This case arises under the employee protection provision of the Energy
Reorganization Act of 1974, as amended (ERA), 42 U.S.C. § 5851 (1988 and Supp. V 1993),
and is before the Board for review of the Recommended Decision and Order (R. D. and O.) issued
by the Administrative Law Judge (ALJ) on December 11, 1995. 29 C.F.R. § 24.6 (1996). The
ALJ recommended that the complaint against Respondent Commonwealth Edison (ComEd) be
dismissed because Complainant Steven Boudrie (Boudrie) failed to establish a prima facie
case
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that ComEd discnminated against him in violation of ERA's employee protection provision. R. D.
and O. at 13. After reviewing the entire record, we affirm the ALJ's decision to dismiss the
complaint against ComEd for the reasons set forth below. However, we do not adopt the ALJ's
analysis pertaining to Complainant's failure to establish a prima facie case of discrimination
under the ERA's employee protection provision.
The ALJ also recommended that Respondent Bechtel Construction
Company (Bechtel) be dismissed from this action under the terms of a settlement agreement by the
parties. Id. See supra note 2.
BACKGROUND
The Complainant worked as a contract laborer for Bechtel from
October 10, 1993, until he was laid off on April 8, 1994. Pursuant to its contract with ComEd during
the "outage" phase of ComEd's Zion Nuclear Power Plant in Zion, Illinois, Bechtel
supplied the necessary labor to perform the maintenance, repair and cleaning required at the plant
during its scheduled downtime. As these activities were completed, the plant was reactivated and
Bechtel routinely laid off its work crews. See testimony of Sonny Traver (Traver), Bechtel laborer
foreman, Transcript (T.) at 475-76. Complainant was a laborer on the night shift of Bechtel's
"As Low As Reasonably Achievable" or ALARA crew, and worked primarily as a
"deconner" in a decontamination or "decor" pad in the Auxiliary (Aux)
building, decontaminating tools. Boudrie, T. at 128-30.
On March 14, 1994, Boudrie was apparently permitted to leave the
plant by a ComEd Radiation Protection Technician (RPT), carrying personal items of clothing that
were contaminated with low level radiation particles. See testimony of Frank Rescek,
ComEd radiation protection director, T. at 326-31, specifically concerning Boudrie's contaminated
clothing; T. at 331-49, for general discussion of potential low level radiation hazard.
Boudrie had initially set off the radiation monitors at the guardhouse
exit of the plant while wearing the contaminated clothing as he was leaving at the end of his work
shift. After a couple of attempts to leave when the radiation monitors gave inconsistent readings,
Boudrie returned to a controlled area of the plant and went through a decontamination shower, was
outfitted with a paper suit to wear home and was told to wash the contaminated clothing a couple of
times to rid them of the particles. He then exited the plant without setting off the monitors. Boudrie,
T. at 133-38.
On March 15, Boudrie again set off the monitors when he was
leaving, and a radiation particle was cut out of his sweatshirt. Id., T. at 140-41. On March
16, Boudrie set off the monitors on entering the plant, which indicated that he had probably carried
radiation contamination off site to his living quarters. Id., T. at 144 47. At the end of the
work shift, Mike Zeien, ComEd's contamination control coordinator, met with Boudrie because of
the unusual circumstance of a worker bringing radiation contamination into the plant. Zeien, T. at
34.
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Zeien requested, and Boudrie agreed, to let Zeien, accompanied by a ComEd RPT, Bechtel's
ALARA coordinator and Boudrie's union steward, go to his living quarters to survey the premises to
determine if there were any more contaminated articles. Id., T. at 41-42, 46-47. The survey
turned up some articles of clothing that had low levels of contamination. Id, T. at 47.
Boudrie took Polaroid pictures of the RPT and Zeien during the survey, and although the RPT did
not object to his picture being taken, Zeien did. Id., T. at 51-54; Boudrie, T. at 15152.
Zeien told Boudrie that he wanted the photo, since he had not given
Boudrie permission to take his picture. Boudrie refused to relinquish the photo and then demanded
that Zeien and the RPT leave his living quarters. Id., T. at 152. Zeien and the RPT left after
Boudrie agreed that the Bechtel representative and the union steward could stay behind and assume
responsibility over the contaminated articles of clothing until a Nuclear Regulatory Commission
(NRC) representative arrived to continue the contamination survey and take control of the
contaminated clothing. Id., T. at 153, Zeien. T. at 56. As he was leaving, Zeien apologized
for his reaction about being photographed, as displaying "a partial attitude." Id., T.
at 56.
