DATE: March 24, 1995
CASE NO. 87-ERA-29
IN THE MATTER OF
RONALD COWAN,
COMPLAINANT,
v.
BECHTEL CONSTRUCTION, INC.,
RESPONDENT.
BEFORE: THE SECRETARY OF LABOR
FINAL DECISION AND ORDER
This case arises under the employee protection provision of
the Energy Reorganization Act of 1974, as amended (ERA), 42
U.S.C. § 5851 (1988), and is before me for review of the
Recommended Decision and Order (R.D. and O.) issued by the
Administrative Law Judge (ALJ) on August 9, 1991. 29 C.F.R.
§ 24.6 (1994).
On April 3, 1987, the International Brotherhood of
Electrical Workers referred a group of electricians, including
Complainant, to Respondent for possible hire at its Diablo Canyon
Nuclear Power Plant. Respondent refused to hire Complainant.
Complainant alleges that Respondent's refusal violates the ERA
because it was made in retaliation for protected complaints he
made to the Nuclear Regulatory Commission (NRC) while previously
employed by Respondent. Complainant had been employed doing
"outage work" for Respondent periodically in 1984, 1985, and
1986. Respondent contends that it refused to rehire Complainant
because of prior poor performance.
The ALJ found that Complainant failed to establish the
causal element of a prima facie case of retaliation under
the ERA. He concluded, however, that even assuming a prima
facie[PAGE 2]
case, Complainant failed to meet his ultimate burden of
persuasion. R.D. and O. at 7. Although I disagree with certain
aspects of the ALJ's analysis, I agree that Complainant failed to
prove by a preponderance of the evidence that Respondent's action
was taken in retaliation for protected activity. [1]
Protected Activity
Twice during his employment with Respondent, once in January
1985, and once on October 16, 1986, Complainant contacted the NRC
concerning safety issues. Reporting nuclear safety issues to the
NRC, or participating in a NRC investigation of safety issues, is
protected activity under the ERA. 42 U.S.C. §
5851(a)(3); Mackowiak v. University Nuclear Sys., Inc.,
735 F.2d 1159, 1162 (9th Cir. 1984); McCuistion v. TVA,
Case No. 89-ERA-6, Sec. Dec., Nov. 13, 1991, slip op. at 6-
7. Although both Complainant and the ALJ focused on
Complainant's reports to the NRC as his protected activity in
this case, the record is replete with evidence that Complainant
also engaged in other protected activity. Complainant had filed
three ERA complaints against Respondent prior to his filing the
present action. See, e.g., Transcript (T.) at 70, 98,
123, 130, 138; Complainant's Exhibit (CX) H; Respondent's
Exhibits (RX) 2, 3; see also Respondent's Prehearing Brief
at 3-9. [2] Filing a complaint or charge of employer
retaliation under the ERA is also protected activity. 42 U.S.C.
§ 5851(a)(1); McCuistion, slip op. at 7-8.
Causation
Since the ALJ did not consider the additional evidence of
Complainant's protected activity, his finding that Complainant
failed to establish the causal link necessary to make a prima
facie showing is erroneous. The error, however, does not
invalidate the ALJ's ultimate finding of no retaliation.
Consistent with the recent decision in Carroll v. Bechtel Power
Corp., Case No. 91-ERA-0046, Sec. Dec., Feb. 15, 1995, slip
op. at 14-15, I find ample evidence to support the dismissal of
this complaint.
The decision not to rehire Complainant was made by Richard
Doran, the electrical superintendent, and Thomas Cutler, the site
manager. [3] Respondent produced evidence that the decision was
based on Complainant's "force ranking" and his prior poor
performance. T. at 304, 308, 319-20.
In evaluating the performance of its electricians,
Respondent maintained a numerical ranking system instead of
written performance appraisals. Complainant's most recent
ranking, for the period from August 18, 1986, to October 1986,
was "9" out of a possible fifteen points. At the time Cutler and
Doran decided not to rehire Complainant, Complainant's ranking
was listed erroneously on a computer printout as "8" instead of
"9." In the early stages of the preliminary investigation,
[PAGE 3]
Respondent cited this "8" as the reason for its decision.
See CX Q, R. While I agree with the ALJ that the computer
error was completely innocent, R.D. and O. at 4, Respondent
essentially concedes that it really did not rely on the incorrect
ranking in making the decision not to rehire Complainant. At the
hearing Cutler acknowledged that he was aware on April 3 that
Complainant was ranked "9." T. at 234-35, 263. The evidence
that Respondent initially gave a false reason for its decision,
however, does not persuade me that Complainant's failure to be
rehired was retaliatory. See St. Mary's Honor Center v.
Hicks, 113 S. Ct. 2742, 2756 (1993) ("That the employer's
proffered reason is unpersuasive, or even obviously contrived,
does not necessarily establish that the plaintiff's proffered
reason . . . is correct.").
Complainant's "9" ranking was not based on his protected
complaints or "skewed" to hide retaliatory animus. R.D. and O.
at 3-5. The ranking was given by his foreman, Chris Dennerlein.
In arriving at the total of "9," Dennerlein gave Complainant "1"
for knowledge and "0" for initiative.
