Date: December 12, 1995
Case No.: 95-ERA-18
In the Matter of:
ADAM MCNIECE,
Complainant
v.
NORTHEAST NUCLEAR ENERGY CO.,
Respondent
and
Case No. 95-ERA-47
In the Matter of:
ADAM MCNIECE,
Complainant
v.
NORTHEAST NUCLEAR ENERGY CO.,
and
BARTLETT NUCLEAR, INC.,
Respondents
William E. McCoy, Esquire
Heller, Heller & McCoy
For the Complainant
David J. Elliot, Esquire
Day, Berry, & Howard
For Northeast Nuclear Energy Co.
Glen E. Coe, Esquire
Rome, McGuigan, Hoberman, Sabonosh & Klebanoff, P.C.
For Bartlett Nuclear, Inc.
BEFORE: JOEL R. WILLIAMS, Administrative Law Judge
[PAGE 2]
RECOMMENDED DECISION AND ORDER
These two cases concern complaints filed by Adam McNiece
under the employee protection provisions of the Energy
Reorganization Act, as amended, 42 U.S.C. §5851 (the "Act")
and the regulations promulgated thereunder, 29 C.F.R. Part 24.
The complaint in 95-ERA-18, which is dated September 12,
1994 and alleges discriminatory actions taken by Northeast
Nuclear Energy Co. (hereafter, "Northeast) and/or Bartlett
Nuclear, Inc. (hereafter Bartlett) on or before that date, is
stamped received "WH New Haven AO" on October, 19, 1994. The
Assistant District Director, U.S. Department of Labor, Employment
Standards Administration, Wage and Hour Division (hereafter "Wage
and Hour) determined that the Complainant had not made a bona
fide showing that protected activity was a contributing factor to
the alleged unfavorable personnel actions and dismissed the
complaint without investigation. The Complainant appealed this
action by requesting a hearing.
A hearing in this 95-ERA-18 was convened on February 23,
1995.[1] It was then adjourned, without taking testimony,
because of the Complainant's desire to withdraw this complaint
and to file anew complaint based on alleged discriminatory acts
occurring subsequent to September 12, 1994. However, my
recommendation that the complaint in 95-ERA-18 be dismissed with
prejudice was not concurred in by the Secretary of Labor and the
case was remanded to me for a hearing.
The Complaint in 95-ERA-47 is dated May 22, 1995 and alleges
retaliatory actions by the Respondents in regards to an "early
lay-off" in December 1994 and the refusal to rehire him in April
1995. Following an investigation by Wage and Hour, it was
determined that the Respondents jointly had discriminated against
the Complainant because of activities protected under the Act.
Accordingly, the Respondents were ordered to reinstate the
Complainant in the position of Senior Health Technician with back
pay from his lay off in December 1994, to revise his performance
evaluation, to offer a public apology and to pay punitive damages
in the amount of $100,000.00.
Both Northeast and Bartlett requested a hearing in regards
to Wage and . 'Hour's latest determination. Said hearing was
combined with the hearing that the Secretary had ordered in 95-
ERA-18 and was held on August 29, 30 and 31, 1995, in New London
Connecticut.
[PAGE 3]
The record was left open following the hearing for the
submission of Bartlett's published policy regarding performance
evaluations.[2] The Bartlett's Personnel Policy Manual and its
September 27, 1994 Memo re "Employee Evaluation Forms" have now
been submitted and, without objection, are admitted to the record
as Respondent's Exhibits (R-) 99 and 100, respectively.
The record was left open also to allow for the filing of
briefs. The parties have filed simultaneous briefs which will be
made part of the record. In addition, the Respondent's have
filed a joint response brief with a motion that this be also
considered as part of the record. There being no objection from
the Complainant, the motion is granted.
FINDINGS OF FACTS
What follows is what I consider to be the pertinent facts in
this case based on the testimony and documentary evidence. Where
necessary because of a dispute in the evidence, the reasoning for
my finding is furnished.
1. Northeast, a subsidiary of Northeast Utilities Service
Corporation (NUSCO), operates a three unit commercial nuclear
generating plant, known as Millstone Station, in Waterford,
Connecticut. Millstone Unit One is a single-cycle plant, Unit
two is a combustion engineering pressurized water reactor, and
Unit 3, the newest and most modern, is a large-scale
Westinghouse, four-loop, pressurized-water reactor. The
Connecticut Yankee Power Station (CY) is also included in the
NUSCO group.
2. Peter Strickland, who holds a Bachelor of Science
degree in nuclear physics and has many years of experience in the
nuclear energy field, has been the Health Physics[3] Manager at
Millstone since May 1994.
3. Ronald Sachettello, is currently assistant to the NUSCO
Vice-President, stationed at CY. From 1985 to 1994 he was the @
e Radiation Protection Supervisor at Millstone Three. He has a
masters of Science degree and over 20 years experience in the
nuclear energy industry.
4. Jonathan Burdick is currently a Senior Health Physics
Technician at Millstone One. From September to December 1994 he
was a Radiation Protection Supervisor at the RAD materials
warehouse, and in such capacity supervised the Complainant during
[PAGE 4]
a Unit Two outage.[4]
5. Stanley Horner is a Northeast Senior Radiation
Protection Technician. During part of the September to December
1994 Millstone Two outage he was an upgraded Senior Health
Physics Technician in the RAD materials warehouse. He was
responsible in such capacity for supervision of the Complainant.
