Thad M. Guyer, Esq.
Center for Non Profit Legal Services
225 West Main
P.O. Box 1586
Medford, OR 97501
Elaine Dodge, Esq.
Government Accountability Project
810 First Street, N.E., Suite 630
Washington, D.C. 20002
For the Complainant
Charles K. Macleod, Esq.
Westinghouse Hanford Company
B3-15, P.O. Box 1970
Richland, WA 99352
Gregory A. Edmiston, Esq.
Westinghouse Hanford Company
B3-15, P.O. Box 1970
Richland, WA 99352
For the Respondent
[Page 2]
Before: JAMES J. BUTLER
Administrative Law Judge
RECOMMENDED DECISION AND ORDER
Statement of Case.
This "whistleblower" action was brought by the employee
against her employer for what she perceived to be certain
proscribed discriminatory practices directed toward her in
retaliation for her refusal to rescind, upon the admitted request
of her immediate manager, an inter-office "message" to the
supervisors of a fellow worker she observed igniting a cigarette in
a plant area which the reporting employee mistakenly believed was a
restricted zone where smoking was prohibited because the danger of
a hydrogen explosion was thereby presented.
It should be noted throughout the following discussions that
upon the motion of employee and over the objection of employer, it
was ruled that employee did not have the burden of showing that
there was an actual risk in the area involved created by the
lighting of a cigarette. It was only necessary that she show good
faith in making the report that there was a real danger of
explosion so presented. There will, however, be references to the
presence of an actual danger involved.
Pertinent Statutes and Regulations.
Complainant, Paula D. Nathaniel (employee) in her complaint
against Westinghouse Hanford Company (employer) brings her action
under the protection provisions of the Resource Conservation and
Recovery Act of 1976, 42 U.S.C. section 6971 (formerly known as the
"Solid Waste Disposal Act"); the Comprehensive Environmental
Response, Compensation, and Liability Act of 1980, 42 U.S.C.
section 9610 (commonly known as "Superfund"); and the Clean Air Act
of 1977, 42 U.S.C. section 7622. See Amended Complaint filed here
on October 23, 1991.
All these statutes and the other therein identified are bound
by the procedures found at 29 C.F.R. sections 24.1 to 25.9, the
most pertinent parts of which provide:
[Page 3]
§ 24.1 Purpose and scope.
(a) This part implements the several Federal employee
protection provisions for which the Secretary of Labor
has been given responsibility pursuant to the following
statutes: Safe Drinking Water Act, 42 U.S.C. 300j-9(i);
Water Pollution Control Act, 33 U.S.C. 1367; Toxic
Substances Control Act, 15 U.S.C. 2622; Solid Waste
Disposal Act, 42 U.S.C. 6971; Clean Air Act, 42 U.S.C.
7622; Energy Reorganization Act of 1974, 42 U.S.C.
5851.
(b) Procedures are established by this part pursuant to
the Federal statutory provisions listed above, for the
expeditious handling of complaints by employees, or
persons acting on their behalf, of discriminatory
action by employers.
§ 24.2 Obligations and prohibited acts.
(a) The several statutory employee protection
provisions listed in § 24.1, provide that no employer
subject to the provisions of the Federal statute of
which these protective provisions are a part may
discharge any employee or otherwise discriminate
against any employee with respect to the employee's
compensation, terms, conditions, or privileges of
employment because the employee, or any person acting
pursuant to the employee's request, engaged in any of
the activities specified in paragraph (b) of this
section.
(b) Any person is deemed to have violated the
particular federal law and these regulations if such
person intimidates, threatens, restrains, coerces,
blacklists, discharges, or in any other manner
discriminates against any employee who has:
(1) Commenced, or caused to be commenced, or is about
to commence or cause to be commenced a proceeding under
one of the Federal statutes listed in § 24.1 or a
proceeding for the administration or enforcement of any
requirement imposed under such Federal statute;
(2) Testified or is about to testify in any such
proceeding; or
[Page 4]
(3) 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 such
Federal statute.
Glossary.
The following is a partial vocabulary of specialized terms
utilized in the testimony contained in the transcript of the
hearing record (TR).
1. Nuclear magnetic resonance spectroscopy
("NMR"). Used to
do structural elucidation of components, compounds, carbon,
hydrogen compounds (TR 27).
2. Contract Laboratory Program ("CLP"). The
mission of the
Westinghouse Hanford laboratory was to become CLP certified under a
tri-party (State of Washington, Department of Energy, and
Westinghouse) to clean up environment at the Hanford site (TR 33).
3. SY tank farm. Part of the "2 west area" located in
the
560-square-mile Hanford site some 25 miles from Richland. The SY
tank farm has three tanks, one of which is "SY 101." The tanks are
all buried underground approximately 7 feet from the surface. They
vary in capacity from 500,000 to 1,000,000 gallons and store
radioactive waste. The tanks are double shelled with both a
primary and secondary layer and a steel-reinforced concrete
outershell (TR 35).
4. A "burp" or tank venting episode. Team monitors
gas
expelled during a burp. Tank SY 101 has salt cake layer on it
which is a mixture of concentrated aqueous organic components and
radionuclides. Periodically the radionuclides go through a process
with the organics (radiolytic process) where the organics in the
aqueous form hydrogen gas. The hydrogen gas builds up on the
bottom of the tank and causes the tank level to rise until the
surface crust gives and the gas is expelled through the tanks
ventilation system. The vents contain high-efficiency particulate
filters (HEPA) through which the gas is vented into the atmosphere
[Page 5]
(TR 37-38).
5. Radiation Protection Technologist ("RPT" or
"HPT").
Employees of Westinghouse who are charged with surveying other
employees in and out of radiation zones (TR 41).
6. 3-CARE phone system. Westinghouse hotline phone
extensions out at Hanford which allows you to dial 3 and C-A-R-E to
anonymously report safety infractions which are immediately
responded to and acted upon by the appropriate departmental
managers at the earliest possible time (TR 65, 592-594, 599).
7. Employee Concerns. Part of Westinghouse Human Resources
group which deals with, as the name implies, the concern of
Westinghouse employees (TR 69, 444).
8. Spark Free one or Area. A zone or area with a potential
for explosion where all sources of ignition are prohibited (TR
600).
9. Intrinsically safe equipment. That is equipment approved
by a certifying agency as spark proof so as to be used in an
explosive atmosphere - like for example Beryllium tools (TR 600).
