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USDOL/OALJ Reporter
Kahn v. Commonwealth Edison
Co., 92-ERA-58 (ALJ Feb. 24, 1993)
U.S. Department of Labor
RECOMMENDED DECISION AND ORDER
[Page 2]THE LAW
[Page 3]ISSUES
FINDINGS AND CONCLUSIONS
[Page 4]
[Page 5]
[Page 6]RECOMMENDED ORDER
[ENDNOTES]
CASE NO. 92-ERA-58
JOHN KAHN,
Complainant
v.
COMMONWEALTH EDISON CO.,
Respondent
William J. Provenzano, Esq.
For Complainant
Jon Fieldman, Esq.
For Respondent
Before: RALPH A. ROMANO
Administrative Law Judge
On May 12, 1992, Complainant filed a complaint (ALJ 1)1 pursuant to 29 C.F.R. §24.3 alleging that Respondent violated the provisions of the Energy Reorganization Act of 1974, 42 U.S.C. Section 5851(a) (hereinafter the "Act").
By letter dated September 1, 1992, 2 , the United States Department of Labor informed Complainant that its investigation of his complaint disclosed insufficient evidence to support the alleged violation (ALJ 1).
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By telegram dated September 17, 1992 (ALJ 2), Complainant requested a hearing pursuant to 29 C.F.R. 24.4(d)(2)(i).
A hearing was held in Chicago, Illinois on December 9 and 10, 1992.3 Post-hearing briefs were filed by the parties on February 16, 1993.
At the hearing, the parties agreed to a waiver of the decisional time requirements provided at 42 U.S.C. 5851(b)(2)(A) and 29 C.F.R. 24.6(a) and (b). (Tr. 5)
42 U.S. C. 5851(a) reads as follows:
- Employee protection
- (a) Discrimination against employee No employer, including a Commission licensee, an applicant for a commission license, or a contractor or a subcontractor of Commission licensee or applicant, may discharge any employee or otherwise discriminate against any employee with respect to his compensation, terms, conditions, or privileges of employment because the employee (or any person acting pursuant to a request of the employee)-
- (1) commenced, caused to be commenced, or is about to commence or cause to be commenced a proceeding under this chapter or the Atomic Energy Act of 1954, as amended (42 U.S.C.A. §2011 et seq.), or a proceeding for the administration or enforcement of any requirement imposed under this chapter or the Atomic Energy Act of 1954, as amended;
- (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 manner in such a proceeding or in any other manner in such a proceeding or in any other action to carry out the purposes of this chapter or the Atomic Energy Act of 1954, as amended (42 U.S.C.A. §2011 et seq.).
Under this statute, it must be proven by Complainant, Texas Dept. of Community Affairs v. Burdine 450 U.S. 248 (1981): (1) that the party charged
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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.4
1. Whether Complainant engaged in activity protected under the Act.
2. Whether Complainant was discharged as a result of such protected activity.
There is no question that Complainant, during his tenure between July 8, 1991 and April 14, 1992, reported to his superiors at Respondent certain concerns relative to his perception of safety hazards existing at Respondent's Zion nuclear electric generating station. He advised Dave Bump, Respondent's Nuclear Quality Program superintendent, of what he perceived to be an instance of improper handling of nuclear fuel bundles prior to a sample smear evaluation for radiation contamination (Tr. 53-57). Bump later advised Robert Whittier, Respondent's Quality Verification Inspector who reported to Bump and had supervisory responsibilities, of this reporting (Tr. 57; 306, 307; 366). He advised Russell Williams, a supervisor of Complainant (Tr. 271), of a storage problem in an uncontrolled environment (Tr. 59, 60). Complainant told Bump of his disagreement with Respondent's policy of including an adverse finding (of a violation) in the violator's personnel file insofar as such policy may discourage cooperation with safety audits (Tr. 61, 62). He told Whittier, who later advised Bump, of his concern with the use by auditors of Field Monitoring Reports (FMR) rather than what he considered more reliable means of reporting audit observations (Tr. 67-70; 324). Finally, he told Whittier that he thought outmoded audit questions were being used (Tr. 72).
These reports by Complainant to Respondent's management team clearly qualify as the internal reporting of nuclear safety and quality concerns. As such, I find Complainant to have engaged in protected activity.
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This record, however, does not lend itself to a finding that Complainant was discharged from Respondent's employ as a result of his engagement in such activity. I find, to the contrary, that the evidence demonstrates: that Complainant's theory of causation5 is fatally flawed; that there exists insufficient proof of facts to underlie such theory; and, in any event, that Respondent has established that Complainant's dismissal from its employ was for reasons not proscribed under the Act.
