ARB CASE NO. 98-030
ALJ CASE NOS. 97-ERA-14
97-ERA-18
97-ERA-19
97-ERA-20
97-ERA-21
97-ERA-22
DATE: November 13, 2002
In the Matter of:
JOHN R. WILLIAMS, JOE McQUAY,
NORMAN OLGUIN, GILBERT RODRIGUEZ,
TOM BYRD, STEVEN SOTTILE,
COMPLAINANTS,
v.
MASON & HANGER CORPORATION,
RESPONDENT.
BEFORE: THE ADMINISTRATIVE REVIEW BOARD
Appearances:
For the Complainants: A. Alene Anderson, Esq., Tom Carpenter, Esq., Dana Gold, Esq., Government Accountability Project, Seattle, Washington, Robert C. Seldon, Esq., Government Accountability Project, Washington, D.C.
For the Respondent:
Rebecca A. Singer, Esq., Terry Goltz Greenberg, Esq., Fulbright & Jaworski LLP, Dallas, Texas
FINAL DECISION AND ORDER
This case arises under the employee protection provision of the Energy Reorganization Act of 1974, as amended (ERA), 42 U.S.C. § 5851 (1994). The six complainants in this case, John R. Williams (Williams), Joe McQuay (McQuay), Norman Olguin (Olguin), Gilbert Rodriguez (Rodriguez), Tom Byrd (Byrd), and Steven Sottile (Sottile) (collectively referred to as "the Complainants") allege that the Respondent Mason & Hanger Corporation (the Respondent) subjected them to a hostile work environment (HWE) in retaliation for engaging in activities protected under the ERA. In addition, Williams, McQuay, Rodriguez and Sottile allege that the Respondent took the following actions against them, respectively, in violation of the ERA: Williams, temporary work reassignment and constructive discharge; McQuay and Rodriguez, temporary work reassignment; Sottile, temporary work reassignment and non-selection for promotion. During the relevant timeframe, the Complainants worked as Production Technicians on the disassembly of nuclear weapons at the Pantex Plant in Amarillo, Texas, which the Respondent operated pursuant to a contract with the United States Department of Energy (DOE). The plant employed a workforce of approximately 3000 at the time of the hearing, all involved in weapons programs.
[Page 2]
Williams filed two complaints, in July and December 1996. At Williams' request, the second complaint was incorporated into the first, which was then pending before the Administrative Law Judge (ALJ). Complaints were filed by McQuay, Olguin, Rodriguez, Byrd and Sottile in November 1996 and amended in December. Pursuant to the Respondent's unopposed motion, the ALJ consolidated for hearing the six complaints now before the Board. The ALJ held a formal hearing on June 23-30, 1997. On November 20, 1997, the ALJ issued a Recommended Decision and Order (RD&O) concluding that the six complaints should be dismissed. He specifically found that the Complainants had failed to establish that the workplace hostility they experienced was caused by activities protected by the ERA. RD&O at 60-61. He also found that the Respondent had taken prompt remedial action when put on notice of the Complainants' concerns about hostility in their workplace. Id. at 61-64. With regard to Williams' constructive discharge complaint, the ALJ concluded that Williams had not established that intolerable working conditions had forced him to resign. Id. at 64-66. The ALJ further determined that the retaliatory reassignment contentions advanced by Williams, McQuay, Rodriguez and Sottile lacked merit because they had failed to establish that the reassignments constituted adverse actions prohibited by the ERA. Id. at 66-67. Concerning Sottile's argument that the Respondent had violated the ERA by failing to select him for a higher salaried position as a supervisor, the ALJ determined that Sottile had failed to establish that the Respondent's decision not to select him was linked to retaliation for activities protected under the ERA. Id. at 68. In addition to challenging the ALJ's findings of fact and conclusions of law regarding the foregoing claims, the Complainants also contend that the ALJ erred in excluding evidence relevant to a pattern or practice of retaliation against whistleblowers at the Pantex Plant.1
1 The following abbreviations are used in this decision to refer to the evidentiary record and the parties' briefs before the Board: Hearing Transcript, HT; Complainants' Exhibit, CX; Respondent's Exhibit, RX; ALJ Exhibit, ALJX; Complainants' Initial Brief, CIB; Complainants' Rebuttal Brief, CRB; Respondent's Reply Brief, RRB; Complainants' Supplemental Brief, Comp. Supp. Brief; Respondent's Response to Complainants' Supplemental Brief, Resp. Supp. Brief; Complainants' Reply to Respondent's Response to Complainants' Supplemental Brief, Comp. Supp. Reply.
