Briefs were received by
June 2, 1989.
Procedural History
These cases stem from complaints dated October 14,
1988, (89-ERA-7) and November 28, 1988, and subsequent
dates (89-ERA-17) by Mr. Thomas J. Saporito, Jr., lodged
with the Employment Standards Administration, Wage and Hour
Division, of the U.S. Department of Labor (DOL) alleging he
was subjected to harassment, discriminatory conduct and
ultimately dismissal by Respondent, Florida Power and Light
Company, (FPL), because of certain activity protected by
section 5851(a)(1-3) of the Act. In the absence of any
evidence as to the date of mailing, the complaints shall be
deemed filed as of the dates they bear. 29 CFR 24.3(b). The
initial complaint alleged that Mr. Saporito was the subject
of discrimination and harassment as a result of a
communication sent to the Nuclear Regulatory Commission
(NRC) on September 29, 1988 "regarding a series of events
concerning a management person at the nuclear plant." RX
75. This matter was investigated by the Wage and Hour
Division and found to be without merit on November 18,
1988. The determination was timely appealed by Complainant
and was given the docket number 89-ERA-7.
On November 28, 1988 a second letter of complaint was
[Page 3]
sent by Saporito to the Wage and Hour Division alleging
safety concerns to the NRC by Complainant on November 20 and
23, 1988. Then followed three other complaints by Mr.
Saporito dated (a) December 6th, alleging harassment and
discrimination for further protected activity, letters to
the NRC dated December 2nd and 5th, (b) December
16th, complaining of FPL's efforts to submit him to a medical
examination as retribuion for protected activity and (c) on
December 20th and 23rd, 1988 complaining of being discharged
(at first suspended without pay until further notice)
allegedly as retribution for his protected activity. These
latter complaints were treated as one by the Wage and Hour
Division which concluded on January 10, 1989 that the
allegations were valid, ordered Mr. Saporito be made whole
and that he also be awarded $100,000.00 in compensatory
damages. Complainant appeals, seeking $500,000.00 in
compensatory damages. Respondent seeks dismissal of the
complaints. This matter was assigned docket Not 89-ERA-17.
This proceeding embraces and shall dispose of both docketed
cases.
Basic Issue
The basic issue in these cases is whether the
Complainant, because of protected activity, was the subject
of prejudicial actions and ultimately dismissal by his
employer, FPL.
Preliminary Observations
The Act specifically requires an individual to file a
complaint within thirty days of the occurrence of the
alleged violation in order to obtain redress. 42 U.S.C.
§ 5851(b)(1), 29 CFR 24.3(b). Accordingly, only those
allegedly improper activities by FPL within 30 days of
October 14, 1988 are embraced within the initial complaint.
Any subsequent actions would be embraced by either the
initial or the subsequent complaints.
In its brief, FPL notes that the United States Court of
Appeals, Fifth Circuit, has held that an employee's
activity, to be protected, must involve communication with a
government entity. Brown & Root, Inc. v. Donovan , 747 F.2d
1029 (5th Cir. 1984). This rule is contrary to what I
[Page 4]
believe to be the majority rule and contrary to the position
taken by the Department of Labor. Kansas Gas & Electric
Co. v. Brock , 780 F.2d 1505 (10th Cir. 1985), Mackowick v.
University Nuclear Systems, Inc. , 735 F.2d 1159, (9th Cir.
1984). The issues shall be treated on this premise,
although I shall distinguish between Complaint's
communications to governmental and non-governmental
agencies:
Stipulations
The parties stipulated that:
At all times relevant to the instant complaints,
Complainant, Thomas J. Saporito, Jr., was an employee of
Respondent, FPL, within the meaning of Section 210 of the
Act, 42 U.S.C. § 5851.
Respondent, FPL, is an employer within the meaning of
the Act.
Respondent is a licensee of the Nuclear Regulatory
Commission (NRC).
Complainant was hired by FPL in the job classification
of Instrument & Control Specialist.
Complainant began working for Respondent on March 8,
1982.
Throughout Complainant's employment with Respondent,
Complainant worked in job classifications covered by the
collective bargaining agreement entered into by FPL and the
International Brotherhbood of Electrical Worker's AFL-CIO
(IBEW). That collective bargaining agreement contained a
grievance procedure, ending in binding arbitration.
Complainant's job history with Respondent includes work
at several FPL power plants, both fossil fuel and nuclear
powered. As here pertinent, he worked at Turkey Point Power
Plant (nuclear) from April 13, 1985 to June 22, 1985, from
August 24, 1985 to February 1, 1986, and from June 6, 1987
to June 20, 1987.
[Page 5]
He worked at the St. Lucie Power Plant (nuclear) from
June 20, 1987 to April 23, 1988 as an Instrument and Control
Specialist-Nuclear until he voluntarily transferred to
Turkey Point in the same capacity on April, 23, 1988.
Respondent discharged Complainant on December 22, 1988. The
validity or lack of validity of the matters raised by
Complainant in 1988 to the NRC regarding plant safety is not
at issue in this proceeding. The parties also stipulated as
to the dates of nineteen different items of correspondence
Complainant mailed to one or various agencies. Among these,
a letter sent to the Institute of Nuclear Plant Operations
(INPO), a private industry group, the NRC and DOL. The
letter to INPO was sent on May 9, 1988 and received by FPL
the same day. The first letter to FPL with a copy to NRC
was sent and received on September 29, 1988. There then
followed a series of letters to either NRC or DOL, or both,
within short intervals from October 31st to December 28,
1988.
