DATE: July 19, 1993
CASE NO.: 87-ERA-35
IN THE MATTER OF
JAMES CARROLL PILLOW, JR.,
COMPLAINANT,
v.
BECHTEL CONSTRUCTION, INC.,
RESPONDENT.
BEFORE: THE SECRETARY OF LABOR
DECISION AND ORDER OF REMAND
Before me for review is the Recommended Decision and Order
(R.D. and O.) issued by the Administrative Law Judge (ALJ) in
this case which arises under the employee protection provision of
the Energy Reorganization Act of 1974, as amended (ERA or the
Act), 42 U.S.C. § 5851 (1988). The ALJ denied the complaint
on the ground that Complainant did not establish a prima facie
showing that his protected activity was a motivating factor in
Respondent's adverse actions toward him. In the alternative, the
ALJ ruled that even if Complainant's protected activity were a
motivating factor, Respondent established that it would have
treated Complainant the same in the absence of the protected
activity.
After a thorough review of the ALJ's decision and the entire
record, I conclude that Respondent violated the ERA when it
switched Complainant's work shift and selected him for layoff.
I. The Facts
Complainant worked for Respondent Bechtel Construction, Inc.
[PAGE 2]
(Bechtel), a contractor to owner Florida Power & Light (FP&L) at
the Turkey Point nuclear power plant during the 1984 outage and
for three days during the 1986 outage. [1] T. 69, 131.
Respondent again hired Complainant to work as a laborer at Turkey
Point during the 1987 outage, beginning on April 6, 1987. T. 69.
Immediately prior to being rehired by Bechtel in 1987,
Complainant was working for a different contractor at the Turkey
Point plant. T. 668.
In the early morning of April 11, 1987, foreman Charles
Ferguson assigned Complainant to decontaminate a pipe. T. 83.
According to Complainant, Ferguson forced Complainant to sign the
Radiological Work Permit (RWP) assigned to the decontamination
task and rushed him into the containment area before Complainant
had the opportunity to read the RWP fully. T. 82-83. The RWP
determines the type of safety equipment required for a task.
T. 79. Ferguson informed Complainant that readings on the
assigned pipe showed a low level of contamination, measured in
average disintegrations per minute (DPMs). [2] T. 83-84. As
Complainant was decontaminating the pipe, a Health Physics (HP)
technician advised him that based on a current DPM reading,
Complainant should possibly be wearing a respirator. T. 91.
When Complainant talked to Ferguson about the possibility that
the pipe was highly contaminated, Ferguson told him not to worry,
to shut up, and to do what Ferguson said. T. 93. Complainant's
first safety concern was Ferguson's refusal to discuss or
investigate further the decontamination incident and his belief
that he was working under an incorrect RWP that night. T. 98,
100, 104.
Complainant believed that Ferguson violated safety rules by
sleeping on the job, T. 100, and by failing to assign someone to
relieve Complainant for lunch when Complainant was assigned to
firewatch duty. T. 111-112. When Complainant brought up the
lunch relief issue, Ferguson told Complainant to hide the fire
extinguisher and just leave the containment area when Complainant
wanted to eat lunch. T. 112. These alleged violations of the
safety rules were Complainant's second safety concern.
Complainant reported these safety concerns to Bechtel
supervisor George King. T. 99-100. A short time later, Ferguson
chastised Complainant for going to King, and told Complainant he
was fired. T. 101, 515. Ferguson and Complainant together
brought their dispute to supervisor Kenneth Hampton, who
overruled the firing, but told Complainant to keep quiet and do
as he was told or he would lose his job. T. 102, 517. Bechtel
manager Larry Booth also warned Complainant he would be fired if
he kept getting involved in matters other than his work as a
laborer. RX 18, p. 24, 26.
King believed that there was a personality conflict between
[PAGE 3]
Complainant and Ferguson and decided to switch Complainant to a
different night shift crew of carpenters under a different
foreman, effective April 15, 1987. T. 572; RX 2.
Complainant also tried to get the union hall to help with
his problem with Ferguson. T. 103-104. Union hall president
Albert Huston received a message that Complainant wanted to
discuss safety issues concerning Ferguson, and Huston told
laborer general foreman Willie Murphy to look into it and fix the
problem. T. 596. According to Complainant, Murphy reacted
adversely and told Complainant not to go to the union hall or
talk to anyone else about the problem. T. 106. Murphy said he
told Complainant to come to him first with any problem, rather
than going directly to the union hall. T. 346-347, 671.
In early April 1987, the Nuclear Regulatory Commission (NRC)
informed FP&L about an anonymous tip that unnamed pipe fitters at
Turkey Point were using drugs on the job, and FP&L in turn
informed the pipe fitters' employer, Bechtel. T. 468. Bechtel
required all pipe fitters to undergo drug testing, and four
workers tested positive. T. 468. The workers with positive test
results were discharged during the first two weeks of April.
