Before: FLETCHER E. CAMPBELL, JR.
Administrative Law Judge
RECOMMENDED DECISION AND ORDER
INTRODUCTION
On May 26, 1999, Patrick Higgins ("Complainant") filed a
complaint against Alyeska Pipeline Services Corporation ("Respondent") under the
employee protection provisions of the Toxic Substances Control Act of 1976, 15 U.S.C. §
2622; the Water Pollution Control Act, 33 U.S.C. § 1367; the Clean Air Act, 42 U.S.C.
§ 7622; the Solid Waste Disposal Act, 42 U.S.C. § 6971, and the Energy Reorganization
Act, 42 U.S.C. § 5851. In his prayer for relief, Complainant seeks an injunctive order placing
him in the same position or a position substantially similar to that for which he applied. He also
seeks back pay and benefits, less any interim earnings, from the time other individuals were hired
as ECP investigators until such time as he is instated into such position.
Mehta is an ECP representative at Millstone Nuclear Power plant. Formerly,
Ed Morgan was Mehta's second line supervisor (that is, the supervisor of Mehta's supervisor, Peter
Novak) (Tr. 121). Novak and Morgan disagreed with some of Mehta's findings regarding nuclear
safety. Mehta described the dispute as a "difference of professional opinion." Mehta
believed that the difference of opinion caused Novak to give him a low score on his performance
review. Higgins mediated the dispute among Mehta, Novak, and Morgan (Tr. 121-3). During the
mediation, Morgan yelled at Mehta and threatened that he would not be able to work in ECP if he
continued to raise so many concerns (Tr. 125-6). After Higgins mediated the dispute, Mehta's
relationships with Morgan and with Novak improved. Mehta told Higgins that he considered the
mediation a success (Tr. 130). Mehta thought that the "root cause" of the dispute was
Morgan's belief that Mehta's differing opinions were undermining the ECP program (Tr. 132).
Mehta also shared his concerns with the NRC (Tr. 133).
C. Testimony of Ed Morgan
Morgan holds a contract with Little Harbor Consulting and works full time at
Alyeska in his status as a contractor (Tr. 113-4). Previously, he was the director of the ECP at
Millstone (Tr. 114). Morgan and Higgins never worked closely together at Millstone until Higgins
mediated a dispute among Morgan, Mehta, and Novak (Tr. 176). Mehta had investigated an
employee concern which stated that quality was being sacrificed for schedule at the plant (Tr. 183).
Mehta signed a report stating that the concern was unsubstantiated, but he later said that he had
signed "under duress" (Tr. 184). Higgins mediated the dispute, and it was resolved.
Mehta told Morgan that he thought the mediation was successful. Morgan agreed, and he told
Higgins' boss that Higgins had done a very good job (Tr. 192). Morgan never told Mehta that his
job was in jeopardy if he did not sign off on investigations, nor does he recall raising his voice at
Mehta (Tr. 118-9). Higgins never told Morgan that he was concerned about Morgan threatening or
retaliating against Mehta (Tr. 119). Morgan did not know that Higgins had these concerns until he
read Higgins's complaint in the present case (Tr. 193-4).
1 The following abbreviations will be
used as citations to the record:
CX-Complainant's Exhibits
RX - Respondent's Exhibits
JX - Joint Exhibits
Tr.- Transcript
2 Although I permitted post-
hearing motions to strike any documents, no such motions were filed regarding any of the
exhibits. Complainant filed a motion to strike a number of charts and graphs included with
Respondent's brief. Although these are somewhat misleadingly labeled as exhibits A-K, they are
not independent items of evidence but illustrations of data contained in RX 16 and RX 29.
Therefore Complainant's motion to strike these documents is inappropriate. In the alternative,
Complainant moved to require amendment to Respondent's brief. The motion is denied. The
graphs and charts accurately depict data already in evidence, and they are proper for illustrative
purposes.
3 Higgins originally claimed
that he was wrongfully rejected for an "asset manager" position for which he applied
in 1998. He submitted an application for that position, was never interviewed, and received a
rejection letter (Tr. 53). However, later in the hearing, Higgins admitted that he had not been
aware of the nature of the position, which involved working at a pipeline pump station, when he
applied for it (Tr. 698). He admitted that he did not think he should have gotten the asset
manager job (Tr. 701).
4 At various times during the
hearing and in Complainant's briefs, Higgins has asserted that Kathy LaForest was also biased
against him. However, on the stand, Higgins acknowledged that he was not seriously contending
that LaForest was biased against him in any way during or after the interview (Tr. 704).
5 The testimony of the
panelists made it clear that the investigation occurred when Higgins was working for Alyeska
and that Wick and Morgan, at least, understood that Higgins was talking about his prior
experience at Alyeska (Tr. 226, 432).
6 "Concerned
individual" or "CI" is a term of art within the Alyeska ECP. The CI is the
individual who raises a complaint or "concern," which the ECP then investigates. Tr.
32.
7 I excluded Mehta's testimony
due to his refusal to submit to a pre-hearing deposition. Nevertheless, I received the testimony
by offer of proof. Upon Complainant's motion for reconsideration, I have determined that
Mehta's testimony should be admitted on the grounds of limited and negligible prejudice. This
issue will be addressed more fully later in the discussion section of the opinion.
