Administrative Law Judge Ellin M. O'Shea submitted a Recommended
Decision to me holding that Brown & Root, Inc. (Brown & Root)
violated the employee protection provisions of the Energy
Reorganization Act (42 U.S.C. 5851) (ERA) when it transferred and
fired the complainant, Charles A. Atchison, from his job as
a Quality Control Inspector on April 12, 1982. Brown & Root
was the prime contractor of Texas Utilities Generating Company
(TUGCO) constructing the Comanche Peak Steam Electric Station
(CPSES) nuclear power plant at Glen Rose, Texas. Judge O'Shea
held that Mr. Atchison had made out a prima facie case that
his transfer and discharge were the result of his protected
activities of filing Nonconformance Reports. Because she explicitly
found that Brown & Root's stated reasons for its actions against
Mr. Atchison were pretextual, the ALJ held that Mr. Atchison
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had proven that his protected activities were the sole cause
of the adverse actions taken against him. She recommended
that the Secretary order reinstatement of Mr. Atchison to the
same position and rate of pay he held before he was fired,
with back pay to the date of reinstatement and expungement
of his personnel record. Judge O'Shea also recommended the
award of attorney's fees of $7,875. I agree with her finding
that a violation occurred; but; for the reasons discussed below,
I do not think it would serve the purposes of the Act to order
reinstatement or back pay beyond June 15, 1982. Therefore,
the Administrative Law Judge's recommended order is adopted
in part and modified in part, as discussed below.
Facts
The facts in this case are set forth in considerable detail
in the ALJ's recommended decision; I will summarize only the
most salient facts here.
Charles Atchison was hired by Brown & Root to work as a
documentation specialist at CPSES on February 29, 1979. No specific
education or experience was required for that position. It
is undisputed that Atchison misrepresented his education on
his application form by stating that he had received an Associate
of Arts degree from Tarrant County Junior College when in fact
he had only attended courses there and had not received a degree.
Each time he applied for promotion or took tests for certification
in inspection techniques he repeated this misrepresentation.
Moreover, when he applied for a job with TUGCO while he was
still working for Brown & Root, Atchison altered a copy of
a letter from Tarrant County Junior College to show that he
had received a degree.
He was promoted to instructor in nondestructive examination
(NDE) of welds on April 9, 1980. In the same year, he was
trained for and certified as a Quality Assurance Auditor, certified
as a Level II Visual Inspector and Fabricator Inspector, and
certified as a Lead Auditor. He was appointed training coordinator
for the training of Brown & Root inspection personnel in 1980,
a position he held until he was transferred, at his own request,
to field inspections in late 1981.
In November, 1981 Mr. Atchison was certified as a Level III
Mechanical Equipment Inspector "for training only." (This
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meant that his functions as a Level III Inspector were limited
to signing the certifications of Level II inspectors who had
taken inspection training courses.) He was certified in Level
II Liquid Penetrant Examinations on February 23, 1982. In
the course of obtaining these promotions and certifications,
Mr. Atchison took a number of exams on which he always scored
in the 90's, except for an 83 on the Fabricator Inspector test.
Evaluations of his performance by his supervisors were always
above average, excellent or outstanding, including the evaluation
given on the day he was fired as part of the termination process.
When Mr. Atchison was transferred to field inspection in late
1981, his immediate supervisor was Richard Ice and his primary
responsibility was the inspection of equipment called pipe
whip restraints -- large steel structures attached to the walls
of various parts of the plant which restrain the motion or
movement of pipes when they are put under load or pressure,
or in the event of a break. At that time, this inspection
function was part of the Brown & Root ASME (American Society
of Mechanical Engineers) inspection group. Mr. Ice testified
that Mr. Atchison was a very thorough inspector who was relatively
efficient and did a good job.
In February 1982, inspection functions were reorganized and
inspection of pipe whip restraints was transferred to the supervision
of TUGCO under its non-ASME inspection group. Several Brown
& Root employees, including Mr. Atchison, were transferred
to TUGCO's supervision, although they remained employees of
Brown & Root. When he was transferred, Mr. Atchison's immediate
supervisor became Randall Smith. Mr. Smith reported to Mike
Foote of Ebasco Services, a subcontractor of TUGCO responsible
for the non-ASME inspections. Mr. Foote, in turn, reported
to C.T. Brandt of Ebasco Services who was the non-ASME Quality
Control Manager at CPSES starting in February 1982.
