DATE: March 30, 1994
CASE NO. 88-ERA-17
IN THE MATTER OF
JAMIE H. MANDREGER,
COMPLAINANT,
v.
THE DETROIT EDISON COMPANY,
RESPONDENT.
BEFORE: THE SECRETARY OF LABOR
DECISION AND ORDER
Before me for review is the Recommended Decision and Order
(R.D. and O.) of the Administrative Law Judge (ALJ) in this case
arising under the employee protection provision of the Energy
Reorganization Act of 1974, as amended (ERA), 42 U.S.C. §
5851 (1988). The ALJ recommended dismissal of the complaint
because Complainant Jamie Mandreger did not establish that his
activities protected by the ERA motivated the adverse actions
that Respondent Detroit Edison Company (Detroit Edison) took
against him. Although I agree with the ALJ's conclusion, I write
to clarify the elements of a prima facie case and the burdens of
production and persuasion.
At the outset, I commend and adopt the ALJ's exhaustive
findings of fact, R.D. and O. 3-8, and analysis of the testimony.
R.D. and O. 8-51. The six day hearing resulted in nearly 1,500
pages of transcript and included the introduction of numerous
documents. A brief recitation of the facts will focus the
discussion.
I. The Facts
Mandreger began working for Detroit Edison in 1983 and
[PAGE 2]
voluntarily transferred to a position in the maintenance section
of its Fermi 2 nuclear power plant in May 1987. R.D. and O.
at 3; T. 53-56. The next month, Mandreger was told to throw away
some new equipment that was in storage, and he informed his
supervisor, John Sutka, that he would be willing to write a
proposal to save Detroit Edison from such an expense in the
future. T. 65. According to Mandreger, Sutka replied that the
idea was "a good way to find yourself in cement shoes at the
bottom of a river." T. 66. [1] Although he felt threatened,
Mandreger did not report the statement to any authority because
he was in his probationary period at Fermi 2 and was afraid of
being sent back to his former position. T. 219.
Mandreger made several suggestions to managers in October
and November, 1987, but Detroit Edison did not address them.
R.D. and O. at 3; T. 69-71. On December 4, 1987, Mandreger
complained to his supervisor, Don Gardner, and a union steward
about leaking gauges that were labelled "internally contaminated"
with radiation and had been left in the "clean" portion of the
hot tool crib area in which Mandreger was working. T. 74, 239.
While Gardner was elsewhere seeking an explanation of the leaking
gauges, a health physics technician frisked the gauges to measure
radiation and told Mandreger not to move them until they were
found to be clean. T. 75-76; CX 1 p.1. Gardner returned, told
Mandreger to move the gauges, and Mandreger refused because of
the direction from the health physics technician. T. 75.
Gardner overheard Mandreger tell the union steward that if
forced to, he would go to the Nuclear Regulatory Commission (NRC)
about the gauges. T. 76, 84. Mandreger promptly spoke with the
secretary of the on-site NRC official and informed her that he
was making a complaint. T. 78.
Later the same day, Mandreger saw Sutka about a different
matter. Mandreger claims that Sutka brought up the NRC and told
him that going to the NRC "makes us look bad" and would not solve
the department's problems. T. 80; CX 1 p.1. Sutka admitted that
he asked Mandreger about the problem at the hot tool crib, but
said that he did not mention the NRC during the conversation, and
did not recall Mandreger's mentioning it either. T. 1387, 1414.
Mandreger discussed the leaking gauges issue with his wife
the weekend of December 5-6. T. 405, 426. Mrs. Mandreger helped
him prepare a lengthy typewritten report, T. 81, 425-426, CX 1,
which Mandreger submitted to the NRC on Monday, December 7, 1987.
T. 88. The leaking equipment was no longer in the same storage
area when Mandreger reported to work on December 7. An NRC
inspector visited Mandreger to discuss the report that day.
T. 89.
According to Mandreger, a series of incidents of
intimidation and harassment occurred after he complained to the
[PAGE 3]
NRC. For example, Gardner purportedly told Mandreger that he
should not have reported to the NRC because Detroit Edison would
have solved the problem. T. 96. Gardner admitted that he saw
Mandreger speak with the NRC official and that after the official
left, he asked Mandreger what the conversation was about.
T. 751-752. Gardner testified that it was possible that he made
the statement about the NRC, although he did not recall doing so.
T. 753, 807. Another worker who overheard part of the
conversation between Mandreger and Gardner did not hear Gardner
make the alleged statement about the NRC. T. 852-853 (Greg
Osmulski).