10. Breach or break tank containment. Direct outside entry
into the tank for monitoring purposes but does not include venting
during a "burp" when containment always remains intact (TR 603).
11. Occurrences Notification Center. Westinghouse agency
that complies and distributes both internal and external reports of
all safety events that occur on site (TR 625-630).
Some Background Facts.
Employer has provided us some interesting background of its
operation in Richland, Washington which are not at issue.
Westinghouse Hanford Company (WHC) is a wholly owned
subsidiary and business unit of the Westinghouse Electric
Corporation. The Company is the operations and engineering
contractor for the U.S. Department of Energy Field Office, Richland
(RL) Hanford Site, a 560 square mile nuclear complex located near
Richland in southeastern Washington State. The Department of
[Page 6]
Energy's Hanford operating and capital budget for fiscal year 1991
was approximately one billion dollars. Westinghouse Hanford
Company's contract with the Department of Energy for Hanford
expires in 1994.
In March 1985, the Department of Energy announced its decision
to consolidate eight onsite operating contractors to four.
Westinghouse Electric Corporation was the successful bidder for
the consolidated Operations and Engineering contract, assuming
responsibility or operations on June 29, 1987.
The defense materials production complex at Hanford consists
of the N Reactor (recently ordered to be shut down), the Plutonium
Uranium Extraction (PUREX) Facility, and the Plutonium Finishing
Plant (PFP). Prinicpal products include plutonium and uranium
compounds and plutonium metal which are shipped offsite for further
processing.
The Fast Flux Test Facility, a sodium-cooled fast reactor,
provides an irradiation test environment for the advanced reactor
development program, the space power program, and the nuclear
fusion program. It is the world's most advanced fast reactor.
Waste Management Safety operations receives, treats, and
stores radioactive waste from the chemical processing plants and
other site operations. Three major operations included in this
area are the waste storage tank farms, the grout facility for
low-level waste, and development of the Hanford Waste Vitrification
Plant.
The mission of WHC's operation is environmental remediation
and restoration of the Hanford Nuclear Reservation site. This
consists of a number of programs and projects directed at the
cleanup of various portions of the site contaminated as a result of
45 years of nuclear operations. The cleanup also involves the
decontamination and decommissioning of retired facilities.
An array of service functions supports these programs, as well
as all activities conducted by WHC and the other Hanford
contractors, such as transportation, security and fire protection,
utility and telecommunications, procurement, central stores,
printing, mail, and mainframe and personal computer operations
support.
[Page 7]
Westinghouse Hanford Company has over 9,800 employees
including approximately 3,000 bargaining unit employees represented
by the Hanford Atomic Metal Trades Council (HAMTC). Westinghouse
Hanford Company has a separate agreement with the Hanford Guards
Union (HGU) covering an additional 300 employees.
This case involves a rotational scientist, Ms. Paula
Nathaniel, who started work with WHC on June 7, 1989. Ms.
Nathaniel had a Bachelor of Science degree in chemistry from
Colorado State University and was hired by David Dodd, Manager,
Analytical Chemistry, to work in the Analytical Chemistry
Department as a rotational scientist. Ms. Nathaniel's position was
nonbargaining unit and classified as exempt. Ms. Nathaniel's work
location was the weather station (Bldg. 622 RG) located in the 600
Area of the Hanford Nuclear Reservation. During 1990 at various
times Ms. Nathaniel had been assigned to the 200 Area tank farms to
monitor "burps" of Tank 241-SY-101. These "burp" watches consisted
of 12 hour shifts during limited time periods when the tank was
expected to "burp."
Statement of Pertinent Facts.
On October 22, 1990, employee Nathaniel was assigned to the 12
midnight to 12 noon shift monitoring the underground Tank
241-SY-101. The watch was for the scheduled "burp" of hydrogen gas
from the storage tank. Testimony disclosed that this venting was
confined to the primary tank containment systems, but not to the
open air outside that immediate area. It was employee's job to
monitor and measure hydrogen in the containment system by use of a
gas chromatograph.
Employee was stationed in the 241-SY-271 area instrument
building inside a known radiological area. This building had but
one room a single door and no windows. It was located some 120
feet from the tank being monitored. The measuring instruments
utilized by employee were located within the instrument building.
A Health Physics Technician (HPT) named Becky Reid was also
stationed in the instrument building with employee Nathaniel. All
workers in this area were required to have special work permits and
wear protective clothing including gloves, boots and hats and
follow express rules for their personal safety in the radiological
zone in which they worked.
Around 2:00 a.m. employee Nathaniel deemed it necessary to
[Page 8]
leave the instrument building to go to the nearby Evaporator
Building which was located outside the radiological area. Her
purpose was to use the restroom and get something to eat. No
smoking, eating, or drinking was allowed within the radiological
area due to the potential dangers of the ingestion of
radionuclides.
It was the duty of the HPT to survey other employees leaving
the radiological area to insure there was no radiation
contamination on their clothing which could endanger the worker and
others not protected. This personal survey is carried out by means
of an instrument which detects radionuclides. Apparently, this
inspection is carried out on this particular tank farm at the
entrance to the Evaporator Building. In any event, when Nathaniel
asked the HPT to survey her out at the exit point, the HPT refused
to leave her post where she was, like Nathaniel, monitoring the
"burp" at the instrument building. This was not the first time a
controversy between HPT Reid and Nathaniel had arisen concerning
the duties of an HPT owed a "scientist" like Nathaniel.
Despite the risk of surveying herself out of the radiological
zone in violation of the rule against such practice, Nathaniel
nevertheless did so and entered the Evaporator Building. Before
she did so, however, Nathaniel says she saw HPT Reid light up a
cigarette which would be a violation of the strict radiological
safety rule against doing anything as already mentioned, that would
pose a risk of potential ingestion of radionuclides, like eating,
drinking and, of course, smoking.
On Wednesday, October 24, 1990, some two days after the events
of the night of October 22, 1990, Nathaniel, without first
consulting her manager, Dave Dood, composed and caused to be sent
an in-house "cc: Mail" message to her two managers, Dodd and his
deputy Tom Lane, and to HPT Reid's two managers in a separate
department, Jeff King and Steve Johnson. The captioned subject of
this communication was: "HPT Responsibilities Within the 101 SY
Instrument Building." Reading of this message (Complainant's
Exhibit No. 7) will clearly disclose that Nathaniel was attempting
to establish the special duty of HPT Reid toward her because of her
medical condition (hypoglycemia). Her concern about Reid smoking
in "the radiation zone" because of a possible explosive condition
was obviously not the primary purpose of the message. If it was,
and she really believed Reid was smoking in a "spark free" zone as
she later testified, that would have been the identified subject of
[Page 9]
what surely would have been a much earlier or immediate message and
alarm.
