Office of Administrative Law Judges Seven Parkway Center - Room 290 Pittsburgh, PA 15220
(412) 644-5754 (412) 644-5005 (FAX)
Issue date: 10Jul2002
CASE NO.: 2001-ERA-00037
In the matter of:
HUGH K. TURPIN,
Complainant
v.
LOCKHEED MARTIN CORPORATION,
LOCKHEED MARTIN ENERGY SYSTEMS, INC.,
and BWXT Y-12, L.L.C.
Respondents
AND
CASE NO.: 2002-ERA-22
In the matter of:
HUGH K. TURPIN,
Complainant
v.
BWXT Y-12, L.L.C.
Respondent
Appearances:
Edward A. Slavin, Jr., Esq.
For the Complainant
Edward G. Phillips, Esq.
John C. Burgin, Jr., Esq.
For Respondents Lockheed Martin Corporation
and Lockheed Martin Energy Systems
Kenneth M. Brown, Esq.
For Respondent BWXT-Y-12, L.L.C.
BEFORE: DANIEL L. LELAND
Administrative Law Judge
RECOMMENDED DECISION AND ORDER
This proceeding arises under the employee protection provisions of the Energy Reorganization Act of 1974 (ERA), 42 U. S. C. § 5851, and the implementing regulations at 29 CFR § 24, which prohibit licensees of the Nuclear Regulatory Commission from discharging or otherwise discriminating against an employee who has engaged
[Page 2]
in activity protected under the Act. Hugh K. Turpin (complainant) filed a complaint under the Act on September 16, 2000, which was investigated and found to have no merit by the Regional Administrator of the Occupational Safety and Health Administration. Complainant made a timely request for a hearing before an administrative law judge, and a hearing was held before the undersigned in Knoxville, TN on March 19, 20, and 21, 2002. Complainant's Exhibits (CX) 1A, 1B, 1C, 2A, 2B, 2C, 3A, 3B, 4A, 4B, 4C, 5A, 5B, 6, 7, 8, 9, and 14, and Respondents' exhibits (RX) 1, 2, 3, 6, 7, 8, 9, 10, 16, 17, 18, 19, 20, 21, 22, 23, 24, 28, 30, 33, 35, 36, 37, 38, 39, 40, 41, 43, 44, 45, 46, 47, 51, 52, 53, 60, 61, 62, 63, 65, 66, 67, 68, 69, 70, 71, 73, 74, and 76 were admitted into evidence. At the close of the hearing, the parties were given until June 17, 2002, to submit briefs and the due date was subsequently extended to June 24, 2002. Timely briefs have been submitted. Complainant filed a second complaint on March 25, 2002, which was consolidated with the prior complaint by order issued May 16, 2002.
Factual Summary
The Y-12 National Security Complex is a nuclear weapons facility in Oak Ridge, TN that was operated by respondent Lockheed Martin Energy Systems (LMES) as a contractor for the United States Department of Energy from April 1, 1984 to October 31, 2000. On November 1, 2000, respondent BWXT Y-12 L.L.C (BWXT) took over as the contractor operating the plant. (TR 112) Complainant Hugh Turpin has worked at the plant since 1969, except for a three year hiatus, and became a radiological control technician (RCT) in approximately 1986. (TR 375-76) As part of his duties as an RCT, complainant checked for radiation of workers' clothing in laundry buggies using an Eberline RO-2 Ion Chamber. (TR 289, 420-21, see RX 2) Each RO2 has a calibration expiration date affixed to it after which the equipment should not be used. (TR 405, 417, see RX 1)
On nine occasions between March 2 and March 15, 2000, complainant used an RO2 with a calibration date of March 1, 2000, instead of following the proper procedure of placing a red tag on the instrument indicating that it could not be used and needed to be recalibrated. (TR 406–8, RX 6, RX 30, p. 2) Complainant was unable to explain why he made these errors but maintained that they were unintentional. (TR 385) However, the last time he used the equipment on March 15, complainant removed a red tag he had attached to the equipment and then reattached the red tag after using the RO2. (TR 400) On the same day, complainant informed his supervisor, Marita Barnes, of the use of the RO2 with the outdated calibration date, and when she asked why he had removed the red tag the last time he used the RO2, his reply was "What's one more day?" (TR 412) Barnes reported Turpin's errors to her supervisor, Scott Wical, the RADCON field office manager at the plant, Dr. James Barker, the Manager of Radiological Control, and Steven Weaver, the Manager of Employee Relations at Y-12. Dr. Barker testified that complainant's errors seriously jeopardized the plant's safety procedures, even though it was later determined that the equipment complainant used had been properly calibrated. (TR 258-259, 292)
[Page 3]
Weaver and Barnes met with complainant on March 20, 2000, to discuss his use of equipment with an expired calibration date. (TR 169-70; see RX 9, 10) Turpin admitted that he had not followed proper procedure but denied that it would have any impact. (TR 170-71) After reviewing Y-12's discipline policy, Weaver, Barker, and Wical decided that decision making leave (DML) was appropriate for Turpin. (RX 18, TR 184) Under DML, an employee is required to take a day off with pay and then is placed on probation for twelve months. Prior to placing complainant on DML, he was referred to Dr. Howard Friedman, the staff clinical psychologist, who found no psychological basis for not putting Turpin on DML. (TR 634, RX 28, pp. 18-19) On March 27, 2000, Barker, Weaver, and Wical met with complainant and informed him that he was being placed on DML, and explained that
during his twelve month probation he would be required to follow all safety, health, and operating procedures, perform his work diligently and accurately, and maintain his job performance at a fully acceptable level. (See TR 189, RX 8) He was also told that failure to meet these standards would result in his termination. (See Id, TR 191) Turpin signed the memo from Barker setting forth these standards. (RX 19)
On March 20, 2000, the date Turpin first met with Weaver about his improper use of the RO2, he sent the first of a series of e-mails describing flaws in the radiation equipment recall notification system. (See CX 2A, 2B, 2C) (Turpin had earlier sent an e-mail to Barnes on February 9, 2000 referring to a problem with the date on the recall notice on one instrument.) (See RX 14) In the e-mails, complainant defended his use of the RO2s with outdated calibration dates and blamed flaws in the recall system for his errors. ( Id, TR 468) He continued to send e-mails regarding the recall system after being placed on DML. (CX 3A, 3B, 4A) Turpin met with Barker about the recall problems and as a result the employees were given remedial training and the software was modified to correct the system's flaws. (TR 383, 256, 360-62, 603-05) Between February and July 2000, complainant also filed thirty three radiological awareness reports (RAR) dealing mainly with the contaminated contents of laundry buggies.1 (TR 377-378) Barker testified that he sees only a quarterly summary of the RARs and was not aware of any individual RARs filed by complainant. (TR 682-83)
1RARs are reports generated by employees at Y-12 that are designed to correct problems in the use of radiological controls. (See RX 59)
2Complainant argues that this is a dual motives case and that respondents must prove that they would have taken the same action against him in the absence of protected activity. However, as I have found that there is no evidence that discriminatory intent played any role in respondents' actions, this is not a dual motives case and respondents need not satisfy the difficult burden of proof in such cases. See Zinn, supra, Dartey v. Zack Company of Chicago, 1982-ERA-2 (Sec'y Apr. 25, 1983).