U.S. Department of Labor
Office of Administrative Law Judges
304A U.S. Post Office and Courthouse
Cincinnati, Ohio 45202
(513) 684-3252
Date Issued: NOV 8 1985
Case No. 85-ERA-20
In the matter of:
TOM TUTTEROW,
Plaintiff,
v.
BALDWIN ASSOCIATES,
Respondent.
Appearances:
Ronald Barnett, Esq.,
For the Plaintiff
John B. Lashbrook, Esq.,
For the Respondent
Before: Richard E. Huddleston
Administrative Law Judge
RECOMMENDED DECISION AND ORDER ON MOTION TO DISMISS
Statement of the case:
This is a proceeding under the Energy Reorganization Act of
1974, as amended (hereafter called the "Act"), 42 U.S.C. § 5851
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and its implementing regulations, 20 C.F.R. Part 24. The Act in
§ 5851 (a), generally prohibits a Nuclear Regulatory Commission
(NRC) licensee from discharging or otherwise discriminating
against an employee who has engaged in protected activities as
set forth in the Act.
The Plaintiff, Tom Tutterow, filed a Complaint on May 8,
1985, with the Office of the Administrator, Wage and Hour Division,
Employment Standards Administration (ESA), U.S. Department
of Labor. His complaint alleges he was terminated by Baldwin
Associates (hereafter "Baldwin") due to "reasons other than those
given to me". His complaint then states that he has "documented
evidence of my lead (foreman) covering up deficiencies and
transmitting
these cover ups to IP (Illinois Power)". On June 5,
1985, the Plaintiff was notified by Mr. James D. Stanley, Area
Director, ESA, Wage and Hour Division, that his Complaint had
been investigated, but that it was determined that discrimination
was not a factor in his case, and that he had been terminated
from employment due to misconduct. The Plaintiff, by telegram,
on June 17, 1985 requested a hearing before the Office of
Administrative Law Judges to appeal the determination of ESA on his
Complaint.
Pursuant to a notice of hearing issued on June 21, 1985, a
bearing was held on August 21, 1985 in Augusta, Georgia. All
parties were afforded full opportunity to be beard, to adduce
evidence and to examine and cross-examine witnesses. Testimony
from witnesses called by both the Plaintiff and the respondent
was produced. The Plaintiff offered 4 exhibits which were
admitted into the record as Plaintiff's Exhibits 1 through 4
(PX 1-4). The respondent offered 6 exhibits which were admitted
into the record as RX 1-6. At the close of the hearing, all
parties, including the Plaintiff, agreed to waive the 90 day time
limitation of 29 C.F.R. § 6.
Counsel for the Plaintiff submitted on October 4, 1985
proposed findings of fact and conclusions of law. On October 7,
1985 Counsel for the Respondent submitted a post-trial brief and
proposed findings of fact and conclusions of law.
The Respondent has filed a motion to dismiss prior to the
hearing; his motion was renewed at the conclusion of the Plaintiff's
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evidence; and again the motion was renewed at the conclusion
of the hearing. The Respondent has also argued in his brief
that this complaint should be dismissed as there is no evidence
of discrimination or retaliation because of protected conduct.
On each occasion, I have taken under advisement the motion to
dismiss. After carefully considering the Respondent's motion and
based upon my observation of the appearance and demeanor of the
witnesses who testified, and upon an analysis of the entire
record, including all documentary evidence provided, statutory
provisions, regulations, case law and arguments of the parties, I
find that the motion to Dismiss should be granted.
Discussion:
The ultimate issue to be determined is whether Baldwin
Associates discriminated against Tom Tutterow due to his engaging
in activities which are protected under the Energy Reorganization
Act. The activities' in question here are the activities of the
Plaintiff in reporting to Illinois Power Company what he believed
was a cover up of deficiencies by his lead or foreman. Although
there are other issues which have been raised, such as timeliness
of the request for hearing and whether the Plaintiff was an
employee of Baldwin, in view of my decision herein, those issues
are rendered moot and are not addressed.