Summary of the Facts
I
The summary is based on the findings and conclusions I
have reached after hearing the testimony and observing the
demeanor of the witnesses and reviewing the transcript and
exhibits of record. References to appropriate segments of
the record shall be as follows: TR for transcript of the
hearing, CX for Complainant's exhibits, RX for Respondent's
exhibits, CB for Complainant' s brief and RB for Respondent' s
brief Since nearly all of the events embraced in this
brief. Since nearly all of the events embraced in this
proceeding transpired in the year 1988, the month and date
alone shall be generally used in referring to various events
taking place in 1988.
Complainant was first employed by FPL in 1982. FPL is
a licensee of the NRC. As here pertinent, it operates
nuclear power plants in St. Lucie County and Turkey Point
(Dade County), Florida. Complainant, during, 1988 and for
some time prior thereto, resided in Jupiter, Florida,
described as about two and one-half hours away from the
Turkey Point plant. TR 232. Obviously, traffic conditions
will affect; the driving time. TR 782. I take official
[Page 6]
notice that the distance is well in excess of 100 miles. In
April 1988 he successfully bid, on the basis of the FPL-IBEW
bargaining agreement, on a job at Turkey Point. Having been
stationed at Turkey Point in the past, there was some
anticipation of his arrival by those who knew him. Mr.
Jerard Harley, the I & C Production Supervisor, had been an
I & C Technician and a Job Steward for the Union in 1985 and
1986. TR 1726. He and Complainant had worked together for
about four months at St. Lucie in late 1985 and early 1986.
During this period he had lived in Saporito's home on a
mutually convenient basis. Harley had the use of a bedroom
in Complainant's home and he provided transportation for
Complainant in return. TR 1727. He was not pleased to
learn Saporito was going to work in his shop, believing him.
to be a "non-worker". Harley considered him a threat to his
efforts to improve production and made various adverse
statements about Saporito's imminent arrival. TR 1730-1.
Ms. Loretha Mathis, an I & C Specialist at Turkey Point and
a Job Steward at the time, also knew Complainant from his
past stints at Turkey Point. She had been called upon to
complete jobs originally assigned to Saporito which he had,
for one reason or another, failed to complete. TR 560-3.
In her view, Sapporito's return was regarded by the
employees as "an event". TR 573-4.
It was in this setting that on the first day he was due
to report to Turkey Point, Saporito called in sick. TR
231. Shortly thereafter, he challenged the failure of
management to include his telephone number in Jupiter on the
"call-out" list, the list used to summon employees for
emergency or overtime work. Tr 232-3, 1884-5. He also
requested a long distance telephone access number to use to
call home for personal-business use, if he was required to
perform unscheduled overtime, for example. This, too, after
some debate involving union stewards was denied. TR 234-5,
1330-1, 1885-6.
During this same early period Complainant is alleged to
have made derogatory racial remarks regarding Ms. Mathis.
TR 1734. Whether this took place or was aided and abetted
by Harley is unclear because Mathis and the other union
employees who may have some knowledge of the affair
concluded it was an intraunion matter resolved within that
organization. They refused to discuss the matter, except to
[Page 7]
show that management was attempting to use it as a spear on
which to impale Complainant. TR 517-520. This was
allegedly in contrast to management's relative indifference
when she had complained about somewhat similar episodes,
involving others in the past. TR 521, 584. As I noted on
the record in, conjunction with Mathis' testimony as well as
that of Mr. Robert Boyle, the Chief Steward; and others, I
am not going to give any probative weight to their testimony
regarding this aspect of the case because I do not believe a
witness should be allowed to pick and choose the areas about
which he or she will testify. TR 557-8, 238-242. Further,
it clouds the reliablity of their testimony generally.
In addition to the foregoing, the first couple of weeks
of Complainant's arrival at Turkey Point also included an
alleged infraction of the rules regarding notification to
plant management that one is out sick. Saporito called in
one morning and, before having seen a physician, advised the
FPL answering machine he would be out sick that day and the
next. He later offered to present a physician's note
justifying the action. TR 755. Usually, unless there is
clear evidence of a continuing illness or incapacitation,
such as a hospitalization, an employee is expected to call
for each day he is sick. TR 1753. While it is unclear when
it started, it is also clear the Saporito was given, at the
request of Mr. Greg Verhoeven, his immediate supervisor,
special "one-person" job assignments because other
journeymen in Verhoeven's crew did not like to work with
him. TR 1378-9. Saporito also allegedly did two jobs
incorrectly which came to management's attention. TR
1891-4. In any event, on May 4th, while under the scrutiny
of an INPO team evaluating the Maintenance Department's
operations, a job assigned to Saporito resulted in a
confrontation between Saporito on the one hand, and the
Production Supervisor, Harley, and the Maintenance
Department Head, Daniel Tomaszewski, on the other, regarding
what procedural steps were necessary to carry out the work
order. The job was eventually assigned to another
technician, Mr. William Dinan. TR 1895-9, TR 1743-7. There
was also a confrontation regarding the propriety of a "meal
ticket" submitted by Complainant for reimbursement. One is
entitled to a "prepared meal" if one works a certain period
beyond one's scheduled work shift. Saporito submitted a
supermarket receipt which was not reimburseable. TR 1736.
