworkers, Smith stated that she got along fine
insofar as no difficulties were brought to his attention. (Tr.
at 106-107.) Smith did note, however, that Complainant would
comment on how things were done differently at Rocky Flats. (Tr.
at 86.)
Prior to Complainant's termination, no one asked Smith about
Complainant's job performance. More specifically, no one asked
Smith whether Complainant had difficulty being a team player or
getting along with coworkers and supervisors, whether she had a
union mentality or whether Smith had to spend a great deal of
time training Complainant to do basic tasks. (Tr. 104-105.)
[PAGE 21]
Benjie Martinez, Complainant's second supervisor, initially
characterized her as an average worker, who attempted to do the
tasks assigned to her, treated Martinez respectfully and did not
argue when assigned tasks. (Tr. at 117-121.) Martinez also
conceded that at her initiative, Complainant asked to learn DCHP
processes in an attempt to enhance her professional credentials.
(Tr. at 117-121.) Martinez later testified that Complainant was
a "terrible" or "below average" employee who was often absent
from the work area, lacking in initiative to do work other than
what was assigned, always complaining about some health and
safety issue by comparing LANL to Rocky Flats,[11] and weak in
chemistry skills. (Tr. at 138, 145-46, 149, 152-53, 155.)
Reimus, Complainant's third and final supervisor, became
involved in the DCHP experiment at least one month prior to
Martinez's departure. (Tr. at 162.) During that time, she
testified that Martinez did not voice any criticism of
Complainant other than that "she was hard to find at times."
(Tr. at 162.) On the other hand, Reimus testified that
Complainant did not have strong chemistry skills. While
Complainant knew the chemistry for hydroxide precipitations, she
did not know it for the DCHP experiment. (Tr. at 196-97.)
Reimus also testified that she expected Complainant to be
certified on DCHP procedures prior to her termination, but she
was not. (Tr. at 202-203.) Although Reimus had difficulty
recalling the reason why Complainant was not certified, she
stated that she felt Complainant was deficient in both technical
knowledge and on-the-job training. (Tr. at 202-205.) According
to Reimus, Complainant did not take initiative to learn. (Tr. at
215.)
Reimus testified that she did not tell Dinehart that
Complainant had a union mentality. (Tr. at 191.) Indeed, when
asked if Dinehart and she discussed Complainant's job performance
prior to her termination, Reimus mentioned only the discussion
she had with Dinehart around March of 1993, when Dinehart asked
Reimus whether Complainant should be promoted. (Tr. at 191-193.)
Reimus said that she told Dinehart at the time that Complainant
was not ready for the promotion because she was not certified on
the DCHP experiment yet and she needed more experience. (Tr.at
193.) Furthermore, Reimus recalled telling Dinehart that "she
may not be ready for [the promotion] yet but given time back in
the plant and given more experience, she would eventually be
ready to move up." (Tr. at 193.)
David Romero, Complainant's coworker at the time of her
termination, testified that he had an "okay" working relationship
[PAGE 22]
with Complainant and that he did not see her have any problems or
conflicts with coworkers or supervisors. (Tr. at 322-323, Tr. at
327.) Neither Dinehart nor Reimus ever asked him for information
regarding Complainant. (Tr. at 323.)
Brenda Griego, who worked in the same section as Complainant
for a few months under Martinez's supervision, testified that
Complainant had a good working relationship with her coworkers,
including Griego herself, and her supervisors. (Tr. at 313.)
Griego, however, also stated that she did not have much of an
opportunity to observe Complainant. (Id.) Neither Reimus
nor Dinehart ever asked Griego for information regarding
Complainant. (Tr. at 317.)
Mary Esther Huerta worked with Complainant for approximately
one week in PF-4, NMT-3. (Tr. at 296.) She recalled Complainant
discussing safety concerns at LANL in comparison to Rocky Flats.
(Tr. at 297.) Additionally, Huerta testified that Complainant's
relationship with her coworkers and supervisors "seemed fine,"
adding that "[w]hen you work inside the plant, everybody works in
close contact." (Tr. at 303-304.)
Gene Jacquez, a Mechanical Technician in NMT-2, was neither
a supervisor nor a coworker of Complainant's, yet they developed
a business relationship that developed into a social relationship
during her employment at LANL. (Tr. at 464-466.) Complainant
asked Jacquez for help with computer questions, chemistry and
math questions, and safety-related questions. (Tr. at 466.)