Mandreger noticed that whereas prior to December 7,
supervisors sent clerks to perform periodic checks of the area in
which he worked, after that date the supervisors made such checks
themselves. T. 102-103. Mandreger felt he was being watched
closely by his managers. T. 102, 274-176, 279, 408.
At Mandreger's request, Vincent Piersante, an independent
management consultant hired by Detroit Edison, met with him on
December 9, 1987. T. 926-927. Piersante had interviewed
witnesses often as the former chief of detectives for the Detroit
Police Department, and testified that Mandreger's conversation
was incoherent and his comments were not substantive. T. 955-
956. According to Piersante, Mandreger seemed distrustful and
frustrated because he believed that people were not listening to
him or doing anything to correct his complaints. T. 946, 956-
957. In a written memorandum that he gave to the director of
nuclear security at the plant, T. 962, Piersante reported his
concern that Mandreger "may be on the verge of an explosion" and
suggested "that some means of communication be taken to allay his
fears." RX 15, p. 2; T. 934, 964.
A few weeks later, as Gardner concluded a briefing session
for tool and warehouse workers on new procedures for the hot tool
crib, he asked Mandreger (and no one else present) if he had any
more questions. T. 103. Mandreger felt singled out. Id.
Gardner explained that Mandreger had asked several questions
during the session that revealed he did not understand the
information. T. 754, 811. The health physics technician at the
session noted that Mandreger seemed frightened and corroborated
that Mandreger asked several questions during the meeting.
T. 972-973.
At about the same time that the NRC began its formal
investigation of Mandreger's complaint, Detroit Edison reassigned
Mandreger to a position unloading trucks at Warehouse A of the
plant. T. 109. Mandreger conceded that he knew the hot tool
crib assignment was not permanent. Id. All maintenance
and modification department personnel received new assignments at
that time. T. 375-376.
[PAGE 4]
In early January, 1988, a nonsupervisory employee, Greg
Osmulski, told Mandreger that "the best thing you could have ever
done was [go] to the NRC. Things are really changing around
here, I'm glad to see that going on." T. 104. Mandreger took
Osmulski to be speaking sarcastically, id., but Osmulski
testified that he was speaking sincerely. T. 872. Osmulski
earlier had complained about the same issue, the mixing of clean
and contaminated tools in the hot tool crib, to John Sutka.
T. 869.
Sutka was replaced by new supervisor John Shafer on
January 12, 1988. T. 293. After an introductory meeting, Shafer
called Mandreger aside and expressed his condolences on the death
of Mandreger's mother, which had occurred a week earlier.
T. 109. Mandreger testified that during this conversation,
Shafer brought up the NRC and told him that reporting to the NRC
"makes us look bad." T. 109-110. Shafer maintained that it was
Mandreger who brought up the NRC and that he appeared irritated
and agitated. T. 630-631. Mandreger testified that a union
steward told him that Shafer was accusing Mandreger of yelling at
him during the January 12 conversation. T. 111. The steward
denied the accusation and stated that he was on vacation at the
time he supposedly told Mandreger about Shafer. T. 469.
The next alleged incident of harassment occurred on Friday,
January 22, 1988, when Gardner asked Mandreger his whereabouts
for an hour during the day. T. 111. Gardner did not threaten to
take disciplinary action, T. 379, but rather, out of concern for
getting the work done, sought an explanation for an apparent one
hour absence from the work site. T. 760, 839. After Mandreger explained where he had been and what he was doing, the issue was
resolved and the two shook hands and parted. T. 313, 379, 763.
Notwithstanding the amicable resolution of the issue,
Mandreger set out to confirm through others that he had been
working during the hour in question. T. 132, 314. Mandreger
went to Gardner's office, explained the proof of his whereabouts,
and told Gardner to "watch [your] p's and q's. . . I got
witnesses showing me that I was there on the job, security's got
it down . . . you keep this stuff up I'll go to Channel 7, I'll
expose you for what you're doing here." T. 133. Mandreger was
speaking loudly. T. 764.
Later that day, a union representative informed Mandreger
about a meeting with his supervisors concerning his behavior.
T. 136, 1003. Mandreger asked the union representative to
accompany him to the office of the resident NRC inspector,
where Mandreger related the events and complained that he was
being harassed by management. T. 136.
At the meeting, Shafer directed Mandreger to punch out for
the day, T. 142, and to report to the Employee Assistance Program
[PAGE 5]
(EAP) the following work day because the supervisors believed
that he had an emotional problem. T. 140-142. Mandreger
promptly telephoned union official Gary Jamison, complained that
Detroit Edison was retaliating against him for filing an NRC
report, and said that he had "some information that [would] blow
the lid off" the national presidential election that year.
