We find that this testimony unequivocally establishes that in April 1999, Johnson decided to fire Kester only because of the supposed insubordinate refusal to improve. As Kester correctly argues, CP&L's burden is to demonstrate by clear and convincing evidence that it "would have," not "might have," fired Kester for other reasons. Complainant's Brief at 29.
CONCLUSION
Kester has proven by a preponderance of the evidence that his protected activity contributed to the decision to terminate his employment. CP&L has not shown it would have terminated Kester's employment in the absence of his protected activity. As a result, Kester is entitled to relief according to 42 U.S.C.A. § 5851(b)(2)(B). We therefore ORDER that this matter be REMANDED to the ALJ for further proceedings consistent with this decision.
SO ORDERED.
OLIVER M. TRANSUE
Administrative Appeals Judge
M. CYNTHIA DOUGLASS
Chief Administrative Appeals Judge
[ENDNOTES]
1 The statute provides, in pertinent part, that "[n]o employer may discharge any employee or otherwise discriminate against any employee with respect to his compensation, terms, conditions, or privileges of employment because the employee . . . [notifies a covered employer about an alleged violation of the ERA or the Atomic Energy Act (AEA) (42 U.S.C. § 2011 et seq. (2000)), refuses to engage in a practice made unlawful by the ERA or AEA, testifies regarding provisions or proposed provisions of the ERA or AEA, or commences, causes to be commenced or testifies, assists or participates in a proceeding under the ERA or AEA]."
2 The following abbreviations shall be used: Claimant's Exhibit, CX; Respondent's Exhibit, RX; Hearing Transcript, TR; Recommended Decision and Order, R. D. & O.
3 The term outage describes the shutdown of a nuclear facility for maintenance work that cannot be done when the plant is operational. The shutdown procedure places a heavy burden on the CAA group because of the large number of contract employees who must be investigated in a tight time frame. TR 41-43.
4 Of the seven categories in the appraisal, Kester earned the highest rating—"strength area"—in five. Under the more detailed factors reflecting feedback from his peers and team members, he did not receive a single "improvement opportunity" for such items as Teamwork, Communication, Leadership, and Human Resources Management. CX 70.
5 On January 29, Kester directed a staff person to begin an investigation which soon revealed that Rebecca Johnson, a new employee recently promoted, had not verified prior employment information while conducting background checks for security clearances. Johnson's employment was terminated for falsifying the clearances. Later that week Kester also contacted access authorization personnel at the Robinson and Harris plants and took other action to ensure that access authorization badges were not issued to the persons Johnson had certified. R. D. & O. at 7-14.
6 The complaint stated that over the past year five new analysts had been hired in the CAA group, but that one was leaving and three others were looking for jobs elsewhere. The complaint added, "There is something wrong with this picture," and were it not for "our professionalism," team spirit and morale would be at "an all-time low." The complaint asked for "outside intervention." RX 1, CX 68.
7 At the hearing, Gill denied that this exchange had occurred. TR at 506.
8 On February 5, 1999, Kester took a previously scheduled flex day off and underwent a physical examination which revealed a large colon tumor. That day, Gill found out that Rebecca Johnson had falsely certified a third individual for access to the Robinson plant.
9 Terry Morton was the manager for the performance evaluation regulatory affairs group at CP&L. He supervised John Caves who was in charge of NRC regulatory affairs. TR at 183, 564.
10See Mackowiak v. University Nuclear Systems, Inc., 735 F. 2d 1159 (9th Cir. 1984); Consolidated Edison Co. of New York v. Donovan, 673 F. 2d 61 (2nd Cir. 1982); Dartey v. Zack Company of Chicago, 82-ERA-2 (Sec'y April 25, 1983).
11 Pub. L. No. 102-486, 106 Stat. 2776, 3023-24 (1992).
12 42 U.S.C.A. § 5851(b)(3)(A). Although the investigation ceases and the Assistant Secretary for Occupational Health and Safety dismisses the complaint, the complainant may nevertheless proceed since 29 C.F.R. § 24.5(d) allows either party to file a request for an ALJ hearing and thus further adjudicate the complaint. The Eleventh Circuit described this investigative phase of ERA litigation as a "gatekeeper test." See Stone & Webster Eng. Corp. v. Herman, 115 F.3d 1568, 1572 (11th Cir. 1997). Likewise, in Trimmer v. United States Dep't of Labor, 174 F.3d 1098, 1101 (10th Cir. 1999), the court noted that the new administrative gatekeeping function in the amended ERA created a framework "distinct" from Title VII,where the plaintiff has no comparable obligation. See 42 U.S.C.A. § 2000e, et seq. (West 1999). We note that a recent ALJ opinion interprets Trimmer as indicating "the ERA amendments replace the Title VII framework." (Emphasis added). This interpretation misstates Trimmer and may create confusion. See Fritts v. Indiana Michigan Power Co., 2001-ERA-33, slip op. at n.10 (ALJ March 7, 2003) (Appeal pending, ARB No. 03-073).
