DATE: March 21, 1995
CASE NO: 90-ERA-0059
IN THE MATTER OF
MARA MCDONALD,
COMPLAINANT,
v.
UNIVERSITY OF MISSOURI,
RESPONDENT.
BEFORE: THE SECRETARY OF LABOR
DECISION AND ORDER
This proceeding arises under the employee protection
provision of the Energy Reorganization Act of 1974 (ERA), 42
U.S.C. § 5851 (1988). [1] Complainant Mara McDonald
alleges that she was terminated by the University of Missouri
(University) in retaliation for safety related complaints made
both internally and to the Nuclear Regulatory Commission (NRC).
On November 7, 1991 the Administrative Law Judge (ALJ) issued a
Recommended Decision and Order (R.D. and O.) that the complaint
be denied. I find that the ALJ erred in recommending dismissal,
find for Complainant and remand the case for a determination of
damages.
BACKGROUND
Findings of Fact
Complainant McDonald has a PhD from the University of
Florida at Gainsville in Zoology. In 1989 she was doing
postdoctoral research at the Smithsonian Institute. The research
at the Smithsonian was not proceeding as planned so Dr. McDonald
contacted Dr. Richard Sage about working with him at the
University of Missouri. T. 49-51. Sage agreed to work with and
supervise McDonald. Sage immediately started applying for grants
to fund their research, in which he specifically requested monies
[PAGE 2]
to pay McDonald as a Postdoctoral Associate. McDonald agreed to
move to Missouri and work with Sage in August of 1989, using the
funding she was still receiving from the Smithsonian. The
Smithsonian continued to pay McDonald until she was hired by the
University. T. 51.
McDonald was first hired by Respondent as an Instructor in
Biological Sciences teaching one course from November 1 until
December 20, 1989. Next, she was hired on a half time basis for
the month of February as a Postdoctoral Associate for Sage.
McDonald received another appointment for the period from March 1
through April 30, 1990, on a three-quarter time basis. For the
months of May and June, McDonald received full time appointments.
(R.D. and O. at 1). McDonald's work as a postdoctoral associate
was under a National Institute of Health (NIH) grant. She was
hired in advance of the grant in the anticipation and hope that
it would be awarded. As finally approved the grant was for three
years, subject to annual renewal. The official starting date for
the grant was April 1, 1990. (R.D. and O. at 2).
When McDonald arrived at the University she was Sage's only
postdoctoral associate, and spent almost all of her time in his
lab where she was given an office. McDonald was the senior
person in the lab, the only person working for Sage, and Sage
looked to her for the proper running and management of the lab.
(R.D. and O. at 2). There were also two graduate students,
Margaret Ptacek and Nidia Arguedas, working in Sage's lab for
other professors. Sage, himself, visited the lab five or ten
minutes per day. (R.D. and O. at 2). Anything he saw amiss
while he was in the lab he would mention to McDonald and expect
that she would see to it that the situation was corrected.
T. 295-96. Sage never announced to others working in the lab
that McDonald was "in charge" or that they should follow her
directions. T. 295-97. (R.D. and O. at 2). The situation was
ambiguous, in that Sage acted toward McDonald as if she had the
responsibility for the lab, but never informed others that
McDonald had the "authority" to manage the activities in the lab.
T. 77, 82-83, 87, 295-97, 411. (R.D. and O. at 2). In fact,
Ptacek testified that in her opinion, McDonald had no extra
authority over safety in the lab. T. 716.
During the week of March 19, 1990, Sage was on a field trip
in Texas. While he was away, McDonald noticed Arguedas violating
the regulations which govern the handling of radioactive
materials. Because Sage was out of town and McDonald could not
reach Arguedas' supervising professor, Felix Breden, McDonald
went to Dr. John David, the Director of the Division of
Biological Sciences and reported the violations. McDonald asked
David to bar Arguedas from working in the lab until Sage
returned. (R.D. and O. at 2). Arguedas admitted to the
[PAGE 3]
regulatory violations as alleged by McDonald. T. 107 et
seq. David did not bar Arguedas from the lab, but obtained
her agreement to meet with Jamie Shotts of the Environmental
Health and Safety Office in order to learn from him the correct
protocols for handling radioactive materials. T. 107-11. This
did not satisfy McDonald because she was certain she had
previously instructed Arguedas accurately as to what was
required, but for some reason Arguedas did not follow through.
