Abraham v. Lawnwood Regional Medical Center, 96-ERA-13 (ALJ Dec. 13, 1996)

Under this statute's predecessor, it has been held that it must be proven by Complainant, Texas Dept. of Community Affairs v. Burdine 450 U.S. 248 (1981): (1) that the party charged with discrimination is an employer subject to the Act: (2) that the complaining employee was discharged or otherwise discriminated against with respect to his compensation, terms, conditions or privileges of employment; and (3) that the alleged discrimination arose because the employee commenced or was about to commence, testified or was about to testify, assisted, participated, or was about to assist or participate in any proceeding, or in any other action to carry out the purposes of 42 U.S.C. §5851 (Energy Reorganization Act) or 42 U.S.C. §2011 (Atomic Energy Act). See, DeFord v. Secretary of Labor, 700 F.2d 281, 286 (6th Cir. 1983).

As to element (3) above, that is, employee conduct constituting activity protected under the Act, the Secretary of Labor has made it clear that the reporting of safety and quality concerns internally to an employer is protected activity.³

Where a complainant shows:

1. engagement in protected activity;

2. the employer's awareness of the employee's engagement in protected activity;

3. the employee's subsequent discharge; and

4. that the discharge followed the protected activity so closely in time as to justify an inference of retaliatory motive, a prima facie case of retaliatory discharge is established, Couty v. Dole, 886 F.2d 147, 148 (8th Cir. 1989).

[Page 4]

ISSUES

1. Whether Complainant engaged in activity protected under the Act, and whether Respondent was aware of same.

2. Whether Complainant was terminated as a result of such protected activity.

COMPLAINANT'S⁴
THEORY OF RECOVERY
    Complainant, hired by Respondent in February, 1995 as a technologist in its Nuclear Medicine Department, maintains that throughout his tenure ⁵ , he regularly expressed his concerns to various of Respondent's officials ⁶ about shoddy, careless, disorganized procedures and practices impacting the operation of that department and its personnel. He argues that although his work performance was certainly satisfactory, Respondent fired him because of these expressions of concern, and not because of his behavior during an incident occurring on August 9, 1995 (involving Ms. Rhoda Hammer), Respondent's proffered reason for firing him.

THE DEFENSE
    Respondent insists that Complaintant never expressed the kinds of concerns protected under the Act to any of its officials involved in the decision to fire him. Moreover, Complainant was fired, per Respondent, solely because of his threatening and abusive behavior toward Ms. Hammer, another of its employees, on August 9, 1995.