T. 469.
Union representative Bill Loy and Civil Superintendent
George King heard rumors that Complainant was the person who had
informed the NRC about the pipe fitters' drug use. T. 490, 573.
During one night shift, Loy heard threats against Complainant
over the plant's public address system. T. 490. Loy told
Project Superintendent Robert Slover about the rumors concerning
Complainant and the voiced threats. T. 476. Neither Loy nor
Slover talked to Complainant about the threats, T. 487, 493, and
no one knew who made the threats. Since the threats occurred at
night, Slover decided to transfer Complainant to the day shift,
effective the next work day (April 20), as a means to protect
Complainant. T. 477-478. According to Bechtel, there was more
supervision of workers during the day shift and Complainant would
not have to go to the parking lot or drive home in the dark.
T. 478.
Complainant testified that in the aftermath of his raising
safety concerns to his superiors, he was transferred to day shift
without notice and at a significant loss in pay. T. 113-115.
Bechtel neglected to tell Complainant about the transfer, either
directly or by leaving a message on his telephone answering
machine. T. 114. He learned about the transfer only when he
reported for the night shift on April 20 and Murphy asked why
Complainant had not earlier reported for the day shift. T. 113-
114. Under a work rule, as a result of missing work on April 20,
Complainant was not permitted to work and earn overtime pay
during the weekend of April 25 and 26. T. 114-115, 141.
[PAGE 4]
Complainant testified that working day shift represented a loss
of 20 to 30 hours per week of pay at time and a half. T. 115.
According to Complainant, Bechtel manager Booth warned him
that by transferring him to the day shift, Bechtel was setting up
Complainant to be fired. [3] T. 105. Complainant testified
that while on day shift, Bechtel discriminated against him by
assigning him permanently to distasteful "cask wash" duty.
T. 116-117. Day shift foreman Calvin Battle stated that he
assigned Complainant to cask wash because the job needed to be
done and Complainant was proficient at it. T. 208. Battle
stated that he did not rotate crew members in the cask wash, and
that he consistently assigned a different worker to cask wash
from May 1987 through the hearing in February 1988. T. 208-209.
On April 26, Complainant made a complaint to the Nuclear
Regulatory Commission (NRC) alleging safety violations, which the
NRC promptly investigated. T. 118-119. Complainant believed
that Bechtel was aware that Complainant had contacted the NRC
because the NRC representative interviewed Complainant for an
hour and a half, and interviewed other workers for only 10 or 15
minutes apiece. T. 121.
Field Superintendent Don Hamilton determined on May 15,
1987, that it was necessary to lay off three laborers and
informed another manager, who in turn told Murphy, the laborer
general foreman. T. 536-537. Murphy had the sole responsibility
to determine which persons to lay off, T. 537-538; 675, and since
there is no seniority at Bechtel, he chose to lay off employees
who presented problems. T. 574. Murphy stated that he selected
Complainant because Complainant had interfered with the first aid
department, contrary to orders, T. 669-670, called the union hall
for assistance without first seeking Murphy's help, T. 670-671,
and because Murphy believed that Complainant might resign again
to take a better job, as he had in 1986 after only three days of
training while on Bechtel's payroll. T. 674, 681-682.
Complainant was laid off effective May 15, 1987, and had not been
recalled to work as of the hearing, which closed in March 1988.
Murphy also selected two other laborers for layoff that day.
One laborer was chosen because of absenteeism, T. 389, 674, and
another for interfering with workers and keeping them from doing
their work. T. 389. In the months following Complainant's
layoff, Bechtel reduced substantially the number of laborers at
Turkey Point. RX 22.
II. Preliminary Issues
The parties' filings are lengthy and several. Complainant
submitted a Notice of Supplemental Information (Notice) in
February 1992. Pursuant to a May 1989 Joint Stipulation of
Briefing Schedule, however, the pleadings closed with the
submission of Complainant's Reply to Bechtel's Response to
[PAGE 5]
Complainant's Amended Exceptions, submitted in June 1989.
Complainant has not offered any reasons why he should not be
bound by the Joint Stipulation. Accordingly, the Notice has not
been considered.
Complainant argues that the ALJ denied him a fair hearing by
issuing the R.D. and O. without either permitting closing
arguments or considering Complainant's post hearing brief. [4]
Complainant's counsel had just received a copy of the transcript
and notified the ALJ that Complainant would submit a post hearing
brief, when the ALJ issued the R.D. and O. seven months after the
close of the hearing. By order of February 13, 1990, the
Secretary accepted for filing Complainant's 157 page, single
spaced post hearing brief, and it has been considered in reaching
this decision. Thus, any possible unfairness has been cured.
Complainant further contends that the testimony of
Bechtel's expert witness Kelley deprived him of a fair hearing.
