Case Nos. 84-ERA-9 84-ERA-10 84-ERA-11 84-ERA-12

In the Matter of

Donald Richter, William J. Johnson,
Ronald D. Lehman,
Dale R. Murphy,
    Complainants

    v.

Baldwin Associates,
    Respondent

    The question before me is whether this consolidated proceeding, which arises under section 5851 of the Energy Reorganization Act of 1974 (ERA), 42 U.S.C. § 5851 (1982), should be terminated by a summary decision of dismissal.

    This proceeding was initiated by the filing of complaints by four middle management employees of respondent Baldwin Associates who were terminated from their employment at the Clinton Power Station, a nuclear power plant which Baldwin

was in the process of constructing for Illinois Power Company at Clinton, Illinois. Each of the complainants alleges that his termination was in violation of the ERA. Baldwin, on the other hand, contends that the complainants were terminated because of their involvement in efforts to intimidate an electrical inspector into changing a nonconformance report and/or to conceal the fact that unauthorized electrical work had been performed. Prior to the date set for hearing, Baldwin moved, pursuant to section 18.40 of the Rules of Practice and Procedure for Administrative Law Judges, 29 C.F.R. Part 18 (1985), for summary decision on the ground that it was undisputed that the complainants had not engaged in any protected activity. On April 12, 1984, Administrative Law Judge (ALJ) Daniel J. Roketenetz issued a Recommended Decision and Order on Motion for Summary Decision (D. and O.) in which he concluded that Baldwin's motion should be granted and that the complaints should be dismissed in their entirety because the complainants had not engaged in any protected activity.

    I do not accept the ALJ's recommendation. Rather, I find that summary decision in favor of Baldwin is not in order, and that this case should proceed to hearing.

    In reaching my decision, I rely on the evidence presented to the ALJ. Subsequent to the issuance of the ALJ's D. and O., the complainants submitted to the Secretary, as an attachment to Complainants' Appeal from Recommended decision and Order on Motion for Summary Judgment, affidavits from all four complainants. Baldwin objects to this supplementation of the record since these affidavits were not submitted to the ALJ. Baldwin's objection is valid. Section 24.6(b) of 29 C.F.R. (1985) requires that the Secretary's final order be based on the evidentiary record before the ALJ and on the ALJ's decision, and thus does not permit that the record be supplemented by evidence which could have been presented to the ALJ. Complainants do not aver that the facts set forth in their affidavits are newly discovered; nor, in view of the nature of these facts, could they do so. Acoordingly, I do not consider any facts, or any contentions based on facts, which were not presented to the ALJ.

    The standard for the granting of summary decision by an ALJ is set forth at 29 C.F.R. § 18.40(d) (1985). This section, which clearly is derived from Rule 56 of the Federal Rules of Civil Procedure, permits an ALJ to enter (or, in this case, to recommend the entering of) a summary decision for either party where "there is no genuine issue as to any material fact

and . . . a party is entitled to summary decision". Id. Thus, in order for Baldwin's motion to be granted, there must be no disputed material facts and Baldwin must be entitled to prevail as a matter of law.

    I first examine whether material facts were in dispute here. In cases arising under section 5851, the dispositive issue is whether an employee has been discriminated against because the employee engaged in an activity protected under that section. If there is no protected activity or, where there is a protected activity but no discrimination because of such activity, there is no cause of action. Thus, any facts which are probative of whether a complainant engaged in protected activity or whether adverse action taken against the complainant was in retaliation for a protected activity are material facts. A dispute as to such probative facts demands the denial of a motion for summary decision and requires that a hearing be held to resolve the disputed facts.

    Baldwin, in moving for summary decision, contended that there was no genuine issue as to the material fact that none of the complainants engaged in or were about to engage in any activity protected under section 5851. Baldwin argued that section 5851 requires participation in a Nuclear Regulatory Commission (NRC) investigative or enforcement hearing under either the ERA or the Atomic Energy Act (AEA), 42 U.S.C. §§ 2011-2296 (1982), and that none of the complainants participated in such a proceeding. As support for its argument, Baldwin relied on the absence of any such allegations in the complaints or initial-statements filed by each of the complainants with the Wage and Hour Division of the U.S. Department of Labor. Since complainants did not engage in any protected activity, Baldwin argued, it could not have terminated them in violation of section 5851.

