Likewise,
Respondent was made aware of the expression of some of these safety concerns by the
Complainants. The real issues for me to determine are whether or not any or all of these
Complainants were retaliated against by Mason & Hanger because of their expression of safety
concerns.
Hostile Work Environment
For Complainants to establish a prima facia case under the Act, they must
demonstrate that they suffered adverse employment action. 42 U.S.C. §5851(a)(1). Obvious
examples of adverse employment action include discharge, demotion, or failure to promote or hire
based upon prior activity. Less obvious examples include harassment due to protected activity that
results in a hostile work environment. A hostile work environment theory has been applied in cases
brought under the Act and is interpreted consistent with Title VII of the Civil Rights Act of 1964 as
amended.
Under Title VII, harassment does not rise to a level of hostile work
environment until it is both severe and pervasive thereby creating an abusive work environment.
Meritor Sev. Bank, FSB, 477 U.S. 57 (1986). While work place comments or acts may
[Page 48]
be unwarranted, immature, unprofessional and/or inappropriate, they may still not be severe and
pervasive enough to create a hostile work environment. Each case rests on its own particular facts.
Complainants state that as a result of their protected activity, in the form of
voicing safety concerns, they were subjected to a hostile work environment which constitutes
retaliation under the Act. It is the thrust of Complainants' argument that the Complainants suffered
intentional, pervasive and regular discrimination to their detriment (and that of any reasonable
person) and that there existed respondeat superior liability.
Respondent, of course, denies the allegations, stating that what hostility
existed was actually personnel animosity unrelated to safety which existed between A team members
of the W55 program and the Complainants, namely Complainant Williams. Respondent further
asserts that when it learned of the situation it did everything it could do to try to alleviate the tension
on the W55 program and prevent any similar situations on other programs.
That hostility was present in the W55 program is undisputed. The questions
I must resolve are (1) whether the hostility was motivated by Complainants safety concerns and (2)
whether Employer knew or should have known of the hostility and failed to take prompt remedial
action.
Safety Concerns
Firstly, I do not find that the hostility that existed between members of the A
team and Complainants originated over Complainants' safety concerns. In my lengthy recitation of
facts, I have attempted to convey that rightly or wrongly, the A team had a since of ownership of the
W55 program because of their long involvement with the project, and that they took issue with the
manner in which the Complainants arrived on line in February of 1996. Complainant Williams
himself agreed that a large portion of the disharmony that existed between the two groups was due
to the fact that the A team took pride in their program. Both investigations of Myers and Noonan
found the same to be true.
From the moment of their arrival, the Complainants, most particularly
Williams, made threats of lawsuits and shut downs, ignored advice from the experienced A team
members and bypassed the chain of command with any concerns they had. Granted, as time wore
on quite possibly repeated safety concerns, whether real or perceived, might well have added fuel
to the fires of dissension; however, the hostility had been there from the outset for other reasons.
As recited in the findings of facts, aside from management being extremely responsive to all
perceived safety concerns, many of the A team members themselves testified with approval about
some of the changes made and agreed that they were for the best. They never agreed with
Complainants attitudes, however.
What I have tried to portray is what I believe to be true, that Complainants
[Page 49]
did not arrive on line concerned with nothing but safety, only to meet with unwarranted hostility.
Jackovich testified that in training some if not all of the Complainants had been distracting from the
beginning and almost seemed by design to be disruptive. She also said that their attitude on line was
that they could shut the project down.
In sum, I find the hostility that obviously existed between the two groups of
employees had early roots, not in safety concerns, but in the attitude of the Complainant Williams,
and to some extent the other Complainants, when mixed with the personalities of the A team
members. In making such a finding, I note that I do not necessarily condone the possessive attitude
of the A team, but simply that I do not find expressions of safety concerns to be the motivation that
seeded the hostility between the two groups.
Employer's Conduct
In Waymire v. Harris County, 86 F.3d 424 (5th Cir., 1996), the U.S.
