Office of Administrative Law Judges Heritage Plaza Bldg. -
Suite 530 111 Veterans Memorial Blvd Metairie, LA 70005
(504) 589-6201
(504) 589-6268 (FAX)
Date: February 18, 2000
Case No.: 1999-ERA-17
In the Matter of
SYED M. A. HASAN
Complainant
v.
COMMONWEALTH EDISON (ComEd) and
THE ESTES GROUP
Respondents
RECOMMENDED DECISION AND ORDER
Preface
The evidence is overwhelming that Complainant was hired for a temporary
work assignment at LaSalle Station Nuclear Plant, Unit 2. That he made safety concerns while so
employed is not controverted. That he was cursed in front of by Mr. Rommel for not following
chain of command is not an issue. However, Complainant has come forward with absolutely no
evidence, except his own theory, that he was retaliated against, deprived of work or harassed while
working for ComEd or that he was terminated prematurely because of the safety concerns he made.
Likewise, as to two engineers that were hired subsequent to Claimant's termination, an explanation
has been given as to the qualifications both had for the particular jobs for which they were hired,
qualifications which Complainant did not have. In sum, the Complainant has simply failed to prove
by a preponderance of the evidence that Respondents violated §211 of the Act. On the other
hand, Respondents have come forward with ample evidence to show that they had legitimate reasons
for Complainant's termination and his failure to be rehired, none of which were pretextual.
Background
These proceedings arise under the employee protection provisions of the
Energy Reorganization Act ("Act"), 42 U. S. C. 5851 (1992) and involve an appeal from
a decision reached by the Occupational Safety and Health Administration ("OSHA")
which found that Complainant's allegations of violations of the Act were without merit.
[Page 2]
A formal hearing was held November 8, 9, 10, 1999, in Chicago, Illinois, at
which time the parties were afforded full opportunity to present evidence and argument. The parties
sought and were granted until January 31, 2000, to post mark post-hearing briefs. The findings and
conclusions in this Decision are based upon observations of the witnesses who testified, upon an
analysis of the entire record, arguments of the parties, applicable regulations, statutes and case law
precedent. 1
2. Whether Respondents have stated legitimate and non-discriminatory
reasons for the alleged adverse actions taken.
Findings of Fact
1. Complainant, Syed Hasan, is a civil structural engineer, with an emphasis
on design engineering. The highest degree he attained is a Bachelor's degree. (CX 1). He has failed
the exam necessary to become a professional engineer in the United States. During his career in the
United States, Complainant has always worked as a contract employee and never directly for a
utility.
[Page 3]
2. Respondent, The Estes Group (Estes), supplies temporary personnel to
nuclear power plants and other entities that work in nuclear power plants. Michael Estes is the
President and Chief Executive Officer of The Estes Group.
3. Respondent, Commonwealth Edison Company (ComEd), owns and
operates the LaSalle County Station nuclear power plant. The LaSalle Station has two nuclear units,
Unit 1 and Unit 2.
4. In 1996, both Units at the LaSalle Station went into extended outages. Unit
2 was in an extended refueling outage, which was known as the L2R07 outage. During a refueling
outage, the unit is shutdown so that the reactor fuel can be replaced.
5. James Meister was the engineering manager for restart of Unit 2 from the
L2R07 outage, Meister established the Unit 2 Engineering Restart Organization, and he headed the
organization and managed three main areas within the organization: Design Engineering, headed by
Frank Gogliotti; Systems Engineering, headed by Keith Taber; and Programs Engineering, headed
by Pat Manning.
6. Design Engineering consists of electrical, mechanical, and structural
engineering groups that work on plant modifications, plant upgrades and plant design issues.
Systems Engineering addresses the performance of individual systems and monitors plant
performance. Programs Engineering tests systems in the plant to make sure they meet the licensing
and design requirements.
7. Meister's Unit 2 Engineering Restart Organization brought on over 300
contract (temporary) engineers to assist with the restart of Unit 2. The expectation from the most
senior levels of the company was that the contractors would only work on restart issues and then
would be released when the Unit 2 Engineering Organization was destaffed on or around March 31,
1999. ComEd's permanent employees would do the work thereafter.
8. One of the initial tasks of the Unit 2 Design Engineering group was to
identify all of the outstanding engineering requests (ER) that needed to be completed prior to restart
of Unit 2. An ER is a request for an engineering task that needs to be completed.
9. ComEd formed a group within Design Engineering, called the ER Backing
Group, to identify and work on the restart-related ERs. The restart-related ERs were assembled into
an ER backlog list.
10. Jim Ray became the head of the Unit 2 ER Backlog Group. Ray is a 30-
year Bechtel employee with extensive management experience and a licensed professional engineer
in mechanical engineering. He too was a contract worker.
11. When Ray began working on the Unit 2 ER backlog, he expected that the
assignment would end in March 1999. Ray knew that ComEd's reliance on contractors was limited
to restart issues. It was common knowledge that LaSalle management intended to release the
contractors when the Unit 2 work was completed.
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12. Ray had approximately eight to ten individuals working for him in the
Unit 2 ER Backlog Group, many of whom were contract employees. In total, the ER Backlog Group
had approximately 300 ERs to close out prior to restart. (RX 11).
13. ComEd retained Sargent & Lundy to perform engineering work related
to design changes that would be implemented as part of the Unit 2 restart effort. Design change
packages (DCPs) were given to another group in Design Engineering headed by Frank Gogliotti and
John Rommel.