2 Pursuant to 29 C.F.R. Part 24 as amended in 1998, the Board has jurisdiction to review currently issued recommended decisions in cases arising under the statutes listed at 29 C.F.R. §24.1(a) only if an appeal is filed with the ARB by an aggrieved party. 29 C.F.R. §24.7(d) (2001); see 63 Fed. Reg. 6614 (Feb. 9, 1998).
3 The employee protection provision, which was originally enacted as Section 210 of the ERA as amended in 1978, Pub. L. No. 95-601, §10, 92 Stat. 2949, 2951 (Nov. 6, 1978), was renumbered as Section 211 and amended by Section 2902(h)(3) of the Comprehensive National Energy Policy Act of 1992, Pub. L. No. 102-486, 106 Stat. 2776, 3124 (Oct. 24, 1992). Section 2902(a) amended Section 211 to, inter alia, extend coverage to employees working for DOE contractors like the Respondent here. 106 Stat. 3123, codified at 42 U.S.C. §5851(a)(2)(D) (1994).
4 For example, McQuay testified that the exercise of his stop-work authority in a W55 safety meeting on February 28 was the first time he had invoked that authority since he came to work at Pantex in 1966. HT 789-91 (McQuay).
5 An assembly engineering manager, Ernest McNabb, testified that William Weinreich, the plant manager, considered it "a cardinal sin" for PTs to be forced to continue working on a weapon when they were uncomfortable. HT 1592 (McNabb).
6 We note that the record contains other evidence that suggests that Pantex Plant personnel were generally antagonistic to whistleblower activities. We have considered this evidence in our evaluation of these HWE complaints. HT 1430-31 (Pontius, testifying that it is "a point of contention through[out] Pantex" when someone threatens to shut down a program); HT 326-29 (Williams); CX 4 at 20 (regarding W70 PT Perry's threat to "take care of" Williams "without a trace" if the W70 was shut down because of Williams' whistleblowing).
7 The Complainants submitted the documents at issue as an appendix to their brief that was filed with the Board on February 10, 1998. CIB, App. A. On May 8, 1998, the Respondent moved that the documents filed as Appendix A, in addition to Appendix B to the Complainants' brief, which concerns the damages issue, be stricken from the record. On June 12, 1998, the Complainants filed a response to the May 8 motion, in which they opposed the motion and, in the alternative, requested that references to Respondent's Proposed Findings of Fact contained in the Respondent's brief filed on May 11, 1998, be stricken. By Order issued May 23, 2001, the Board reserved ruling on the merits of the Respondent's motion to strike and the related pleadings filed by both parties. 5/23/01 Order at 2. Our rejection of the Complainants' argument regarding the ALJ's exclusion of the documents at Appendix A renders moot the Respondent's motion to strike Appendix A, as well as the responsive motion filed by the Complainants on June 12. Similarly, our dismissal of the complaints in this case renders moot the Respondent's motion to strike the Complainants' Appendix B, concerning damages.
8 The United States Supreme Court established a new standard for establishing employer liability for supervisory sexual harassment under Title VII in Faragher v. City of Boca Raton, 524 U.S. 775 (1998), and Burlington Industries v. Ellerth, 524 U.S. 742 (1998). See discussion infra §IIG1. By order dated May 23, 2001, the Board granted the Complainants' July 9, 1998 motion for leave to file a supplemental brief regarding the Ellerth and Faragher decisions and accepted the Complainants' supplemental brief that had been filed with the motion. The Board order granted the Respondent's motion to file a response to the supplemental brief. The Respondent's supplemental brief responding to the Complainants' arguments was filed July 6, 2001. The Complainants' reply brief was filed July 23, 2001. Our consideration of the parties' arguments is reflected in our discussion of the employer liability issue, infra at §IIG.
