DATE: November 16, 1992
CASE NO. 91-ERA-24
IN THE MATTER OF
AUCENCIO CHAVEZ,
COMPLAINANT,
v.
EBASCO SERVICES, INC., 1/
RESPONDENT.
BEFORE: THE SECRETARY OF LABOR
FINAL DECISION AND ORDER
Before me for review is the Recommended Decision and Order
(R.D. and O.) of the Administrative Law Judge (ALJ) in this case
arising under the employee protection provision of the Energy
Reorganization Act of 1974, as amended, 42 U.S.C. § 5851
(1988). The ALJ concluded that Complainant failed to establish a
prima facie case of retaliatory discharge, and alternatively,
that Respondent presented legitimate, nondiscriminatory reasons
for selecting Complainant for layoff during a reduction in force.
Accordingly, the ALJ recommended dismissal of the complaint.
Neither party filed a brief before the Secretary. 2/
Upon review of the record in this case, I agree with the
ALJ's recommendation to dismiss the complaint. The record fully
supports the ALJ's findings that Complainant failed to establish
Respondent's awareness of his protected activity at the time of
the layoff. Alternatively, Respondent proffered legitimate,
nondiscriminatory reasons for Complainant's layoff, which
Complainant failed to show were pretextual. For the reasons
discussed herein, however, I do not fully agree with the ALJ's
analysis.
Facts
Respondent is a contractor for Houston Lighting and Power
(HL&P), the owner of South Texas Nuclear Project (STP).
[PAGE 2]
Complainant was employed by Respondent as a welder/pipefitter and
had worked at STP for about seven years when he was laid off on
November 30, 1990. At this time, HL&P instructed Respondent to
reduce the size of the workforce at STP, because of the recent
completion of an outage at STP. 3/ Complainant was
notified that
he was selected for layoff on November 29. He was one of 36 STP
employees laid off by Respondent between November 2, 1990, and
January 8, 1991. See EX-3.
On November 15, Complainant was approached in his work area
by an HL&P welding inspector, Kenneth Silverthorn, and indicated
his willingness to discuss safety concerns. On the morning of
November 30 after being told that his layoff was effective that
day, Complainant presented safety complaints to Silverthorn, and
Respondent was informed of the complaints. See C-3. The
parties agree that before his layoff, Complainant did not raise
his safety concerns with his general foreman, J.C. Williams, or
any other of Respondent's employees involved in the layoff
decision.
There is conflicting testimony about a November 30
conversation between Complainant and J.C. Williams, immediately
following the layoff and the complaints to the HL&P welding
inspector. Complainant asserts that Williams told him he was
being laid off because he "opened his mouth" and complained about
safety procedures being violated. Tr. at 51, 75. Williams
denies that this portion of the conversation occurred. Tr. at
140-144, 154.
This ERA complaint was timely filed on December 13, 1990.
Complainant alleged he was selected for layoff because of the
November 15 discussion with welding inspector Silverthorn about
his willingness to discuss safety concerns, which was overheard
by other employees of Respondent. See EX-l.
Merits
Generally, in order to establish a prima facie case of
discrimination under the ERA, a complainant must show that he
engaged in protected activity of which respondent was aware and
that respondent took some adverse action against him. Moreover,
complainant must produce sufficient evidence to at least raise an
inference that the protected activity was the likely motive for
the adverse action. SeeDartey v. Zack Company of
Chicago, Case No. 82-ERA-2, Sec. Dec., Apr. 25, 1983, slip
op. at 7-9. If complainant establishes a prima facie case, then
respondent has the burden of producing evidence that the adverse
action was
[PAGE 3]
motivated by legitimate, nondiscriminatory reasons. SeeDartey at 8. If so produced, complainant, as the party
bearing the ultimate burden of persuasion of discrimination, has
the opportunity to show that the proffered reason was not the
true reason, but a pretext for retaliation. SeeDartey at 8-9.
Here, in concluding that Complainant failed to establish a
prima facie case, the ALJ found that Complainant failed to show
that he engaged in protected activity under the ERA, and
alternatively, that Complainant failed to show that Respondent
was aware of the protected activity at the time of the layoff
decision, or to establish a causal connection between the layoff
and any protected activity known to Respondent. R.D. and O. at
6-7.
