DATE: September 18, 1995
CASE NOS. 93-ERA-00049
93-ERA-00050
IN THE MATTER OF
CARMELA V. MARIEN,
COMPLAINANT,
v.
NORTHEAST NUCLEAR ENERGY CO.,
RESPONDENT,
and
MARIANNE W. NERICCIO,[1]
COMPLAINANT,
v.
CONNECTICUT YANKEE ATOMIC POWER CO.,
RESPONDENT.
BEFORE: THE SECRETARY OF LABOR
FINAL DECISION AND ORDER
These consolidated cases arise under the employee protection
provision of the Energy Reorganization Act of 1974, as amended
(ERA), 42 U.S.C.A. § 5851 (West 1994). Complainant Carmela
Marien alleged that Respondent Northeast Nuclear Energy Co.
violated the ERA by creating a hostile work environment after she
raised concerns about safety. Complainant Marianne Nericcio made
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the same allegation against Respondent Connecticut Yankee Atomic
Power Co. The complaints were consolidated for hearing and
decision.
In a Recommended Decision and Order (R. D. and O.), the
Administrative Law Judge (ALJ) found that the Complainants did
not establish a prima facie case and recommended dismissal
of the complaints. The ALJ's findings of fact, R. D. and O. at
3-9, are supported by the record and I adopt them. Although I
have clarified the ALJ's legal analysis as noted below, I accept
the ALJ's recommendation and dismiss the complaints.
BACKGROUND
Respondents are subsidiaries of Northeast Utilities Company
that are engaged in generating nuclear power. R. D. and O. at 2.
Complainants are Occupational Health Administrators at two of
Respondents' nuclear power plants in Connecticut. Id. In
1993, Respondents asked Complainants to test a newly developed
computer software program used in the fitness for duty program
through which Respondents screen employees for drug and alcohol
use. T. 25, 59-61, 183, 190.
Respondents acted defensive when Nericcio brought to their
attention a list of problems with the new program. T. 33-34; RX
2. Marien also perceived that tensions were high when she
notified co-workers about problems with the program. T. 191, RX
7. Nericcio related some of her concerns about the computer
program to a Nuclear Regulatory Commission (NRC) inspector during
a routine security audit. T. 36. As a result, the inspector
arranged a meeting in May 1993 between the Complainants, NRC
staff, and some of Respondents' supervisory employees during
which Marien demonstrated a number of the problems she found in
the program. T. 36-37.
Complainants questioned the validity of the computer program
at a staff meeting on June 8, 1993. T. 39. According to
Complainants, at one point during the meeting, one of their co-
workers, Bryan Cook, got up off his chair, red faced, and yelled
at Marien "that if she didn't go to all these outside agencies
. . . we wouldn't have these problems." T. 39, 219. Marien had
to leave the room to compose herself. T. 39, 220. Nericcio told
the staff that Marien was concerned about losing her job, and
supervisor David Heritage assured her that Marien's job was
secure. T. 470-471, 819, 835. Complainants also claim that
during the same meeting, Heritage accused Nericcio of calling the
NRC. T. 42, 220.
Complainants made complaints to their supervisors and to the
human resources department about their treatment at the June 8
meeting. T. 42, 319-320. When one of Respondents' managers
investigated the incident, he learned that none of the others who
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attended the June 8 meeting heard the assailed remarks by Cook
and Heritage, T. 433, 820, 837, both of whom denied making the
statements attributed to them. T. 472, 853-854.
Respondents hired a mediator, Robert DeLisa, to work with
the staff concerning the conflict that developed at the June 8
meeting. T. 224, 517-519. DeLisa spoke with all of the
employees who attended the meeting and found that, with the
exception of Complainants, no one heard Cook make a remark to
Marien about going to outside agencies. T. 529. Complainants
declined to cooperate with DeLisa after he related the
recollections of the other employees, not part of Respondents'
management team, who were present at the June 8 meeting.
DeLisa reported back to the human resources department that
he was unable to bring the parties together. T. 549-550. The
human resources department hired a second mediator approved by
the Complainants, T. 110-111, 762-763, RX 5 and 6, but the record
does not reflect the results of his efforts.