Complainant initially moved to strike Kelley's entire testimony
on the ground that Bechtel had not listed him as a witness prior
to the hearing. T. 456. When the ALJ allowed Complainant to
renew his objection at the completion of Kelley's testimony,
Complainant withdrew his motion to strike. T. 464. Since Complainant waived objection to the testimony, it was not unfair
to include it. [5]
Finally, Complainant contends that he also was prejudiced by
the admission at the hearing of the depositions of Bechtel's
witnesses Robarge and Williams, who resided outside Florida and
did not appear at the hearing. After initially indicating that
he would not call Robarge and Williams at trial, Bechtel's
counsel took their depositions by telephone on the day before the
hearing opened, after one day's notice to Complainant. T. 529.
Complainant's counsel did not participate in the last minute
telephonic depositions and therefore the witnesses' testimony was
not subjected to cross-examination. At the hearing, the ALJ
admitted both depositions over Complainant's strenuous objection.
T. 530. In view of the lack of cross-examination, I have given
little weight to the testimony in the depositions. Moreover, any
possible prejudice to Complainant from the admission of the
depositions is at most harmless error, since I have found that
Bechtel violated the ERA.
III. Analysis
A. Prima Facie Case
To make a prima facie case, the complainant in a
whistleblower case must show that he engaged in protected
activity, that he was subjected to adverse action, and that the
respondent was aware of the protected activity when it took
adverse action against him. Complainant also must present
sufficient evidence to raise the inference that the protected
[PAGE 6]
activity was the likely reason for the adverse action. Dartey
v. Zack Co. of Chicago, Case No. 82-ERA-2, Sec. Ord., Apr.
25, 1983, slip op. at 8. Under the ERA,
No employer, including a . . . contractor . . . of a
Commission licensee, . . . may discharge any employee or
otherwise discriminate against any employee with respect to
his compensation, terms, conditions, or privileges of
employment because the employee . . . (1) commenced, caused
to be commenced, or is about to commence or cause to be
commenced a proceeding under this chapter . . . ; (2)
testified or is about to testify in any such proceeding or;
(3) assisted or participated or is about to assist or
participate in any other manner in such a
proceeding . . . .
42 U.S.C. § 5851 (1988).
There is no dispute in this case that the complaint to the
NRC is protected activity under the Act. SeeKansas
Gas & Elec. Co. v. Brock, 780 F.2d 1505, 1510-1513 (10th Cir.
1985), cert. denied, 478 U.S. 1011 (1986) (protection
afforded during all stages of participation in order to maintain
integrity of administrative process in its entirety).
Complainant argues that the ALJ unfairly limited the protected
activities in this case to the NRC complaint, whereas
Complainant's internal complaints to his supervisors also are
protected. Although I do not believe that the ALJ so limited the
scope of protected activities, I agree that internal complaints
are protected. SeeAdams v. Coastal Production
Operators, Inc., Case No. 89-ERA-3, Dec. and Order of Remand,
Aug. 5, 1992, slip op. at 9; Kansas Gas & Elec., 780 F.2d
at 1513; Mackowiak v. University Nuclear Systems, Inc.,
735 F.2d 1159, 1163 (9th Cir. 1984). I find that Complainant's
protected activities included both internal complaints to his
supervisors and management, contacting the union representative
and an external complaint to the NRC. [6] See,
e.g., Dysert v. Westinghouse Electric Corp., Case
No. 86-ERA-39, Final Dec. and Order, Oct. 30, 1991, slip op. at
1-3 (employee's complaints to team leader about procedures used
in testing instruments is protected internal complaint under the
ERA).
Complainant's layoff clearly constituted adverse action
against him. Complainant also established that transfer to the
day shift was adverse since day shift workers received less
overtime pay than those on night shift.
Although Complainant testified convincingly that he found
working in the cask wash to be a hot, distasteful assignment,
T. 116-117, he did not complain about it to the assigning
foreman, Calvin Battle. T. 208. Battle testified that in his
opinion, the cask wash was not the worst assignment for his
[PAGE 7]
workers, that some laborers volunteered to do it, and that after
Complainant's layoff, he assigned laborer Chris Lee to cask wash
a similar percentage and duration of time as he had assigned
Complainant to it. T. 208-210; see RX 11, 12. I find
that the evidence establishes that Complainant's assignment to cask
wash was routine and did not constitute adverse action against
him. [7]
Bechtel managers King and Hampton clearly knew of the
internal safety complaints Complainant made to them. As for the
external complaint, Ferguson knew that Complainant had complained
to the NRC, T. 199, 633-634, and several managers heard rumors,
or assumed, that Complainant spoke with the NRC about his safety
concerns. T. 581, 584-585 (King); RX 18 at 47 (Larry Booth). In
addition, several managers heard rumors that Complainant had
tipped off the NRC about the pipe fitters' drug use, a serious
safety violation. T. 573 (King) and T. 476 (Slover). Therefore,
Bechtel managers either were aware, or strongly suspected, that
Complainant had complained to the NRC. [8] SeeWilliams v. TIW Fabrication Machining, Inc., Case No. 88-
SWD-3, Sec. Dec., June 24, 1992, slip op. at 6 (managers' suspicions that
complainant had filed complaints with government agency
sufficient to show respondent's knowledge).