[Page 8]
When Saporito protested that the practice was allowed at
St. Lucie, a check with that plant revealed he had been
embroiled in a similar situation there and rebuffed. T P,
1888-90. There was testimony from some employees that this
requirement is overlooked at times. TR 2152.
On May 9, Saporito wrote to the INPO evaluation team
alleging that there were various inadequacies in the I & C
Department and that Harley was not "technically competent"
to fulfil his functons. RX 51. Various others, including
Mr. Joseph Kappes, the Maintenace Department Superintendent,
were copied.
On the morning of Monday, May 9th, Tomaszewski, after
reviewing during the weekend the events in which Saporito
was involved over, the prior two weeks, brought his concerns
to Kappes and noted that discipline was warranted. TR
1902-4. He prepared three reports of discipline (ROD's) and
a meeting was convened with Saporito, several job stewards,
and Kappes, Tomaszewski, Harley and Verhoeven. TR 100.
Kappes, who ran the meeting, alleges this was decided before
he learned of the INPO letter. TR 1972. The above-noted
episodes were reviewed. After counseling Saporito that
insulting racial references would not be tolerated, the
matter was dropped. TR 1979. Kappes also dropped the meal
ticket issue, after further discussion. TR 1979-80. Sick
leave was the subject of discussion, including alleged
excessive absenteeism. TR 1906-7, 1981. Complainant's job
performance was also discussed but continued to a future
time in order to allow Saporito time to review the plant
work orders (PWOs). TR 1982.
This meeting is alleged by Complainant as one of the
first reactionary measures taken by FPL in retaliation for
voicing his safety concerns. He became "a marked employee."
(CB 18).
II
The summer witnessed several other meetings and
confrontations. Some were continuances of the May 11th
meeting. TR 1989-90. Kappes complained to Mr. John Odom,
Site Vice President, about Saporito's conduct and explored
the feasability of firing him or transferring him
[Page 9]
elsewhere. TR 1995-6. During this same general period
Saporito's bid on a job at the St. Lucie plant was denied,
despite his being the senior qualified bidder, a violation
of the bargaining agreement. Complainant alleges that this,
too, reflects the continuing harassment he was subjected to
during this period. TR 777-782. This is denied by FPL
management. TR 1399-1400. Mr. Charles F. Leppla, the
person at St. Lucie who had made the decision, testified
that he was familiar with both Saporito and the other
candidate, a Mr. Chuck Denning. After conferring with
Tomaszewski, Leppla concluded that Denning was the better
choice. Saporito was considered "borderline" insubordinate
during his prior tour at St. Lucie. TR 1613-21.
On July 28th Complainant was ordered by Harley to take
some readings in a containment area where temperatures were
close to 120 degrees Farenheit. RX 133. The job was
rotated among the department's personnel so as to spread the
possible exposure to radiation and thus keep the dosage low
for any one person. Saporito had zero exposure. TR 1761.
Harley ackowledged that when Saporito left the containment
area feeling ill, complaining he could have died in there,
that he commented "Maybe he should have." Harley disclaims
that the assignment or the comment were motivated by
Saporito's protected activity. TR 1766. The task had been
assigned, to another individual the night before without
incident. TR 1764. He viewed Saporito as one who "spent
most of his time writing ("hung up on procedure" ) rather
than working." TR 1762.
III
Complainant filed his first complaint with DOL on
October 14th. RX 75. In it he alleges FPL management at
Turkey Point Nuclear as "aggressively discriminating and
harrassing (sic)" him because of protected activity, viz , a
letter dated September 29th to NRC regarding the conduct of
Mr. Bruce Koran. The four page letter was addressed to
Kappes, copy to others including Odom, union leaders Robert
Boyle. and Leonard Spring and to NRC. RX 68. In it
Complainant recited four episodes where Koran, his immediate
supervisor at the time, began shouting at him and
gesticulating, including "pointing directly at [him] with
his finger." Koran was accused of answering a telephone
[Page 10]
inquiry concerning Saporito's creditworthiness and, while
acknowledging Complainant had worked for FPL for some years,
suggested he may not continue to be employed if his conduct
did not improve. TR 1697-8. In the letter, Complainant
requested $500,000.00 as compensation for damages and
"Respectfully request[ed] that this employee [Koran) undergo
extensive drug testing within the scope of the FPL Fitness
for Duty Program and additionally this employee [Koran]
should be psychologically evaluated to determine if his
behavior warrants removal of his unescorted access to our
nuclear facilities" RX 68, p.4. Complainant also
suggested Koran's unescorted access to restricted areas be
suspended until the evaluations were carried out and he is
declared fit; alleging that he, Complainant, is concerned
about the health and welfare of his fellow employees and the
general public.
The incidents complained of were essentially
confrontations where Koran became frustrated with Saporito's
intransigence in several matters involving work procedures,
interpretation of rules and work habits, and especially
Saporito's rather indifferent response to instructions. TR
1669-1690. Koran acknowledged that he was out of line in
speaking about Saporito as he did to the woman who
identified herself as being from a credit union. TR
1697-8. Saporito identified the caller as a potential
landlady from whom he was considering renting a room. He
was offered the room, in any event. TR 1106-1114.
Saporito became embroiled in another confrontation a
few weeks later with a FPL instructor, Robert Boger, on
October 12th. The initial incident arose from a question
Saporito put to Boger during a refresher class concerning
the rule on wearing hard hats. Boger felt he was being
admonished by Saporito for disagreeing with him. TR 1644.