T. 1067-1068, 1435. That evening, Mandreger reported to the
Michigan State Police the "cement shoes" threat that Sutka
allegedly had made seven months earlier. RX 7; T. 1256.
Mandreger told the officer that he was working undercover for the
FBI and the NRC to report wrongdoings at Fermi 2. T. 1256.
An EAP staff Social Worker, John Nadolski, interviewed
Mandreger on January 25, indicated that he believed Mandreger was
fine and could return to work, T. 144, and explained that a staff
physician's authorization was required. Mandreger then saw
Dr. Douglas Smith, a Detroit Edison staff internist, who informed
Mandreger he thought there was a problem and referred him to an
outside psychiatrist. T. 146-147. Nadolski concurred with the
referral. Id. Mandreger felt that Nadolski had baited
him with an assessment that he was fine in the morning and with
agreement to a psychiatric referral a few hours later. T. 147.
Two days later, psychiatrist Gulam Qadir interviewed
Mandreger, who requested an extra copy of Qadir's forthcoming
written evaluation so that he could use it to apply for
employment with the National Aeronautics and Space
Administration. T. 1208. Mandreger wore a black raincoat and
sunglasses and used a tape recorder during Qadir's evaluation.
T. 1203, 1221. Qadir diagnosed bipolar affective disorder, and
noted that Mandreger was in the manic phase and had persecutory
delusions. T. 1204, 1220, 1222. Qadir recommended that
Mandreger take medication (lithium) because without it he could
become dangerous to himself or others. T. 1242-43. He explained
that persons with the disorder often think they can stop taking
the medication when they feel better, but they experience
additional episodes of the illness as a result. T. 1243-44.
Qadir testified that is imperative that a patient with bipolar
affective disorder consistently take the correct amount of
medication, and opined that if such an assurance could be made,
Mandreger could return to work. T. 1244. Qadir could not
guarantee that Mandreger would take the prescribed level of
medication, however, because he totally denied having a problem.
T. 1244. Thus, Qadir recommended that Mandreger not return to
work in any setting, T. 1207, and that he undergo treatment for
bipolar affective disorder.
Smith met with Mandreger on February 8, informed him that he
could not return to work, and suggested that he receive treatment
for bipolar affective disorder. T. 1269-1270. Smith reported
[PAGE 6]
that Mandreger was reluctant to admit that he was ill, T. 1269,
and asked permission to get an evaluation from a psychiatrist of
his own choosing. T. 1271. Smith consented and agreed to take
into consideration additional medical opinions. T. 1271-1272.
Mandreger filed the instant complaint under the ERA and a
related civil action in a Federal district court in February
1988. See CX 3, order dismissing the civil action.
Mandreger exhibited no behavior indicative of mania or
depression during a March 4 visit to Smith. T. 1302. Mandreger
saw three additional psychiatrists or psychologists, each of whom
gave him a one-page note authorizing his return to work because
there was no evidence of psychiatric illness. E.g., RX 6;
T. 1272, 1274. Nevertheless, Smith continued to keep Mandreger
off work because a bipolar disorder can regress and reappear in a
short time if not treated, and Mandreger was not in treatment at
the time. T. 1303. A March 11 meeting between Smith and
Mandreger ended with Smith agreeing not to reach a final decision
on Mandreger's return to work until Mandreger produced a fourth
medical opinion. T. 1274.
A few days earlier, Mandreger had consulted an additional
psychiatrist, Dr. Gloria Pitts, who provided a one-page opinion
letter that he could return to work because psychiatric illness
was not demonstrated. T. 1274-1275, 1344-1345. Notwithstanding
that letter, Pitts testified that her evaluation of Mandreger was
not complete after his first visit. T. 1345.
In late March, while on the way to the union hall to sign a
release authorizing Dr. Smith to obtain the medical records from
Mandreger's visits to psychiatrists, Mandreger had a psychotic
episode. He was found by the police in his hometown in another
part of the state. T. 160-161. After finding Mandreger injured
and disoriented in a home that he had broken into, the police
took him to a hospital emergency room for treatment. T. 162.
From there, he was transferred to a mental institution, where he
stayed for 17 days and was treated with medication, including
lithium, for bipolar affective disorder. T. 164-165; RX 4,
p. C46 et seq.
Mandreger was released from the mental institution into the
care of Dr. Pitts. T. 167. Upon reviewing Mandreger's recent
history and hospitalization, Pitts agreed with the diagnosis of
bipolar affective disorder and prescribed lithium. T. 1346-1347,
1352. She testified that Mandreger would have to remain on the
medication for a long time, possibly his entire life. T. 1348,
1352. Dr. Pitts believes that several factors, including
genetics, personal issues, and employment stresses, triggered
Mandreger's bipolar disorder, T. 1355-1356.
