U.S. Department of Labor Office of Administrative Law Judges
John W. McCormack Post Office and Courthouse
Boston, Massachusetts 02109
Room 507
(617) 223-9355
(617) 223-4254 (FAX)
Case No. 98-ERA-14
98-ERA-05
File No. 06-0030-98-802
06-0330-97-803
Date: July 7, 1998
IN THE MATTER OF:
Rhonda R. McNeal,
Complainant
v.
The Foley Company,
Respondent
For the Complainant:
Carol Oppenheimer, Esq.
Matthew Ortiz, Esq.
For the Respondent:
Paul D. Seyferth, Esq.
Jay M. Dade, Esq.
Before:
The Honorable David W. DiNardi
Administrative Law Judge
RECOMMENDED DECISION AND ORDER
This case arises under the Energy Reorganization Act of 1974 as amended,
42 U.S.C. §5851 (hereinafter "the Act" or "the ERA"), and the
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implementing regulations found at 29 C.F.R. Part 24. Pursuant to the Act, employees of
licensees of or applicants for a license from the Nuclear Regulatory Commission (hereinafter
"the NRC") and their contractors and subcontractors may file complaints and receive
certain redress upon a showing of being subjected to discriminatory action for engaging in a
protected activity. The following abbreviations shall be used herein: ALJ EX for an exhibit
offered by this Administrative Law Judge, CX for a Complainant's Exhibit and RX for a
Respondent's Exhibit.
By letter dated August 12, 1997, Rhonda R. McNeal (Complainant herein)
filed a complaint alleging acts of retaliation, harassment and, ultimately, termination from her
journeyman carpenter position which she occupied from February 19, 1997 through March 26,
1997. (ALJ EX 1) The complaint was referred to the Office of Administrative Law Judges
under cover of letter dated October 8, 1997. (ALJ EX 3)
By letter dated October 15, 1997, Complainant filed another complaint
alleging that Respondent has given highly derogatory and unjustified references about
Complainant to a prospective employer. (ALJ EX 8) This complaint was referred to the Office
of Administrative Law Judges under cover of letter dated October 8, 1997. (ALJ EX 10)
By Order dated February 3, 1998, the complaints were consolidated and
scheduled for hearing on April 27, 1998. (ALJ EX 16)
Post-Hearing Exhibits
ALJ EX 26 Letter from Respondent's counsel 04/24/98
requesting subpoenas
ALJ EX 27 Letter from NRC requesting that it 04/29/98
be removed from the service sheet
RX 20 Calendar demonstrating days worked 05/04/98
by Complainant during February 1997
through April 1997
ALJ EX 28 Order Regarding Post-Hearing Briefs 06/08/98
Summary of the Relevant Evidence
Complainant was employed by Respondent from February 19, 1996
through March 26, 1997. Respondent, a nationwide general contractor, was awarded the Dual
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Axis Radiographic Hydro Test (DARHT) project in May 1994 and began construction in earnest
in October 1996. DARHT, a multi-million dollar project in northern New Mexico at the Los
Alamos National Laboratory (LANL), a facility run by the University of California for the
Department of Energy (DOE), is being built as part of the DOE's science-based stockpile
stewardship program. DARHT will be used to evaluate the safety and reliability of nuclear
weapons, evaluate conventional munitions and study high-velocity impact phenomena. It will be
equipped with two high-intensity x-ray machines, intended to record images of interior details of
materials driven by high explosives. (CX 4; TR 86)
1The "employee's
concerns" are those which were raised by Complainant McNeal.
2A safety stand down mode means
that no work can continue other than to correct the safety deficiencies that were observed. (TR
164)
3Complainant testified she was
present when Mr. Roy Epperson, Respondent's general foreman on the project, made a comment
that Mr. Carothers, who was assigned to DARHT on a part-time basis, did not need to be worried
about because the Respondent had him in their "back pocket." (TR 221) Mr.
Epperson, however, denied ever having made such a statement. (TR 699)
4Mr. Richards denied having so
designated Complainant. (TR 439) Mr. Twite and Mr. Epperson testified that Mr. Richards
would not have had the authority to so designate Complainant.
5Mr. Epperson denied these
statements attributed to him by Complainant. (TR 704-705; 713)
6Mr. Twite denied having made
this statement. (TR 617; 629)
7Of course, Mr. Epperson denies
making this statement. (TR 713) I will note, however, that the fact that Mr. Twite called
Complainant a "troublemaker" on at least one occasion was confirmed by the
testimony of Mr. Richards. (TR 458)
8Both Mr. Callegari and Mr.
Twite testified that Complainant informed Mr. Twite that she would not work at the site if Mr.
Richards was not going to work at the site. (TR 571; 649)
9Complainant testified that RX 5,
which purports to be her resignation, is not the resignation that she submitted to the secretary,
Ms. Kristina Horpedahl, although the typewritten form is the exact same wording as she had
submitted in handwriting. Mr. Herrera testified that he never saw Complainant's resignation and
that no employee of Respondent ever told him that the resignation indicated that Complainant's
reasons for leaving were "unsafe working conditions" and "poor
management."
10Mr. Reynolds testified that he
does not recall hanging up the telephone on Complainant and does not recall informing her that
he would not file a grievance on her behalf.
11There was testimony from
Complainant that she telephoned Respondent's headquarters in Kansas City on March 28 (CX
14) and left a message with a woman, identifying herself and her concerns and asking for a return
telephone call, which she never received. The telephone number which Complainant dialed,
however, was for another company named "Foley," but not the Respondent's
company. (TR 322; RX 15)
12Mr. Sena and Complainant
were friends who would occasionally drink together. (TR 134-135) In fact, Complainant lived
in a rented trailer, which was owned by a friend of Mr. Sena. Mr. Sena spoke with Complainant
after she quit her position with Respondent, and Complainant told Mr. Sena that she quit because
it was an unsafe workplace.
13This Judge notes that
Complainant's filing of her first ERA complaint could not be a motivating factor behind the
blacklisting claim because the first complaint was filed on August 12, 1997 and the alleged
blacklisting occurred during conversation on May 9, 1997.