CASE NO: 95-ERA-0011
David G. Johnson,
Complainant,
v.
Bechtel Construction Co.
Respondent
Appearances:
David G. Johnson, prose
For Complainant
Steven G. Rudolf, Esq.
For Respondent
Before: RALPH A. ROMANO
Administrative Law Judge
INTERIM
DECISION AND ORDER
On April 26, 1994, Complainant filed a complaint pursuant to
29 C.F.R. §24.3, as amended, alleging that Respondent
violated the provisions of the Energy Reorganization Act of 1974,
42 U.S.C. Section 5851(a), as amended, (hereinafter the "Act").
By letter dated November 18, 1994, the United States
Department of Labor informed Complainant that its investigation
of his complaint disclosed insufficient evidence to support the
alleged violation (ALJ 1).[1]
[PAGE 2]
By telegram dated November 29, 1994 (ALJ 2), Complainant
requested a hearing pursuant to 29 C.F.R. §24.4(d)(2)(1), as
amended.
A hearing was held in Milwaukee, Wisconsin on January 10, 11
and 12, 1995.[2] Briefs were filed on March 14, 1995.
THE LAW
42 U.S.C. 5851(a), as amended H.R. 776 Comprehensive
National Energy Policy Act, effective October 24, 1992, reads as
follows:
Employee protection
(a)(1) Discrimination against employee
No employer may discharge any employee or otherwise
discriminate against any employee with respect to his
compensation, terms, conditions, or privileges of
employment because the employee (or any person acting
pursuant to a request of the employee) -
(A) notified his employer of an alleged
violation of this Act or the Atomic Energy
Act of 1954 (42 U.S.C. 201 etseq.);
(B) refused to engage in any practice made
unlawful by this Act or the Atomic Energy Act
of 1954, if the employee has identified the
alleged illegality to the employer;
(C) testified before Congress or at any
Federal or State proceeding regarding any
provision (or any proposed provision) of this
Act or the Atomic Energy Act of 1954;
(D) commenced, caused to be commenced, or is
about to commence or cause to be commenced a
proceeding under this chapter or the Atomic
Energy Act of 1954, as amended (42 U.S.C.
§2011 etseq.), or a
proceeding for the administration or
enforcement of any requirement imposed under
this chapter or the Atomic Energy Act of
1954, as amended;
[PAGE 3]
(E) testified or is about to testify in any
such proceeding or;
(F) assisted or participated or is about to
assist or participate in any manner in such a
proceeding or in any other action to carry
out the purposes of this chapter or the
Atomic Energy Act of 1954, as amended.
(b)(3) Complaint, filing and notification.........
(C) The Secretary may determine that a violation of
subsection (a) has occurred only if the complainant has
demonstrated that any behavior described in
subparagraphs (A) through (F) of subsection (a)(1) was
a contributing factor in the unfavorable personnel
action alleged in the complaint.
(D) Relief may not be ordered under paragraph (2) if
the employer demonstrates by clear and convincing
evidence that it would have taken the same unfavorable
personnel action in the absence of such behavior.
Under this statute's predecessor, it has been held that it
must be proven by Complainant, Texas Dept. of Community
Affairs v. Burdine 450 U.S. 248 (1981): (1) that 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 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).
ISSUE
The sole issue to be resolved is whether Respondent failed
to re-hire Complainant because he engaged in protected activity.
PRELIMINARY STATEMENT
Complainant, an admitted seasonal employee hired by
Respondent during "outage" periods (Tr. 8), initially alleged
that he was laid off prematurely during the 1993-1994 outage[3] ,
[PAGE 4]
and also was not re-hired for the 1994-1995 outage - all because
he engaged in protected activity. Complainant sought back wages
relative to the alleged premature lay-off during the 1993-1994
outage, and reinstatement of his job for the 1994-1995 outage
(Tr. 10, 11).
After trial, Complainant conceded that he was not
prematurely laid-off during the 1993-1994 outage in violation of
the statute (Tr. 527), and Respondent agreed that Complainant did
engage in protected activity (Tr. 526, 527). Thus, the only
concern here is whether Complainant was not re-hired for the
1994-1995 outage because he engaged in protected activity.
COMPLAINANT'S CASE
Complainant, who does not have the benefit of counsel,
asserts that Respondent's general foreman (Willis Traver) made
the decision not to re-hire him for the 1994-1995 outage because,
during the 1993-1994 outage, Complainant raised safety concerns
(relative to a new respirator policy) at two separate meetings[4],
and later notified the U.S. Nuclear Regulatory Commission (NRC)
of these concerns (Tr. 8, 9). Essentially, Complainant claims
that his allegation is supported by the testimony of a former co-
worker (Michael Mabbett), a certain statement Traver made to him,
and his former supervisor's[5] positive evaluation of his work
performance.
