(Res.Exh.Q;T.571) NRC
personnel investigated
the complaints on April 4 and 5, 1989 and found no violations of
NRC requirements.(Res.Exh.Q) Dr. Rainey also sent a June 21,
1989 memo to NRC. This 14 page memo was addressed to Dr. Robert
Levine and discussed Dr. Rainey's radiation concerns at the
Clinic.(T.610;Cl.Exh.14) It was distributed to more than 20
other people, inside and outside the Clinic. Dr. Rainey wrote to
NRC on April 14, 1989 alleging failure of the Clinic to carry out
three of the four objectives in the report of March 15,
1989.(T.225) Dr. Rainey had 20 to 30 contacts with NRC after
March 9, 1989.(T.636,637)
Dr. Sarwer-Foner was satisfied by the NRC report that no
radiation violations existed at the Clinic, dispite Dr. Rainey's
insistence to the contrary.(T.286-267,299)
Dr. L. Hryhorczuk, a research chemist employed by Lafayette
Clinic, was appointed the Clinic's radiation safety officer on
March 21, 1988.(T.54) Dr. Rainey was Dr. Hryhorczuk's supervisor
and was kept advised about radiation activities in the Clinic by
Dr. Hryhorczuk.(T.59,103)
Mr. K.A. Warner, an employee of the Clinic and a member of
the Clinic's radiation safety committee, worked with radioactive
materials in the Biochemistry Department. As part of his duties,
Mr. Warner was involved in overseeing the purchase and general
inventory control of all radioisotopes coming into the Clinic,
and their disposal.(T.142) He continued these activities until
sometime in July through October, 1988, he is uncertain of the
exact date, when the radiation safety committee was
reconstituted. He remained a member of the new committee and has
attended the two meetings held by the new committee.(T.143)
Dr. Rainey was Mr. Warner's supervisor. Mr. Warner does not
deny that he discussed radiation concerns with Dr. Rainey, but
stated that it was his duty to report such matters to Dr.
Hryhorczuk, who, of course, was keeping Dr. Rainey informed also.
(T.145,146,171,621)
Mr. Warner spoke to NRC personnel during investigations at
the Clinic and provided them with information.(T.156,192) No
adverse actions have been taken againist him by Dr. Sarwer-Foner
and to his knowledge none have befallen Bob Arthur or Dr.
Hryhorczuk, both of whom were involved in radiation activities at
the Clinic with Dr. Rainey.(T.186,187,198)
Dr. Sarwer-Foner conducted a staff meeting on June 6, 11089
to ask that all radiation concerns of the staff be presented to
the Clinic's radiation safety officer. He did not instruct the
staff not to go to NRC. In fact, there were postings in the
Clinic advising personnel of their right to go to NRC.(T.158-160,
182-185)
Mr. Warner attended the meeting and recalls hearing the word
"consequences" used by Dr. Sarwer-Foner, but cannot recall the
context.(T.184) Nevertheless, he felt threatened by Dr. Sarwer-Foner's
words. Dr. Sarwer-Foner denied making any threats to the
staff. I accept Dr. Sarwer-Foner's version of what transpired at
the meeting as being mare credible. Mr. Warner was not certain
about the words used during the meeting and was not certain that
the context in which they were used was a threat.(T.280-283)
The letter asking Dr. Rainey to leave the Clinic was
prepared by Dr. Sarwer-Foner on July 18, 1989, but due to the
intervention of Dr. Rosenzweig was not delivered to Dr. Rainey
until July 20, 1969.(T.370,444,445) Dr. Rainey and Dr. Sarwer-Foner
met for the first time on July 20, 1989.(T.345,353)
Conclusions of Law
Lafayette Clinic is owned by the State of Michigan and is
operated by the Michigan Department of Mental Health. Wayne
State has no legal ownership rights to the Clinic. However, the
Department of Mental Health, Wayne State and Lafayette Clinic are
all instrumentalities of the State of Michigan. The statute
creating the Clinic provided a tripartite mission as follows:
1. Conducting research regarding the incidence and
treatment of mental illness.
2. The training of mental health professionals in
all major disciplines.