Court of Appeals enumerated five elements which must be proved to base a claim on the theory of
hostile work environment. The Court concluded that if a Complainant fails to establish any one of
these essential elements, then as a matter of law the claim must fail. One of the essential elements
listed is whether the employer knew or should have known about the harassment and failed to take
prompt remedial action.
In this instance, despite the fact that management had in place well established
policies regarding reporting of improper conduct (RX 103), it appears from the evidence that
management was not made aware of real discord between the two teams until March 6, 1996, at
which time management immediately took prompt remedial action.
On March 6, 1996, certain members of the A team complained to Ms. Herring
that Williams was engaging in hostile conduct toward them. Dr. Weinreich, who had yet to receive
Williams' letter of March 4, 1996, (RX 24), was immediately brought into the situation and the
complaints addressed. Prior to that date, while the two teams were first adjusting to each other on
the line, there had only been expressed concerns about training procedures; and in the latter part of
February these concerns had risen to the level of safety meetings which resulted in the stoppage of
work from February 29, 1996 until April 4, 1996, while procedures were reviewed.
Likewise, after learning of the dissension between the PTs, the evidence
supports a finding that management took just as prompt remedial action. An outside consultant,
attorney Billie Garde, known throughout the industry as a whistle blower advocate, was hired to
review the Employee Concerns Department; investigations were commissioned, team building and
supervisory training was implemented, the program was shut down for weeks while the standards
and procedures were rewritten and ultimately a Joint Counsel was created with input and approval
of Complainants attorneys to resolve employee disputes. In sum, it is hard for me to imagine more
prompt remedial action than this management took and continued to take after learning of the
[Page 50]
problems that existed between certain members of the two PT teams on the W55 program.
Specifically, the efforts of management have been numerous:
1. On March 6, 1996, the day of the initial complaints, an independent team
was appointed to investigate the complaints. The team included Frank George, president of the
MTC union, who himself assured Complainant Williams that his appointment would insure that
there would be a fair investigation.
2. On March 8, 1996, Dr. Weinreich received Williams' March 4, 1996, letter
and informed Mr. Williams he would assign the Employee Concerns Department to investigate
Williams' complaint. (Williams refused to participate in such an investigation.)
3. Because of allegations of "A" team members, including his
touching Ms. Stone, Williams was temporarily reassigned to another program for which he was
qualified pending the investigation. The reassignment entailed neither reduction in salary nor change
in title.
4. On April 2, 1996, with the investigation complete, Dr. Weinreich met with
Williams and his attorney. Williams had been provided with a copy of the Myer report which
detailed results of the independent investigation, and Williams was returned to the W55 program.
Again he was offered the assistance of the Employee Concerns Department.
5. On April 8, 1996, Respondent began its Team-Building Program with the
W55 personnel.
6. On April 11, 1996, Respondent shut down the W55 program for the Team-Building Program, which included the Covey Training, and for a line by line review of the operating
procedures for the entire W55 program. The bay was reopened May 1 and the cell not until May 9,
1996.
7. In July, 1996, the PTs on the two teams were separated so that they did not
have to work together and were blended with a third team that had newly arrived.
8. Post-team building, weekly meetings were held with the PTs from the W55
program and they were asked to voice concerns.
9. In August, 1996, Respondent, with advice and consent of Complainants'
attorneys (GAP), retained Vince Noonan to independently investigate Mr. Williams concerns.
10. Following receipt of Mr. Noonan's report, his recommendations were and
implemented by management. A Joint Counsel was created for the resolution of employee
complaints, again with the assistance and input of Complainants' attorneys, with Respondent
[Page 51]
agreeing to be bound by the recommendation of the panel. Members of the panel include: Vince
Noonan, attorney Tom Carpenter of GAP and attorney Billie Garde, who had previously been
employed to provide whistle blower instruction to management and to review Respondent's
Employee Concerns Department.
