U.S. Department of Labor
Office of Administrative Law Judges
Heritage Plaza, Suite 530
111 Veterans Memorial Blvd.
Metairie, LA 70005
DATE: APR 26, 1989
CASE NO. 88-ERA-4
IN THE MATTER OF
DANIEL MILLER,
Complainant
v.
EBASCO SERVICES, INC.,
Respondent
J. Walter Park, IV, Esq. and
Kenneth R. Cooper, Esq.
For the Complainant
Samuel E. Hooper, Esq.
For the Respondent
BEFORE: QUENTIN P. McCOLGIN
Administrative Law Judge
RECOMMENDED DECISION AND ORDER DISMISSING THE COMPLAINT
This is an action involving a complaint of discrimination
under the Energy Reorganization Act of 1974, 42 U.S.C. §
5851. Complainant, Daniel Miller, seeks $50,000.00 in damages
l/ from respondent, Ebasco Services, Incorporated (Ebasco).
This case was referred to the Office of Administrative Law
Judges on October 24, 1987. The matter was scheduled for hearing
on December 7, 1987. On November 27, 1987 complainant waived the
time constraints imposed by the regulations found at 29 C.F.R.
§ 24.6(a)(b) and filed a motion for continuance. The
undersigned granted this motion and rescheduled the hearing for January 12,
1988. A telephone conference was held in this matter on December
15, 1987, at which time the parties jointly requested another
continuance. The undersigned granted this continuance. The mat-
ter was called for formal hearing on February 2, 1988. At that
[ALJ PAGE 2]
time the parties were afforded an opportunity to present evidence
and argument in support of their respective positions. Proposed
1/ The parties entered into a stipulation of damages
wherein it is stipulated that contingent upon a determination of entitlement
to damages, complainant's damages were $50,000.00.
findings of fact and conclusions of law were submitted by both
parties subsequent to the formal hearinq. To the extent that
these proposed findings are not adopted they are rejected as
either inaccurate or unnecessary for the disposition of the
case. Having considered all of the evidence and argument, the
undersigned does hereby issue the findings, conclusions and order
set forth below.
FINDINGS OF FACT2/
Miller, complainant, was hired by respondent, Ebasco
Services, Incorporated as a quality control coatings inspector in
January, 1984. (Tr. p. 22). Miller received a certification as a
coatinqs inspector upon passing a test administered to him. (Tr.
p. 25). Miller served as a quality control coatings inspector
for Ebasco from then until the fall of 1985. For the first three
or four months he was assigned to the area of the worksite
designated as Unit I. (Tr. p. 31). Thereafter he was assigned to
the fabrication shop where he continued to work as a
coatings inspector for about 5 months. (Tr. pp. 34, 71,
77). Sometime around Auqust, 1985, Miller contacted the Nuclear
Requlatory Commission (NRC) concerning quality control procedures
involving the application of safety coatings. (Tr. pp. 66-79).
In the fall of 1985, Miller was transferred to the mechanical
quality control group and, after a period of several months
during which he studied the specifications applicable to
mechanical inspections, was certified as a mechanical quality
control inspector in January or February, l986. (Tr. p. 77). In
February, 1987, Miller, as well as other certified coatings
inspectors, were again assiqned to the quality control coatings
group to expedite the coatings work needed to complete Unit I.
(Tr. p. 392).
Miller reported to work on the Unit 1 second shift of the
quality control coatings group on February 23, 1987 and was
assigned to work under the direction of the second shift lead
quality control coatings inspector, Al Gunter. (Tr. p. 91,
358). The supervisor of the second shift coatings inspectors was
Dave Emory and the second shift quality control site supervisor
[ALJ PAGE 3]
was Don Richter. (Tr. p. 334). Miller was not immediately
assiqned to perform quality control inspections, but was assigned
to amiliarize himself with the site coatings specifications as
they had chanqed significantly from when he had previously served
as a quality control coatings inspector. (Tr. pp. 91, 204, 358).
Miller spent the first week he was assiqned to the quality
control coatings group reading the specifications. (Tr. pp. 96,
358-359). A fellow quality control coatings inspector, Duane
Soileau, offered Miller the opportunity to accompany him on his
2/ Citations to the transcript of the hearing will be
shown as Tr.. Citations to Complainant's Exhibits will be CX
and to Respondent's Exhibit RX .
inspection of coatings work being performed on the polar crane in
Unit l, but Miller declined the invitation stating that "was a
job for younq men." (Tr. p. 443, contra. Tr. pp. 204-205). A
similar invitation was extended to Miller by A1 Gunter which
invitation was also declined by Miller. (Tr. p. 359, contra. Tr.
pp. 204-205).
Miller was absent from work on Monday, March 2, 1987, and
began performing quality control coatings inspections on March 3,
1987. (Tr. pp. 96-97). On that date Miller also prepared a
memorandum to Gunter suggesting ways to reduce the amount of
paperwork in the coatings group. (RX 2). Miller's memorandum was
in response to a request for such suggestions made by the first
shift quality control coatings supervisor, Johnny Stevens. (Tr.
p. 213). One of Miller's suggestions was to cease taking an
ambient temperature reading every four hours because the ambient
temperatures inside the Unit 1 reactor containment building were
controlled by the Control Room and kept at a constant figure
which could be obtained by "callinq ex. 8595." (RX 2; Tr. pp.
213-214). Miller discussed his suggestions with Gunter on March
4, 1987. (Tr. p. 98). Miller emphatically expressed his opinion
that it was not necessary to take an ambient temperature reading
every four hours as required by the coatings specifications.
Gunter instructed Miller that unless and until the specifications
were changed they were obligated to comply with the specifica-
tions as written. (Tr. p. 100, 335-336). Gunter prepared a
memorandum to Emory documenting his conversation with Miller and
that Miller had been instructed to comply with the existing
specifications and procedures. (Tr. pp. 335-336, 578; CX 14).
On the evening of March 5, 1987, Miller was assigned to
perform a pre-application inspection of coating work to be
performed on the polar crane. (Tr. pp. lO6-107). A pre-
[ALJ PAGE 4]
application inspection consists of a visual inspection of the
areas to be coated to insure that they are clear and free of dirt
or grime, the taking of a dry film thickness reading and an
ambient temperature reading. (Tr. pp. 107-108, 394, 423).
