DATE: February 15, 1995
CASE NO. 91-ERA-0046
DAVID CARROLL,
COMPLAINANT,
v.
BECHTEL POWER CORPORATION,
RESPONDENT.
BEFORE: THE SECRETARY OF LABOR
FINAL DECISION AND ORDER
This case, which is before me for review, was brought
pursuant to the employee protection provision of the Energy
Reorganization Act of 1974 (ERA), 42 U.S.C. § 5851 (1988).
[1] Complainant David Carroll alleged that he was terminated by
Respondent Bechtel Power Corp. ("Bechtel") in retaliation for
internal complaints he made which he alleged were safety related,
and because he had threatened to take those matters to the
Nuclear Regulatory Commission ("NRC"). A Department of Labor
Administrative Law Judge ("ALJ") issued a Recommended Decision
and Order ("R.D. and O.") that the complaint be denied. Although
the ALJ made errors which require correction, as discussed below,
I agree with his ultimate recommendation and dismiss the
complaint.
BACKGROUND
a. Facts
David Carroll was hired as a mechanical engineer by
Bechtel in July 1989. Complainant's Exhibit ("CX-") 2. Between
1989 and December 1990 Carroll worked at a variety of Bechtel
projects, the most recent of which was the Engineering Support
Team ("EST") in Russellville, Arkansas. R.D. and 0. at 2; CX-1
at 1. The EST had been established in 1987 by contract between
Bechtel and Arkansas Power and Light ("AP&L") and later AP&L's
agent, Entergy Operations, Inc. ("Entergy"), to supply
engineering support services to Entergy at Arkansas Number one
nuclear power facility ("ANO"). R.D. and 0. at 1. Bechtel also
had another contract
[PAGE 2]
with Entergy which set up and governed the operation of the
Backlog Elimination Project ("Backlog Project" or "Backlog").
Id. The purpose of the Backlog Project was to review and
recommend the disposition of an accumulation of engineering
action requests ("EARs") and plant engineering action requests
("PEARs"). Id. at 1-2.
William Watson was the Project Manager for all Bechtel
engineering work performed for ANO. R.D. and 0. at 15; T-881.
Therefore he was in charge of Bechtel engineering matters for
both EST and the Backlog Project. Hugh Nugent was the Bechtel
EST project engineer. R.D. and 0. at 19. He supervised James
Drasler, who in turn supervised David Carroll, John Antle, Joel
Guzman, and other engineers. Id. at 29. Late in 1990
Entergy notified Bechtel that the mechanical engineering staff in
EST would have to be reduced. [2] Over a period of a few weeks,
Bechtel "released" 13 engineers from EST. [3] R.D. and 0. at
2. Consistent with Bechtel policy, the reduction in staff was
done in such a way as to retain the most capable engineers on the
project. Id.; R.D. and 0. at 2. Carroll and another
mechanical engineer, Ron Rourk, were released from EST during the
December 1990-January 1991 reduction in force. T. 644-655
(Drasler). Mechanical engineers John Antle and Joel Guzman
remained in EST along with supervisor James Drasler. Id.
Because the Backlog Project had lost some engineers in late 1990,
Carroll and Rourk were both transferred into it in early January
1991. R.D. and 0. at 2. Dale Crow was the Bechtel Backlog
project engineer. R.D. and 0. at 19. Crow supervised David
Christiansen, who in turn supervised David Carroll on the Backlog
Project. Id.
EARs and PEARs are internal requests for engineering actions
at ANO. Over the years EARs and PEARs which were initially
determined to be of low priority were not dealt with, resulting
in a backlog of over 2000 unresolved requests. R.D. and 0. at
13-14; T. 529 (Barnes). Entergy set up the Backlog Project in
the hopes that the accumulation of undocumented actions could be
resolved in about three years. R.D. and 0. at 13-14; T. 491-493
(Barnes). Once the Backlog Project was established, all
unresolved EARs and PEARs were evaluated, and those that appeared
to involve safety or quality issues were given top priority and
"were systematically worked off . . . ." T. 492-493 (Barnes).
The EARs and PEARs that were left thus had undergone two safety
reviews, one by the organization within ANO which initially
received the engineering request, and one by the Entergy
management official who supervised the Backlog Project.
Id. Because of this succession of reviews, "[t]here was
nothing left that was determined, at that time, to be safety
significant,
[PAGE 3]
although those reviews were not documented." Id. It was
understood, however, that there might be a safety item lurking
among the unresolved engineering requests:
You know, anytime you have a pile of that many
open items, there is a potential for safety, and that
was really our main goal, was to go through those and
find the safety items and resolve them, as quickly as
possible.