Zeien reported his suspicion to his supervisors back at the plant that
Boudrie might be trying to "set up" ComEd for a possible legal action. Respondent's
Exhibit 23 at page 0118. There were subsequent meetings between Boudrie and ComEd safety
officials, but there were no further contamination incidents concerning Boudrie and no contact
between Boudrie and Zeien for the next three weeks. Boudrie, T. at 212.
On April 5, 1994, Boudrie experienced two more contamination
incidents. Zeien met with Boudrie on April 6, to discuss the contamination events. Id., T. at
168. Zeien was disturbed by Boudrie's response to a question on a standard Personnel Contamination
Event (PCE) form which asked how might the contamination have been prevented; Boudrie had
responded "not to come to work." Id., T. at 169-70. Zeien told Boudrie that he
regarded that answer as inappropriate, especially since PCE forms were routinely reviewed by NRC
staff. Zeien, T. at 77; Boudrie, T. at 170. Zeien also attempted to determine the causes of the two
incidents. Boudrie commented that there were other laborers on the ALARA crew that were
violating ComEd's safety standards, but declined Zeien's request that he identify them. Id, T.
at 170-71.
Zeien went to the decon pad the following day to observe the
deconners. It should be noted that Zeien's job required him to field observe the activities at the plant
since he was responsible for contamination containment, particularly if he had reason to believe that
there were specific instances of violations of safety rules and procedures. Zeien, T. at 496-97. Zeien
spoke to Boudrie at the decon pad site, and apparently one of the laborers who was actually
disobeying ComEd's contamination containment rules became suspicious of Boudrie and later
threatened him, believing that Boudrie had turned him in. Boudrie, T. at 180.
Boudrie felt that he was being harassed by Zeien and called the
Bechtel field office trailer to get someone over to the decon pad while Zeien was there. Id.,
T. at 177-78. When a Bechtel
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foreman responded to Boudrie's call, Zeien had already left the decon pad area. Id. Boudrie
complained about being harassed to Traver, the Bechtel laborer foreman, during his coffee break
later that morning, although Traver testified that Boudrie did not specifically identify Zeien as the
individual harassing him. Traver, T. at 479.
1On April 17, 1996,
Secretary's Order 2-96 was signed delegating jurisdiction to issue final agency decisions under this
statute and implementing regulations to the Administrative Review Board. 61 Fed. Reg. 19978
(May 3, 1996). The Order also contains a comprehensive list of the statutes, executive order and
regulations under which the Board now issues final agency decisions.
2This Final Decision
and Order pertains only to Complainant's case against Respondent Commonwealth Edison
Company. Complainant's case against Respondent Bechtel Construction Company was settled
between the parties and is addressed in a separate Order by the Board issued March 7, 1997.
3There is a minor
disparity in Boudrie's and Traver's testimony as to the date that their discussion concerning
Boudrie's request to go on layoff occurred. Compare Boudrie, T. at 17879 with Traver, T.
at 478. We do not consider Traver's apparent mistake as to the dates material to our decision.
4Boudrie urges the
Board to broadly construe discriminatory conduct of employers within the context of the
environmental whistleblower statutes to include any hostile act by employers against employees.
Thus, employees would be entitled to compensation for any discriminatory hostility exhibited by
their employer regardless of whether they suffered any tangible job detriment (i.e., a
negative affect upon compensation, terms, conditions, or privileges of employment), or whether the
retaliatory acts were sufficiently pervasive to constitute hostile work environments. Complainant's
Rebuttal Brief at 2-5. We need not reach this issue here, because Boudrie failed to prove that any of
the alleged hostile acts by Zeien were either adverse or retaliatory.
5The allegation that
Boudrie was threatened by a coworker who believed that Boudrie had turned him in for not following decontamination procedures cannot be considered as part of
Boudrie's hostile work environment claim. Boudrie did not allege that he told any ComEd staff
about the threat at the time and therefore he cannot now allege that they acted inappropriately in
responding to that threat. T. at 217-22.