Quality Control Inspector Soileau was assigned to perform a
pre-application inspection of coating work to be performed on the
orbital bridge, slightly above the polar crane. (Tr. p. 394).
Soileau observed Miller on the polar crane on that night, but
never saw Miller perform the pre-application inspection of the
work to be performed on the polar crane. On the following
evening, Friday, March 6, 1987, Soileau was again assigned to
perform a pre-application inspection on the orbital bridge. (Tr.
pp. 111, 400). Due to his concerns that Miller had not performed
an adequate inspection the previous niqht, Soileau observed
Miller more closely on the night of March 6, 1987 and was again
concerned that Miller had not properly performed the required
pre-application inspection. (Tr. p. 423).
The inspection report Miller prepared for the pre-application
inspection of March 6, 1987, reflects that he took an
ambient temperature reading at 2050 (8:50 p.m.) and Miller
testified that he came down from the Polar crane and returned to
the coatings office shortly thereafter. (CX 5; Tr. p. 210).
Soileau completed his pre-application inspection of the orbital
bridge and returned to the coatings trailer at approximately 9:45
p.m. and Miller was in the trailer. (Tr. p. 426). Miller and
Soileau remained in the coatings trailer attending to paperwork
for the remainder of the evening. Miller left the trailer on two
or three occasions, but was gone for only four or five minutes on
each occasion. (Tr. pp. 428, 442). Miller signed out of the
coatings office and out of the main gate to the site at 2400
(midnight) on March 6, 1987. (RX 15, 17)~. M1ller testified that
he received a telephone call from the foreman who was supervising
the coatings work informing him of the time of completion of the
work. (Tr. p. 211). Miller's inspection report reflects that the
coatings work was completed at 2400 (CX 5, block 30; Tr. pp.
210-211).
Prior to Miller leaving the site on the niqht of March 6,
1987, Soileau asked Miller for his inspection report for that
night because the craftsmen performing the work on the orbital
bridge were using the same paint mix as were the craftsmen on the
polar crane and Soileau needed to include the paint mix
information on his report. (Tr. pp. 430-431). After Miller left
the site, Soileau noticed that Miller had entered on his report
that he had taken a second ambient temperature reading at the
polar crane at 2355 (11:55 p.m.). (Tr. pp. 431-432; CX 5).
[ALJ PAGE 5]
Soileau knew that Miller could not have taken ambient temperature
readings at the polar crane at 2355 because Miller had been in
the coatings trailer at that time and had left to go home five
minutes later at 2400 (midnight). (Tr. p. 432). Futhermore
Soileau believed that Miller did not take the second ambient
temperature reading as required by the specifications because
Miller had been in the coatings trailer with Soileau since from
9:45 p.m. that evening until midnight and while Miller had left
the trailer on two or three occasions during that time interval
for five or less minutes each time, he had not been absent from
the trailer long enough to have performed the second ambient
temperature readings.3/ (Tr. p. 403-405). Soileau
informed Gunter of his concerns prior to leaving the site and Gunter
prepared a memorandum to Emory advising him of Soileau's
concerns. (Tr. p. 341, 359-360, 434, 571; CX 17). Soileau
reported his concerns to Gunter because he considered it a part
of his responsibility to report any concerns he had regarding the
safety of the plant. (Tr. pp. 447-449).
3/ It would take at least 10 to 20 minutes to go to and
from the coatings trailer to the polar crane area and return. (Tr. p.
406). Furthermore, the parties stipulated that it was impossible
to have gone to the polar crane area, taken the ambient
temperature reading, then gone back to the trailer and then gone
to the gate in five minutes. (Tr. p. 570 ). Thus, it was
physically impossible for Miller to have taken the second reading
at 23:55 as he reported and then siqn out at the gate five
minutes later.
On Monday, March 9, 1987, Soileau was called into a meeting
with Gunter, Emory and Richter and was asked to relate his
concerns reqarding Miller's pre-application inspections of March
5 and 6, 1987. (Tr. p. 435-436). After Soileau related his
observations, Richter asked Soileau to put his concern in
writing. (Tr. pp. 360-361; 435-436; CX l5). On March 9, 1987,
Soileau prepared a written quality concern regarding the
pre-application inspections of Miller on March 5 and 6 and the
concern that Miller had not taken a second ambient temperature
reading at 11:55 p.m. on March 6 as stated on his inspection
report. (Tr. p. 436; CX 27). Due to the concerns about Miller's
pre-application inspections raised by Soileau, Gunter was
instructed to monitor some of Miller's pre-application
inspections to determine if they were being properly performed.
(Tr. pp. 361-363, 641-642, 656). Gunter's monitorinq of Miller
on March 14 and 15, 1987, proved inconclusive as to whether or
not Miller was properly performing the pre-application
inspections. (Tr. pp. 387, 642; CX 16, 18 and 20).
[ALJ PAGE 6]
Thereafter, Ebasco's Quality Control Site Supervisor, Ron
Able, forwarded Soileau's quality concern to SAFETEAM for further
investiqation. (Tr. pp. 642, 655). SAFETEAM is an independent
organization which is responsible for conducting investigations
of all concerns made by employees at the South Texas Nuclear
Project regarding the construction of the project. (Tr. p. 290).
Once a quality concern is raised by an employee, the quality
concern is referred to SAFETEAM for investigation. (Tr. pp. 298,
643, 647).
SAFETEAM began its investigation of Soileau's quality
concern by interviewing Soileau on the evening of March 30,
1987. (Tr. p. 436). Soileau discussed his concerns about
Miller's pre-application inspections of March 5 and 6 and his
concern that Miller may have falsified an inspection report.
(Tr. p. 437). On the same evening, a SAFETEAM investigator met
with Miller to discuss the concerns Soileau had raised and also
discussed numerous errors Miller had made on some of his other
inspection reports. (Tr. pp. 130-131, 220). Immediately
following his interview with SAFETEAM, Miller found Soileau in
the restroom and asked Solleau if he had gone to SAFETEAM. (Tr.
p. 438). When Soileau confirmed to Miller that he had qone to
SAFETEAM, Miller told Soileau that "I better watch my back
because he was out to get me." (Tr. p. 438).