Id. The vast majority of the requests that were left for
processing by the time that Carroll joined the Backlog Project
were those considered to be eligible to be "routinely closed
through 'management closure.'" R.D. and 0. at 2. [4]
Carroll was working in the Backlog Project in early April
1991, when Entergy informed William Watson that Bechtel had to
reduce the mechanical engineering staff of EST from three to one.
R.D. and 0. at 2, 18; RX-18. Antle and Guzman initially were to
be released pursuant to that instruction. R.D. and 0. at 29; RX-
14a, 14h, 15h, l5k. However, Watson told Nugent and Crow, the
supervisors of the two projects, to discuss the matter and
"retain those individuals with the highest skill level within the
department." T. 909-10 (Watson). It was then decided to
transfer Antle and Guzman to the Backlog Project and to release
Carroll and Rourk. R.D. and 0. at 18-19, 21; T. 590 (Crow).
On April 10, 1991, Carroll was notified that he was being
released from the Backlog Project. R. D. and 0. at 2. [5] Over
the next month Carroll's chief, George Showers, sent numerous
requests to other regional offices within Bechtel asking if they
had a position available for Carroll. R.D. and 0. at 26-27, 42;
RX-14. On April 29, 1991, Showers orally informed Carroll that
because of a decline in work at Bechtel projects, he had not been
placed in another position, and therefore he was being terminated
effective May 10, 1991. Showers confirmed that notice with a
letter dated May 2, 1991. R.D. and 0. at 26. On May 10, 1991,
the day he was terminated, Carroll filed a complaint with the
Nuclear Regulatory Commission ("NRC"), alleging safety violations
at the ANO facility. R.D. and 0. at 1. On May 13, 1991, Carroll
filed a complaint with the U.S. Department of Labor alleging that
he was released from the Backlog Project, and was subsequently
terminated, in retaliation for making safety complaints to
various Bechtel officials. Id.
b. ALJ's Decision
The ALJ provided a detailed summary of the testimony and
exhibits in his decision. See R.D. and 0. at 5-32. He
also concluded that as Carroll's complaint was timely filed, the
ALJ
[PAGE 4]
had jurisdiction to decide the case. Id. at 33-34. The
ALJ then discussed the merits of the complaint using a structure
based upon the elements of a primafacie case
listed in Couty v. Dole, 886 F. 2d 147 (8th Cir. 1989).
Based on the record and his findings of fact and credibility
determinations, he determined that: 1) Carroll did not express to
any of Bechtel's managers or employees an intent to complain to
the NRC about any of the matters he alleged related to safety at
ANO; 2) it was improbable that Carroll would have planned to
complain to the NRC about the matters that allegedly concerned
him; 3) Carroll's termination was not the result of an unlawful
failure by Bechtel to place him in another position; 4) even if
Bechtel possessed both a lawful and an unlawful motive for
failing to place Carroll, Bechtel had proven that Carroll would
have been terminated for the lawful reason in any event; and 5)
the termination did not occur sufficiently close in time to the
alleged protected activity to raise an inference that Bechtel
possessed illegitimate motives for terminating Carroll. R.D. and
0. at 35-45.
Although the ALJ erred in some significant respects, I
conclude that use of the appropriate legal standards leads to the
same ultimate conclusion: Carroll was not retaliated against by
Bechtel for making safety related complaints. For reasons that
follow, I dismiss the case.
DISCUSSION
It is not clear from the ALJ's R.D. and 0. whether he ruled
that Carroll had failed to make a primafacie
showing of discrimination, or that Carroll failed to establish by
a preponderance of the evidence that he was retaliated against by
Bechtel in violation of the ERA. Moreover, the ALJ apparently
believed that in order to prevail in an ERA retaliation case the
complainant had to prove that he had complained to, or was about
to complain to, the NRC. Finally, the ALJ ruled that the passage
of at most two months between Carroll's alleged protected
activity and his termination did not raise an inference of
improper motive on Bechtel's part. Although I agree with the
ALJ's ultimate conclusion that this case should be dismissed, in
order to clarify these three important issues I will articulate
my consideration of this case in some detail.
a. Proper Legal Framework for Analysis of a Retaliation
Case.