Jacquez testified that Complainant's presence in his office
interfered with his ability to work and that she made personal,
long-distance telephone calls from his office for which he had to
answer to his supervisors. (Tr. at 469, 486-87.) Additionally,
Jacquez testified that he witnessed Complainant refuse her
supervisors' requests to return to her work site on a few
occasions. (Tr. at 476-77.)
Michelle Ferran, a Technician Level V during 1992 and 1993,
worked for a different group than Complainant, but became
acquainted with her and worked with her in Jacquez's office.
(Tr. at 501-502.) Based on her experience helping Complainant
with an assignment for Martinez, Ferran testified that
Complainant "did not understand either math or the sciences."
(Tr. at 503.) Moreover, Ferran recalled assisting Complainant
with EXCEL, a computer program. (Tr. at 505.) Ferran also
testified that "quite a few people" made personal, long distance
telephone calls from Jacquez's office. (Tr. at 523.)
[PAGE 23]
Evidence Regarding Complainant's Absence from her Worksite
Complainant's first supervisor, Chester Smith, stated that
he had no attendance problems with Complainant until the last few
weeks of her assignment in NMT-2, when Complainant was
negotiating a new contract. (Tr. at 80.) During that time
period, Smith had a great deal of difficulty locating
Complainant. (Id.)
Martinez testified at length regarding Complainant's absence
from the work area. Complainant's absence from PF-4 was a
problem for Martinez because she was not readily available to
assist him such that it was easier for him to do the work rather
than leave the area to find Complainant. Although PF-4 is only
approximately 200 yards from PF-3, going from PF-4 to PF-3 takes
time because of the monitoring system one must go through before
exiting a hot area. (Tr. at 124-125.) Moreover, in Martinez's
opinion, Complainant's absence from PF-4 caused her to miss
training opportunities and thereby impeded her progress toward
certification on the DCHP experiment. (Tr. at 140-41, 144.)
Martinez responded to the problem by instituting a system
for documenting his, Brenda Griego's,[12] and Complainant's
time. (Tr. at 121-22.) Although Martinez testified that he
implemented the system on account of Complainant's behavior
alone, his diary indicates that Griego also left PF-4 during work
hours. (Tr. at 121-22, CX-21.) The record includes Martinez's
diary for five days in January of 1993. (CX-21.) The entry for
January 4, notes that Griego was taking 1.5 hours of sick leave
for a doctor's appointment. (Id. at 60.) The January 8
entry notes that on January 6 "Brenda left for lunch a 1/2 hour
early," and that she "called from the change room at 8:20 a.m.,
she had just made it in because of the snow." (Id.) It
is also clear from Martinez's diary that other employees not
under his supervision left PF-4 during the work day. Martinez's
entry for January 13th is illustrative:
Yesterday Brenda made it in at 8:00 a.m. and
Frances called me at 8:30 a.m. She was up front
looking for and testing some heating elements. She was
also reading literature for the fume scrubber. She
spent the day at PF-3. Brenda got sick before lunch
and she went to the locker room. She spent the rest of
the day there. Richard Dye and Mike Palmer were in
class, so that left Chap, Wilma, and myself in PF-4.
Chap changed 8 glovebox gloves and Wilma changed
another 6 in the morning and she left PF-4 at 11:20
[PAGE 24]
a.m. She didn't come back until 2:30 p.m. She didn't let no one
know where she was during that time. I asked her where she was
when she came back and she said that she was at Mark's office. I
asked Mark and he said she was there at 1:00 for about 15
minutes. Wilma changed another two gloveboxes when she came
back.
Today Brenda called in sick. Frances called at
8:00 a.m. Rich and Mike are in class again. Chap is
off today. Wilma came in at 8:05 a.m. Wilma and
Frances cleaned the hydroxide box today. They left for
break at 9:00 and came back at 9:40. They left for
lunch at 11:25 and came back at 12:55. They left for
break again at 2:00 and came back at 2:30. I helped
them clean the box. I also installed a window on the
EXCEL line and escorted EM-7 personnel into PF-4, Rm.
420 so they could count the gloveboxes. Wilma and
Frances finished cleaning the box at 3:00 and they left
PF-4. I didn't see them for the rest of the day.
(CX-21 at 62.)
The subsequent entry in Martinez's diary notes that he told
Brenda Griego and Complainant that he would start documenting
their time. He also notes that he "reminded them" of the work
hours in PF-4: from 7:45 a.m. to 3:45 p.m. (Id. at 63.)