14. Rommel was the mechanical lead engineer in the Design Engineering
group (DCPs) during the restart effort. He is a licensed professional engineer with an expertise in
mechanical and nuclear engineering. Rommel reported to Meister at all times relevant to this case.
15. In the Fall of 1998, Ray identified the need for a civil structural engineer
to assist with the ER backlog. Ray anticipated that he would need a civil structural engineer to work
almost full time on the ER backlog for one or two months. After that, the work would not be full
time because the percentage of civil structural issues presented by the ERs was relatively small
compared to the issues that were mechanical, electrical or control system related. Ray expected the
civil structural engineer to assist with the Unit 2 DCPs in an overflow capacity. Meister authorized
the hiring of a civil structural engineer to work only through March, 1999, and only for the purpose
of working on the Unit 2 restart effort.
16. As stated earlier, Estes is a temporary employment service that supplies
personnel to ComEd's nuclear power plants and other entities in the nuclear power industry. Estes
does not provide labor on a permanent basis.
17. When a temporary worker's services are no longer required, the
assignment ends and, simultaneously, the employment relationship between Estes and the employee
ends. In other words, Estes does not keep a temporary assignment employee on its payroll after the
assignment with the client is concluded.
18. It is standard practice for Estes staff to advise temporary staff employees
that the duration of employment ends with the termination of the assignment.
19. Estes does not participate in the determination of when an assignment
ends, nor does Estes participate in the day to day management of an assignee. Specifically, Estes
does not participate in, or recommend, the release of any individual from an assignment.
20. In 1998, Estes received a Professional Staff Augmentation form
(PSA)from ComEd for a civil engineer for the restart of Unit 2. (RX 9). This was the first time
Estes had received a request for a civil design engineer to do civil engineering work. The PSA
named a preferred candidate for the job, John Holliday, and indicated that the assignment would last
from the end of October, 1998, to March 31, 1999. (RX 9).
[Page 5]
21. Since the preferred candidate was unavailable, and based on his
qualifications as a structural pipe engineer (Estes EX 2), Complainant was employed by Estes to
begin working on November 9,1998, in response to ComEd's request for a design engineer. (Estes
EX 4).
22. Estes employed Complainant on a temporary basis, placing him with
ComEd to fill a slot requested under a PSA issued by ComEd to Estes. (Estes EX 3). His hire letter
stated that his start date was November 9, 1998, and that the duration of his employment was the
"term of the assignment" at the ComEd facility. This was the sole provision for
employment duration and there was no other reference in the hire letter to the length of
Complainant's employment. (Estes EX 4).
23. Complainant's assignment at LaSalle began on November 9,1998. He was
hired to provide civil structural engineering support to Ray's Unit 2 ER Backlog Group. Jim Ray,
Complainant's immediate boss, informed Complainant that in addition to working on the Unit 2 ER
backlog, he would perform some restart-related review work for another Design Engineering group
in an overflow capacity.
24. At the time Complainant was hired none of his supervisors or ComEd
management had heard of or previously met Complainant.
25. Complainant knew he was hired for the Unit 2 restart effort. He knew that
the work for the Unit 2 ER Backlog Group needed to be completed prior to restart.
26. Complainant knew that his assignment was a temporary one and he did
not expect to be employed at LaSalle permanently. In keeping with that expectation, he rented a
motel room near LaSalle Station on a month-to-month basis. He never looked for an apartment in
Illinois. Complainant kept his family and home in Alabama where he permanently resides.
27. Thomas Bandura, a 29-year ComEd employee, is the Administrator of the
Employee Concerns Program (ECP) at LaSalle. The ECP at LaSalle serves as an alternate path for
employees to raise safety concerns. Employees may contact the ECP with a wide range of concerns.
(CX 13, RX 5).
28. As part of his employment at LaSalle, Complainant received training,
which included training on raising safety concerns. He listened to two lecturers whom he deemed
"very brilliant."
29. Estes also required that its employees, including Complainant, attend an
orientation session regarding the ECP at LaSalle. (CX 7). Mr. Bandura met with Complainant to
provide him with training on the ECP. Bandura told Complainant that he was free to raise safety
concerns and he encouraged Complainant to come to him if Complainant had any concerns. Bandura
also told Complainant that he could raise issues with the NRC.
[Page 6]
30. Bandura also trained Complainant on the use of Problem Identification
Forms (PIF). ComEd expects employees to identify concerns and it relies on the PIF as a process
to capture and respond to issues raised by employees. Once an employee documents a concern on
a PIF, the PIF is given to the senior operating licensee on shift for his or her review to determine if
the issue created a true operability concern which would require the plant to be shut down
immediately. Within 24 hours a team of senior managers, including the station manager, meets to
review the PIF's filed to assess the significance of the issue raised.
31. Jeffrey Benjamin, the Site Vice President and highest ranking officer at
LaSalle, regularly communicates his expectations regarding the freedom of employees to raise safety
issues through face-to-face daily interactions with employees and through group communications.
32. In October 1998, Benjamin drafted ComEd's Policy for Addressing
Safety Issues, NOP-OA.43. (RX 3). The Policy describes the various avenues through which
concerns can be raised and clearly states that harassment, intimidation, retaliation or discrimination
against employees who raise concerns would be contrary to the policy and would not be tolerated.
(RX 3). The Policy was distributed to the Vice Presidents in the Nuclear Generation Group and was
in place while Complainant worked at LaSalle.