The R.D. and 0. accurately describes the burdens of
persuasion and production which apply in a retaliation case:
Complainant has the burden of proof and must make
a primafacie case that protected
activity motivated
[PAGE 5]
his layoff. The employer may rebut this showing by
producing evidence that the adverse action was motivated by
a legitimate, non-discriminatory reason. In this
undertaking the employer bears only a burden of production
of rebuttal evidence: the ultimate burden of persuasion of
the existence of retaliatory discrimination remains with the
complainant.
R.D. and 0. at 36. Following this statement of the law, the ALJ
focused on the Couty v. Doleprimafacie
case factors and used those elements as subheadings in the
analysis. See R.D.and 0. at 35-44. However, throughout
the analysis are findings of fact which do not relate to the
primafacie issue. For example, the ALJ makes
lengthy findings regarding Bechtel's asserted reasons for
terminating Carroll -- facts which are only relevant if a
complainant has made a primafacie showing.
See, e.g., R.D. and 0. at 41-43. Moreover, the
case was analyzed as a "dual motive" case within the Couty v.
Doleprimafacie case framework, as
noted by the following:
Assuming a legitimate business justification existed
for complainant's layoff, was respondent substantially
motivated in part by an illegitimate reason, that is,
retaliation for complainant's "protected activity," in
laying him off?
R.D. and 0. at 44. [6] Again, this analysis becomes relevant
only after a primafacie case has been established.
In order to clarify the analysis that should be used in this type
of case, I will restate the standard legal principles which
should be applied.
The employee protection provision of the ERA, 42 U.S.C.
§ 5851(a), makes it unlawful for an employer to retaliate
against an employee because the employee:
(1) commenced, caused to be commenced, or is about to
commence or cause to be commenced a proceeding under this
chapter. . . , or a proceeding for the administration or
enforcement of any requirement imposed under this chapter. .
. ;
(2) testified or is about to testify in any such
proceeding or;
(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 this chapter .
. . .
[PAGE 6]
The Secretary has repeatedly articulated the legal framework
within which parties litigate in such a retaliation case. Under
the burdens of persuasion and production in whistleblower
proceedings, the complainant first must present a primafacie case. In order to establish a primafacie case, a complainant must show that: (1) the
complainant engaged in protected conduct; (2) the employer was
aware of that conduct; and (3) the employer took some adverse
action against him. Dean Darty v. Zack Companyof
Chicago, Case No. 82-ERA-2, Sec. Dec., Apr. 25, 1983, slip
op. at 7-8. The complainant also must present evidence
sufficient to raise the inference that the protected activity was
the likely reason for the adverse action. Id.SeealsoMcCuistion v. TVA, Case No. 89-ERA-6, Sec.
Dec., Nov. 13, 1991, slip op at 5-6; Mackowiak v. University
Nuclear Systems, Inc., 735 F.2d 1159, 1162 (6th Cir. 1983).
The respondent may rebut the complainant's primafacie showing by producing evidence that the adverse
action was motivated by legitimate, nondiscriminatory reasons.
Complainant may counter respondent's evidence by proving that the
legitimate reason proffered by the respondent is a pretext.
Inanyevent the complainant bears the
ultimate burden of proving by a preponderance of the evidence
that he was retaliated against in violation of the law. St.
Mary's Honor Center v. Hicks, 113 S.Ct. 2742 (1993);
Darty at 5-9 (citing Texas Department ofCommunity Affairs v. Burdine, 450 U.S. 248 (1981)).
There is only one, limited, variant to this general format.
Where an employee proves (i.e., establishes by a
preponderance of the evidence) that illegitimate reasons played a
part in the employer's decision, the employer then has the burden
of proving by a preponderance of the evidence that it would have
taken the adverse action against the employee for the legitimate
reason alone. Price Waterhouse v. Hopkins, 490 U.S. at
228. [7] If respondent moves for a directed verdict at the end of
complainant's case, the ALJ must analyze complainant's case to
determine whether he has presented evidence sufficient to prevail
until contradicted and overcome by other evidence. [8] Once the
respondent produces evidence that the complainant was subjected
to adverse action for a legitimate, nondiscriminatory reason, the
rebuttable presumption created by complainant's primafacie showing "drops from the case." Texas Department
of CommunityAffairs v. Burdine, 450 U.S. at 255,
n.10. Once the respondent has presented his rebuttal evidence,
the answer to the question whether the plaintiff presented a
primafacie case is no longer particularly useful.