Complainants' work did not change after the June 8 meeting
and they suffered no alteration in assignment, rank, or rate of
pay. Nor did Marien experience any additional alleged incidents
of harassment by Cook. T. 341.
A few weeks after the June 8 meeting, Complainants filed
these complaints, alleging that Respondents harassed them and
created a hostile work environment after they raised concerns
about the computer system. The Complainants seek written and
verbal apologies concerning their treatment, promises that
harassment will not be tolerated in the future, and $50,000 each
in compensatory damages for emotional distress. DISCUSSION
The ERA provides that an employer may not "discharge or
otherwise discriminate against any employee with respect to his
compensation, terms, conditions, or privileges of employment"
because the employee engaged in certain protected activities. 42
U.S.C.A. § 5851(a)(1). To prevail, a complainant must
"demonstrate[ ] that any behavior described in subparagraphs (A)
through (F) of subsection (a)(1)[2] was a contributing factor in
the unfavorable personnel action alleged in the complaint." 42
U.S.C.A. § 5851(b)(3)(D).
The ALJ found that Complainants did not establish a prima
facie case because they did not show that Respondents took
any adverse action against them. R. D. and O. at 12. In a case
such as this in which Respondents introduced evidence to rebut a
prima facie case of a violation of the employee protection
provision, it is unnecessary to engage in a lengthy analysis of
the elements of a prima facie case. Lassin v. Michigan
State Univ., Case No. 93-ERA-31, Final Dec. and Ord., June
29, 1995, slip op. at 7 and cases there cited. The question to
be resolved is whether
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Complainants established by a preponderance of the evidence that
their protected activities were a contributing factor in Respondents' unfavorable personnel action. See 42
U.S.C.A.
§ 5851(b)(3)(D).
One of the alleged unfavorable personnel actions in this
case consisted of harassing comments allegedly made at the June 8
meeting. Complainant's Memorandum in Opposition to R. D. and O.
(Comp. Mem.) at 3. There is no record evidence, other than the
Complainants' testimony, that Cook made the assailed remarks
about "going to outside sources." Although Cook conceded that he
spoke loudly and may have become red faced during the meeting, he
denies making the statement. Since Cook usually was soft-spoken,
T. 433, 451, it would seem natural for his co-workers to note
what he said in an unusually loud or agitated manner, but none
heard Cook say what the Complainants allege. T. 433, 820, 837.
Angela Anderson, who was present for the entire meeting,
testified that she did not hear Cook make such a statement and
that it was not possible for her not to hear him if did make such
a statement. T. 449.
Rather, the others at the meeting agreed that when
Complainants mentioned the difficulty of communicating with staff
at Respondents' headquarters, Cook told Marien that communication
is a two-way street and that she did not return phone calls
either. T. 470, 477, 819, 835, 852.
Similarly, there is no evidence, other than Complainants'
testimony, that Heritage stated that Nericcio called the NRC.
The other staff at the meeting did not hear the comment and Anderson testified that it was Nericcio herself who mentioned the
NRC. T. 432.
We are left with undisputed evidence that Complainants'
peer, Cook, raised his voice and may have been red-faced during
the June 8 meeting. T. 852, 860. I find that Cook's demeanor was
not sufficient to demonstrate that Respondents retaliated against
Complainants because of their protected activities.
Significantly, as the ALJ found, neither Complainant suffered any
other form of retaliation such as reassignment, loss of pay,
adverse performance evaluation, or denial of vacation. R. D. and
O. at 12.
Complainants also allege that management's response to their
claims of harassment at the June 8 meeting created a hostile work
environment. Comp. Mem. at 3. A court has recognized that there
is a claim under the ERA for "retaliatory harassment" similar to
a claim under Title VII for hostile work environment. English
v. Whitfield, 858 F.2d 957, 963-964 (4th Cir. 1988). In the
leading Title VII case, the Supreme Court explained that for
harassment to be actionable, it must be sufficiently severe or
pervasive as to alter the conditions of employment and create an
abusive
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working environment. Meritor Savings Bank v. Vinson, 477
U.S. 57, 67 (1986). The Secretary has looked to the
Meritor decision for guidance in the case of an alleged
hostile work environment in violation of the ERA. English v.