The Title VII evidentiary "framework," whereby the plaintiff establishes a prima facie case, the defendant rebuts it, and the plaintiff then attempts to prove pretext, is a method, or formula, or structure for evaluating proof of intentional discrimination. See Texas Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248 (1981); McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). See also Deborah C. Malamud, The Last Minuet: Disparate Treatment After Hicks, 93 Mich. L. Rev. 2229, n.3 (1995). Recently, the Ninth Circuit described the McDonnell Douglas/Burdine structure as a "tool" by which plaintiffs might survive summary judgment and reach trial. See Costa v. Desert Palace, Inc., 299 F.3d 838, 855 (9th Cir. 2002). The Title VII formula "serves to bring the litigants and the court expeditiously and fairly" to the ultimate question of whether the plaintiff has persuaded the trier of fact that discrimination occurred. Burdine, 450 U.S. at 253. "The method suggested in McDonnell Douglas for pursuing this inquiry … is merely a sensible, orderly way to evaluate the evidence in light of common experience as it bears on the critical question of discrimination." Furnco Constr. Corp. v. Waters, 438 U.S. 567, 577 (1978).
The amended ERA certainly does not preclude a complainant from presenting a circumstantial case of retaliation at a hearing before a Department of Labor ALJ. Nor do the 1992 amendments dictate or suggest that an ALJ, or this Board, not rely, when appropriate, upon the established and familiar Title VII methodology for analyzing and discussing evidentiary burdens of proof. Indeed, when the Board recently applied the Title VII pretext framework in an ERA case brought under the amended Act, we explained thatbecause most ERA complaints are grounded on circumstantial evidence of retaliatory intent, "this Board and reviewing courts routinely apply the framework of burdens developed for pretext analysis under Title VII." See Overall v. Tennessee Valley Auth., ARB Nos. 98-111, 98-128, ALJ No. 97-ERA-53, slip op. at 14 (ARB April 30, 2001) (citing two pre-1992 amendment ERA cases). However, we continue to discourage the unnecessary discussion of whether or not a whistleblower has established a prima facie case when a case has been fully tried. See Williams v. Baltimore City Pub. Schools Sys., ARB No. 01-021, ALJ No. 00-CAA-15, slip op. at n.7 (ARB May 30, 2003).
14See 42 U.S.C.A. § 5851(b)(3)(C). See also Dysert v. Secretary of Labor, 105 F. 3d 607, 609-10 (11th Cir. 1997).
15 As noted earlier, prior to the 1992 amendments, the ERA complainant was required to prove that protected activity was a "motivating factor" in the employer's decision. Congress adopted the less onerous "contributing factor" standard "in order to facilitate relief for employees who have been retaliated against for exercising their [whistleblower rights]." 138 Cong. Rec. No. 142 (Oct. 5, 1992). Congress may have been recalling that in 1989 it enacted the Whistleblower Protection Act, Pub. L. 101-12, § 3(a)(13), 103 Stat. 29. The WPA requires a complainant to prove that a protected disclosure was a "contributing factor in the personnel action . . . ." 5 U.S.C.A. § 1221 (e)(1) (West 1996).
17 An ALJ recently indicated that the Board had "not been consistent" in applying the ERA's burdens of proof. He maintains that in Gale v. Ocean Imaging, ARB No. 98-143, ALJ No. 1997-ERA-38 (ARB July 31, 2002), "the Board applied a Title VIIburden-shifting framework" but in Gutierrez v. Regents of the Univ. of Cal., ARB No 99-116, ALJ No. 1998-ERA-19 (ARB Nov. 13, 2002), "the Title VII framework is not mentioned." See Fritts, slip op. at n.10 (emphasis added).
The ALJ appears to be confusing a litigant's "burden of proof" with the "evidentiary framework" employed to evaluate proof of discrimination. See the discussion at note 12. To be sure, the phrase "burden of proof" is ambiguous because it has been used indiscriminately. Courts have used the phrase to mean a litigant's obligation, at a particular time during a trial, to either create a prima facie case or meet one created against them. However, correctly used, the term means the necessity of finally establishing the existence of a fact or set of facts by evidence which meets a particular "standard of proof," e.g., preponderance, clear and convincing, beyond a reasonable doubt. See Volume 31A C.J.S. at 251-52.