During this period, Mandreger exhausted his sick leave and
vacation pay, and for about three weeks he received no income.
[PAGE 7]
T. 154-155. Due to the financial strain, he greatly desired to
return to work. T. 153.
Mandreger presented to Dr. Smith a second work release from
Dr. Pitts in May 1988. T. 1278; RX 5 pp. 7-8. Smith spoke with
Pitts, who agreed that Mandreger should not return to Fermi 2
because it was a stressful work site. T. 1279, 1361, 1379, 1397.
In view of Smith's decision that Mandreger could not return
to Fermi 2, and pursuant to the governing collective bargaining
agreement, Detroit Edison placed Mandreger in a maintenance
position at its non-nuclear River Rouge Power Plant. T. 1439.
Mandreger's new position had the same base pay as the former one,
T. 1439-1440, but it did not provide as much potential for
earning overtime pay or for advancement. T. 175-177. Mandreger
considered the new position inferior to his former position at
Fermi 2. T. 174.
Some time in June 1988, Mrs. Mandreger informed Dr. Pitts
that Mandreger was not taking his prescribed medication, and
Pitts confirmed this through blood tests. T. 1348-1349. She
last saw Mandreger in June or July 1988. T. 1350.
Dr. Pitts testified that on August 23, 1988, she received
notice either from Mandreger's family or his counsel that
Mandreger apparently had resigned from employment with Detroit
Edison and had disappeared. T. 1353. Dr. Pitts considered these
actions to be connected with Mandreger's mental disorder.
T. 1353, 1357-1358.
II. Analysis
Under the ERA's employee protection provision, an employer
may not discharge or discriminate against an employee because the
employee:
(1) commenced, caused to be commenced, or is
about to commence a proceeding under [the
ERA] or the Atomic Energy Act of 1954 . . .
or a proceeding for the administration or
enforcement of any requirement imposed under
[the ERA] or the Atomic Energy Act of 1954
. . .;
(2) testified or is about to testify in any
such proceeding or;
(3) assisted or participated or is about to
assist or participate in any manner in such a
proceeding or in any other manner in such a
proceeding or in any other action to carry
out the purposes of [the ERA] or the Atomic
Energy Act of 1954 . . . .
42 U.S.C. § 5851(a) (1988). [2] There is no dispute that
[PAGE 8]
Mandreger is an employee and Detroit Edison is an employer
subject to the ERA. R.D. and O. at 3, 55.
A. Prima Facie Case
To make a prima facie case, the complainant in a
whistleblower case must show that he engaged in protected
activity, that the respondent subjected him to adverse action,
and that respondent was aware of the protected activity when it
took the adverse action. Complainant must also raise the
inference that the protected activity was the likely reason for
the adverse action. Dartey v. Zack Co. of Chicago, Case
No. 82-ERA-2, Sec. Ord., Apr. 25, 1983, slip op. at 8.
Mandreger's internal complaints to managers and to his
union steward constituted protected activities under the ERA.
SeePillow v. Bechtel Construction, Inc., Case No.
87-ERA-35, Dec. and Order of Remand, July 19, 1993, slip op. at
11 (protected activities included making internal complaints to
management and contacting union representative). The United
States Court of Appeals for the Sixth Circuit, whose decisions
are controlling in this case, has stated that the ERA's employee
protection provision protects internal complaints to management,
Jones v. Tennessee Valley Authority, 948 F.2d 258, 264
(6th Cir. 1991), and the majority of circuits agree. SeeCouty v. Dole, 886 F.2d 147 (8th Cir. 1989) (implicit);
Kansas Gas & Elec. Co. v. Brock, 780 F.2d 1505, 1513 (10th
Cir. 1985) (explicit), cert. denied, 478 U.S. 1011 (1986);
Mackowiak v. University Nuclear Systems, Inc., 735
F.2d 1159, 1163 (9th Cir.) (explicit); Consolidated Edison Co.
v. Donovan, 673 F.2d 61 (2d Cir. 1982) (implicit). But
see, Brown & Root, Inc. v. Donovan, 747 F.2d 1029 (5th
Cir. 1984) (ERA protects only complaints to governmental bodies).
Mandreger's threat to report safety issues to the NRC also
was a protected activity. See, e.g., Couty v.
Arkansas Power and Light Co., Case No. 87-ERA-10, Final Dec.
and Order, June 20, 1988, adopting ALJ R.D. and O. of November
16, 1987, slip op. at 9 (threat to go to NRC is protected under the ERA),
aff'd in relevant part, Couty, 886 F.2d 147.
The report Mandreger made to the NRC clearly is protected as
well.