Two days later, April 1, 1987, Soileau's supervisor, Emory,
was stopped by another coatings inspector, Tom Turner, and asked
why Soileau was checking after other inspectors. (CX 10). Emory
was told that Soileau had been overheard asking a paint foreman
about a floor that Miller had inspected. Emory reported the
matter to another supervisor, Roy Byrd. (CX 10). Byrd and Emory
called in Soileau and asked him if he was checkinq on other
inspector's work. (Tr. p. 418). Soileau told Byrd and Emory that
he had asked a painter foreman, who had applied the coating, the
thickness of the prime coat that was applied in order for him to
permit the application of the top coat. (CX 8, 10; Tr. p. 418).
On April 2, 1987, Miller, Turner and another inspector, D.
Alston, went to Emory and Byrd complaining about Soileau askinq
painters about Miller's work and watching Miller. (CX 9). On
April 3, 1987, Byrd and Emory again met with Miller, Turner and
Alston regarding Soileau checking on Miller's work. Byrd
informed the group that the matter was being handled by
SAFETEAM. Miller stated that he would give SAFETEAM one week to
complete its investigation and then he would "take action on his
[ALJ PAGE 7]
own." (CX 7 and 11).
By memorandum dated April 13, 1987, SAFETEAM notified
Houston Lighting & Power Company (HL&P) nuclear security that it
was conducting an investiqation and had determined that
"potential wrongdoing is indicated by personnel, relative to QC
(Quality Control) inspections and QC documentation 'error'
corrections in the second shift coatings area." (RX 18, Tr. pp.
479-480). The notification to HL&P nuclear security is in accord
with site procedures as HL&P nuclear security investigates all
matters involving potentia1 wrongdoing. (Tr. pp. 486-487). On
April 28, 1987 SAFETEAM issued its report of its investigation of
Soileau's quality concern. SAFETEAM concluded that Soileau's
concerns were substantiated. (RX 20). On that date, SAFETEAM
informed HL&P nuclear security of the results of its
investigation and requested HL&P nuclear security to examine the
report for potential wrongdoing. (RX 19).
On May 6, 1987, HL&P nuclear security investigator Carlos
Ottino began his investigation of potential wrongdoing on the
part of Miller in falsifying an ambient temperature reading on
Inspection Report IC-70220. (CX 5; RX 29(3)). At the start of
his interview with Miller, Ottino requested Miller to sign an
HL&P Preliminary Interview Form which set forth the expectations
of HL&P with respect to the investigation and setting out that
any refusal or failure to cooperate in the investigation "may
result in your access being denied from STP". (RX 29(14)). The
form further provided that failure to cooperate included "your
refusal or failure to take and respond truthfully to a polygraph
examination." (RX 29(14)). In the interview, with Ottino, Miller
could not recall the particular inspection covered by Inspection
Report IC-70220 nor could he remember when he had taken the
second ambient temperature reading shown on that report, but
stated that if he recorded 2355 as the time he took the second
ambient temperature readings then that was when he did so. (RX
29(4); Tr. pp. 546-547). Ottino told Miller that it would have
been impossible to have taken the ambient temperature reading at
2355 and to have signed out of the plant at 2400 and as such
Miller would be asked to submit to a polygraph examination. (Tr.
p. 178, 183 RX 1). Ottino also interviewed the painters that
had performed the coatings work on the areas of the polar crane
covered in Miller's Inspection Report IC-70220.
The three painters who performed the coatings work on the
polar crane on the night of March 6, 1987, Daniel Munoz, Hector
Suarez and Hernandez 4/ started applying the coatings to
the areas of the polar crane at approximately 9:OO p.m. on the
night of March 6 and completed their coatings work at
approximately
[ALJ PAGE 8]
midnight. All three painters testified that they did not see
Miller come up to the polar crane on the night of March 6 at any
time after 9:00 p.m. that night nor did they see Miller on the
ladder leading up to the polar crane. (Tr. pp. 552-554; 559-560).
Miller was absent from work on Monday, May 11, 1987 and did
not call in to report his absence until 11:50 p.m. Miller was
also absent on Tuesday and Wednesdav, May 12 and 13, 1987, and
did not call in until after 9:00 a.m. to report his absence.
Miller was scheduled to report for work at 6:00 a.m. (Tr. p.
609). Due to Miller's failure to call in and his having been
absent on six Mondays in 1987, Miller's supervisor, Stevens,
prepared a written warning to be issued to Miller. (Tr. p. 584;
RX 3). Stevens discussed the warning with Miller on the morning
of May 19, 1987. Miller had been scheduled to work until
midnight on March 10, 1987 and should not have been scheduled to
report for work at 6:00 a.m. the following morning. Stevens
acknowledged the mistake and understood his being late to work
that morning. (Tr. p. 610; RX 30). However, Miller had been
absent too frequently on Mondays, and had failed to call in to
report his absence until more than three hours after his starting
time on three consecutive days and the warning would be issued
for those reasons. (Tr. p. 610; RX 30). Miller prepared a
response to the warning which was attached to the warning and
forwarded to Personnel. (RX 3l).
On May 19, l987, Ebasco received notification from HL&P that
Miller was scheduled to submit to a polygraph examination at 4:45
a.m. on May 21, 1987 in furtherance of the investigation being
conducted by the HL&P Nuclear Security Department. (RX 6; Tr.
pp. 187-l88). On May 18, l987, Miller's attorney wrote to Ottino
and Able regarding the Polygraph Miller was scheduled to take and
the reasons for the polygraph. (RX 22a). On May 20, 1987, HL&P
notified Ebasco that the polygraph previously scheduled for
Miller had been postponed due to the letter from Miller's
attorney. (RX 7; Tr. p. 184, 496-497).
4/ The parties stipulated that Hernandez would testify
substantially the same as Suarez. (Tr. p. 562). Munoz, Suarez
and Hernandez were the three painters identified on Miller's
Inspection Report IC-70220 as being the painters who were to
apply the coatings to the areas covered by the inspection
report. (CX 5).
[ALJ PAGE 9]
Just prior to or immediately after Miller was informed of
the date and time for his polygraph examination, Miller visited
the NRC offices at the South Texas Nuclear Project. (Tr. pp. 145,
708-709; CX 36, p. 11). The NRC Inspection Summary reflects that
its inspection covered the period from May 11 through July 3,
1987. (CX 38). The issues raised by Miller with the NRC related
to the sandblasting of valves which had occurred while Miller was
assigned to the fabrication yard in 1985. (CX 38, pp. 10-12).
