Office of Administrative Law Judges 800 K St., NW Suite 400 N
Washington, DC 20001
DATE: July 13, 2000
CASE NO.: 2000-ERA-4
In the Matter of
ROBERT E. NIEDZIELSKI
Complaint
v.
BALTIMORE GAS & ELECTRIC COMPANY
Respondent
Appearances: Mr. George E. Golomb, Attorney
For the Complainant
Mr. Mark T. Hackman, Attorney
For the Respondent
Before: Richard T. Stansell-Gamm
Administrative Law Judge
RECOMMENDED DECISION AND ORDER
This case arises under the employee protection provision of the Energy Reorganization Act of 1974, as amended ("ERA" and "Act"), Section 211, 42 U.S.C. 5851 as
implemented by 29 C.F.R. Part 24 (effective date - March 11, 1998; see 63 Federal Register 6614,
February 9, 1998). This statutory provision prohibits an employer from discharging or otherwise
discriminating against any employee with respect to compensation, terms, conditions, or privileges of
employment because the employee engaged in activities to carry out the purposes of the statute. The
complainant, Mr. Robert E. Niedzielski, has filed a complaint alleging diverse acts of adverse actions
by the respondent, Baltimore Gas & Electric Company ("BG&E") in retaliation for his
alleged protected activity under the ERA statute. The proceeding in this case was conducted in
accordance with the provisions of 29 C.F.R. Part 24.
[Page 2]
Procedural Background
On August 27, 1999, Mr. Robert Niedzielski, through his counsel, Mr. George
Golomb, filed a discrimination complaint with the Occupational Safety and Health Administration,
U.S. Department of Labor ("OSHA"). Mr. Niedzielski alleged his employer, BG&E had
discriminated against him because: a) he complained to his supervisors that BG&E did not assign
sufficient personnel to create a Nuclear Regulatory Commission ("NRC") license operator
examination; and, b) he expressed nuclear safety concerns regarding the test. The adverse actions
included an adverse job appraisal, a salary reduction, and a pay reclassification. On November 17,
1999, OSHA informed Mr. Niedzielski that it could not substantiate his discrimination complaint
because BG&E established a legitimate reason for the adverse actions and Mr. Niedzielski was unable
to link his protected activity with the adverse action. In response, Mr. Niedzielski on November 26,
1999 requested a hearing with the Office of Administrative Law Judges.
In an ERA whistle blower case the complainant has an initial burden of proof to make a
prima facie case by showing (1) the complainant engaged in a protected activity; (2) the
respondent knew the employee engaged in the protected activity; (3) the complainant suffered an
unfavorable personnel action; and, (4) circumstances are sufficient to raise the inference that the
protected activity was likely a contributing factor in the unfavorable action. 29 C.F.R. §24.5
(b) (2) (i) to (iv) and Zinn v. University of Missouri, 93-ERA-34 and 36 (Sec'y Jan. 18,
1996).
[Page 32]
Respondent's Burden to Produce Evidence
If the complainant presents a prima facie case showing that protected activity was
likely a contributing factor in the unfavorable personnel action (an illegitimate motive caused the
personnel action), the respondent then has an opportunity to demonstrate by clear and convincing
evidence that it would have taken the same unfavorable personnel action in the absence of the
protected activity. 29 C.F.R. §24.5 (c) (1). In other words, the respondent may avoid liability
due to the establishment of a prima facie case by producing sufficient evidence that clearly
and convincingly shows a legitimate purpose or motive for the personnel action. See Yule v.
Burns International Security Service, 93-ERA-12 (Sec'y May 24, 1995). Although there is no
precise definition of "clear and convincing," that evidentiary standard falls between
preponderance of the evidence and beyond a reasonable doubt. Yule at page 4.