    In resisting summary decision for Baldwin, the complainants argued that section 5851 did not limit protected activities to participation in NRC proceedings. Complainants asserted that they each had engaged in protected activities. Additionally, complainants contended that the reasons given by Illinois Power and Baldwin Associates for their discharge were pretextual because complainants were subjected to disparate treatment and because they had not violated any applicable regulatory or Company procedures. Their protected activities, complainants asserted, consisted of carrying out their job responsibilities of ensuring adherence to the quality control (QC) and quality assurance (QA) requirements of the ERA and the AEA and their

implementing regulations at 10 C.F.R. Part 50 (1985) and of ensuring the implementation of certain commitments made to NRC by the Illinois Power Company. Further, they asserted that each complainant had spoken with NRC personnel during an investigation in October of 1983 concerning complaints made to NRC about QC and QA violations at the Clinton site, and that these discussions with NRC constituted an extension of their protected activity¹ . Thus, concluded the complainants, their discussions with NRC in October of '1983 constituted protected activity even under the narrow interpretation of section 5851 urged by Baldwin, while their conduct in performing their duties and carrying out the safety policies and procedures required by Federal law constituted protected activity under a broader reading of section 5851.

    The ALJ properly held that prior contact with NRC is not a prerequisite to establishing a protected activity under section 5851. This finding is in accord with my holdings in Mackowiak v. University Nuclear Systems, 82-ERA-8, slip op. at 8-11, rem. on other grounds, 735 F.2d 1159 (9th Cir. 1984)² , and Wells v. Kansas Gas and Electric Co., 83-ERA-12 (June 14, 1984), aff'd, Kansas Gas and Electric Co. v. Brock, Nos. 84-2114 & 84-2735, slip op. at 11, 17-18 (10th Cir. Dec. 26, 1985). The ALJ also recognized that, if complainants were able to show that they had contacted the NRC concerning QC and QA problems at the Clinton site, they would have established that they had engaged in a protected activity. D. and O. at 7-8. However, he rejected complainants' statement to the effect that they had cooperated in the 1983 investigation both because the complainants who had participated in the investigation were not clearly identified, D. and O. at 8, and because "none of the Complainants alleged in their initial complaints that their terminations were in any way related to their cooperation with NRC in October 1983".³ Id. The ALJ then went on to find that the complainants' action in ensuring that QC and QA requirements were met at the Clinton site did not constitute protected activity because there was no evidence that complainants engaged in "whistleblowing", which the ALJ defined as the protestation of alleged improper or unlawful conduct of the employer by reporting such conduct to government authorities or other outside sources or by making internal protests. D. and 0. at 9. The ALJ further found that there was "absolutely no evidence

    Often the complaint is filed before the complainant has consulted an attorney, and the complainant has no knowledge of the applicable statute or as to what constitutes the violation; all the complainant knows is that some adverse action was unfairly taken against him or her. This action, even if unfair, may or may not constitute a violation. Sometimes, the complaint is drafted by Wage and Hour Division personnel, after they have questioned the complainant, and then copied by the complainant, or sometimes the contents of the complaint are suggested by such personnel.⁴ Thus, the development of the elements which establish a violation of section 5851 usually occurs during the administrative process conducted by

735 F.2d at 1163. In Kansas Gas and Electric Co. v. Brock, the court of appeals for the Tenth Circuit agreed that "the construction given to section 5851 by the Mackowiak court accurately reflects the intent of Congress." slip op. at 17. If, therefore, complainants establish that they had engaged in ensuring adherence to the requirements of the ERA and the AEA, it must be found that they had engaged in a protected activity irrespective of whether they had contact with NRC, or had made any "internal protest" regarding safety problems at the Clinton site.⁵

    A further basis for the ALJ's grant of Baldwin's motion for summary decision was that there was no evidence that the complainants were terminated for unlawfully motivated reasons. D. and O. at 10. It is clear, however, that the actual reason for the complainants' terminations was in dispute. Baldwin's position was that it discharged the complainants for legitimate management reasons - i.e., the mishandling of certain nonconformance reports. Complainants, however, contended that Baldwin's stated reasons for their terminations were pretextual, and that the real reason for their termination was that they were performing and carrying out the policies of the ERA and the AEA. Resolution of this factual issue requires a hearing on the merits since it necessitates an inquiry into Baldwin's motivation.

    The Supreme Court has cautioned that "summary procedures should be used sparingly . . . where motive and intent play lead roles . . . " Poller v. Columbia Broadcasting System, Inc., 368 U.S. 464, 473 (1962). The court of appeals for the Seventh Circuit, in which this case arises, has applied the same rule where evidence of motivation on the part of the movant is critical in establishing a violation of law. Staren v. American National Bank and Trust Company of Chicago, 529 F.2d 1257, 1261 (7th Cir. 1976) (stating that, "[w]e have held that the questions of motivation or intent are particularly inappropriate for summary judgment") and cases cited therein.