The NRC conducted an investigation regarding the valves and found
no problems regarding the valves. (CX 38, p. 11).
By letter dated June 5, 1987, the HL&P Nuclear Security
Department informed Ebasco that Miller was scheduled for a
polygraph examination to be conducted on June 11, 1987 at 10:00
a.m. (RX 8). Miller appeared at the office of the polygraph
examiner, but told the examiner that he was not voluntarily
submitting to the polygraph examination, but was doing so only
because he would otherwise lose his job. (Tr. p. 195, 500-501;
RX 29(17)). On June 15, 1987, Ebasco was informed by HL&P that
"Miller's site access is denied due to his failure to fully
cooperate while under investigation by the Nuclear Security
Department for a potential wrongdoing." (RX 9; Tr. p. 307, 502).
Miller was informed by Ebasco Site Personnel Manager, Bill Urell
in the presence of Ottino that Miller's site access would be
denied by HL&P unless he agreed to submit to a polygraph
examination. (Tr. pp. 307-308).
Miller's attorney wrote HL&P and Ebasco on June 16, 1987
advising that Miller would agree to submit to a polygraph
examination conducted by a polygraph examiner acceptable to
Miller's attorney (RX 23). Based upon the assurances of
Miller's attorney, HL&P informed Ebasco by letter dated June 18,
1987, that Miller's site access was being restored subject to
Miller fully cooperating in the investigation being conducted by
the HL&P Nuclear Security Department, not performing any safety
related work until the investigation was completed and success-
fully completing a polygraph examination. (Tr. p. 308; RX 10).
Miller was again scheduled for a polygraph examination for June
23, 1986. However, Miller became ill and the polygraph examina-
tion was canceled. (RX 25). Another polygraph examination was
scheduled for Miller for June 29, 1987, but was canceled due
to the illness of the examiner. (Tr. p. 195; RX 11, 25, 29).
Miller's attorney and an attorney for HL&P agreed upon another
polygraph examiner to conduct the polygraph examination of Miller
and Miller was again scheduled for a polygraph examination for
July 8, 1987. (Tr. pp. 507-508; RX 28, 12). Ebasco was not
[ALJ PAGE 10]
involved in the decision to require Miller to submit to a poly-
graph examination, nor in the scheduling of any of the polygraph
examinations. 5/ (Tr. pp. 303-312, 490, 492).
5/ The dates, times and locations of the scheduled appointments
for the polygraph examination were transmitted to Miller from
HL&P using Ebasco personnel as a conduit for those communica-
tions. (RX 6 through RX 12).
Miller filed a Complaint with the Department of Labor
alleging that he was being subjected to harassment sometime after
his visits to the NRC in 1987. (Tr. pp. l70, 710, 711). The
Complaint filed by Miller is dated June 3, 1987 and date stamped
as received June 8, 1987 by the U.S. Department of Labor,
Houston, Texas. (See Pleadings file).
Miller reported for the scheduled July 8, 1987 polygraph
examination and was finally administered the polygraph. Upon the
conclusion of the polygraph, Ottino was informed that Miller had
not passed the polygraph examination. (Tr. pp. 513-5l4). The
polygraph examination of Miller culminated the investigation
which Ottino had been conducting regarding Miller's falsification
of the ambient temperature reading on Inspection Report
IC-70220. Ottino concluded that Miller did not record the
ambient temperature reading in accordance with established site
procedures and that Miller did not physically locate himself in
the vicinity of the polar crane at the time the second ambient
temperature reading was recorded, and for those reasons Miller's
access to the South Texas Nuclear Project was denied. (RX 29(7);
Tr. pp. 514, 517-520, 539, 544-545). On July 9, 1987, Ebasco
received a letter from HL&P advising that "effective this date,
the investigation concerning D. Miller's involvement in a
potential wrongdoing matter has been completed. Accordingly, his
site access to the South Texas Project is denied." (RX 13; Tr.
p. 312). Ebasco had no input into the decision to deny site
access to Miller. (Tr. p. 514). On that date, Miller was told to
clean out his desk and report to Urell's office. Urell informed
Miller that he had been denied access to the South Texas Nuclear
Project by HL&P and that, accordingly, he was being terminated
from the South Texas Project by Ebasco. (Tr. p. 3l2; RX 14). At
that time, Miller's name as well as the names of two other
individuals were provided to other sites where Ebasco was then
employing quality control personnel, none of the three were
picked up by another site and all were laid off by Ebasco as a
reduction in force. (Tr. pp. 671-673; RX 34). At the time Miller
was terminated from the South Texas Nuclear Project, Ebasco had
not been apprised of the basis for the results of the SAFETEAM
and HL&P Nuclear Security Department investigations. (Tr. p.
[ALJ PAGE 11]
676). However, in preparinq for the hearing in the instant case,
Ebasco discovered the information developed in those
investigations, has come to the same conclusion and Miller would
not now be eligiible for rehire by Ebasco. (Tr. p. 676).
DISCUSSION
As was discussed above in the Findings of Fact, the sequence
of events culminating in the termination of Miller by Ebasco
unfolded in a period of time covering over three years. While
all of these events are relevant to the disposition of this
matter and to the burdens of proof that must be borne by the
parties, all of these events are not actionable under the Energy
Reorganization Act of 1974, 42 U.S.C. § 5851. 42 U.S.C.
§ 5851(b)(1) and 29 C.F.R. §24.3(b) allow a complainant
to file his complaint within 30 days of the occurrence of an alleged
violation. Miller filed his original complaint on June 8, 1987.
Miller also filed a First Amended Complaint on July 15, 1987 and
a Second Amended Complaint on August 17, 1987. Therefore, no
action taken by Ebasco prior to May 9, 1987 is actionable as no
complaint was timely filed. Therefore, the transfer of claimant
to the fabrication yard in 1985 is not an actionable adverse
employment action under this complaint. The surveilance of
Miller and the related file initiated by Ebasco in early March of
1987 is likewise not actionable. Finally, the referral of this
matter by Ebasco to SAFETEAM in late March of 1987 is also not an
actionable act of discrimination under this complaint. Miller's
termination by Ebasco on July 9, 1987, however, is the sole
adverse employment action made actionable by the filing of this
complaint.6/ As previously stated, all events relevant to
the relationship between Miller and Ebasco will be considered as
evidence of a possible pattern of discrimination irrespective of
the time of their occurrence, but only those events subsequent to
May 3, 1987 are actionable with respect to this complaint.