Causation is shown in that Complainant's transfer to day
shift occurred shortly after he made his internal safety
complaints and his layoff occurred shortly after he made his
complaint to the NRC. Couty v. Dole, 886 F.2d 147, 148
(8th Cir. 1989) (temporal proximity sufficient to establish
causation). [9] Moreover, Complainant produced ample testimony
supporting the inference that Bechtel retaliated against him
because of his safety complaints. Complainant testified that his
foreman, Ferguson, became angry and told Complainant he was fired
when Complainant raised safety concerns to Ferguson's superior.
T. 101. Bechtel manager Kenneth Hampton told Complainant to keep
his dispute with Ferguson quiet or Complainant would be out of a
job. T. 102. According to Complainant, T. 105, Bechtel
superintendent Larry Booth warned that Bechtel transferred
Complainant to the day shift in order to set him up to be fired.
Finally, Complainant stated that Murphy ordered him not to go to
the union hall with his complaints, which involved a safety related dispute with Ferguson. T. 106. After these events,
Complainant was switched to day shift, then laid off. T. 122.
I find that Complainant established a prima facie case that
the transfer to day shift and his layoff violated the employee
protection provision of the ERA.
B. Motivation for Adverse Actions - Rebuttal,
Pretext,Dual Motive
Once Complainant established a prima facie case, Respondent
[PAGE 8]
had the burden to come forth with legitimate, nondiscriminatory
reasons for the adverse actions. Dartey, slip op. at 8.
Bechtel articulated legitimate reasons for transferring
Complainant to day shift and laying him off. Complainant had the
ultimate burden of persuading that the articulated reasons were a
pretext, and that the real reason for the adverse action was
discriminatory. St. Mary's Honor Center v. Hicks, No. 92-
602, 1993 U.S. LEXIS 4401, at 15-16 (U.S. June 25, 1993). [10]
When the employer's adverse action against the employee was
motivated by both prohibited and legitimate reasons, the dual
motive doctrine applies. Dartey, slip op. at 8-9;
seeMackowiak, 735 F.2d at 1163; Mt. Healthy
City School District Board of Education v. Doyle, 429 U.S.
274, 287 (1977). In such a case, the employer has the burden to
show by a preponderance of the evidence that it would have taken
the same action concerning the employee even in the absence of
the protected conduct. Dartey, slip op. at 9;
Mackowiak, 735 F.2d at 1164; Mt. Healthy, 429 U.S.
at 287; Price Waterhouse v. Hopkins, 490 U.S. 228, 252
(1989) (plurality opinion). The employer bears the risk
that the influence of legal and illegal motives cannot be
separated. Mackowiak, 735 F.2d at 1164; Guttman v.
Passaic Valley Sewerage Comm'rs, Case No. 85-WPC-2, Final
Dec. and Order, Mar. 13, 1992, slip op. at 19, affirmed sub
nom.Passaic Valley Sewerage Comm'rs v. Martin, No.
92-3261 (3d Cir. Apr. 16, 1993).
C. Transfer to day shift
Complainant argues that Bechtel transferred him to the day
shift in retaliation for his internal safety complaints about a
night shift foreman, Ferguson. Bechtel witness King explained
that in immediate response to Complainant's disagreements with
Ferguson, he placed Complainant on a different night shift crew
under a different foreman. [11] T. 572. Bechtel's witnesses
also stated that Bechtel transferred Complainant to day shift
only after hearing threats against Complainant over the public
address system during the night shift. Bechtel managers knew of
rumors that Complainant had tipped off the NRC about employees'
drug use. In light of the fact that several pipe fitters had
been discharged for positive drug tests, it is believable that
Bechtel's managers feared that someone might try to harm
Complainant. Protecting an employee is generally a legitimate
management concern.
The entirety of the evidence convinces me that Bechtel also
had another motive for the shift switch, however. Complainant
convincingly testified that he was not notified of the switch to
day shift and that he had a telephone answering machine and did
not receive a message about the switch. T. 114. None of
Bechtel's witnesses stated that they attempted to inform
Complainant about the switch prior to the day it took effect.
[PAGE 9]
If, as Bechtel witnesses testified, the company feared for
Complainant's safety if he continued to work nights, it seems odd
that no one informed Complainant ahead of time that he was being
switched to the day shift. Bechtel made the decision to switch
shifts on Friday, April 17, T. 490-491, and Complainant was not
scheduled to work again until Monday, April 20. T. 113. Through
Bechtel's failure to advise him, Complainant apparently was put
in danger an extra evening when he reported for the night shift
on April 20, 1987.
In addition, as a consequence of the work rules, Complainant
was not permitted to work during the weekend of April 25-26
because he had missed the day shift (through no fault of his own)
on April 20. T. 141. Complainant testified that Murphy said he
might be fired for missing work. T. 114, 141-142. Murphy
did not refute Complainant's testimony on the subject. Since it
clearly was Bechtel's fault that Complainant missed work that
day, it seems punitive either to consider firing him or not to
pay him compensation to which he would otherwise have been
entitled, for work on April 20 and the subsequent weekend. In
addition to these anomalies, Complainant testified credibly that
his superiors threatened him about safety related complaints
and warned him he was being set for discharge through the
switch to day shift. I therefore find that Bechtel also had a
discriminatory motive of punishing Complainant for raising safety
issues concerning foreman Ferguson.