The ALJ found that Detroit Edison took adverse action
against Mandreger "with respect to his compensation, terms,
conditions or privileges of employment when the Complainant was
referred to EAP," the Employee Assistance Program. R.D. and O.
at 53. I note that the referral itself did not cause any
diminution in the terms or conditions of employment.
Rather, the results of referring Mandreger to the EAP
constituted adverse action in this case. In view of Dr. Qadir's
assessment that Mandreger had bipolar affective disorder and did
not accept that diagnosis, Mandreger was not permitted to return
[PAGE 9]
to work. After his sick leave and vacation days ran out,
Mandreger was without pay for a period. The ultimate action
Detroit Edison took, transferring Mandreger to the River Rouge
plant, placed him in a position in which there was less
opportunity to earn overtime pay and, according to Mandreger,
less opportunity for advancement. Thus, I find that barring
Mandreger from Fermi 2 and transferring him to River Rouge
constituted adverse actions against him.
The ALJ found that Detroit Edison was aware that Mandreger
had engaged in protected activities, R.D. and O. at 53, and I
agree. Mandreger freely spoke to his managers about having made
various complaints to management and to the NRC, and the managers
confirmed that they knew Mandreger had made such complaints.
T. 630-631 (Shafer), 747, 793 (Gardner). In addition, co-worker
Greg Osmulski said that Mandreger's NRC complaint was common
knowledge among the hot tool crib workers. T. 854.
The final element of a prima facie case is raising the
inference that the complainant's engaging in protected activities
motivated the adverse action against him. Temporal proximity
between the protected activities and the adverse action may be
sufficient to establish the inference. Couty, 886 F.2d at
148 (temporal proximity sufficient as a matter of law to
establish final element in a prima facie case).
Mandreger complained to his managers about safety issues in
October, November, and December of 1987, and formally complained
to the NRC in the latter month. He was not permitted to work at
Fermi 2 beginning in January 1988, as a result of which he was in
a nonpay status for a few weeks in April and May of 1988, and he
was transferred to a different position effective May 17, 1988.
About six months elapsed between Mandreger's initial internal
complaints and the final adverse action, job transfer. I find
that Mandreger introduced evidence sufficient to raise an
inference that his protected activities likely motivated the
adverse actions against him. SeeThomas v. Arizona
Public Service Co., Final Dec. and Order, Sept. 17, 1993,
slip op. at 19 (one year constituted sufficient temporal
proximity to raise inference of causation); Goldstein v.
Ebasco Constructors, Inc., Case No. 86-ERA-36, Case No. 86-
ERA-36, Sec. Dec., Apr. 7, 1992, slip op. at 11-12, reversed
on other grounds sub nom. Ebasco Constructors, Inc. v.
Martin, No. 92-4567 (5th Cir. Feb. 19, 1993) (passage of
seven or eight months sufficient). I therefore find that
Mandreger established a prima facie case of a violation of the
ERA.
B. Respondent's Burden of Production and the Dual
Motive Analysis
Once Mandreger established a prima facie case, the burden
shifted to Respondent to articulate a legitimate,
[PAGE 10]
nondiscriminatory reason for the adverse actions, Dartey,
slip op. at 8, and Detroit Edison did so. Although I have found
that referral to the EAP was not itself an adverse action, it did
lead to Detroit Edison's taking adverse actions against
Mandreger. I find that Detroit Edison adequately explained the
reasons why it made the referral in this case. Various union and
management witnesses testified to Mandreger's unusual statements
and behavior on the job. For example, Shafer convincingly
testified that he was startled by Mandreger's excited and hostile
reaction to his mentioning on January 12 that he knew there had
been problems with the previous management in the department. T.
630. In addition, Gardner explained that at the end of his
initial talk with Mandreger about his whereabouts on January 22,
he considered the matter resolved when Mandreger shook his hand.
T. 763. Nevertheless, a few minutes later, Mandreger angrily
confronted Gardner and threatened to "go to Channel 7" with news
about problems at Fermi 2 simply because Gardner had asked him
where he had been between 11 a.m. and noon. T. 764. Detroit
Edison had an established program of requiring supervisors to
observe employee work behavior and refer to the EAP those who
exhibit aberrant behavior. See RX 20, the materials from
Detroit Edison's Behavior Reliability Training Workshop, which
supervisors are required to attend. T. 1326. Gardner, who
reported Mandreger's unusual behavior to his superiors in January
1988, had attended a refresher course in behavior reliability
training that month. T. 1335.
Likewise, Detroit Edison proffered a legitimate reason for
barring Mandreger from Fermi 2. I find that the inherent danger
in a nuclear power plant justifies Detroit Edison's concern with
the emotional stability of the employees who work there.
