DATE: September 7, 1995
CASE NO. 93-ERA-0023
IN THE MATTER OF
THOMAS J. SAPORITO, JR.,
COMPLAINANT,
v.
FLORIDA POWER & LIGHT COMPANY,
RESPONDENT.
BEFORE: THE SECRETARY OF LABOR
FINAL DECISION AND ORDER
Complainant, Thomas Saporito, alleges that Respondent,
Florida Power & Light Company (Florida Power), violated the
employee protection provision of the Energy Reorganization Act of
1974 (ERA), 42 U.S.C. § 5851 (1988) and 42 U.S.C.A. §
5851 (West 1994)[1] , by blacklisting him with a subsequent
employer. In a Recommended Decision and Order (R. D. and O.),
the Administrative Law Judge (ALJ) recommended dismissal of the
complaint on the ground that Saporito did not establish a
prima facie case of an ERA violation. The ALJ's findings
of fact, R. D. and O. at 3-8, are well 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 complaint.
DISCUSSION
Procedural Fairness
Saporito seeks an order remanding this case for a new
hearing on the ground that the ALJ did not permit him sufficient
time to retain an attorney or to engage in discovery.
Complainant's Brief on Exceptions at 4-15; Complainant's Reply
Brief. When Saporito did not appear at the first hearing in this
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case, scheduled for March 18, 1993, the ALJ issued a show cause
order. After receiving a response, the ALJ rescheduled the
hearing for six months later, in September, 1993. Saporito
admits that the first time he sought to retain counsel was about
three weeks prior to the September hearing. The ALJ was well
within his discretion in finding that Saporito had not made a
sufficient effort to retain counsel and that there was no
assurance that he would succeed in obtaining counsel. Moreover,
I agree with the ALJ that considering his pro se status,
Saporito adequately represented himself in this case. T. 17.
Saporito had more than six months in which to conduct
discovery and fully availed himself of that opportunity. Acting
pro se, Saporito propounded three sets of discovery
requests. Florida Power provided expedited responses to
Saporito's First Set of Interrogatories and Request for Documents
in March, 1993. In June of that year, Florida Power responded to
Saporito's Second Set of Interrogatories and Request for
Documents. One month later, Florida Power served responses to
Complainant's Third Set of Interrogatories and Request for
Documents, and to his Request for Admissions.
Saporito argues that he was entitled to a continuance in
August 1993 because he lacked the funds to conduct further
discovery. He also sought the requested continuance because the
Nuclear Regulatory Commission (NRC) was investigating the same
allegations raised in this complaint and that investigation might
provide him with evidence of blacklisting. Complainant's Brief
on Exceptions at 12-13. The ALJ denied the request because there
was no documentary evidence showing that the NRC was conducting
such an investigation. The ALJ further found that there was no
indication that Saporito's economic condition would change to
permit him to engage in further discovery. August 24, 1993 Order
Denying Motion for Continuance and August 27, 1993 Order on
Motion for Reconsideration. At the same time, the ALJ denied
Florida Power's motion for summary decision. August 24, 1993
Order at 1.
In view of the extensive discovery in which Saporito already
had engaged and the reasons articulated by the ALJ, I find that
the ALJ did not abuse his discretion in denying a continuance for
the purpose of permitting further discovery. The Merits
In a case such as this, in which Florida Power introduced
evidence to rebut a prima facie case of a violation of the
employee protection provision, it is unnecessary to examine the
question of whether Saporito established a prima facie
case. See Carroll v. Bechtel Power Corp., Case No. 91-
ERA-0046, Final Dec. and Order, Feb. 15, 1995, slip op. at 11 and
n.9, petition for review docketed, No. 95-1729 (8th Cir.
Mar. 27, 1995). The
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question to be examined is whether Saporito carried his ultimate
burden to prove by a preponderance of the evidence that he was
blacklisted by Florida Power for engaging in protected
activity.[2]
It is undisputed that Saporito was a whistleblower when he
worked for Florida Power in the 1980's, that Florida Power
discharged him, and that he later obtained a position at an
Arizona Public Service Company (APSC) nuclear plant. In
addition, the evidence shows that an unidentified caller, who
said he was from Florida Power, telephoned APSC's Vice President
for Nuclear Operations and stated that Saporito was working
there. It is also undisputed that Saporito engaged in protected
activities while he was employed at APSC.
Saporito ceased working for APSC at the end of the outage
for which he had been hired, and was not selected to work on the
next outage. Saporito prevailed in his ERA complaint against
APSC for failure to hire him for the second outage. See
CX 3 at 71, Par. 354 (ALJ found case for discrimination
"overwhelming"). The parties ultimately settled the case against
APSC. SeeSaporito v. Arizona Public Service Company
and The Atlantic Group, Inc., Case Nos. 92-ERA-30, 93-ERA-26,
93-ERA-45, and 94-ERA-29, Sec. Order Approving Settlements and
Dismissing Cases, June 19, 1995 and June 26, 1995 Erratum.
What is lacking in this case is any evidence that Florida
Power should be held responsible for blacklisting because of the
telephone call to APSC. There is no evidence of the actual
identity of the caller. T. 128-129. Moreover, Saporito has
admitted that there is no evidence that the caller stated that
Saporito had been a whistleblower, mentioned why Saporito left
Florida Power, or stated or implied that Arizona Power should do
anything to Saporito. T. 128.
Even if the call stating that Saporito was employed at
Arizona Power is deemed to be a type of blacklisting, I agree
with the ALJ that there is not sufficient evidence to find that
the person who made the telephone call was an official or even an
employee of Florida Power. Saporito introduced extensive
evidence showing media coverage of his protected activities while
employed by Florida Power. CX 1. An informed member of the
general public could have made the telephone call to Arizona
Power. I therefore agree that Florida Power cannot be held accountable for a telephone call that could have been made by
anyone familiar with Saporito and his well publicized protected
activities.
CONCLUSION
I find that Saporito did not establish by a preponderance of
the evidence that Florida Power engaged in blacklisting in
violation of the ERA.
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SO ORDERED.
ROBERT B. REICH
Secretary of Labor
Washington, D.C
[ENDNOTES]
[1] Section 2902 of the Comprehensive National Energy Policy
Act of 1992, Pub. L. No.102-486, 106 Stat. 2776, amended the ERA
for claims filed on or after the date of its enactment, October
24, 1992. See Section 2902(i) of Pub. L. No. 102-486. Saporito
states that he filed the complaints in this case on October 21,
1992 (a pre-amendment complaint) and on October 29, 1992 (a post-
amendment complaint). See Complainant's Reply Brief at 2.
The record contains the earlier complaint, but not the later one.
[2] Whether this is a pre-amendment or post 1992 amendment
complaint (see n.1 above), the Complainant's ultimate
burden of proof is the same. Dysert v. Florida Power
Corp., Case No. 93-ERA-21, Final Dec. and Order, Aug. 7,
1995, slip op. at 5-6.
