U.S. Department of Labor
Office of Administrative Law Judges
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San Francisco, California 94105
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DATED:
CASE NO. 86-SWD-2
In the Matter of
GUY HELMSTETTER
Complainant
v.
PACIFIC GAS & ELECTRIC COMPANY
Respondent
Guy Helmstetter
2129 Randolph Drive
San Jose, California 95128
In Pro Per
Maureen L. Fries, Esq.
Pacific Gas & Electric
77 Beale Street
San Francisco, California 94106
For the Respondent
Before: ALEXANDER KARST
Administrative Law Judge
RECOMMENDED DECISION AND ORDER ON
REMAND
Guy Helmstetter filed a complaint on June 16, 1986, under
the employee protection provisions of the Solid Waste Disposal
Act (SWDA) 42 USC § 6971(a)(1982). He alleged that his employer,
respondent Pacific Gas & Electric (hereinafter PG&E)
discriminated against him because PG&E resented his attempts to
promote compliance with environmental protection laws.
[Page 2]
The matter was initially heard by Administrative Law Judge
Matera who found that all the alleged acts of discrimination save
a disciplinary letter were time barred, and granted summary
judgment against complainant on the disciplinary letter charge.
The Secretary of Labor affirmed the time bar rulings, but
remanded for a hearing on the disciplinary letter. The Secretary
indicated that the key questions to be resolved are whether the
disciplinary letter constituted a harm to complainant, and
whether the placing of the disciplinary letter in complainant's
personnel file was a result of discriminatory motive. The
Secretary added that on remand I should decide whether PG&E's
reasons for writing the disciplinary letter were pretextual as
alleged. The Secretary also required findings on whether the
letter of reprimand became a permanent part of complainant's
file; whether Mr. Helmstetter has the right to have it removed
from the file for good behavior after one year; and whether the
disciplinary letter was actually removed at the employee's
request after one year. The Secretary's Decision and Order of
Remand, pp. 5-6. Claimant alleges that the letter was
pretextual. He says this is shown by the failure of the company
to investigate the allegations of the vendor before issuing an
apology to the vendor and a warning to complainant, the lack of
notice to or an opportunity for complainant to defend himself,
and the "accusatory manner" in which complainant was informed of
the discipline.
Pursuant to the Secretary's Remand, and mindful of her
admonition that "... evidence about Respondent's actions
predating the disciplinary letter may be admissible on remand if
relevant to Respondent's motive for the disciplinary letter",
(Id. at 7) a hearing was held. The complainant, who previously
had counsel, appeared pro se, represented that while he is not a
licensed lawyer he graduated from a night law school, and
indicated that he wished to proceed pro se.
Mr. Helmstetter, 53, described himself as a longtime "active
conservationist and environmentalist". Cl Hrg Brief, p. 1. It
appears that environmental issues are the principal focus of his
life. Prior to coming to PG&E he worked as a runner in the
securities business, a taxi driver, construction worker, and a
bowling alley attendant, and he owned a bar and restaurant. TR
206. He started with PG&E in 1980 as an attic insulation
inspector, an entry level job. He was quickly promoted to
conservation specialist, then to solar coordinator, and in 1984
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became a regional environmental supervisor, a newly created
temporary position at pay level 4. His supervisor led him to
believe that when his temporary environmental supervisor position
became a permanent one it would probably be level 7 or 8, and
that he would get it. But about the time his temporary position
became permanent in 1985 this supervisor left. Contrary to Mr.
Helmstetter's expectations, the permanent job was assigned pay
level 6, and several other candidates were also considered for
it. The job was offered to Mr. Helmstetter, and he was urged to
take it with the promise that if he took it, an effort would be
made to raise it to pay level 7. However, Mr. Helmstetter,
apparently feeling that PG&E breached its promise, refused to
interview for the job and eventually turned it down ostensibly
because of the lower pay level. The job was then filled by
someone else at level 6 and continues to be so. Cl 5, pp.
12-15. Mr. Helmstetter was transferred to the Marketing
Department where he came from, at the same pay level he had when
he was environmental supervisor, i.e. level 4. TR 221-222. To
help him in the new position in Marketing, he was given a
computer for his home, and his salary was adjusted so he could
buy a car which he needed in his new marketing job. TR 223.
After he was transferred out of the environmental department, he
continued to offer unsolicited "suggestions" to his former
department, and appears to have taken umbrage when his
"suggestions" were not adopted.