9 The question before the Supreme Court in English concerned whether the ERA pre-empted the claim for intentional infliction of emotional distress that the complainant had filed against her employer under state law. The case before the Court in English thus did not include the ERA complaint that was before the Court of Appeals for the Fourth Circuit in its 1988 decision in English, which is cited supra. In its 1990 decision, the Supreme Court held that the ERA did not preclude the complainant from filing the state claim.
10 The enforcement policy statement that accompanies the DOE procedural rules for nuclear activities was revised in 1993. 58 Fed. Reg. 43680 (1993)(Final rule, Procedural Rules for DOE nuclear activities, 10 C.F.R. Part 820). Under the revised enforcement policy statement, "chilling effect reprisals against contractor employees" in violation of the employee protection regulations at 10 C.F.R. Part 708 constitute violations of Nuclear Safety Requirements for which a civil penalty can be imposed pursuant to the Price-Anderson Amendments to the Atomic Energy Act, 42 U.S.C. §2210(n)(2). 58 Fed. Reg. 43680, 43681 (1993)(Final rule, Procedural Rules for DOE nuclear activities, 10 C.F.R. Part 820). In 2000, DOE similarly added information collected in whistleblower complaints adjudicated under the ERA by the Department of Labor that demonstrates retaliation against employees for raising nuclear safety-related issues as a basis for determining whether to impose such penalty. 65 Fed. Reg. 15218-19, 15220-21 (2000) (Final rule, procedural rules for DOE nuclear activities; general statement of enforcement policy, 10 C.F.R. Part 820).
11 Specifically, the definition of "employer" under Section 211 of the ERA as amended includes "a contractor or a subcontractor of the Department of Energy that is indemnified by the Department under Section 170 d. of the Atomic Energy Act of 1954 (42 U.S.C. §2210(d))" except for facilities covered by Executive Order No.12344, nuclear propulsion facilities, which are exempted from coverage. 42 U.S.C. §5851(a)(2)(D) (1994). The report of the House Committee on Interior and Insular Affairs indicates Congressional concern that "whistleblower harassment and retaliation remain all too common in parts of the nuclear industry," and an intention that the amended whistleblower provisions would aid in addressing "those remaining pockets of resistance." H.R. Rep. No. 102-474, pt. 8, at 78 (1992), reprinted in 1992 U.S.C.C.A.N. 2282, 2296.
12 42 U.S.C. §5851(a) (1988); 42 U.S.C. §5851(a)(2)(A) - (C) (1994); see also Wensil v. U.S. Dep't of Energy, No. 86-ERA-15 (Sec'y June 22, 1995) (discussing history of Atomic Energy Act of 1954, Pub. L. No. 83-703, 68 Stat. 919 (codified at 42 U.S.C. §§2011-2296 (1982)), which established the Atomic Energy Commission (AEC); the ERA, Pub. L. No. 93-438, 88 Stat 1233 (codified as amended at 42 U.S.C. §§5801-5891 (1982)), which in 1974 established the Energy Research and Development Administration (ERDA) and the Nuclear Regulatory Commission, and transferred the AEC's responsibility for nuclear weapons facilities to the ERDA; and the statute that established the Department of Energy in 1977, Pub. L. No. 95-91, 91 Stat. 565, 577 (codified as amended at 42 U.S.C. §7151 (1982)), and transferred ERDA responsibility for nuclear weapon weapons facilities to that Department; 10 C.F.R. Chap. I (NRC regulations).
13 The Price-Anderson Act, enacted in 1957, and its 1966, 1975 and 1988 amendments, form part of the Atomic Energy Act of 1954, as currently codified at 42 U.S.C. §2011, et seq. See McCafferty v. Centerior Energy, ARB No. 96-144, ALJ No. 96-ERA-6, slip op. at 5-9 (ARB Sept. 24, 1997) and authorities there cited; n.10 supra.
14 Although the Kesterson complaint arose in a nuclear weapons plant, the complainant was a security analyst and did not allege that he had raised concerns regarding the handling of nuclear weaponry or radioactive materials, or other concerns directly related to nuclear safety. Rather, the Kesterson allegations of protected activity were confined to the complainant's participation in the whistleblower complaint process on behalf of other employees and his refusal to aid his employer in various actions in opposition to such complaints. Kesterson, slip op. at 3.