[9] "The (trier of fact] has before it all the evidence it
needs to determine whether 'the defendant
[PAGE 7]
intentionally discriminated against the plaintiff.'" USPS Bd.
of Governors v. Aikens, 460 U.S. at 715 (quotingTexas Department of Community Affairs v. Burdine, 450 U.S.
at 253 (emphasis supplied)). [10] Thus, the question in this
case is whether Carroll proved by a preponderance of the evidence
that Bechtel retaliated against him for his alleged safety
complaints.
b. Applicability of the EPA to Internal Safety
Complaints.
The ALJ made a second significant error of law which
pervades much of his analysis of this case. He held that the
ERA's employee protection provision does not extend to purely
internal safety complaints. Thus, the ALJ stated:
Inasmuch as complainant did not file a "complaint" with the
NRC until the day his layoff became effective, an initial
question is whether respondent had any knowledge of an
intention complainant might have had to express his
"concerns" to the NRC, that is, "to commence a proceeding"
under the Act.
R.D. and 0. at 36-37. The ALJ noted:
There is a split in the federal circuit courts of
appeals on the issue of whether the filing of purely
internal complaints is protected activity.
It is determined under the circumstances here that
even assumed oral complaints to management would notconstitute the filing of a complaint, in
contemplation of the Act.
Id. at 39 (emphasis supplied). The ALJ concluded
regarding internal complaints raised by complainant that:
Such matters as complainant raised as his concerns were
primarily internal management matters, which were resolved
or could have been resolved internally. Therefore, even
assuming the existence of an "internal complaint," the
circumstances do not show complainant likely expressed an
intention to respondent to go [to] the NRC over his avowed
concerns.
Id.
The next section of the decision begins: "Assuming
complainant engaged in protected activity and that respondent
was aware of an intention to complain to the NRC, complainant
must show that respondent's subsequent discriminatory action was
in
[PAGE 8]
retaliation." Id. at 41 (emphasis supplied). The ALJ
states elsewhere in his decision that "[t]he evidence does not
show that complainant expressed any intention to respondent to go
to the NRC and respondent, without knowledge of such an
intention, could not have engaged in any retaliatory action
against him." R.D. and 0. at 38 (emphasis supplied).
It is plain, therefore, that the ALJ concluded that the ERA
whistleblower provision protects complainants only if they make
known an intention to take their complaints to a governmental
agency such as the NRC. This holding is directly contrary to the
Secretary of Labor's consistent position on this issue. Purely
internal complaints to management constitute activity protected
under the environmental statutes and the related employee
protection provision of the ERA. Passaic Valley Sewerage
Comm'rs v. Dept. of Labor, 992 F.2d 474, 478 (3d Cir. 1993);
Jones v. Tennessee Valley Authority, 948 F.2d 258, 264
(6th Cir. 1991); Kansas Gas & Elec. Co. v. Brock, 780
F.2d 1505, 1513 (10th Cir. 1985), cert.denied, 478 U.S.
1011 (1986); Mackowiak v. Univ. Nuclear Sys., Inc.,
735 F.2d 1159, 1163 (9th Cir. 1984).
The ALJ recognized (R.D. and 0. at 39 n.6) that the Fifth
Circuit Court of Appeals has held that internal complaints are
not protected under the ERA. SeeBrown & Root, Inc. v.
Donovan, 747 F.2d 1029, 1036 (1984). However, this case does
not arise in the Fifth Circuit, and the Secretary of Labor has
repeatedly and consistently declined to follow Brown &
Root. See, e.g., Mandreger v. the Detroit
Edison Co., Case No. 88-ERA-17, Sec. Dec. and Ord. March 30,
1994, slip op. at 13-14; Pillow v.Bechtel
Construction, Inc., Case No. 87-ERA-35, Sec. Dec. and Ord.,
July 19, 1993, slip op. at 11, pet. for review pending,
No. 94-5061 (11th Cir.). [11]
To the extent that the ALJ's conclusions of law are based
upon the erroneous assumption that purely internal safety
complaints are not protected under the EPA's whistleblower
provision, those conclusions are rejected.
C. The "Proximity" Issue.
The ALJ held that Carroll's termination, of which he was
notified on April 29, 1991, was too distant in time from his
alleged safety complaints to give rise to an inference that
Bechtel acted with discriminatory motive. R.D. and 0. at 43, 44.
The period of time which is at issue in this case is plainly
short enough to give rise to such an inference. Carroll and
others testified that Carroll expressed several of his concerns
beginning in early March 1991. See, e.g., T. 84-85
(Carroll). He was notified that he was being released from the
Backlog Project on April 10, and was notified that he was being
[PAGE 9]
terminated on April 29. Thus, a month or two passed between
Carroll's complaints and the termination notice.