While I am not naive enough to believe that these efforts wholly stopped all
disharmony which existed between members of the two teams, I do firmly believe that they were
reasonably calculated to do just that and that the efforts met with success. They were not
"window dressing" as suggested by Complainants.
Several of the Complainants, in fact, testified things were better between the
two teams following the training; and, Mr. Williams agreed during the hearing that in his pre-trial
deposition he had stated that after he finished the Covey Training and returned to the line on the
W55 program that the only incidence of hostility directed against him was an ongoing argument with
John Barton, an A Team member with whom he had arguments about who would transfer off of the
program. (Tr. 2016). Also, when I personally inquired of the Complainants at trial what more
management might have done, none asked could think of anything.
I find it unrealistic that more should have been done. In February of 1996,
when the Complainants arrived on line, every concern about safety and procedure was addressed and
acted upon immediately by management. Group meetings were held, and by February 29, 1996, Dr.
Weinreich himself shut the cell operation down until March 4, for a review of procedures. Then
when word reached management on March 6, that hostility existed between the two teams, the W55
program was stopped completely for weeks, the procedures were reviewed and rewritten, the
participants were given training, independent investigations were performed and a Joint Counsel was
created.
This was a business with a mission, not a Utopia. Everyone on the program
could not have been fired or transferred. The designs of Respondent's remedies were obviously not
only to quell present problems but to avoid future; and I find that management's actions were
reasonable and effective, particularly given that a number of the Complainants' complaints embodied
concerns about stares, glares and expressions of unhappiness from members of the A team and on-line supervisors who had been in place for months performing their job when the Complainants
arrived in February, 1996, and who, rightly or wrongly, grew frustrated with frequent questioning
of, and challenges to, procedures which they felt were adequate and which had proven safe in the
past. In other words, the give and take between new and old co-workers which has always existed.
In obvious reliance upon the Noonan report's finding that hostility existed, in
my opinion OSHA erred in their determination that Respondent should do more, for OSHA failed
to consider the fact that for a claim to be successful on the theory of hostile work environment, the
employer knew or should have known about the harassment and failed to take prompt remedial
action. That was not the situation here. In his report, Vince Noonan made the following finding,
[Page 52]
with which I agree and which I find to extend to all Complainants:
The hostility that Mr. Williams is experiencing is what I would refer to as
"peer hostility." If management hostility does exist, it is limited to a very few
supervisors and once this is brought to the attention of senior management, those supervisors are
counseled immediately. The investigator is convinced that senior management will not tolerate
hostility between their supervisor and employees.
Having found that Complainants failed to establish that the hostility which
existed on the W55 program was motivated by their safety concerns and that Respondent knew or
should have known about the hostility and failed to take prompt and reasonable remedial action, I
find that Complainants' claims under the Act for relief for a hostile work environment must fail.
Constructive Discharge
I do not find that the working conditions were so intolerable that Mr. Williams
had no choice but to resign on November 27, 1996.
At that time, the W55 program was approaching its end. The PT force had
been narrowed to include Williams and two other Complainants, Sottile and Rodriguez. On the day
prior to his departure, Williams, and the other remaining members, had agreed to try and finish the
task the next day so as to have it concluded by Thanksgiving.
On the morning of November 27, everyone arrived and Williams was
dispatched to get the keys to the work area. He was stopped along the way by a DOE representative
who briefly talked with him. Upon his return, his supervisor, Paul Harter, was admittedly angry, but
when the reason for Williams' delay was learned, Mr. Harter's anger was directed at the DOE
representative for slowing Williams' delivery of the keys, not at Williams.
In the ensuing moments surrounding the revelation of what had delayed
Williams, Williams told Mr. Harter "not to go there" and to "quit the production
push," and he declined Harter's offer to diffuse the situation by discussing it further in the
office. Williams then disregarded Harter's directive to open the door area. Rather he turned and
walked off with the keys announcing he no longer worked there. Complainant Sottile, who was in
attendance, expressed surprised about Williams' manner of departure.