15 ALARA is the abbreviation for "as low as is reasonably achievable" and represents a concept that is defined by the DOE as "the approach to radiation protection to manage and control exposures (both individual and collective) to the work force and to the general public to as low as is reasonable, taking into account social, technical, economic, practical, and public policy considerations. As used in [Part 835], ALARA is not a dose limit but a process which has the objective of attaining doses as far below the applicable limits of [Part 835] as is reasonably achievable." 10 C.F.R. §835.2(a) (1995).
16 We agree with the Complainants that Williams' reassignment represented a retaliatory act that contributed to a hostile work environment under the ERA, but we do not agree that the temporary reassignment to the W70 represented a transfer of the type that constitutes an independent basis for an ERA complaint. See, e.g., Stone & Webster Eng'g Group v. Herman, 115 F.3d 1568, 1574, 1576 (11th Cir. 1997), aff'g Harrison v. Stone & Webster Eng'g Group, No. 93-ERA-44 (Sec'y Aug. 22, 1995); DeFord v. Sec'y of Labor, 700 F.2d 281, 283, 287 (6th Cir. 1983); Thomas v. Ariz. Public Serv., No. 89-ERA-19, slip op. at 2, 7-8, 15-16. (Sec'y Sept. 17, 1993). We base our conclusion on these factors: Williams suffered no loss in pay; he continued to work as a PT, although on a different weapons program; and the reassignment was temporary, lasting approximately one month. Furthermore, we are mindful of the extremely hazardous nature of the work being performed on the W55 and the importance of leaving options available for management to separate employees in order to defuse a situation where tensions could escalate to a critical level. One option would be for management to also reassign other employees involved in the confrontation – like Stone here – during an investigation.
17 Meyer's investigation notes indicate that the trainer Peak had "alerted" W55 supervisors that the Complainants were "upcoming problems." CX 2 at 2 and M&H000171; HT 716 (Meyer). In a meeting with W55 supervisory personnel on February 23, De los Santos witnessed and documented Brito's complaint that Williams could not be satisfied and should be transferred to another program. CX 7; HT 1346-47, 1355 (De los Santos); see HT 1783-88, 1831 (Angelo). On March 7, Doty, who was an Assistant Facility Manager, responded to De los Santos' request for information regarding where Williams was working by derisively remarking that Williams had "died . . . of radiation" exposure. CX 7 at M&H000298-299; CX 106 at M&H000286-287 and 000292; HT 1352-53 (De los Santos). Angelo testified that he counseled Doty regarding this incident and directed Dismantlement Director David Rhoten to counsel Brito. HT 1783-88, 1831 (Angelo). De los Santos also testified that Carry responded to Brito in the February 23 meeting by telling him that reassigning Williams was out of the question. HT 1355 (Angelo); see HT 1339-41, 1346-47 (De los Santos).
18 Also, some W55 supervisors were concerned about Williams' use of the official logbooks, kept in the W55 bay and cell, to record what he viewed as safety issues, but the record does not establish what guidelines Williams had arguably violated by making such entries. See HT 223-24 (Williams), 1571-74 (Cole); CX 106 at M&H000284-285 ( De los Santos' records); RX 43 at M&H000061-63.
19 One example is when Williams moved Jackovich aside and took her place in a training exercise. This made her angry because she felt that he had treated her in a condescending manner. HT 1313-15 (Jackovich).
20 Although we have considered the effects of second-hand harassment in assessing the level of hostility established by the Complainants, we do not attempt to include all the incidents of second-hand harassment in the summaries that follow.
21 The Complainants all allege that they were subjected to a HWE beginning while they were in W55 training – October 1995 through January 1996 – and continuing until they each departed the W55 late in 1996. ALJX 1-6. All dates cited in the following summaries occur in 1996, unless otherwise indicated.
22 RX 14 is a memorandum dated February 21, 1996, although it addresses the remarks made at the February 22 safety meeting. RX 14 at M&H002881. Carry testified that he inadvertently erroneously dated this and other memoranda that he authored which are in evidence. HT 1450-51 (Carry).