6. Bartlett is an organization which contracts to provide
technical personnel to 70 of the 115 operational reactors
nationwide as well to foreign nuclear power plants and
governmental agencies. Generally, this is done on a temporary
basis to cover periods when increased personnel are needed such
as during outages. Bartlett maintains a database of
approximately 15,000 to 17,000 technicians and during a peak
period may employ up to three thousand of these people.
Northeast became a client of Bartlett in about September 1991.
7. Jerry W. Hiatt is Bartlett's Group Vice-President for
Technical Services. He has been employed by Bartlett since 1985
and his duties include the management of the personnel
department.
8. James D'Angelo has been employed by Bartlett since
March of 1994 as a Personnel Administrator. His duties involve
the hiring of staff for various nuclear power companies around
the country, including Millstone.
9. Eric Bartlett is also a Personnel Administrator. He
has been employed at Bartlett since November 1989 and shares
responsibility with D'Angelo for staffing at Millstone.
10. Judi Tingley is another Bartlett Personnel
Administrator. The facilities which she staffs include Yankee
and Pilgrim Nuclear Power Station in Plymouth, Massachusetts.
11. Mike Conwell has been Site Coordinator for Bartlett at
Millstone since September 1991.
12. Adam Mc Niece worked at Millstone for three months in
1985 and returned there in 1990 as an employee of Power Systems.
He continued working there for Bartlett when they took over the
contract. His initial job was as a Decontamination (Decon)
Technician.[5] After 3 months he was promoted to a Junior
Health Physics Technician. He was then promoted to a Senior
Health Physics Technician (SHP)in May 1993.
[PAGE 5]
13. Nileen Drzewianowski has worked for various companies
as a SHP for 16 or more years. She has worked for Bartlett since
they became the contractor at Millstone and is currently engaged
as a procedure writer at Millstone.
14. Prior to January 8, 1994, the Complainant had raised
concerns with "line management" regarding (a)the level at which
exposure recording devices were being worn by personnel; and (b)
that because of an engineering flaw, a large amount of primary
coolant was backflowing through the drainage system into the
environmental sump. He subsequently brought these concerns to
the attention of the Nuclear Regulatory Commission (NRC) and to
L.A. Chatfield, Director of NUSCO's Nuclear Safety Concerns
Program (NSCP).
15. Effective January 8, 1994, the Complainant was
reclassified as a Decon Technician at $16.00 per hour and on
January 26, 1994 he was reclassified as a base level Decon
Technician at $13.00 per hour. Sachettello testified that he was
not aware of the Complainant having raised any nuclear safety
concerns at this time. He stated that the reclassification was
due to the Complainant's being kept on at his request "as a
bonus" to do clean-up work in a non-nuclear area after the Unit 3
outage had ended. However, he also indicated that sometime in
early 1994, the Complainant was utilized to replace permanent
Unit 3 technicians who were doing temporary duty for a Unit 1
outage.
16. As stated in a February 15, 1994 letter from the NRC
the Complainant contacted staff members of this agency on January
26 and 27, 1994 about "unspecified irregularities" at Millstone
3. It was noted that he did not want to supply specific
information with regard to the alleged problems without a grant
of confidentiality by NRC.
17. On April 29, 1994, Chatfield wrote to the Complainant
in reference to the concern raised by him with NSCP on January
27, 28 and 31, 1994. These concerns were identified as relating
to a problem his spouse, a NUSCO employee, had with offensive
comments received from her supervisor, the Complainant's
involvement in seeking corrective action on her behalf, and his
subsequent "demotions." Chatfield noted that NSCP had
ascertained that he was the only Bartlett employee who had been
demoted and that during the period involved 15 other employees
had been promoted. As a result of a meeting between Chatfield
and the then Manager of Radiation Protection it was determined
that although the Complainant's demotion was due to an
[PAGE 6]
organizational downsizing in support of the MP1 outage, the
basics of this downsizing was not communicated to him properly
when it occurred. Accordingly, it was decided to pay the
Complainant his former rate retroactively and, with the
concurrence of the Unit 3 radiation protection supervisor,[6] to
reinstate him to his former position.
18. In May 1994, the Complainant "brought up a procedural
compliance problem with some camera equipment.,, He also raised
this issue with NSCP and NRC.
19. The Complainant was terminated on May 27, 1994 due to a
reduction in force (RIF). On or between that date and April 22,
1994, 31 other Bartlett employees at Millstone were terminated.
Per Sachetello, this was due to the permanent Unit 3 employees
return from their temporary Unit 1 outage assignments.