It should be carefully observed at this juncture that
Nathaniel only directed her October 24, 1990 message to the company
managers involved in the controversy. Most certainly, she did not
direct the message to any federal or state agency. That fact was
expressly clarified in the pre-hearing conference at page 18 of the
transcript of those proceedings held on June 6, 1991.
The message, however, touched off these proceedings when
Nathaniel's supervisor, Dodd, admittedly requested her to rescind
the message. Besides the fact that Nathaniel went over and around
her manager in dealing directly with the managers of another
department, the message indicates that two employees, charged with
the safety of others were, while on duty, in a hassle over their
personal conduct toward each other. Most importantly, perhaps, the
message, written by someone who appeared knowledgeable, could cause
no small amount of false apprehension of immediate danger on the
part of anyone in the public sector who did not know better. As it
turned out, the area where HPT Reid was observed smoking was not
designated as a "spark free" zone and the possibility of the danger
of explosion from smoking in the area had been long since
investigated by experts in the field and found to be danger free
from that source.
But one of the most interesting things in this whole chain of
events is that at exactly 10:45 a.m. on October 24, 1990, a little
less than two hours after Nathaniel sent her message about HPT
Reid, the employer's 3-Care Safety Concern Hotline received an
anonymous phone call that Reid was smoking in a no smoking area the
night before. Unlike Nathaniel's message the same day, this call
correctly spelled HPT Reid's name and fixed the day of the incident
on October 23, 1990 instead of October 22, 1990. In addition, the
caller apparently knew the area involved was a "no smoking area"
instead of a "spark free" zone.
It should also be noted that this report of an "unusual
occurence", unlike Nathaniel's in-house message, is distributed to
over 60 outside sources of concern, including 6 offices of the
U.S. Department of Energy, various laboratories and several
universities. The action taken on the occurence reported to the
hotline is also fully documented as well as the times and dates of
the action taken. (See Respondent's Exhibits Nos. 6 & 7.)
[Page 10]
It is seen that employer has its own internal "whistleblower"
system which is widely externally distributed along with the
reports of the appropriate action taken. Just why Nathaniel did
not avail herself of this simple and most effective means to report
what she now alleges was an immediate serious safety hazard remains
unknown. The only possible conclusion is that Nathaniel did not
intend her October 24, 1990 message to be a report of a safety
incident or condition, but only a means to force HPT Reid to at
last comply with her special need to be surveyed out of the area at
her direction and, at the same time, somehow justify her
unauthorized act of surveying herself out of the radiological area
two days earlier.
Something should also be said about the judgment Nathaniel had
demonstrated at times in the past which may shed some light on the
rationality of her impetuous decision to by-pass her manager and
deal directly with the manager of another department concerning the
duties of one of their people. First, the October 24, 1990 cc:
Mail message is not the only such letter authored by Ms. Nathaniel
and addressed to another department head without her manager's
knowledge and permission. On May 25, 1990, some 122 days before
the October 24, 1990 missile was launched from Nathaniel's only too
handy keyboard, she excitedly fired a frantic almost hysterical
shot at a supervisor of the employer's Purchasing Department and
his staff. This letter must be read to appreciate the nature of
its content (Respondent's Exhibit No. 5).
Ms. Nathaniel's manager, Dave Dodd, was understandably not
pleased when he became aware of the latter letter and a revised
version, also prepared by Nathaniel. He thought they were both
petty and unprofessional and told her so (TR 511). It should be
noticed that the May 25, 1990 message, like the later October 24,
1990 one, reflects more anger and hostility toward her
fellow-workers than concerns for their safety.
Next, and much more frightening, Nathaniel is in the habit of
carrying a loaded handgun on her person. She once tried to carry
one aboard a commercial airplane but was apprehended by the
security authorities at the San Diego airport. She was charged
with a criminal offense to which she pleaded no contest. She was
fined $300.00, placed on probation, and the handgun was destroyed.
She does not recall whether she has carried a handgun onto
employer's premises.
[Page 11]
Following the smoking event on October 22, 1990, and the
charges which bring us all to the instant inquiry, Nathaniel,
sometime in December of 1990, participated in a high speed trip
from Richland to Spokane, Washington when the vehicle she was
driving reached speeds of 110 miles per hour. Although she
believed a car was following her, she claims her first priority was
to timely keep an appointment with a Mr. Backer of the U.S.
Department of Labor. When she reached the federal building in
downtown Spokane she first entered but when she observed the
check-point found it necessary to return to her vehicle to place
her handgun there (TR 143-150). It can be reasonably assumed that
had the check-point not been there, she would have taken her
handgun to the meeting with Mr. Backer.
David Dodd, Nathaniel's manager, was also the subject of her
questionable motives and actions when, on November 6, 1990, during
the course of a private meeting on employer's premises between she
and Dodd to discuss her annual employee evaluation, she secretly
taped their conversation without any knowledge whatsoever on Dodd's
part that she was doing so. Nathaniel testified that the
voice-made activator on the recording device in her briefcase
inadvertently triggered the recording. She said she accidently
discovered that she had recorded the meeting when later playing the
tape for another purpose. Of course, if that were true she could
have ignored it, erased it, or reported the event to Dodd for his
further direction. Instead, she transcribed the tape while at home
and gave it to her lawyer for his use in her behalf (Respondent's
Exhibit No. 1).
There is no use to further chronicle the erratic behavior of
this young woman before and after the smoking incident of October
22, 1990. It is primarily the employer's conduct which is under
inquiry, not hers. This employee, however, has charged that
employer's act, through its department manager, Dodd, injured her
"reputation for honesty" and her professional reputation "by asking
her to rescind her message regarding smoking and HPT Reid of
October 24, 1990. It was her refusal to withdraw this message
which, she says, later gave rise to acts of discrimination and
harassment by co-workers causing the emotional and mental pressures
to leave the worksite (Amended Complaint filed October 23, 1991).