The Respondent's motion for a summary decision is based upon
several grounds. The motion that I consider at this time is
based upon the contention that the Plaintiff has not alleged in
his complaint that he was engaged in any activity protected by
the Energy Reorganization Act; at the conclusion of the Plaintiff's
evidence, that no evidence has been offered to show that
the Plaintiff was engaged in any protected activity prior to his
termination from employment; and that in any event, his termination
was based solely upon misconduct, and his other activities
were not a factor in his termination from employment.
Under the Energy Reorganization Act, 42 U.S.C. § 5851, the
Plaintiff must prove that: (1) 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 commenced or was about to commence, testified
or was about to testify, assisted, participated, or was about to
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assist or participate in any proceeding, or in any other action
to carry out the purposes of 42 U.S.C. § 5851 (Energy Reorganization
Act) or 42 U.S.C. § 2011 (Atomic Energy Act). See, DeFord
v. Secretary of Labor, 700 F.2d 281, 286 (6th Cir. 1983).
The party charged with discrimination in this case is the
Respondent, Baldwin Associates. Baldwin is in the business of
constructing the Clinton Nuclear Power Station for Illinois Power
Company at Clinton, Illinois. The Plaintiff was employed in the
Document Review Group to review documentation, called "travelers",
submitted by Quality Control Inspectors to determine whether
there was proper documentation and whether proper procedures were
followed in construction of cooling pipe hangers. His job did
not involve physical examination of the hangers, but simply
review of the paper documentation.
If, in reviewing travelers, the Plaintiff found deficiencies,
he was required to prepare a document exception list (del), to
state what is deficient with the particular traveler. Mr. Tutterow
testified that two particular individuals whose travelers he
reviewed had many instances in which he had to return the travelers
with dels. Due to the numerous errors found from these two
employees, he discussed this situation with his supervisor, Mr.
Lebkeucher. On one occasion he had 5 travelers which he believed
contained deficiencies, which he took to Lebkeucher, and asked if
he (Lebkeucher) wished to deal with these or if he wanted him to
prepare dels. Mr. Tutterow testified that Lebkeucher told him to
send them on through to Illinois Power as they were. Tutterow
refused, and indicated he would discuss the matter with Mr.
Royster, Lebkeucher's supervisor. In Tutterow's absence, the
travelers were sent by Lebkeucher to Illinois Power.
It is clear that the Plaintiff disagreed with his immediate
supervisor, Mr. Lebkeucher, over disposition of these 5 travelers,
and that he genuinely believed that Mr. Lebkeucher had deliberately
submitted documentation to Illinois Power Company, knowing the
same to be deficient (whether the travelers were, in fact, deficient
or not). As a result of his beliefs, Mr. Tutterow went to an
official of Illinois Power Company, Mr. Hill, to advise him of
these deficiencies.
The Plaintiff has argued that his action of reporting what
he believed was a cover up of deficiencies to Illinois Power
Company constitutes a protected activity within the meaning of
the Energy Reorganization Act, and further that his subsequent
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action of going to the NRC is a protected activity, as he intended
to go to NRC if Baldwin did not take care of the problem.
However, Mr. Tutterow has acknowledged in his testimony that
to his knowledge, no one at Baldwin was aware that he had spoken
with officials of Illinois Power Company about this matter, and
that he told no one that he was going to report to NRC with his
concerns (Tr. page 71). Mr. Tutterow, in fact, did not go to NRC
with these concerns until after his termination from employment.
I find that it is clear from Mr. Tutterow's own testimony
that his action of reporting to Illinois Power, and his complaint
to NRC, subsequent to his termination, played no role in his
termination, as no one was aware of these actions until after his
termination.
