Boschuk v. J & L Testing Inc., 96-ERA-16 (ALJ Nov. 27, 1996)

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Boschuk v. J & L Testing Inc., 96-ERA-16 (ALJ Nov. 27, 1996)

U.S. Department of Labor
Office of Administrative Law Judges
7 Parkway Center
875 Greentree Road, Room 290
Pittsburgh, PA 15220

412 644-5754

NOVEMBER 27, 1996
CASE NO. 96-ERA-16

In the Matter of

LOUEM M. BOSCHUK
Complainant

J & L TESTING, INC.
Respondent

Appearances:

Vincent A. Ciccone, Esq.
For the Complainant

Thomas O. Vreeland, Esq.
For the Respondent

BEFORE: Daniel L. Leland
Administrative Law Judge

RECOMMENDED DECISION AND ORDER

This case arises under Section 210 of the Energy Reorganization Act of 1974 (ERA), 42 U.S.C. §5851, which prohibits a Nuclear Regulatory Commission (NRC) licensee from discharging or otherwise discriminating against an employee who has engaged in activity protected under the Act. Complainant filed a complaint under the Act on or about January 9, 1996 which was investigated by the Wage and Hour Division of the United States Department of Labor and found not to have any merit. Complainant made a timely request for a hearing which was held before the undersigned in Pittsburgh, Pennsylvania on August 22, 1996. The parties were given until October 21, 1996 to submit briefs. Complainant's brief was timely filed but respondent requested an extension and was given until November 7 to file its brief. Complainant requested and was granted permission to file a reply brief. Both the respondent's and the complainant's reply brief have been received.

Summary of the Evidence

Louem M. Boschuk (complainant) has been an employee of J & L Testing, Inc. (J & L or respondent) since 1986. (TR 177) He is the son of Lourdes Boschuk (Lourdes), who is the president and owner of J & L. (TR 68, 177) Complainant is the stepson of John Boschuk, Jr. (Jack), the president and owner of J

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& L Engineering which is located at the same premises as J & L in Canonsburg, Pennsylvania. (TR 69, 281)

Complainant was employed in the geotechnical department or soils lab and his immediate supervisor was Mahiru Shettima. (TR 28-29) Shettima characterized complainant as a "good employee" and testified, "If I assign him work, he does it." (TR 225, 226) Although complainant sometimes came to work late, he would work late to make up for it. (TR 227, 259) Sometimes, complainant would quit working altogether for periods of time. (TR 227) Jack Boschuk testified that complainant's work hours were sporadic but that he worked hard when he worked. (TR 294) Complainant stated that he had never been given any verbal or written reprimands for his work performance. (TR 27, 28) (Complainant averred that he had never received the October 30, 1995 memo of J & L's general manager, Ben Landas, warning him that his continued tardiness and unexplained absences might be grounds for termination. (RX 1, TR 117-118) Although Lourdes Boschuk testified that complainant was not a good employee and was frequently late, she was unable to produce any written documentation verifying this assertion. (TR 192, 195-196)

One of complainant's job duties was operating the Troxler gauges. (TR 31-32) The Troxler gauges are used for measuring soil density and contain radioactive materials. (TR 32, 243-244) Because they contain radioactive substances, the Troxler gauges are licensed by the NRC. (TR 32-33) J & L Engineering had held a NRC license for three Troxler gauges, but the license was revoked on August 30, 1993 for non-payment of fees. (CX 2 at p. 1) Respondent applied for a license for the use of the same three gauges in November 1994 and NRC issued respondent a license on February 7, 1995. Id at 2. Because complainant was the only J & L employee who was trained to use the Troxler gauges, he was made respondent's Radiation Safety Officer (RSO) in the summer of 1995, and was responsible for the maintenance and operation of the gauges. (TR 33, 230)

Prior to an NRC inspection of respondent on August 3, 1995, Lourdes Boschuk assertedly asked complainant to sign the physical inventory forms falsely stating that he had checked the conditions of the Troxler gauges. (TR 34) ¹ This apparently occurred again in October 1995. (TR 40-41) Complainant testified that he made the false statements under pressure from his mother. (TR 35, 41) Lourdes Boschuk denied that she ever made such a request to complainant. (TR 178) Complainant also asserted that his mother and stepfather told him to stay home when the NRC inspectors conducted their inspection, and that he complied. (TR

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35, 36) This was also denied by Lourdes Boschuk. (TR 179)