20. In a June 13, 1994 letter to the Complainant, Chatfield
referred to a meeting they had on May 31, 1994 concerning the
layoff. After referring to their previous conversations during
which it noted that NESCO was going to significantly reduce
dependence on contract vendor services in 1994, Chatfield went on
to state:
"This is what I believe to be the case. The data I
reviewed shows that the Senior Health Physics
Technicians that remain in the area traditionally
associated with HP Operations have anywhere from 4 to 9
years of experience at the senior level. In addition
the only senior remaining in the base complement
of contract vendor employees, which you were in fact
part of, is shift qualified. Since your experience at
the senior level is less than the complement remaining,
as well as the fact that you are not shift qualified, I
consider the determination of your layoff to be handled
in a fair and equitable way with no regard whatsoever
to the [camera] incident you noted.
21. In an August 27, 1994 letter to the Complainant, Donald
B. Miller, Jr., Senior Vice President-Millstone, stated, in
substance, that his investigation of the data surrounding
Complainant's demotion in January 1994 and termination in May
1994 did not disclose that either was based on supervisory
harassment or discrimination. Miller indicated that downsizing
in the form of using less contractor personnel was to expected at
Millstone in the future. He noted further that he had reviewed
the issues relative the camera, teletectors and containment sump
[PAGE 7]
and found no need for corrective action or discipline.
22. The Complainant applied to Bartlett for a SHP position
for a Unit 2 outage due to commence in September 1994. The
processing of staffing for this outage began at the end of July
1994 and involved scoring the candidates under various categories
based on the information contained in their resumes. When
attempting to score the Complainant, D'Angelo noticed that his
resume was outdated. He contacted Conwell and was faxed a more
recent resume on August 4, 1994. The resume is printed on
Bartlett's stationary and bears the Complainant's certification
under the date of February 14, 1994 that he had reviewed and
initialed each page and verifies that it is true and accurate to
the best of his knowledge. In reviewing the resume D'Angelo
noted a discrepancy regarding the date that the Complainant was
promoted to a SHP.[7] Consequently, the processing of his
application was "put on hold." The situation was ultimately
resolved on September 19, 1994[8] when D'Angelo received a
letter from the Complainant authorizing Bartlett to revise his
resume. By then the staffing of the outage, with a starting date
of September 26, 1994, had been completed. However, one position
subsequently became vacant and the Complainant was employed to
fill the same on September 27, 1994. This was done with the
concurrence of Strickland, who was aware at the time that the
Complainant had raised safety concerns referable to the sump,
camera and teletectors.[9]
23. A Millstone Staffing Summary, dated October 12, 1995,
notes that there were a total of 78 positions filled of which 52
were SHPs and 13 were decon techs. On the basis of their
respective scores, the Complainant ranked in the 46th position
among the SHPs.
24. Testimony of Strickland, Burdick, Horner and Conwell is
to the combined effect that the Complainant's attitude appeared
to have changed upon his return to Millstone in September 1994.
Previously he was an enthusiastic, hardworking employee who was
eager to learn the operations of his job. Upon his return for
the Unit 2 outage he was strongly opinionated and
confrontational. Certain incidents of the Complainant's becoming
involved in disagreements with other employees were observed or
reported to one or more of the witnesses. These concerned the
Complainant's disagreement with a gas powered fork lift operator
over the operation of such equipment in an enclosed warehouse.
He reportedly argued with another employee over the playing of a
radio. These incidents are documented in the record as occurring
between October 6 and 11, 1994. The record includes also what
[PAGE 8]
are reportedly contemporaneous memorandums prepared by Conwell of
conversations he had with the Complainant regarding his failure
to properly use a time clock recently installed by Bartlett. The
memorandums are dated between October 5 and 10, 1994 and November
28, 1994.
25. The record also includes a written complaint from an
employee, John J. DeGostin, dated October 11, 1994, concerning a
confrontation he had with the Complainant the previous day.
DeGostin opined that the Complainant exhibited unstable behavior
at the time. Subsequently, Burdick, Strickland and other
Northeast management employees met with Conwell to discuss the
Complainant's fitness for duty. It was determined to turn the
matter over to Bartlett for any evaluation it deemed necessary.
26. Upon being advised of Northeast's concerns about the
Complainant's conduct, Hiatt went to-Millstone and met with him
privately on October 12, 1994. During the course of the meeting,
the Complainant expressed his belief that "people were out to get
him" because of his having raised some nuclear safety concerns.
They also discussed the DeGostin incident. Hiatt testified:
"Well, I summarized the meeting by kind of telling Adam
that, you know, from -- that harassment can go both
ways. He may have perceived that he was being
harassed, but at the same time some actions he was
taking may be perceived as being harassing by other
people. I told him that I would resolve, I would look
into the DeCostin issue, which was the -- as I remember
from talking to Adam, the biggest concern at that time,
and then that I would ensure that he was treated fairly
as best I could by all Bartlett personnel."
27. Following his meeting with the Complainant, Hiatt
determined that he could "still continue to discharge his duties
without question to the physical plant security." Hiatt stayed in
touch with Conwell in regard to the Complainant and recalled that
"things seemed to be improving."
28. The Complainant raised a concern regarding the
radiologically safe handling of "modesty garments" during his
employment at the Unit 2 outage. He raised such concern with his
line supervisor, the NSCP, and alternately with the NRC.
29. During the course of Wage and Hour's investigation of
the complaint in 95 EPA 18, Conwell, Chatfield and D'Angelo were
interviewed. Conwell reportedly told the investigator that he
[PAGE 9]
had no problems with the Complainant except for the warnings he
and others had been given concerning the time clock. Conwell
could not recall this conversation. The Investigator's report
does not identify the date on which Conwell was interviewed.