Actually, this employee's troubles at work began long before
the October 24, 1990 computer message which she claims initiated
her problems. Nathaniel has documented for the U.S. Department of
[Page 12]
Labor a meticulous account of her work history while with employer
(Respondent's Exhibit No. 2). In the cover letter dated December
7, 1990, Nathaniel asks redress for "two years of (her) life spent
in Hell" at employer's facility. (She began work on June 7, 1989.)
The focus of her real or imagined problem begins with her
relationship with Steve Metcalf, her designated team leader. These
conflicts with Metcalf, according to Nathaniel, began to heat up in
February 1990 and she requested and had a private meeting with
Metcalf and his manager, Dodd, to discuss the problem. Besides
requiring her to do menial tasks at work, Metcalf was thought to be
excluding Nathaniel from important team meetings.
After a group meeting in April of 1990, Nathaniel felt that
Metcalf would hopefully change. She states that another team
member later told her that Metcalf was "insecure" around her and
was "intimidated" by her intelligence. Nathaniel, it is clearly
seen, felt the whole conflict was attributable entirely to Metcalf
and only his perverse personality.
Apparently this unhappy relationship at work continued until
she left around December 10, 1990. Notwithstanding the fact that
Metcalf remains in a higher supervisory position in the same
department and the fact that her "two years in Hell" began and
continued with what she viewed as a totally unacceptable
inter-reaction with Metcalf, Nathaniel asked to remain with the
same group on a permanent basis and not rotate to another
department. She now wishes an order forcing her return to that
same group despite her claims of past discrimination and sexual
harrassment there. Those requests are, quite obviously, altogether
inconsistent with her allegations of past episodes of unbearable
treatment at the hands of her employer.
The account of work history furnished the U.S. Department of
Labor by Nathaniel, while it does not absolutely confirm them,
strongly support employer's position that:
1. Nathaniel never believed that smoking presented a real
explosion hazard at the instrument shack and elsewhere in the same
designated area;
2. That she well knew all along that the area in which she
caught HPT Reid smoking was a "No Smoking" area instead of a
dangerous "Spark Free Zone"; and,
[Page 13]
3. That the recording and transcription of a private meeting
with her manager, Dodd, was a surreptitious intentional act which
says much about the weight of her overall creditability in this
whole matter.
Although the October 24, 1990 computer message involving HPT
Reid is mentioned in the history given the Department of Labor,
there is not even a suggestion that smoking in the area involved
presented any danger of explosion (Respondent's Exhibit No. 2 at
p. 10). The subject problem was surveying out of zones and HPT
Reid's smoking in the tank farms. Nothing whatsoever is said about
the great danger of hydrogen explosions created by the ignition of
a cigarette which she claims was somehow communicated by her to the
Department of Energy. According to Nathaniel, the letter
"documenting these issues" was confined to surveying and smoking.
Another thing remains obvious: Why would anyone want a letter
rescinded that contained no more than the safety report already
called to the 3-CARE hotline attention and already acted upon. It
was not the safety report of smoking that management objected to,
but the strong implication in the large bulk of the letter that two
employees on duty were unproductively hassling over well defined
safety matters about which they each should have been aware and
for that matter, responsible for, as part of their respective
duties.
The document furnished the Deparment of Labor by Nathaniel
repeatedly reflects the fact that she was well trained in the use
of the instruments she was assigned to use as part of her
particular duties. On October 22, 1990, the night she observed the
smoking infraction, she was assigned to the instrument on the tank
farm to monitor and measure hydrogen concentrations in the vapor
space of the tank expecting a "burp." None of her duties had
anything to do with measuring hydrogen concentrations in the
instrument shack itself or in the open air around the shack or any
tank. There were no instruments provided for this other purpose.
Nathaniel claims that she thought the entire tank farm area
was a "No Spark" (spark free) zone and that Steve Metcalf had
provided her with this information. Testimony by Dodd refutes the
fact that the area was so designated. In fact, Dodd stated that
the very instrument utilized by Nathaniel that night, and with
which she says she was so familiar, is not "intrinsically safe" and
its use is prohibited in a "spark free" zone because its internal
[Page 14]
heat source is such that it could possibly set off an explosion in
a zone so designated. The instrument itself was an ignition
source.
Surely, Nathaniel was aware of the fact that the area was safe
in her role of a trained chemist and scientist. Why else would she
be using an instrument prohibited in a "spark free" zone? Why was
the instrument placed there in the first place if it were not in a
zone where it could be safely used for the purpose for which it was
designed and constructed? It may be concluded, I believe, that
Nathaniel's subjective concern about the explosion hazard presented
by smoking was only her means of gaining added attention to her
complaints about HPT Reid's conduct on the night in question. That
does not constitute good faith on Nathaniel's part.
Besides that, Nathaniel knew full well that there had long
been plenty of smoking going on around the instrument shack by many
others yet no one had ever before expressed any apprehension or
concern about the danger of a hydrogen explosion being thereby
presented. Nathaniel even testified that "... there were cigarette
butts everywhere" (TR 115). Had she been genuinely concerned
about the smoking and the resultant hazard of an explosion she
should have reported the inherent danger she believed was
presentedlong before she decided to single out Reid for some sort
of anticipated disciplinary action. But the fact that she really
believed no such hazard actually existed is most vividly
demonstrated by her frequent calm presence in the very area she
would have others believe is highly dangerous because of the
smoking of cigarettes.
Finally, before leaving Nathaniel's long written history given
the U.S. Department of Labor, we turn to the admission that she
intended to record her private meeting with Dodd without his
knowledge and was happy she did so. She states that she "couldn't
believe what (she) heard from that man (Dodd)" and that "I'm glad I
recorded the conversation." She even sent along a copy of her
transcription of the meeting with her history (Respondent's Exhibit
Nos. 1 & 2 and TR at 168).
Something should also be said here about the real danger said
to have been perceived by Nathaniel for the first time following
her observation of Reid lighting a cigarette in her presence and
the actual danger previously ascertained by the employer after
extensive studies of the operations to be conducted in the area
[Page 15]
affected by safety experts. The employer called Sidney G. Hodge,
its Manager of Industrial Safety, to the stand on the morning of
October 31, 1991 (TR 598-623). After explaining his role in the
3-CARE program and what is meant by the terms "spark-free zone,"
"intrinsically safe" and "containment," either intact or breached,
Mr. Hodge testified that there was no potential in the area in.
question of an explosion caused by smoking. There was, he said, a
a real contamination danger created by smoking, but no danger of
smoking causing an explosion. According to Mr. Hodge, this had
been carefully determined by experts in the field months earlier
when the program for the 101-SY monitoring was first put together.