Bechtel thus had mixed motives for transferring Complainant
to day shift, both a legitimate motive of protecting him from
threatened harm, and a retaliatory motive because he raised
safety issues. After weighing the evidence carefully, I find
that Bechtel did not sustain its burden of establishing that it
would have made the transfer for Complainant's safety even if he
had not engaged in protected activities. In failing to notify
about the switch to day shift and penalizing Complainant
monetarily for missing the day shift on April 20, Bechtel did not
act consistently with its avowed desire to protect Complainant
from harm. The threats about Complainant pursuing a safety-
related dispute with Ferguson were particularly egregious, and
occurred shortly before the switch in shifts. Accordingly, I
find that Complainant convincingly established that the real
reason for the transfer to day shift was his engaging in
protected activities.
D. Selection for layoff
Concerning the layoff, Murphy testified that when he was
notified to reduce the laborers' work force by three, he chose
employees with whom he had problems, including Complainant.
T. 674. The other two employees Murphy selected for layoff on
[PAGE 10]
the same day as Complainant caused problems of the type for which
any employer would find fault in a worker: absenteeism and
keeping other employees from doing their work. T. 389, 674-675.
I will examine in turn each of Murphy's stated reasons for
selecting Complainant.
According to Murphy, the first problem was Complainant's
interference with the safety department. When he rehired
Complainant in 1987, Murphy said that because of complaints of
interference with the first aid department during Complainant's
prior employment at Bechtel, he warned Complainant not to
interfere with the department again. [12] T. 378, 669.
Notwithstanding that warning, Murphy testified, Complainant went
to the first aid department within the first few weeks of his
1987 reemployment to ask about joining an "emergency response
team" mentioned in a Bechtel brochure. T. 382-385; see RX
21 at 5-6. Bechtel did not have such a team at the Turkey Point
plant, however, and used only professional safety department
staff to handle first aid. RX 21 at 6, 11.
Complainant argued that Bechtel's "safe practices" booklet
directs all employees to tell the responsible safety supervisor
that they have first aid training, [13] and he visited the first
aid department to do so. Comp. Post-Trial Br. at 110-111. When
safety department employee Mike Williams complained to Murphy
about Complainant's visit, Murphy believed that Complainant had
breached his promise not to interfere with the department.
T. 670. Complainant contends, however, that Murphy's warning to
stay away from the department occurred after his visit to report
his first aid training, and not before. Comp. Post-Trial Br. at
108.
According to Williams, Complainant visited the first aid
department a second time in 1987 and gave unsolicited medical
advice to an injured employee. RX 21 at 7-8. [14] Complainant
did not testify about such a visit. [15]
The ALJ found that Complainant's interference with the first
aid department alone was sufficient justification for layoff,
absent Complainant's engaging in protected activities. [16]
R.D. and O. at 12. But Complainant had a plausible basis for
visiting the department to report his first aid training and to
offer to join a purported emergency team at Turkey Point, as
Project Safety Supervisor Elledge conceded. T. 619. I find that
Murphy's concern about the first visit to inform about
Complainant's first aid training was not a credible basis for
laying off Complainant.
As for Complainant's alleged second visit to the safety
department in 1987, other witnesses appeared to contradict
Williams. Murphy testified that after chastising Complainant
[PAGE 11]
about the first visit concerning the emergency team, he had no
further complaints about Complainant interfering with the safety
department. T. 383, 677. Nor did Elledge know of any contact
between Complainant and the safety department during his 1987
employment, with the exception of Complainant's clearly
legitimate visit for treatment. T. 611-613. It appears that
after complaining to Murphy about the visit concerning first aid
training, Williams inexplicably did not complain about a second
visit in which Complainant purportedly offered medical advice.
Williams' testimony was not subject to cross examination and does
not convince me that the alleged second visit occurred in 1987.
I note that Complainant had periods of employment at Turkey Point
other than his 1987 employment at issue. Thus, I find that the
alleged second visit is also unconvincing as a reason for laying
off Complainant.
Murphy's second reason for selecting Complainant was his
belief that Complainant might work only a very brief time for
Bechtel, as he had previously. In 1986, Complainant left
Bechtel's employ after only three days of training to take a
better paying job with another contractor at Turkey Point.
T. 682. Murphy testified that he remembered Complainant's short-
lived 1986 stint and reluctantly hired Complainant during the
1987 outage only because Complainant was a union member and
Murphy felt compelled to hire him. T. 377.