Martinez testified that he spoke with Mark Dinehart
regularly about Complainant's absence from PF-4, the last time
being in March 1993. (Tr. at 128, 131, 149.) Martinez further
testified that he spoke with Dinehart and Reimus about
disciplining Complainant and that "we probably -- we talked about
laying her off, about terminating her contract." (Tr. at 152-
53.) On the other hand, Martinez testified that he never
reprimanded Complainant for her absence from PF-4 or for any
other reason. (Tr. at 115-116.)
During the time she was supervised by Martinez, Complainant
frequented Gene Jacquez's office in PF-3 on a daily basis. (Tr.
at 467, 502.)[13] Jacquez's office was located approximately
100 yards from PF-4. (Tr. at 465-66.) Michelle Ferran, another
technician, testified that she also went to Jacquez's office on a
daily basis "for years." (Tr. at 519.) Ferran explained that
since Jacquez does work for several different sections, including
NMT-3, many people have work for him. (Tr. at 518.) According
to Ferran, Jacquez's office was "a nice friendly place to go,"
and was "[p]robably one of the busiest places" at LANL (Tr. at
518.)
[PAGE 25]
Both Jacquez and Ferran testified that sometimes Complainant
worked when she was in his office and other times she did not.
(Tr. at 467, 502.) Martinez, Smith, and Dinehart, Complainant's
supervisors, went to Jacquez's office between three and six times
each because it was widely known that she spent time there. (Tr.
at 474-76.)
Jacquez and Complainant developed a social friendship for a
time; after a falling out, he asked her not to come to his office
anymore. (Tr. at 478.) By the time Reimus became Complainant's
immediate supervisor, Complainant no longer frequented Jacquez's
office. (Tr. at 218.) Instead, when Complainant was not in PF-
4, she could be found in the women's change room in PF-3. (Tr.
at 205.)
Reimus initially testified that Complainant's absence was
not a problem because she could usually find Complainant, and
that other than the fact that she had to go get Complainant from
the women's change room in PF-3, it did not interfere with the
mission of NMT-3. (Tr. at 187-89.) Reimus testified that she
did not usually have to go find other employees because she could
usually call somewhere or if they were not in the lab in PF-4
they were up in the mezzanine. (Tr. at 188.) Consequently,
according to Reimus's initial testimony, she never spoke to
Complainant about the matter, other than telling her "let's get
back to work" when she'd find Complainant. (Id.)
When questioned by counsel for LANL, Reimus elaborated on
her prior testimony and said that while it was not a problem
finding Complainant, it was a problem that Complainant was not in
PF-4 because Reimus would have to go find her. (Tr. at 205-207.)
Reimus had to go find Complainant no more than once a day or two
to three times a week. (Tr. at 212.) Reimus testified that she
tried to keep Complainant busy because as long as there was
specific work to do, Complainant would stay in PF-4; when the
work was completed, if there was no other work to do, then
Complainant would leave PF-4 and go to the women's change room or
the mezzanine. (Tr. at 214.)
When questioned a second time by counsel for Complainant,
Reimus said again that she did not have any discussions with
Complainant about her absence from PF-4 because, given that she
could usually find Complainant and get back to work, it was not a
problem. (Tr. at 232-236.) Then Reimus testified that she did
tell Complainant to stay in PF-4 and that Complainant, invoking
the ALARA principle, said that she did not want to stay in PF-4
unless there was specific work to do in the glovebox. (Tr. at
[PAGE 26]
236-37.) Reimus did not recall speaking to Dinehart about
Complainant's absence. Moreover, to Reimus's knowledge, Dinehart
was not aware of the fact that Reimus had to go find Complainant.
(Tr. at 239.)
Joel Williams testified that he became aware of
Complainant's absence from PF-4 through conversations with
Richard Dye, a technician in PF-4. (Tr. at 434-439.) Dye
supervised two other employees, Wilma Garcia, and Esther Workman,
but not Complainant. (Tr. at 443-446.) Dye told Williams that
Complainant was a "budding issue" and that they "may want to cut
her loose if she doesn't start participating." (Tr. at 434-437.)
Williams explained that Dye's comments refer to the fact that
Complainant was frequently absent from PF-4. (Tr. at 438.)
Though he did not consider Complainant to be absent without
leave, Williams discussed the matter informally with Dinehart.
(Tr. at 440, Tr. 448.)
Dye also reported to Williams that Wilma and Esther "work
when they have specific work." (Tr.a t 442.) Williams explained
that this meant that Wilma and Esther were completing their
assigned tasks, checking in with Dye, and making sure he knew
where they were when they were not working on a specifically
assigned task. (Tr. at 442-443.) Moreover, Williams testified
that Dye, Esther, and Wilma may have been in the mezzanine or
elsewhere when they were not working in the glovebox in PF-4.