Mr. Hodge said that the 3-CARE report furnished to him on October
24, 1990 "was a radiological concern because," contrary to
Nathaniel's testimony, the area "was not a spark-proof or
spark-free area." That is, no doubt, why the report of smoking was
sent to the radiological group for attention as there was really no
threat of explosion caused by smoking. That question had been
"worked through a thousand times" (TR at 619). There was not, in
other words, "a potentially known and visible explosive condition"
present as the message claims.
Turning now to the employee's complaint that she was subjected
to retaliatory discrimination following her refusal to rescind her
c.c. mail report of October 24, 1990, it should first be now clear
that any safety issue raised by that report was then known by
everyone concerned, including Nathaniel, to have been almost
simultaneously raised and procedures related thereto triggered by
the telephone call reporting the same or like incident in the
identical area referred to in the c.c. mail. Again, what purpose
could be served by uselessly retracted a report of a safety issue
already reported to the proper authority elsewhere. It is true
that the "3-CARE" report mentioned nothing about smoking being a
potential explosion hazard, but that potential, as we have seen,
had already been fully investigated and discounted months before.
Ms. Nathaniel's manager (Dodd) testified that he did not wish to
quash the smoking report already fully activated elsewhere, but
only the language in the main text of the message which conveyed
the impression that two support team members were hassling over
safety rules while on duty during a "burp" watch. Nathaniel,
herself, should have been most anxious to defuse that unmistakable
and somewhat alarming perception. Although the "cc-mail" computer
message was never withdrawn and effectively amended, Nathaniel now
says the request that she do so was "injurious to her professional
reputation for adherence to safety rules, and to her personal
[Page 16]
reputation for honesty" (Amended Complaint at 6). The fact that
she was using an instrument that was not designated as
"intrinsically safe" in an area she thought was a "spark-free" zone
does not help her "professional reputation for adherence to safety
rules." And, of course, the act of secretly recording the content
of a private evaluation meeting at work does little for her
"reputation for honesty." However, her charge that employer's
administrative personnel forced her to either quit, transfer or
take a leave of absence best demonstrates the depth of the last
trait she allegedly values so highly.
Ms. Nathaniel left Richland, Washington on December 7, 1990.
She now lives in Connecticut with her husband to whom she was
recently married. She is on a disability program in which she
receives benefits and salary continuation. She had only actively
worked for the employer for 18 months.
Although she is welcome to return to work with the employer
when she recovers from some measure of disability not identified on
the record, she has not gone back for over a year now. The
employer enlisted its Human Resources Department, its Benefits
officials, its Employee Assistance Program, its Employee Concerns
Program, its Equal Opportunity Department and even its Security
Department, to try and help this young woman through a list of
seemingly endless problems beginning well before and continuing
after the so called "safety report" of October 24, 1990.
Nancy Sue Conard was called to testify by the employer. She
first explained the role of the employer's Employee Concerns
program:
The Employee Concerns program, which was developed in
early 1988, was developed so that employees who felt
they had a problem that they couldn't take to their
manager, or perhaps if they'd already taken it to their
manager and weren't quite satisfied, they would have
another place to go, anonymously, if they so desired --
they have made arrangements they can still get feedback
if they come to us anonymously or in confidence -- and
we will seek to resolve their problems through the
means within the company. TR 444
Instead of ignoring Nathaniel, Ms. Conrad sought her out in
November, 1990 in an effort to help with what a manager had
reported was apparently a problem. Conrad said that Nathaniel
[Page 17]
described her troubles as follows:
She was very upset. She talked about the smoking
incident out in the shack while they were doing the
monitoring of the tank farm burp. She was upset
because she said she had had this hypoglycemia problem
and the HPT would not survey her out, so she had sought
to find some other HPT to survey her out and ended up
surveying herself out. She also said at that time
she'd seen this HPT smoking in the shack.
She went on to discuss her performance appraisal, which
she was not happy with. She gave us a copy of that
performance appraisal. She'd had some problems with her
team lead, who was not her manager but her team lead, who
had been designated as her contact to upper management.
She got very angry when she discussing her appraisal,
yet she was very upset when she was describing the
situation with the smoker and not being able to be
surveyed out.
Q. Okay. And at this time there's been testimony that
yourself and, I believe, Nancy Montano gave her three
options; that she could either resign or she could
rotate out or she could go on a leave of absence. Is
that as you remember?
A. Well, Paula said, "I want out. I want to quit,"
and I told her that that was certainly her option as a
citizen of the United States, she could do what she
wanted; but we would value her as an employee and we'd
like to keep her and if I could find her another home
within the company, since she refused to go back to her
work area, I'd see what I could do.
I made some contacts in the environmental division to
see if there was some people who might need a chemist,
and Paula came to my office and we did make some phone
calls, she did set up some arrangements to interview
them for a possible position.
Later, when I spoke with her on the phone in a
[Page 18]
conversation, she told me that she wanted to leave and
wanted to quit; and I don't know if she actually had
those interviews or not. But the action to resign was
absolutely her decision and I was trying to present
other options to her.
Q. And you did, to the best of your knowledge, attempt
to place her within the company in another spot?
A. We made several contacts and, yes.
Q. Do you know if she ever followed up in any of those
contacts?
A. I do not know.
Nancy Montano, a specialist with employer's Department of
Human Resources was then called. She explained her functions in
this capacity:
Q. Okay. And could you just briefly describe what
that position does, the duties of that position?
A. A Human Resource specialist responds to questions
and concerns and referrals from employees in my office
that work out in the 200 area, which is about 25 miles
north of here; and there's approximately 4,500
employees that we respond to questions from, Human
Resource type questions; benefits, holiday, vacation,
that kind of thing.
Q. Labor relations?
A. Yes, labor relations.
Although Montano never had any personal contact with Nathaniel
who was off work during their relationship, she had several phone
conversations with her concerning her future with employer.
Montano was primarily helping Nathaniel find other work with
employer as she understood Nathaniel did not want to return to her
previous work station. Montano testified that at no time did she
ever instruct Nathaniel to remove her belongings from her office.