However, as the report makes no mention of the Complainant's
being terminated again in December 1994, it is reasonable to
assume that the investigation took place prior to this event and
I so find.
30. According to Strickland's testimony, the Unit 2 ran
into a problem in November 1994 which resulted in the outage
being converted to a "shutdown." At first there was uncertainty
as to when the outage would resume, but by the beginning of
December it "became obvious that the work had completely
stopped." Accordingly, they "started marching through a de-
staffing campaign up to a couple days before Christmas."
31. NRC conducted an announced radiological controls
inspection at Millstone on December 6-9, 1994 and issued a report
of the same in on January 13, 1995. One of the ares examined was
the sump. The inspector concluded that the likelihood of
contaminated liquid from the ESF sumps flowing under the Unit 3
containment basement was relatively remote but that to preclude
the potential for future backf1ow, the licensee was planning to
install a "weir system" in January 1995. The issue of placement
of dosimetry devices was also examined and the conclusion
indicated that any prior problems in this regard had been
addressed and there was no need for any repositioning of the
devices. The inspector examined camera equipment known to be
taken into and removed-from controlled areas but could not
identify any removable surface contamination.
32. The Complainant was terminated on December 9, 1994. He
maintains that there was still substantial work being done in
connection with the outage in the PAD warehouse to which he was
assigned.
33. The "Termination Sheets" referable to the Millstone
December 1994 layoffs when compared to the "Millstone Staffing
Summary"of record indicates that four other SHPs, each with a
score higher than the Complainant's, were terminated on or before
December 9.[10] Only one SHP with a score less than the
Complainant's was retained past that date, i.e., Jeffrey Graham
with a score of 232, who was terminated on December 23. In all,
there were approximately 60 employees terminated during December
of which I can identify about 23 as being SHP's.
[PAGE 10]
34. Conwell completed a Bartlett "Employee Evaluation Form"
referable to the Complainant on December 9, 1994. The form calls
for a grading of between 1 and 5 in the categories of Job
Knowledge, Attitude, Interaction with others, Professional
Conduct (Language, appearance, etc.), Attendance, Overall
Performance and Recommended Rehire. A grade of 3 is considered
marginal and a grade of 2 is considered marginal. Bartlett Site
Coordinators were informed on September 27, 1994 that the
evaluation forms were to be completed at the conclusion of an
outage, once every 6 months for long-term assignments or "as
needed" to highlight exceptional or marginal performance.
Criteria to be used included the following:
-Evaluations must be objective. Personal relationships
must not interfere with your ability to evaluate the
workers on-the-job performance -If you are not familiar
with the individual's performance obtain input from
Lead Techs or responsible utility supervisors.[11]
A Bartlett Personnel Policy manual for employees at
Millstone of record does not include any reference to the
employee evaluations. The manual does indicate that employees
are encouraged to bring forth safety concerns to clients and
notes the availability of Home Office technical staff to assist
with such concerns.
35. Conwell rated the Complainant as a 11211 in the
Attitude, Interaction and Professional Conduct categories and a
1131, in all the others. He added the Comments that there was
constant complaints that Bartlett and Northeast were unfair to
him and that their employees were against him. Her added that
the Complainant did not get along with co-workers, did not
understand the reason for a time clock and could not be talked to
without going into a tantrum. Testimony of Strickland, Burdick
and Horner is to the effect that they did not participate in this
evaluation and/or were not privy to the information contained
therein. The evaluation form is not signed by the Complainant,
who claims that it was not shown to him.
36. Hiatt testified that there was no provision for further
review by Bartlett officials of a supervisor's evaluation but he
amy talk to the supervisor if the employee feels the evaluation
was done unfairly and Hiatt felt a personality clash is involved.
Based on what he knows, he did not believe that the Complainant
had a basis for having his December 9, 1994 evaluation changed.
37. Drzewianowski testified the Conwell regularly
[PAGE 11]
complained to her that the Complainant was "being a pain in the
ass" by causing him extra work in preparing documentation and
appearing in court. She did not furnish a specific time frame
for these repetitive conversations.
38. The record includes a Memo to Strickland from Dennis
Regan, Radiation Protection Supervisor, Millstone 3, dated
January 5, 1995 in which he noted that industry indicators show
the availability of more contractor applicants for outage support
than required and recommended that a five year minimum experience
standard be applied at Millstone for SHPs. He also suggested
that SHPs be required to have "strong interpersonal skills" in
addition to their experience.
39. Hiatt attended a meeting at Millstone on January 24,
1995 regarding the staffing for a Unit 3 outage which was
scheduled to begin in March or April 1995. The discussions
centered on Northeast's desire, which had been expressed
initially in the fall of 1994, to improve the quality of
employees they were getting from Bartlett in order that they
could improve their reputation with regulators and peer groups by
moving from an average performer to one of excellence. Based on
his knowledge as to the criteria adopted at other utilities,
Hiatt recommended that SHPs be required to have a minimum of 5
years experience in this position (5 year rule). Strickland
testified that Northeast instructed Bartlett to adopt the 5 year
rule for SHPs at this meeting. He further testified that
discussion was had at that time of his belief that no one be
hired for the outage who had less than a 11311 on any element of
Bartlett's Performance Evaluation (rule of 3) should not be
hired.