The ALJ found the testimony of Dennerlein:
. . . that of a forthright and very credible man, with
a mind of his own and little interest in workplace
"politics." Early on he declared in writing to the DOL
investigator and very credibly testified here that at
the time he ranked Mr. Cowan he was unaware of Cowan's
complaints to the NRC, and besides he approved of such
complaints. He had been a union electrician for 35
years and the last two years he has been working for
another employer. In his view Mr. Cowan was a bad
employee and the worst electrician in his crew. He
wrote and testified that he gave Mr. Cowan a zero for
initiative because he thought complainant was a shirker
and a laggard shunned by other electricians because he
lacked skills and did not pull his own weight.
R.D. and O. at 4; see RX 14; T. at 369-72. Dennerlein
also testified that Complainant had a reputation as being a
"troublemaker or a complainer or a guy who ran to the . . . Labor
Department" but that this reputation had nothing to do with the
way he rated Complainant's performance. T. at 404-405.
Dennerlein's superiors never told him to treat or rate
Complainant in any particular way. T. at 386, 399-401.
I fully agree with the ALJ's decision to credit Dennerlein's
testimony. His testimony was straightforward, consistent with
the evidence as a whole, and inherently probable. See
Universal Camera Corp. v. NLRB, 340 U.S. 474, 496 (1951);
cf. Pogue v. United States Dept. of Labor, 940 F.2d 1287,
1289 (9th Cir. 1991) (ALJ's credibility determinations entitled
to weight because he
[PAGE 4]
sees the witnesses and hears them testify).
Despite Complainant's protected activity and his reputation
as a "complainer," I do not find that Cutler and Doran seized
upon his poor performance and ranking as a pretext for
retaliation. Cutler and Doran testified that they decided in
March, before having any knowledge that Complainant would be
referred for hiring on April 3, that they did not want to hire
anyone who was ranked below "10." T. at 220, 233-34, 327-28.
The ALJ credited this testimony and I agree. R.D. and O. at 2.
There is no evidence to indicate that Cutler and Doran knew or
should have known that Complainant would be referred on April 3.
Their decision to use "10" as the benchmark to exclude previously
ranked employees is entirely consistent with Respondent's prior
practice. In the year before Complainant was rejected,
Respondent rejected twenty-one other electricians ranked "9" and
hired only two with that ranking. Respondent explained that
extraordinary circumstances, not present here, prompted it to
hire these two "9s." I agree with the ALJ that Respondent's
explanation is persuasive and credible. R.D. and O. at 6. Furthermore, Doran was familiar with Complainant's
demonstrated poor performance and did not want to reemploy
Complainant. Cutler agreed. T. at 234. After Dennerlein ranked
Complainant's performance in October 1986, he submitted the
ranking to Doran for approval. Doran reviewed it and they
specifically discussed the "0," which was an unusual score.
T. at 288-89, 345. Doran agreed with and approved the ranking.
T. at 310, 320, 346. He had observed Complainant's performance
regularly during Complainant's periods of employment in 1985 and
1986. T. at 311, 319. Based on his own observations, Doran
considered Complainant a poor, below-average electrician, who was
slow and needed a partner to take the lead. T. at 311-14, 319.
The record does not show that Complainant's performance during
this time was other than as described by Dennerlein and Doran.
Finally, Complainant apparently misunderstood his burden in
bringing this complaint. He claimed that because he prevailed on
an earlier ERA complaint, he was entitled to protected
"whistleblower status." CX J. [4] To succeed on this
complaint, however, Complainant was required to prove not only
that he engaged in protected activity but also that his protected
activity led to the adverse action. The ERA does not prohibit an
employer from taking adverse action against a whistleblower
where, as here, that action is not based on the protected
activity. Lockert v. United States Dept. of Labor, 867
F.2d 513, 519 (9th Cir. 1989).
Accordingly, Complainant failed to prove that Respondent
violated the ERA in refusing to rehire him on April 3, 1987, and
I accept the ALJ's findings and conclusions as supplemented in
[PAGE 5]
this order.
SO ORDERED.
ROBERT B. REICH
Secretary of Labor
Washington, D.C.
[ENDNOTES]
[1] This case was before the Secretary earlier. Cowan v.
Bechtel Construction, Inc., Case No. 87-ERA-29, Sec. Dec.,
Aug. 9, 1989. In the earlier decision the Secretary rejected the
ALJ's recommendation to dismiss for lack of subject matter
jurisdiction. The Secretary held, contrary to the ALJ's ruling,
that the ERA covers applicants for employment, including former
employees, and remanded for an evidentiary hearing.
Cowan, slip op. at 2-4.
[2] Complainant's failure to allege this protected activity as
a potential basis for the adverse action does not preclude the
Secretary from considering such a claim where as here it has been
implicitly raised and litigated. T. at 338; Yellow Freight
Sys., Inc. v. Martin, 954 F.2d 353, 357-59 (6th Cir. 1992).
[3] Complainant filed his third ERA complaint on November 5,
1986, alleging that on October 27, Respondent laid him off in
retaliation for the October 16 report to the NRC. The Department
of Labor (DOL) conducted an on-site investigation on November 25,
1986, which included an interview with Cutler. T. at 215.
Thus, Cutler obviously was aware of Complainant's most recent
protected activity. The temporal proximity between Cutler's
decision not to rehire Complainant and his knowledge of this
protected activity is sufficient to raise an inference that
Complainant's protected activity was the likely reason for the
adverse decision. Couty v. Dole, 886 F.2d 147, 148 (8th
Cir. 1989).
[4] In fact, there is evidence that because of Complainant's
earlier ERA complaints, Respondent at times had afforded him
special treatment that it would not otherwise have provided. T.
at 204.