RESPONDENT'S DEFENSE
Respondent urges that the allegedly incriminating statement
made to Complainant by Traver was both unrelated in time to the
decision not to re-hire, i.e. made some ten months before the
decision not to re-hire, and an innocuous expression of
frustration uttered in a heated meeting[6] due to Complainant's
disruptive manner, and thus not reflective of a discriminatory
employment decision.
Moreover, Respondent asserts that the evidence establishes
that Respondent appropriately failed to re-hire Complainant based
upon Complainant's poor work performance, the absence of foreman
desire to re-hire Complainant and Complainant's insubordination
(argumentative behavior). Finally, Respondent insists that
discriminatory motive is negated by reason of its re-hire of
others who similarly raised safety concerns (including Mabbett),
as well as the fact that no adverse action was taken against
Complainant at the time of his augmentative behavior through
which Complainant raised his safety concerns.
[PAGE 5]
FINDINGS OF FACT
AND CONCLUSIONS OF LAW
First, I find the parties' stipulations that Complainant
engaged in protected activity and that there was no
discriminatory layoff during the 1993-1994 outage[7] , to be well
grounded in the evidence.
As Respondent acted through its agent Traver, the central
figure in this case, the need arises to focus upon Traver's
behavior relative to the allegedly offensive employment action.
During the 1993-1994 outage, Traver expressed a desire to
terminate Complainant apparently for his reporting to the NRC
(Tr. 34). During the second meeting at which Complainant's rude
behavior came into question (see ftn.4 supra), Traver told
Complainant that he (Traver) "...had hired [Complainant] to decon
and shield, not to tell Commonwealth Edison how to do their job,
and if you [Complainant] had a problem with that, I [Traver]
would not have no (sic) problem with getting someone else to take
your place" (Tr. 123; 465; 508). At this meeting, Complainant
was engaging in protected activity (albeit rudely - Tr. 156),
that is, he was expressing his safety concerns relative to a
newly imposed NRC respirator policy (156-157; 508-509)[8] .
While Traver intended and was fully prepared to fire Complainant
due to his rudeness at both meetings[9] (Tr. 458-472), he did
not fire Complainant for this behavior (Tr. 470-471).
Traver insisted that he did not re-hire Complainant for the
1994-1995 outage because: Complainant was a poor performer (Tr.
447-449; 512), no foreman wanted Complainant back[10] (Tr. 450;
453; 476; see also 518-519), and Complainant had been
insubordinate, rude, and argumentative at the noted meetings
during the 1993-1994 outage (Tr. 448-449, 461-462; 481-482; 502-
505; ALJ 7; Resp. Br. at 6-12).
But Complainant's former supervisor, Smith, who was in the
best position to evaluate his work performance, unequivocally
testified that Complainant was a cooperative, conscientious and
efficient worker (Tr. 399-405; 420), although he agreed that
toward the end of the 1993-1994 outage, the night shift crew
"...had better luck moving things out and getting more work done
[than Complainant's day shift crew]", (Tr. 421).[11]
Complainant's co-worker, Mabbett, confirms Smith's high regard
for Complainant's work performance (Tr. 88-89). Furthermore,
poor performance, at any rate, apparently should not have
impacted
[PAGE 6]
upon Traver's decision to re-hire or not since he repeatedly
affirmed that he relied upon the sub-foremen's desire to re-hire
a particular individual in making re-hire decisions. Time and
again, for Traver, this was the only stated criterion for
re-hire, to wit: does any foreman want this individual re-hired?
If so, that person would be re-hired irrespective of Traver's
objection or negative evaluation of the work performance level of
that person! (Tr. 450-453; 476; 512). I find that Traver's
negative work performance evaluation of Complainant did not
underlie his decision not to re-hire Complainant.
Insofar as Traver's second reason for not re-hiring
Complainant, i.e., that no foreman requested him, the record
clearly suggests that, in Complainant's case, Traver did not
assume such a passive posture in the re-hire decision.
Indeed, he admitted that "[o]n the board where we have the names
[of prospective re-hires], I put like a dot or something to
remind me that person had done something. And then, when it is
hiring back time, I can talk to the foreman to find out what the
problem is." (Tr. 488). And, Traver put such a dot next to
Complainant's name after Complainant was laid off after the 1993-
1994 outage (Tr. 489). Thus, I find that Traver actively
and knowingly decided that Complainant would not be re-hired.
The decision whether or not to re-hire Complainant was certainly
not left to the foremen's desire to re-hire Complainant, or lack
thereof.