The following day Boger encountered Saporito discussing with
another instructor the correctness of certain aspects of a
test Saporito and the other employees had taken the previous
day. Although Complainant had passed he had returned to
discuss certain aspects of the test. He had a right to do
so. TR 1646. However, the discussion escalated to an
argument during which Boger shouted obscenities at Saporito,
following him out the door as Complainant retreated from the
instructor's verbal onslaught. TR 802, 1647-1651. This
[Page 11]
"aberrant behavior" was reported to superiors at Turkey
Point and was also reported by Saporito to NRC, as another
indication of the harassment he was being subjected to and
as support for his "concern" that management could not deal
with the matter. He felt that the health and safety of the
public required NRC intervention. RX 76.
On the same day, October 13th, Complainant received a
written warning for excessive absenteeism. He believed this
to be a form of reprisal for his earlier protected
activity. TR 819-21, 885. The record shows, however, that
the subject of the disciplinary meeting was not unique to
Complainant. TR 316-7, TR 667, 1779.
The Koran and Boger episodes were each subjected to a
rather thorough investigation by the Turkey Point Quality
Assurance Department which concluded that neither individual
constituted a threat. Each was recommended for further
training: Koran in being a supervisor dealing with
"difficult" employer/employee relations; Boger in dealing
with confrontational situations. RX 77, 79.
IV
Odom, the Site Vice President, in view of the above
events, concluded that an outside investigative team was
necessary to review the situation at Turkey Point and report
to him. After conferring with FPL officials he retained the
firm of Stier, Anderson & Malone (SAM), attorneys who had
performed a similar function elsewhere, charging them with
the task of examining Saporito's charges of harassment and
discrimination and his allegations concerning Boger and
Koran. He also advised the NRC. TR 1420-33. Saporito
refused to, cooperate unless his grievances were addressed.
TR 1428. (Saporito, alone, had filed more, than 50% of the
grievances filed at Turkey Point. TR 1433). Odom agreed to
address them personally and arranged a meeting for November
23rd. On November 21st he learned for the first time that
Saporito had nuclear safety concerns. The following day he
learned that Saporito would not reveal to the Quality
Assurance Superintendent what those concerns were. TR
1438. The next day, November 23rd, he began a virtually day
long meeting with Complainant, union officials and others in
an attempt to resolve the grievances. Late in the
[Page 12]
conference Odom raised the question of Saporito's nuclear
safety concerns and asked him to disclose them. While
acknowledging having such concerns, Saporito refused to
divulge them, stating he would reveal them only to the NRC.
Odom allegedly "directed" him to divulge them "now." He
intended the inquiry to be an "order". TR 1438H-I. Chief
Job Steward Boyle believed the request by Odom to Saporito
not to have been an "order" and therefore Saporito was not
insubordinate. TR 151-4. Odom later ordered Saporito to at
least divulge his concerns to the NRC. TR 1438S. In
response, Saporito demanded varous stationery and office
equipment and supplies to aid in preparing his report to the
NRC and as a precondition to speaking to SAM. TR 1438I, RX
88. Of those present, neither Boyle nor Mathis felt the
demand for supplies and equipment was reasonable. TR
369-70, 596-7.
Near the end of that same meeting Saporito also refused
to divulge his safety concerns to Leonard Spring, President
of the local union. TR 386. Later that evening, Kappes
advised Odom that in view of Complainant's unwillingness to
divulge safety concerns some job stewards approached him and
expressed concern that Saporito might create a problem to
justify his position. TR 388-9, 2015. It was suggested
that Complainant be excluded from the plant's protected
area. TR 390, 2017. Kappes took the suggestion to Odom
and they agreed to restrict Complainant's access to vital
areas. TR 1438N, 2017. Complainant still had access to the
I & C shop which, while within the protected area, was not
in a vital area. TR 2019.
V
On or about November 28th odom contacted Mr. Oscar
DiMiranda of the NRC regional office inquiring about any
nuclear safety concerns DiMiranda may have learned from
Saporito. He learned that while Saporito had contacted
DiMiranda, he spoke in vague generalities; no specific
concerns were divulged. TR 1438S. On November 29th many of
the outstanding grievances were resolved. The principal one
being an agreement (which Odom achieved by going, "over the
head" of his St. Lucie counterpart [TR 1441-21 ) to award
Saporito the I & C Technician's job transfer to St. Lucie
retroactively to July 16th, with reimbursement for
[Page 13]
commutation expenses sustained by the employee during the
interim. TR 1230-41. This was designed to become effective
December 17th, to enable Saporito to meet the SAM attorneys
before he left Turkey Point. TR 1440.
On November 30th, Complainant met with the attorneys
for about six hours, beginning at 9:30 a.m. TR 913-4. At
about 5 p.m., Kappes told Harley to summon Saporito to meet
with Odom to discuss his safety concerns. TR 1793, 2023-4.
Odom learned Saporito was talking to the investigators. He
decided this would be a good time to talk to Complainant to
establish a protocol for Saporito's review of the records he
had requested to document his safety concerns, to attempt to
define a nuclear safety concern and to learn what those
concerns were. He felt a certain sense of urgency in
ascertaining the precise nature of Saporito's concerns
because he considered Saporito to be "not qualified to
determine whether they're important or not." TR 1446.
Believing Complainant to be scheduled to work until 7:30
p.m., he asked Kappes to summon him for the meeting. Kappes
told Harley to fetch Saporito.