23 Long testified that "safe and repeatable process" was a phrase taken from the "seamless safety" approach to NEOPs development. HT 1394-1400 (Long). He also acknowledged, however, that Pantex had only begun the transition to the "seamless safety" approach at the time the W55 NEOPs were developed and that the W55 program only partially incorporated the "seamless safety" approach. HT 1407 (Long); see HT 1902, 1904-05 (Weinreich). Long testified that he did not believe that Herring intended her use of the "safe and repeatable process" phrase to discourage the voicing of concerns about the safety of the process. HT 1398-1400 (Long).
24 Williams was absent on leave connected with knee surgery from July 22 through August 25. RX 1.
26 Cole tentatively recalled that Sottile was the PT who had raised the issue about the number of units in the work area. HT 1546-51 (Cole). Especially since the record demonstrates that this issue was raised by a number of the Complainants at different times and with different supervisors, we do not consider this tentative identification of the PT who raised the issue to undermine McQuay's testimony that he raised the issue.
27 The timing of McQuay's assignment to work with the Facilities Management division suggests a retaliatory motive and that action clearly added to the hostility that McQuay experienced on the W55 program. As with Williams' temporary reassignment to the W70 program in March, however, we do not agree that McQuay's interim assignment represented a transfer of the type that constitutes an independent basis for an ERA complaint. See, e.g., Stone & Webster Eng'g Group v. Herman, 115 F.3d 1568, 1574, 1576 (11th Cir. 1997), aff'g Harrison v. Stone & Webster Eng'g Group, No. 93-ERA-44, (Sec'y Aug. 22, 1995); DeFord v. Sec'y of Labor, 700 F.2d 281, 283, 287 (6th Cir. 1983); Thomas v. Ariz. Public Serv., No. 89-ERA-19, slip op. at 2, 7-8, 15-16 (Sec'y Sept. 17, 1993). Uncontradicted evidence establishes that PTs – rather than custodial personnel – were routinely assigned to clean restricted manufacturing areas, owing both to security concerns and the risks posed by hazardous materials in those areas. HT 682-84 (Brito), 975 (Rodriguez), 1332-33 (Moore). Consequently, such assignments fell within the parameters of the PT position. Although McQuay urged that he was assigned to work in non-manufacturing areas under extremely cold conditions, he did not establish the duration of such assignments and whether he objected to the assignment at that time. See Boudrie v. Commonwealth Edison Co., No. 95-ERA-165, slip op. at 9-10 (ARB Apr. 22, 1997); cf. Carter v. Elec. Dist. No. 2 of Pinal Co., No. 92-TSC-11, slip op. at 2, 15, 17 (Sec'y July 26, 1995) (complainant established that transfer from office job of environmental compliance officer to warehouseman, which required him to dig holes outdoors in excessive heat, lasted a number of months). We thus conclude that the evidence does not establish that the custodial assignments in this case were materially distinguishable from the custodial work ordinarily performed by PTs while between weapons programs.
28 Under the ERA as amended in 1992, an employer may avoid liability for an adverse action related to protected activity by establishing with clear and convincing evidence that it would have taken the same adverse action in the absence of protected activity on the part of the complainant. 42 U.S.C. §5851(b)(3)(C), (D). For example, in a case involving a challenged termination from employment, an employer might avoid liability by showing that the termination would have occurred due to a reduction in force, whether the employee engaged in protected activity or not. This dual, or mixed, motive paradigm could also be applied to a hostile work environment complaint, and would provide a means of avoiding liability prior to reaching the traditional negligence and vicarious liability theories that we discuss infra. Instead of proving that the complained of personnel action would have been taken in the absence of protected activity, the employer would be required to prove that factors unrelated to protected activity created a level of hostility equal to that which would be actionable under the ERA. We have considered whether each of the Complainants would have experienced an actionable level of hostility had he not engaged in activity protected by the ERA, i.e.,whether personality conflicts or other factors unrelated to protected activity would have provoked a level of hostility comparable to the actionable level of hostility in this case. Based on our analysis of the relationship between the Complainants' protected activities and the incidents of harassment that are set forth at §IID3 supra, we conclude that the animosity toward the Complainants would not have reached an abusive level in the absence of their protected activities.