SeeRose v. Secretary of Labor, 800 F.2d 563, 565
(6th Cir. 1986) (nuclear power is "one of the most dangerous
technologies mankind has invented"). Indeed, the NRC requires
licensed operators of nuclear power plants to ascertain
employees' emotional stability. T. 1319; seealso,
RX 19. Dr. Smith's observation of Mandreger's hostility and
tendency to jump from topic to topic during the interview on
January 22, T. 1267, justified the initial decision to keep
Mandreger away from the work site. After Mandreger's
hospitalization and the agreed diagnosis of bipolar affective
disorder, there was ample reason not to permit Mandreger to
return to work at Fermi 2.
When the employer's adverse action against the employee was
motivated by both prohibited and legitimate reasons, the dual
motive doctrine applies. Dartey, slip op. at 8-9;
seeMackowiak, 735 F.2d at 1163; Mt. Healthy
City School District Board of Education v. Doyle, 429 U.S.
274, 287 (1977). In such a case, the employer has the burden to
show by a preponderance of the
[PAGE 11]
evidence that it would have taken the same action concerning the
employee even in the absence of the protected conduct.
Dartey, slip op. at 9; Mackowiak, 735 F.2d at 1164;
Mt. Healthy, 429 U.S. at 287; Price Waterhouse v.
Hopkins, 490 U.S. 228, 252 (1989) (plurality opinion).
The employer bears the risk that the influence of legal
and illegal motives cannot be separated. Mackowiak, 735
F.2d at 1164; Guttman v. Passaic Valley Sewerage Comm'rs,
Case No. 85-WPC-2, Final Dec. and Order, Mar. 13, 1992, slip op.
at 19, aff'd sub nom.Passaic Valley Sewerage
Comm'rs v. U.S Dept. of Labor, 992 F.2d 474 (3d Cir. 1993).
The strongest evidence of a retaliatory motive on Detroit
Edison's part is Gardner's statement that it was wrong for
Mandreger go to the NRC because Detroit Edison could have solved
the problem about which he complained. T. 95-96. Although
Gardner initially testified that he did not believe he ever made
such a statement to Mandreger, T. 753, he later conceded that it
was possible that he did. T. 807. [3] The ALJ apparently
believed that Gardner made the alleged comment because he found
that Gardner's expressed views were "legitimate statements of the
employer's view of how employees should more properly present
safety concerns. Such comments in the context of this case were
not wrongful acts of harassment." R.D. and O. at 56, par. 9 (b).
The ALJ did not explain why he viewed Gardner's statement in such
a benign light.
I do not agree with the ALJ's assessment of Gardner's
statement. I find that Gardner exhibited animus against
whistleblowing when he told Mandreger it was wrong to go to the
NRC because Detroit Edison could solve the problem.
The other purported instances of harassment or anti-
whistleblower statements are another matter, however. Mandreger
testified that worker Greg Osmulski said in a laughing, sarcastic
tone that Mandreger's going to the NRC was the best thing that
ever happened to their group. T. 104. Osmulski testified that
he had mentioned several times to managers that tools in the hot
crib area needed to be segregated into "clear" and
"contaminated," to no avail. After Mandreger's complaint,
segregation of the tools became a priority, T. 864, and I agree
with the ALJ that Osmulski was sincere when he thanked Mandreger
for going to the NRC. T. 872; R.D. and O. at 12, 30.
According to Mandreger, in a January 12, 1988, conversation,
manager John Shafer brought up the NRC and said it was wrong to
report to the NRC because it made the company look bad. T. 109-
110. Shafer testified that it was Mandreger who brought up the
NRC, and denied criticizing him for making a report to the NRC.
T. 631, 678; R.D. and O. at 23. The ALJ credited Shafer's
testimony that it was Mandreger who first mentioned the NRC, but
did not resolve the purported criticism of reporting to the NRC.
[PAGE 12]
R.D. and O. at 23. Rather, the ALJ found that "even if Shafer
told Mandreger that going to the NRC was wrong, such a statement
was probably more in the nature of a defensive response rather
than an attempt to harass or intimate Mandreger." Id.
Unlike Gardner, Shafer did not equivocate in his denial of
making a statement that it was wrong to go to the NRC. Since the
ALJ credited Shafer about who first mentioned the NRC, R.D. and
O. at 12, I also credit Shafer's denial that he made the
statement that going to the NRC was wrong.