(Tr. at 445-46.)
Mary Esther Huerta and Brenda Griego both proffered
testimony which explains why technicians leave their work area.
When working in the gloveboxes in NMT-3, depending on the
process, the technician would have to wait ten minutes, for
example, then add another solution or chemical. (Tr. at 304-
305.) When the wait was longer, for example thirty minutes, then
the technician could stay, go to the mezzanine, or elsewhere if
she chose. (Id.) Huerta stated that whether she went to
the mezzanine or elsewhere did not matter to her supervisor as
long as he or she was informed. (Id.) Similarly, Griego
explained that when the technicians weren't busy in their labs,
they could go to the mezzanine or to the women's change room in
PF-3. (Tr. at 314.) On the other hand, Griego testified that
during the time she worked with Complainant, her section "was
real strict about time and being close to your work area" so she
chose to go to the mezzanine. (Tr. at 315.) Griego explained
that her section was "strict about time" insofar as supervisors
wanted to know where technicians were at all times; though
technicians could call their supervisors and tell them where they
were. (Tr.
[PAGE 27]
at 316.)
Post-Termination Events
After Complainant was terminated, RRA submitted her resume
for four open positions at LANL for which the RRA recruiter felt
Complainant was qualified. (Casale Dep. at 11.) Complainant was
not selected for any of the positions. (Casale Dep. at 11-12.)
Casale testified that RRA has had approximately thirty job
requirements from LANL open on a daily basis since September 1991
(Casale Dep. at 6), though the total number of employees placed
at LANL by RRA increased significantly since Complainant was
initially placed at LANL in March of 1992. (Casale Dep. at 6.)
Complainant moved from Los Alamos to Denver, Colorado,
following her termination, and began looking for a new job in
July of 1993. (MacLeod Dep., Vol. I at 115.) Except for a brief
period of employment at Manufacturing Sciences Corporation,
Complainant has been unsuccessful in her job search despite
applying for at least three jobs per week. (MacLeod Dep., Vol. I
at 116; CX-16.) At Manufacturing Sciences Corporation,
Complainant earned a total of $5,130.00 between April and June of
1994. (MacLeod Dep., Vol. I at 116; CX-36.) Because of her
difficulties obtaining employment, Complainant began attending
community college, reasoning that retraining would increase her
employment opportunities. (MacLeod Dep. at 119.) Complainant
received unemployment compensation after her termination,
exhausted her savings and credit, and now receives $330 per month
from the Aid to Families with Dependent Children program.
(MacLeod Dep. Vol. I at 115, 128.) Upon her termination,
Complainant began paying $156.85 per month for the health
insurance coverage she had received as an employee of RRA. (CX-
2, 4, 6, 8, 10.)
Complainant also testified on deposition that she is
afflicted with Crohn's disease, a recurring type of inflammatory
bowel disease. (Macleod Dep. Vol. I at 120.) Complainant was
first diagnosed with the ailment in December of 1991, prior to
her employment at LANL. A letter from Complainant's treating
physician, Dr. James Richards, confirms that Complainant is
afflicted with "inflammatory bowel disease, most likely the
Crohn's disease variety." (CX-18.) Both Dr. Richards and
Complainant explain that this condition can be aggravated by
physiological and psychological stress. (Id., MacLeod
Dep. Volume I at 123.) Complainant, however, claims that her
recurrences are triggered only by psychological stress. (MacLeod
Dep. Volume I at 123.)
[PAGE 28]
Findings of Fact and Conclusions of Law
Complainant is an employee and Respondent is an employer
under the Act. Although Complainant was an employee of Ray
Rashkin Associates and not LANL, the Act's coverage "is not
limited in terms to discharges or discrimination against any
specific employer's employees." Hill v. Tennessee Valley
Authority, 87-ERA-23, (Secretary of Labor, May 24, 1989). In
this case, Complainant worked under the direct supervision of
Respondent's management. Dysert v. Florida Power Corp.,
93-ERA-21 (Secretary of Labor, August 7, 1995).
Section 5851(b)(1) provides that a complaint alleging a
violation of the Act must be filed within 180 days after the
violation occurs. Complainant filed a complaint on December 27,
1993, alleging that she was unlawfully discharged in violation of
the Act on July 2, 1993. Therefore, Complainant filed a timely
complaint for relief under the Act.
