DATE: July 14, 1995
CASE NO. 93-ERA-42
IN THE MATTER OF
CHARLES A. WEBB,
COMPLAINANT,
v.
CAROLINA POWER & LIGHT COMPANY,
RESPONDENT.[1]
BEFORE: THE SECRETARY OF LABOR
DECISION AND REMAND ORDER
In this case arising under the Energy Reorganization Act of
1974, as amended (ERA), 42 U.S.C. § 5851 (1988 and Supp. IV
1992), the Administrative Law Judge (ALJ) granted Respondent
Carolina Power & Light Company's (CP&L) motion for summary
decision and recommended dismissal of the complaint. I find that
there are genuine issues of material fact and remand the
complaint to the ALJ for further proceedings, including a
hearing. FACTUAL BACKGROUND[2]
CP&L had contractual arrangements with several firms to
recommend personnel, including engineers, for hire as temporary
contract workers. CP&L operates the Brunswick nuclear power
plant in South Carolina.
Although he does not have an academic degree in engineering,
Webb worked as a contract engineer in the nuclear industry for
more than 20 years. He worked for CP&L almost continuously from
April 1986 until November 1991, when he was laid off as the
project on which he was working at the Brunswick plant was
completed. Webb does not complain that his layoff was
[PAGE 2]
discriminatory. Rather, he alleges that CP&L has blacklisted him
from being rehired as a nuclear engineer.
The Brunswick plant was shut down in April 1992 because of
safety problems. Through media reports, Webb believed that CP&L
was misleading the Nuclear Regulatory Commission (NRC) with
regard to the time at which CP&L learned of the safety problems
that led to the shutdown. Webb telephoned the NRC in late April
of that year to report his impressions and subsequently made
safety related allegations concerning CP&L. Webb asked the NRC
to keep his contacts confidential and told only his wife about
his cooperation with the NRC. The NRC inspected the Brunswick
plant concerning the issues Webb raised. After his layoff, Webb actively sought work in the nuclear
industry through his own efforts and through "job shops" that
provide employers with resumes of contract workers. The ALJ
described Webb's job search as "relentless." Recommended
Decision and Order (R. D. and O.) at 3. Aware that those who
reported safety problems to the NRC sometimes experienced
difficulty obtaining employment in the nuclear industry, Webb
began keeping a journal concerning his job search.
In May 1992, Webb authorized Quantum, a job shop, to submit
his resume to CP&L for a position as a civil/structural engineer,
the same position Webb last had held at CP&L. The next month,
Webb telephoned a CP&L supervisor, J.E. Harrell, and asked why he
had not been rehired. Harrell said that there was no reason why
Webb could not return and asked Webb to have his resume submitted
again. However, in July, Quantum notified Webb that CP&L would
consider only engineers with college degrees for the position.
The same month, Webb authorized Quantum to submit his resume
for CP&L field engineer positions, which did not require an
engineering degree. Quantum notified him that his resume was
submitted for such positions, but he never heard whether he was
selected. Quantum learned in October 1992 that CP&L had canceled
the job order.
Webb also submitted his resume to friends working at CP&L
for their aid in securing a position. In November 1992, Webb
learned that his former supervisor, Richard Tripp, was making
negative statements about the quality of his work to other CP&L
personnel who had hiring authority. About four months later,
Webb learned from the NRC about an employer "fingerprinting," or
figuring out the identify of, an employee who made a safety
complaint to that agency.
Webb filed this complaint on April 5, 1993. At the time
CP&L filed the motion for summary decision, Webb still had not
secured an engineering position, either with CP&L or elsewhere in
the nuclear industry.
MOTION FOR SUMMARY DECISION
[PAGE 3]
Webb alleged that CP&L blacklisted him from employment in
retaliation for his reports to, and cooperation with, the NRC.
After the close of discovery, CP&L moved for summary decision on
the ground that Webb's complaint was untimely filed. CP&L also
contended that it was entitled to judgment as a matter of law on
the merits of the complaint because "complainant cannot establish
that CP&L had knowledge of [Webb's] protected activity. . . and
cannot establish a prima facie case." Memorandum in
Support of CP&L Motion for Summary Decision ("CP&L Mem.") at 16.
