Zack Company of Chicago
(Subcontractor, Midland
Nuclear Power Plant, Midland,
Michigan),
Employer
DECISION AND FINAL ORDER
Statement of the Case
A recommended decision and order has been submitted to me
by Administrative Law Judge Robert J. Feldman under section
5851 of the Energy Reorganization Act of 1974 (42 U.S.C.
5851) (ERA) and 29 CFR 24.6. That statute prohibits covered
employers from discharging or otherwise discriminating
against any employee with respect to the employee's
compensation, terms, conditions, or privileges of-employment
because the employee has filed a complaint of violation of
the ERA, or has assisted, participated or testified in a
proceeding for the enforcement of the Act. Judge Feldman held
a hearing on March 16, 1982 on a complaint filed by Dean
Dartey that he had been suspended and then discharged by the
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Zack Company of Chicago (Zack) because he had filed a charge
against Zack of violation of the ERA with the Nuclear
Regulatory Commission. Judge Feldman has recommended that
Zack be found in violation of section 5851 for its suspension
of Mr. Dartey, but not for it termination of him 30 day
later. Because I find that Zack had a sufficient basis for
discharging Mr. Dartey at the time it did so, as well as for
suspending him (and would have both discharged and suspended him
even absent his complaint to the NRC), the ALJ's recommended
decision will be modified accordingly and the complaint will be
denied.
FACTS
Zack Company of Chicago is a heating, air conditioning and
ventilation contractor In 1980 when this case arose, Zack was a
subcontractor of Bechtel Power Corporation, which was constructing
a nuclear power plant at Midland Michigan for, Consumers Power
Corporation. Dean Dartey was hired by Zack on January 10, 1980 an a
Quality Control Inspector Trainee. After undergoing training for
five or six weeks, he was promoted to the position of Level One
Quality Control Inspector for visual inspections. His duties were
to inspect the heating, air conditioning and ventilation
fabrication in the fabrication shop and its installation in various
parts of the nuclear power plant under construction. If anything
was wrong with the fabrication or installation, the inspector would
tag the piece in question and write either, a non-conformance,
report (NCR) or a hold report. These reports were logged and held,
open until the defect or problem was repaired or, resolved.
Mr. Dartey's immediate supervisor was Tom Franchuck, a,
Level Two Quality Control Inspector, who, was, supervised by, Mike
D'Haem, the Quality Control Manager for Zack at the Midland plant
site. Mr. Dartey found, when working as an inspector, that only
minor defects re,ported by him were resolved but major ones were
not. Mr. Dartey testified that Tom Franchuck told him if he
(Dartey) reported all the defects he found, he would
be fired; that Franchuck said conflicts between quality control
and production would be resolved in favor of production. When
this happened repeatedly, and he felt he had exhausted internal
avenue to correct the problem, he contacted the Nuclear Regulatory
Commission. His first contact with the NRC was by tele-
phone around February 20, 1980. He subsequently had two meetings
with NRC investigators at their trailer on the Midland
site, and one meeting at a motel nearby. At these meetings,
Mr. Dartey gave the NRC investigators documents which supported
his allegations, and made a written statement detailing his
charges on March 12, 1980.
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Sometime between March 7 and March 10, 1980, Zack became
aware that the NRC would conduct an investigation of its com-
pliance with the ERA at the Midland plant as a result of a com-
plaint by Mr. Dartey. A meeting of quality control inspectors
was called by Mike D'Haem on March 13, 1980 to instruct them on
how to conduct themselves during the NRC investigation. Mr. D'Haem
told them not to hinder the investigation, to answer all questions
truthfully, and that no one was to have access to records except
two designated inspectors (Dartey was not one).
On March 17, 1980 Mr. Dartey was interviewed by Zack's
attorney, The Vice President for operations, and Mike D'Haem.
He was asked why he had made allegations to the NRC and why he
thought there were problems at the Midland plant. At that time,
he denied contacting the NRC. On the same day, Mr. Dartey was
taken off field inspections and given office work involving
making lists of documents. In addition, he was ordered not to leave
his desk and to tell the other person in the office when he went to
the bathroom.