FINDINGS OF FACT AND
CONCLUSIONS OF LAW

    1. Protected Activity
    I find, first, that this record contains sufficient evidence to establish that Complainant engaged in protected activity, known to Respondent, and that Complainant's termination occurred in sufficiently close temporal proximity to such protected activity so as to raise the inference of retaliatory discharge. Thus, Complainant has established a prima facie case of discrimination under the Act. Couty, supra.
    As early as April, 1995, Complainant expressed "quality improvement" concerns during a job
[Page 5]
performance appraisal evaluation (CX 2-3; Tr. 70-73; 75), and also had discussions about "quality management" with his superior, Mr. Stouffer (Tr. 398-403).⁷ In July, 1995, Complainant authored a memorandum concerning safety matters (CX 13). Complainant raised safety concerns with several physicians on Respondent's staff (Tr. 359-360). Moreover, I find that Complainant was officially terminated on August 15, 1996 upon his direct supervisor's (Robert Stouffer) ratification or upholding of Mr. Riley's (personnel) earlier (8/9/95) preliminary decision to fire him (Tr. 454-457; 432, 443). Thus, Complainant's report to the State of Florida authorities on August 11, 1996,⁸ qualifies as a protected activity under the Act.
    Ms. Bruggink, Complainant's acting supervisor, was told by Complainant, on August 10, 1995, that he would notify the State authorities (a protected activity) and was given a copy of his memorandum concerning the subject August 9, 1995 incident (CX 10; Tr. 185-189). As Ms. Bruggink was acting as an agent of Respondent, as was Mr. Stouffer and the physician's on Respondent's staff as above mentioned, awareness of Complainant's protected activities is thus imputed to Respondent.
    The temporal proximity of Complainant's statement (on 8/10/95) that he was going to telephone the State authorities, to his termination on August 15, 1995, certainly justifies raising the inference of retaliatory discharge, Couty supra.
    2. Reason for Discharge.
    The factual circumstances surrounding the seminal incident which occurred on August 9, 1995 between Complainant and Ms. Rhoda Hammer, Respondent's Assistant Director of Cardiology, are, in all relevant respects, found to have occurred as contained in Ms. Hammer's memorandum of the incident, written contemporaneously therewith (RX 1).
    Ms. Hammer, having been tasked by a physician (Dr. Shadani) to investigate a breakdown in communication between himself and the Nuclear Medicine Department (and to design a policy to avoid such breakdowns in the future), together with a Mr. Steve Burgin, visited Complainant at his work area. After an exchange of words with Complainant, during which time Complainant was apparently simultaneously trying to eat his lunch and attend to the busy flow of patients, Ms. Hammer perceived what she considered to be a developing and potential breach of confidentiality by certain statements being made by Complainant in the presence of a patient. She attempted to alert Complainant to this potential when Complainant, apparently in a raised voice and with arm gestures and finger pointing of exasperation toward
[Page 6]
Ms. Hammer, expressed his displeasure with what he considered to be an untimely visit interrupting his busy schedule of administering tests to patients. In no uncertain terms, Complainant eventually told Ms. Hammer to leave. Mr. Burgin confirms, in these pertinent parts, this rendition of what transpired (CX 19), as does another eyewitness, Ms. Melony Henry, the receptionist at Complainant's work situs (Tr. 242; 251-2; 262; CX 14). Indeed, Complainant confirms his state of utter frustration at the time of the incident (Tr. 335-9; CX 10).
    What is most important, is that I must credit Ms. Hammer's perception of fear and physical threat by Complainant's conduct during the subject 10-15 minute incident. There is no evidence in this record to support the proposition that Ms. Hammer created or otherwise fabricated her perception. Moreover, there is some evidence buttressing her acute reaction to Complainant's behavior (see CX 14 at 2; CX 19 at 35).
    On the basis of my acceptance of the fact of Ms. Hammer's perception of fear and threat, together with management's ⁹ crediting of that perception, I am compelled to find that Respondent's proffered reason for firing Complainant, i.e., Complainant's behavior, as above, is not pretextual. That is to say, I am compelled to find that Complainant has failed to establish that his behavior, as noted above, was not the reason for his termination.
    The decisions put forward in Complainant's brief (at pgg. 2,9) to support his position are distinguishable from the matter at hand. In both those (dual motive) cases, the employee established that an illegal motive played some role in the decisions to terminate. Here, no such evidence has been adduced. Furthermore, the "victim" in Cotter was admittedly not threatened by the employee's behavior (as opposed to Ms. Hammer's situation here), and was the only witness to the questioned behavior (unlike the corroboration present here).
    Finally, it needs to be emphasized that while there may exist in this record some evidence that Ms. Hammer over-reacted to or misperceived Complainant's behavior on August 9, 1995,¹⁰ and thus that Respondent fired Complainant unreasonably, there is no evidence that Respondent fired Complainant for "blowing the whistle", the only reason actionable under the Act. Even if I were to conclude that Respondent made the wrong decision to terminate a good employee ¹¹ , besieged by too busy a work schedule,¹² and altogether dedicated to performing in the best interests of the patients brought to him, or even if I were to
[Page 7]
fully believe that Claimant's behavior on August 9, 1996 was not threatening in the objective sense and/or that he did not intend to threaten,¹³ the Act does not provide any relief for this type of finding. The Act is simply not concerned with, nor am I authorized to conduct, a review of management's decision to fire an employee unless the termination is shown to have been occasioned by the employee's reporting of safety hazards, etc.