DISCUSSION
A motion for summary decision in an ERA case is governed by
29 C.F.R. § 18.40 and 18.41. See, e.g.,Trieber
v. Tennessee Valley Authority, et al., Case No. 87-ERA-25,
Sec. Dec. and Ord., Sept. 9, 1993, slip op. at 7-8. A party
opposing a motion for summary decision "must set forth specific
facts showing that there is a genuine issue of fact for the
hearing." 18 C.F.R.
§ 18.40(c).
Under the analogous Fed. R. Civ. P. 56(e), the non-moving
party "may not rest upon mere allegations or denials of his
pleading, but must set forth specific facts showing that there is
a genuine issue for trial . . . . Instead, the [party opposing
summary judgment] must present affirmative evidence in order to
defeat a properly supported motion for summary judgment."
Anderson v. Liberty Lobby, 477 U.S. 242, 256-257 (1986).
See also, Celotex Corp. v. Catrett, 477 U.S. 317 (1986)
and Carteret Sav. Bank, P.A. v. Compton, Luther & Sons,
Inc., 899 F.2d 340, 344 (4th Cir. 1990). The non-moving
party's evidence, if accepted as true, must support a rational
inference that the substantive evidentiary burden of proof could
be met. Bryant v. Ebasco Services, Inc., Case No. 88-ERA-
31, Dec. and Order of Rem., July 9, 1990, slip op. at 4, citing
Liberty Lobby, 477 U.S. at 247-252. "[W]here the non-
moving party presents admissible direct evidence, such as through
affidavits, answers to interrogatories, or depositions, the judge
must accept the truth
of the evidence set forth; no credibility or plausibility
determination is permissible." Dewey v. Western Minerals,
Inc., No. 90-35252, 1991 U.S. App. LEXIS 1399 (9th
Cir. Jan. 29, 1991), citing T.W. Elec. Serv. v. Pacific Elec.
Contractor, 809 F.2d 626, 631 (9th Cir. 1987).
On the other hand, if the non-movant "fails to make a
showing sufficient to establish the existence of an element
essential to that party's case, and on which that party will bear
the burden of proof at trial," there is no genuine issue of
material fact and the movant is entitled to summary judgment.
Celotex, 477 U.S. at 322-323.
Timeliness
CP&L contends that Webb's complaint was untimely under
[PAGE 4]
either the 30-day filing limitation of ERA Section 210, or the
180-day limitation of Section 211. CP&L Mem. at 13. Section
2902 of the Comprehensive National Energy Policy Act of 1992
(CNEPA), enacted on October 24, 1992, amended ERA Section 210 by,
inter alia, enlarging the time for filing a complaint to
180 days and renumbering Section 210 as Section 211. Pub. L. No.
102-486, 106 Stat. 2776 (Oct. 24, 1992).
CP&L argues that "[t]he undisputed facts indicate that there
was no position filled by CP&L after June 15, 1992, for which
Webb applied." CP&L Mem. at 14. The company argues that Webb
knew by September 1992, at the latest, that he was not selected
for engineering positions for which his resume had been
submitted. The April 5 complaint was filed more than 180 days
later.
At the outset, I find that the 180-day limitation applies.
Subsection 2902(i) of the CNEPA provides:
The amendments made by this section shall apply to
claims filed under section 211(b) of the Energy
Reorganization Act of 1974 (42 U.S.C. 5851(b)(1)) on or
after the date of the enactment of this Act.
This complaint was filed in April 1993, well after the date of
the CNEPA's enactment. See Yule v. Burns Int'l Security
Service, Case No. 93-ERA-12, Final Dec. and Order, May 24,
1995, slip op. at 4.
Webb argues that the complaint was timely under the
continuing violation theory because there were alleged incidents
of discrimination that occurred within the 180 day limitation
period. Webb Br. at 8. The Secretary has held that the
timeliness of an ERA complaint may be preserved under the
continuing violation theory "where there is an allegation of a
course of related discriminatory conduct and the charge is filed
within [one hundred and eighty] days of the last discriminatory
act."[3] Thomas v. Arizona Public Service Co., Case No.