Bechtel is a very large international company, with several
regional offices and a complex bureaucracy. It is well within
the realm of probability that it would take at least a month or
two for Bechtel management to effectuate a desire to rid itself
of an employee. Therefore, I reject the ALJ's conclusion that,
in the circumstances of this case, the passage of at most two
months between Carroll's complaints and his termination could not
give rise to an inference of discriminatory motive.
d. The Ultimate Burden of Persuasion.
In spite of the errors of law which I have dealt with above,
the ALJ reached the correct result: there is ample evidence
to support the conclusion that Carroll failed to prove by a
preponderance of the evidence that he was retaliated against by
Bechtel for engaging in activity protected by the ERA's
whistleblower provision. [12]
1. Alleged protected activity.
Carroll alleged that he engaged in the following protected
activity: (a) he complained about an alleged requirement that
engineers use standardized language in "management closures" of
EARs and PEARs; (b) he complained about his supervisor's
unauthorized revision of his written responses to two EARs; and
(c) he complained about his supervisor's alleged forgery of
Carroll's signature on one EAR. Carroll alleged that he
mentioned these complaints to colleagues and to Bechtel
supervisors, and that he told them that if the problems he was
concerned about were not corrected, he would report the matters
to the NRC. He also alleged that Bechtel management: (d) failed
to post an NRC Form 3 at the worksite, informing workers of their
rights; and (e) locked the EARs and PEARs files after Carroll
started making complaints. [13] I will deal with each
allegation in turn.
(a) Use of standardized language on "management closures."
Carroll testified that he was told to use standard language
in resolving the EARs and PEARs that he reviewed. T. 74.
Because Carroll believed that all of the EARs and PEARs that he
worked on involved safety issues, he thought it was improper to
close them using standardized language, and he allegedly
complained about the matter. T. 81-87. The ALJ found that:
In reducing a backlog of engineering requests, complainant
was to merely "document" a review of safety significance and
operability factors for the requests that had already gone
through two levels of priority review by the principal and
the contractor.
[PAGE 10]
* * * *
The requirement to use standard language in management
closures, or to utilize that manner of disposition for the
engineering requests, was not as compulsory as complainant
would make it appear. Certainly, nothing in all the EARs
and PEARS that complainant introduced shows this to have
been the case. More important, others testified in direct
contradiction to such a requirement.
R.D. and 0. at 40.
There is ample evidence in the record to support the ALJ's
conclusion that the standardized language that was provided to
Carroll by his supervisor was merely a template, a format within
which one could respond to EARs and PEARs. This format did not
dictate the outcome of Carroll's evaluation, and there was
significant evidence to support Bechtel's assertion that
engineers such as Carroll were free to stray from the format when
it was deemed appropriate. [14] Thus, Entergy's Barnes
testified that:
My understanding of what the so-called alleged standard
blur was, was really a one sentence response that identified
the document as a potential management closure, and the
engineers were then assigned to answer three questions which
basically documented the safety significance review and
operability review that was called for in the project plan.
There was no intent on my part to restrict the format, or to
reject one that was not in the standard format that is
alleged to exist.
* * * *
[All of the recommended management closures] had that
one sentence which said, you know, this document has been
submitted to the plant managers, according to the
engineering -- I can't remember the exact words -- but the
engineering Backlog Elimination Project plan, and their
concurrence has been received to close this document without
further action.
Then there was to be a documented safety evaluation,
which consisted of a text type answer to three specific
questions that were contained in the project plan.
Based upon the quality and the completeness of the
answer to that, those were approved or rejected.
T. 514-515 (Barnes). I agree with the ALJ that the
[PAGE 11]
standardization of responses was a procedural matter, and did not
affect safety. R.D. and 0- at 39.
Carroll testified that he complained about this practice to
Entergy manager Charlie Halbert (T. 83), to supervisors
Christiansen, and Crow (T. 84-85), to project manager Watson, and
engineering chief George Showers (T. 84-86). Halbert did not
testify. Crow testified that he did not remember Carroll
complaining about this issue. T. 539. Neither Christiansen nor
Showers were asked about this matter at hearing. Watson denied
knowing of any of Carroll's complaints until after Carroll filed
his NRC complaint on May 10, 1991. T. 893. Thus, no one other
than Carroll testified that he recalled Carroll's complaints on
this subject. I conclude that the weight of the evidence does
not support Carroll's allegation that he complained about the use
of standardized language on the EARs and PEARs.
