The Recommended Decision and Order (D. and O.) of
Administrative
Law Judge (ALJ) Paul H. Teitler, dated March 21, 1986, in this case
arising under section 210 of the Energy Reorganization Act of 1974
(ERA), 42 U.S.C. § 5851 (1982), is before me pursuant to 29 C.F.R.
§ 24.6(b) (1987). The ALJ held that Claimant, Albert Francis, was
engaged in a protected activity under the ERA because he was "about to
go to the NRC. . . ." D. and O. at 13. The ALJ held further that
Respondent, Bogan, Inc., discriminated against Claimant when it
demoted him from his supervisory position to a technician's position.
Id. at 14. The ALJ found the stated reason given by Respondent for
demoting Claimant to be a pretext.
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Claimant was a supervisory instrument technician for Respondent
working on the calibration of instruments at the Hope Creek Nuclear
Generating Station in Salem, New Jersey. At the time he was demoted,
Claimant was the supervisor of a crew of technicians on the night
shift. Claimant would be assigned test packages by the night shift
testing coordinator, David Davis. The test packages were supposed to
contain all the information needed to calibrate the instruments to
which the package applied. The ALJ's Recommended Decision and Order
describes the problems Claimant found in many of the test packages and
the actions he took to rectify those problems. D. and O. at 4-5. The
ALJ also fully discussed several "field questionnaires" filed by
Claimant raising questions about the manner in which instruments and
equipment had been installed. D. and O. at 6-9. The record in this
case has been thoroughly reviewed and, with the modifications
discussed below, I agree with the ALJ's findings and recommendations.
(A copy of the ALJ's well documented Recommended Decision and Order is
appended to this Decision.)
Respondent excepted to the ALJ's decision on the grounds that
Claimant did not engage in any protected activity, that there was no
evidence of a causal connection between a protected activity (if there
was one) and the decision to demote Claimant, and that Claimant was
demoted for legitimate business reasons. Claimant excepted to the
limited remedy ordered by the ALJ, two weeks backpay, arguing that he
should be granted reinstatement and backpay with interest to the date
of reinstatement. Claimant also seeks attorney's fees and costs and
correction of his employment records.
As a general matter, I agree that section 210(a)(1) of the ERA
explicitly protects an employee who is "about" to go to the Nuclear
Regulatory Commission. 42 U.S.C. § 5851(a)(1). I do not think this
record supports the ALJ's finding that the management officials who
made the decision to demote Claimant knew that he was about to go to
the NRC resident inspectors before they demoted him. It is not
necessary to decide whether such knowledge is required to establish a
violation of the ERA, however, since the ALJ's decision that the
Claimant engaged in protected activity is correct for a different
reason. I have consistently held that reporting safety and quality
problems internally to one's employer is a protected activity under
the ERA. See Smith v. Norco Technical Services & Gulf States
Utilities Co., 85-ERA-17, Secretary's decision issued October 2,
1987; Nunn v. Duke Power Co., Case No. 84-ERA-27, Secretary's decision
issued July 30, 1987; Richter v. Baldwin Associates, 84-ERA-9, 10, 11
& 12, Secretary's decision issued March 12, 1986; Wells V. Kansas Gas
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and Electric Co., 83-ERA-12, Secretary's decision issued June 14,
1984, aff'd, Kansas Gas Electric v. Brock, 780 F. 2d 1505, 1510 (10th
Cir. 1985), cert. denied, 106 S. Ct. 3511 (1986); Mackowiak v.
University Nuclear Systems, Inc., 82-ERA-8, Secretary's decision
issued April 29, 1983, rem. on other grounds, 735 F.2d 1159 (9th Cir.
1984) (aff'd as to scope of protected activity, 735 F.2d at 1163).
The reasoning of those cases, see, e.g., Nunn, slip op. at 10-13, is
equally applicable here and compels the conclusion that Claimant
engaged in protected activity under the ERA, of which Bogan was fully
aware.
On this record, it appears, and I so find, that Respondent was
aware of the field questionnaires filed by Claimant, and in particular
his insistence, the day before he was demoted, that some action be
taken on a field questionnaire he bad written in January 1985. See D.
and O. at 7-9. Respondent was also aware that Claimant had returned a
number of test packages because they were deficient. T. at 241. This
delayed completion of testing the instruments. T. at 136. David
Davis, Claimant's immediate supervisor on the night shift, confirmed
that there were many deficiencies in the test packages. T. at 135.
One of the reasons given by Respondent for demoting Claimant was his
holding of test packages. T. at 204. Thus, the record shows that
Respondent had knowledge of protected activity (filing a series of
field questionnaires and returning deficient test packages) by Mr.
Francis when it demoted him.
Furthermore, I agree with the ALJ's conclusion that the reasons
given by Respondent for demoting Claimant were pretextual. The
opinions stated in the testimony of Respondent's two supervisors,
Douglas Campbell and Robert Class, each of whom claimed to have made
the decision to demote Claimant, that his productivity was low, were
directly contradicted by David Davis. It is significant that Mr.
Davis was the test package coordinator on night shift who worked with
Claimant on a day-to-day basis, T. at 124, while the higher level
supervisors Campbell and Class formed their impressions of Claimant's
work from discussions with other of Respondent's employees and from
computer summaries of test packages completed. T. at 224, 228. The
summaries were not introduced in evidence. Mr. Davis specifically
denied ever discussing Claimant's productivity with Respondent's
managers. T. at 133. Mr. Davis thought Claimant's work was
competent, of good quality and up to productivity standards. T. at
132-133.
Mr. Campbell did not ask Mr. Davis his opinion of Claimant's
productivity. Rather Mr. Campbell based his opinion of Claimant's
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productivity on Mr. Campbell's own experience in the industry, and did
not take into consideration the number of workers in Claimant's crew
or the complexity of instruments being worked on. T. at 218-219.
Claimant returned many test packages because they were deficient,
which lowered his productivity of completed packages. T. at 26, 47.
Mr. Davis confirmed that many test packages were in poor shape,
containing irrelevant or erroneous data and incorrect procedures.
some packages applied to instruments which had not yet been installed.
T. at 135-136. Based on these facts, as well as others discussed by
the AlL, D. and O. at 14-15, I agree with the ALJ's weighing of the
evidence that Claimant proved that Respondent's articulated reason for
demoting him was a pretext.1 Therefore, I
adopt the ALJ's
conclusion that Respondent discriminated against Claimant when it
demoted him.
1 As explained in Dartey v. Zack
Co., 82-ERA-2, Secretary's decision
issued April 25, 1983, the dual motive analysis set out in Mt. Healthy
City School District Board of Education v. Doyle, 429 U.S. 274 (1977),
is applicable only where an employer's adverse action was motivated by
two reasons, one legitimate and one prohibited. Here the ALJ
determined that Bogan's explanation for Francis' demotion was
pretextual. Thus, Francis was entitled to prevail and no further
discussion of dual motives was appropriate. The ALJ's apparent
reliance on Mt. Healthy, however, was harmless given the explicit
finding of pretextuality.
2 I would note, without relying on
it for my conclusion here, that
one of the reasons Claimant gave, T. at 107, for thinking about asking
to be relieved of his supervisory duties, was pressure he felt because
of the deficient test packages he was sending back.