T. 414, 480, 745. Arguedas admitted that she did not trust what
McDonald told her. T. 742.
When Sage returned on March 24, he met with McDonald and she
told him of two safety violations by Arguedas, one involving
radioactive sulphur in the unlabeled freezer, and the other
involving the storage of dry waste. T. 502. McDonald also
informed Sage that, in the past, she and Arguedas had not gotten
along, but that their problems had been resolved. This was the
first time that Sage had been informed of either safety
violations or personality problems in his lab. T. 419-20, 468,
471, 498, 502. On March 26, 1990 Sage asked McDonald for a more
detailed explanation of what had transpired, and said he would think about the problems and possible solutions. T. 124, 470,
471, 512. (R.D. and O. at 3).
The following day, March 27, Sage told McDonald that he
accepted Arguedas' agreement to take the training as a good faith
attempt to work safely in the lab and that, for the moment he was
satisfied. T. 422. On that same day, Sage informed McDonald
that NIH had cut her funding by 50 percent, and that he was going
to reduce her salary to three quarters time. T. 510. Sage also
informed McDonald of his intent to hire an undergraduate, Angela
Anders, under a different grant, to work in the lab. T. 548-49.
McDonald was upset and responded by demanding that Sage fund her
fully before funding other persons. (R.D. and O. at 3). Also,
at this March 27 meeting McDonald requested a job description
setting out her duties and responsibilities in the lab. T. 406.
McDonald requested the job description because she felt that
while Sage expected her to be in charge of the lab, the other
people in the lab did not respect her role and would not listen
to her without direction from Sage. Sage refused to give
McDonald such a job description. T. 131-32, 406, 513-15.
On March 28, 1990 Sage left for a meeting in Colorado and
was due to return on April 10, 1990. Before Sage left he told
McDonald that she was responsible for keeping "peace" in his lab
and that if there was not "peace" when he returned he would have
to make some "choices." T. 479. (R.D. and O. at 3). Although
McDonald was his only postdoctoral assistant, and clearly the
senior person working for him in the lab, he had not stated to
any of the other persons in the lab that she had any
[PAGE 4]
administrative responsibility or authority, or that she was
responsible for keeping the "peace" while he was away. (R.D. and
O. at 3-4). During his absence the situation did not change,
personality conflicts continued and, McDonald claimed safety
violations continued. (R.D. and O. at 3-4).
On April 11, after Sage returned, McDonald informed him that
Arguedas was still doing "shitty work" but made no specific
mention of safety problems. T. 470, 504. McDonald claimed
there were further safety violations and that was what she meant
by "shitty work." McDonald told Sage she had been speaking to
various individuals, including personnel in the Dean's Office,
about the possibility of a mediator coming in to help resolve
some of the problems in the lab. (R.D. and O. at 4). McDonald
was hopeful because she and Arguedas had amicably resolved their
problems in the past. T. 80. Sage reacted by asking McDonald to
leave the lab. T. 140, 552. (R.D. and O. at 4). Sage was a
non-tenured professor upset that the rest of the Division was
becoming involved in this conflict in his lab. Sage asked
McDonald to wrap-up her work in the next couple of months and
leave. T. 140.
Sage's action did not immediately change McDonald's status
either as his assistant or as an employee of the University.
Then on April 16, 1990 the locks were changed on the lab to
prevent McDonald from entering and she was told her contract
would not be renewed beyond April 30, 1990. (R.D. and O. at 4).
However, her contract was renewed twice, for the months of May
and June. T. 489-91. The personnel office was not notified
before June, 1990 that McDonald's contract would not be renewed
beyond June 30, 1990. (R.D. and O. at 5). On June 28,
1990 Sage told McDonald that she would be finally discharged as
of June 30, 1990. T. 164, C-20. On July 1, 1990 McDonald was
appointed as Senior Research Laboratory Technician in the
Veterinary Diagnostic Laboratory of the University, on a half
time basis.
University Grievance Proceedings
McDonald filed a formal grievance with the University on
April 25, 1990 before Sage extended her contract until June. The
grievance alleged that Sage discharged McDonald in violation of
her employment contract. The University then commenced a hearing
before the Grievance Committee which concluded on October 30,
1990. On November 8 the Committee sent its report to the
Chancellor, Haskell M. Monroe. Chancellor Monroe reviewed the
panel recommendation, and sent his recommendation to Peter C.