(b) Christiansen's alteration of Carroll's EARs responses.
It is undisputed that Carroll complained to supervisors regarding
Christiansen's alteration of two of Carroll's responses to EARs
without Carroll's knowledge or approval. However, the evidence
is compelling, and the ALJ so found, that Christiansen's
supervisors took Carroll's concerns very seriously, ordered that
all EARs and PEARs responses on file be analyzed to determine if
there had been any unauthorized revisions by supervisors,
immediately counseled Christiansen never to make such
unauthorized changes again, and disciplined him. See T. 552-553,
567-569, 571-573 (Crow); T. 931-935 (Watson). Carroll's co-
worker, Barnhouse, testified that when he reviewed his EARs and
PEARs responses he found some revisions, but they were only minor
grammatical or typographical changes. T. 345-46. In any event,
there is no evidence that Bechtel management responded negatively
to Carroll's concern. Moreover, Bechtel's search of all EARS and
PEARs responses only turned up one other problematic response.
T. 933-935 (Watson). Thus the unauthorized revisions were
insignificant, were not related to safety issues, and were
addressed quickly and appropriately by Bechtel management. I
conclude that Carroll did not establish that his complaints about
the revisions motivated Bechtel to retaliate against him.
(c) The "tracing" or "forgery" of Carroll's signature.
It is also undisputed that Carroll complained about
Christiansen's "forgery" of Carroll's signature on an EAR
response. Bechtel officials immediately investigated Carroll's
complaint, and reported it to Entergy, which launched its own
investigation. The Entergy investigator concluded that the
tracing, if it occurred, was done for clarity (T. 693-94).
Christiansen denied tracing or forging Carroll's signature. More
[PAGE 12]
important, however, the EAR response on which Christiansen was
alleged to have forged Carroll's signature had nothing to do with
nuclear safety. T. 891 (Watson); CX-19. I conclude that
Carroll's complaint about the "tracing" or "forgery" of his
signature did not motivate Bechtel to retaliate against him.
(d) The alleged failure to post Form 3.
Carroll's allegation that NRC Form 3 was not posted at his
work place was contradicted by his own testimony (see T. 119) and
that of others. See, e.g., T. 463 (Guzman).
Moreover, Carroll did not show that he complained about this
safety matter to anyone. Therefore Bechtel could not have
retaliated against him for his alleged concern about the failure
to post NRC Form 3.
(e) The locking of files.
Carroll alleged that Bechtel locked the files in which the
EARs and PEARs documents were kept after Carroll raised his
concerns about unauthorized revision of the documents. It was
undisputed that, at some times, the files were locked.
See. e.g. T. 498 (Barnes); T. 345-348 (Barnhouse).
However, there is nothing in the record to support Carroll's
assumption that this was done for illegitimate purposes. Indeed,
Barnhouse testified that all one had to do to get access to the
files was to ask a clerk. T. 347. Moreover, Carroll did not
testify that he complained about the locked files to any Bechtel
official, or anyone else, so Bechtel could not have had that
concern as a motive for retaliation. [15]
2. Alleged acts of retaliation.
Carroll alleged that his actions led Bechtel to retaliate
against him by: (a) releasing him from the Backlog Project; (b)
discriminatorily refusing to place him on "holding status" after
his release from the Backlog Project; [16] and (c)
discriminatorily failing to place him on another Bechtel project
and instead terminating him. I agree with the ALJ that the
evidence is quite convincing that Carroll was released from the
Backlog Project for a combination of valid business reasons that
had nothing to do with any complaints he might have made
regarding safety.
(a) Carroll's release.
It is undisputed that Bechtel had been told to reduce the
number of mechanical engineers in EST by two. It is also
undisputed that Bechtel had a policy of attempting to retain its
most talented, skilled engineers whenever it was faced with the
need to reduce the number of personnel on a project. RX-10 at 3,
6-11. There is also uncontradicted testimony by Watson that he
wanted to retain the people with "the highest skill levels"
within his department. T. 910. Therefore, it was reasonable for
Watson to suggest that the heads of the two projects decide
[PAGE 13]