8 Immediately prior to the
scheduled interview, one of the twelve individuals selected for phase I indicated an
unwillingness to relocate.
9 Rob Shoaf testified that
"open work environment" refers to an initiative that Alyeska began in September
1998 to improve the work environment by addressing employee concerns about harassment,
intimidation, retaliation, and discrimination. Tr. 524.
10 Morgan's statement to
a DOL investigator identifies this individual as John Griffin of Little Harbor management (RX
44, p. 4).
11 Testimony about Ed
Morgan's behavior in other investigations is largely irrelevant. Respondent previously moved to
have this evidence excluded as inadmissible character evidence. At the time, I admitted the
evidence provisionally with leave to Respondent to renew its objection upon brief. Upon hearing
the evidence, I concur with Respondent that the evidence was offered to establish Morgan's past
bad character and show that his behavior toward Higgins was consistent with his past behavior.
As such, the evidence has very low probative value that is outweighed by potential prejudice.
Therefore, it is of little relevance to the current case and will not be considered.
12 The relevance of this
testimony is unclear because Higgins nowhere alleges that he was subjected to discrimination
because he was not an Alaska native.
13 Wick's testimony at
the hearing did not reveal which individuals favored or opposed Wick's inclusion on the panel.
However, in a statement to a Department of Labor investigator that was admitted into evidence,
Wick stated that Shoaf and Morgan wanted to include her on the panel, while Jim Sweeney
recommended that she not participate (RX 43, p. 5).
14 See note 13,
supra. Although it is not clear from the testimony presented at the hearing, Cindy
Wick's statement to DOL investigators states that Sweeney opposed Wick's presence on the
panel.
15 Sweeney's testimony
regarding Morgan's role in another investigation is of negligible relevance for reasons discussed
in note 11, supra.
16 This notation
indicates, as Wick explained in testimony, that she gave him one point because he did describe
an investigation.
17 "Open work
environment" and "HIRD" are apparently terms widely used within the
Alyeska ECP.
18 Complainant does not
contend that any member of Alyeska management other than Ed Morgan had knowledge of
Complainant's protected activity at Millstone. Complainant testified that, while at Millstone, he
raised his concerns about possible retaliation to Morgan directly (Tr. 52), while Morgan testified
that he did not know that Complainant had raised any concerns until after the ECP selection
process was over (Tr. 193-94). Thus, the evidence is conflicting on this issue and, because it
does not affect the outcome or the analysis of this case, I decline to make a credibility
determination.
19 Of these four finalists,
Gutierrez, Allbright, and Tony received job offers (Tr. 378).
20 Although the panelists
indicated that past experience was not considered during the interview, it is relevant for several
reasons. First, the fact that candidates with strong credentials advanced to the next stage of
interviews indicates that the screening process was an effective means of selecting qualified
candidates for the job. Second, after passing the telephone interview, candidates were subject to
a further level of scrutiny, including an examination of their work records. If Complainant had
passed phase I of the interview process, his credentials would still have been compared to those
of the competing candidates. Finally, Complainant has asserted that Respondent passed him over
in favor of "less qualified" candidates, a contention that puts the qualifications of
Messrs. Allbright, Cameron, Gutierrez, and Tony at issue.
21 Based on the nature of
the job, I cannot find that the graduate degrees that these candidates had should not have
accorded them an advantage in the job application process or that the company's reliance on them
was pretextual.
22 The number of
candidates who would advance to phase II was not established in advance but was determined
based on a "natural break" in the scores (Tr. 329). . Although it is conceivable that
the number of candidates who advanced to Phase II may have been different in the absence of
Wick's scores, Complainant, who bears the overall burden of persuasion, has not shown this to be
true by a preponderance of the evidence. Complainant's most favorable scores came from
LaForest, who ranked him sixth overall (RX 29). Only three positions were available, four
candidates advanced, and the top three scorers in phase I received job offers (Tr. 378, RX 29). In
light of these facts, a preponderance of the evidence does not support a finding that Complainant
would more likely than not have advanced if Wick's and Morgan's scores were not considered.
23 Griffin is identified in
Morgan's testimony and in Morgan's statement to a DOL investigator as a member of the Little
Harbor consulting group, but Griffin did not testify at the hearing (Tr. 144, RX 44, p. 4).
25 Complainant
emphasizes that LaForest ranked Higgins second overall on questions two and three combined
(JX 16). Complainant argues that these questions were the most important, apparently on the
basis of Wick's testimony that she and Morgan considered the answers to these questions
separately because they focused on the investigative process (Tr. 467). However, LaForest stated
that she herself weighed the questions equally, and she also testified that she missed some
substantive issues in evaluating Complainant's answer (Tr. 309, 337). Furthermore, because the
top four scorers on questions two and three were also the top scorers overall, it is not clear that
these questions actually received any additional weight (Tr. 309, RX 29). Indeed, it is difficult to
see the purpose of grading responses on a uniform scale and averaging all of the scores together
unless all the questions were intended to carry essentially the same weight. Furthermore, when
LaForest and Morgan's scores for questions two and three are combined, Complainant still ranks
only fifth (JX 16).