This case arises under the employee protection provision of the Energy Reorganization Act
of 1974, as amended (ERA), 42 U.S.C. § 5851 (1988 and Supp. V 1993), and is before the
Board for review of the Recommended Decision and Order (R. D. and O.) issued by the
Administrative Law Judge (ALJ) on December 12, 1994. 29 C.F.R. § 24.6 (1995). The
ALJ
recommends that the complaint be dismissed because Tyrone Mosley (Mosley) failed to establish
that
Carolina Power & Light Company (Carolina Power) violated the ERA. After reviewing the
entire
record, we agree and dismiss the complaint.
BACKGROUND
From July 26 until September 22, 1993, Mosley worked as a welder at the H.B. Robinson
nuclear plant in Hartsville, South Carolina. Carolina Power, a licensee of the Nuclear Regulatory
Commission (NRC), owns and operates the Robinson plant. Mosley was hired by Power Plant
Maintenance (PPM), which contracted to perform modification work and provide support
services to
Carolina Power within the pertinent time period.
During September Mosley and his work partner, Troy Robinson, raised questions with their
PPM supervisors, David Bolton and Brent Rhodes, about work instructions and paperwork that
accompanied their assignments. See Complaint dated March 17, 1994; Transcript (T.) at 87-90,
487;
Respondent's Exhibit (RX) 54 at 22-23. Mosley alleges that he complained about inaccuracies
and
omissions, lack of proper documentation and instructions contrary to documentation. T. at
32-35, 46-47, 77-78; Complainant's Exhibit (CX) 4.
At some point early in September, a fellow employee improperly removed asbestos from
the
work site, and according to Mosley he also complained about this incident to Bolton and Rhodes.
T.
at 44-45. On September 10, Mosley and a number of other employees were sent home from
work
before the shift was scheduled to end. T. at 47. Mosley complained about this "send home"
incident
to the Carolina Power supervisor on site, Barry Sullivan. T. at 48, 531. Following this particular
incident, another co-worker used profanity and a racial slur in criticizing Mosley for complaining
to
Carolina Power. T. at 50, 207.
During the same time period PPM began transferring Mosley to other crews and removing
him
from certain jobs after he performed what Mosley describes as the hard or more strenuous
aspects.
T. at 35-36, 96, 123; see RX 6, 7. On September 15 Mosley and Robinson were loaned
out
to work in a high radiation area where they became contaminated. RX 20; T. at 36-37. Mosley
testified that he complained to Bolton about the lack of proper protective equipment. T. at I 1 1.
Mosley also alleges that he complained again to Sullivan on September 17 about improper
procedures,
paperwork, and retaliatory assignments. CX 4.
[Page 2]
On September 20 Mosley approached a PPM coordinator, Tom Cook, and requested a
meeting
with Jack Epperly, the Carolina Power manager who administered the contract with PPM. T. at
51.
Mosley alleges that he again raised paperwork and plant violations, retaliatory work assignments,
and
also racial concerns. See T. at 51-52; CX 4. Epperly maintains that Mosley's allegations
involved only racial discrimination. T. at 403. Epperly and Mosley also dispute whether Mosley
requested a reduction-of-force (ROF) discharge during the September 20 meeting.
Epperly decided to conduct an investigation of the charges since the September 10 "Send
home" incident implicated a Carolina Power supervisor and because he felt compelled as an
NRC
license holder. T. at 401, 424, 439. Epperly confronted Bolton and Rhodes with Mosley's
charges
of unfair work assignments, and they told Epperly that they moved Mosley and Robinson around
to
easier jobs because they worked slowly and inaccurately and would take three to five times
longer to
finish a job than other teams. T. at 405-406, 410. Not content to rely on their opinions, Epperly
decided to inquire into Mosley's previous performance record since Mosley had told him that he
worked for Carolina Power's maintenance division during a prior outage in 1992. T. at 410.
Epperly
discovered that the previous supervisor, Donny Douglas, had written an evaluation criticizing
Mosley's lack of initiative. T. at 412-14. Epperly also claims that a number of Mosley's previous
co-workers and managers described him as lazy. T. at 414-15.
Epperly and Mosley met again on September 22. CX 4. In his Note to File, dated
September 22, Epperly described the final meeting as follows:
I met with Tyrone again to discuss my conclusion in this matter.
1) That an individual did use a racial slur and was reprimanded.
2) That I could not substantiate the other allegations.
3) That I had discovered a history of poor performance and that this would be
"dealt with" by his PPM management . . . .
RX 4 at 4.
Mosley became angry and stated that he had never heard of the allegations of Poor
performance before. T. at 424. According to Mosley, he then requested and accepted the ROF.
In
support of his claim of constructive discharge, Mosley testified that Epperly implicitly and
explicitly
threatened to fire him if he did not go back to work and do as he was told, including violate
procedures. T. at 54-55. Mosley claims that he requested the ROF because he felt they would
fire
him later on for complaining about improper procedures, and he did not want his work record to
reflect that he was fired for poor work or poor work practice. T. at 162; CX
That afternoon, Mosley contacted the NRC and raised some of the same alleged procedural
and safety violations that he claims he raised with Epperly on September 20. CX 5;
T. at 58, 172. Some of his concerns were partially substantiated. CX 5.
In his complaint Mosley alleges that he was discriminated against in his work assignments,
subjected to a hostile work environment and constructively discharged because he raised
protected
complaints under the ERA. He contends that Carolina Power should be held liable for all acts,
either
directly or vicariously. Carolina Power argues that Mosley did not engage in any protected
activity,
and that even if he did raise protected complaints with his PPM foremen, their knowledge cannot
be
imputed to Carolina Power. It also contends that Carolina Power took no adverse personnel
action
against Mosley and is not vicariously liable for any adverse action imposed by PPM.