between them which two engineers should be released. See
T. 909-910 (Watson).
There is significant evidence to support Bechtel's assertion
that among Antle, Guzman, Rourk, and Carroll, Antle and Guzman
were viewed by Bechtel managers as the more "highly skilled"
mechanical engineers. The most telling evidence in support of
this conclusion is that in previous reductions in the number of
mechanical engineers in EST, occurring in late December 1990 and
early January 1991, Carroll and Rourk were released and Antle and
Guzman were not. T. 644-645, 654-657, 667-699 (Drasler); CX-
8.[17] Therefore as early as January 1991, before Carroll had
made any alleged safety complaints, Bechtel managers considered
him less qualified than either Guzman or Antle. The actions of
Bechtel's managers in April 1991 were completely consistent with
their actions in December 1990 and January 1991. This
uncontroverted evidence therefore carries a great deal of
persuasive weight. I conclude that Carroll has failed to
demonstrate that retaliation motivated Bechtel's decision to
release him from the Backlog Project.
(b) The failure to place Carroll on "holding status."
Carroll alleged below that Bechtel discriminatorily failed
to place him on "holding status" while a new position was sought
for him in the Bechtel organization. The evidence does not
support this allegation. Bechtel does have a policy allowing
senior managers, with concurrence of the regional manager, to
place a released employee on "holding status" for up to three
months:
Holding Status - a non-pay status which may be
offered to employees awaiting reassignment following
completion of a field or international assignment or to key
office employees in lieu of layoff.
Eligibility
All employees, regardless of grade/classification, are
eligible for holding status.
Field & International Employees
- satisfactorily completed a field or international
assignment
- recommended for continued employment
- while awaiting reassignment
- demonstrated good performance and who may be subject
to layoff
RX-10 at 3. However, it is uncontroverted that George Showers had
not, in his short tenure as mechanical engineering chief in the
Houston region, placed any employee on holding status. Showers
also testified that he was told not to place anyone on holding
[PAGE 14]
status who had been "ranked" in the bottom third of his or her
grade. T. 868. [18] Most significant, he did not place on
holding status any of the other mechanical engineers who were
released and ultimately terminated around the time that Carroll
was terminated. T. 853-854.
(c) The failure to place Carroll in another position.
Carroll also asserted that Bechtel engaged in a sham attempt to
place him in another engineering position during the month
between his release and his termination. However, as the ALJ
describes, Bechtel's efforts in this regard were substantial.
R.D. and 0. at 26-27. It thus appears clear from the record as a
whole that Carroll was terminated because of a general decline in
work for Bechtel mechanical engineers during the spring of 1991.
There was ample testimony that many other people faced the same
fate as Carroll, and that those engineers who were placed in
other Bechtel projects had greater or more appropriate skills for
the positions that were available. See R.D. and 0. at 28-29.
CONCLUSION
I conclude that the ALJ correctly found that the weight of the
evidence supported the conclusion that Carroll was not retaliated
against because of any alleged safety-related complaints made by
him. For the forgoing reasons this case is dismissed.
SO ORDERED
ROBERT B. REICH
Secretary of Labor
Washington, D.C.
[ENDNOTES]
[1] The amendments to the ERA contained in the National Energy
Policy Act of 1992, Pub. L. No. 102-486, 106 Stat. 2776 (Oct. 24,
1992), do not apply to this case in which the complaint was filed
prior to the effective date of the Act. For simplicity's sake I
will continue to refer to the provision as codified in 1988.
[2] The Entergy-Bechtel contract governing EST provided that
Entergy determined the staffing level for the project. T-901-04
(Watson, T-797-98 (Nugent); Respondent's Exhibit ("RX-") 16 at 4.
[3] "Release" is a term of art at Bechtel. Engineers at
Bechtel are assigned for administrative purposes to different
regional offices, which are responsible for making staff
available to Bechtel projects within their respective regions.
R.D. and 0. at 2, 25; T. 828 (Showers). A Bechtel engineer who
is assigned to a project retains his regional office as a sort of
home base. R.D. and 0. at 2. When an engineer is "released" from
a project his regional office is notified, and his "chief
engineer" in the regional office is in charge of attempting to
find another assignment for the engineer, either within his
region, or in other regions throughout the country. Carroll's
regional office was Houston, and his chief engineer was George
Showers. R.D. and O. at 2, 25-26.