According to Mandreger, manager John Sutka also made the
statement that going to the NRC was wrong because it made the
company look bad. The ALJ noted the similarity in the statements
Mandreger attributed to both Shafer and Sutka, but did not
resolve the "confusion as to what Mandreger was told and by
whom." R.D. and O. at 32. Although "not particularly impressed
with Sutka's overall credibility," the ALJ nevertheless credited
Sutka's denial of mentioning the NRC to Mandreger because of
"Mandreger's tendency for exaggeration." R.D. and O. at 10.
Assuming that Sutka made the criticism, the ALJ found that it was
not an act of harassment or intimidation. Id. at 32.
I agree with the ALJ that it is more plausible that Sutka did not
make the critical statement. R.D. and O. at 32. [4]
I further agree with the ALJ that Mandreger showed a
propensity to embellish or exaggerate events. R.D. and O. at 54.
One example is that Mandreger attributed nearly identical
statements critical of reporting to the NRC to both Shafer and
Sutka. Mistaking the sincerity of Osmulski's gratitude for
Mandreger's NRC report is another. In addition, on cross-
examination, Mandreger recanted the statement he made in a
deposition that Gardner had criticized him on 10 to 12 occasions.
T. 334.
I find that Mandreger incorrectly assumed that management
was watching him closely after his December 7 NRC report. The
evidence shows that managers took a closer look at the hot tool
crib operation, so as to improve it after Mandreger complained.
Similarly, the evidence shows the rational basis for
Gardner's asking Mandreger whether he had any questions at the
end of a meeting with the hot tool crib workers. Health Physics
technician Dixie Wells corroborated Gardner's testimony that
Mandreger had asked several questions, T. 972, and seemed
"frightened" at the meeting. T. 972. I therefore agree with the
ALJ's finding, R.D. and O. at 56, par. 9(c), that there was no
evidentiary support for Mandreger's claim that management
overscrutinized his work.
I impute supervisor Gardner's criticism of reporting to the
NRC to Detroit Edison, and therefore, I find that the company had
an improper motive when it took adverse action against Mandreger.
[PAGE 13]
It was Gardner's report of Mandreger's odd behavior that set in
motion the events leading to the adverse actions against
Mandreger.
As explained above, Detroit Edison also had legitimate
reasons for barring Mandreger from Fermi 2 and transferring him
to the River Rouge plant. Thus, I find that there were mixed
motives for Detroit Edison's actions, and the dual motive
analysis applies. Detroit Edison had the burden of establishing
that even in the absence of Mandreger's protected activities, it
would have taken the same adverse actions.
Mandreger argues that his illness was caused by the
harassment and intimidation of Detroit Edison's managers because
he had engaged in protected activities, and therefore the company
has violated the ERA. But the doctors who testified cited
several factors as causing the onset of Mandreger's bipolar
affective disorder, including work place stress, [5] events in
his personal life, [6] and genetics. [7] Several doctors
agreed that because of his bipolar affective disorder, Mandreger
should not work at a nuclear power plant. T. 1279, 1306-1307
(Smith); 1361, 1379, 1397 (Pitts); and 1207 (Qadir).
The courts have recognized the seriousness of bipolar
affective disorder. See, e.g., Gardner v.
Morris, 752 F.2d 1271 (8th Cir. 1985) (describes attributes
of the illness in a handicap discrimination case under the
Rehabilitation Act of 1973); Hogarth v. Thornburgh, 833
F.Supp. 1077 (S.D.N.Y. 1993) (finds that person diagnosed with
bipolar affective disorder is a handicapped individual under
Rehabilitation Act of 1973).
Evidence in this record supports the courts' assessment of the
disorder. Mandreger had a 17-day stay in a mental hospital and
will need a lengthy, perhaps lifelong, course of medication. In
addition, Mandreger refused to accept the diagnosis of bipolar
affective disorder, [8] did not always take the prescribed
medication for it (lithium), [9] and continued to exhibit
behavior consistent with the manic phase of bipolar affective
disorder well after his hospitalization. [10]
This record shows that work place stress was only one of
several factors that precipitated bipolar affective disorder in
Mandreger. I am convinced that Mandreger misperceived as
directed at him various normal work place activities or concerns
that other employees would not have so perceived, and that his
whistleblowing did not cause Detroit Edison to single him out.
While there is one instance of a supervisor (Gardner)
exhibiting animus against Mandreger for reporting a safety
concern to the NRC, there also is overwhelming evidence that
Mandreger's work place behavior was aberrant. I find that
Detroit Edison established that the requirement for mental
stability of the work force at nuclear facilities justifies the
[PAGE 14]
actions taken against Mandreger, who has a serious mental
disorder and has exhibited a tendency not to take consistently
the medication prescribed for it. The psychotic episode in March
1988 showed that Mandreger could well be a danger to himself or
others if he was not taking medication. [11] I further find
that Detroit Edison met its burden of showing that even if
Mandreger had not engaged in any protected activities, it would
have barred him from work in a nuclear plant and transferred him
to a non-nuclear work site because of his aberrant behavior in the work
place. Accordingly, the complaint is DISMISSED.