33. In a January 7 memo, which Complainant received, Benjamin explained
that all workers, meaning ComEd employees and contractors alike, have a duty to raise safety
concerns. He reiterated the many ways in which employees may raise concerns: through the PIF
process, with the head of the employee's department, or with any member of the management team,
including Benjamin. Benjamin also advised that employees could raise issues through the ECP or
bring an issue to the attention of the NRC at any time. (CX 13; RX 5).
34. In addition to working on the ER backlog, Complainant provided overflow
assistance to the DCP Group by reviewing various calculations related to the DCPs for restart. This
task was called an "owner's review."
35. In early January, Complainant performed an owner's review of calculation
L-002291, a pipe support calculation that had been originated by Sargent & Lundy. At the time,
Complainant did not inform anyone at ComEd that he had a pending Section 211 suit against Sargent
& Lundy. In reviewing that calculation, Complainant became concerned that the pipe support
connection had been modeled as a hinged connection, whereas Complainant thought it should have
been modeled as fixed.
36. Complainant raised this issue with several persons at ComEd. He first
expressed his concern to Jim Ray, who told Complainant that if he thought there was an issue he
should document it. Ray also suggested that Complainant discuss the issue with another civil
structural engineer. Complainant thought Ray was very helpful.
37. Jim Ray, Complainant, and another individual discussed the issue with
Frank Gogliotti, the electrical lead and the supervisor for the Unit 2 Restart Design Engineering
Group. Gogliotti is a licensed professional engineer with an expertise in electrical engineering.
Complainant explained his concern to Gogliotti. Gogliotti advised Complainant to discuss the issue
further with the Sargent & Lundy contractors responsible for the calculation.
[Page 7]
38. Around January 11, 1999, Complainant also discussed the issue with John
Rommel. Rommel invited Complainant and Hagen, the Sargent & Lundy lead engineer responsible
for the calculation, to come to his office to discuss the issue. By the end of the meeting, the
resolution path was for Complainant and Hagen to sit down and attempt to reach a consensus on the
issue. Rommel also told Complainant that if he was not satisfied with the response from Sargent &
Lundy, then they would contact Bill Hilton, the most experienced ComEd structural engineer on site,
for his advice.
39. Complainant met with Sean Hagen, they had a difference of opinion.
Complainant then discussed the issue with Hilton. Complainant respected Hilton and found him to
be "very supportive."
40. Rommel met with Complainant several times on the modeling issue.
During one meeting, Complainant stated that he could not trust Hilton because Hilton previously had
worked for Sargent & Lundy. Rommel told Complainant that if he was not satisfied with Hilton's
help he would elevate the issue to Roger Gavankar, who was the Chief Design Engineer for ComEd.
Complainant seemed satisfied with this approach.
41. Around January 13, 1999, Complainant decided to write a PIF on the
issue. With the assistance of Jim Borm, a ComEd engineer assigned to the ER Backlog Group,
Complainant began to write the PIF. As they were writing the PIF, Borm paged Gogliotti for
Complainant so that Complainant could notify Gogliotti that he was writing a PIF on the issue.
Complainant was pleased with Borm's assistance, including the fact Borm helped him contact
Gogliotti.
42. In response to the page, Gogliotti advised Complainant that he should
gather information from Sargent & Lundy prior to generating a PIF. Gogliotti told Complainant this
because he believed it more effective to have all the information when writing a PIF, rather than
writing a PIF without the information to back it up. Complainant did not believe that Gogliotti was
trying to suppress the issue, and on January 13, 1999, Complainant sent an e-mail to Gogliotti
confirming that he was not writing a PIF and documenting the issue in the e-mail instead.
43. On January 14, 1999, Complainant hand-delivered a copy of the e-mail
he had sent to Gogliotti to Jim Ray and to Ed Connell, who was the Design Engineering lead for Unit
1. Complainant never explained the issue to Connell nor spoke to Connell about it.
44. Subsequently, while Complainant was discussing the e-mail with Ray,
Rommel entered Ray's office. Rommel had received a copy of the e-mail from Connell who told
Rommel to look into the issue. Rommel was upset by the e-mail because he thought it implied that
Rommel was not trying to solve the issue. Rommel asked Complainant why the "f "
he had given the e-mail to Connell because Rommel thought that he and Complainant had agreed
to a resolution path and sending the e-mail to Connell suggested that Rommel had not addressed the
issue.
[Page 8]
45. Rommel never said that he was upset that Complainant had raised the
issue and Complainant understood that Rommel's frustration was directed toward his having given
the e-mail to Connell. It was the only time Rommel or anyone else at ComEd used offensive
language toward Complainant.
46. Within the hour, Rommel realized that his behavior was unprofessional.
He looked for Complainant to apologize to him, and when he did not find him, he left a note at
Complainant's desk that said, "Syed: Please page/call me @2042. I would like to apologize
for my overreaction. Sorry. Thanks. John Rommel." (RX 40). Rommel later saw
Complainant and apologized in person. He also told his supervisor, Jim Meister, about his loss of
temper.
47. On the same day as the e-mail episode, January 14, 1999, Complainant
also called Jeffrey Benjamin's office. Benjamin's secretary promptly notified Benjamin, who was
attending an Executive Management meeting with several executives from ComEd's corporate
offices. Benjamin left the meeting to meet with Complainant. He did so because he had committed
to being responsive to employee concerns.