29 Nonetheless, as one Court of Appeals observed, "the developing consensus" is that the Ellerth and Faragher standard applies to other types of harassment under Title VII. See Spriggs v. Diamond Auto Glass, 242 F.3d 179, 186 n. 9 (4th Cir. 2001) and cases there cited; see also Walker v. Thompson, 214 F.3d 615, 626-28 (5th Cir. 2000). We also note, however, that the Ellerth and Faragher standard has been subject to varying interpretations by Federal courts. See Jeannine Novak, "Let's Be Reasonable"- Resolving the Ambiguities of the Faragher-Ellerth Affirmative Defense, 68 Def. Couns. J. 211 (2001); Daniel N. Raytis, Note, Indest v. Freeman Decorating, Inc.: Dealing with Vicarious Liability for Sexual Harassment by a Supervisor, 35 U.S.F.L. Rev. 623 (2001).
30 Primarily because we disagree with the ALJ's conclusion that supervisory harassment did not play a role in the hostile work environment, we cannot concur in his reliance on two actions that W55 supervisors took after operations resumed in May. See RD&O at 62. First, the separation of the Complainants from antagonistic A Group PTs could have constituted a reasonable corrective action if Pontius and Harter had handled it properly, but they did not. See PTcertification discussion supra §IIF. The separation was not addressed in any of the Action Plans submitted by the Respondent, and was not cited by Angelo or Weinreich as a corrective action. See RX 40, 62, 79, 124. Similarly irrelevant to the corrective actions taken by higher management in April are the weekly meetings held with the PTs by Brito and Cole. See RD&O at 62-63; Resp. Supp. Brief at 32. Brito testified that he suggested these meetings to Herring, to provide an opportunity for the PTs to raise concerns about work on the W55 operation. HT 676-77 (Brito). After Carry and Herring left the W55 in late March, Brito held the meetings along with Cole. HT 677-78 (Brito). Our findings that Brito contributed to the hostility toward the Complainants, that other PTs ridiculed those who raised safety concerns in stand-up meetings, and that the supervisors present did not control such ridicule, see discussion supra § IIE3, detract from consideration of this as a remedial action.
31 Angelo explained that W55 PTs had previously asked for less supervisory presence while they were working and had asked that the weekly meetings with middle management be suspended. HT 1834-35 (Angelo). Cole also testified regarding the PTs' request that first-line supervisors not be "always looking over their shoulders"; Cole's records indicate that management had agreed to that request on October 3. HT 1527-31 (Cole); RX 97 at M&H000253.
32 We do not agree with the Respondent that its discipline of Harter for his angry conduct on November 27, 1996 constitutes a corrective action for purposes of the employer liability analysis. RRB16 n.16. Angelo testified that Harter was disciplined – at some unidentified time after November 27 – for his intemperate remarks and conduct on that occasion but Angelo repeatedly denied that Harter's angry remarks about the DOE representative stopping Sottile and Williams constituted harassment. HT 1024-26, 1788-89 (Angelo); see HT 1676-77 (Rowe); see also discussion supra §IIE1. We therefore have not considered that discipline among the corrective actions taken by the Respondent.
33 We need not reach the alternative ground for establishing the second prong, i.e., that the complainants unreasonably failed to avoid harm otherwise. See Faragher, 524 U.S. at 807; Ellerth, 524 U.S. at 765.
34 Our hostile work environment determination essentially ends with the reassignments of the last of the six Complainants from the W55 in early to mid-December 1996. We have credited the testimony of Sottile and Byrd that Harter, Brito and Pontius were ominously silent or openly rude when they crossed paths with those Complainants shortly after their reassignments but, like the ALJ, have not considered events related to the Complainants' work assignments since that time. See §IIE3, 5 supra; see also HT 1141-48 (ALJ, ruling that the HWE complaints before him were limited to retaliation for protected activity on the W55 and that evidence related to the Complainants' later program assignments was not relevant).
35 Although Sottile applied for two identical supervisory positions in May, one in Cole's section and one in the section managed by Byron Burkhard, Sottile has challenged only the non-selection for the position under Cole's supervision. HT 121-30, 187-88 (Sottile); see HT 645-46 (Burkhard).