U.S. Department of Labor
Office of Administrative Law Judges
Heritage Plaza, Suite 530
111 Veterans Memorial Blvd.
Metairie, LA 70005
CASE NO.: 88-ERA-31
In the Matter of
JOHN R. BRYANT
Complainant
v.
EBASCO SERVICES, INC.
Respondent
Appearances:
Robert W. Smith, Esq.
758 Vieux Marche' Mall
Biloxi, Mississippi 39533
For the Complainant
Karen C. Geraghty, Esq.
Ebasco Services, Inc.
Two World Trade Center
New York, New York 10048-0752
For the Respondent/Employer
Before: JAMES W. KERR, JR.
Administrative Law Judge
RECOMMENDED DECISION AND ORDER ON REMAND
[Page 2]
Procedural History
This case arises under the employee protection provision of
the Energy Reorganization Act of 1974 (ERA) as amended, 42 U.S.C.
§ 5851 (1982).
Complainant worked for Respondent, Ebasco Services, Inc.
("Ebasco" or "ESI"), as a quality control inspector from July 25,
1985 until he was terminated January 9, 1987. Thereafter, he filed
a timely ERA complaint on January 20, 1987, with the U.S.
Department of Labor (DOL) against Respondent, alleging retaliatory
discharge for a protected activity (refusal to approve an improper
weld). On April 10, 1987, the parties, prior to completion of
investigation of the complaint by the Nuclear Regulatory
Commission, signed a "release" agreement, the terms of which must
be determined by this Court.
Complainant filed a second complaint January 11, 1988,
alleging that Respondent violated the terms of the April 10, 1987
agreement by refusing to rehire him and "blacklisting" him because
of his prior complaint.
On March 15, 1989, this Court recommended an Order of
Dismissal, granting Respondent's Motion for Summary Decision
requesting dismissal of the case. On July 9, 1990, the Secretary
of Labor issued a Decision and Order of Remand, granting the
dismissal in part and remanding in part. The Secretary stated:
To the extent that Complainant seeks reinstatement to his
former position as a quality control inspector at a
nuclear power plant, the ALJ correctly concluded that
Complainant's admitted lack of a high school diploma or
GED equivalency is dispositive...because he cannot show
that he has the educational qualifications required for
these jobs with Respondent.
Decision and order at pp. 5-6.
The Secretary further found, however, that
The ALJ did not address Complainant's additional
allegation that he applied for jobs with Respondent which
do not require a high school diploma or GED equivalency
and for which he was qualified. Complainant proffered
[Page 3]
evidence to support his contention that he sought any
"comparable position" with Respondent for which he was
qualified and not simply reinstatement to his former
position as a quality control inspector...The ALJ did not
indicate whether this evidence was considered, and he
failed to discuss the effect, if any, of the alleged
reemployment terms of the prior settlement agreement.
Neither was Complainant's allegation of blacklisting by
Respondent addressed. Complainant alleged that "bad
paper" rumors were being spread by Respondent's
personnel...and Complainant has submitted evidence which,
if accepted as true, would satisfy his burden of
establishing a prima facie case of blacklisting against
Respondent.
Decision and Order at pp. 6-7 (exhibit citations omitted).
The Secretary instructed this Court that
Consequently, Complainant's allegations of blacklisting
and retaliatory refusal to rehire or hire in a
non-quality control position, must be decided [and] this case
must be remanded to the ALJ for evidentiary hearing on
these allegations. In remanding this case, I reach no
conclusions, nor should any be inferred, as to the merits
of these allegations.
1 The Court substantially adopts
Respondent's citation style
for purposes of uniformity. Citations to the transcript of the
hearing April 10, 1991 will be denoted "Tr. Ill and for December 6,
1991, "Tr. II;" Claimant's exhibits will be denoted "PX;"
Respondent's exhibits will be denoted "RX."
2 After the close of the record,
both parties submitted letters
to this Court including apparently recently discovered case law
they considered applicable. The Court may take judicial notice of
this case law, but will not at this late date accept the parties'
characterization or analysis of these cases.
3 Respondent presented
unrefuted evidence that the
independently operated companies, including Ebasco Constructors
Inc. (ECI), maintain separate corporate identities.
4 Complainant stated in his
brief that in an investigation
conducted by Houston Power and Light, Bryant's supervisor at Ebasco
admitted that he gave Complainant a low ranking for "technical
expertise" due to his involvement with the deficiency notice. The
exhibit cited by Complainant for this proposition, RX 12 p. 16, is
not in evidence (RX 12 does not contain 16 pages; pages 6-22 have
been rejected) and could not be located in the record by this
Court, and thus may not be credited.
5 Pursuant to 18 U.S.C.
§ 1001, Complainant could also have
been subjected to a fine or imprisonment for falsifying and
covering up material fact during an investigation by the U.S.
Department of Labor. Also, a recent case in the Sixth Circuit,
Johnson v. Honeywell Information Systems, Inc., ____ F.2d.____
(1992), decided under Michigan law, holds that an employer
may rely on an employee's false representations (falsified
educational requirements) as a defense to wrongful discharge even
if the employer is unaware of the grounds for discharge at the time
of discharge.
6 Respondent has briefed Texas
law (Tex. Code Ann. Art.
5196c-5196f) for its arguments against "blacklisting." In light of the
fact that blacklisting is not defined in the ERA, the Court will
look to the Texas statute's definition of blacklisting, but use
federal case law to determine the elements of a prima facie case
under the ERA. Those elements are outlined in Couty v. Dole, 886
F.2d 147 (8th Cir. 1989) as follows:
(1) engagement in a protected activity; (2) defendant's
awareness of plaintiff's engagement in protected
activity; (3) plaintiff's subsequent [blacklisting]; and
(4) that the [blacklisting] followed the protected
activity so closely in time as to justify an inference of
retaliatory motive.
("Blacklisting" is substituted for "discharge".) Respondent has
pointed out that Texas law defines a blacklisting employer as one
who
[places] or causes to be placed, the name of any ...
employee ... on any book or list, or publishes it in any
newspaper, periodical, letter or circular, with the
intent to prevent said employees from securing employment
of any kind with any other person, firm, company or
corporation, either in a public or private capacity.
Art. 5196(c). An employer who supplies a written, truthful
statement for the reason an employee is discharged is entitled to
a qualified (conditional) privilege, if the statement cannot be the
basis for a libel claim by the former employee.