During the August 1995 inspection, the NRC inspectors determined that respondent had used one of the Troxler gauges during the period when its license was not in effect, which was a violation of NRC regulations. (CX 1 at p. 2) It was also determined that both Lourdes and Jack Boschuk had previously made inaccurate statements to the NRC, and that J & L had violated three additional requirements of the NRC by failing to test the Troxler gauges for leaks, failing to have an RSO, and failing to perform inventories of the gauges at six month intervals. Id at 2-3. The respondent was also cited for using radioactive materials in the State of New York without obtaining reciprocity from New York and for providing false statements to New York State. Id at 3. The NRC concluded that the false information provided by Lourdes and Jack Boschuk was, if not deliberate, in careless disregard of Commission requirements. Id at 5. As a result of these violations, respondent's license to operate the Troxler gauges was immediately suspended by order dated September 27, 1995. Id at 6.

On October 1, 1995, two days prior to the date NRC inspectors were to perform an on-site inspection of respondent, Lourdes Boschuk reportedly told complainant to falsify the utilization logs pertaining to the use of the Troxler gauges for one of its clients. (TR 43-45) ² She denies having done so, however. (TR 177) Complainant testified that on the morning of October 3, 1995, Lourdes Bodvhuk removed certain documents from the files on the Troxler gauges and placed them in a garbage bag. (TR 46-51) She told complainant that she intended to take the documents home so that the NRC investigators could not examine them. (TR 50) Lourdes Boschuk testified that she did not remove documents from the files. (TR 178) Later that day, Shettima assertedly told complainant not to apprise the NRC inspectors of respondent's illegal use of the Troxler gauges in July and September 1995 for Laidlaw Waste Management and Cashin Associates. (TR 53-56) Shettima testified that rather than telling complainant not to mention these usages of the Troxler gauges, he had told him not to shoot his mouth off and to make statements about matters he did not understand. (TR 254) Lourdes Boschuk also told complainant to be careful what he told the NRC inspectors because he could get J & L in trouble. (TR 57) Lourdes Boschuk also allegedly removed complainant's time sheets showing his use of the Troxler gauges for Laidlaw and Cashin and directed complainant to fill out blank time sheets with inaccurate information. Although complainant knew the information to be false, he filled out the time sheets because he felt compelled to do so. (TR 59-63) After his interview with the

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NRC inspectors on October 3, Jack Boschuk told complainant to tell the inspectors the truth, but Lourdes Boschuk instructed complainant not to be truthful. (TR 65) Lourdes denied having told complainant to falsify the time sheets. (TR 179)

After the October 3, 1995 inspection, complainant received numerous telephone calls from NRC Special agent Ernest Wilson, but his mother told him not to return the calls. (TR 74) A few days after the inspection, she asked complainant if he would agree to go to prison if the NRC discovered violations, because if Jack lost his license it would irreparably damage the company. Complainant refused. (TR 75) A few days later, complainant avers that he overheard a conversation among Jack, Lourdes, and Landas in which Landas suggested that complainant take the blame for any violations found by the NRC. (TR 78)

On November 3, 1995, complainant arrived at work about 11:30 a.m. after working until 3:00 a. m. the previous day. (TR 79-80) Complainant went to his mother's office to ask her to transfer title of a car to his girlfriend, Michele Higgins, which she agreed to do. (TR 81, 183-184) Lourdes stated that she did not see complainant again that day, but complainant's testimony is strikingly contradictory. He testified that later that day his mother asked him to sign a statement that as RSO he had improperly removed documents regarding the Troxler gauges. (TR 83) Complainant refused and threatened to start cooperating with the NRC. (TR 84) Lourdes allegedly called him a "traitor". (TR 84) Cathie Nuccetelli, a former employee of J & L, corroborated complainant's version in testifying that she overheard a heated argument between the complainant and Lourdes on November 3 and observed complainant handing back papers to Lourdes. (TR 141-142)

Complainant then went to the soils lab where he had a conversation with Oscar Daso, a J & L employee. While they were talking, Landas told complainant to perform a different task. When complainant expressed reluctance, Landas stated "Well, why don't you just go home, you're fired." (TR 86) Complainant turned to Daso and said, "Can you believe that, he fired me?" (TR 87) Daso testified that Landas heard complainant tell Daso that he had been fired and said nothing. (TR 162-163) Nuccetelli testified that she later overheard Landas on the telephone stating that he had fired complainant for insubordination. (TR 142) In spite of statements by respondent's counsel and Shettima that Nuccetelli had reported in a prehearing exchange that Landas had only said they he will fire complainant, Nuccetelli adhered to her testimony that Landas had said that he had fired complainant. (TR 327) Complainant told Shettima that he had been fired and Shettima said he would try to resolve it. (TR 89) Shettima