Magrath, the President of the University. Magrath reviewed the
findings of the panel, the chancellor's judgment and made the
final decision for the University. T. 559. Magrath found that
McDonald's discharge was "arbitrary" which was defined by the
grievance committee as "conduct which is the product of whim or
[PAGE 5]
caprice and not the product of any reasoned logic." (Exhibit C-
64, 6). Complaint to the NRC
On May 11, 1990 McDonald wrote a letter to the NRC setting
out detailed accounts of the alleged violations in Sage's lab.
The formal complaint was sent to the NRC on May 29, 1990. T.
158-61, C-34, R-27. The NRC investigated the allegations and
found violations in Sage's lab.
Stipulations
The parties stipulated that the University is a licensee of
the NRC and that the use of radioactive materials in Sage's lab
was pursuant to that license.
DISCUSSION
Timeliness
An employee who believes that she has been discharged or
otherwise discriminated against in violation of 42 U.S.C. §
5851(a) must file a complaint with the Secretary of Labor within
30 days after such discriminatory act. 42 U.S.C. § 5851(b).
McDonald filed her complaint with the Secretary of Labor on
July 26, 1990. The time period for administrative filings begins
running on the date that the employee is given definite
notice of the challenged employment decision. Delaware State
College v. Ricks, 449 U.S. 250, 101 S.Ct. 498, 66 L.Ed.2d 431
(1980) (emphasis added). In determining whether or not the
complaint is timely, focus is on the time of the alleged
discriminatory act, not at the point at which the
consequences of the act become painful." English v.
Whitfield, 858 F.2d 957, 961 (4th Cir. 1988) (emphasis in
original) citing Chardon v. Fernandez, 454 U.S. 6,
8, 102 S.Ct. 28, 29, 70 L.Ed.2d 6 (1981) (citing Ricks,
449 U.S. at 258, 101 S.Ct. at 504).
On April 11, 1990 McDonald was told to wrap-up her work in
the next couple of months. Then on April 16, 1990 McDonald was
informed that she would no longer be able to work in Sage's lab
and Sage had the locks changed. At this time McDonald was
informed that her current contract would not be renewed, and she
was being discharged as of April 30, 1990. However, prior to
April 30, Sage changed his mind and renewed McDonald's contract
for the month of May. Sage again renewed McDonald's contract for
the month of June. Though McDonald was no longer working in the
lab, her salary was increased from three quarters time to full
time.
Complainant correctly notes that "the Ricks-Chardon
rule is premised on an employee's having been given final and
unequivocal notice of an employment decision..." English v.
Whitfield at 961. In this case Sage did not give McDonald
"final and unequivocal" notice of termination until June 28,
1990, which was to become final two days later. Had Sage
initially discharged
[PAGE 6]
McDonald in April, either on the 11th or the 16th, with an
effective date of June 30, the 30 day time period would have
begun on that day in April, but that is not the case here.
I find that Sage equivocated regarding the final termination
decision until June 28, 1990, at which time he did give "final
and unequivocal notice" of discharge to McDonald. Therefore
McDonald's filing with the Secretary on July 27, 1990 is timely.
Burdens of Proof
Under the burdens of proof and production in "whistleblower"
proceedings, Complainant must first make a prima facie
showing that protected activity motivated Respondent's decision
to take an adverse employment action. Respondent may rebut this
showing by producing evidence that the adverse action was
motivated by a legitimate, nondiscriminatory reason.
Complainant must then establish that the reason proffered
by Respondent is pretextual. At all times, Complainant
has the burden of establishing the real reason for the discharge
was discriminatory. Thomas v. Arizona Public Service Co.,
Case No. 89-ERA-19, Final Dec. and Order, Sept. 17, 1993, slip
op. at 20; St. Mary's Honor Center v. Hicks, 125 L.Ed. 2d
407, 418-419 (1993).