Harley approached Saporito at the I & C shop where
Saporito was standing near another worker's bench speaking
with several co-workers. When told of the meeting, Saporito
declined, stating at first that he had no safety concerns.
He later said he had personal family business to attend to.
TR 1794: When Kappes was told of this he relayed the
message to odom who ordered him to tell Saporito he wanted
him present for a meeting. Kappes approached Saporito as he
was still standing, talking to his co-workers. TR 2025.
Kappes leaned over a stool to tell him he was required to
attend a meeting when Saporito turned and was startled.
Kappes alleged, and I credit it, that no hostility was
intended. When he told Saporito of Odom's summons, Saporito
at first declined, stating again he had personal family
business to attend to. TR 2025. When Kappes insisted he
holdover for the meeting Saporito declined, saying he was
"sick. " TR 2027. There is a dispute as to Complainant's
countenance when he made this later statement. Kappes
testified:
It's what he did and then said. He looked
me straight in the eyes, his whole body English
(sic) changed, and he gave me one of those
"I gotcha looks," and he said, "I'm sick.".
TR 2027.
[Page 14]
Saporito, while acknowledging he was standing
("leaning") by a work bench, as was noted by Harley earlier,
and had at first given as an excuse, "personal and family
matters" to attend to, testified he was feeling very poorly
from the intensive examination he had undergone from the SAM
attorneys earlier in the day. TR 916-20. Mrs. Rosemary
Saporito testified her husband was ill on Thanksgiving Day
the preceeding week, November 24th, and complained "of
having stomach-type chest pains" when he got home the night
of November 30th. TR 699, 705. Mr. Kyle Roberts was present
during the Kappes-Saporito confrontation. While confirming
Kappes' basic account of the episode, including the fact
that Kappes warned Complainant he was making "a career
decision" while ordering him to holdover several times,
nevertheless, failed to see any "smile" on Saporito's face
while giving his second excuse for failing to holdover. TR
2027. In any event. Kappes believed Complainant was lying to
him and was being insubordinate in front of other
employees. TR 2027-2028, 2044. Kappes left the shop and
returned with Harley. He told Harley, in Saporito's
presence, that Complainant had refused a direct order and
told Saporito he was being suspended. He told Harley to
walk Saporito to the gate and remove his plant access
badge. TR 2028-9. The time to traverse the distance
between the I & C Shop and Odom's office was one variously
described as being less than one minute (TR 145) to "a
couple minutes." TR 1255.
Complainant had not, earlier in the day, sought to be
released-early from work due to illness. TR 1246-7. He did
not seek aid at the plant, nor did he seek it on the way
home, or in the Jupiter area. TR 924, 1258-9. He explained
he was unfamiliar with medical facilities in the Miami area
and that he had to stop along the road several times to
rest. He knew when he got home his wife, a registered
nurse, could help him. TR 923-4, TR 1259. He saw his
doctor the next day. TR 1259.
After Harley escorted Complainant from the shop, Kappes
reported what transpired to Odom and the union stewards who
had assembled for the meeting. TR 2034. Odom, desiring to
[Page 15]
get to the bottom of the safety issue, instructed Kappes to
put the suspension in abeyance, contact Saporito and get him
back to work. TR 1453-4, 2034. This was done the next
day. TR 2035. Saporito stated he was on sick leave until
December 12th due to "medical disorders due to stress." TR
2035.
VI
On December 5th, Kappes called Complainant and told him
that FPL was requesting him to be evaluated by a Company
doctor concerning the medical disorder due to stress which
he had reported and inquired whether the interrogation by
the SAM attorneys could be continued in the Jupiter area.
Saporito told him that he was not well enough to be
interviewed and that he was declining the "request" to be
seen by a Company doctor. TR 927-8, 1285. Odom advised
union officials, Messrs. Sims and Boyle, that Saporito would
have to see a Company doctor before returning to work to
resolve two issues: the circumstances surrounding his
refusal to holdover on November 30th; and his medical
disorder related to stress. TR 428-9, 1457-8. He also told
them if Complainant's and the Company's doctors disagreed,
FPL and the union could select a third doctor to resolve the
matter. TR 1458.
When Complainant returned to work on December 12th with
a doctor's note excusing the absence, Kappes told him he had
to see a Company doctor. Saporito refused, alleging he was
being harassed due to protected activity. TR 2042, 436.
This request was repeated on December 13th, citing as
reasons: to ascertain whether Complainant had been too ill
to hold-over on November 30th; and to see whether he was fit
to return to his work as an I & C Specialist. TR 2046-7,
438. On the following day, at Complainant's suggestion, it
was agreed that the respective doctors should confer and
perhaps eliminate the need for the company-sponsored
physical examination. TR 936. This hoped for resolution
did not come to pass. Dr. Richard Dolsey, the FPL
consultative physician, concluded he had to examine Saporito
in order to give a properly informed opinion. TR 832.
On December 16th Kappes told Complainant that
arrangements were made for the consultative physical
[Page 16]
examination with Dr. Dolsey. Arrangements were made for a
supervisor, Willis, to drive Saporito and a job steward,
Robert Caponi. Saporito stated he would go to see the
doctor but would not be examined. TR 2051, 443-4. Despite
this answer, Kappes decided to send Saporito to Dr. Dolsey
on the chance he might change his mind. TR 2052. Boyle
advised Complainant to comply and then grieve. TR 451. At
Dr. Dolsey's office Complainant refused to fill out the
personal medical history form. TR 605, 1297. Complainant
was accompanied by Caponi into the physician's examining
room. TR 606. Willis remained outside in the reception
area. TR 611.