40. The Complainant applied to Bartlett for an outage which
was to start at CY in January 1995. Tingley testified that he
did not score high enough to be hired for this outage based on
the CY scoring system which placed heavy emphasis on "returnees"
to this facility. Tingley continued that she had offered the
Complainant a position at Pilgrim, which because of its location
was difficult to staff and, accordingly, had lower hiring
standards. The Complainant testified that he declined the offer
because it meant that he would be separated from his family and,
also, because he anticipated being hired for the Unit 3 outage.
41. Regan and Conwell were among the witnesses that
Northeast anticipated calling at the hearing scheduled on
February 23, 1995.[12]
[PAGE 12]
42. D'Angelo and E. Bartlett testified to the combined
effect, that they first received instructions that the 5 year
rule was to be applied for SHPs hired for the Unit 3 outage on
March 2, 1995.
43. Drzewianowski related conversations she had with
Conwell about the Unit 3 outage in which he purportedly told her,
"We all know why we have the 5 year rule. Its so they can keep
Adam McNiece out." Conwell denies having made the statement.
44. E. Bartlett stated he was then informed of the rule of
3 on March 7, 1995 during a conference call with Strickland and
Regan. E. Bartlett stated that he informed the Complainant
sometime prior to March 20, 1995 that he could not be hired as a
SHP for Millstone because of the 5 year rule and again offered
him employment at Pilgrim. He pointed out to the Complainant
that working at Pilgrim would enhance his experience and offer
him the opportunity to better his evaluation. The Complainant
again declined employment at Pilgrim but asked instead to be
placed at Millstone for a decon tech position. E. Bartlett
subsequently obtained the Complainant's December 9, 1994
performance evaluation from Bartlett's files and ascertained that
the Complainant would not qualify under the rule of 3.
45. D'Angelo informed the Complainant on March 29, 1995,
that he could not be hired at Millstone because of the rule of 3.
The Complainant complained to D'Angelo on that date that the
evaluation reflected a "personal thing between Conwell and him
and that he wanted Bruce [Bartlett, the owner] to override the
2's. On April 5, 1995 the Complainant called D'Angelo to inquire
as to whether Bruce was going to override Conwell's evaluation.
D'Angelo responded that the evaluation would stand.
46. A Millstone Staffing Summary, dated May 2, 1995, notes
that a total of 125 positions had been filled of which 79 were
SHPs and 29 were decons. An entry under the date of March 22,
1995 notes that the hiring of Non-BNI technicians had started.
It is reported therein under the date of March 27, 1995 that
Knacks lawyer told Bartlett that two SHPs, who were already on
site, could not be hired for the outage as they do not meet the
greater than S year criteria.
CONCLUSIONS OF LAW
Section 5851(a) of the Act as amended effective October 24,
1992, provides, in pertinent part, that no employer may discharge
any employee or otherwise discriminate against any employee with
[PAGE 13]
respect to his compensation, terms, conditions or privileges of
employment because the employee has notified his employer of an
alleged violation of the Act or has commenced a proceeding
thereunder, "Employer" includes a licensee and/or its contractors
or subcontractors.
Pursuant to §5851(b)(1) complaints alleging violation
of the §5851(a) must be filed within 180 days after the
claimed violation occurs.
Under §5851(b)(3), added by the 1992 amendments, the
Secretary may determine that there has been a violation of the
whistle blower provisions of the Act only if the complainant has
demonstrated that any protected behavior "was a contributing
factor in the unfavorable personnel action alleged in the
complaint." The amended subsection provides further that relief
may not be ordered 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."
In a case of first impression interpreting the respective
burdens of proof established by the 1992 amendments, Dysert v.
Florida Power Corp., 93-ERA-21 (August 7, 1995), the
Secretary held:
"The language added to the EPA in 1992 permits the
Secretary to find violation 'only if the complainant
has demonstrated' that protected activity contributed
to the employer's adverse action. The ordinary
,meaning of the word 'demonstrate,' which is not
defined in the statute, is 'to prove or make evident by
reasoning or adducing evidence.' The American Heritage
Dictionary, Second College Edition, 1982.
Significantly, the new statutory language does not
authorize finding a violation if the complainant
demonstrates a prima facie case of retaliation.