In order to establish a prima facie case, a
Complainant must show that: (1) she engaged in protected conduct;
(2) the employer was aware of that conduct; and (3) the employer
took some adverse action against her. Carroll v. Bechtel Power
Corporation, Case No. 91-ERA-0046, Sec. Dec., Feb. 14, 1995,
slip op. at 9, citing Dean Darty v. Zack Company of
Chicago, Case No. 82-ERA-2, Sec. Dec., April 25, 1983, slip
op. at 7-8. Additionally, the Complainant must present
evidence sufficient to raise the inference that the protected
activity was the likely reason for the adverse action. Id.
See also McCuistion v. TVA, Case No. 89-ERA-6, Sec. Dec.,
Nov. 13, 1991, slip op. at 5-6; Mackowiak v. University
Nuclear Systems, Inc., 735 F.2d 1159, 1162 (6th Cir. 1983).
The record shows that Complainant engaged in several
protected activities. McDonald made complaints to both
management and the NRC. A complaint or charge concerning quality
or safety communicated to management or the NRC is protected
under the ERA. Kansas Gas & Elec. Co. v. Brock,
780 F.2d 1505, 1510-1513 (10th Cir. 1985), cert. denied,
478 U.S. 1011 (1986); Mackowiak v. University Nuclear Systems,
Inc., at 1162-1163; 10 C.F.R. Part 50 and Appendix B (1990).
Complainant first engaged in protected activity when she
informed her supervisor (Sage) and the Division head (David) of
the alleged violations by Arguedas regarding the handling of
radioactive materials. Internal complaints are a protected
activity consistent with the broad remedial purposes of the
whistleblower provisions of the ERA. See Passaic Valley
Sewerage
[PAGE 7]
Comm'rs v. Dept. of Labor, 992 F.2d 474 (3d Cir. 1993);
Couty v. Dole, 886 F.2d 147 (8th Cir. 1989);
Consolidated Edison Co. of N.Y., Inc. v. Donovan, 673 F.2d 61
(2nd Cir. 1982); Mackowiak v. University Nuclear Systems,
Inc., 735 F.2d 1159 (9th Cir. 1984); Kansas Gas and
Electric Co., v. Brock, 780 F.2d 1505 (10th Cir. 1985).
Additionally, McDonald engaged in protected activity on
May 29, 1990 when she filed a formal complaint with the NRC
regarding the alleged violations in Sage's lab. The reporting of
possible violations of the NRC regulations is a protected
activity. It is not dependent in any way upon the NRC finding
actual violations. In this case the NRC substantiated some, but
not all, of the violations reported by McDonald. The record
supports the conclusion that McDonald engaged in protected
activities in March through May of 1990.
The internal complaints made by McDonald to Sage and to
Dr. John David, Director of Biological Sciences, clearly show
that Respondent was aware of McDonald's protected activity.
McDonald's discharge from the Division of Biological Sciences on
June 30, 1990 was an adverse action.
The final element of a prima facie case requires
Complainant to show that the protected activity led to her
discharge. The proximity in time between the protected activity
and the adverse employment action is sufficient to raise an
inference of causation. Zessin v. ASAP Express,
Inc., Case No. 92-STA-33, Sec. Dec. and Ord., January 19,
1993, slip op. at 13; Bergeron v. Aulenback Transp.,
Inc., 91-STA-38, Sec. Dec. and Ord., June 4, 1992, slip op.
at 3. McDonald first engaged in protected activity during the
week of March 19, 1990 when she spoke to David regarding
Arguedas' NRC violations. On March 24, when Sage returned from a
trip, he was informed of the NRC violations. Sage made the
initial decision to discharge McDonald less than three weeks
later on April 11, and he was out of town for two of those
intervening weeks. McDonald was finally discharged less than one
month after she filed a formal complaint with the NRC. I find
that the proximity between McDonald's complaints and her
discharge is so close in time as to create an inference that the
adverse action was taken because of the protected activity.
Further evidence that McDonald's protected activity led to
her discharge comes through the direct testimony of David, Sage
and Kathy Newton. David testified that ERA complaints were part
of the reason for McDonald's discharge. David stated that it was
not the ERA complaints themselves that led to the discharge, but
rather the way McDonald handled the complaints. T. 648-49. Sage
also admitted that McDonald's safety concerns played a role in
the disruption in the laboratory. T. 552-53. Dr. Kathy Newton
testified that she knew of problems in Sage's lab before McDonald
[PAGE 8]
even arrived in Missouri. T. 621.