The Board applied the same, and the correct, ERA "burdens of proof" in Gale and Gutierrez. See Gale, slip op. at 7-8; Gutierrez, slip op. at 6. However, in order to determine whether the parties met their burdens, we did employ different "analytical frameworks" because the nature of the evidence in those cases differed. Katherine Gale presented circumstantial evidence of discrimination to the ALJ who then examined Ocean Imaging's reasons for firing her. He found them to be pretextual and ruled for Gale. We examined the employer's reasons, found them to be legitimate, and concluded that Gale had not proved by a preponderance of the evidence that her protected activities contributed to her dismissal. In short, both the ALJ and the Board utilized the Title VII burden shifting pretext framework because it was warranted in this typical whistleblower case where the complainant initially makes an inferential case of discrimination by means of circumstantial evidence.
Joe Gutierrez, on the other hand, did not rely upon circumstantial evidence of discrimination. Unlike the Gale analysis, neither the ALJ nor the Board had to infer a causal nexus between protected activity and adverse action. Rather, at his hearing Gutierrez introduced a performance evaluation assessment. This document clearly established that his employer retaliated because of protected activity. This performance evaluation not only contained an unfavorable comment about his protected activities, itself an adverse action, but also ultimately resulted in Gutierrez suffering a diminished salary. Therefore, the ALJ and the Board did not apply the Title VII pretext framework because it was not necessary in evaluating whether or not Gutierrez had met his ERA burden of proof.
18Paynes v. Gulf States Utilities, ARB No. 98-045, ALJ No. 93-ERA-47, slip op. at 4-5 (ARB Aug. 31, 1999).
19Thompson v. Houston Lighting & Power Co., ARB No. 98-101, ALJ No. 1996-ERA-34, slip op. at 6 (ARB March 30, 2001). The ALJ's interpretation of dual motive analysis at R. D. & O. 49-50 is incorrect. Relying on Talbert v. Washington Pub. Power Supply Sys., ARB No. 96-023, ALJ No. 1993-ERA-35, slip op. at 4 (ARB Sept. 27, 1996), he writes that an ERA complainant must produce "direct" evidence in order to trigger the dual motive analysis. This reflects a misreading of Talbert. There, because the complainant "produced evidence that directly reflects the use of an illegitimate criterion in the challenged decision," the Board concluded that Talbert had proven discrimination by a preponderance of the evidence. Id. at9.The Board, therefore, went on to examine whether the employer proved by clear and convincing evidence that it would have made the same decision. Talbert, like Gutierrez, discussed at n. 17, was one of the rare cases in which the complainant did not have to rely upon circumstantial evidence to prove his case. But Talbert did not hold that a complainant must produce "direct" evidence before the ALJ (or ARB) examines whether the employer proved by clear and convincing evidence that it would have made the same decision. Nor does the ERA require "direct" evidence. The Act requires only that the complainant prove by a preponderance of sufficient evidence, direct or circumstantial, that the protected activity contributed to the employer's decision. Cf. Desert Palace, Inc. v. Costa, __U.S.__, No. 02-679, slip op. at 11 (June 9, 2003) (A Title VII plaintiff is not required to present direct evidence of discrimination in order to obtain a mixed-motive jury instruction.).
20 On Sunday, February 7, Gill sent a series of e-mails to Kester, directing him to brief Gill by noon on Monday, the 8th regarding the issues and scope of the falsification events. CX 69. He began interviewing Kester's subordinates shortly thereafter. RX 4. Furthermore, at the hearing he admitted that he had failed to take certain actions he should have. TR at 408, 470-72, 481-82.
21 One worker with a criminal record and three others with psychological problems had access to the Harris plant for more than a month. Other workers who were not properly cleared also had unrestricted access. TR at 46-48, 428-30.
22 Nix strongly recommended to Johnson that Kester be fired because of his insubordinate refusal to submit a performance improvement plan. She based this solely on Gill's statements to her. TR at 768, 783-88. Johnson testified that it appeared that Kester's reaction to Gill's concerns was to "ignore" his performance problems. "He [Kester] refused to take any actions to correct his performance. He came close to termination based on this conduct alone." CX 148; TR at 850-59.
23 Gill never told Kester that Johnson and Nix were "very concerned" that Kester had not produced a performance improvement plan. TR at 402, 522-23. Gill admitted that he told Kester he could work on this plan after his recovery from surgery, but never informed Johnson that he had given Kester more time to produce the plan. TR at 525-26.
24 The results of the NRC investigation were released on May 6, 1999. CX 110, 111.