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testified that Landas maintained that complainant refused to obey his instructions and Shettima then told complainant to go back to work. (TR 231-232) Complainant replied that he would not take instructions from Landas and he left the premises. (TR 232)

At the time his employment ended with J & L, complainant's live-in girlfriend, Michele Higgins, was eight months pregnant and complainant was their sole source of income. (TR 30) After November 3, 1995, complainant has looked for employment but has been unsuccessful. (TR 91-92) Complainant's hourly rate of pay with J & L was $10.00 an hour. (TR 94) He frequently worked overtime but did not always get paid for it. (TR 94) Lourdes has never contacted complainant since November 3, 1995. (TR 194)

Findings of Fact and Conclusions of Law

Section 210 of the Energy Reorganization Act, 42 U.S.C §5851, provides that:

(1) 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...

(A) notified his employer of an alleged violation of this chapter or the Atomic Energy Act of 1954;

(B) refused to engage in any practice made unlawful by this chapter 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 proposed provision) of this chapter 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, . . . or a proceeding for the administration or enforcement of any requirement imposed under this chapter or the Atomic Energy Act of 1954, as amended;

(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 manner in such a proceeding or in any other action to carry out the purpose of this chapter or the Atomic Energy Act of 1954, as amended.

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To establish a valid discrimination claim, the complainant must prove: (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 participated in NRC proceedings under the ERA or the Atomic Energy Act of 1954. DeFord v. Secretary of Labor, 700 F. 2d 281, 286 (6th Cir 1983). The employee must initially present a prima facie case by showing that he engaged in protected conduct, that the employer was aware of that conduct and took some adverse action against him, and that there is an inference that the protected activity was the likely reason for the adverse action. If an employee establishes a prima facie case, the employer has the burden of presenting evidence that the alleged disparate treatment was motivated by legitimate nondiscriminatory reasons. If the employer successfully rebuts the employee's prima facie case, the employee, to prevail, must establish that the proffered reasons are not the true reason for the employment decision, but are a pretext for discrimination. Zinn v. University of Missouri, 93-ERA-34 and 36 (Sec'y Jan. 18, 1996), Dartey v. Zack Company of Chicago, 82-ERA-2 (Sec'y Apr. 25, 1983).

Complainant credibly testified that he refused to sign a statement falsely admitting that he had removed documents pertaining to the Troxler gauges, and that he threatened to cooperate with the NRC. His testimony was more credible than Lourdes Boschuk's testimony who flatly denied that this conversation ever took place. Her blanket denial of this incident, as well as her blanket denials of complainant's other accusations without any elaboration, was not credible, and based on her responses and demeanor, I believe that she did ask complainant to make false statements on November 3, 1995. Complainant's refusal to sign the false statement blaming himself for the violations is protected activity under §5851(a)(1)(B) of the ERA as it is unlawful to provide false information to the NRC. Complainant's threat to cooperate with the NRC is also protected activity under §5851(a)(1)(F) inasmuch as his cooperation would be an action designed to carry out the purposes of the Atomic Energy Act. Therefore, I find that complainant engaged in protected activity. It is also clear from the record that respondent was aware of complainant's protected conduct.

Complainant contends that he was discharged, while respondent maintains that complainant voluntarily resigned by failing to show up for work. Complainant's testimony that Landas told him he was fired, which was corroborated by

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Nuccetelli and Daso, is credible. Shettima also confirmed that complainant told him that Landas had fired him. ³ Landas never appeared as a witness to provide his version of what he said to complainant on the day in question, and therefore I draw the inference that his testimony would not be favorable to respondent. Complainant's life circumstances also militate in support of a finding that he was fired rather that he voluntarily quit. Complainant's live-in girlfriend was eight months pregnant on November 3, 1995 and he was the sole means of their support. Complainant does not possess a high school diploma and would be hard pressed to find employment at comparable pay to what he was earning at J & L as his failure to find work since his discharge clearly indicates. Finally, Lourdes Boschuk's failure to make a serious effort to contact her son since his employment was terminated strongly suggests that he was discharged. Had complainant merely failed to return to work, as respondent maintains, Lourdes Boschuk, as the president of respondent and complainant's mother, surely would have made an effort to find out why complainant had not returned to work. I therefore find that respondent discharged complainant on November 3, 1995. Moreover, complainant's discharge only a few hours after he engaged in protected activity is sufficient as a matter of law to raise the inference that his discharge was in retaliation for his protected activity. See Couty v. Dole, 886 F. 2d 147 (8th Cir. 1989). Therefore, complainant has established all the elements of a prima facie case.