DISCUSSION
The ALJ concluded that while Mosley may have raised one protected concern during his
meeting with Epperly on September 20, Epperly did not threaten to fire Mosley, and Carolina
Power
neither took nor collaborated with PPM in any retaliatory action. See R. D. and O. at
6-7.
These findings are supported by ample evidence and are consistent with applicable law.2 We, therefore, accept them.
1On April 17, 1996, the Secretary of
Labor
delegated authority to issue final agency decisions under his statute and the implementing
regulations
to the newly created Administrative Review Board ARB). Secretary's Order 2-96 (Apr. 17,
1996),
61 Fed. Reg. 19978, May 3, 1996 (copy attached).
Secretary's Order 2-96 contains a comprehensive list of the statutes, executive order, and
regulations
under which the ARB now issues final agency decisions. A copy of the final procedural
revisions to
the regulations implementing this reorganization, 61 Fed. Reg. 19982, is also attached.
2The burdens of production and
persuasion
applicable in whistleblower cases under the
ERA are set forth in Marien v. Northeast Nuclear Energy Co., Case No. 93-ERA-00049,
Sec.
Dec., Sept. 18, 1995, slip op. at 5-6 and Carroll v. Bechtel Power Corp. Case No.
91-ERA--
0046, Sec. Dec., Feb. 15, 1995, slip op. at 11-12, aff'd, No. 95-1729 (8th Cir. Mar. 5,
1996),
citing St. Mary's Honor Center v. Hicks, 113 S. Ct. 2742, 2756 (1993).
3Even assuming that Mosley did not
request
the ROF until the final meeting on September 22, we find no constructive discharge.
4Mosley's allegation about the
contamination incident is also rejected because numerous health physics specialists testified
convincingly to the effect that Mosley's theory and concerns regarding the incident were
uncommunicated, unreasonable, and probably based on a misunderstood telephone conversation.
See T. at 572, 615-18, 629, 632-33, 639, 651, 667. We also note that Mosley could not
have
raised the September 21 interchanging parts incident with Epperly because the incident occurred
after
their initial meeting. CX 4, 5.
5We reject Mosley's argument that
knowledge of protected activity may be imputed to Epperly without proof. Initial Brief at 16.
The
Secretary has held that knowledge of the protected activity on the part of the alleged
discriminatory
official is an essential element of a complainant's whistleblower case. Bartlik v. TVA,
Case
No. 88-ERA-15, Sec. Ord., Dec. 6, 1991, slip op. at 7 n.7, and Sec. Dec., Apr. 7, 1993, slip op. at
4
n. 1, aff'd, 73 F. 3d 100 (6th Cir. 1996). Although knowledge can be shown by
circumstantial
evidence, that evidence must show that an employee of the respondent with authority to take the
complained of action, or an employee with substantial input in that decision, had knowledge.
Id.
6We fully agree with the ALJ that the
"send
home" incident was not retaliatory under the ERA. R. D. and O. at 8. In addition, Mosley
produced
no evidence whatever of any retaliation in connection with the asbestos incident. R. D. and O. at
7
n.9; see T. at 131. He apparently raised the incident as evidence of Bolton's alleged
disregard
for health and safety concerns. However, the incident shows the contrary. Bolton initiated the
question of whether x-rays might be necessary. T. at 132.
7Mosley also did not prove by a
preponderance of the evidence that the explanation offered by Bolton and Rhodes for assigning
him
to certain jobs was a pretext for retaliation. In fact, Mosley offered very little specific evidence
concerning the circumstances of any of his assignments and did not prove that protected
complaints
were a factor. It is unlikely that PPM was retaliating against Mosley because of complaints of
alleged
violations since the company telephoned him on the same day as his ROF and offered him
another job
out-of-state. T. at 72. It was the foremen's lack of confidence in Mosley's welding ability and
Robinson's poor workmanship and bad rapport that influenced the assignments. RX 6, 7; RX 54
at
26-27, 32-35; T. at 90, 189, 204, 273, 475. Also, Mosley and Robinson both perceived that the
foremen showed favoritism to two more experienced welders because they were their "friends or
buddies." T. at 36, 238-40. This is not retaliation forbidden under the ERA. Further, transferring
and
loaning out workers was common during the relevant time frame, RX 54 at 10, 20; T. at 116,
337, and
Mosley and Robinson actually enjoyed being assigned out to other crews. T. at 227. The record
falls
short of proving retaliatory work assignments.
8The evaluation contained a general
recommendation that Mosley be rehired, but added that Mosley would not be a top choice. It
also
contained the following comments:
Tyrone's welding ability was good. He would perform well as long as he was
directly supervised. He had little initiative to complete work.
His initiative was described as "poor." RX 16.
9Although Mosley alleges generally
that
he was subjected to a hostile work environment, he does not point to any specific instances of
harassment or alleged retaliatory actions not previously addressed in this decision.
Consequently, we
need not apply the hostile work environment legal analysis. See generally Varnadore v. Oak
Ridge Nat'l Lab., Case No. 92-CAA-2, Sec. Dec., Jan. 26, 1996, slip op. at 77; Boytin v.
Pennsylvania Power and Light Co., Case No. 94-ERA-32, Sec. Dec., Oct. 20, 1995, slip op.
at
8 n.4.