Mr. Brandt's first contact with Mr. Atchison occurred in late
1981 when Mr. Atchison was still Brown & Root training coordinator.
An acquaintance of Mr. Brandt was given a welding
inspection exam by Mr. Atchison and failed. Mr. Brandt found
that "incredible" because he felt the man knew a lot about
welding. Mr. Brandt discussed the test score with Mr. Atchison,
who had graded the test from an answer key provided to him,
and formed an impression that Mr. Atchison did not know much
about visual weld inspection.
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Mr. Brandt next had direct dealings with Mr. Atchison in
connection with a so-called "822 level" incident. In the course
of inspecting installed pipe whip restraints at the 822 level
in one of the buildings in March 1982, Mr. Atchison noticed
what appeared to him to be defects in welds done by the company
which had fabricated the restraints, several inches away from
the area he was inspecting. (Mr. Atchison's assigned inspection
responsibility was inspection of welds done by Brown & Root
in the installation or modification of pipe whip restraints.
Basic fabrication of these items was done by Chicago Bridge
and Iron Company (CB&I) at its own plants.) Mr. Atchison drafted
a nonconformance report (NCR) noting porosity and undercut defects
and told his supervisor, Randy Smith, about it. Mr. Smith
showed Atchison's drawing of the area to Mr. Brandt, and Smith,
Foote and Brandt went to look at the welds. Although they
were covered with paint, Brandt did not think there were porosity
defects; he thought the "linear indications" were caused by
the paint, but he could not concur or disagree with the finding.
He said to Smith and Foote that Atchison should have the paint
removed if he wanted to follow up on the question. Atchison
never did, and did not follow proper procedures for issuance
of an NCR on this matter. It was not actually resolved until
July 1982, when Atchison's draft NCR was found. Brandt reinspected
the area at that time and found that some, but not all, of
the porosity reported by Atchison existed.
When he first looked at the 822 level welds in March 1982,
Mr. Brandt noted what he considered to be excessive grinding
or polishing of the welds on which Mr. Atchison was performing
liquid penetrant inspections. Brandt took no action to correct
what he felt was Atchison's improper technique.
After Brandt, Smith and Foote had looked at the 822 level welds
in March 1982, Smith told Atchison that Brandt thought Atchison
was inspecting beyond the scope of his responsibility by checking
the supplier's welds, and that Brandt did not think they were
in nonconformity. Atchison wrote a memo on a standard Brown
& Root form known as a Request for Information or Clarification
asking whether defects noted in work done by suppliers should
be reported at all, and if so, to whom and how should they
be documented. It was answered by Randy Smith who told Atchison
in writing that obvious defects located outside the Brown &
Root modification areas should be reported but should not be
subjected to any tests.
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Later in March 1982, Atchison was asked by a craftsman supervisor
to look at the welds on some pipe whip restraints which
had not yet been installed. He saw some defects, marked them
and told Randy Smith. After Foote and Brandt looked at the
welds, Brandt ordered that an NCR be written (which became
NCR No. 296) and the defects mapped. Atchison was instructed
to map the defects as part of a four-man team. When this was
done the first time, Brandt was dissatisfied because he felt
there could not be as much porosity as shown on the map. Brandt
ordered the weld defects to be mapped again; Atchison was not
involved in this second mapping of defects. Brandt still felt
that the second map showed too much porosity; he was irritated
that it was taking so long to resolve the question of how many
defects there were in these pipe whip restraints. Then Brandt
learned from the supplier, CB&I, that its contract called for
the use of ASME welding standards whereas Brandt had told his
staff to use American Welding Society (AWS) standards in inspecting
these pipe whip restraints. Brandt acknowledged his mistake
and ordered the defects to be mapped again under the correct
standard. Some defects were found and they were repaired by
CB&I; in addition, "back-fit" inspections were done on 56 CB&I
pipe whip restraints already installed.
At one point during this "NCR 296 incident" Randy Smith was
asked by Brandt or Foote how it was that an inspector came
to inspect welds done by CB&I, which was beyond the scope of
Smith's inspectors' responsibilities. Smith explained that the
craft foreman had asked Atchison to look at the welds.
At about the same time as these incidents occurred, Atchison
was taking tests to obtain the certifications which he believed
would qualify him for promotion to Level III Inspector. He
requested Randy Smith to recommend him for a promotion, which
Smith did, giving him an outstanding performance evaluation.