48. During an hour-long meeting with Benjamin, Complainant explained the
issue regarding the pipe supports to Benjamin as well as the conversations he had had regarding the
issue with Ray, Gogliotti, Rommel, Hagen, Hilton, and others. Benjamin took notes and asked
Complainant to draw the pipe support to demonstrate the issue regarding the hinged versus rigid
connection. According to Complainant, Benjamin was very interested in what Complainant
discussed with him, acted professionally, and sincerely tried to assist Complainant. Benjamin told
Complainant that he had done the right thing by escalating the issue to Connell and affirmed that
writing a PIF is the proper way to address the issue.
49. After his meeting with Complainant, Benjamin paged Meister and told
Meister that he wanted to make sure the pipe support issue was addressed expeditiously. Benjamin
also wanted to verify whether Complainant's conversation with Rommel had occurred, and, if so, he
instructed Meister to take immediate corrective action.
50. Meister located Complainant and invited him to his office to discuss the
pipe modeling issue. Meister also paged Roger Gavankar, then the Chief Design Engineer for all
of the nuclear plants at ComEd. Gavankar is a licensed professional engineer in civil structural and
nuclear engineering. As the Chief Design Engineer for ComEd, Gavankar interfaced with the
individual nuclear power plant sites on ComEd guidance, policies, oversight and review. Gavankar's
office is in Downer's Grove, and he does not supervise anyone at the sites and no one from the sites
reports directly to him. He supervises 20 engineering specialists at ComEd's corporate headquarters.
Gavankar is now a Senior Chief Engineer for ComEd. Gavankar drove to LaSalle to meet with
Complainant that same day, and he asked two of his engineering specialists to join him.
[Page 9]
51. Complainant and Gavankar met for three hours. They agreed that a joint
is never fully fixed or hinged. When Gavankar asked Complainant for his opinion, Complainant
recommended using a semi-rigid modeling assumption. Gavankar agreed to do this. However,
Complainant also asked Gavankar to develop standards on the modeling of pipe supports, and
Gavankar explained that the issue did not lend itself to standardized instructions because it is
difficult to create a standard to cover every potential type of situation.
52. The same day, Meister held a meeting with his engineering managers and
supervisors to reinforce ComEd's expectation to use appropriate language with employees, and to
encourage employees to raise safety concerns. He also spoke with Rommel privately to counsel him
on his inappropriate interface and language with Complainant earlier that day.
53. Meister also followed up with Gogliotti to ask him why he had advised
Complainant not to write a PIF. Gogliotti explained that because this was a technical issue he had
been encouraging Complainant to work with Sargent & Lundy to resolve the concern, and he was
not sure that Complainant had gathered sufficient technical information from Sargent & Lundy.
Regardless, Meister told Gogliotti to make sure that the PIF was written and placed into the system.
54. Meister reported back to Benjamin that he had people addressing the
technical issue raised by Complainant. He also advised that he had taken immediate corrective
action, including meeting with his management team on the proper way to conduct themselves to
encourage the raising of concerns.
55. Late on January 14, 1999, Complainant, Meister, Gavankar, and
Gavankar's engineering specialists met to discuss the issue further, agree to a resolution path, and
to debrief Meister. During the early evening meeting on January 14, Complainant explained that he
believed a change in the pipe support analysis could salvage the calculation without any physical
modifications to the pipe support or plant. A resolution path was agreed to at the meeting. A new
calculation, L-002379, would be originated by Sargent & Lundy based on Complainant's
recommendation to use a semi-rigid modeling assumption. (RX 19).
56. Complainant expressed that he hoped he would not be discriminated
against in retaliation for raising the pipe support issue, and Meister assured Complainant that he
would not be retaliated against, and that ComEd expects both its employees and contractors to raise
concerns. He also told Complainant that the Unit 2 restart work was winding down and that the
contractors would be released as ComEd completed the restart project. He said Complainant should
not be surprised when he was released. Complainant said he wanted to continue doing review work
as long as he could, and Meister and Gavankar assured Complainant that he would continue as a
reviewer.
57. Complainant had also contacted Bandura in the ECP on January 14, 1999,
regarding the policy on writing PIFs. Bandura told Complainant he should document issues through
the PIF process.
58. Complainant also told Bandura that he thought he had been harassed by
John Rommel's use of the "f" word. This was the first time Bandura had received an
allegation of discrimination for raising a safety concern, and he accepted Complainant's allegation
at "face value."
[Page 10]
59. Bandura promptly contacted Meister to discuss Complainant's allegation.
Meister promised to look into it. He later reported back to Bandura that he had held a meeting to
discuss proper treatment of employees to maintain an environment in which employees feel free to
raise safety concerns. Bandura was satisfied by Meister's response.
60. Complainant wrote his PIF on the pipe support modeling issue, (RX 67),
and by the end of the day on January 14,1999, Complainant was satisfied that ComEd had done
everything he thought they should toward resolving the issue he had raised.
61. Within 24 hours of Complainant's raising the pipe support modeling issue
on January 14, 1999, Meister informed the NRC resident inspector of the issue. It is also ComEd's
practice to provide the NRC with a copy of all PIFs, usually within one day of being initiated.
62. On January 23, 1999, Meister also sent a detailed e-mail to individuals
involved with the pipe support modeling issue, which outlined six actions ComEd had committed
to do in response to Complainant's concern. Complainant received a copy of the e-mail. (RX 22).
Complainant was encouraged by ComEd's prompt response and he appreciated being kept informed.