SO ORDERED.
ROBERT B. REICH
Secretary of Labor
Washington, D.C.
[ENDNOTES]
[1]
Sutka testified that although he used the "cement shoes" phrase
humorously, he would never direct it as a threat to any
individual. T. 1406.
[2]
Section 2902(b) of the Energy Policy Act of 1992, Pub. L. 102-
486, 106 Sat. 2776, amended the employee protection
provision for claims filed on or after the date of its enactment,
October 24, 1992. See Section 2902(i) of Pub. L. 102-486.
Mandreger filed this complaint in 1988, so the 1992 amendment
does not apply.
[3]
The testimony of Greg Osmulski that he did not hear Gardner
mention the NRC in the conversation with Mandreger on December 9
is not dispositive, since Osmulski overheard only a portion of
the Gardner-Mandreger conversation that day. T. 853-854.
[4]
If either Shafer or Sutka had made the statements critical
of reporting to the NRC, I would find that the statements were
intimidating or harassing.
[5]
Dr. Elissa Benedek testified that due to his illness, Mandreger
perceived work as a stressor because he misperceived his
supervisors' statements. T. 549. She believed that Mandreger's
work was not a stressor in actuality. T. 565.
Dr. Gloria Pitts believed that the triggering event of his
illness was when a supervisor questioned Mandreger's whereabouts
on January 22, 1988. T. 1355-1356, 1370.
Dr. Richard Feldstein testified in a deposition that
harassment at work was a factor in the onset of Mandreger's
illness, CX 5 p. 28-31, and that Mandreger's feelings of
persecution and harassment were not delusions but rather based on
relevant actual events. CX 5 p. 103-04. But Mandreger admitted
that the statement he made to Dr. Feldstein that a supervisor
criticized him 10 or 12 times about going to the NRC was an
exaggeration. T. 334; see CX 5 p. 75. And Mandreger also
told Dr. Feldstein that he was going to lose his job, although he
conceded that this was his "feeling" and no one ever told him
that. T. 336. I agree with the ALJ's decision not to rely
heavily on Dr. Feldstein's medical opinion since it was based
on "the exaggerated events described by Mandreger." R.D. and O.
at 21.
[6]
Dr. Gulam Qadir believed that the triggering event in
Mandreger's illness was his mother's death on January 4, 1988,
after a long struggle with cancer. T. 1205, 1251-1252.
Dr. Benedek cited his mother's recent death, his father's death
when Mandreger was 18 years old, his wife's unplanned pregnancy,
and his strained relationship with his brother as stresses for
Mandreger. T. 499-500, 543-544. However, Dr. Pitts did not
agree that the mother's death was "a significant triggering
event" in Mandreger's bipolar affective disorder. T. 1357.
[7]
Dr. Elissa Benedek, who agreed with the diagnosis of bipolar
affective disorder, cited the genetic background of the illness.
T. 504, 543. Dr. Qadir agreed that there is a genetic element in
the illness. T. 1242.
[8]
Dr. Benedek testified that even at the time of the hearing,
Mandreger demonstrated "lack of insight into the fact that he is
ill" despite the fact that "there [were] still signs of a manic
illness present," and notwithstanding Mandreger's taking lithium.
T. 502. According to Dr. Qadir, Mandreger "totally denied that
he was an ill person." T. 1230.
[9]
In response to the question whether she would expect that a
person diagnosed with bipolar affective disorder for whom lithium
was prescribed would continue to take that drug, Dr. Benedek
explained, T. 503:
The problem with this illness is that
patients who have it often like the feeling
of being hyperenergetic, being high, having
quick thinking and so forth. And they often
don't like the calming [e]ffect of Lithium,
so they are noncompliant. And it sometimes
takes a number of episodes of the illness for
someone to recognize the need for Lithium.
So, there's a denial of illness with this
kind of illness.
Dr. Pitts determined clinically that Mandreger was not taking the
prescribed course of medication after his transfer to River
Rouge. T. 1348-1349.
[10]
When interviewed by Dr. Benedek during the course of the
hearing in August 1988, Mandreger continued to exhibit the
following manifestations of bipolar affective disorder: rapid
speech, pressured speech, flight of ideas, inability to stick to
the subject, and lability (or constant change) of affect (or
mood). T. 496-498, 502.
[11] See R.D. and O. at 16, Summarizing Mandreger's
testimony that he broke into a home because he was cold.
Seealso, RX 4 (complainant's medical records).