Two days later, on the morning of March 19, 1980 Mr. Dartey
complained to Mr. D'Haem about the work he had been assigned and
they had a "heated discussion." When Mr. Dartey said he would not go
back to the desk work, Mr. D'Haem suspended him for one day. After-
some confusion which delayed his departure, Mr. Dartey started to
drive off the plant site. He was stopped by security guards at the
gate who asked to search his truck because they thought there were
documents in it. Under the driver's seat they found about 15
personnel files of Zack Quality Control Inspectors which Mr. Dartey
had taken from the company vault. After Mike D'Haem and the Zack job
site superintendent identified ,the documents, Mr. Dartey was taken
into the Consumers' Power security office where he, was questioned
by the Chief of Security and made a written statement. In it, he
said he had the files for about three days, although at the hearing
he testified it was for a longer period.
Mike D'Haem consulted with the President of the Zack Company,
Christine Zack DeZutel and the company attorney about what action to
take on this incident. Although Mike D'Haem advised firing
Mr.Dartey, Ms. DeZutel ordered that he be suspended for 30 days to
conduct an investigation. She was aware of the charged atmosphere at
the plant as a result of the NRC investigation and that other
employees knew Mr. Dartey had contacted the NRC and was concerned
they might have planted the papers on his truck.
After he was suspended, Mr. Dartey contacted the NRC to file a
reprisal complaint. He was referred to several different offices
and agencies in the Department of Labor, and OSHA took a formal
written complaint of retaliation from him dated April 3, 1980. The
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day after he was suspended, Consumers Power, under pressure from
the NRC, ordered all Zack's work at the Midland plant stopped.
Zack tried to get a copy of Mr.Dartey's written statement to
the Chief of Security and finally got one on April 18, 1980. After
consultation with company attorneys, the President decided to
terminate Mr. Dartey because his statement made clear that he had
taken the documents. He was notified of his discharge by
telegram which he received on April 21, 1980. The telegram
recited six reasons for his termination, including unauthorized
removal of personnel files.
Ms. DeZutel testified that a number of other Zack employees
had filed charges with the NRC during the same time period,
both at Midland and at other nuclear plant sites one received a
promotion and one was discharged eight months later or poor
attendance; none of the others was disciplined.
DISCUSSION
Before considering the retaliation issue in this case, I want to
make clear my approval of the ALJ's ruling on Zack's motion to
dismiss. The ALJ rejected Zack's arguments that the complaint
should be dismissed because it was not filed with the Wage and Hour
Division within 30 days of the alleged violation (see 29 CFR
24.3(b) and (d)), and because the Secretary did not issue a final
order in the case within 90 days of receipt of the complaint (see
42 U.S.C. 5851(b)(2)(A)). I adopt the ALJ's discussion and
reasoning in his ruling on both points.1
This case falls under the category of so-called disputed and
dual motive discharge cases which arise under employee protection
provisions found in a wide variety of statutes. (See, e.g. title
VII of the Civil Rights Act of 1964, as amended, Section 704(a), 42
U.S.C. 2000e-3(a), the Fair labor Standards Act of 1938, as
amended, section 15(a)(3), 29 U.S.C. 215(a)(3); National Labor
Relations Act, section 8(a)(4), 29 U.S.C. 158(a)(4)). Mr. Dartey
alleges he was suspended and discharged for contacting and filing a
charge with the Nuclear Regulatory Commission against Zack. Zack
defends its discipline and discharge of Mr. Dartey on the grounds
that he had a poor work record and took personnel files without
permission.