    This rule is particularly applicable to proceedings arising under whistleblower statutes like section 5851. The presence or absence of a retaliatory motive most often must be proved by circumstantial evidence and the inferences drawn therefrom. Proof that an employer was motivated by a reason violative of the statute lies largely in the hands of the employer and its personnel. In such cases, too, summary decision should be used sparingly.

    Rather than determining whether there was a dispute as to the motivation for the complainants' terminations, the ALJ made credibility findings and concluded that the complainants were terminated for the reasons proferred by Baldwin.⁶ As noted earlier, in summary decision procedures, the ALJ should not weigh the evidence of the complainants against that of the respondent.

    Moreover, I note that the ALJ, in his discussion of the facts relating to both the complainants' contact with NRC and Baldwin's motivation for the complainants' terminations, appears to have placed the burden of proof upon the complainants. While the complainants cannot ultimately prevail without establishing that they engaged in protected activity and that their terminations were motivated by their protected activity, and thus have the burden of proof on these issues, the burden of proving that there is no genuine issue of material fact, for purposes of summary decision, lies with the movant. See 6 J. Moore, W. Taggart & J. Wicker, supra at 8. As is evident from the above discussion Baldwin did not meet this burden.

    Therefore, it is ORDERED that this case is remanded to Administrative Law Judge Roketenetz for a hearing on the merits.⁷

       BILL BROCK
       Secretary of Labor

Dated: MAR 12 1986
Washington, D.C.

¹1/ Baldwin argues that complainant's statements are merely allegations unsupported by the complaints or by any evidence in the record. Baldwin made the same argument to the ALJ and sought summary decision on this basis alone. The ALJ did not rule on this issue. However, even if complainants' statement were deemed to be bare allegations, Baldwin would not automatically have been entitled to summary decision. Section 18.40(c) of 29 C.F.R. proscribes the opposing of a motion for summary decision upon "mere allegations" only where the motion is supported by affidavits. Baldwin's motion was not so supported. Moreover, even if complainants had not opposed Baldwin's motion, summary decision in favor of Baldwin would have been inappropriate since, as noted infra pp. 11-12, Baldwin was not entitled to summary decision as a matter of law.

² The Fifth Circuit in Brown & root, Inc. v. Donovan, 747 F.2d 1029 (1984), expressly disagreed with Mackowiak and held that "employee conduct which does not involve the employee's contact or involvement with a competent organ of government is not protected under section 5851". 749 F.2d at 1036. Nevertheless, I continue to believe that the construction of section 5851 set forth and affirmed by the Ninth Circuit in Mackowiak and endorsed by the Tenth Circuit in Kansas Gas and Electric is proper.

³ The ALJ stated that "[t]here is no question that those complainants who cooperated with the NRC in October 1983 were engaged in protected activities at that particular time . . . . However, the Complainants neither allege nor provide any evidence whatsoever that their terminations were in any way linked to those earlier protected activities." D. and O. at 8.

⁴ Complainants point out that:

The Administrative Law Judge appeared to place great significance on the fact that the Complainants did not articulate that they had been fired for going to the NRC when they filed their initial complaints with the NRC. Complainants were laymen who were having their charges investigated by Department of Labor personnel who had never even heard of the Energy Reorganization Act before Complainants' charges. The language of the charges was suggested by the Department of Labor and broad enough to cover the allegations. As is not unusual, Complainants later had more information available to them than at the time they filed their charges.

Complainant's Appeal From Recommended Decision And Order On Motion For Summary Judgement, at 25 n. *.

⁵ The ALJ suggests that, because the complainants were all in supervisory or managerial positions, the determination of whether they were engaged in a protected activity is different from the determination of whether a rank and file employee was engaged in a protected activity. D. and 0. at 9. Section 5851 does not make any such distinction.

⁶ Complainants argue before me that, in reaching this conclusion, the ALJ relied on and credited unsworn hearsay testimony contained in written statements submitted by Illinois Power, a non-party. In view of my finding that the ALJ erred in deciding the motivation issue, I need not rule on this argument.

⁷ On April 12, 1984, the ALJ issued an order denying inter alia, complainants' motion for joinder of Illinois Power Company as a party in interest. The basis for this denial was that the issue of joinder was moot since Baldwin's motion for summary decision had been granted and the complaints dismissed. In view of my decision that summary decision in favor of Baldwin is not warranted, I vacate the ALJ's order denying Complainants' motion for joinder, and direct the ALJ to consider anew the motion for joinder.