3. The providing of clinical services to the citizens of
Michigan on both an inpatient and outpatient basis.
To this end, the Department of Mental Health and Wayne State
entered into agreements during December, 1986 and January, 1987
to establish a partnership for the purpose of supporting research
of scientific merit.(Cl.Exhs.1,2 and Censoni deposition exhibit
5)
The Clinic provides offices and working accomodiations for
both Clinic and Wayne State employees. Some of these employees
are employed by both employers. Employees of the Clinic are
supervised by employees of Wayne State and vice versa. Research
is carried out seperately and jointly within the Clinic. Until
Dr. Sarwer-Foner's arrival as Director of the Clinic, the
Director was also the Chairman of the Department of Psychiatry at
Wayne State. Dr. Sarwer-Foner is not the Chairman of the
Department of Psychiatry, but he is a tenured professor at Wayne
State, for which he receives a substantial salary. Dr. Sarwer-Foner
described the relationship between the Clinic and Wayne
State as a marriage, in which both parties was collaborating
together, intimately, to carry out the triple mission of the
Clinic.(T.410)
While it can be successfully argued the Wayne State does not
have a legal interest in the Clinic's physical facility, Wayne
State and Lafayette Clinic are so closely entwined as to make
them indistinguishable as to the management of the Clinic. They
share in the decision making that affects the general management
of the Clinic toward their common goals. They are engaged in a
joint effort as set forth by the state legislature. The
agreements and exhibits presented into evidence do not
convincingly established that Dr. Sarwer-Foner, Director of the
Clinic, was in complete and total control of the use of space in
the Clinic by Wayne State employees without influence from Wayne
State staff.
Without belaboring the point, Respondent's motion to dismiss
on this ground was denied. My rereading of the record convinces
me that that decision was correct.
Therefore, if Respondent is to succeed he must do so on the
basis of his second contention. Namely, that Dr. Rainey's
removal from the Clinic was based on the turmoil he created and
not because of complaints to NRC.
The statutory provisions of the Act offer protection to
employees by prohibiting an employer from discharging or
discriminating against an employee because the employee engaged
in a protected activity. specifically the Act provides in
pertinent part:
No employer . . . may discharge any employee or otherwise
discriminate against any employee with respect to his
compensation, terms, conditions, or privileges of the
employment because the employee . . .
(1) Commenced, causes to be commenced . . . a proceeding
under this chapter as the atomic Energy Act
of 1954 . . . . ;
(3) assisted or participated or is about to assist
or participate in any manner in such a proceeding . . .
42 U.S.C. § 5851.
The above activity is termed "protected activity." If an
employee is fired or otherwise discriminated against as a result
of engaging in such protected activity, the employee may, within
thirty days after the alleged violation occurs, file a complaint
with the Secretary of Labor which states the basis of said
allegation.(42 U.S.C. § 5851(b))
In order for a complainant to prevail on a discrimination
claim under the ERA, the complainant must prove (1) that the
party charged with discrimination is an employer subject to the
Act, (2) that the complaining employee was discharged or
otherwise discriminated against with respect to his compensation,
terms, conditions or privileges of employment and (3) that the
alleged discrimination arose because the employee participated in
an NRC proceeding ....
Mackowiak v. University Nuclear Systems, Inc. , 735 F2d 1159, 1162
(CA. 9, 1984); National Labor Relations Board v. Transportation
Management Corp., U.S. , 103 S.Ct. 2469 (1983); DeFord v.
Secretary of Labor , 700 F.2d 281, 286 (CA. 6, 1983). Once the
employee shows that illegal motives played some role in the
discharge, the burden shifts to the employer to prove that it
would have discharged the complainant even if the protected
activity had not occured. N.L.R.B. v. Transportation Management,
Supra.