I think it would be useful to set forth the general principles
which I will apply to retaliatory adverse action cases arising under 29
CFR Part 24 and the statutes enumerated there because similar questions
arise in almost all these cases. There are two leading Supreme Court
cases which, taken together, establish the overall framework for
analyzing the evidence in a retaliatory adverse action
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case and evaluating whether the parties have met their respective
burdens of production or going forward with the evidence, and burdens
of proof or persuasion. TexasDepartmentofCommunityAffairs v. Burdine, 450 U.S. 248 (1981)
dealt with the initial stages of proof in an intentional discrimination
case under Title VII of the Civil Rights Act of 1964 which I think is
equally applicable to cases arising under 29 CFR Part 24. In
Burdine, the Supreme Court made clear that the plaintiff always
bears the burden of proof or persuasion that intentional discrimination
has occurred. In Mt.HealthyCitySchoolDistrict BoardofEducation v.Doyle, 429
U.S. 274 (1977), a retaliatory adverse action case under the
Constitution which is closely analogous to 29 CFR Part 24 cases, the
Supreme Court set forth the nature of the burden of proof or persuasion
which falls upon the defendant once the plaintiff has carried his
burden of proof. Mt.Healthy has been applied explicitly
by at least one Circuit Court of Appeals to section 5851 of the Energy
Reorganization Act. ConsolidatedEdisonCompanyofNewYork v. Donovan, 673 F.2d 61 (2nd
Cir. 1982); Jaenisch v. U.S.DepartmentofLaborandChicagoBridgeandIronCompany, F.2d (No. 81-4149, 2nd Cir. June
28, 1982.) Cf. DeFord v. SecretaryofLabor, F.2d , (Nos. 81-3228 etc., 6th Cir., February 10,
1983).
Under Burdine, the employee must initially present a
prima facie case consisting of a showing that he engaged in
protected conduct, that the employer was aware of that conduct and
that the employer took some adverse action against him. In
addition, as part of his prima facie case, the plaintiff must
present evidence sufficient to raise the inference that . . .
protected activity was the likely reason for the adverse action.
Cohen v. FredMayer,Inc., 686 F.2d
793 (9th Cir. 1982) (applying Burdine to a retaliatory
discharge claim under section 704(a) of Title VII). If the
employee establishes a prima facie case, the employer has the
burden of producing evidence to rebut the presumption of disparate
treatment by presenting evidence that the alleged disparate
treatment was motivated by legitimate, nondiscriminatory reasons.
Significantly, the employer bears only a burden of producing
evidence at this point, the ultimate burden of persuasion of the
existence of intentional discrimination rests with the employee.
Burdine, supra, 450 U.S. 248, 254-255. If the
employer
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successfully rebuts the employee's prima facie case, the employee
still has "the opportunity" to demonstrate that the proffered
reason was not the true reason for the employment
decision . . .. [The employee may succeed in this either directly
by persuading the court that a discriminatory reason more likely
motivated the employer or indirectly by showing that the
employer's proffered explanation is unworthy of credence. Id. at
256 (citation omitted.) The trier of fact may then conclude that
the employer's proffered reason for its conduct is a pretext and
rule that the employee has proved actionable retaliation for
protected activity. Conversely, the trier of fact may conclude
that the employer was not motivated, in whole or in part, by the
employee's protected conduct and rule that the employee has failed
to establish his case by a preponderance of the evidence.
Id. at 254-265. Finally, the trier of fact may decide that
the employer was motivated by both prohibited and legitimate
reasons, i.e., that the employer had "dual motives."
Under Mt.Healthy, if the trier of fact reaches the
latter conclusion, that the employee has proven by a preponderance of
the evidence that the protected conduct was a motivating factor in the
employer's action, the employer, in order to avoid liability, has the
burden of proof or Persuasion to show by a preponderance of the
evidence that it would have reached the same decision even in the abse-
nce of the protected conduct. Mt.Healthysupra,
429 U.S. 274, 287; ConsolidatedEdisonCompanyofNewYork v. Donovan, supra, 673
F.2d 61, 63.
It is important to note that the flow and presentation of evidence in a
hearing often will not be as finely tuned and carefully orchestrated as
the discussion of these rules may suggest. These rules are to be
applied by the ALJ to the extent practicable during the hearing and, of
course, to the record as a whole at the close of the hearing.