Further testimony by Montano that followed denied another one of
Nathaniel's charges set forth in her history given the Department
[Page 19]
of Labor:
Q. There's been testimony that it was understood that
she would not go back to the weather station at this
particular date. Did you share that understanding?
A. My understanding was that she was looking for
another job within the company and hadn't made a
decision as to what she was going to do. All I knew is
that after she took a week off because of her ankle,
unless she let us know what she was planning to do,
she'd be back at work.
Q. At her regular work station?
A. Yes.
Q. Okay. Did you ever direct Paula Nathaniel to write
a letter of resignation?
A. No, I didn't.
Employer also called Joan Eckert to the stand on October 30,
1991 (TR 491-498). Ms. Eckert was a 25 year employee then serving
as a Human Resources Specialist in Employee Relations. Eckert said
that Nathaniel and her attorney were solely interested in a leave
of absence. It was Eckert who advised Nathaniel that she perhaps
qualified for disability, and with it get salary continuation
rather than an unpaid leave of absence.
... I then told her that disability ... really she
should consider disability; it didn't seem to me like
she should be taking a personal leave of absence.
Sounded like possibly disability was a better choice
for her. Our leaves are unpaid and disability is
partially paid. (TR 494)
Q. ... Did you at any time direct her that she was to
either resign, take a leave or rotate out of her
department.
A. Oh, no.
Q. That wasn't your role...
A. No. No. No. (TR 495)
[Page 20]
It appears that every way Nathaniel turned she got more help
from employer. Nathaniel, however, insisted on direct testimony
that the Human Resource group only gave her the options of rotating
out of the department to which she would not return, quit
altogether, "or take a leave of absence without pay" (TR 70). Just
exactly how she instead went on and is still on employer's paid
disability program was not explained by Nathaniel. There is, by
the way, absolutely no medical evidence anywhere in the record to
support a physical or mental impairment and resultant disability.
I believe Nathaniel concocted her story about the terms or
conditions of her separation from the employer for the simple
reason that she was never required to exercise any one of the
options she says were the only ones offered to her. She has never
rotated out of the department she initially joined, she did not
quit and is, in fact, still an employee on the employer's payroll,
and she certainly is not on a leave of absence without pay. She
had a very good reason for inventing those alleged conditions of
separation, however, as it is only the continuing implementation of
those terms that would possibly keep the 29 C.F.R. § 24.3(b)
complaint timely.
Thanks to Nathaniel's recording and the following
transcription of the November 6, 1990 performance evaluation
meeting, however, all other elements of her alleged violations were
by that date firmly in place and obviously known to her.
Accordingly, she should have filed her complaint no later than
December 6, 1990. Instead, she did not file her complaint until
December 10, 1990 (Complainant's Post-Hearing Brief at 1).
Before moving to the ultimate findings and conclusions,
another and stronger look should be taken at employer's safety
reporting system which was available to Nathaniel the early
morning of October 22, 1990. The employer maintains a full-time
hotline for safety concerns which we have seen is known as "3-Care
Safety Concern Hotline" staffed and operated by its Industrial
Safety and Fire Protection Group. Every employee may call in a
safety concern, even anonymously, to the hotline and the
appropriate action is assigned to the supervisors concerned (TR
592-595). It seems logical that had the sole thrust of Nathaniel's
letter of October 24, 1990, not been a quarrel with Reid about when
Nathaniel should or should not be surveyed out of the area, because
[Page 21]
of her medical condition, the safety concern would have surely been
directed at the 3-Care hotline on October 22, 1990, where it would
have received immediate attention soon after the smoking infraction
occurred. If Nathaniel was earnestly concerned about a real safety
danger involving smoking in the tank farm area she would not have
previously ignored the fact that the cigarette butts she saw
"everywhere" had obviously earlier been ignited and smoked in the
same zone. She singled out Reid only after Reid refused to survey
her out of the area when she asked. The hazard she perceived and
reported two days later was evidently not thought to be
sufficiently volatile until she observed Reid's contribution toward
that imagined risk following the survey refusal. In short, I do
not believe Nathaniel conceived the added hazard she alone
attributes to smoking at the tank farm until she could somehow make
Reid a disciplinary target for her particular participation in that
proscribed activity.
Ultimate Findings and Conclusions.
I have searched for but cannot find any solid evidence that
Nathaniel was "engaged" in any protected activity prior to the time
she alleges some proscribed discrimination against her took place.
There is no evidence in the whole record for decision that
Nathaniel, either directly or indirectly, commenced or caused to be
commenced, or is about to commence or cause to be commenced, a
proceeding under any one or more of the Federal statutes listed in
29 C.F.R. § 24.1, or a proceeding for the administration or
enforcement of any requirement imposed under such Federal statutes.
Further, there is no evidence that Nathaniel testified or is
about to testify in any such proceeding, or assisted or
participated, or is about to assist or participate in any manner
in such proceedings or in any other action to carry out the
purposes of such Federal statutes.
But, Nathaniel argues, it was her October 24, 1990 report of
the smoking incident two days earlier which triggered employer's
"10 day occurrance report" and her report therefore qualifies as a
protected activity which brings her under the statutes relied on.
That imaginative contention has no merit, however, and must be
turned aside for three good reasons.
First, the October 24, 1990 cc Mail letter was directed by
Nathaniel to only the supervisors of Becky Reid and her own
(Complainant's Exhibit No. 7 at 1). All cc Mail transmissions go
[Page 22]
only to the parties designated by the sender (TR 405).
Secondly, it was not Nathaniel's letter of October 24, 1990,
but the anonymous report by a telephone call the same day to
"3-CARE" hotline which actually precipitated the subject "10 day
occurrance report" distributed by employer's Industrial Safety
group to various agencies, including the U.S. Department of Energy
(TR 591-597 and 625-627; Respondent's Exhibits Nos. 6 & 7).
Lastly, Nathaniel did not intend her October 24, 1990 message
as a safety report when it was dispatched. Although not being even
aware of the actual designation of the area affected, she entitled
her subject as "HPT Responsibilities Within the 101 SY Instrument
Building." That is hardly a preface that would alert anyone that a
report of a serious safety infraction was to follow. In fact, the
first paragraph tells you what the message is really all about.
The smoking incident was only a secondary afterthought
(Complainant's Exhibit No. 7). It was intended to get someones
attention and, as we have seen, it most certainly did. The mere
act of sending the message, however, does not measure up to the
standard of a "protected activity." At most, it was only computer
"finger pointing," having no public safety or health purpose
whatsoever.