Prior to the events of April 12, 1982, the day Atchison was
fired, Brandt, who had the authority to approve promotion requests,
had already informally rejected it.
In early April 1982, Atchison was reviewing the TUGCO training
manual and noted that there was no program to certify TUGCO
inspectors in nondestructive examinations such as magnetic
particle (MT) or liquid penetrant (PT) tests. This raised
a question in his mind because EBASCO inspectors (who were
under TUGCO's jurisdiction) had borrowed his liquid penetrant
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test kit to do these tests on a number of occasions. Atchison
drafted an NCR (No. 361) stating that all MT and PT tests
performed by these inspectors were invalid because they were not
trained or certified to conduct them. He attached a note to
Randy Smith asking for a "pow wow" on the NCR. Several days
later when Smith discussed NCR 361 with Atchison, Smith said
he was going to recommend voiding it, and Atchison had no objection.
The NCR and the note were given to Brandt in a stack of papers
that also contained Randy Smith's promotion recommendation
for Atchison. This was the second time Brandt had seen the
promotion recommendation.
Brandt interpreted NCR 361, accompanied by the "pow wow" note
and the promotion request, as an attempt to gain leverage by
Atchison to obtain a promotion. Brandt met with Ron Tolson,
TUGCO site quality assurance supervisor and Gordon Purdy
the Brown & Root site quality assurance manager, who agreed
that Atchison was trying to use the nonconformance report as
leverage to obtain a promotion. Brandt told Purdy he would
not keep Atchison in his group and would transfer him back
to Purdy immediately. Purdy tried to place Atchison with one
of his quality assurance groups, but four managers whom he contacted
refused to take Atchison. Purdy called Atchison in and told
him he was being terminated for "inability to perform assigned
tasks and failure to follow supervisory direction."
Discussion
There are two leading Supreme Court cases which, taken together,
establish the overall framework for analyzing the evidence
in a retaliatory adverse action case and allocating the respective
burdens of production and burdens of persuasion of the
parties. Under Texas Department of Community Affairs v. Burdine,
450 U.S. 248 (1981), plaintiff always bears the burden of proof
that intentional discrimination occurred. If the employee
carries that burden by a preponderance of the evidence, proving
that his protected conduct was a motivating factor in the employer's
action, the employer has the burden of proving, by a preponderance
of the evidence, that it would have reached the same decision
even in the absence of the protected conduct. Mt. Healthy
City School District Board of Education v. Doyle, 429 U.S.
274 (1977); Consolidated Edison Company of New York v. Donovan,
673 F.2d 61 (2nd Cir. 1982)(applying Mt. Healthy to cases under
42 U.S.C. 5851). The ALJ correctly applied these principles
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to the facts of this case in a manner consistent with my previous
decisions under 29 C.F.R. Part 24.
Under Burdine, the employee must initially present a prima
facie case by showing that he engaged in protected conduct,
that the employer was aware of that conduct and took some adverse
action against him which was, more likely than not, the result
of the protected conduct. At this point, the employer has
the burden only of producing evidence that it was motivated
by legitimate reasons. The employee then has an opportunity
to prove either that the employer's proffered reason is a
pretext, or that retaliation was one motivating factor among
others. Burdine, supra, 450 U.S. 248, 254-256. On page nine
of her opinion, the ALJ explicitly found that Atchison had
made out a prima facie case that his protected activity was
the likely reason for Brown & Root's action. She also held
that all of Brown & Root's stated reasons for transferring
Atchison out of the non-ASME inspection group and terminating
him were not credible and were pretextual, and that the actions
taken against him were caused solely by his protected activity
of filing NRC's 296 and 361. Having found Brown & Root's reasons
pretextual, it was unnecessary for the ALJ to consider whether
Atchison would have been terminated in the absence of his protected
activity because there was only one, improper, reason for Brown
& Root's action.
If the employee proves by a preponderance of the evidence that
protected activity was a motivating factor, the employee does
not also have the burden, as suggested by Brown & Root, of
proving that but for his protected activity he would not have
been fired. A number of cases under other employee protection
provisions, including the Occupational Safety and Health Act
and the Federal Mine Safety and Health Act, have applied the
Mt. Healthy prescription of burdens of proof where dual motives
exist.*