RECOMMENDED ORDER
    Based upon the foregoing, I recommend the complaint be DISMISSED.

      RALPH A. ROMANO
      Administrative Law Judge

Dated: December 13, 1996

NOTICE: This Recommended Decision and Order and the administrative file in this matter will be forwarded for review by the Secretary of Labor to the Administrative Review Board,
U. S. Department of Labor, Room S-4309, Frances Perkins Building, 200 Constitution Avenue. N.W., Washington, DC 20210. The Office of Administrative Appeals has the responsiblity to advise and assist the Secretary in the preperation and issuance of final decisions in employee protection cases adjudicated under the regulations at 29 C.F.R. Parts 24 and 1978. See 55 Fed. Reg. 13250 (1990).

[ENDNOTES]
¹ References herein are as follows: "ALJ" - Administrative Law Judge Exhibits, "RX" - Respondent Exhibits, "Tr." - Transcript of trial, "CX" - Claimant's Exhibits.
² A joint motion to continue the hearing (ALJ 7), initially set for June 4, 1996 (ALJ 5), was granted (ALJ 8). Respondent's later motion to further continue the hearing (ALJ 14), was denied (ALJ 16). The parties have waived all statutory time constraints relative to decision issuance (ALJ 7).
³ Priest v. Baldwin Assocs, 84-ERA-30 (6/11/86); Willy v. Coastal Corp., 85-CAA-1 (5/4/87), adopting the Ninth and Tenth Circuit rational in Mackowiak v. University Nuclear Systems, Inc., Case No. 82-ERA-8 (4/29/83), aff'd and remanded, 735 F.2d 1159 (9th Cir. 1984), and Wells v. Kansas Gas and Electric Co., Case No. 83-ERA-12 (6/14/84), affd' sub nom Kansas Gas & Electric v. Brock, 780 F.2d 1505 (10th Cir. 1985), cert.denied, 106 S.Ct. 3311 (1986); as against the decision reached in Brown & Root, Inc., v. Donovan, 747 F.2d 1029 (5th Cir. 1984), absent resolution of this circuit conflict by the U.S. Supreme Court.

⁴ Complainant, while initially represented by counsel, appeared pro se (ALJ 14 & 15).

⁵ Complaint was terminated in August, 1995 see infra.

⁶ And to State regulatory authorities.

⁷ I find no meaningful distinction between the expression of "quality" and "safety" concerns vis a vis the protected activity issue, especially where, as here, nuclear medicine is being practiced. An "overload" or backup of patients waiting to be tested by nuclear medicine device, for example, obviously impacts not only upon management efficiency concerns, but medical safety concerns as well (see Tr. 34-35; Cf. Tr. 426; 442).

⁸ Which report triggered an official State investigation of Respondent (CX 4).

⁹ Mr. Riley (Tr. 451-4), Mr. Stouffer (Tr. 432-4), and Ms. Bruggink (Tr. 205; 208-9).

¹⁰ See, for example, Ms. Henry's sympathy with Complainant's frustration and manner of communication (Tr. 255).

¹¹ Respondent's stipulated to Complainant's good job performance (Tr. 224).

¹² There is ample evidence of hectic, stressful work conditions (Tr. 30-47). Ms. Hammer's choice of (Complainant's hectic work station) location in which to discuss Dr. Shadani's problem may indeed be viewed as altogether inappropriate. Also well-taken, is Complainant's utter frustration at Ms. Hammer's attempt to silence him, in the middle of his response, after she first engaged him in the "brainstorming" of the pending matter. Noted also is that Ms. Hammer's sense of inpending breach of "patient confidentiality" by Complainant appears, more precisely, to have been a concern that the patient being ministered to by Complainant during her visit might overhear a discussion about a previously failed test.

¹³ There is no evidence that Complainant intended to frighten/threaten, or to physically harm, Ms. Hammer.