The Secretary of Labor has outlined the burdens of proof
that must be met by the parties in discrimination actions brought
under the Energy Reorganization Act of 1974, 42 U.S.C.§5851
(ERA) and its associated regulations, 29 C.F.R. § 624.
Dartey v. Zack Co., 82-ERA-2. (April 25, 1983). The Secretary's
analysis of the relevant cases and the shifting burdens of proof is
particularly clear and concise and is as follows:
I think it would be useful to set forth the
general principles which I will apply to
retaliatory adverse action cases arising under
[ALJ PAGE 12]
29 C.F.R. Part 24 and the statutes enumerated
there, because similar questions arise in
almost all these cases. There are two leading
Supreme Court cases which, taken together,
establish the overall framework for analyzing
the evidence in a retaliatory adverse action
case and evaluating whether the parties have
met their respective burdens of production or
going forward with the evidence, and burdens of
proof or persuasion. Texas Department of
Community Affairs v. Burdine, 450 U.S. 248
(1981) dealt with the initial stages of proof
in an intentional discrimination case under
Title VII of the Civil Rights Act of 1964 which
6/ The issuance of the warning letter to Miller on Mav
18, 1987 (RX 3) meets the thirty day time requirement; however, for the
reasons discussed hereinafter, such event is not considered an
adverse action related to the gravamen of this action.
I think is equally applicable to cases arising
under 29 C.F.R. Part 24. In Burdine, the
Supreme Court made clear that the plaintiff
always bears the burden of proof or persuasion
that intentional discrimination has occurred.
In Mt. Healthy City School District Board of
Education v. Doyle, 429 U.S. 274 (1977), a
retaliatory adverse action case under the
Constitution which is closely analogous to 29
C.F.R. Part 24 cases, the Supreme Court set
forth the nature of the burden of proof or
persuasion which falls upon the defendant once
the plaintiff has carried his burden of proof.
Mt. Healthy has been applied explicitly by at
least one Circuit Court of Appeals to section
5851 of the Energy Reorganization Act.
Consolidated Edison Company of New York v.
Donovan, 673 F.2d 61 (2nd Cir. 1982); Jaenisch
v. U.S. Department of Labor and Chicago Bridge
and Iron Company, F.2d (No.
81-4149, 2nd Cir. June 28, 1982.) Cf. Deford v. Secretary
of Labor, F.2d , (Nos.
81-3228 etc., 6th Cir., February 10, 1983). 7/
Under Burdine, the employee must initially
present a primafacie case consisting of
a
[ALJ PAGE 13]
showing that he engaged in protected conduct,
that the employer was aware of that conduct and
that the employer took some adverse action
against him. In addition, as part of his primafacie case, "the plaintiff must present
evidence sufficient to raise the inference that
. . . protected activity was the likely reason
for the adverse action." Cohen v. Fred Mayer,
Inc., 686 F.2d 793 (9th Cir. 1982) (applying
Burdine to a retaliatory discharge claim under
Section 704 (a) of Title VII). If the employee
establishes a prima facie case, the employer
has the burden of producing evidence to rebut
the presumption of disparate treatment by
presenting evidence that the alleged disparate
treatment was motivated by legitimate,
nondiscriminatory reasons. Significantly, the
employer bears only a burden of producing
evidence at this point; the ultimate burden of
discrimination rests with the employee.
Burdinesupra, 450 U.S. 248, 254-255. If
the
7/ Deford v. Secretarv of Labor, 700 F.2d 281 (6th
Cir. 1983).
employer successfully rebuts the employee's
prima facie case, the employee still has "the
opportunity to demonstrate that the proffered
reason was not the true reason for the
employment decision . . . . [The employee] may
succeed in this either directly by persuading
the court that a discriminatory reason more
likely motivated the employer or indirectly by
showing that the employer's proffered
explanation is unworthy of credence." Id. at
256 (citation omitted.) The trier of fact may
then conclude that the employer's proffered
reason for its conduct is a pretext and rule
that the employee has proved actionable
retaliation for protected activity.
Conversely, the trier of fact may conclude that
the employer was not motivated, in whole or in
part, by the employee's protected conduct and
rule that the employee has failed to establish
his case by a preponderance of the evidence.
Id. at 254-265. Finally, the trier of fact may
[ALJ PAGE 14]
decide that the employer was motivated by both
prohibited and legitimate reasons, i.e., that
the employer had "dual motives."
Under Mt. Healthy, if the trier of fact reaches
the latter conclusion, that the employee has
proven by a preponderance of the evidence that
the protected conduct was a motivating factor
in the employer's action, the employer, in
order to avoid liability, has the burden of
proof or persuasion to show by a preponderance
of the evidence that it would have reached the
same decision even in the absence of the
protected conduct. Mt. Healthy, supra,
429 U.S. 274, 287; Consolidated Edison Company of
New York v. Donovan, supra 673 F.2d 61, 63 .
(footnote added).
Dartey at pp. 6-9
The complainant in this case has presented a primafacie case. There is no serious dispute that in 1985 claimant went to
the Nuclear Regulatory Commission (NRC) with concerns about the
integrity of coatings being applied at the South Texas Nuclear
Project. There also is no dispute that the employer, Ebasco,
knew that complainant had gone to the NRC. Also, it is an
established fact that complainant was discharged by Ebasco.
(CX 6). The controversy revolves around whether complainant has
produced evidence that raises the inference that he was
discharged because of his contacts with the NRC.
Mr. Miller introduced evidence showing that he had been in
the coatings quality inspections group prior to his initial
contact with the NRC in 1985. (Tr. p. 22). Sometime around the
time of this contact, Miller was transferred from coatings to
mechanical inspections. (Tr. pp. 71-73). This transfer was a
lateral move and did not involve any reduction in salary. (Tr.
p. 203). Mr. Miller was reassigned to coating inspection on
February 23, 1987. (Tr. p. 90-91). Between March 6 and March
15, 1987 Ebasco personnel surreptitiously surveilled
complainant's inspections to determine if complainant was
performing his inspection duties properly. This surveillance was
immediately followed by the referral of a "concern" initiated by
a fellow inspector, Soileau, on March 9, 1987 that complainant
had not performed his inspections properly to SAFETEAM, an
independent investigatory body. Sometime around early May, 1987,
[ALJ PAGE 15]
complainant went to the NRC to complain about the harrassment he
was receiving from his employer. In a subsequent meeting with
Johnson of the NRC staff, complainant reported on safety related
conditions at the work site. Thereafter, on May 18, 1987,
complainant was issued a warning letter by Ebasco for ~an abuse
of....benefits" (exceeding the alotted sick leave and failing to
call in sick in a timely manner). Following these events,
complainant was terminated by Ebasco on July 9, 1987.