Another thing, lest anyone imagine that Nathaniel was somehow
concerned at anytime with Reid's well-being, Nathaniel dispelled
that notion with her statement on the stand that, "If she (Reid)
ingested radiation, that was her business" (TR 113).
Furthermore, I do not find that the appended reference to the
danger of an explosion contained in Nathaniel's October 24, 1990
message about the responsibilities of HPTs in the instrument
building was added in good faith. It is all but inconceivable that
Nathaniel was unaware that the instrument building was not in a
"spark-free" zone. Why else would a highly trained instrumentation
technician and chemist familiar with the area be safely using what
would otherwise have been an "intrinsically unsafe" instrument (gas
chromatograph) inside that very building. She was not that
foolish. I believe that the reference to an explosion danger from
smoking in the message served only as a handy and dramatic "red
flag." Most certainly, the anonymous phone call to 3-CARE about
the same smoking incident mentioned nothing about an attendant
explosion danger. Neither did the message about the same incident
transmitted by K.L. Kunzweiler, Nathaniel's co-worker, the
[Page 23]
following day (Complainant's Exhibit No. 7 at 4).
Alleged Discriminatory Action.
Although no protected activity has been found, some of the
employer's actions in this matter should be addressed.
Ms. Nathaniel contends that all her problems began with her
manager's request that she withdraw her message of October 24,
1990. She has blown this managerial request all out of
proportion. To begin with, action on her concerns were initiated
that day by her manager. More importantly, action on the safety
concern were also triggered the day of the message by the anonymous
call to 3-CARE. So the withdrawal of her message on what she
titled another subject could not have had any effect on the
progression of 3-CARE's fixed procedures, including the issuance of
the "10 day occurrance report." None of Nathaniel's safety concern
about smoking were either ignored or turned aside. Nathaniel was
aware of this and she even attempted to rescind the message but it
was then too late (Respondent's No. 1 at 5).
I am satisfied that Dodd, Nathaniel's manager, was not
attempting to quash any safety report by anyone. Instead, he
wanted to eliminate the impression clearly implied in the message
that members of a "burp" watch support group were busy hassling
with each other over safety procedures while on duty. Further, if
the subject of the message was a safety report, it should have said
so. It has been seen that the message's "subject" indicated
otherwise.
It should also be observed along the way that the public
health and safety would not have been adversely affected even if
the message of October 24, 1990 had never been initiated by
Nathaniel. Its withdrawal would, of course, have been equally
insignificant.
One need only read Nathaniel's transcription of her recorded
evaluation meeting on November 6, 1990, to discover the reason why
her status was returned to rotational from fixed hire. It did not
have anything to do with the withdrawal of any message. Instead,
it was the unhappy relationship with Steve Metcalf, her team
leader, which was causing her emotional distress (Respondent's
Exhibit No. 1 at 14-16).
[Page 24]
Dodd testified that by September of 1990 the "personality
conflict" between Nathaniel and Metcalf was not getting any better
and he did not believe it was in the best interests of his
department that Nathaniel become a permanent member of the very
department in which she was still having an on-going problem. It
appears that Nathaniel and Metcalf had reached a point in their
relationship that they were not even talking unless they were
arguing (TR 522). The decision that Nathaniel was not being a
productive member of the department was made, however, prior to the
October 24, 1990 message. As previously indicated, the long
history of her problems documented by Nathaniel,for the Department
of Labor reflect her long-standing pre-existing problems with
Metcalf as does the conversation with Dodd she recorded and
transcribed. It is also clear from the cross-examination of Dodd
that the question of rotation was held open as of November 6, 1990,
pending the possible resolution of the Nathaniel-Metcalf
differences through counselling (TR 533, 514).
Nathaniel also complains that her performance appraisals were
"below the ratings she would have otherwise received had she not
made her report" (Amended Complaint at 6). This allegation is not
factually supported in the record. Dodd testified that except for
one sub-category, her ratings were the same both before and after
the October 24, 1990 message. That sub-category was "effectiveness
of work relationships." Her rating was understandably reduced from
"3" to "2" in that sub-category because of her still ongoing
problems not only with Metcalf but with the purchasing department
as well. Still, her overall rating, which is the sum of all the
sub-categories, remained to be "3" (TR 521).
Turning again to the pivotal question of the apparent
untimeliness of the instant complaint, it is once again emphasized
that Nathaniel was aware of every essential element of her
subsequent allegations of retalitory discrimination no later than
November 6, 1990. This is vividly demonstrated by her own
transcription of the secret recording she made of the private
evaluation meeting at work that date. Accordingly, pursuant to 29
C.F.R. § 24.3(b), her complaint should have and must have been filed
no later than December 6, 1990. Instead, it was filed 4 days later
on December 10, 1990. RCRA, CERCLA and CAA provide the same or
similar Statutes of Limitations, requiring complaints to be filed
within 30 days after such alleged violation occurs. See 42 U.S.C.
§ 6971(b), 42 U.S.C. § 6910(b), 42 U.S.C. § 7622(b).
[Page 25]
The statutory limitation adopted by Congress may not be
ignored. "... The choice of the appropriate time is not entrusted
to the administrative agency or to the courts. It is the result of
legislative determination made after weighing the various interests
at stake .... It is not for us or the Secretary to casually ignore
the statutory limitation." City of Allentown v. Marshall, 657 F.2d
16, 20 (3rd Cir. 1981), citing Biggans v. Bache Halsey Stuart
Shields, Inc., 638 F.2d 605, 611 (3rd Cir. 1980). As not one of
the categories necessary in order that equitable tolling may be
utilized are present here, the failure to file a complaint within
the prescribed 30 days requires a decision in favor of respondent.
City of Allentown, supra, at 19-20.
It should also be noticed that while the taping of the private
conversation may have been accidental, the transcription of the
tape was certainly not. (TR 168-170, indicating that the recording
was made "indirectly" and Respondent's Exhibit No. 2 at 1, lines
10-13, which indicates recording was intentional.) Although we
will never know whether Nathaniel's transcription is a verbatim
account of the conversation, as the tape somehow disappeared from
the "safe place" in which she put it (TR 170), Nathaniel is
nevertheless inextricably bound by the content of her
transcription. It is the recited state of knowing the elements of
the later alleged discrimination reflected in the text of the
transcription of the November 6, 1990 meeting which renders the
complaint of December 10, 1990 untimely. She has, in other words,
fully substantiated the employer's statutory thirty day limitation
defense by the transcription of the dated meeting in evidence.