Complainant's theory of causation (summarized in opening statement - Tr. 10-12, and repeated in his brief - Complt' Br. at 6,8,12) proceeds as follows: After he began alerting Whittier to his safety concerns, and upon Whittier's refusal to extend the audit completion deadline date, Whittier began manifesting a hostility toward him (Tr. 94-96). This hostility or animus arose because Complainant's reporting of his concerns and his extension request made Whittier, the Audit Team Leader, look bad. Eventually, this animus culminated in an altercation and pushing match6 (between Complainant and Whittier) which " ... was the actual motivation for Complainant's termination." (Complt' Br. at 6). With this scenario, backdropped by Respondent's Nuclear Regulatory Commission "watch list" status (Tr. 22), Complainant proposes that it should be inferred that since his Act-protected reporting caused the animus in the first place, such reporting, perforce, caused his dismissal.
I am unable to draw this inference as suggested by Complainant, however, because the logic of his proposal evaporates in light of Complainant's ill-defined representation of the Respondent's focus upon what occurred at the shouting match. There is no evidence which shows that Respondent fired Complainant because of Whittier's animus exhibited toward Complainant at the shouting match or at any other time. Indeed, the uncontradicted testimony of all parties involved in the decision to fire Complainant supports the conclusion that the dismissal was triggered by Complainant's conduct (foul language and physical poking of Whittier) 7 at the shouting match (Bump - Tr. 228, 229; Personnel Supervisor Bresemann - Tr. 427; Personal Supervisor Erwin - Tr. 399). In short, Complainant's causative chain of events - his reporting, Whittier's animus, the shouting match, his dismissal due to (the shouting match, and in effect) his reporting - is broken because the evidence shows that, to the extent the shouting match played any role in his dismissal, it was his behavior/conduct at the shouting match which mattered to Respondent, not Whittier's expression therein of animus toward him.
Presuming even, for argument's sake, that I accept Complainant's theory of the causative chain of events8 there would remain a failure of proof of facts underlying such theory. For one thing, this record is overwhelmed with credible, corroborative testimony relative to reasons justifying Whittier's animus toward Complainant, if any existed, for other than the reporting of safety hazards. Strikingly so, each and every one of Complainant's co-workers and supervisors who testified at trial9 had something negative to say about his performance as an auditor, insofar as his interaction with those around him. Bump, for
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instance, was convinced he was "milk(ing] the overtime" (Tr. 211), and was arrogant and condescending with co-workers and others (Tr. 212-214). He had to counsel Complainant about these events (Tr. 215). Russell Williams, another of Complainant's supervisors, characterized Complainant's use of overtime as a "scam" (Tr. 275), and related episodes of what he considered "nit-picking" and creation of unnecessary conflict by Complainant (Tr. 281). The personnel people, Bresemann and Erwin, had grave reservations about his behavior (Tr. 406, 430). Complainant's co-worker, Darlene Murphy, felt Complainant could have handled certain aspects of his job without "upsetting everybody", and was, at times, not helpful " ... to [the) auditing mission" (Tr. 456, 457). Another fellow auditor, Syed Jaffery, thought Complainant had a "very short temper", which, in fact, was a "hindrance to his job" (Tr. 464, 467). Three administrative people (Orsini, White, Wagner) claimed to be victims of Complainant's foul language, rudeness, uncooperativeness, condescension, arrogance, and unwanted sexual advances (Tr. 155-157, 163-164, 172-175). In the face of this abundance and unanimity of negative feelings toward Complainant, the inference that Whittier disliked Complainant because of his reporting of safety hazards is certainly more difficult to draw. Furthermore, since Whittier offers as a reason for the shouting match (Complainant's failure to timely complete assigned parts of the audit which he assured would be completed - Tr. 336-338), one at least as credible as that offered by Complainant (Whittier's hostility due to Complainant's reporting of safety hazards), there remains a shortfall of compelling evidence to support the drawing of the inference that the shouting match arose due to Whittier's dislike of Complainant. Finally, the evidence supports a dismissal of Complainant based upon several, cumulative, events (see infra), not the isolated occurrence of the shouting match as proposed by Complainant. Of course, Whittier10 denied that he disliked Complainant because he reported safety hazards (Tr. 344, 345), and that the shouting match occurred because of such alleged animus (Tr. 337, 338). Complainant asks that I draw inferences to the contrary, but fails to produce circumstantial evidence sufficient to permit me to draw those inferences.
Finally, Respondent has produced sufficient credible, corroborated evidence to demonstrate that Complainant was fired for reasons other than those proscribed under the Act. Complainant's behavior relative to Orsini, White and Wagner, his abrasive attitude with audit subjects (as a result of which, all witnesses agree, the audit mission was compromised), as well as the admitted and witnessed11 outburst and use of foul language with Whittier (Tr. 80, 81),12 all contributed to the decision to fire Complainant (See Tr. 235-6; 405-6; 429-30).