Precisely what happened in the examining room is
disputed to some degree. It is undisputed, however, that,
upon Dr. Dolsey's arrival, Complainant told him that before
anything else, he had some questions he wanted answered. TR
607-8, 834, 942, 1298. After answering a number of
questions, he attempted to ask Saporito some questions and
to examine him. Saporito would neither answer questions nor
submit to an examination. Consequently, Dolsey asked
Saporito and Caponi to leave. TR 834-6. During the course
of this Dolsey entered and exited the examining room one or
two times. TR 835, TR 939-43.
On December 19th Saporito explained his version of what
transpired in Dolsey's office to FPL management, arguing
that he did not refuse to be examined. He allegedly left
the office on Dolsey's instruction. TR 943-4. However,
when asked by Kappes as to whether or not he refused to be
examined, Saporito answered "No comment." TR 1303. Kappes
suspended Saporito effective immediately on December 19th.
Id ., 2054. On December 22nd Saporito was discharged by John
Odom for his (a) refusal to reveal his safety concerns to
Odom on November 23rd, (b) refusal to holdover on November
30th to attend a meeting with Odom, and (c) refusal to
undergo a physical examination by Dr. Dolsey. RX 104, TR
255.
Applicable Law
The parties agree that Complainant has the initial
burden of establishing a prima facie case showing:
[Page 17]
(1) that the party charged with discrimination is an
employer subject to the Act;
(2) that the complainant was an employee under the
Act;
(3) that the complaining employee was discharged or
otherwise discriminated against with respect to his or her
compensation, terms, conditions, or privileges of
employment;
(4) that the employee engaged in protected activity;
(5) that the employer knew or had knowledge that the
employee engaged in protected activity; and
(6) that the retaliation against the employee was
motiviated, at least in part, by the employee's engaging in
protected activity.3
Once the complainant establishes a prima facie case, the
burden of proof shifts to the respondent to prove
affirmatively that the same decision would have been made
even if the employee had not engaged in protected activity. 4
DISCUSSION AND CONCLUSIONS
My review of the record in this case convinces me that
Complainant has failed to present a prima facie case. He
failed to meet the sixth of the six elements necessary to
establish his case. The probative evidence of record fails
to show that the alleged discriminatory actions and eventual
discharge were, motivated in any way by Complainant's
protected activity, be it the INPO letter in May or the more
recent allegations in the fall of 1988 beginning in
September 20, 1988. CX 20. Even if one were to find,
arguendo, that a prima facie case were established, it is
obvious that the actions taken by FPL against Complainant
starting in September 1988. were entirely warranted in
Respondent's role as a manager and would have been pursued
regardless of whatever protected activity Complainant may
have engaged in. The individual actions of Koran and Boger
shall be treated infra in greater detail.
[Page 18]
Complainant arrived at Turkey Point in April 1988
preceded by an unfavorable reputation, pertaining to his
work habits, whether deserved or not. TR 574, 1752. This
was not diminished when he called in sick on his first
scheduled day at Turkey Point despite the fact he clearly
had a good medical reason. TR 231. Respondent's management
team did not require news of Saporito's letter to INPO to
develop a hostile attitude when on May 4th, he delayed a
job two hours in a confrontation with supervisors, a task
someone else, less experienced, completed in one and
one-half hours. TR 1743-7. All this transpired under the
eyes of the INPO evaluation team. Daniel Tomaszewski, the
I & C Department Head, summarized the situation thus:
I've never seen so many problems from what
was supposed to be a six and seven year
experienced journeyman in such a short period
of time. TR 1899
Saporito gave as well as he received, being personally
responsible for more than one-half of all the grievances
filed at Turkey Point. TR 1433.
1. Turning now to the specific allegations made by
Complainant in his complaints. The complaint filed on
October 14, 1988 and its subsidiary letters dated October 31
and November 8, 1988 were embraced in the determination of
the Wage and Hour Division on November 18, 1988 and became
the case docketed as 89-ERA-7. Essentially this group of
complaints alleges that Complainant was the subject of
retaliatory discriminatory practices, such as threatening
behavior by Koran and Boger and disciplinary action for
alleged infractions such as excessive absenteeism. The clear
preponderance of the probative evidence demonstrates that
these charges are not true. The Koran and Boger episodes
were nothing more than arguments precipitated at least in
part by Complainant's contentiousness. Both Koran and Boger
contributed to the affair by their low tolerance for such
behavior. Koran and Boger, each in his own way, displayed
outrageous reactions to Saporito's conduct. Koran should not
have vented his frustratons on the telephone to an unknown
caller. Boger should not have shouted obscenities. Their
conduct, however, was clearly not motivated in any way by
whatever protected activity Complainant wishes to point to.
[Page 19]
The same holds true with regard to all the other alleged
injustices suffered by Saporito regarding absenteeism, meal
tickets and job performance, or assignments. While these
may or may not be matters which Saporito might grieve
successfully, the alleged injustices are not shown to be
causally related to his protected activity. If the matters
were dealt with by FPL management at a higher than usual
level or in a slightly harsher than usual way, it was
entirely due to the fact that Complainant constituted a
greater than usual personnel problem. I credit the
testimony of Koran, Boger, Harley, Kappes, Tomaszewski and
Odom that their actions towards Saporito were in no way
related to his protected activity. I observed their
demeanor and studied their testimony. In this connection I
note that Verhoeven, while characterizing management's
treatment of Saporito as "not usual", admitted asking Harley
to assign Complainant "one-person" jobs because others in
Verhoven's crew did not like to work with him. TR 1375-9.