I agree with the ALJ that Mr.Dartey established a prima facie case that
Zack was aware of his contacts with the NRC, which are protected
activities under section 5851 and that this protected activity was the
likely reason for his suspension and discharge because it took place
shortly after he contacted the NRC. In addition. Mr. Dartey has proven,
by a preponderance of the evidence, that Zack's actions against him
were motivated in part by his protected activities. A number of the
circumstances surrounding the adverse actions support such on
inference, e.g., being interrogated by the company attorney and Vice
President; being removed from inspections and given routine clerical
tasks; being ordered not to leave his desk; being told not to report
violations found; being discharged shortly after his contacts with the
NRC. I cannot agree, however, that a distinction should be drawn
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between the act of suspending Mr. Dartey for 30 days and discharging
him.2 When Mr. Dartey was
charged on April 21, 1980 the only additional facts the company had which it did not have when
it suspended
him were a copy of his statement to the Chief of Security admitting
that he had taken the documents and had them in his possession for three
days; the stop work order from Consumers Power; and notice of
Mr. Dartey's complaint to the Department of Labor of retalia-
tion. When Zack suspended Mr. Dartey they knew he had the
files in his possession; he did not protest the suspension on
that ground or claim that he had not taken the files, or that
they bad been planted in his truck; it was clear that he had
no authority to remove personnel files or indeed even to look
at them; he had apparently violated an explicit instruction-
about access to documents from Mike D'Haem.
In these circumstances, Zack may well have been justified in firing
Mr. Dartey immediately. When it only suspended him, it was acting out of
an excess of caution because there was a possibility there was another
explanation for the documents being in his truck, and because it was
mindful of the protections of section 5851. Courts have given employers
considerable discretion to protect their legitimate interests in
confidentiality, and have upheld the immediate termination of employees
who appropriated records without-authority. In Jeffries v. Harris
County Community Action Association 615 F.2d 1025 (5th Cir. 1980)
the court held that even where an employer wrongly believes a company
policy has been violated, it does not violate the retaliation provision
of Title VII by acting on that belief. In addition, copying and
dissemination of confidential materials for purposes of proving illegal
conduct by the employer was found in Jeffries not to be protected
activity unless the employee shows that there was a danger the documents
would be destroyed. There are formal legal avenues available for
obtaining evidence in investigations and enforcement proceedings. See
Hodgson v. TexacoInc., 440 F.2d 662 (5th Cir.
1971) (employee's appropriation of records without permission for use in
lawsuit against employee is not protected activity under Fair Labor
Standards Act). Further, it is significant that the evidence did not
show that other employees who had engaged in similar conduct were
treated more leniently.
I do not think the ALJ should have given so much weight to the
factors which led him to conclude that Zack did not carry its burden
of proof on the suspension issue. (Rec. Dec. p. 10.) Certainly,
finding the files in his truck supports an inference that Mr. Dartey
took them, particularly when he did not deny it when he was caught
with the files. Since he had no authority even to look at the files,
whether he took them off-site is irrelevant, as is his intent to
retain them. Having them in his truck as he drove to the gate
implies intent to take them off site. He also never claimed he
received them from an authorized source.
In conclusion, Mr. Dartey committed an act which no employer
need tolerate misappropriation of confidential company records-
which warranted suspension or discharge in the discretion of the
employer. Zack has carried its burden of showing that it would
have suspended and fired Mr. Dartey for that conduct even in the
absence of his protected activities.
Therefore, it is ORDERED, that the ALJ's Recommended Deci-
sion and Order are modified in accordance with this Final Order,
and the complaint is denied. 29 CFR 24.6(b)(4).
RAYMOND J. DONOVAN
Secretary of Labor
Signed at Washington, D.C.
April 25, 1983.
ENDNOTES
1 In addition to the ALJ's
conclusion that filing in the wrong
office of the right agency is not fatal, I also note that filing
with the wrong agency by a layman who has not slept on his rights
can also toll a statute of Limitations. See Morgan v.
WashingtonMfg.Co., 660 F.2d 710 (6th Cir.
1981).
2 I note that I also agree with
the ALJ that the other reasons given for discharge were not substantiated by Zack. They probably
were included in the discharge telegram as make weights.