Taking the evidence offered by claimant exclusively such
evidence is determined to be sufficient to raise an inference
that the protected activities, namely, reporting safety concerns
to the NRC staff in 1985 and again in May, 1987 were the likely
reason for claimant's termination in July, 1987. Accordingly, it
is found that claimant has established a primafacie case of discrimination under the statute.
In rebuttal of the complainant's primafacie
showing, the respondent asserts that Mr. Miller was released from its employ
solely because he was denied access to the plant site by the
Houston Lighting & Power Company (HL&P) Nuclear Security
Department. Ebasco has established that HL&P did deny
complainant access to the plant site. (RX 9; RX 29). Ebasco has
also established that without access to the site complainant was
not able to perform his employment duties. (Tr. pp. 312-314).
Further, Ebasco has shown that it was unable to transfer
complainant to a job at another facility. (Tr. pp. 672-673; RX
34). The undersigned finds that this evidence establishes that
the termination of Miller was motivated by legitimate,
nondiscriminatory reasons.
Having found that respondent has put forth a legitimate
reason for terminating the complainant, the burden of persuasion
now shifts back to the complainant to show that respondent's
asserted reason was only a pretext for discriminatory conduct.
Complainant's basic theory, as argued in his briefs, is that
complainant was subjected to a series of adverse employment
actions as a result of his engaging in protected activities which
adverse actions culminated in his termination in July of 1987.
The first consideration in analyzing the events that took place
concerns the issue of whether Ebasco's transfer of complainant in
1985 constituted an adverse employment action.
The record shows that sometime near the late summer of 1985
complainant was transferred from the coatings inspection group to
[ALJ PAGE 16]
the mechanical inspection group. Complainant had no experience
or expertise in the mechanical inspection group and, according to
him, spent all of his time from the time of the transfer until
sometime in early 1986 doing nothing except studying the
mechanical specifications in order to become certified as a
mechanical inspector. Since complainant had complained to the
NRC near the time of this transfer, complainant argues that such
transfer was in retaliation to him having made safety related
complaints to the NRC.
This argument is rejected. The record shows that for
several months after the transfer, complainant's only duties were
to familarize himself with the specifications in the mechanical
section in an effort to become certified as a mechanical
inspector. After becoming certified, in early 1985, he proceeded
to perform the duties of a mechanical inspector without incident
for the next year until he was transferred back to the coatings
inspection group. During the time he was assigned to the
mechanical inspection group, he was paid the same wages as he
earned as a coatings inspector and the result was he became
qualified to perform two different functions which ordinarily
could be expected to enhance his job security. The best evidence
of how this transfer affected complainant was complainant's
acceptance of the transfer without complaint. The record shows
that while complainant was obviously aware of his rights which
protected him against retaliatory action by his employer,
complainant made no complaint about the transfer and continued
working in his new capacity as a mechanical inspector trainee and
later a mechanical inspector for approximately a year and a half
after the transfer. This inaction by complainant leads this fact
finder to conclude that the transfer was not an adverse action.
In any event the evidence is found to be insufficient to
establish that the transfer constituted an adverse employment
action.
The next consideration involves the warning letter of May
19, 1987 which Ebasco issued to complainant for allegedly abusing
his benefits. (RX 3). The evidence establishes that the issuance
of a warning letter to an employee was a disciplinary action and
could result in the employee's termination.8/ The
significance of this warning letter is that it is the only
specific action that occurred after complainant went to the NRC
in 1987 which occurred within thirty days prior to the filing of
complainant's complaint of discrimination under the Energy
Reorganization Act, 42 U.S.C. § 5851.
The stated reasons for issuing the warning letter were that
complainant had "taken off seven Mondays in 1987, having exceeded
the allowed sick time for the entire year (72 hours taken)... "
The other stated reason was "having failed to call in sick in a
timely manner". (RX 3). There is virtually no evidence in this
record concerning the number of claimed absences from work on
Mondays other than claimant's response to the warning letter
dated May 19, 1987. (RX 5). There, complainant offers an
explanation for two of the absent days. (May 12 and May 13,
1987). There was, however, substantial proof offered which
supports the conclusion that complainant's failing to call in
sick in a more timely manner did not violate any policy or work
rule applicable to complainant. Thus, concerning the substance
of the warning letter, it appears that two reasons were given one
of which was invalid. Nevertheless, there has been no showing
that the issuance of a warning letter for what shall here be
described as excessive absences from work was anything other than
a legitimate disciplinary action by complainant's employer.
Indeed, complainant does not argue in his brief that the issuance
of this warning letter constituted an adversed employment action
made in retaliation to complainant's engaging in protected
activity. Moreover, the evidence shows that the issuance of this
warning letter played no part in complainant's termination. For
these reasons the issuance of the warning letter is not found to
constitute a retaliatory act in violation of the statute.
A final consideration before addressing the merits of
complainant's contention involves the two theories of
discriminatory action advanced by complainant in his brief.
Other than complainant's actual termination in July, 1987, the
remaining discriminatory actions presented by complainant all
occurred after complainant was transferred back to the coatings
inspection group on February 23, 1987 but before he made
safety-related complaints to the NRC in May of 1987. The
principle actions which could constitute a pattern of
discrimination consisted of the gathering of a so-called secret
file against complainant and the covert surveillance of
complainant performed by Ebasco Personnel. The record shows that
the files accumulated and the surveillance of complainant which
8/ Three warning letters were required to be issued
before termination. The record shows that this was the first warning
letter received by complainant and no further warning letters
were issued to him.
was conducted by Ebasco Personnel began no earlier than March 2,
1987 and ended around mid March of 1987 - approximately ten weeks
before complainant made any safety complaints to the NRC Staff in
1987. The act of referring the "concern" that claimant had
falsified an inspection report to SAFETEAM for investigation
clearly occurred before claimant went to the NRC in May of 1987
and the other specific act claimed by complainant to be
discriminatory relates to the claim that Ebasco instructed its
employees to lie and exagerate to the SAFETEAM and Nuclear
Security Investigators about complainant in such organizations'
investigations of complainant which commenced in late March of
1987.