We are left then with an evaluation of Traver's third and
last proffered reason for not re-hiring Complainant, that is,
Complainant's insubordination, rudeness, argumentativeness, and
disruptive behavior at the noted meetings. At first glance, such
an evaluation appears to rest upon the question whether
Complainant's manner of expression of safety concerns (the
form of the protected activity) is such as would justify
Respondent's failure to re-hire him. And, I asked the parties to
brief this narrow question (Tr. 525). Upon reflection, however,
it is unnecessary to reach this issue[12] as I find Traver's
testimony on this score not credible. This, for the simple
reason that such manner of expression could (should) not
reasonably have been any more or less pivotal in Traver's
decision not to terminate Complainant during the
1993-1994 outage, than in his decision not to re-
hire Complainant. That is, since Traver declined to fire
Complainant for this reason even though he had the paper work
already prepared and fully intended to do so (Tr. 458-472), there
is little reason to believe Traver declined to re-hire
Complainant for this reason.[13]
I find that the record evidence, therefore, accommodates the
inference that Traver refused to re-hire Complainant because of
[PAGE 7]
the fact of his expression of safety concerns and not the
manner thereof. Such inference is accordingly drawn.
In addition to the foregoing, I find that Traver's warning
(threat of job loss) to Complainant after the second meeting (Tr.
123), his use of the terms "hassle", "raising hell" and "butting
in", during the telephone conversation with Complainant (ALJ 7),
as well as McKenzie's caution that Complainant not be terminated
at Traver's behest for a facially discriminating reason (Tr. 34),
all support the inference as above drawn.
In conclusion, I find that Complainant has established that
Respondent failed to re-hire him for the 1994-1995 outage for
reasons proscribed by the Act, and that this record contains
sufficient evidence to raise the inference that his protected
activity was likely the reason for Respondent's failure to re-
hire him.
ORDER ON DAMAGES
Complainant shall be awarded back wages which would have
been paid to him had he been re-hired for the 1994-1995 outage.
As the record is devoid of certain evidence necessary for
the calculation of such award, and in light of Complainant's lack
of legal representation herein, it is hereby
ORDERED, that the parties shall, on or before fifteen
(15) days, submit either a stipulation relative to: 1) the period
of time (weeks) Complainant would have been employed had he been
re-hired, and 2) Complainant's weekly wage therefor, and/or their
respective proposal as to factfindings, supported by documentary
or other evidence, relative thereto.
The foregoing shall be incorporated into a Recommended Final
Decision and Order upon issuance.
RALPH A. ROMANO
Administrative Law Judge
Dated: March 30, 1995
Camden, NJ
[ENDNOTES]
[1] References herein are as follows: "ALJ" - Administrative Law
Judge Exhibits, "EX" - Respondent Exhibits, "Tr." - Transcript of
trial.
[2] Complainant's motion to continue the hearing was denied (ALJ
6).
[3] Two weeks short of when he would normally have been laid off
(Tr. 187).
[4] The first of these meetings was attended by two of
Consolidated Edison's (the entity for which Respondent served
as subcontractor for the outage) health physicists, Complainant,
and two of Respondent's laborer's who had been contaminated, and
involved a counseling session on radiation policy (Tr. 154, 156,
456-457). The second, March 2, 1994, meeting was attended by
Mike Zien (of Consolidated Edison's management team), Gene Smith
(Complainant's former supervisor), Traver, two of Consolidated
health physicists and Complainant (Tr. 121-123; 457-462; 481-484;
504-506).
[5] Eugene Smith
[6] See ftn 4 supra.
[7] See particularly, Smith's testimony corroborative of
Respondent's conclusion that the night shift was more productive
than Complainant's day shift, thus justifying the lay off
decision (Tr. 421).
[8] This is also true of the first meeting (Tr. 154, 156; 456-
457), Complainant's appearance at which I have already found to
have been initiated by a Mr. Swiltz who asked Complainant to
collect the two laborers attending the meeting (Tr. 478).
[9] Indeed, Traver had prepared separation papers on Complainant
prior to the second meeting (Tr. 457-458).
[10] Apparently, Smith, Complainant's previous foreman, had by
then retired, and Complainant thus lost his "contact" for re-hire
(Tr. 453).
[11] Smith also did acknowledge that Complainant's crew
performance generally did not negatively bare specifically upon
Complainant's performance (Tr. 424-425).
[12] Were I to rule on this issue, I would find that the holding
in Dunham v. Brock, 794 F.2d 1037, advanced by Respondent,
is not controlling here as there is no evidence of obscene
language, together with abuse of status or overstepping of
defensible bounds of conduct.
[13] Also, Respondent's failure to put forward its policy
(formal or otherwise) containing criteria controlling this type
of employment decision, does not help its position. On this
record, in this regard, there exists no standard against which to
measure the propriety of Traver's decision not to re-hire.