I conclude there is no persuasive evidence to support
Complainant's charges. This conclusion is reached after a
careful and sympathetic review of the record, recognizing the
serious financial and professional straits in which Complainant
finds himself.
2. The complaint of November 28, 1988 and the subsequent
letters embrace the negotiations surrounding Complainant's
unsuccessful attempt to transfer to the St. Lucie plant,
his being given demeaning assignments due to his restricted
clearance level, and his suspension and ultimate discharge.
They are embraced in case No. 89-BRA-17 Complainant summarizes
his positon in his brief where he states:
At issue in this case is whether Complainant
engaged in protected activity in accordance.
with 42 U.S.C. §5851 and as a matter of law,
and whether the decision by FPL to terminate
Complainant's employment was motivated by
animus toward Complainant solely because of his
engaging in protected activity, or for
reasons not protected by this (Act). CB p. 3.
The record overwhelmingly supports Respondent's position
that the denial of the St. Lucie transfer was a matter which
was acted on long before the effective date of the first
[Page 20]
complaint and therefore outside the scope of this proceeding
42 U.S.C. § 5851(b)(1). Assuming this matter falls within
the scope of the proceeding because it was still being
negotiated in the fall of 1988 (a conclusion which is purely
hypotyhetical), it is quite evident that the St. Lucie
people, having had experience with Saporito, wanted nothing
more of him. "Borderline insubordination. He lacked the
willingness to work cooperatively with management and his
peers. He intimidated his supervisors. He was very
unproductive..." He filed: "Numerous grievances." TR
1615. These are the views of the individual who had been
Complainant's supervisor at St. Lucie. TR 1610. The same
individual, Charles Leppla, was instrumental in rejecting
Saporito's attempt to return. TR 1613. I credit this
testimony.
Complainant's access to restricted areas was withdrawn for
very valid reasons entirely independent of his alleged
protected activity. Ironically, his access was limited as a
safety precaution. TR 388-9, 2015. I credit the reasons
advanced by Kappes and Odom. Complainant's insolence towards
Odom and Spring during the November 23rd conference properly
gave his co-workers and supervisors reason to at least wonder,
if not worry, about Saporito's future conduct. The record also
makes it clear that Complainant's preoccupation with procedures
led the Production Supervisor to give him assignments which
enabled him to work alone because "nobody wanted to work with
him". TR-1752.;
The last matters for consideration are the series of
events which culminated in Complainant's discharge. Responde
cites three basic episodes, Complainant's:
(a) refusal to divulge his safety concerns to Odom on
November 23rd,
(b) refusal to holdover to meet with Odom on November
30th, and
(c) refusal to submit to a physical examination by a
licensed physician chosen by FPL.
My review of the record convinces me that the reasons
given by Respondent for the discharge are sincere and valid
[Page 21]
in the circumstances and were in no way motivated by
Complainant's protected activity. Again, ironically Respondent
could not, consistent with safe and sound management practices,
tolerate insolence manifested by the behavior of an employee
who alleges safety concerns and fails to divulge them when
asked, refuses to take a minute or two to explain to the Site
Vice President why he could not attend a meeting and then
refuses to undergo a physical examination, scheduled by
management in an attempt to ascertain whether the refusal to
holdover was medically warranted and whether Complainant's
medical condition was such as to warrant his return to an
important and sensitive position in a nuclear power plant. TR
616-7. I shall review each of these in greater detail.
Saporito was asked by Odom at a formal meeting, in the
presence of others to divulge his safety concerns and refused
to do so. This is not controverted. The controversy is over
whether the "request" was an "order." I credit the testimony
of John Odom on this point. It was substantiated by Loretha
Mathis, a witness called in behalf of Complainant who was
largely favorable to Complainant yet who was not entirely
uncritical of either Complainant or Respondent FPL. TR 513-4,
524.5 In addition, when one views the
circumstances under
which the request for information was made and the subject
matter of the request--safety concerns in a nuclear power
plant--one can readily understand Odom's chagrin and everyone's
concern about Saporito's intentions and future conduct.
Complainant's refusal constituted insubordination which, in my
opinion, justified discharge. At the very least it certainly
constituted a valid increment toward, the ultimate conclusion to
discharge Complainant.
Complainant's refusal to holdover for a meeting with Odom
on November 30th constituted an insubordinate act which
warranted dismissal. I credit odom's testimony that he felt a
certain sense of urgency in ascertaining the precise nature of
Saporito's concerns because he did not believe Saporito qualified
to determine whether or not they were important. TR 1446.
It is obvious he has a continuing obligation to search out an
individual voicing safety concerns and to learn of their
precise nature. I cannot imagine a responsible management
person not wanting personally to be involved in such a situation.
Leaving the matter to a government agency person
[Page 22]
(DiMiranda) located many miles away would reflect poor judgment,
indeed. The question then arises as to whether Complainant's
refusal to holdover was justified in the circumstances.