89-ERA-19, Final Dec. and Order, Sept. 17, 1993, slip op. at 13;
Garn v. Benchmark Technologies, Case No. 88-ERA-21, Dec.
and Order of Rem., Sept. 25, 1990, slip op. at 6. The continuing
violation theory particularly applies to complaints of
blacklisting because "there may be considerable lapse of time
before a blacklisted employee has any basis for believing he is
the subject of discrimination." Egenrieder v. Metropolitan
Edison Co., Case No. 85-ERA-23, Order of Remand, Apr. 20,
1987, slip op. at 8.
Webb contends that he filed the complaint within 180 days of
learning that Tripp told other CP&L managers that he would not
rehire Webb. Complainant's Reply to CP&L Motion for Summary
Decision (Comp. Reply) at 8; Webb Affidavit (Aff.) at p. 7 Par.
20. Webb also contends the complaint is timely because he has
[PAGE 5]
never received notice of CP&L's decision not to hire him for field engineering positions for which his resume was submitted.
Comp. Reply at 9; Webb Aff. at 6, Par. 15 and 16.
According to Webb, Tripp told other CP&L managers that he
would not rehire Webb because of poor performance. Webb. Aff. at
7-8, ¶ 20. But Tripp stated under oath that he did not
communicate to anyone his decision that he would not rehire Webb.
Tripp Dep., Vol. I at p. 91. I find that there is a disputed
issue of fact concerning the alleged incident of blacklisting
that occurred within the 180 day limitation period. I further
find that the matter is material to the timeliness issue because
a former supervisor's statement that he would not rehire a worker
may be an instance of blacklisting. See Beckett v. Prudential
Ins. Co. of America, No. 94-CV-8305 (SAS), 1995 U.S. Dist.
LEXIS 6513 (S.D. N.Y. May 15, 1995) ("Poor recommendations . . .
may be discriminatory practices if done in direct retaliation for
a former employee's opposition to an unlawful employment
practice."); compare Smith v. Continental Ins. Corp., 747
F.Supp. 275, 281 (D. N.J. 1990), aff'd, 941 F.2d 1203 (3d
Cir. 1991) (rejecting claim of blacklisting where plaintiff
admitted she was unaware of any negative verbal or written job
references to prospective employers).
In addition, there is a disputed issue concerning the time
at which Webb knew, or should have known, that he was not
selected for a field engineer position. Quantum employee Sharon
George told Webb that she submitted his resume for field engineer
positions with CP&L, and he never received word about the
positions. Webb Aff. at 6, ¶ 15 and 16. George testified
that she submitted Webb's resume on June 15, 1992 for a non-
degreed field engineer position and she learned on October 20,
1992 that the job order was canceled. George Dep. at 34-42.
Webb filed the compliant within 180 days of October 20, 1992.
Therefore, the complaint would be timely unless Webb knew, or
should have known, prior to October 12, 1992, the he was not
selected for a field engineer position.[4] This is a question
of fact not appropriate for determination pursuant to a motion
for summary judgment.
Merits
The ALJ also granted summary judgment on the merits of
the complaint. If, on remand, the ALJ finds that the complaint
was timely filed, the issue of the summary decision on the merits
will become relevant. Therefore I will consider the propriety of
granting summary judgment on that ground.
The ALJ found fault because the Complainant did not
establish that there exists "some document or other form of
communication indicating that Webb should be denied employment,
which CP&L has distributed to its hiring personnel or other
[PAGE 6]
employers in the nuclear industry." R.d. and O. at 7. However,
Webb presented evidence that Tripp told other CP&L hiring
personnel that he would not rehire Webb. Such a verbal statement
made to hiring personnel can constitute blacklisting; no document
or written list is required. See, e.g., Holden v. Gulf States
Utilities, Case No. 92-ERA-44, Dec. and Remand Order, Apr.
14, 1995, slip op. at 3, 13 n.8 (remanding for a hearing on,
inter alia, whether verbal statements providing "bad
information" about the complainant to prospective employers
constituted blacklisting). I find there is no basis for granting
summary decision because the alleged blacklisting consists of
verbal statements.