An employer may discharge an employee who has engaged in
protected activity provided the employer has reasonable grounds
for the discharge and was not motivated by retaliatory animus
Lockert v. U.S. Department of Labor , 867 F.2d 513, 519 (CA. 9,
1989); Dunham v. Brock , 794 F.2d 1037, 1040 (CA. 5, 1986)
The record indicates that Dr. Rainey first complained to NRC
about perceived nuclear irregularities at the Clinic on September
26, 1988.(T.563) During the course of the next ten months, he
contacted NRC with additional nuclear complaints pertaining to
the Clinic. He also perceived a cover-up in progress by the
co-workers he had identified as mishandling nuclear material. A
cover-up in which attention would be diverted from them to him.
(Cl.Exh.14) Dr. Rainey also requested co-workers to provide him
with information about a narcotics investigation at the
Clinic. (T.602) While denying any involvement with narcotics in
the Clinic, he was concerned that he would be implicated in the
investigation.
It is clear from this record that Dr. Rainey was not popular
with his co-workers before and after making complaints to NRC.
His lack of popularity appears to have been due to his own
personality and the way in which he perceived himself, his
co-workers and his responsibilities in the Clinic. Dr. Rainey
appears to have engaged in constant harassment of co-workers by
sending them numerous memoranda demanding information, answers to
questions and accusing them of various improprieties and
misdeeds.(T.447,448) He appears to have been involved in what
could best be described as "a war of memos" with his co-workers.
He also resisted cooperation with his supervisor, Dr. Rosenzweig,
and often communicated with Dr. Rosenzweig through other members
of the faculty. Simple requests for information from Dr.
Rosenzweig to Dr. Rainey about his research activities resulted
in a flurry of unresponsive, evasive, and accusatory memos from
Dr. Rainey. Likewise, Dr. Rosenzweig was not very responsive to
or cooperative with Dr. Rainey.(T.561,562;Cl.Exhs.30,31,33)
Members of the staff even threatened legal action against Dr.
Rainey for alleged slanderous statements in memos and they
petitioned to have him removed from administration and then from
the Clinic. Frankly, what was going on in the Clinic is
surprising considering the educational level and occupational
status of the participants. But, be that as it may, my concern
is whether Dr. Rainey was removed from the Clinic as a result of
his nuclear complaints.
Dr. Sarwer-Foner came on duty as Director of the Clinic in
April, 1989. Within a few days, he was advised by his staff that
the NRC investigation had been completed and that no violations
of NRC rules had been found. He was satisfied at that point that
the Clinic had no radiation problems.
Although he did not meet Dr. Rainey until the day of his
departure from the Clinic, Dr. Sarwer-Foner knew of Dr. Rainey by
reputation and knew that Dr. Rainey had filed complaints with
NRC.(T.350) The record does not indicate when Dr. Sarwer-Foner
first learned of Dr. Rainey's involvement with NRC. It suggests
that while preparing to assume the duties of Director, Dr.
Sarwer-Foner had been briefed about Dr. Rainey and his activities
in the Clinic. Therefore, I infer that he knew of Dr. Rainey's
nuclear activities before he became Director.
Dr. Sarwer-Foner discussed removing Dr. Rainey from the
Clinic with Dr. Rosenzweig, who opposed his removal because of a
possible negative impact on Dr. Rainey's research grants.
(T.345,309,444,445) These discussions took place as early as
June 2, 1989.(T.460) Dispite Dr. Rosenzweig's efforts with Dr.
Sarwer-Foner, Dr. Rainey delayed reponding to Dr. Rosenzweig's
request for information about his research grant progress,
thereby preventing Dr. Rosenzweig's successful intervention. Dr.
Rosenzweig learned of Dr. Rainey's complaints to NRC in February
1989.(T.505)
Dr. Sarwer-Foner testified that the problems with Dr. Rainey
were the turmoil he created in the Clinic, the taking of another
doctor's research data, agitating the staff, nuclear complaints,
bad-mouthing the Clinic to outsiders, assuming responsibilities
which were not his and causing some members of the staff to
relate to him rather than to their supervisors.
(T.308,316,320,321) He said that the final straw was Dr.
Rainey's unauthorized newspaper advertisements soliciting
patients for a project in the Clinic he had not approved.(T.351-352)
Dr. Rainey testified that he attempted unsuccessfully to
stop the ads from running after notification from Dr. Sarwer-Foner's
office. He alleged that co-workers conspired against him
to continue the running of the ads, thereby making it appear that
he had violated a directive from Dr. Sarwer-Foner. That may or
may not be true and Dr. Rainey may have legal recourse against
the alleged conspirators. However, it is not an issue for me to
decide in this proceeding. What is significant is that from Dr.