Respondent argues, and I agree, that Williams resignation was premeditated.
A month earlier Williams had said there were no significant events occurring at work and he might
quit after the W55 project to race cars. He still owned his refrigeration company and he had received
the November 22, 1996, determination from OSHA, (obviously based on Noonan's report) that a
hostile work environment existed and that Respondent should abate the situation by (1) newer or
existing programs or (2) negotiation of an amicable work and/or monetary resolution of the matter.
[Page 53]
By then the other Complainants had joined forces with Complainant and his attorneys filing
complaints a few days earlier, the W55 program was over and monetary damages had been suggested
by OSHA. It was time to exit.
While this inference may seem harsh, I had the advantage of observing Mr.
Williams during the hearing and hearing him testify on more than one occasion. The last time he
was called to the stand for rebuttal testimony, Williams became arrogant when asked by
Respondent's attorney to read from an exhibit. (Tr. 2015, 2016). He offered his reading response
in slow, flat tones, undetectable by a reading of the transcript, but in a manner sufficient to support
a potential attitude and conduct on his part like that testified about by other witnesses, including
Jackovich, Moore, Barton, Huton, Stone, DuBose and Ferdinand Rodriguez. Williams also
demonstrated, on the same occasion, a propensity to exaggerate by testifying that the time between
OSHA's determination and his resignation could have been a week or two. (Tr. 2009). Actually the
time was three working days.
In addition to his threats to co-workers of lawsuits and shutdowns, a reading
of letters written by Williams to Kathy Herring and Dr. Weinreich also provide clues of an
underlining motivation on Mr. Williams' part to either control the work environment or create a
scenario from which he might ultimately benefit. (RX 13; CX 24, 26, 28).
He went on line February 2, 1996. Twenty days later, on February 22,
Williams wrote Ms. Herring a memorandum and concluded by saying "proven and repeatable
process is good, but now is the time for change." On March 4, 1996, still less than a month
after arriving on-line, Mr. Williams again wrote Ms. Herring: "we can fix the problems and
get back on track with the right goals in mind. It still can be done." The same day he also
wrote Dr. Weinreich that he (Williams) had an upcoming meeting with his "company
lawyer" and suggested to Dr. Weinreich "I am looking forward to meeting with you,
only after the program is up and running smoothly again." (Dr. Weinreich testified he took the
letter as a threat.)
In short, it is my finding that Mr. Williams departed the employment of Mason
& Hanger voluntarily. In arriving at this conclusion, I realize the motivation of a Complainant does
not alter the validity of his allegations. In this instance, however, I find no validity in Mr. Williams'
position that on November 27, 1996, Respondent had made working conditions so intolerable that
a reasonable person would have believed he had no choice but to quit. The W55 program for all
practical purposes was over, he had voiced no complaints for a while and OSHA had ruled in his
favor. Conditions should have been good.
Adverse Actions
Williams
Aside from hostile work environment and constructive discharge, Williams
[Page 54]
also asserts that he suffered an adverse action by being temporarily reassigned to another weapons
program in March, 1996, pending investigation of the complaints lodged against him by co-workers.
I do not agree.
Mr. Williams agreed that he would not have been troubled with this
reassignment had Ms. Stone too been reassigned. He acknowledged that he was qualified to work
on the other program, that he suffered no loss of pay nor change in title and that he was returned to
the W55 program as soon as the investigation was completed.
Respondent's policy was to temporarily reassign the person against whom the
complaint was lodged. Here a number of PTs voiced concern about Williams attitude and behavior
(not his safety concerns). It was Williams who touched Ms. Stone, not vice versa. A neutral panel
of investigators were chosen, including the President of Williams' union, to determine if the
complaints merited further action. They did not, and Williams was returned to the program.