The fear that Complainant might quit is not a convincing
reason to select him for layoff. Bechtel established that the
1987 outage was nearing completion at the time it hired
Complainant. T. 389. The list of employees that Bechtel laid
off between May 15 and May 29, 1987, includes eight other
laborers, RX 8, and Bechtel reduced the number of laborers even
more through August 14, 1987. RX 22. Therefore, even if
Complainant had quit his job before the end of the 1987 outage,
it would not have harmed Bechtel substantially because of the
need to reduce the number of laborers. Moreover, Project Field
Superintendent Hamilton said that Bechtel would not hold it
against a worker who quit to take a better job. T. 551-552.
That is precisely why Complainant resigned from Bechtel's employ
in 1986.
Murphy's third stated reason was Complainant's seeking help
from the union hall without first giving Murphy a chance to
resolve the problem. Complainant argues that the statement of
Bechtel's counsel that bringing a complaint to the union hall was
"the motivating factor" [17] in deciding to lay off Complainant
was an admission that Bechtel discriminated against Complainant
for engaging in protected activity, since the issues he intended
to raise were safety related. T. 103-104. See Amended
Exceptions No. 31, p. 14; P-T Br. at 126. Under the ERA, it is
not
[PAGE 12]
permissible to find fault with an employee for failing to observe
established channels when making a safety complaint. See,
e.g., Pogue v. United States Dep't of Labor, 940
F.2d 1287, 1290 (9th Cir. 1991) (superior's purported anger over
employee's failing to follow chain of command in reporting a
whistleblower complaint was pretext for anger over the making of
the complaint).
Murphy did not state that he was aware that Complainant
intended to obtain the union hall's help on safety issues.
Rather, Murphy referred to the firewatch issue as if it were
solely an economic issue involving payment for working through
lunch. [18] Complainant testified, however, that the issue was
one of safety: whether anyone would be on firewatch when
Complainant took a lunch break. T. 112-113. Murphy understood
that Ferguson and Complainant disagreed over the correct RWP for
a job, T. 336, and that was clearly a safety issue. Moreover,
Union president Huston testified that he was aware that
Complainant had a safety complaint, and that he asked Murphy to
address the problem. T. 596, 598-599. Huston may have indicated
to Murphy that the issue was safety based.
Since both Complainant and Huston viewed the issues as
safety related, I find it disingenuous that Murphy purportedly
did not know that Complainant intended to raise safety issues
with the union hall. [19] I find further that Murphy's faulting
Complainant for going around established channels to bring a
safety complaint was not a valid basis for choosing him for
layoff.
Citing Complainant's "altercations" with Ferguson, the ALJ
found that Respondent established that it would have laid off
Complainant even in the absence of his protected activities.
R.D. and O. at 11-12. Respondent, however, did not proffer this
reason for selecting Complainant for layoff. Murphy did not
mention the relationship between Complainant and Ferguson as a
reason for choosing Complainant, and therefore, it is not
probative that Complainant legitimately could have been laid off
absent his protected activities. [20] Complainant disagreed
with Ferguson on a safety issue, and that disagreement led to the
strong feelings they exhibited toward one another. In any event,
no one alleged or demonstrated that Complainant engaged in
abusive or violent behavior toward Ferguson that could
legitimately justify discharge, rather than layoff. The fact
that Bechtel considered Complainant eligible for rehire, R.D. and
O. at 11, undermines the seriousness of the "altercations"
between him and Ferguson. Nor is the ALJ's assessment, R.D. and
O. at 11, that Pillow had difficulty getting along with coworkers
relevant, since Murphy did not mention it as a reason for the
layoff either. [21]
After a thorough review of the record and the ALJ's
[PAGE 13]
decision, I find that Complainant met his burden of establishing
that the reasons Bechtel advanced for choosing him for layoff
were a pretext, and I am persuaded that Murphy selected him for
layoff because he pursued safety-based disputes with Ferguson. I
note that the ALJ found no contradictions between the testimony
of Complainant and that of Respondent's witnesses, R. D. and O.
at 4, and made no determinations of witness credibility.
Therefore, I have not disagreed with any assessment of witness
credibility. Rather, I disagree with the legal conclusions the
ALJ drew from the evidence. I find that Bechtel violated the ERA
when it laid off Complainant on May 15, 1987.
IV. The Remedy
In the event that a respondent is found to have violated the
ERA, "the Secretary shall order the person who committed such
violation to (1) take affirmative action to abate the violation,
and (ii) reinstate the complainant to his former position
together with the compensation (including back pay), terms,
conditions, and privileges of his employment. . . ." 42 U.S.C.
§ 5851(b)(2)(B). See generallyWells v. Kansas
Gas & Elec. Co., Case No. 85-ERA-0072, Final Dec. and Order,
Mar. 21, 1991, slip op. at 17. In addition, "the Secretary may
order such person to provide compensatory damages to the
complainant" and shall assess costs and expenses, including
attorney fees, reasonably incurred in bringing the complaint.
Id.; DeFord v. Secretary of Labor, 700 F.2d 281,
288-289, 291 (6th Cir. 1983).