Sarwer-Foner's perpective, Dr. Rainey had ignored his directive
to cancel the newspaper advertisements. There is no evidence
that Dr. Sarwer-Foner had any knowledge of another person or
persons continuing to run the ads.
Dr. Sarwer-Foner was the first witness to testify. The
story of mayhem and turmoil in the Clinc that he told was
difficult to believe. However, upon reviewing the testimony of
other witnesses and the exhibits, I consider him to be credible.
While there were a few discrepancies to be reconciled, I accept
"he testimony of all of the witnesses as basically creditable.
Dr. Sarwer-Foner was quite emphatic when he testified that
he had not removed Dr. Rainey from the Clinic because of his
complaints to NRC.(T.250,251,286,287,376) He recognized these
complaints as just one of the problems he had to deal with as
Director of the Clinic.(T.308,316,320,321) In this regard, Dr.
Sarwer-Foner appears to have put the nuclear complaints in
perspective with the overall problems at the Clinic surrounding
Dr. Rainey.
Dr. Sarwer-Foner did not object to the Clinic's staff
reporting nuclear concerns to NRC. There were postings in the
Clinic advising the staff of this right. However, he wanted such
complaints to first be addressed to the Clinic's radiation safety
officer.(T.367) He held a meeting and advised the staff of this
procedure.
Dr. Rainey basically ignored the procedures by continuing to
contact NRC. One of his most recent memos was dated June 21,
1989, consisting of 14 pages of nuclear concerns addressed to the
Clinic's radiation safety officer and distributed to more than 20
people, including NRC and non-Clinic personnel.(Cl.Exh.14) Dr.
Rainey attributes his removal from the Clinic to the issuance of
this memo.(T.614) But, Dr. Sarwer-Foner had no reason to be
concerned about nuclear violations in the Clinic because NRC had
just finished an investigation of the Clinic and had found no
violations. (T.250,286,287) Dr. Sarwer-Foner was not concerned
with Dr. Rainey's nuclear activities except in so far as they
contributed to the overall turmoil in the Clinic.(T.250) He
ultimately removed Dr. Rainey because of the turmoil.(T.251)
Since Dr. Rainey's June 21, 1989 memo was issued several months
after Dr. Sarwer-Foner had been advised that there were no
nuclear violations present in the Clinic, I accept his testimony
that it played no part in his decision to remove Dr. Rainey.
(T.376)
I recognize that a whistleblower often stands alone, unaided
by friends or co-workers. But the mere filing of nuclear
complaints with NRC can not surround the whistleblower with an
invincible shield of job protection. All of the circumstances
surrounding Dr. Rainey's removal must be considered. When they
are, it appears that his removal was justified on the basis of
the overall turmoil he created in the Clinic. His nuclear
activities were only a small portion of that turmoil. Granted,
the turmoil was contributed to by others in the Clinic and at
Wayne State who were interacting with Dr. Rainey. But, his
removal from the Clinic has ended the turmoil. Therefore, his
removal appears justified on grounds other than nuclear
activities.
Further evidence that Dr. Sarwer-Foner did not act with
animus toward Dr. Rainey because of nuclear activities is
demonstrated by the fact that Dr. Hryhorczyk and Mr. Warner,
collaborators with Dr. Rainey in his nuclear activites, have not
been treated adversely and do not contend that they have been
treated adversely. Nor is there any evidence of an adverse
action having been taken against Mr. Arthur.
I conclude that there was ample justification to remove Dr.
Rainey from the Clinic and that Dr. Sarwer-Foner acted on the
basis of the turmoil created by Dr. Rainey and his presence in
the Clinic and not in retaliation for his nuclear activities.
RECOMMENDED ORDER
Accordingly, it is ORDERED that the Complaint be, and hereby
is dismissed.
David A. Clarke, Jr.
[ENDNOTES]
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