The employee protection provision of the Energy
Reorganization Act, as amended in 1992, makes it unlawful for an
employer to discharge or otherwise discriminate against an
employee because the employee:
(A) notified his employer of an alleged violation of
this chapter or the Atomic Energy Act of 1954 . . .;
(B) refused to engage in any practice made unlawful by
this chapter . . . 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 . . . of this
chapter . . .;
(D) commenced, caused to be commenced, or is about to
commence or cause to be commenced a proceeding under
this chapter . . . or a proceeding for the
administration or
enforcement of any requirement imposed under this
chapter . . .;
(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 action to carry out the purposes of this
chapter.
42 U.S.C. § 5851 (Supp. 1995.)
[PAGE 29]
The legal framework for determining whether a violation of
the Act has occurred is well settled. First, the employee must
establish a prima facie case of employment discrimination by
demonstrating that she engaged in protected activity, that the
employer was aware of that activity, and that the employer took
some adverse employment action against her. Dartey v.
Zack, 82-ERA-2, (Secretary of Labor, April 25, 1983.) In
addition, as part of her prima facie case, the employee must
present evidence sufficient to raise the inference that the
protected activity was the likely reason for the adverse
employment action. Id.
Once the employee establishes a prima facie case, the
employer may rebut it by articulating a legitimate,
nondiscriminatory reason for its adverse employment action, in
which case the rebuttable presumption created by the prima facie
case drops out. Then, the employee may prevail by proving that
the employer's proffered reason is a pretext for discrimination.
Carrol v. Bechtel Power Corp., 91-ERA-46 (Secretary of
Labor, February 15, 1995). While the burden of producing
evidence shifts between the parties under this framework, the
ultimate burden of persuasion remains with Complainant. St.
Mary's Honor Center v. Hicks, 113 S.Ct. 2742 (1993).
Nevertheless, a finding of pretext in conjunction with the
elements of a prima facie case may suffice to establish
intentional discrimination without additional proof. Bechtel
Constr. Co. v. Secretary of Labor, 87-ERA-44, No. 94-4067
(11th Cir., Apr. 20, 1995), available on LEXIS, 1995 US
APP 9029).
Alternatively, if the employee establishes by a
preponderance of the evidence that the adverse employment action
was motivated in part by illegitimate reasons (dual motives),
then the burden of persuasion shifts to the employer to establish
by clear and convincing evidence that it would have taken the
same adverse action against the employee for legitimate reasons
alone. Carrol v. Bechtel Power Corp., 91-ERA-46
(Secretary of Labor, February 15, 1995); Dysert v. Florida
Power Corp., 93-ERA-21 (Secretary of Labor's Final Decision
and Order, August 7, 1995); 42 U.S.C. § 5851(b)(3)(D).
Where the employee contends that the employer's motives were
wholly retaliatory and the employer counters that its motives
were wholly legitimate, use of the pretext analysis is
"appropriate because it focuses on determining the employer's
true motivation rather than weighing competing motivations."
McCuistion v. Tennessee Valley Authority, 89-ERA-6
(Secretary of Labor, Nov. 13, 1991).
Complainant's Prima Facie Case[PAGE 30]
1. The First Element
As discussed above, the first element of Complainant's prima
facie case is the showing that she engaged in some conduct
protected under the whistleblower statute. Since the date of her
termination, Complainant has argued that she engaged in numerous
instances of "protected activity." However, the evidence
presented at trial and Complainant's posttrial brief focus upon
three particular activities which she alleges are protected under
the statute. After a careful review of the evidence, I find that
all three actions taken by Complainant are protected under the
ERA.
First, Complainant's disclosure to the DOE auditor that a
tank in the facility had been leaking is clearly protected
activity under the Act. A complaint regarding an unsafe
condition communicated to an outside agency is protected.
Although Complainant did not complain to the DOE auditor, and
although she changed her story such that the auditor did not
question her further about the incident, her comment is protected
nonetheless. Collins v. Florida Power Corp., 91-ERA-47
and 49, (Secretary of Labor, May 15, 1995.) The Act is designed
to encourage precisely this free flow of information from
employees to regulatory agencies such as the DOE.