I conclude it was not. As noted above, it is undisputed
that the distance between Saporito's shop and Odom's office
is trifling. TR 1255, 1451. Saporito was not lying down
but standing when first seen by Harley and later by Kappes. TR
1794, 2025. Saporito testified he was "leaning" on his work
bench. TR 918. The fact is also undisputed that he at first
told Harley and Kappes that he had personal business to attend
to. It was also undisputed that he was biding his time until
quitting time. TR 919. These circumstances coupled with the
fact that he had, both prior and subsequent to this, failed to
seek any medical attention or assistance at the plant but
elected to drive the extended distance home, regardless of
whether he stopped along the way, fail to support his contention.
This seriously undermines the credibility of Saporito's
testimony. I also note that while Complainant alleges that the
condition was long-standing, and said this to Dr. Klapper on
December 1st, he had not sought medical treatment for the condition
at any earlier date and according to Dr. Klapper," had
absolutely no sign of having any problems with gastritis during
that period (August 1988) or in the following months until he
presented to my office on December 1, 1988". cx 90, P. 11. I
do not credit the testimony by Complainant on this point, that
is, of being too sick to attend a meeting with Odom. it
challenges common sense. It was contemptuous conduct towards a
management official who had made a legitimate request. To
argue that regular hold over rules dealing with job completion
situations apply in the instant circumstance is obviously a
specious argument not worthy of further comment.
Lastly, we come to the episode surrounding FPL's efforts
to require Saporito to undergo a physical examination for the
reasons cited above and Saporito's reacton thereto. As I
review the circumstances, I find it strange that an individual
who urged that a co-worker at Turkey Point "undergo extensive
drug testing ... [and be] psychologically evaluated" to ascertain
his fitness to continue to functon at the plant, should then
balk when the tables are turned. TR 1295, RX 68, p. 4. In any
event, the record clearly establishes that Saporito knew of the
purposes of the physical examination. TR 1287-8, 1308. The
union had advised him to comply with the order and grieve
through established bargaining procedures. TR 1289. Yet,
[Page 23]
Complainant stated before leaving for Dr. Dolsey's office that
he would go but refuse to be examined. TR 1295-6. That he
intended to carry out his purpose is supported by his refusal
to even make out the personal history medical form handed to
him on his arrival. TR 605.
Complainant argues on brief that "Dr. Dolsey never
requested to examine Complainant nor did the doctor indicate
that an examination was required as Complainant was never asked
to undress or even unbutton his shirt." CB p. 47. Dr. Dolsey
testified Complainant not only refused to be examined but
refused to answer questions preliminary to the examination. TR
834-6. I credit this testimony. Dolsey appeared to be a
credible witness. He answered questions forthrightly. Although
he performs examinations for FPL for pay, this constitutes a
small percentage of his overall practice. TR 850. Caponi,
while stating that Dr. Dolsey dismissed them from his office,
also testified that Dr. Dolsey told Complainant:" ... [I]t's
obvious that you won't let me examine you. And Tom (Saporito)
said, well, I still have some more questions to ask." TR 611.
Viewing this statement from a witness who was obviously biased
in favor of Complainant and who appeared to be evasive,
especially on cross-examination, in the light of Dolsey's
testimony, the earlier admissions of Saporito regarding his
intentions not to be examined and the overall circumstances
surrounding the visit to the physician's office, one cannot
come to any other rational conclusion. Saporito, true to his
earlier word, went to "see" the doctor but not to be examined,
and, in fact, refused to be examined. To come to any other
conclusion would require a sort of sophistry with which I am
not familiar. Complainant's argument that the examination was
part of a conspiracy has no probative basis in the record.
Ultimate Findings and Conclusion
I conclude, therefore, that Complainant has failed to
present a prima facie case. The actions taken against
Complainant by FPL and its management personnel were a result
of his contentiousness and recalcitrance as an employee.
Saporito's discharge resulted solely from his crossing the line
from contentiousness and recalcitrance into the area of
insubordinaton. Furthermore, the insubordination impacted on
the Site Vice President's grave responsibility to assure that
the nuclear facility over which he holds jurisdiction operates
[Page 24]
safely. I was impressed by how solemnly this responsibility is
shared by the other employees, both union and non-union, who
testified.
For the foregoing reasons, it is Ordered that the
complaints be Denied .
ANTHONY J. IACOBO
Administrative Law Judge
Dated: June 30, 1989
Boston, Massachusetts
[ENDNOTES]
1 Counsel for the International
Brotherhood of
Electrical Workers were allowed to participate only
insofar as to be available to confer with witnesses
who were union members.
2 A pre-hearing conference was
held in Miami on January 5,
1989 before another judge who later recused himself.
3 DeFord v. Secretary of
Labor , 700 F.2d 281, 286 (6th
Cir. 1983); Mackowiak v. University Nuclear Systems ,
Inc. , 735 F.2d 1159, 1162 (9th Cir. 1984); Ledford v.
Baltimore Gas & Electric Co. , 83-ERA-9, slip op. ALJ at
9 (Nov. 29, 1983), adopted by SOL.
4 Ashcraft v. Univ. of
Cincinnati , 83-ERA-7, slip op. of
SOL at 12-13 (Nov. 1, 1984); Mackowiak v. University
Nuclear Systems, Inc. , 735 F.2d 1159, 1164 (9th Cir.
1984; Consolidated Edison of N.Y. Inc. v. Donovan , 673
F. 2d 61, 62 (2nd Cir. 1982).
5 Ms. Mathis and several other
employees made vague
references to alleged retalilation by FPL when safety
concerns were voiced in the past. These were rather
vague and not convincing.