63. On January 25, 1999, Benjamin wrote a letter to Complainant in which
he thanked Complainant for raising the pipe support calculation issue. Benjamin wrote,
"[n]othing is more important than identifying issues and bringing them to the forefront. I also
want to reinforce that bringing the issue directly to my attention was appropriate." (RX 7).
Complainant appreciated the letter from Benjamin.
64. ComEd has established processes for addressing technical issues. The
individual who raises the concern will be involved to the extent that ComEd assures an
understanding of the issue. The individual is not necessarily involved in the resolution, however,
because an issue arising under a PIF will be assigned to the appropriate group with expertise to
handle the issue. This procedure is necessitated by the 4,000 to 5,000 PIFs written at LaSalle each
year. To have each individual who writes a PIF also responsible for its resolution would render plant
operations dysfunctional. Nonetheless, the person who writes a PIF is kept informed of its
resolution.
65. From January 14, 1999, until Complainant's departure on March 26, 1999,
ComEd kept Complainant informed of the progress in resolving the issue he raised. Complainant
continued to perform the owner's review on the calculation that gave rise to his concern (L-002291)
and was assigned to review Sargent & Lundy's new calculation (L-002379). ComEd also expected
Complainant to continue performing the tasks for which he had been hired.
66. On January 21, 1999, Gavankar issued a policy statement regarding the
acceptable practice for evaluation of pipe supports. (RX 42). Gavankar prepared the statement in
response to Complainant's concern and as a reminder that when evaluating pipe supports, the
assumptions must be documented. Gavankar provided Complainant with a copy of the policy
statement.
[Page 11]
67. Complainant appreciated being kept involved, but nonetheless
Complainant complained to Bandura that Bohlke did not involve Complainant in reviewing the work
performed by Sargent & Lundy. Bandura explained to Complainant that ComEd has a set method
for resolving concerns.
68. On March 20, 1999, a Saturday, Gavankar called Complainant at his motel
room to update him on ComEd's progress on the modeling issue, and to see if he had written a PIF
on another potential pipe support issue. Gavankar's notes, written the same day, summarize the
conversation. (RX 47). Complainant confirmed to Gavankar that no new issue had been found.
69. Complainant then repeated an earlier allegation that Gavankar had
threatened to remove him from review work. Gavankar again explained that he had not threatened
to remove Complainant, but that because of a difference of professional opinion between
Complainant and Sargent& Lundy, Gavankar had decided to have the modeling issue reviewed by
an independent third party, Dr. du Bouchet. Complainant agreed that it was the plan all along to
involve an independent consultant. (RX 19, RX 47).
70. On March 24, 1999, Gavankar provided Complainant with a copy of
Sargent & Lundy's report resolving the issue for his review and comment. (RX 50). Although Hasan
asked for the calculation on which the report was based, Gavankar did not have it with him because
it was being reviewed by the ComEd team. Raytheon and Stone & Webster, the two outside
engineering companies that Gavankar asked to review the report, did not review the calculation
either. Gavankar saw no need for Complainant to review the calculation.
71. Complainant met with every official at ComEd whom he wanted to meet
with to discuss the pipe support modeling issue; no one at ComEd ever refused to meet with
Complainant to discuss the issue. Complainant also knew that he was free to contact the NRC at any
time, and no one at ComEd ever discouraged Complainant from contacting the NRC.
72. Although Complainant claimed that on January 14,1999, and again in
early February, 1999, Gavankar told Complainant either that review work would be taken away from
him or not given to him, such remarks are not supported by the record. Complainant could not
remember Gavankar's words, and Complainant's deposition testimony contradicted his trial
testimony. Complainant admitted Gavankar may have said that he was not taking any review work
away from Complainant. Complainant also knew by the end of the meeting on January 14, 1999,
he would continue as reviewer. Gavankar denied ever making such comments about removing
Complainant from current or future review work, and Jim Meister supported Gavankar's denial.
73. Complainant continued to perform calculation review work in January and
February. Complainant completed an owner's review of calculation L-002382 on January 28, 1999.
(RX 15). On February 20, 1999, Complainant completed an owner's review of and signed off on
calculation L-002291, the calculation in which he had initially identified the modeling issue. (RX
16). The same day, he also signed off on calculation L-002379, the calculation that responded to
Complainant's recommendation to use a semi-rigid connection instead of a hinged connection with
the pipe supports. (RX 17). As of March 1, 1999, there was essentially no review work related to
restart that needed to be done. Meister never knew of any review work that was taken away from
Complainant.
[Page 12]
74. Also, despite his allegations, Complainant conceded that Gavankar never
took any review work away from him. According to Complainant, his work load never decreased
after the January 14, 1999, meeting. He continued to work the same number of hours he always had.
75. In February 1999, Complainant inquired of Ray if he could work on some
ERs related to pipe supports. Ray explained to Complainant that the work was under control and
that there was no need to involve someone else as the work was almost completed. These ERs were
finished around March 1, 1999.
76. Complainant claimed that when he was in the cafeteria during the first
week of his employment at LaSalle, two individuals commented that Complainant would be
"in trouble" if he wrote a PIF. Complainant could not identify these individuals and he
never informed anyone in supervision or management of the incident.
77. Complainant also claimed that in December, 1998, before he raised any
concern about the pipe support modeling, a ComEd engineer by the name of Bimal Desai called
Complainant a "whistleblower." Prior to working at LaSalle, Complainant had never
met Desai and had never worked with him. Desai did not supervise Complainant, he never assigned
work to Complainant, and never took any work away from Complainant. Complainant did not tell
anyone in ComEd management or Ray, his immediate boss, that Desai had made these comments.