To rebut the employee's prima facie case, the employer must produce evidence that the alleged disparate treatment was motivated by legitimate nondiscriminatory reasons. If the employer does produce such evidence, the employee still has the opportunity to prove that the discriminatory reason more likely motivated the employer or that the employer's proffered explanation is unworthy of credence. See Zinn, Dartey, supra.

Respondent maintains that if the complainant was discharged, it was due to his tardiness, unexplained absences, and insubordination. ⁴ The only documentation respondent produced to support this explanation is the October 30, 1995 memo from Landas warning complainant that his tardiness and unexplained absences may be grounds for a written warning and ultimately termination. (RX 1) Complainant testified, however, that he never received this memo, and Landas did not appear as a witness to authenticate the memo or its factual basis. Under these circumstances, I believe that it is likely that the memo was fabricated as a post hoc rationalization for complainant's discharge.

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Although Lourdes asserted that complainant was frequently late, she was unable to produce any documentation that he had ever been admonished for his alleged tardiness. Shettima testified that complainant came in late but worked late to make up for it. Complainant apparently was off work for periods of time during which he received unemployment compensation, but there is no evidence that he was ever disciplined for these absences or that they constituted grounds for his discharge. Complainant's alleged insubordination in refusing Landas's work assignment would also appear to be a manufactured basis for his discharge as there is no history of any insubordination and it strains credulity to believe that complainant's reluctance to follow Landas's instructions would be a justification for terminating him. Complainant had been an employee of J & L for nine years and was characterized as a good employee by both Shettima and Jack Boschuk. Respondent's proffered reasons for his discharge are simply not credible and are clearly pretextual. I therefore conclude that respondent discharged complainant because of his protected activity in violation of the ERA.

Complainant must be reinstated to his prior position at J & L at his previous compensation rate with the same terms, conditions, and privileges of employment. He is also entitled to back pay at the rate of $400.00 a week (40 hours a week X $10.00 a hour) from the date of his discharge until his reinstatement becomes effective. Although complainant states that he worked overtime, he did not specify the amount of overtime he worked, nor the amount of pay he received for overtime work. Therefore, his back pay will not include any compensation for overtime. Complainant is also entitled to prejudgment interest on his back wages at the rate specified in 29 C.F.R. §20.58(a). See Blackburn v. Metric Constructors, Inc, 86-ERA-4 (Sec'y Oct. 30, 1991). Complainant also seeks damages for "pain and suffering", but he has presented no evidence, either by his own testimony or from an expert witness, that his discharge caused him any undue emotional stress or mental suffering. His prolonged period of unemployment, standing alone, is insufficient to support damages for pain and suffering.

Recommended Order

J & L Testing, Inc. is ORDERED to:

(1) Reinstate complainant to the employment position he had at the time of his discharge on November 3, 1995 and to the same compensation, terms, conditions, and privileges of employment he previously had,

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(2) Pay complainant damages based on a salary of $400.00 a week from November 3, 1995 until his reinstatement becomes effective,

(3) Pay complainant prejudgment interest at the rate specified in 29 C.F.R. §20.58(a).

Within thirty (30) days of the date of this decision and order, complainant's counsel is to submit a fully supported fee application detailing his hourly fee, the number of hours expended on this proceeding, and any associated litigation expenses. Respondent will have fifteen (15) days to respond with any objections.

DANIEL L. LELAND
Administrative Law Judge

DLL/lab

NOTICE: This Recommended Decision and Order and the administrative file in this matter will be forwarded for final decision to the Administrative Review Board, United States Department of Labor, Room S-4309, Frances Perkins Building, 200 Constitution Avenue, NW, Washington, DC 20210. See 61 Fed. Reg. 19978 and 19982 (1996).

[ENDNOTES]

¹ The NRC requires that a physical inventory form be filled out every six months. (TR 42)

² A utilization log is required to be filled out by the RSO every time the Troxler gauge is used. (TR 42-43)

³ It is immaterial if, as Lourdes maintains, that only she had the power to fire employees. Landas was respondent's general manager, and there has been no evidence presented that his firing of complainant needed the imprimatur of Lourdes in order to be effective.

⁴ It is somewhat inconsistent for respondent to take the position that complainant was not discharged, but that if he were discharged it was for a legitimate nondiscriminatory reason. Nevertheless, I will consider respondent's proffered reasons for complainant's discharge.