Complainant does not ask for reinstatement, but seeks back
pay, compensatory damages, costs and attorney fees, and asks that
I remand to the ALJ for a hearing limited to damages. Comp.
Post-Trial Brief at 157. Complainant has the burden of
establishing the amount of back pay that Respondent owes. He
testified that the switch to day shift caused him to lose between
20 and 30 hours of pay per week at time and a half during his
1987 employment, T. 115, and Bechtel did not refute his
testimony. Complainant is entitled to 30 hours back pay per week
at time and a half for the period from April 20, 1987, through
May 15, 1987.
The issue of the correct amount of back pay due to the
discriminatory selection for layoff requires determining whether,
and when, Complainant would have ceased working for Bechtel,
absent any discrimination. Complainant is entitled "only to
recover damages for the period of time he would have worked but
for wrongful termination; he should not recover damage for the
time after which his employment would have ended for a
nondiscriminatory reason." Blackburn v. Martin, 982 F.2d
125, 129 (4th Cir. 1992). The record reveals that Bechtel hired
Complainant on three different occasions as part of a build-up of
staff during outages: in 1984-85, again in 1986, and in 1987.
[PAGE 14]
Complainant did not establish that he was hired in 1987 as a
permanent employee who could expect to continue working at Turkey
Point after the outage ended. I find that even absent any
discrimination, Bechtel would have laid off Complainant some time
in 1987 as the outage ended. Respondent showed that it laid off
a total of 56 laborers, including Complainant, from May 15, 1987
(date Complainant was laid off), through August 14, 1987, as the
1987 outage ended. RX 15. Bechtel's Construction Daily Force
Report corroborates that the number of laborers at Turkey Point
declined substantially during that period, and that thereafter
the number was held between 38 and 44 laborers for the remainder
of 1987. RX 22. I further find that the cutoff date for back
pay is August 14, 1987, the last day on which Bechtel laid off
laborers as the 1987 outage ended.
Complainant testified that after the time of his layoff, he
was employed for an unspecified period by Bartlett Nuclear, Inc.
T. 68. If this employment occurred during the period May 16
through August 14, 1987, the amount that Complainant earned must
be deducted from the back pay award.
Complainant is entitled to back pay as a night shift worker,
for the period May 16 through August 14, 1987, including overtime
pay, less any earnings during that period, together with interest
thereon calculated pursuant to the rate for underpayment of taxes
in the Internal Revenue Code, 26 U.S.C. 6621. Wells, slip
op. at 17 and n.6. I will remand for the ALJ to take evidence
on, and recommend, the amount of back pay to which Complainant is
entitled under the discussion of back pay outlined above.
Complainant also seeks compensatory damages, which may be
awarded for pain and suffering, mental anguish, embarrassment,
and humiliation. DeFord, 700 F.2d at 283. Such awards
may be supported by the circumstances of the case and testimony
about physical or mental consequences of retaliatory action.
Lederhaus v. Donald Paschen, et al., Case
No. 91-ERA-13, Final Dec. and Order, Jan. 13, 1993, slip op. at
10, and cases there cited. On remand, the ALJ shall afford the
opportunity to present evidence concerning entitlement to
compensatory damages and any opposition thereto, and shall
recommend the amount of such damages, if any.
Finally, Complainant seeks an award of costs and an attorney
fee associated with bringing his complaint. On remand, the ALJ
shall afford Complainant's counsel a period of time to submit a
request for costs and attorney fee, shall afford Respondent's
counsel a like period to file any objection, and shall make a
recommendation on an appropriate award.
Accordingly, this case is REMANDED to the ALJ for further
proceedings and a recommended decision on the amount of back pay,
compensatory damages, if any, and costs and attorney fees, to
which Complainant is entitled.
[PAGE 15]
SO ORDERED.
ROBERT B. REICH
Secretary of Labor
Washington, D.C.
[ENDNOTES]
[1] The nuclear units at Turkey Point are shut down
periodically for refueling and other reasons, and the periods of
shut down are called "outages." T. 533. There is an increase
in the number of workers during outages. T. 469-470.
[2]
Average DPMs are calculated by taking the average of the geiger
counter readings of DPMs on 10 to 25 paper smears.
T. 436. The ALJ's finding, R. D. and O. at 4, that Complainant
stated that an assignment requires the use of a respirator if
the radiation level was above 20,000 DPMs is corrected by
replacing the number 20,000 with the number 50,000. See
T. 84.
[3]
Booth, who had left Bechtel's employ and moved to Arizona, was
not a witness at the hearing. See RX 18 at 5. In his
pre-hearing deposition, RX 18, no one asked Booth whether he
told Complainant about being "set up," as Complainant later
testified.
[4]
Closing arguments and post hearing submissions are
discretionary. See 29 C.F.R. § 24.5(e)(3). In this
case, the ALJ authorized submission of post-hearing proposed
findings of fact and conclusions of law 30 days after receipt of
the hearing transcript. T. 689.