The issue is then raised as to whether the Plaintiff's
actions in his disagreement with Lebkeucher, his reporting what
he described as a "cover up" to Royster, and his attempt to
report these matters to Alice McDonald (Royster's supervisor),
constitute protected activities within the meaning of the Act;
and if so, whether he was terminated as a result of these
activities.
Mr. Larry W. Osborne, Manager of Quality and Technical
Services, for Baldwin Associates, at the Clinton Power Station,
testified that sometime near the first of May he was advised by
Alice McDonald that employee Richard Pinonni had complained of
someone placing "loads" into his cigarettes which would explode
as the cigarette was smoked. He stated that at the same time Ms.
McDonald had given to him a counseling and guidance report for
Tom Tutterow relating to a cigarette load incident. The report
contained a statement signed by Tutterow that he had placed loads
into fellow employees cigarettes. Mr. Osborne then testified
that he discussed the issue with his superiors, and further
discussed the matter with his assistants. He acknowledged that
at least one of his assistants felt he (Osborne) was overreacting
to the incident. Mr. Osborne then testified that he made the
decision himself, without any discussion with either Lebkeucher
or Royster, that Tutterow should be terminated for horseplay
involving cigarette loads.
Mr. Osborne testified credibly that he was not even aware of
the issue regarding the deficiencies maintained by Tutterow or of
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any reports to Illinois Power until after Tutterow was discharged
from employment. He testified that his sole motivation in discharging
Tutterow was that he felt that the placing of loads into
cigarettes was dangerous to employees as well as a fire hazard,
and as such could not be tolerated.
The Plaintiff has testified that his meeting with Lebkeucher
and Royster regarding the cigarette loads was about the same time
as his disagreement with Lebkeucher over the "covered up" travelers.
He admitted placing cigarette loads into fellow employees'
cigarettes in the past, and signed a statement to that effect,
but denied placing the load in the present instance on which the
complaint was based. The employee who made the complaint, Richard
Pinonni, was also one of the two individuals whose travelers were
the subject of the "cover up". He stated that both Lebkeucher
and Royster were aware of the cigarette load jokes that were
being played by employees, and had laughed at the incidents.
Thus, Mr. Tutterow argues that the whole process of the cigarette
load complaint was a conspiracy by Pinonni, Lebkeucher, Royster,
and Osborne, to fire him because he maintained that Lebkeucher
had covered up deficiencies in travelers submitted to Illinois
Power Company.
I find that the evidence in this case simply does not
establish such a conspiracy. In fact, the counseling and guidance
report given by Royster to Mr. Tutterow was only a reprimand,
and did not recommend termination. The decision to terminate was
made solely by Mr. Osborne. There is absolutely no evidence in
the record that Mr. Osborne was even aware of the alleged cover
up, and he has testified credibly that he was not aware of such.
Thus, even assuming that there was a conspiracy by Pinonni,
Lebkeucher and Royster, there is no evidence which has been
offered to show that Mr. Osborne was aware of such, or that it
had any relationship to the decision to terminate Mr. Tutterow.
I find that the Plaintiff's internal actions at Baldwin to
report what he believed were cover ups of deficiencies by Lebkeucher,
played no role whatever, in the decision by Mr. Osborne to terminate
him. For this reason, it is not necessary to address the issue
of whether his actions constituted protected activity within the
meaning of the Act, or the other issues which have been raised in
these proceedings.
[Page 7]
Conclusion:
For the foregoing reasons, I conclude that even if the
Plaintiff was engaged in protected activity, the evidence clearly
establishes that his activity in reporting an alleged cover up of
deficiencies was not a factor in his termination from employment,
and that he was terminated due to misconduct. Thus, it follows
that Mr. Tutterow's termination did not violate the provisions of
the Energy Reorganization Act or the implementing regulations.
ORDER
It is hereby Ordered that the Respondent's Motion to Dismiss
is granted and the complaint is dismissed in its entirety.
Pursuant to 29 C.F.R. § 24.6 this recommended decision shall be
forwarded to the Secretary of Labor for a final order.