Furthermore, less than one month before McDonald reported
NRC violations to anyone, Sage wrote a letter of recommendation
for McDonald. In Sage's February, 1990 letter he praised
McDonald's work habits and her ability to get along with others.
T. 421-22, Ex. C-73. It is not credible that one month McDonald
got along well with others and the next month she was suddenly
responsible for disrupting the whole lab.
Since McDonald has presented a prima facie case
of discrimination, the burden is then upon Respondent to
articulate legitimate, non-discriminatory reasons for
Complainant's discharge. Darty, slip op. at 8.
Respondent denies that McDonald's discharge was based upon her
protected activity and attempts to articulate other reasons for
her discharge. However, prior to any hearings under the ERA,
Respondent itself found that McDonald's discharge was "arbitrary"
and not based upon any "reasoned logic." (Exhibit C-64, 6). In
other words, there was no good reason for her discharge according
to Respondent's own internal grievance committee finding. Though
the conclusion of the grievance committee is not binding,
it is certainly persuasive.
In the ERA proceedings Respondent claims McDonald was
discharged because she caused personality conflicts in the lab.
This is Respondent's alleged "legitimate, non-discriminatory
reason" for discharging McDonald. Respondent argues that the
problems between McDonald and Arguedas affected everyone in the
lab and caused the lab to become completely unproductive. I have
held "that even when an employee has engaged in protected
activities, employers may legitimately discharge for
insubordinate behavior, work refusal, and disruption."
Sprague v. American Nuclear Resources, Inc., Case No. 92-
ERA-37, Dec. and Order, December 1, 1994, slip op. at 8. See
also, Dunham v. Brock, 794 F.2d 1037, 1041 (5th Cir. 1986);
Abu-Hjeli v. Potomac Elec. Power Co., Case No. 89-WPC-01,
Final Dec. and Order, Sept. 24, 1993, slip op. at 15-18; Couty v.
Arkansas Power & Light Co., Case No. 87-ERA-10, Final Dec.
and Order on Remand, Feb. 13, 1992, slip op. at 2; Hale v. Baldwin
Associates, Case No. 85-ERA-37, Final Dec. and Order, Oct.
20, 1986, slip op. at 26.
In this case, like in Sprague, Respondent is arguing
that it was the manner in which McDonald made her complaints, not
the complaints themselves that led to her discharge. However
McDonald, like Sprague, never refused work or attempted to
disrupt others in their work, except where the actual violations
were at issue. McDonald admits she asked Arguedas to be barred
from the lab for violating the NRC regulations. Such a request
does not deny McDonald protection under the ERA just because it
[PAGE 9]
led to tension in the lab between McDonald and Arguedas. I find
Complainant's alleged misconduct was "nothing more than the
result and manifestation of [her] protected activity," which does
not remove McDonald from statutory protection. Sprague citing
Dodd v. Polysar Latex, Case No. 88-SWD-00004, Dec. and Order,
Oct. 6, 1994, slip op. at 15-17.
After McDonald complained of the regulatory violations,
there was definitely tension in the lab between McDonald and
Arguedas. However, Sage quickly assigned the blame to McDonald
without ever investigating if the personality conflicts could be
resolved or if she was the one truly to blame. McDonald and
Arguedas had a previous conflict which had been resolved
amicably. Mediation was an option, but Sage never considered it.
McDonald was the one complaining, therefore McDonald was the one
discharged. David claimed that it was the way McDonald handled
the violations that led to her discharge, not the actual
complaints. I do not believe such a distinction can be made in
this case. Based upon the evidence as a whole, Complainant has
proven that her protected activity led to her discharge.
CONCLUSION
For the forgoing reasons, I find that McDonald was
discharged in violation of the ERA. The recommended decision of
the ALJ is therefore rejected and the case is remanded for
further proceedings to determine damages, costs and expenses.
SO ORDERED.
ROBERT B. REICH
Secretary of Labor
Washington, D.C.
[ENDNOTES]
[1] The Amendments to the ERA in the National Energy Policy Act
of 1992, Pub. L. No. 102-486, 106 Stat. 2776 (Oct. 24, 1992), do
not apply to this case because the complaint was filed prior to
the effective date of the Act. For simplicity's sake I will
continue to refer to the provision as codified in 1988.