The Act protects employees from actions taken in retaliation for engaging in
activities protected by the Act. It does not prevent an Employer from engaging in personnel
activities. Williams has not made out a case that he was retaliated against for protected activity or
that his temporary reassignment was in any manner an adverse action on the part of Respondent.
McQuay, Rodriguez and Sottile
Aside from hostile working environment, Complainants McQuay, Rodriguez
and Sottile allege that in the latter part of November, 1996, as the W55 program was drawing to a
close, they were reassigned to sweep ramps and such assignments amounted to adverse action being
taken against them. I do not agree.
These assignments were very temporary. These men, along with other PTs,
were assigned to the building manager once their services were no longer needed on the W55
program. The building manager in turn assigned the tasks. This was a common practice between
programs to keep employees from being idle.
These three Complainants were subsequently given permanent assignments
on other programs, and Rodriguez agreed that such temporary assignments to housekeeping chores
were typical at the end of programs. This was not adverse action, and though it might have been less
than desirable work, the employees received their same wage, suffered no loss of status and were
ultimately assigned to other programs.
Lastly, as to Complainant Sottile's claim that he was wrongly denied a
promotion in the summer of 1996, he offered no evidence that his failure to get the position was any
form of retaliation. To the contrary, the position was filled by someone who already held the job
title, and, as Respondent argues, there is nothing in evidence to link Sottile's denial of the job to any
[Page 55]
safety complaints he might have made and/or been associated with.
Conclusion
As stated at the outset, this was a lengthy case with a lot of witnesses and
much documentary evidence. I intentionally spent a great deal of time detailing the numerous facts
presented because I believe they tell the story. Despite the amount of evidence, and though some
supported Complainants' allegations about various expressions of safety concerns and hostility that
existed amongst themselves and the "A" team, the evidence does not support the
Complainants' contentions that the hostility that existed was motivated by their safety concerns or
that Mason & Hanger sat idly by and allowed the hostile work environment to exist.
On the fourth day of the trial, Anne Jackovich was offered by Respondent as
a subpoenaed witness. Ms. Jackovich had been a B team member, gone through training with the
Complainants and eventually joined them on the line. At the outset of her testimony, Respondents
counsel queried Ms. Jackovich about her obvious unhappiness with being called as a witness and
inquired "why." She responded:
- A. Because I had the feeling that it should have never come this far.
- Q. What should have never come this far?
- A. What we're doing today.
- Q. And - -
- A. Because I felt everything had been answered. (Tr. 1308).
In a succinct fashion, her response summarizes my view of the evidence. The
protection processes of the Act were established to encourage nuclear industry employees to raise
safety concerns with their employers or with others without fear of discrimination. It was not
designed to guarantee a perfect work place nor resolve every human resources or personnel
disagreement that could be resolved by other means. In this instance it is my finding that Mason &
Hanger encouraged the voicing of safety concerns by employees, took no adverse action against
those who did so and responded promptly with remedial action to diffuse any hostility, for whatever
reason it was motivated, that existed on the W55 program.
Damages, Attorneys Fees and Costs
Because Complainants have failed in their claims for relief under the Act, I
find that they are not entitled to damages, costs, or attorneys fees from Respondent. Likewise, I find
that since no regulation, statute or executive order addresses a successful Respondent's right to
[Page 56]
recover attorney fees and costs, neither is Respondent entitled to the assessment of costs or attorneys
fees against the Complainants.
RECOMMENDED ORDER
It is my recommendation that Respondent should prevail in this case and that
Complainants' complaints should be dismissed.
SO ORDERED this 20th day of November, 1997, at Metairie,
Louisiana.
C. RICHARD
AVERY
Administrative Law
Judge
CRA:kw
- 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 Administrative Review Board, U. S.
Department of Labor, Room S-4309, Frances Perkins Building, 200
Constitution Ave., N. W., Washington, D. C. 20210. The
Administrative Review Board 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).