In January 1986, some six months after his transfer to
Marketing, Regional Manager Radford received a letter from a
PG&E vendor named Dannenberg who complained that Mr. Helmstetter,
while attempting to purchase some energy saving devices valued at
around $50.00, was arrogant and quarrelsome. Jt Exh 2. Two
weeks later, on January 24, Mr. Helmstetter was asked to meet
with two of his supervisors, Wing and Mejia. The Dannenberg
letter was one of the subjects discussed at the meeting and Mr.
Helmstetter was apparently admonished to avoid confrontations
when representing PG&E. Also discussed were Mr. Helmstetter's
complaints about his low performance rating and that his last
"suggestion" to the environmental department was ignored. Cl 6.
The specific "suggestion" discussed at the January 24 meeting was
a 25 page memo to his former boss in the environmental
department, which among other things, contained Mr. Helmstetter's
uninvited "review" of PG&E's environmental violations, and a 15
page single spaced exposition of Mr. Helmstetter's view of
environmental laws. Mr. Helmstetter warned that PG&E's
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environmental management may go to jail if they ignored his
suggestions and continued not to comply with the law as he saw
it. Cl 6. The meeting on January 24, 1986 appears to have been
very unpleasant.
Three months after the January 24 meeting, on April 21,
1986, Mr. Helmstetter wrote to Mr. Dannenberg that Dannenberg's
complaint of January 8, 1986 was "libelous", that it "impuned"
[sic] his reputation, caused him "professional embarrassment",
"personal anguish", "caused a strained relationship... between
[his] superiors and [him] and caused [his] career with PG&E to
languish". The letter demanded an apology and threatened a
lawsuit if he did not get it. Jt Exh 3. Mr. Helmstetter had the
letter typed by a company secretary. It was copied to Mr.
Radford, and blind copied to four other PG&E executives. When
his supervisor Mejia learned of the letter, he concluded that it
improperly involved PG&E, and he personally retrieved the letter
from Mr. Dannenberg's office before it was opened. TR 70. On
May 21, 1986, Mr. Helmstetter received a disciplinary letter for
what his superiors viewed as insubordination in writing the
threatening letter to Dannenberg. Jt Exh 4, TR 225.
Upon receiving the disciplinary letter, Mr. Helmstetter
became physically and emotionally ill, and saw a psychiatrist at
his employer's suggestion and cost. TR 189. The psychiatrist
concluded that senile Mr. Helmstetter is fit enough to continue
working, he suffers from personality disorders, has no family or
friends, is emotionally rigid, moralistic, self-righteous, and
contentious, and suffers from "TMJ syndrome" caused by stress.
Cl 16. He apparently ground his teeth so severely that he lost
them. Mr. Helmstetter also saw a company psychologist, and had
two long meetings with the Regional Manager Radford wherein Mr.
Helmstetter had an opportunity to explain all of his
environmental concerns and problems and the Dannenberg incident.
TR 190-191.
Mr. Helmstetter filed this action in June 1986. He also
has pending a California civil action against PG&E for unfair
treatment or discrimination. In a separate pending action
against PG&E before the Department of Labor he alleges that PG&E
is treating him disparately in violation of law by failing to
provide him with information he is seeking in connection with his
personal "investigation" of a PG&E oil spill which he has
conducted after his transfer to marketing.
[Page 5]
In this case, Mr. Helmstetter alleges that he was
involuntarily transferred out of his environmental job because PG&E
resented his pro-environmental work, and that his disciplinary
letter, lack of promotions, harassing meetings, and the ignoring
of his environmental "suggestions" are all part of concerted
effort by PG&E to thwart, punish and harass him for his
pro-environmental activities.
Pursuant to the order of the Secretary of Labor I have
reviewed the record and weighed the evidence presented and make
the following findings on the issues directed in the remand
order:
1. Did the disciplinary letter constitute harm to
Complainant?
No. While it is clear that Mr. Helmstetter was
emotionally traumatized by it, I find that he was not otherwise
harmed by the disciplinary letter. He was not fired or demoted
in any way. Complainant attempted to show that in 1988 he
received a low performance rating and was denied the opportunity
to have his name included on a published paper. However, there
is no evidence before me to show that the people responsible for
these alleged slights had seen or were even aware of the
disciplinary letter. What evidence there is, is clearly to the
contrary. RT 110:1-8. Mr. Helmstetter has shown nothing except
his suspicions that he is unfairly treated and persecuted for his
environmental zeal.
2. Was the disciplinary letter placed in Complainant's file
as a result of a discriminatory motive?