Since most if not all of these claimed discriminatory
actions took place before complainant complained of safety
violations to the NRC staff, which complaint most likely took
place in early May of 1987, complainant advances two theories of
how such actions constitutes adverse employment actions violative
of the Energy Reorganization Act. The first theory is that these
actions were in retaliation of complainant having made safety
complaints to the NRC Staff in 1985. As tenuous as this theory
is factually due to the lapse of time between the asserted
protected activity and the claimed retaliatory action, this
theory of violation is viable. The other theory is not.
Complainant asserts as an alternative theory of violation that
the aforesaid retalitory actions were taken by Ebasco in
anticipation that complainant would "be back to the NRC with
similar complaints as those lodged in 1985". (Complainant's
brief at 7; See also Complainant's brief at 5). Thus,
complainant claims that the employer's actions constituted
"anticipatory retaliation" which constitutes prohibited activity
under the "about to commence" clause of the Energy Reorganization
Act. (42 U.S.C. § 5851(a)(1))
The evidence of record simply does not support this
alternative theory of violation and it is therefore rejected.
The record is devoid of any evidence suggesting that complainant
would make any further complaints of safety violations until
April 3, 1987 when Miller announced "he would give SAFETEAM one
week to do their investigation then he would take action on his
own." (CX 11).9/ Prior to that announcement by
complainant, there is nothing in this record that would sugqest that
complainant, by deed or word, was going to make any further
complaints to the NRC about safety conditions at the work site.
9/ This statement by complainant can be construed as a
threat by complainant that if the SAFETEAM investigation against him was
not closed within a week, he would go back to the NRC with more
complaints.
Turning now to the thrust of complainant's case, it is his
contention that Ebasco was out to get him from the outset of his
being transferred back to the coatings inspection group in late
February, 1987. Thus, according to the conspiratorial theory
advanced by complainant, Ebasco soon afterward instituted a
covert surveillance program to monitor claimant's activities,
maintained a secret file on him, turned the matter over to
SAFETEAM for investigation and waged a secret campaign of lies
about him after the charges of his possible misconduct had been
turned over to SAFETEAM for investiaation. Further, these Ebasco
activities ultimately led to complainant being denied site access
by HL&P and then terminated by Ebasco.
In examining what is presented as the four manifestations of
this pattern of discriminatory conduct by Ebasco, it is concluded
that they are not the result of a effort to retaliate against
complainant and do not support complainant's conspiratorial
theory. To the contrary, both the surveillance of complainant by
Ebasco personnel and the maintenance of files which basically
relate to such surveillance activity appear to be both reasonable
and proper under the circumstances. Furthermore, the claim of
disparate treatment is unsupported by the facts as is the claim
that Ebasco instructed its employees to lie and exaggerate about
Miller's inspection activities to the SAFETEAM investigators.
The so-called covert surveillance of Miller's inspection
activities was a result of observations reported to Ebasco
supervisory personnel by another coatings inspector, Duane
Soileau, who reported that he had observed Miller not performing
his inspection duties properly. The record shows that Soileau's
observations of Miller's activities was done on Soileau's own
initiative and without the instigation of Ebasco personnel and
that Soileau's motivation for observing Miller's inspection
activities was a genuine concern that a fellow employee was not
perfoming his job properly and thereby jeopardizing the integrity
of the inspection process critical to safety of the plant. The
record further shows that the surveillance that was instigated by
Ebasco as a result of Soileau's report was done in an effort to
determine if there was any substance to this report and that it
was only after this surveillance proved to be inconclusive that
the matter was referred to SAFETEAM for investigation. Under
these circumstances it is found that the surveillance of Miller
was both reasonable and proper.
The so-called secret file consist of documents received as
CX 14 through 20. All of these are handwritten memoranda written
by complainant's lead inspector, Al Gunter to Gunter's
supervisor, Dave Emory. With one exception, the memorandum
comprising this file consist of Gunter's documentation of his
surveillance of Miller's inspection activities together with a
background memorandum prepared by Gunter on March 9, 1987 or
thereafter. (CX 15; CX 16). The one exception to this is the
memorandum dated March 4, 1987 from Al Gunter to Dave Emory
received as CX 14. This memorandum briefly summarizes a
discussion Gunter had with Miller on March 2, 1987 the subject
matter of which is described by Gunter in the memorandum as a
ways to cut down on paperwork. In actuality, the discussion
which was testified to by both Gunter and Miller related to a
proposal by Miller to eliminate the necessity for the taking of
ambient temperature readings. It is critical to the substantive
issues in this case in that it documents Miller's disinclination
to take ambient temperature readings. However, as to the issue
presented here, namely, whether the maintenance of such
documentation by Ebasco is a manifestation of a pattern of
conduct by Ebasco Personnel to retaliate against Miller, no such
inference is drawn. Indeed, given the fact that Ebasco did
undertake an in-house surveillance of Miller's activities prior
to referring the matter to SAFETEAM for investigation, it would
be surprising if the documentation evidenced by CX 15 through 20
was not generated and maintained. As to the earlier memorandum
dated March 4, 1987 (CX 14), its author, Al Gunter testified that
he prepared it and sent it to his supervisor for informational
purposes simply because Gunter thought it sufficiently important
to aprise his supervisor of what had transpired between himself
and Miller during their discussion. (Tr. pp. 574-576). Mr.
Gunter's explanation as to the creation of this memorandum is
accepted and the creation and the maintenance of these memoranda
(CX 14-20) are rejected as evidence that Ebasco commenced actions
immediately after Miller was transferred back into coatings in
retaliation for Miller having gone to the NRC.
Complainant's claim of disparate treatment which is claimed
to be in furtherance of this pattern of discrimination against
claimant refers to the referral of the allegation of Miller
having falsified an inspection report to SAFETEAM for
investigation. The substance of complainant's contention here is
that the investigation of his activities should not have been
referred to SAFETEAM, but should have been pursued by the
issuance of a Noncomformance Report (NCR). Complainant contends
that investigations of other inspectors facing similar charges
were not referred to SAFETEAM for investigation; hence, the
referral of charges against him to SAFETEAM for investigation
constitutes evidence of disparate treatment.