[4] Responses to EARS and PEARS fell into two categories. If
the reviewing engineer thought that the EAR or PEAR requested
something that was safety or quality related, he would consult
with his supervisor and recommend that design or other changes be
initiated. T. 472-473 (Barnes); T. 334-352 (Barnhouse). Those
EARS and PEARS were not subject to "management closure." On the
other hand, if the engineer evaluated the EAR or PEAR and
determined that no safety or quality issue existed, and there was
no other reason to take action on the request, he would handle it
as a "management closure." Management closure recommendations as
well as all other responses to EARS and PEARS were reviewed
within Bechtel. Entergy would then decide whether it agreed or
disagreed with the recommendation. T. 350 (Barnes).
[5] Carroll contended that he first received notice of his
release on April 17, 1991. The ALJ credited other testimony to
the effect that he was given notice of his release on April 10.
R.D. and 0. at 33.
[6] The ALJ also misstates the dual motive analysis when he asks
whether respondent was "substantially motivated in part."
SeePrice Waterhouse v. Hopkins, 490 U.S. 228, 250
(1989).
[7] The employer's burden in a "dual motive" case is thus
handled much like an "affirmative defense: the plaintiff must
persuade the fact finder on one point, and then the employer, if
it wishes to prevail, must persuade it on another." Price
Waterhouse v. Hopkins, 490 U.S. at 246.
[8] The ALJ refers to this showing as one which must be made "by
a preponderance of the evidence." See R.D. and 0. at 41.
That is not the case. At the moment when a complainant has just
presented his primafacie case there is no other
evidence over which to preponderate. To survive a motion for
directed verdict at the end of his case the complainant need only
present sufficient evidence to create a rebuttable presumption
that he was unlawfully discriminated against. See USPS Bd. of
Governors v. Aikens, 460 U.S. 711, 714 (1983); Texas
Department of Community Affairs v. Burdine, 450 U.S. at 254.
[9] Neither is this inquiry an economical use of adjudicative
resources. Logic dictates that once all of the evidence is in,
whether a complainant presented a primafacie case
is unnecessary to the ultimate outcome: If a complainant has not
prevailed by a preponderance of the evidence on the ultimate
question of liability it matters not at ail whether he presented
a primafacie case. On the other hand if the
complainant has prevailed on the ultimate question of liability,
a fortiori he presented a primafacie case. In
either case the question of real concern is whether the
complainant proved by a preponderance of the evidence that he was
retaliated against for engaging in protected activity.
[10] In Aikens the Supreme Court reviewed a case
which, like this one, had fully litigated:
Because this case was fully tried on the merits, it is
surprising to find the parties and the Court of Appeals
still addressing the question whether Aikens made out a
prima facie case. We think that by framing the issue in
these terms, they have unnecessarily evaded the ultimate
question of discrimination vel non.
460 U.S. at 713-714. The Court held that the district court,
among other things, "[e]rroneously focused on the question of
prima facie case rather than directly on the question of
discrimination." 460 U.S. at 717.
[11] Subsequent to the Brown & Root decision, but
also after this case was brought, Congress amended the
whistleblower provision of the EPA so that internal complaints
are explicitly protected. 42 U.S.C. § 5851 (a)(1)(A), (1988
and Supp. IV 1992), Pub. L. No. 102-486, 106 Stat. 2776.
[12] It is arguable that the proper course in this case
would be to remand it to the ALJ for an application of the facts
to the correct legal standards. However, I conclude that
although the ALJ's legal errors are significant, and warrant my
discussion, those errors did not so invade his fact-finding that
I must reject the entire decision. Applying the facts, either
uncontroverted or as found by the ALJ, to the correct legal
principles leads to the inescapable conclusion that Bechtel did
not retaliate against Carroll for making safety related
complaints.
[13] As I discuss below, Carroll did not allege that he
conveyed either of these concerns to his supervisors.
[14] One of Carroll's co-workers testified that he was not
required to use the standard format. T. 334, 336-337
(Barnhouse).
[15] It is possible that Carroll was arguing that the
locking of the files was retaliatory action. If that is the
case, such an allegation is not supported by any testimony that
the locking of the files adversely affected Carroll's ability to
do his job, or affected Carroll's work any more than other
engineers.
[16] "Holding status" is a mechanism whereby Bechtel retains
an engineer released from a project on its books for a short
period of time pending reassignment. See discussion
below.
[17] Carroll and Rourk were then transferred to the Backlog
Project because of vacancies existing in that program.
[18] Rankings consisted of regional lists of engineers in
each grade. In the most recent ranking that Carroll had been
subjected to he was ranked 27 out of 31 mechanical engineers in
his grade. R.D. and 0. at 28; T. 829 (Showers). Thus, he was
well within the bottom third of his ranking.