In contrast, other paragraphs of the same section
explicitly provide for different degrees of evidentiary
burden applicable at certain stages of processing an
ERA complaint. Subsection 5851(b)(3)(A) provides that
the Secretary may not conduct an investigation 'unless
the complainant has made a prima facie showing'
that retaliation was a motivating factor in the adverse
action (emphasis added by the Secretary)..., and
subsection (D) directs the Secretary not to order
relief for the complainant if the employer demonstrates
by clear and convincing evidence that it would
have
[PAGE 14]
taken the same unfavorable personnel action in the absence of'
protected conduct. (Emphasis added by the Secretary.) It is an
accepted rule of evidence that '[g]enerally, the party with the
burden of persuasion must establish the elements of its case by
"a preponderance of the evidence." occasionally, constitutional
or policy considerations impose a greater burden; in such
instances a party will be required to prove its case "by clear
and convincing evidence"...' Jones on Evidence, 7th Ed. 1992,
§3.8 The language and structure of the statute show that
Congress did not intend to alter the degree of persuasiveness"
id., by which a complainant must prove his case." (FN
omitted)
Thus, to prevail, the Complainant must establish by the
preponderance of the evidence that he (1)engaged in protected
activity; (2) that either or both of the Respondents were aware
of the activity; (3) that either or both of the Respondents took
actions against him which are proscribed by the Act; and (4) that
the protected activity contributed to the adverse action.
Assuming that he has done so, the Respondents can still bar the
granting of any relief by demonstrating through "clear and
convincing evidence,, that it would have taken the adverse action
in the absence of any protected activity.
The burden of showing something by a preponderance of the
evidence, "simply requires the trier of fact to believe that
the existence of a fact is more probable than its nonexistence."
Concrete Pipe & Products v. Construction Laborers Pen.
Tr., U.S. , 113 S.Ct 2264, 2279 (1993). A clear and
convincing standard requires a greater degree of certainty,
Id. at 2279, albeit less than proof beyond a reasonable
doubt, Ulrich v. City of Crosby, 848 F.Supp 861, 868
(D.Minn. 1994). In order to satisfy the clear and
convincing standard the evidence must be sufficient to
satisfy the fact finder that the existence of the fact is "highly
probable." Id. at 868.
The 1992 amendments adopt the Secretary's prior
interpretation of the Act that expressing nuclear safety concerns
to one's employer constitutes protected activity. Filling a
complaint under the Act with the Department of Labor constitutes
commencing a proceeding under the Act and is also a protected is
activity. Frady v. Tennessee Valley Authority, 92-ERA-19
& 34 (Sec'y Oct 23, 1995), slip op. at 14.
A complainant is not required to show that he has raised
unique nuclear safety concerns in order to be protected under the
Act (DeFord v. Secretary of Labor, 700 F. 2d 281 (6th Cir.
1983)), and it does not matter whether his allegations are
[PAGE 15]
ultimately substantiated (Carson v. Tyler Pipe Co. 93-WPC-
11 (Sec'y March 24, 1995) slip op. at 8, (under the Water
Pollution Control Act)). The complaint need only be "grounded in
conditions constituting reasonably perceived" safety concerns,
(Minard v. Nerco Delamar Co., 92-SWD-1 (Sec'y Jan. 25,
1995) slip op. at 8 (under the Solid Waste Disposal Act)), and
there is no requirement that the complainant have no other motive
for filing the complaint (Carter Electrical District No.2 of
Pinal County 92-TSC-11 (Sec'y July 26, 1995) (under the Toxic
Substance Control Act).
The "presence or absence of retaliatory motive is a legal
conclusion and is provable by circumstantial evidence even if
there is testimony to the contrary by witnesses who perceived
lack of such improper motive." Frady, supra, slip op. at
25, citing, Ellis Fischell State Cancer Hospital v.
Marshall 629 F.2d 563, 566 (8th Cir. 1980). It is well
settled also that a temporal proximity between protected
activities and adverse actions may be sufficient to raise an
inference of retaliatory motive. See, e.g., Couty v. Dole,
886 F.2d 147, 148 (8th Cir. 1989)
The Secretary has held repeatedly that the Act covers former
employees who seek reemployment and are not hired. Cowan v.
Bechtel Construction, Inc. 87-ERA-29 (Sec'y Aug 9, 1989),
slip op. at 2; Samodurov v. General Physics Corporation,
89-ERA-20 (Sec'y Nov. 16, 1993). On the other hand, Northeast
contends correctly that the courts have observed that in enacting
various employee protection laws Congress did not intend to "tie
the hands of employers in the objective selection and control of
personnel," citing, inter alia, Hochstadt v. Worcester
Foundation, 545 F.2d 222, 231 (1st Cir. 1976). However, as
noted further in Hochstadt, such rights of an employer
must be balanced with the purpose of employee protection acts.
Id at 231. See, also, Frady,
supra at 17 ("An employer's failure to select a
complainant for employment does not necessarily constitute and
adverse action, absent a discriminatory reason proscribed by
law." (Emphasis added). It follows that an employer is not free
to establish qualifications for a position which are designed to
retaliate against a former employee because of prior protected
activity.
With these principles in mind, I conclude that the
Complainant engaged in activity protected by the Act by his
raising concerns regarding the sump, the camera, the detection
devices and the modesty clothing both internally and with the
NRC. The concerns were considered serious enough to warrant
[PAGE 16]
investigation by NRC which noted that Northeast had planned or
undertaken some corrective actions regarding these issues.
Clearly, his filing and prosecution of the September 1994
complaint with the Department of Labor also involved protected
activity. Accordingly, I will now proceed to consider each of
the adverse actions alleged by the Complainant and determine
whether any were in retaliation for any of these protected
activities.