Similarly, Complainant's threat to have her superiors held
accountable for the fact that she often worked on the DCHP
project without proper supervision or certification is protected
by the Act. Pursuant to the 1992 amendments to the Act, an
internal complaint of an alleged violation of the ERA or the
Atomic Energy Act of 1954 is protected activity.[14] DOE
regulations require that employees be properly trained and
certified before they work independently on a procedure. As
Reimus conceded, she could have been disciplined if Complainant
performed a procedure for which she was not certified without
supervision by someone with proper certification. It is
irrelevant whether Complainant was certified for the precise task
which she performed when she failed to record the movement of the
plutonium sample on MAS since she need only have a reasonable
belief that a violation occurred. Johnson v. Old Dominion
Security, 86-CAA-3, (Secretary of Labor, May 29, 1991.)
Complainant's assertion that she frequently worked without
supervision or certification was not frivolous as demonstrated by
the DOE investigation which substantiated the allegation in
general.
Under the same rationale, Complainant's ALARA complaints are
[PAGE 31]
also protected by the Act. As a policy directed at minimizing
workers' exposure to radiation, the enforcement of ALARA was
integral to the maintenance of a safe workplace. An internal
complaint need not allege a violation of a law or regulation in
order to be protected: it is enough if the complaint pertains to
safety or "touches on" the mandates of the Act. Nichols v.
Bechtel Constr. Inc., 87-ERA-44 (Secretary of Labor, Oct. 26,
1992); Scerbo v. Consolidated Edison Co., 89-CAA-2
(Secretary of Labor, Nov. 13, 1992.) Moreover, in determining
whether the complaint is protected, it is irrelevant that
Complainant's interpretation of ALARA's mandates may have been
ultimately wrong or beyond the scope of her authority to
determine. Johnson v. Old Dominion Security, 86-CAA-3,
(Secretary of Labor, May 29, 1991.) I note, however, that an
employee's engagement in protected activity does not render her
immune from discharge for legitimate reasons such as
insubordination.[15]
2. The Second and Third Elements
Based upon the undisputed evidence, I further find that
Complainant has successfully established both the second and
third elements of her prima facie case. Both Dinehart and Reimus
were aware of Complainant's ALARA complaints, her comment to the
DOE auditor, and her threat to report the fact that she worked
independently on procedures for which she was not certified.
Furthermore, it is clear that Complainant was subject to adverse
action when her assignment at LANL was terminated.
3. The Inference of Causation
As the final element of her prima facie case, Complainant
must present sufficient evidence to raise the inference that her
protected activity was the likely reason for her termination. As
Complainant has presented three activities which I have found to
be protected, each one will be analyzed separately to determine
whether either of the three meets this final prong of the prima
facie case.
I find that the evidence is insufficient to raise the
inference that Complainant was terminated in retaliation for her
repeated protestations that the ALARA policy mandated that she
leave PF-4 unless there was specific tasks to perform. The ALARA
controversy between Complainant and her supervisors began at
least as early as October of 1992, when Complainant was assigned
to work under Martinez. However, Complainant has presented no
evidence which supports the inference that she was terminated as
a result of these complaints. Rather, the evidence indicates
[PAGE 32]
that Complainant's concerns were taken very seriously by
Respondent's management, who took several steps to address such
concerns and to assure Complainant that remaining in the
mezzanine was not a violation of ALARA. This evidence leads to
the conclusion that the inference of a causal nexus between
Complainant's ALARA complaints and her termination has not been
established.
On the other hand, the evidence is sufficient to raise the
inference that Complainant's termination was in retaliation for
her other protected activities. On June 23, 1993, Complainant
made the comment regarding the leaking tank to the DOE auditor.
On June 28, 1993, Complainant threatened to report the fact that
she worked without proper supervision or certification. On July
1, 1993, Complainant was informed that her assignment was
terminated. Such a close temporal proximity between
Complainant's protected activities and her termination raises the
inference that she was terminated because she engaged in these
protected activities. See, e.g. Couty v. Dole, 886 F.2d
147 (8th Cir. 1989). Accordingly, I find that Complainant has
established a prima facie case of retaliatory discharge in
violation of the Act.
Respondent's Rebuttal of the Prima Facie Case
Once the employee succeeds in presenting a prima facie case,
the employer has the burden of producing evidence to rebut the
presumption of disparate treatment by presenting evidence showing
that its actions were motivated by legitimate, nondiscriminatory
reasons. As the Supreme Court has recently reiterated,
Respondent's burden on rebuttal is not onerous and is met by the
mere articulation of a legitimate reason for the adverse
employment action. St. Mary's v. Hicks, 113 S.Ct. 2742
(1993).