Complainant's Ultimate Burden of Persuasion
If the respondent successfully produces clear and convincing evidence, a legitimate
motive for the personnel action, then the focus returns to the complainant's ultimate burden of proof
to demonstrate that the respondent's stated legitimate reason is pretext. In reviewing the numerous
cases on the shifting burden of production and the ultimate burden of proof, the United States Court
of Appeals for the Eight Circuit in Carroll v. USDOL, 78 F. 3d 352, 356 (8th Cir. 1996) (case
below Carroll v. Bechtel Power Corp., 91-ERA 46 (Sec'y February 15, 1995)) observed:
But once the employer meets this burden of production, "the presumption raised
by the prima facie case is rebutted, and the factual inquiry proceeds to a new level of
specificity." Texas Dept. of Community Affairs v. Burdine, 450 U.S.
248, 255 (1981) (applying McDonnell Douglas test) (footnote omitted); see
also St. Mary's Honor Center v. Hicks, 113 S. Ct. 2742, 2747 (1993) (applying
McDonnell Douglas test). The Couty/McDonnell Douglas framework
and its attendant burdens and presumptions cease to be relevant at that point,
Hicks, 113 S. Ct. at 2749, and the onus is once again on the complainant to
prove that the proffered legitimate reason is a mere pretext rather than the true reason
for the challenged employment action. Burdine, 450 U.S. at 256. While
Couty allows the complainant to shift the burden of production to the
employer by establishing a prima facie case, the ultimate burden of persuasion remains
with the complainant at all times. Hicks, 113 S. Ct. at 2747; Burdine,
450 U.S. at 253.11
At this point of the analysis, the fact the complainant had established a prima facie case
becomes irrelevant. Instead, the trier of fact must determine the ultimate issue, whether the
complainant has proven by a preponderance of the evidence that the respondent retaliated against him
or her for engaging in an protected activity. Carroll at 356.
[Page 33]
Issue # 1 - Protected Activity
As mentioned above, the first requisite element for a prima facie case is a protected
activity. The Secretary, U.S. Department of Labor, has broadly defined a protected activity as
a report of an act which the complainant reasonably believes is a violation of the environmental acts.
While it doesn't matter whether the allegation is ultimately substantiated, the complaint must be
"grounded in conditions constituting reasonably perceived violations of the environmental
acts." Minard v. Nerco Delamar Co., 92-SWD-1 (Sec'y Jan. 25, 1995), slip op. at 8.
The act must implicate safety definitively and specifically. American Nuclear Resources v. U.S.
Dept. of Labor, 143 F.3d 1292 (6th Cir. 1998), citing Bechtel Construction Co. v. Secretary
of Labor, 50 F.3d 926 (11th Cir. 1995). In other words, the standard involves an objective
assessment. The subjective belief of the complaint is not sufficient. Kesterson v. Y-12 Nuclear
Weapons Plant, 95-CAA-12 (ARB Apr. 8, 1997). In the Minard case, the Secretary
indicated the complainant must have reasonable belief that the substance is hazardous and regulated
under an environmental law. Consequently, the complainant's concern must at least
"touch on" the environment. Nathaniel v Westinghouse Hanford Co., 91-SWD-2
(Sec'y Feb. 1, 1995), slip op. at 8-9; and, Dodd v. Polysar Latex, 88-SWD-4 (Sec'y Sept. 22,
1994).
1The following notations appear in this decision to
identify specific evidence: CX - Complainant exhibit; RX - Respondent exhibit; ALJ - administrative law judge exhibit; and, TR - Transcript of hearing.
4This documents contains only the following
pages: C-10, C-11, C-13, C-14, C-17, C-18, C-22 to C-26.
5The actual 100 question operator examination
is included as attachment.
6Mr. Evans was also called as a witness for the
respondent (TR, page 263).
7Since the timeliness of the complaint is
considered a statute of limitations issue, failure to raise the issue at the hearing amounts to a waiver to the affirmative
defense. See Hobby v. Georgia Power Co., 90-ERA-30 (Sec'y Aug 4, 1995). The respondent did not raise the
timeliness issue at the February 2000 hearing. As a result, regardless of my findings, the timeliness issue has been
waived.