On the issue of protected activity, the ALJ relied on the
decision in Brown and Root Inc. v. Donovan, 747 F.2d 1029
(5th Cir. 1984), holding that internal complaints are not
protected activity under the ERA. R.D. and O. at 6-7. The
Secretary has respectfully declined to follow the Fifth Circuit's
decision in Brown & Root and instead follows the more
recent decision of the Tenth Circuit in Kansas Gas & Electric
v. Brock, 780 F.2d 1505, (lOth Cir. 1985), cert
denied, 478 U.S. 1011 (1986), holding that
internal safety complaints are protected. SeeGoldstein v. Ebasco Constructors Inc., Case No.
86-ERA-36, Sec. Dec. and Order, April 7, 1992, slip op. at 5-10,
appeal docketed, No. 92-4576 (5th Cir. June 15, 1992);
Willy v. The Costal Corp., Case No. 85-CAA-1, Sec. Dec.
and Order of Remand, June 4, 1987, slip op. at 2-8. Accordingly,
I reject the ALJ's conclusion that Complainant's expressing his
willingness to discuss safety concerns to Silverthorn, the HL&P
welding inspector, on November 15 cannot be protected activity.
Complainant's discussion with a welding inspector, wherein he was
encouraged to raise safety concerns about welding outside his
immediate chain of command and wherein he indicated a desire to
discuss such concerns, is protected activity under the ERA.
4/ Complainant testified that his conversation with
Silverthorn was conducted in the open in his work area, that
other Respondent employees were present, and that one of these
employees could have repeated the conversation to Respondent
personnel involved in the decision to lay off Complainant. But
Complainant has presented no evidence to support his hypothesis
that any Respondent personnel was actually informed of his
protected activity. Moreover, Complainant's own testimony is
that Silverthorn would not have informed Respondent.
Accordingly, I must find that Complainant failed to show that
Respondent was aware of his protected activity at the time of the
layoff decision and thus, has not established a prima facie case.
[PAGE 4]
Alternatively, I agree with the ALJ's finding that
Respondent proffered legitimate, nondiscriminatory reasons
for selecting Complainant for layoff on November 30, which
Complainant has failed to show were pretextual. All of
Respondent's witnesses testified that HL&P mandated the layoffs
because of a reduction of force, and that Complainant was one of
many employees laid off during this period. Williams testified
that he was unaware of Complainant's conversation with
Silverthorn at the time the layoff selections were made and
passed through the chain of command. Two other Respondent
management witnesses corroborated the testimony that Respondent
management was unaware of Complainant's safety concerns until the
day of his layoff.
Williams further indicated that he had no problem with the
Complainant and that none of the personnel involved in selecting
Complainant for layoff ever mentioned safety complaints or any
other problem with Complainant either. 5/ The record
shows that Mr. Williams' evaluation of Complainant on November 30
rated him as "good" in every category and indicated his
eligibility for rehire. See EX-2, EX-5. Additional
testimony reflects that Complainant's difficulty in being rehired
related to his status as a traveler from a different union local.
Respondent has established legitimate, nondiscriminatory reasons
for Complainant's layoff, and Complainant has not shown that
these reasons were a pretext for discrimination.
Accordingly, for reasons discussed herein, the complaint is
dismissed.
SO ORDERED.
[PAGE 5]
LYNN MARTIN
Secretary of Labor
Washington, D.C.
[ENDNOTES]
1/ The caption has been corrected to reflect Respondent's
full name.
2/ Complainant has appeared prose in these
proceedings. The ALJ repeatedly inquired whether Complainant was
certain of his decision to proceed without an attorney.
3/ During an outage, the workforce is increased
temporarily.
4/ Complainant specifically states that he does not
believe his layoff was in retaliation for any other activity or
incident during his employment with Respondent.
5/ Respondent's witnesses presented evidence that a
recently hired employee was retained instead of Complainant
because he was a more versatile craft technician than
Complainant, i.e., that although Complainant had more welding
experience, Respondent anticipated increased pipefitting needs
and employees who had more pipefitting experience were retained.