In any event, and although complainant has not raised the
point, any prejudice to complainant which might result because of
the short period between the violation and the filing of the
complaint "... is simply irrelevant when Congress has drawn a line
at the point where it believed claims should be barred." City of
Allentown, supra, (657 F.2d at 20).
Nathaniel has charged that her "emotional and mental
pressures" brought on by the withdrawal request caused her to leave
the worksite on December 17, 1990. The factual circumstances of
her leaving work and returning to Connecticut to live with her
husband are vague at best. It is known that she never exercised
any of the only three options she says were given her by her
employer. Instead, she freely elected to go on long term
disability with salary continuation at the suggestion, I assume, of
[Page 26]
a staff member of employer's Human Resources group. The exact
nature of her physical or mental disability remains unknown, but
they all must have resolved because, although she needs no such
order from me, she now asks to be returned to the very same job
which she earlier claimed provided her with "two weeks in Hell."
If her voluntary departure from the worksite on December 17, 1990
in someway constitutes a discriminatory "constructive termination
or suspension," thereby tolling the statute of limitations, that
has not been suggested or explained anywhere. Besides that, all of
the alleged acts of proscribed discrimination supposedly occurred
prior to the date she filed her complaint on December 10, 1990,
some 7 days before she even left work for whatever reason she now
claims.
Notwithstanding the fact that Nathaniel's complaint is
untimely, the merits of her allegation should be further addressed
in case the complaint somehow be later found to be timely.
Nathaniel had the initial burden of proving a prima facie case
that her message of October 24, 1990 was a substantial or
motivating factor in employer's decision to discriminate against
her. Mt. Healthy City School District v. Doyle, 429 U.S. 286, 97
S.Ct. 568, 50 L.Ed. 2d 471 (1977); McDonnell Douglas Corp. v.
Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed. 2d 668 (1973). "The
ultimate burden of persuading the trier of fact that defendant
intentionally discriminated against the plaintiff remains at all
times with the plaintiff." Texas Department of Community Affairs
Burdine, 450 U.S. 248, 101 S.Ct. 1089, 67 L.Ed. 2d 207 (1981).
See also Mackowiak v. University Nuclear Systems, Inc., 735 F.2d
1159 (9th Cir. 1984). But see Adams v. Dole, Secretary of Labor,
927 F.2d 771 (4th Cir. 1991) holding that § 210 of the Energy
Reorganization Act of 1974 (42 U.S.C. § 5851) was wholly
inapplicable to plants, like the subject one, owned by the
Department of Energy.
I regret that I cannot assign any credit to Nathaniel's
account of the action that followed the request that she rescind
her message. Her scenario of the events arising out of message and
its subsequent effects on her life differ markedly from time to
time.
First, she tells the U.S. Department of Labor that her job was
akin to "two years spend in Hell." Under oath, however, she says,
"I love my job."
[Page 27]
On another occasion she furnished the U.S. Department of Labor
with a transcription of a conversation with her manager she
recorded "for protection." On the stand, she implies that the
recording was accidental, a mistake "indirectly" made.
Although she was forced to exercise none of them, she stated
under oath that employer's Employee Concerns group told her she
could either rotate out of the group, take a leave without pay, or
quit. Those option limits were refuted by everyone supposedly
involved and by Nathaniel herself when she took instead a long term
disability leave with salary continuation.
Nathaniel stated under oath that she was concerned that the
ignition source created by smoking could cause an explosion but did
not immediately report the hazard because she did not know what
numbers to call (TR 113). A fellow chemist also assigned at times
to the "burp watch" in the instrument shack testified that contrary
to what Nathaniel said, the phone numbers of the management chain
are in the shack and could be called anytime in the Evaporator
building where Nathaniel exited without the survey (TR 418).
Nathaniel certainly knew her manager's phone number at home as
she had previously called him there at 5:45 in the morning to
complain that the shift supervisor had adamantly insisted that
there be no reading material in the instrument shack other than
that provided by the company (TR 515-516). Surely, the imminent
danger of an explosion, had there been any, would have been a far
more vital concern than only the material one is allowed to read
while on duty. If Nathaniel really believed that a life
threatening hazard was invoked by smoking she would have called her
manager, I find, instead of causually leaving the area to get
something to eat and then returning. If the danger had actually
existed, as she now so vigorously insists, she would have sounded
some kind of alarm. She could have, she should have, and she would
have given some warning. Her failure to timely act in a more
effective fashion persuades me that she knew precisely in what zone
the instrument shack was located and that the only danger there
posed by smoking a cigarette was ingestion of radiation.
Further, it is all but impossible to imagine how the safety
manager is supposed to follow up on a so-called "safety report", as
Nathaniel expects, when it was never furnished him. He did,
however, fully follow-up on the 3-CARE telephone report the same
day. That particular report, unlike Nathaniel's tardy message not
[Page 28]
furnished him, mentioned nothing about any explosion danger arising
as the result of smoking in the instrument shack. As already
mentioned, that particular potential hazard had already been fully
investigated by the employer and its experts and found to be
non-existent long before the October 22, 1990 smoking incident.
She should have known that.
All in all, when you assign to Nathaniel's testimony all the
weight it intrinsically commands, but take into account all that
detracts from it, including all the above, what she said from the
stand about the real purpose of her October 24, 1990 message and
the alleged acts of retalitory discrimination that supposedly
followed, must be counted as plainly incredible.
ORDER
For the above assigned reasons I find that:
1. The failure to file the Complaint within the thirty day
limitation rigidly fixed by Congress in the statutes relied on by
Complainant in bringing this action requires a decision in favor of
Respondent. Accordingly, the Complaint of December 10, 1990 is
dismissed.
2. Notwithstanding the untimely Complaint, the Complainant
engaged in no "protected activity" within the meaning of the
statutes and regulations relied on which preceded the tardy
Complaint. Accordingly, as this office is without subject matter
jurisdiction, the Complaint of December 10, 1990 is dismissed.
3. That Respondent did not subject Complainant to any
unlawful discrimination because of her participation in some
employment-related activity, protected or otherwise. Accordingly,
as no violation of any law has been shown, the said Complaint of
December 10, 1990 is dismissed.