He first mentioned the allegation to Bandura during his exit interview on March 25, 1999. Bandura
never substantiated Complainant's claims of harassment by his peers.
78. Complainant's single allegation of harassment by Rommel is limited to
the five-minute conversation on January 14, 1999, where the "f" word was used. After
that conversation, Rommel never acted inappropriately toward Complainant. The incident did not
affect the quality of Complainant's work nor impair his livelihood in any way. The conversation was
simply a result of Rommel's loss of temper because Complainant failed to follow chain of command
protocol. Nonetheless, ComEd took comprehensive corrective action. (RX 48).
79. In late January or early February, Complainant also told Jim Ray on two
different occasions that co-workers had come by his desk and made snide remarks. Complainant
could not identify the co-workers. Ray immediately took Complainant into the work area and asked
him to identify who had made the comments. Complainant failed to identify his alleged harassers.
Ray told Complainant to notify him immediately the next time any comments were made so that
Complainant could point out the alleged harassers and Ray could address the issue. Complainant
never did.
80. The destaffing of the Unit 2 Restart Organization Engineering was
expected from the time that ComEd started planning the staffing of the restart organization.
Benjamin communicated that expectation to his managers that contractors would be released when
their work was completed and the restart criteria were satisfied.
[Page 13]
81. The 300 Unit 2 Backlog ERs that were outstanding in October 1998 were
all completed as of March 19,1999. (RX 11). The DCPs relating to the design changes for Unit 2
restart, some of which contained calculations that Complainant reviewed, were all closed out by
February 1. (RX-12, RX-14, RX-14). As of February 1 there was no overflow calculation review
work to be completed because the DCPs were completed by that date.
82. The weekly report for the week of March 22, 1999, showed a net reduction
of 11 engineering contractors on the L2R07 projects as of the week of March 15, 1999. (RX 26).
The subsequent weekly reports showed a net reduction in contractor staff for the L2R07 project as
follows: 37 contractors released the week of March 22; 31 contractors released the week of March
29; 44 contractors released the week of April 5; 88 contractors released the week of April 12; 14
contractors released the week of April 19; 21 contractors released the week of April 26; 7 contractors
released the week of May 3; and 29 released the week of May 10. (RX 26, RX 35).
83. As early as January, 1999, Meister had asked all of his supervisors and
managers to prepare lists of the contract employees in their groups, along with an estimate of when
the group work would be completed, so that ComEd could plan when to release the contractors. In
response, Ray prepared a list for the ER Backlog Group in which he estimated that their work would
be completed by the end of March 1999. This meant that the contract employees in his group,
including Complainant, could be released then as well.
84. In February 1999, Benjamin and Meister began meeting weekly to discuss
destaffing. At these meetings, they reviewed staffing curves related to the restart organization.
Benjamin instructed his staff to accelerate the destaffing because the completion of the restart project
was accelerating.
85. In early March, Ray learned from ComEd management that the contractors
in the ER Backlog Group would be released on March 26, 1999. He then told Complainant, along
with the entire group, that their last day would be March 26, 1999, because the work in the group had
been completed. Gogliotti also met with all of the contract employees in the group to reiterate that
their last day would be March 26, 1999, and to thank them for their service. Complainant did not
complain about his release.
86. Complainant told Gogliotti that he had outstanding non-critical Unit 1
work to be completed. This work was not required for the restart of Unit 2 and there was no
authorization to retain a contractor to work on this non-critical Unit 1 work. Gogliotti told
Complainant to give the Unit 1 work to ComEd employee Jim Borm. Ray told Complainant that
ComEd had budgeted to release the contractors as restart was achieved. Ray did not recommend that
any contractors be kept on, and ComEd did not ask Ray for any recommendations. Ray himself was
subsequently released.
87. As expected, the Unit 2 ER Backlog Group, of which Complainant was
a part, completed its work in March, 1999; and as a result, the contract engineers in the ER Backlog
Group - Complainant, Larry Klein, Maurice LaForrest, Mohammed Hyder, and Ed O'Hare - were
released on March 26, 1999, because the work for the Unit 2 ER Backlog Group was completed.
Jim Ray, Complainant's supervisor, was released one week later on April 2, 1999. (RX 39). ComEd
restarted Unit 2 on April 11, 1999, which was 50 days earlier than the original June 1 projected
restart date.
[Page 14]
88. Estes did not participate in this determination or release, and, as was
standard practice, Estes terminated Complainant's employment concurrent with his release on March
26, 1999.
89. By letter dated April 8, 1999, the Occupational Safety and Health
Administration gave notice to Estes of a complaint filed by Complainant (CX-9). This was the first
notice Estes had that Complainant had raised concerns about the pipe support calculations at ComEd;
Complainant had never expressed any concerns to Estes.
90. Based on a discussion with Frank Gogliotti at ComEd, Estes, in
responding to the complaint, advised OSHA on April 16, 1999, that it was Estes' understanding the
issues Complainant had raised with ComEd had been promptly reviewed and resolved. (CX 9).
91. Estes never discussed Complainant with ComEd during the time that
Complainant was assigned at LaSalle. Estes also never discussed Complainant's lawsuit with any
of his subcontractors or other clients.
92. Subsequently, on April 22, 1999, ComEd's LaSalle Station issued PSA
LHC-RLV-248A to Estes, requesting Collin Andersen to provide services as a scheduler/scheduler
analyst. (Estes EX 8).