Since it is only the burden of production which shifts to
Respondent at this stage, the veracity of Respondent's
articulated reasons is irrelevant to the question of whether
Complainant's prima facie case is rebutted. Here, Respondent
carries its burden by proffering legitimate reasons for its
termination of Complainant, including her difficulty with
coworkers (such as her inability to work as a "team player" and
her inability to get along with certain coworkers), her continual
absence from the work site, her skill level, her failure to
accept responsibility for the second MAS incident, and a shortage
of funds and overstaffing for the DCHP project. These are all
legitimate reasons for Complainant's discharge, and I therefore
find that Respondent has met its burden of production.
[PAGE 33]
Accordingly, Complainant's prima facie case drops out.
Weighing the Evidence as a Whole
Once the employer adequately rebuts the employee's prima
facie case, the employee has the burden of persuading the trier-
of-fact, by a preponderance of the evidence, that her termination
was precipitated, in whole or in part, by the protected activity.
Complainant may meet this burden of persuasion either directly by
proving that the unlawful reasons for her termination more likely
motivated the defendant, or indirectly by proving that
Respondent's proffered reasons for her termination are unworthy
of credence. Scerbo v. Consolidated Edison Co., 89-CAA-2
(Secretary of Labor, Nov. 13, 1992.)
Examining the latter, indirect method of meeting the burden,
it is evident that Complainant has failed to prove that
Respondent's proffered reasons for termination are without merit.
Each ground for dismissal given by Respondent is a valid business
ground for the termination of any employee. More importantly,
Respondent has supplemented these reasons with factual evidence
which supports their pertinence to this case. In particular,
Respondent's counsel elicited testimony from numerous witnesses
concerning Complainant's employment at LANL. Having found this
testimony to be credible, I find that it adequately supports each
ground for termination proffered by Respondent.
In making this finding, I find persuasive the testimony of
Dinehart and Reimus concerning the MAS transactions, and
Complainant's failure to accept responsibility for her mistakes.
After reviewing the record, I agree that Complainant's complaints
of inadequate supervision were irrelevant to her failure to
adequately perform the MAS transactions, but were merely
presented as a way to avoid responsibility for her mistakes at a
task essential to a safe work environment.
Also persuasive in my determination is the testimony
indicating that Complainant was difficult to work with. In this
regard, I credit the testimony of the supervisors indicating that
Complainant was rarely at the work site, and that locating her
was often difficult. Complainant's ALARA concerns were not an
adequate explanation for these continual absences in that she had
been informed by management that her concerns were unfounded
after an investigation into them had been completed.
Finally, I have credited the testimony of Dinehart, stating
that Complainant did not have the requisite skills necessary for
[PAGE 34]
the position. Apparently, Complainant did not possess these
skills when she started, and her continual absences from the work
area prevented her from obtaining the on-the-job experience
necessary to become certified. Furthermore, it is apparent from
the record that the DCHP program had become overstaffed and would
end within the fiscal year. When combined with the facts
outlined above, management was certainly justified in its
determination that the project could be completed without
Complainant's services and that her termination was in the best
economic interests of LANL and the DCHP program.
Complainant has presented little evidence which would tend
to indicate that the enumerated grounds for her dismissal are
without merit and are a mere pretext. I find that this evidence
does not outweigh the evidence presented by Respondent validating
the grounds for dismissal, which it must do in order for
Complainant to meet her burden by a preponderance of the
evidence.
Likewise, Complainant has failed to present sufficient
evidence to support the conclusion that her termination was more
than likely the result of her protected activity. The evidence
she presents is circumstantial in nature, and although it is well
settled that circumstantial evidence may support such a finding,
I find that it fails to do so in this case.
First, in regards to the protected activity surrounding
Complainant's report of the leaking tank to DOE officials,
Complainant has presented little if any evidence to support the
conclusion that her termination was more than likely a result
thereof. The only evidence which arguably supports such a
conclusion is Complainant's own deposition testimony that she was
told that doing so was improper, and was verbally chastised for
it. This in no way indicates that she was terminated as a result
of this incident. Although the relatively short time period
between this incident and Complainant's termination may be
sufficient to establish an inference of relatedness, it hardly
amounts to a "preponderance of the evidence."
I further find that the evidence does not support a finding
that the second protected activity, that of threatening to report
a lack of supervision, more than likely led to Complainant's
termination. Rather, as discussed above, I am persuaded that
this threat was made in an attempt to avoid responsibility for
Complainant's own mistake in failing to record the MAS
transaction; a task which Complainant did have the skills to
perform. As such, I find that it is more than likely that she
was fired for her failure to assume responsibility for her
mistakes, rather than her threats to report inadequate
supervision.