1. The January 1984 Reduction in Pay.
This alleged retaliatory act is time barred as the
Complainant failed to file a complaint in regard thereto within
180 days of the reductions in his pay and grade. In any event,
corrective action had been taken voluntarily by Northeast.
2. The May 1994 Layoff.
Although the 95-ERA-18 complaint was timely in regard to
this action, I conclude that the Complainant has not established
by the preponderance of the evidence that his layoff at this time
was in retaliation for his having raised nuclear safety concerns.
There was a substantial lay-off of Bartlett personnel at this
time and the Complainant was one of the last to go. Furthermore,
he has not demonstrated that anyone involved in selecting him for
the lay-off was aware of the nuclear safety concerns that he had
raised at this point.
3. The One Day Hiring Delay in September 1994
Again, I cannot conclude that the Complainant's not being
reemployed by Bartlett until September 27, 1994 was in
retaliation,for any prior protected activity. The problem was
caused by t@e inaccurate resume, and, as previously noted, the
Complainant was partially responsible for this problem.
Additionally, any delay in resolving the problem can be
attributed only to Bartlett personnel who were not then aware of
the Complainant's prior raising of nuclear safety concerns.
4. The December 9, 1994 Lay-off
Contrary to what happened in May 1994, the Complainant was
among the first to be let go in the December 1994 lay-off. This
occurred subsequent to Department of Labor complaint and the
proximity of the investigation of this complaint to his December
9 termination can not be overlooked. It came also at the
conclusion of the NRC investigation which delved into the same
issues that Strickland was aware of having been raised by the
[PAGE 17]
Complainant. Although the Respondents contend that he was among
the first to be terminated because of his low ranking among the
SHPs, the record shows that a SHP with a lower score was in fact
retained past the Complainant. I recognize that by December 23
there was a lay-off of most of the Bartlett employees who were
hired for the outage and it is reasonable to find that the
Complainant would not have been retained beyond that date in any
event. Consequently, I conclude that the Respondents retaliated
against the Complainant only in regard to their failure to retain
him in their employ between December 9 and December 29, 1994.
5. The YC Outage
Tingley has offered a creditable explanation as to why the
Complainant was not hired for the YC outage to begin in January
1995, i.e., his status as a non-returnee scored him below the
curt-off point. The Complainant has not offered evidence which
raises a probability that such was not the case. Therefore, I
conclude that his not being hired for this outage was not in
retaliation for his protected activities.
6. The Unit 3 Outage
(a) The Five Year Rule - The first discussions
regarding the Five year Rule reportedly took place on January 24,
1995, less than two weeks following the issuance of the NRC
report which detailed its investigation of the concerns raised by
the Complainant. It occurred also within 10 days of the
Complainant's requesting a hearing on his DOL complaint. Even
more significant, the actual implementation of the rule came less
than a week after the scheduled hearing on this complaint at
which, Regan, one of the instigators of the rule, was scheduled
to testify. The temporal proximity lends credence to
Drzewianowski's testimony supportive of the Complainant's
contention that the rule was instituted to "keep him out." I find
it more probable than not that such was the case.[13]
In reaching this conclusion I have considered the
Respondents' contention that the Five Year Rule arose out of the
Northeast's desire to rely on fewer contract personnel. However,
the fact remains that more of Bartlett's employees were hired for
Millstone at the time of the Unit 3 outage than had been the case
in October 1994. Accordingly, the Respondents have not
demonstrated by clear and convincing evidence that they would
have instituted the Five Year Rule for the Unit 3 outage in the
absence of the Complainant's protected conduct.
(b) The Rule of 3[PAGE 18]
Here again, the rule was instituted with input by Regan
within days of his scheduled testimony in 95-EPA-18.[14]
Although the rule was purportedly instituted for the purpose of
being more selective from the overabundance of available
technician's, the record discloses that in order to complete the
staffing for the outage, Bartlett had to resort to the
recruitment of personnel it had not employed previously. Thus,
the rule could not have applied to these applicants as there
would have been no evaluation in place for them under Bartlett
standards.
Even assuming that there was a legitimate business reason
for the rule, I conclude that the Complainant's failure to meet
the same was in retaliation for protected activity. The rating
by Conwell was entirely subjective. It came also at the time of
both the DOL investigation and the NRC audit. Of course there
were incidents which involved friction between the Complainant
and other employees that may have justified the "2" ratings.
But, these occurred within a very short time frame in October
1994. The Complainant was counseled by Hiatt in regard to this
behavior and things improved thereafter. Consequently, I
conclude that it is more probable then not that the 11211 ratings
were given in retaliation for Conwell having to be involved in
the investigation of the 95-ERA-18 complaint. I note further
that although Hiatt indicated a rather loose policy whereby a
supervisor's evaluation could be changed if a personality
conflict appeared to be involved, Bartlett failed to even
entertain changing the rating because of the Complainant's
allegation of a personality conflict with Conwell. Hiatt did
testify further that he would not change the rating "knowing what
he knows now." Such knowledge would necessarily include the
Complainant's protected activity in filing and prosecuting the
complaint in 95-ERA-47.
In reaching my conclusions, I have taken into account also
Bartlett's offer to employ the Complainant at Pilgrim. However,
as such offer involved separation from his family, it can not be
considered as being under the same terms and conditions of the
employment he was refused.