93. The PSA specifically required experience, through the use of computer
software, in scheduling systems and report writing. Knowledge and experience in Project View were
"mandatory." (Estes Ex. 8).
94. Collin Anderson had about seven years in scheduling of engineering,
procurement, and construction projects. His most recent experience was at ComEd, beginning in
January 1997, and continuing well into 1998. He also had expertise in Project View. (Estes EX 9).
Complainant had no experience in scheduling, and no experience in the Project View program.
(Estes Ex. 2).
95. In responding to this PSA, Estes considered only Andersen and did not
consider any other engineer, including Complainant.
96. Based on the specific request for Andersen, and Estes's assessment that
his background as a scheduler made Andersen a top-rated choice, Estes placed Andersen with
ComEd to start April 22, 1999. (Estes Ex. 9).
[Page 15]
97. On May 4, 1999, ComEd's LaSalle Station submitted to Estes, Managed
Task Services Form LSC-RLV-247MT requesting that Estes provide managed task services. ComEd
required personnel "currently trained to LaSalle specific processes and procedures with system
engineering experience." ComEd specifically requested that Lee Grzeck be given this
managed task assignment as a project manager. (Estes Ex. 10).
98. Estes thereafter placed Grzeck into this assignment without considering
any other engineering, including Complainant. Although, Complainant, like Grzeck, was a civil
structural engineer, Grzeck had an MBA and extensive experience as a project manager in the system
engineering environment. He had sixteen years experience in the nuclear power industry. From
1992 to 1997 he was project manager for Carolina Light & Power, then worked at ComEd beginning
1997. (Estes Ex. 11). Complainant's experience was almost completely that of a structural engineer,
with only some experience in the 1980's as a group leader.
99. Also, the task was conceived by Grzeck himself and he was the logical
choice; and inasmuch as he was already engaged in work at ComEd, this assignment represented a
continuation of his work there, rather than an occasion to bring him back to the facility.
100. Estes also did not submit Complainant's resume to ComEd after March
26, 1999, because ComEd never asked Estes to supply a civil structural design engineer. Estes also
did not receive any requests to place any civil structural design engineers at any other nuclear facility
from March 26, 1999, to May 17, 1999.
Conclusions of Law
I.
Complainant has not met his burden of proof by showing protected
activity was a contributing factor in his termination.
Respondent ComEd has articulated a legitimate, non-discriminatory basis for
terminating Complainant's employment on March 26, 1999, and Respondent Estes has proven by
clear and convincing evidence that it had no notice of Complainant's protected activity prior to his
termination.
Complainant has the burden of proof to demonstrate by a preponderance of
the evidence that he engaged in protected activity and that activity contributed to adverse action
being taken against him by Respondents. This Complainant has not met his burden of proof by
showing the protected activity on his part in any way contributed to the termination of his temporary
employment. To the contrary, Respondent ComEd has demonstrated that Complainant's termination,
along with many other contract employees, was a legitimate, non-discriminatory business decision.
Complainant was brought on the assignment at ComEd's LaSalle Nuclear
Station in November, 1998, for a limited term. This was understood by everyone involved. He was
released as the restart of the Unit upon which he had been working neared. The tasks were turned
over to ComEd's full time employees. To have kept unnecessary temporary employees beyond that
period would have been a poor business decision.
[Page 16]
In sum, Complainant has offered not one scintilla of evidence that Respondent
ComEd's proffered legitimate, non-discriminatory business reason for his termination was in any
manner a pretext for discrimination. Admittedly, a retaliation motive may be established or proven
by circumstantial evidence, but in this instance Complainant has not provided such evidence. He
was hired for a temporary assignment and released when the assignment was completed.
As to Estes, the evidence is without contradiction that this Respondent knew
nothing of Complainant's protected activity until sometime later than his March 26, 1999,
termination by ComEd.
Once placed with ComEd in November, 1998, Estes' President, Mike Estes,
explained, without contradiction, that Estes had no supervision or control over Complainant.
Likewise, when Complainant's assignment ended with ComEd his employment with Estes, the
placement agency, automatically terminated. This is the normal practice in the trade, and
Complainant has established no discrimination against him on the part of Estes by not maintaining
him on Estes payroll beyond March 26, 1999. Complainant was no longer working for ComEd after
March 26, 1999, his assignment there had ended and so had his pay check. It is absurd to suggest
that Estes should have generously continued Complainant on a salary basis. Estes' ability to pay a
salary was derived from revenues generated from the borrowing employer (ComEd), and when that
source ceased so did Estes' ability to meet payroll.
Complainant knew very well when he took the assignment in November, 1998,
that the assignment was temporary and would end sometime in the first or second quarter of 1999.
Complainant made no permanent move to the Chicago area when he took the job, but simply rented
a motel room and left his family at his residence in Alabama. The fact there might at one time have
been speculation the project could run as late as June, 1999, is irrelevant. Complainant
acknowledged that he had been guaranteed nothing. The record is replete with evidence that the
project ended well ahead of schedule and that the layoff of temporary contract employees came in
mass in late March and early April.
In sum, protected activity or not, Complainant has failed to prove he was in
any manner singled out for the reduction in force that came as a normal occurrence of the completion
of the tasks for which he had been hired.
II.
Complainant has failed to establish harassment by either
management or co-workers under Section 211 of the Act.
John Rommel's use of the "f" word is not an actionable offense.
It was an isolated event occurring over two months prior to Complainant's termination and for which
Complainant received an apology and Mr. Rommel received a remand and counseling.