No. I find that the disciplinary letter was motivated
by proper business reasons and was not a pretext to punish
Complainant for his environmental activities. I find PG&E's
policy to have its employees avoid quarrels with customers and
suppliers to be a proper policy, and I find PG&E's handling of
the chain of events following Dannenberg's complaint within
bounds of propriety. PG&E did nothing to discipline Mr.
Helmstetter for the Dannenberg incident, other than tell him to
avoid confrontations in the future. There is credible testimony
that Mr. Radford and other supervisors took little note of the
Dannenberg letter because Dannenberg had a history of making
complaints for little or no reason. Cl 5, p. 40.
[Page 6]
I find no reasonable basis for Mr. Helmstetter's suspicion
that that January 24 meeting was designed to harass him, and
conclude that while the meeting was admittedly not well
conducted, it was in conception an appropriate method to instruct
an employee to conduct himself politely when on company
business. I further find that Mr. Helmstetter acted improperly
in making a libel threat to Dannenberg in a way clearly
calculated to give it some of official PG&E trappings and to
involve PG&E without at least some preliminary discussion and
guidance from his superiors or the PG&E legal department. Mr.
Helmstetter's actions strike me as particularly improper in light
of his legal training.
I find the disciplinary letter to Mr. Helmstetter to have
been appropriate discipline for the libel letter, and not a
pretext to harass Mr. Helmstetter for his environmental
activities. Indeed, PG&E's disciplinary letter appears to me to
be a rather measured discipline against an employee who, after
being admonished, without warning to or discussion with PG&E.
threatened a supplier with libel for a trivial complaint.
3. Is PG&E's alleged failure to investigate the allegations
of Mr. Helmstetter's rudeness to Dannenberg before apologizing
to Dannenberg evidence of improper motive for issuing the
disciplinary letter?
No. It appears very clearly from the record before me that
the Dannenberg complaint was given little credence or importance
by everyone except Mr. Helmstetter, and that no adverse
consequences to Mr. Helmstetter would have followed had he acted
appropriately under the circumstances. It is significant that
for 3 months after the January 24 meeting no steps were taken to
discipline Mr. Helmstetter in anyway for the Dannenberg incident.
I conclude that the Dannenberg complaint was essentially
forgotten by his superiors until Mr. Helmstetter threatened
libel. In my view an "investigation" of Dannenberg's complaint
under the circumstances would have been excessive and superflous
for the minor complaint. Moreover, Mr. Radford apparently did go
to the trouble of ascertaining from Mr. Helmstetter's supervisors
that Mr. Dannenberg was of dubious credibility, and Mr.
Helmstetter was given an opportunity to explain what really
happened in the January meeting. Cl 5, pp. 40-41.
In addition, contrary to Mr. Helmstetter's assumption,
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there is no showing that Radford conceded the impropriety of
Helmstetter's conduct toward Dannenberg. Radford's letter to
Dannenberg simply acknowledged the complaint and said it was
being referred for appropriate handling. That strikes me as a
routine answer to a complaint and not an apology conceding an
employee's misconduct.
4. Was the alleged lack of notice to Mr. Helmstetter, or
denial of opportunity "to defend himself", evidence of improper
motive for the disciplinary letter?
No. I find that Mr. Helmstetter was in fact given notice
and had ample opportunity "to defend himself". The January 24
meeting wherein Mr. Helmstetter was told of the Dannenberg
complaint was appropriate notice, and at that meeting and at two
later ones with Mr. Radford himself, Mr. Helmstetter had an
opportunity to tell his superiors what really happened. In fact
he did so. I also note that for a prodigious memo writer like
Mr. Helmstetter the most appropriate way to "defend himself"
would have been to simply write a memo to his supervisors after
the January 24 meeting setting forth what happened with
Dannenberg.
5. Was the allegedly "accusatory manner" in which
Complainant was informed of the letter evidence of improper
motive for issuing it?
No. I find no evidence, other than Mr. Helmstetter's own
feelings, that the manner in which he was advised that the
letter of discipline was being placed in his file was
"accusatory".
6. Did the letter of reprimand become a permanent part of
Mr. Helmstetter's file?
No. PG&E disciplinary letters are customarily removed after
one year. PG&E stipulated to remove the letter in the course of
the earlier hearing before Judge Matera, and the letter was in
fact removed from Mr. Helmstetter's file in January 1987. TR 259,
87.
ORDER
By reason of the above findings, I conclude that
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complainant's allegations against PG&E have not been proven, and
the complaint should be dismissed.