General Elec. Co., Case No. 85-ERA-2, Final Dec. and Ord.,
Feb. 13, 1992, slip op. at 6 (rejecting claim of hostile work
environment where Complainant did not allege that she suffered
any lost pay or injury, other than "embarrassment" for being sent
home to get safety shoes prior to working in a manufacturing
setting).
Complainants contend that Respondents did not formally
investigate or engage in serious fact finding concerning their
claims of verbal harassment at the June 8 meeting. Comp. Memo.
at 4. I disagree. Following Marien's and Nericcio's complaints
of harassment, Marien's supervisor telephoned Heritage, who
denied that either he or Cook made the claimed remarks. T. 754-
755, 782. Respondents did not stop their investigation with
Heritage's denial. Heritage's supervisor, Dennis Welch, told
Heritage not to talk with any of his staff because Welch intended
to interview them about the meeting. T. 473. Welch interviewed
the meeting participants, and found out that, with the exception
of Complainants, none of the others heard the assailed remarks by
Cook or Heritage. T. 806 (Anderson), 822 (Johnson), 837 (Oates).
Convinced that there was a communications problem in the
group, Respondents hired DeLisa to address that problem. DeLisa
found a "core conflict" between Heritage and the Complainants.
T. 535-536. Marien was offended when the mediator reported to
her that no one else heard Cook chastise her for going to the
NRC, and she declined to speak further with the mediator.
T. 227, 547-548, 569. Nericcio also declined to cooperate
further. T. 545. In view of the lack of cooperation with
DeLisa, Respondents hired a second mediator of whom Complainants
approved. T. 762-763.
Complainants contend that by hiring mediators rather than a
fact finder, Respondents failed to take their harassment
allegations seriously and thus created a hostile work
environment. Comp. Mem. at 5. There is no requirement in either
the ERA or the implementing regulations to utilize a certain type
of investigator or conduct a specific type of inquiry in response
to an allegation of retaliatory harassment. I find that the ERA
requires only that an employer consider and evaluate allegations
of harassment in an open-minded and fair manner.
In hiring a mediator, Respondents simply followed up on
Nericcio's own assessment at the June 8 meeting that the group
had a communication problem and was not working together. T. 39.
Yet Nericcio now contends that hiring a mediator to help the
group communicate and work cohesively was itself a hostile act.
This claim is simply not tenable. After all, attempting
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conciliation is the first step in attempting to resolve a claim
of employment discrimination. See Wrenn v. Secretary, Dept.
of Veterans Affairs, 918 F.2d 1073, 1074 (2d Cir. 1990),
cert. denied, 499 U.S. 977 (1991) (recognizing "statutory
policy favoring the administrative resolution of employment
discrimination claims, by means of conciliation, conference, and
persuasion."). See also provisions for conciliation in
Age Discrimination in Employment Act, 29 U.S.C. §
626(d)(1988), Title VII of the Civil Rights Act of 1964, 42
U.S.C. § 2000e-5(b) (1988), and the regulations implementing
Executive Order 11,246 (prohibiting discrimination by Federal contractors), 41 C.F.R.
§ 60-1.24(c)(2) (1994).
Finally, I note that Nericcio's own testimony tends to
disprove the existence of a hostile work environment, since she
still loves her job and hopes to stay. T. 137-138. This
testimony contrasts sharply with the typical hostile work
environment, which detracts from an employee's job performance,
discourages employees from remaining on the job, or keeps them
from advancing in their careers. See Harris v. Forklift
Systems, Inc., 126 L.Ed. 2d 295, 302 (1993).
On the basis of the entire record, I find that Complainants
have not established that Respondents created a hostile work
environment, or took any other unfavorable personnel actions
against them, because of their protected activities.
Accordingly, I accept the ALJ's recommendation and the complaints
are DISMISSED.
SO ORDERED.
ROBERT B. REICH
Secretary of Labor
At Washington, D.C.
[ENDNOTES]
[1] Complainant Nericcio's surname was misspelled in the
caption of the case and is corrected here.
[2] These behaviors are referred to as "protected activities"
for ease of reference.