An element of a prima facie case is establishing that
the Complainant engaged in protected activities of which the
Respondent was aware. Carroll v. Bechtel Power Corp.,
Case No. 91-ERA-0046, Final Dec. and Order, Feb. 15, 1995, slip
op. at 11-12, petition for review docketed, No. 95-1729
(8th Cir. Mar. 27, 1995). The ALJ found that there was no
genuine issue of material fact and that the relevant CP&L
personnel were unaware that Webb made safety related reports to
the NRC. R. D. and O. at 11. CP&L supported its motion with
affidavits of the relevant personnel stating that they did not
know that Webb had communicated with the NRC.
A complainant may make the required showing of a
respondent's knowledge "either by direct or by circumstantial
evidence." Samodurov v. General Physics Corp., Case No.
89-ERA-20, Sec. Dec. and Order, Nov. 16, 1993, slip op. at 11.
The ALJ found, however, that Webb's allegation that CP&L had
knowledge of his protected activities was "based on assumptions
and speculations." R.D. and O. at 11. I disagree.
The testimony in depositions and affidavits demonstrates
that the attitudes of Webb's former supervisors changed shortly
after Webb provided information to the NRC. Based on their prior
observation of Webb's work, Harrell and Tripp agreed to hire Webb
in August 1991 for the final outage he worked at Brunswick.
Tripp Dep. at 1-52. In his affidavit, which must be accepted as
true, Webb stated that Tripp told him in November 1991 that
"there was no problem in [Webb's] returning for future outages."
Webb Aff. at 3, Par. 8. Moreover, in June 1992, Harrell told
Webb "that there was no reason why [he] could not return to
work." Id.
Only one month later, in July 1992, Harrell stated that
the lack of an engineering degree meant that Webb would not be
rehired. Harrell Dep. at 40-41. And, contrary to Webb's
affidavit, Tripp testified that he did not wish to rehire Webb.
Tripp Dep. at 57, 91. Both Harrell and Tripp acknowledged that
there were rumors at the plant about who might have contacted the
[PAGE 7]
NRC, although no one identified Webb as the focus of those
rumors. Harrell Dep. at 62-63. In any event, soon after the NRC
inspection, Harrell and Tripp reversed their positions on
rehiring Webb.
One of CP&L's asserted reasons for not rehiring Webb is that
he lacks an engineering degree. But the deposition testimony
revealed that there was no company policy requiring engineers to
have degrees because many of CP&L's field engineers did not have
a degree. Harrell Dep. at 50 and Tripp Dep. at 67.
In Trieber, slip op. at 11, I approved the grant of
summary decision to the respondent because the complainant
submitted neither direct, circumstantial, nor inferential
evidence of blacklisting. In contrast, Webb submitted an
affidavit directly contradicting statements in the affidavits
submitted by CP&L. In addition, there is circumstantial evidence
indicating a suspicious change in position about rehiring Webb.
On the basis of the affidavits and depositions submitted in
support of and in opposition to the motion, I find that there is
a genuine issue of material fact concerning whether personnel,
who were in a position to rehire Webb, either knew or suspected
that he had reported safety concerns to the NRC.
There is no dispute that Webb engaged in protected
activities when he contacted the NRC. The proximity in time
between Webb's report to the NRC (April 1992) and the alleged
incidents of blacklisting (from May through the autumn of 1992)
is sufficient to raise the inference that his protected
activities motivated the decision not to rehire him.
Therefore, I will remand the complaint to the ALJ for
further proceedings, including a hearing on the merits and a
recommended decision.
CONCLUSION
The motion for summary decision is DENIED. The complaint is
REMANDED to the ALJ for further proceedings consistent with this
decision.
SO ORDERED.
ROBERT B. REICH
Secretary of Labor
Washington, D.C.
[ENDNOTES]
[1] Webb also named Quantum Resources, Inc. (Quantum) as a
respondent. I earlier approved the settlement agreement between
Webb and Quantum and dismissed the complaint against Quantum.
Webb v. Quantum Resources, Inc., Case No. 93-ERA-42A,
Sec. Order, June 29, 1994.
[2]
I expressly make no findings of fact, but rather set forth
Webb's allegations.
[3]
Thomas was decided under ERA Action 210, which had a
thirty day limitation period. The statement is equally true for
cases under the 180 day limitation period of Section 211.
[4] October 12, 1992 is the one hundred eightieth day prior to
the date Webb filed the complaint.