Complainant has asserted (Complt' Br. at 7) that Respondent waived its right to fire Complainant for the alleged abusive behavior toward Orsini, White and Wagner, because after these events occurred, Bump gave him a "Fully Meets Expectations" performance evaluation (RX 3) and advised him that these episodes were "... all behind [Complainant] now, it's water under the bridge ... " (Tr. 49)13 . But Respondent did not fire Complainant for only these events. The "cumulative" (Tr. 429) effect of several
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other factors played a role in the decision to fire (see supra). Moreover, there is no evidence that Respondent in any way assured Complainant that it would not consider these events in addition to others as justifying a future dismissal (as it did). Any "right" not to be fired (bestowed upon Complainant as a result of Respondent's favorable performance evaluation and/or statements of forgiveness for these events) extends to a dismissal based only upon these events, which the evidence shows did not occur here. And any "right" to fire (eliminated as a result of the foregoing action by Respondent) is restricted only by the foregoing type of (non-occurring) dismissal. I find no waiver as proposed by Complainant.
At trial, there was considerable concern and inquiry whether one Respondent-alleged basis for dismissal, i.e., the less than diplomatic behavior of Complainant vis a vis the subjects of his audit, was pretextural since the nature of Complainant's job was such as might be conducive to such behavior (Tr. 299-300; 376377; 386-387; 389-393; 459-462). In light of the uncontradicted expert opinion testimony of Edward Martin (a superintendent for Respondent with extensive - 25+ years - experience in audits) to the effect that the auditor's function is less like a "cop" and more like a "doc" (Tr. 386-393), as well as the unanimity of coworker witness accounts of what each consider an abrasive attitude on behalf of Complainant (supra), I am convinced that such basis for dismissal has been shown to be grounded in fact rather than subterfuge.
Complainant insists (Complt' Br., at 10; Tr. 86, 87) that because he was not given an exit interview, a routine procedure at Respondent, the inference arises that Respondent wanted him "quickly remove[d]" from the premises without his report of the dismissal being made to its Quality First Department. Presumably, this inference, if drawn, would strengthen Complainant's claim of unlawful discriminatory dismissal. Respondent, however, forwarded Complainant a "concern disclosure statement" from the Quality First Department which was admittedly never completed by Complainant (Tr. 130). Having failed to take advantage of this apparently equally effective alternative method of officially recording with Respondent his side of the dismissal story, Complainant cannot be heard to complain in this respect.
Considering the evidence as a whole, I find that Complainant has failed to put forward sufficient evidence (circumstantial or otherwise) to establish that he was dismissed because of his reporting of safety hazards. Having so failed, Complainant's theory of recovery is reduced to the non-actionable proposition that he reported safety hazards - he was fired - therefore he was fired for reporting safety hazards. And while the Act is intended to protect society from, and sensitize it to, the type of discriminatory work place abuse which is the object of the Act, Complainant has failed on this record to establish himself as a victim of such abuse.
On the basis of the foregoing, I recommend that the complaint be DISMISSED.
RALPH A. ROMANO
Administrative Law Judge
DATED: February 24, 1993
Camden, New Jersey
1References herein are as follows: "ALJ" - Administrative Law Judge Exhibits, "CX" - Complainant Exhibits, "RX" Respondent Exhibits, "Tr." - transcript.
2Outside the 30 day requirement of 42 U.S.C. 5851(b)(2)(A) and 29 C.F.R. 24.2(d)(1).
3The originally set Syracuse, New York hearing of October 21, 1992, was moved to these dates in Chicago, upon the joint motion of the parties (ALJ 3,4,5).
4Priest v. Baldwin Assocs, 84 ERA 30 (6/11/86); Willy v. Coastal Corp., 85 CAA1 (56/4/87), adopting the Ninth and Tenth Circuit rational in Mackowiak v. University Nuclear Systems, Inc., Case No. 82-ERA-8 (April 29, 1983), aff'd and remanded, 735 F.2d 1159 (9th Cir. 1984), and Wells v. Kansas Gas and Electric Co., Case No. 83-ERA-12 (June 14, 1984), aff'd 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.
5That is, his proposed analysis of how it came to be that he was unlawfully fired because he reported safety hazards.
6Complainant refers to this episode as a "shouting match" (Complt' Br. at 6).
7Both Complainant and Whittier agree that foul language was used. Complainant makes no mention of Whittier's assertion of poking (Tr. 338, 339).
8Perhaps most simply put: Whittier didn't like him because he reported safety hazards - The shouting match occurred because Whittier didn't like him - He was fired because of the shouting match - therefore, he was fired for reporting safety hazards.
9Curiously, even those (Murphy and Jaffery) called by Complainant.
10Who had no input whatever in the decision to fire Complainant (Tr. 372). This testimony was uncontradicted at trial.
11By Williams (Tr. 282-85); RX 8; Grasser, RX 5; and Murphy (Tr. 458-59).
12That Whittier responded in kind (Tr. 337-41), does not help Complainant's case or neutralize his conduct. This is more a matter for management to deal with vis a vis Whittier's status with Respondent.
13Bump insists (Tr. 210) he told Complainant that he "... hop[ed] these instances [were] behind[Complainant]... "