[Page 17]
Complainant testified the event had no impact on his job performance, and he
never sought medical treatment as a result of the instance. More importantly, the unrefuted
testimony is that the episode occurred not because of any protected activity on Complainant's part,
but rather because of Mr. Rommel's frustration over Complainant's ignoring the chain of command
and involving Ed Connell. Neither was the described exchange severe enough to detrimentally affect
a reasonable person.
As to harassment by Bimal Desai, unnamed co-workers in the cafeteria and
unnamed co-workers in Complainant's work area, all of which were isolated occurrences, there is
no evidence which suggests the Respondents encouraged or orchestrated the comments.
The alleged instance in the cafeteria occurred during Complainant's first week
at work, prior to any protected activity on his part, and was never reported to management. The
same can be said about any comments Complainant may have overheard from Mr. Desai, a man
Complainant never met, during December, 1998. As to the unidentified individuals who allegedly
made comments near Complainant's desk, when he notified Jim Ray, Mr. Ray responded swiftly
attempting without success to learn the identity of the co-workers. None of these people were
alleged to be in a supervisory role or involved in Complainant's ultimate release.
Complainant also contends that Mr. Gavankar twice threatened to remove him
from review work. Such an event was denied by Mr. Gavankar, and there is no evidence in the
record to support the fact that Complainant did not remain assigned to review work as long as the
work remained available. Every witness who testified about this issue supported Mr. Gavankar's
testimony that he never took an assignment away from Complainant.
Granted, Complainant while kept advised about progress being made on his
pipe support concerns was not assigned to remedy the concerns; however, Mr. Benjamin, the site
Vice President at LaSalle, explained in his testimony that LaSalle receives over 4,000 PIFs per year
and each person who completes a PIF does not become involved with the resolution of the problem.
Complainant was hired for other tasks and the resolution of his pipe support concerns was assigned
to others who possessed expertise about the problem.
III.
Respondents' have articulated with clear and convincing evidence a
legitimate and non-discriminatory basis for not rehiring Complainant in April or May, 1999.
Complainant has presented no evidence that he applied for either
position or was qualified for either position. To the contrary, both men hired, Messrs. Andersen and
Grzeck, were specifically requested of Estes by ComEd because of unique qualifications which
Complainant specifically did not possess.
[Page 18]
Mr. Andersen was sought by ComEd because he had substantial experience
as a scheduler. Complainant possessed no such qualifications. Mr. Grzeck was a systems engineer
with supervisory experience. Complainant had no such experience. Also, Mr. Grzeck had conceived
the very task at ComEd for which he was hired.
IV.
Complainant has failed by a preponderance of the evidence to prove
that either Respondent violated Section 211 of the Act.
Complainant is a civil engineer who was hired for an assignment in the
Engineering Request Backlog Group, a group organized specifically to assist in the Unite 2 restart.
That Group was tasked with closing out outstanding Engineering Requests ("ER") prior
to restart. Consistent with expectation that this assignment was temporary employment, the ER
Backlog Group was scheduled to be disbanded when the work was complete. Complainant was also
expected to assist with overflow design review work while he was assigned to the ER Backlog
Group, which work also was to be completed prior to restart.
Consistent with ComEd's expectations when Complainant was hired, the ER
Backlog Group completed the ER backlog toward the end of March 1999. The design review work
also ended in the first quarter of 1999. Thus, on March 26, 1999, the ER Group was disbanded and
contract engineers in the ER Group were released. Complainant was one of the contract employees
released that day. Overall, Complainant was one of hundreds of contract employees released as the
work necessary for restart of Unit 2 came to a close. Complainant's release was not discriminatory.
Neither has Complainant proven he was harassed and discriminated against
while he worked at LaSalle for expressing concerns. The evidence shows that while Complainant
asserted during his employment that he was denied fair treatment, management continuously assured
that no such discriminatory treatment occurred and that any alleged harassment or discrimination was
promptly addressed. Likewise, the evidence shows that the two subsequent rehires which occurred
in April, 1999, and May, 1999, were legitimate and involved positions for which Complainant was
unqualified.
RECOMMENDED ORDER
It is my recommendation that Respondents should prevail in this case and that
Complainant's complaint should be dismissed.
SO ORDERED this 18th day of February, 2000, at Metairie, Louisiana.
C. RICHARD AVERY
Administrative Law Judge
CRA:kw
NOTICE: This Recommended Decision and Order will automatically
become the final order of the Secretary unless, pursuant to 29 C. F. R. §24.8,
a petition for review is timely filed with the Administrative Review Board, United
States Department of Labor, Room S-4309, Francis Perkins Building, 200
Constitution Avenue, N. W., Washington, DC 20210. Such a petition for review
must be received by the Administrative Review Board within ten business days of the
date of this Recommended Decision and Order, and shall be served on all parties and
on the Chief Administrative Law Judge. See 29 C. F. R. §§24.8 and
24.9, as amended by 63 Fed. Reg. 6614 (1998).
[ENDNOTES]
1 The conclusions that follow are in part
those proposed by the parties in their post-hearing proposed findings of fact, conclusions of law and
order, for where I agreed with summations I adopted the statements rather than rephrasing the
sentences.
2 Estes was reluctant about this
stipulation, noting that it had no such notice except second hand following Complainant's
termination. (Tr. 37).
3 The period involving rehire was
confined to approximately two months, March 26, 1999 through May 17, 1999. (Tr. 28).