This contention is also rejected. Complainant proffers the
treatment received by two other inspectors, Tom Glidden and Otis
Ross to show that similar charges were made against them and that
the handling of these other charges did not result in referring
the matters to SAFETEAM for investigatfon. While this is true,
the facts and circumstances of these two other instances are
clearly distinguishable from these presented here. The Glidden
investigation occurred in 1984, it preceeded the creation of
SAFETEAM. In the Glidden incident, an in-house investigation was
conducted by Ebasco to determine if allegations made that Glidden
had falsified inspections could be corroborated. This in-house
investigation by Ebasco could not corroborate the allegations (CX
23) and the matter was concluded without further action. Insofar
as this record shows, there was no other investigative arm
available to handle such incidents until January of 1986 when
SAFETEAM was created.
The 0tis Ross incident arose out of inspection reports
prepared by Ross which reported that he had conducted inspections
at two different places at the same time. At the time this
discrepancy was discovered Ross was no longer employed by Ebasco;
thus, the matter was handled by issuing a Nonconformance Report
which denotes a deviation from a specification and requests a
disposition by a Bectel Engineer (the prime contractor) to remedy
the deviation. In addressing this apparent deviation, Bectel
determined that there was no deviation rationalizing that the
inspector had merely rounded off the times of the
inspections.10/
Despite the dubious disposition of the Ross matter, it does not
demonstrate a difference in treatment which would support
complainant's contention that he received desparant treatment
from his employer. The charges against Miller were referred to
SAFETEAM because they constituted possible evidence of wrongdoing
by Miller, a current employee, that required investigation to
determine whether the descrepancies in his inspection report were
a result of wrongdoing or unintentional error. While the Ross
incident may also represent a situation where another inspector
had engaged in wrongdoing, that inspector was no longer employed
at the works site and was no longer employed by Ebasco. Under
these circumstances, this difference in treatment was amply
justified.
The final matter presented as evidencing a pattern of
discrimation against complainant is the allegation that Ebasco
instructed its employees to lie and exaggerate to the
investigators after the allegations against complainant was
turned over to SAFETEAM. Having thoroughly considered this
issue, it is determined that there is simply no merit in this
contention. There is no evidence of any such instructions
eminating from Ebasco or its personnel and any differences
between the statements made by Ebasco employees to the
investigators from the testimony those employees gave at the
hearing can be explained on the basis of inexactness of
expression rather than any attempts to mislead the investigators
as to Miller's activities.
10/ The proof in this record establishes that coatings
inspectors were instructed and trained to record the precise time
of their inspections and that they were not instructed to round
off such times.
Having considered and rejected each of the principle matters
presented by complainant as supporting his contention that he was
subjected to a pattern of adverse employment actions against him
as a result of his having complained of safety violations to the
NRC, it follows that complainant's claim of discrimination must
fail. The evidence shows that Ebasco terminated complainant for
the precise reason which they gave, namely because HL&P as a
result of investigations conducted by them and its agents denied
complainant access to the site. In reaching this conclusion, it
is not appropriate or necessary for this fact finder to determine
whether or not Miller falsified an inspection report as HL&P
concluded as a result of its investigation. The salient point to
be made here is that complainant's employer, Ebasco, acted
properly and the evidence falls far short of establishing an act
or acts of discrimination against claimant which are attributable
to claimant having made safety complaints to the NRC.
In reaching the forgoing ultimate conclusion which is
dispositive of this case, two additional issues will be
addressed. The first of these concerns the polygraph
examinations which the record shows complainant was coerced into
undergoing by HL&P, the results of which undoubtably was a factor
in that HL&P's determination to deny complainant site access.
Whether using the results of those polygraph test was legal or
illegal is an issue beyond the scope of this determination. It
is clear from this record that the use of the results of the
polygraph examinations was action attributable to HL&P and not
Ebasco. The record further shows that Ebasco's role with respect
to the polygraph examinations were simply to communicate to its
employee, Miller, the times and places when HL&P had scheduled
Miller to undergo these polygraph examinations. The final point
to be made with respect to the polygraph examinations is that
since the undersigned makes no determinations here as to whether
or not Miller did in fact falsify the March 6, 1987 inspection
report, the results of the polygraph examinations were not
considered in determining the issues presented here including
credibility issues.
The final issue to be addressed concerns the conflict in
evidence. Both Gunter and Soileau testified that on different
occassions each invited Miller to accompany them on an inspection
in the area of the polar crane and that Miller declined each
invitation. (Tr. pp. 359, 410, 443-446). Both Miller and Gunter
testified that these invitations were extended to Miller shortly
after he was transferred back to the coatings inspection group
[ALJ PAGE 17]
which occurred on February 23, 1987. Complainant on the other
hand emphatically denies any such invitations. (Tr. pp. 204-205).
In resolving this conflict in the testimony, the undersigned
finds that Miller was invited to accompany by both Soileau and
Gunter. This finding is based upon the undersigned's
determination of the credibility of the witnesses and the weight
of the evidence on this issue. The undersigned was particularly
impressed with the sincerity of Soileau as revealed by his
demeanor at the formal hearings. The undersigned was also
impressed by the objectivity of Gunter. His testimony as well as
his actions, as revealed by this record, demonstrate a lack of
animus on his part towards complainant. While the testimony of
Gunter and Soileau do not directly corroborate either invitation,
their combined testimony supports the conclusion that Miller
was offered an opportunity to accompany another inspector and
that Miller declined the invitation. In light of this direct
conflict, the undersigned must balance the consistent testimony
of two credible witnesses against the testimony of the
complainant to arrive at a factual finding. As such, the
undersigned accepts the testimony of Gunter and Soileau and that
it is found that each extended, independently, an invitation to
complainant which complainant declined and the conflicting
version of these events denying that such invitations had been
extended is rejected.
In view of the foregoing it is found that the evidence is
insufficient to establish that Ebasco Services, Inc.
discriminated against complainant, Daniel N. Miller, for engaging
in activity protected by Section 210 of the Act by terminating
him from his employment at the South Texas Nuclear Project on
July 9, 1987. It is, therefore, recommended that the following
order be issued:
RECOMMENDED ORDER
Complainant's claim for relief is hereby DISMISSED.
Quentin P. McColgin
Administrative Law Judge
Metairie, Louisiana
E/26