Conclusion
As the trier-of-fact, I am given broad discretion to make
determinations as to the credibility of witnesses, and to weigh
the evidence presented. After having done so, I find that
Complainant has failed to meet her burden of proof in this
matter. Particularly, she has failed to show by a preponderance
of the evidence, that the legitimate reasons for termination
proffered by Respondent were a mere pretext, concealing an
unlawful termination based upon protected activity. Likewise,
Complainant has failed to establish by a preponderance of the
evidence that her discharge was more than likely due, in whole or
in part, to her protected activity.[16]
I am mindful of the difficulty in meeting such a burden when
attempting to prove the subjective intent of an employer in
discharging an employee. It is extremely rare that the so-called
"smoking gun" is found in whistleblower cases, and almost always,
the employee must rely on circumstantial evidence to establish
the employer's discriminatory intent. Nonetheless, the statute
places the burden on the employee and after weighing the evidence
presented in this case, I can come to no other conclusion than
that this burden was not met in the present case.
RECOMMENDED ORDER
Based upon the foregoing, it is hereby recommended that the
complaint in the above-entitled matter, seeking remedies under
Section 5851 of the Energy Reorganization Act, be dismissed for
lack of merit.
DANIEL L. STEWART
Administrative Law Judge
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 Avenue, N. W., Washington, D.C. 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]
Although the case has been designated as one arising under the
Clean Air Act (CAA), the parties agreed, and I concur, that the
facts presented implicate the whistleblower protection provision
of the Energy Reorganization Act.
[2]
The following abbreviations will be used throughout this
recommended decision when citing evidence of record:
Complainant's exhibit - CX, Respondent's exhibit - LX, Transcript
of the hearing - Tr. Respondent's exhibits 47 and 48 will be
referred to as "MacLeod Deposition" and "Casale Deposition,"
respectively.
[3]
For the sake of clarity, I refer to NMT-7 as NMT-2 throughout the
remainder of this recommended decision.
[4]
Mixed waste is waste which contains a hazardous component mixed
with a radionuclide. For example, lead gloves constitute mixed
waste once they are contaminated with radiation. (CX-48.)
[5]
LANL advertised Martinez's position and David Romero applied for
it, but was not hired. (MacLeod Dep. at 67.)
[6]
DCHP stands for Dicesium Hexa ChloroPlutonate. (Tr. at 110.)
EXCEL stands for experimental chloride extraction line.
[7]
"PF" stands for plutonium facility. (Tr. at 123.)
[8]
A hydroxide precipitation involves neutralizing the acid solution
with a base solution for waste management purposes. (Tr. at
112.)
[9]
Plutonium is one example of special nuclear material. (Tr. at
168.)
[10]
It is not entirely clear what procedure Reimus was referring to
when she gave this testimony; thus it is difficult to determine
whether the precise task Complainant was performing when she
pulled the sample was one for which she was certified. It is
undisputed that Complainant was certified to pull sample and to
use the computer system for tracking SNM. However, certain
procedures which require certification, such as pulling samples,
are performed during the course of working on a more complex
procedure which requires a different certification.
[11]
It is alleged that Complainant was frequently heard to say "this
is not the way Rocky does it." (See e.g. Tr. at 149.)
[12]
More than three people worked in PF-4, but Martinez supervised
only Complainant and Brenda Griego. (tr. at 114, 121.)
[13]
Jacquez's office is both an office and a shop with various types
of welding and mechanical equipment. (Tr. at 517.)
[14]
Prior to the 1992 amendments to the Act, internal complaints were
considered a protected activity by implication. See, e.g.
Kansas Gas and Electric, 780 F.2d 1505 (10th Cir. 1985);
but see, Brown and Root, Inc. v. Donovan, 747 F.2d 1029
(5th Cir. 1984).
[15]
Although the making of the complaints is a "protected activity,"
Complainant's failure to remain in the work area after being
informed that doing so would not violate ALARA is not a protected
activity.
[16]
Had Complainant presented evidence sufficient to support a
finding that her termination was at least partly due to her
protected activity, then this would be a "dual motive" case. As
such, the burden would have then shifted to Respondent to show by
clear and convincing evidence that it would have terminated
Complainant for the legitimate reasons alone. Carrol v.
Bechtel Power Corp., 91-ERA-46 (Secretary of Labor, February
15, 1995); 42 U.S.C. § 5851(b)(3)(D). However, because
Complainant failed to meet her burden by a preponderance of the
evidence, the burden never shifted to Respondent to make this
showing.