REMEDIES
No testimony or other evidence was offered at the hearing
regarding the actual damages suffered by the Complainant because
of the Respondent's alleged retaliatory acts. I requested that
the parties attempt to stipulate as to these damages and present
any such stipulations to me post-hearing. None has been
[PAGE 19]
forthcoming as of this date. Because of my impending retirement,
there is not sufficient time for me to reopen the record on the
issue of the actual dollar amount of damages. Consequently, I
will recommend an order to the Secretary that sets forth the
nature of the remedied which I believe should be awarded and
leave open the dollar amount for any further proceeding which may
be necessary subsequent to the Secretary's review. In
recommending these remedies, I have taken into consideration the
temporary nature of the work in which the Complainant has chosen
to engage.
RECOMMENDED ORDER
1. The Respondents jointly shall pay the Complainant the
wages to which he would have been entitled if he had been
retained in their employ from December 10, 1994 to December 23,
1994.
2. The Respondents jointly shall pay the Complainant the
earnings that he would have earned as a SHP during the Spring
1995 Unit 3 outage based on the period when the majority of SHPs
had reported to work for this outage and ending when the majority
had been terminated for the same.
3. Bartlett shall correct the Complainant's December 9,
1994 Performance Evaluation to reflect a minimum rating of at
least 11311 in all categories.
4. Neither Northeast nor Bartlett shall deny future
employment to the Complainant because of his having engaged in
protected activities.
5. Neither Northeast nor Bartlett shall give a less than
satisfactory reference to or relate the Complainant's engagement
in protected activities to any prospective employer of the
Complainant.
6. The Respondent's shall pay for the Complainant's
expenses in prosecuting his DOL complaints, including reasonable
attorney fees.
JOEL R. WILLIAMS
Administrative Law Judge
NOTICE: This recommended Order and the Administrative file in
this matter will be forwarded for review by the Secretary of
Labor to the office of Administrative Appeals, U.S. Department of
Labor, Room S-4309, Francis Perkins Building, 200 Constitution
Ave., N.W., Washington, D.C. 20210. The Office of Administrative
Appeals has the responsibility to advise and assist the Secretary
in the preparation and issuance of final decisions in employee
protection cases adjudicated under the regulations at 29 C.F.R.
Parts 24 and 1978. See 55 Fed. Reg. 13250 (1990).
[ENDNOT ES]
[1]
Because the caption used by Wage and Hour when this Office was
notified of this complaint named only Northeast as the
Respondent, Bartlett was not named as a party in regard to this
hearing.
[2]
I had requested that this document be made a part of the record
in this case.
[3]
Strickland defined "health physics" as "the science of radiation
protection and all of the different attributes of it, which
include everything from off-site dose calculations to protection
of workers in the field."
[4]
Outages have been described by Strickland as being of two types.
One is a scheduled refueling outage where the reactor is
disassembled, pent fuel is removed, new fuel is installed and
reassembly takes place. During this time preventive and
corrective maintenance activities take place throughout the unit.
The other type is a forced outage do to equipment failure and can
last anywhere from a day to many months.
[5]
Sachetello describes a decontamination technician as one who
keeps a nuclear facility in a 'housekeeping aspect" by sweeping
floors, washing equipment and decontaminating any exposed areas.
[6]
Presumably Sachetello
[7]
There is a dispute as to who was responsible for the error. The
Complainant maintains that the resume was prepared by someone at
Bartlett based on the records in a 3 ring notebook which he had
furnished to Conwell. Conwell testified that the Complainant had
submitted the resume to him already prepared. D'Angelo testified
that the resume was not in the usual format used by Bartlett.
Nevertheless, I do not consider it necessary to determine who
prepared the document as I consider any error therein to be
inadvertent rather than deliberate. It is obvious to me that the
Complainant would not attempt to misrepresent his experience to
Bartlett knowing that they had the actual records of his
employment. On the other hand, I do not believe that Bartlett
would intentionally present a prepared resume to the Complainant
for his review with obviously false information. If anything,
their is contributory negligence on the part of both parties.
[8]
The delay was purportedly due to the temporary absences of
Conwell and Hiatt from their respective offices as well as the
inability of the Complainant to fax a new resume to Bartlett.
[9]
This was due to his having furnished information on these issues
to Miller and Chatfield.
[10]
Strickland's testimony indicates that some of these terminations
could have been voluntary.
[11]
Other instructions pertaining to the use of the form are
contained in an August 15, 1995 Page 2 revision and are not shown
to have been in effect prior thereto.
[12]
They were so identified in the List of Witnesses which Northeast
filed in 95 ERA 018 on February 17, 1995 and which is considered
part of the official file in that case.
[13]
The record does indicate that at least two other SHPs were
effected by the rule. However, their elimination was based on a
legal opinion from Northeast's General Counsel rather than merely
a determination by Bartlett's Personnel Administrators that they
were not qualified. It appears that there was a conscious effort
to give an appearance of the uniform application of the rule in
order not to jeopardize the Respondents, legal position in this
case.
[14]
Northeast's then counsel complained that his witnesses had to
take time from their work to appear at the hearing to no avail.