8Mr. Zapp indicated Mr. Niedzielski may have
first raised a nuclear safety concern in regards to exam development resources in December 1998. However, Mr.
Niedzielski admitted that he did not discuss his nuclear safety concern with his supervisors until January 1999.
9The participants in this conversation have
different recollection of its contents and whether Ms. Winters threatened Mr. Niedzielski. Since I found the testimony of
both Mr. Niedzielski and Ms. Winters credible, I conclude Mr. Niedzielski gave more meaning to Ms. Winters' statement
about a new job than she actually intended.
10I recognize the Administrative Review
Board's position that in a fully litigated case in which the respondent presents evidence of a legitimate motive for the
personnel action the analysis of a prima facie case serves no analytical purpose because the final decision will
rest on the complainant's ultimate burden of proof. See Adjiri v. Emory University, 97-ERA-36 (ARB July 14,
1998)and Carter v. Electrical District No. 2 of Pinal, 92-TSC-11 (Sec'y Jul. 26, 1995). However,
despite some duplication of effort, I find that working through the prima facie elements useful since the ultimate
burden of proof still involves many of the elements covered in the prima facie analysis. In addition, if the
complainant, even in a fully litigated hearing, fails to establish an element of the prima facie case, evaluating
whether an ultimate burden of proof is met may not serve any purpose.
11The citation for Couty is
Couty v. Dole, 886 F.2d 147 (8th Cir. 1989).
12According to the Secretary, an internal
complaint should be a protected activity because the employee has taken his or her environmental concern first to the
employer to permit a chance for the violation to be corrected without government intervention. Poulos v. Ambassador
Fuel Oil Co., Inc., 86-CAA-1 (Sec'y Apr. 27, 1987)(order of remand).
13For example, in his long response to Mr.
Zapp's corrective action in October 1998, Mr. Niedzielski did not mention any nuclear safety concern (RX 7).
14The NRC required BG&E to correct
three questions on its January 1999 examination submission (RX 6).
15Mr. Niedzielski's counsel also attempted
to elicit from Mr. Phifer support for the theory that an insufficiently prepared exam could result in incompetent operators
being licensed, jeopardizing both public and BG&E safety. However, Mr. Phifer, the safety specialist for the company,
did not agree and pointed out that NRC had to approve the exam.
16In a review of the reasons several
applicants failed the November 1997 NRC examination, the failure of the contractor to meet both quality and timeliness
expectations was listed as a contributing factor (CX 15). However, absent further explanation, I do not consider the study
a sufficient basis to conclude that the November 1997 examination as finally approved by the NRC was of poor quality.
In other words, the study does not explain how the lack of quality of the contractor's work or the contractor's tardiness led
to applicants failing the exam.
17Even though my finding that Mr.
Niedzielski did not engage in a protected activity precludes the establishment of a prima facie case, I will
proceed to the next two issues for the benefit of both parties.
18See Vanadore v. Oak Ridge National
Laboratory, 92-CAA-2and 5, 93-CAA-1, and 94-CAA-2 and 3, slip op. at 32 (ARB June 14, 1996) citing
Bassett v. Niagara Mohawk Power Corp., 85-ERA-34, slip op. at 4 (Sec'y Sept. 28, 1993.
19See Conway v. Valvoline Instant Oil
Change, Inc., 91-SWD-4 (Sec'y Jan 5, 1993).
20I note Mr. Zapp had completed the
March 1999 performance report prior to Mr. Niedzielski's submission of the formal nuclear safety complaint on March
19, 1999.
21Due to a company policy, Mr.
Niedzielski's actual pay was not affected by the pay level downgrading. However, for the sake of this analysis, I will
assume that the downgrading does have a future practical effect of reducing his pay if he achieves an overall rating of 5
on future performance appraisals or the dollar amounts associated with the pay levels are raised.