[5]
Moreover, although Complainant contends that including Kelley's
testimony was unfair, Amended Exceptions No. 6 at p. 6 and Nos.
32, 33 at p. 14, Complainant seeks to rely on portions of
Kelley's testimony that substantiate his own. See,
e.g., Amended Exceptions No. 28 at p. 13; No. 32 at p. 14.
[6]
The ALJ's finding that "no Nuclear Regulatory Commission
regulation was violated," R.D. and O. at 4, is not dispositive on
the issue of protected activity, since a complainant need not
prove a violation of Federal safety laws or regulations to
establish a violation of a whistleblower provision. SeeYellow Freight System, Inc. v. Martin, 954 F.2d 353, 356-
357 (6th Cir. 1991) (under analogous whistleblower provision of
the Surface Transportation Assistance Act, 49 U.S.C. § 2305
(1988)).
[7]
Even if assignment to cask wash were considered an adverse
action, Bechtel proferred legitimate business reasons for
assigning him to it: the task needed to be done and Complainant
was good at it. T. 207-208. I find that Complainant did not
sustain the burden of establishing by a preponderance of the
evidence that the reasons Bechtel gave were a pretext for
discrimination, or that Bechtel discriminated in assigning him
to cask wash.
[8]
Complainant proffered in rebuttal the testimony of FP&L
official Tom Young that two days before Complainant was laid off,
Young notified a Bechtel manager that Complainant had made a
complaint to the NRC. T. 686. The ALJ excluded the testimony
because it was not rebuttal evidence, T. 687, and would not
establish that the foreman who selected Complainant for layoff
was aware of the NRC complaint. T. 689. In light of my finding
that Complainant established that Bechtel was aware of his
protected activity, the exclusion of the testimony did not
prejudice Complainant.
[9]
The ALJ found Complainant's prima facie case defective because
he "failed to establish that Respondent was even partially
motivated in its actions by Complainant's protected activity."
R.D. and O. at 4. At this stage, Complainant was not required to
establish motivation. To establish a prima facie case,
Complainant need produce only enough evidence to raise the
inference that the motivation for the adverse action was his
protected activity. Dartey, slip op. at 8.
[10]
The Dartey decision, which laid out the burdens of
production and persuasion in "whistleblower" cases under the ERA,
in turn relied upon the framework for cases brought under Title
VII of the Civil Rights Act of 1964. SeeDartey,
slip op. at 7-8, citing Texas Dep't of Community Affairs v.
Burdine, 450 U.S. 248 (1981). The Supreme Court's recent
decision in St. Mary's Honor Center clarifies that the
plaintiff in a Title VII case has the burden of persuading the
trier of fact that the defendant intentionally discriminated
against the plaintiff on an impermissible basis.
[11]
Complainant does not contend that the switch to a different
night crew was discriminatory.
[12]
Project Safety Supervisor Ken Elledge corroborated that
Complainant had interfered with the Safety (first aid) Department
in 1984. T. 507-508.
[13]
The "safe practices" booklet to which Complainant's counsel
referred was not admitted into evidence. The part of the booklet
that counsel read into the record, T. 39-40, does not mention an
employee's obligation to notify the safety department about first
aid certification or training. Since Bechtel's project safety
supervisor did not dispute that the booklet so states, T. 618, I
will assume that it does.
[14]
Complainant also visited the first aid department during his
1987 employment to receive medical attention for heat stress.
T. 612-614; CX 11. No witness faulted Complainant for his visit
for the purpose of treatment.
[15]
As explained above, Complainant's counsel did not attend the
eleventh hour deposition of Williams, which was taken on one
day's notice. At the time Complainant testified at the hearing,
Williams' deposition was not yet a part of the hearing record.
[16]
At one point in his decision, the ALJ mistakenly referred to
the adverse action against Complainant as a discharge, R.D. and
O. at 12, whereas Complainant was laid off due to a reduction in
force. CX 8.
[17]
In arguing a motion, Respondent's counsel referred to the Union
Hall issue as "the motivating factor" in selecting Complainant
for layoff. T. 26-27. Murphy testified, however, that
Complainant's going to the Union Hall was one of three factors
that led him to choose Complainant. T. 389-391.
[18]
See, e.g., T. 335, 347, and 671. When
asked if he knew whether Complainant raised safety issues with
the Union Hall, Murphy testified that he did not. T. 348.
[19] The ALJ did not discuss Murphy's statement that the union
hall issue was one reason he laid off Complainant.
[20]
Similarly, the ALJ's reliance on Dunham v. Brock, 794
F.2d 1037 (5th Cir. 1986), R.D. and O. at 11, is misplaced.
In that case, the Secretary and the court found that the
employer legitimately could have discharged an employee for
his insubordination. Here, however, Murphy did not cite
insubordination as a reason for laying off Complainant.
[21]
In any event, some co-workers testified to the contrary,
that Complainant got along well on the job. See,
e.g., T. 203 (foreman Battle) and T. 249-250 (co-
worker Dalton).
