U.S. Department of Labor Office of Administrative Law Judges
2600 Mt. Ephraim Avenue
Camden, New Jersey 08104
DATE: January 22, 1998
CASE NO.: 97-ERA-00052
In the Matter of
MARIANNE GRIFFITH
Complainant
v.
WACKENHUT CORPORATION
Respondent
Appearances:
Marianne Griffith, pro se
Adin C. Goldberg, Esquire
On behalf of Respondent
Before: Ainsworth H. Brown
Administrative Law Judge
RECOMMENDED DECISION AND ORDER
This matter concerns the request for hearing filed by the employer
contesting the ostensibly mild action taken by the District Director, Lawrenceville, New
Jersey, Office of Workers Compensation Programs, requiring "...training of all its
supervisors and staff regarding the anti-discrimination provisions of the Energy
Reorganization Act."
On June 3, 1997, Richard Richards, provided the notice containing
the above quoted portion and the Respondent sought a hearing in the matter. The
proceeding took place in Camden, New Jersey, on September 9, 1997. Ms. Griffith
appeared without legal representation.
The thrust of the Respondent's case is that Ms. Griffith did not
engage in protected activity, that if she did, the Respondent did not know about it to
have discriminated against her so that the rescinded action was not premised on any
protected activity (also that the action was for a nondiscrimatory reason).
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Wackenhut's two witnesses, Harper and Kindilien, testified that
they had participated in an investigation of an incident involving a security breach at the
Salem Nuclear Plant (this is the term that is used to describe this facility that is located
in southern New Jersey by the Delaware River). The investigation began in late August
1996.
Among other security personnel, Ms. Griffith, was interviewed. In
only some details does the testimony conflict as to the content of the interviews. The
conflict bears on whether she was advised that the team was merely seeking
information and that she would be immune from any disciplinary action. The purpose of
the interview related to an incident wherein a contractor employee penetrated a security
area without being "patted down" when he had set off the security alarm
several times. The Complainant and her partner, being females, could not do this
search because the individual was male. The Respondent's testimony was that when
Ms. Griffith left to obtain a male guard the subject went on his way and that there was a
breach of security as a result.
In the course of a second interview, the Complainant disclosed
another incident that was a concern of hers that was described as "crane
gate" incident of the previous June when despite the protestations of Ms. Griffith
her immediate supervisor had disdained to conduct a "crawl test" to make
doubly sure that the gate was secure after it had been opened to admit a vehicle.
During the Kindilien testimony I was interested to learn that the
company policy placed a heavy burden upon the one learning of a security breach to
notify a supervisor within one hour of the incident and then to make sure that one
needed to go up the chain of command to make sure that there was a resolution of the
matter in question.
At page 83 of the hearing transcript my inquiry of Mr. Kindilien
begins. His responses I find shed significant light on this matter respecting the
widespread problems the investigative team found at the plant. The team identified
problems that resulted from a shared responsibility with the Respondent and the utility
relating to communication. The witness agreed that training would be appropriate to
improve communication such as suggested by the District Director.
The witness admitted that Wackenhut had to pay a substantial fine
to the utility "in regards to some of these events." Earlier this witness had
described the existence of a severe employee "cultural" problem respecting
procedure compliance.
Ms. Griffith testified in a sincere and straightforward manner. Her
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demeanor was such that it instilled confidence in the information that she presented.
Her description of events appeared unvarnished and without embellishment or excess.
She said that she was told that they were investigating the morale of the utility and the
security force personnel. The no pat down incident was brought up and why she did
not trust supervision. She advised the three interviewers that it was her understanding
that she was to adhere to all verbal and written instructions from supervisors. At
hearing she referred to a missing page from EX 5 as support for this understanding.
She described to them that there was poor communication between employees and
supervisors, the very observation described earlier by Respondent's witnesses.
Then the crane gate incident was discussed and the witness told
the interviewers that "...so information was being relayed over the radio with Mr.
Crouch (sic) ..." She also mentioned a Mr. Campbell who was being apprized of
the incident, as the person who was in charge of the shift (TR 98).
Ms. Griffith went on to describe in detail the crane gate incident as
well as the pat down one. She testified that she had prepared a statement for her union
so that it could discuss the crane gate matter to Mr. Matthews, the program manager at
the time. It was immediately after the August interviewing that Ms. Griffith was placed
on administrative leave and then suspended. Then this action was rescinded.
She stated that after her restoration things were improved at the
plant but "...I just hadn't fully gotten over the fact of, you know, people - - they
want you to be honest about things and bring things out in the open like if there's a
problem with say, a procedure or an event that takes place, but then as soon as you
bring something to their attention, they discipline you, and just like when they had taped
the doors to the badge issue booths, with that issue..." The witness felt that she
was being treated differently. Although this is subjective it is important to appreciate
how she felt.
Ms. Griffith reported that it was only after the attempted
suspension that there was a posting of whistle blower rights. In the process of filing her
complaint a Mr. Carney told her that this was the first he had heard of what she had
described. Later, when she received the letter that the finding was in her favor she felt
confident that there would be training for supervisors. She also said that she is pleased
with the new manager, Mr. Cogdell.
As can be readily seen from Ms. Griffith's testimony at least with
the crane gate event she made her immediate supervisor aware of her safety concern
and this in part caused the shift manager to be aware of what happened. Further, when
she related all of the cited incidents to the investigative team, including Messrs. Harper
and Kindilien, she was, in fact, engaging in protected activity. When the disciplinary
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action was taken shortly after her interviews the action can only be viewed to have
been the proximate result of her protected activity, irrespective of whether Mr. Richard's
statement of her contact with the NRC was accurate or not.
The issues in this matter are not dependent on what Mr. Richards'
rationale or fact finding may have been since this is a denovo inquiry wherein I am to inquire fully into relevant evidence
relating to the dispute. Her action of talking her concern to her union first does not
vitiate the fact that she raised a question about various events before the interviewers.
Further, it does not make any difference that Mr. Richards' office did not interview
Kindilien or Harper. They testified before me and their testimony only differed with
Griffith's marginally.
While Ms. Griffith conceded that there was definite improvement
as the company witnesses pointed out that there was a need for acculturation at the
plant and she was still uneasy about having brought up the issues she had described in
the interviewing process, provoking her filing of her complaint with DOL.
Although Wackenhut substantially purged itself of its
discrimination by rescinding its suspension action, its persistence in maintaining this
action demonstrates a lack of understanding of the gravity of its action against the
Complainant. This understanding can be achieved through training.
RECOMMENDED REMEDY
In addition to certifying and describing its compliance with the
District Director's remedy relating to training, the Respondent should also reimburse
Ms. Griffith for the costs of litigation, including but not limited to the cost of her travel to
the hearing.
SO ORDERED.
Ainsworth H. Brown
Administrative Law Judge
Camden, New Jersey
NOTICE: This Recommended Decision and Order and the administrative
file in this matter will be forwarded for final decision to the Administrative Review Board,
United States Department of Labor, Room S-4309, Frances Perkins Building, 200
Constitution Avenue, N.W., Washington, DC 20210. See 61 Fed. Reg. 19978
and 19982 (1996).