DOL Home > OALJ > Whistleblower > Evans v. Washington Public Power Supply System, 95-ERA-52 (ALJ Jan. 17, 1996) |
Date: January 17, 1996 CASE NO. 95-ERA-52 In the Matter of: BRIAN EVANS, Complainant v. WASHINGTON PUBLIC POWER SUPPLY SYSTEM, Respondent Appearances: John M. Cooper, Esq. For the Complainant elvin N. Hatcher, Esq. For the Respondent Before: Henry B. Lasky, Administrative Law Judge RECOMMENDED DECISION AND ORDER The Complainant Brian Evans commenced this proceeding under the Energy Reorganization Act of 1974, as amended, 42 U.S.C. §5851, hereinafter called the Act. He initially filed an undated, unsigned complaint on July 7, 1995 with the United States Department of Labor. In a letter dated September 14, 1995 the Department of Labor notified the Complainant that a fact finding investigation did not verify that discrimination in violation of the Act was a factor in his termination of employment by the Respondent herein. Thereafter Complainant requested a hearing on September 18, 1995. On September 27, 1995 the matter was assigned to the undersigned administrative law judge and a notice of hearing was issued on said date. The trial was ultimately conducted on December 5, 1995 in Richland, Washington. The matter was submitted subject to an order requiring the parties to file proposed findings of fact and conclusions of law on or before January 5, 1996 and the waiver by the parties of any time requirements to the contrary for the issuance of a recommended decision and order. Respondent filed proposed findings and conclusions as ordered. Complainant failed to file
[PAGE 2] proposed findings and conclusions within the time required. The record was closed on January 5, 1996. FACTUAL BACKGROUND The Respondent, an electrical utility, is a municipal corporation which operates a boiling water nuclear power reactor (BWR termed WNP-2) at the so-called Hanford site in Southeastern Washington state. The Hanford site is approximately 15 road miles from the cities of Richland, Kennewick, and Pasco, Washington. The Respondent employs approximately 1300 people in support of the WNP-2 operations. WNP-2 operates under a license issued by the Nuclear Regulatory Commission (NRC). The Respondent acknowledges the Department of Labor subject matter jurisdiction in this matter. Mr. Evans began his employment with the Supply System in January of 1990 as an engineer. He characterized his position with the Respondent as a motor operating valve technical planner. r. Evans testified that on January 3, 1995 he received approval from his immediate supervisor, Bliss, to attend a motor operated valve user group (MUG) conference in Charlotte, North Carolina which was scheduled for January 31 and February 1-2, 1995. Subsequent to this authorization but prior to January 12, 1995 the Supply System assessed the utility of continued attendance at UG conferences. This assessment resulted in a decision by Mr. John Sampson, who was the acting maintenance manager, to limit the number of attendees at such conferences. Mr. Sampson decided to only send Mr. Daniel Farley, the MOV functional coordinator, and directed Mr. Farley to communicate this decision to the affected parties, including Mr. Evans. This was done on January 12, 1995.[1] In Mr. Evans' complaint to the Department of Labor filed July 7, 1995 at page 4, he acknowledges that on January 12, 1995 he received a voice mail message on his telephone from Mr. Farley who stated that Farley had met with Mr. John Sampson and Bob orris and that they had decided to send Farley to Charlotte and that he (Farley) was sorry it didn't work out for both of them to go. The exact communication to Mr. Evans by Mr. Farley is set forth in Complainant's complaint on page 4 as follows: "Hey Brian this is Dan, I know you are in training today but I want to let you know just in case you are tying to make some travel plans or wanting to make some travel plans...I met with Morris and Sampson, and basically they had committed to send me to Charlotte and for us to switch off for the summer one, or if there is something else you would rather attend other than the MUG, a MOV region IV training or something like that. Basically they are going back to committing us to one trip a year, they want us to
[PAGE 3] try to figure out early in the year-budget on where they may be and they will try to honor that, is the way they put it....so call me back and give me any comments, uh sorry it didn't work out for both of us to go but it looks like we at least convinced them to not completely delete us from all of our MOV conferences, they have committed to at least one of us, so give me a call. Thanks, Dan" In addition Mr. Evans acknowledges in his complaint filed July 7, 1995 on the same page that a few days after the aforesaid January 12, 1995 phone message from Farley "Dan and I very briefly discussed attendance of the conference, he said he was sorry that I couldn't go." (Respondents Exhibit 2, page 4) Mr. Evans testified that after his initial approval on January 3, 1995 to attend the conference in Charlotte, he made personal travel plans which involved his wife traveling to Orlando, Florida to visit friends the week before the conference and for Mr. Evans to join his wife in Orlando, Florida immediately following the conference. Despite the heretofore described communication of January 12, 1995 from Mr. Farley to Mr. Evans and their subsequent conversation following the aforesaid phone message, the Claimant nevertheless disregarded the communications and traveled to the UG conference in Charlotte, North Carolina at the Supply System expense and attended the conference on January 30, 1995 through February 2, 1995 and then flew to Orlando, Florida to meet his wife and friends on February 3, 1995. He and his wife returned home on February 10, 1995 and he reported to work on Monday, February 13, 1995. On Monday, February 13, 1995 Mr. Albert, acting manager for Planning and who works for Mr. Sampson, asked Complainant if he had been directed not to attend the conference by Mr. Farley and Claimant denied that he had ever been told by Mr. Farley that he was not to attend. Mr. Monopoli, Respondent's maintenance manager and supervisor of Mr. Sampson, returned from a thirteen week management course and was briefed by Mr. Sampson regarding r. Evans unauthorized attendance at the MUG conference at Supply System expense. Mr. Evans testified that approximately a month or so after the conference Mr. Sampson had asked him why he went to the conference when Mr. Farley had communicated that he was not to do so and Complainant told Sampson that Farley did not communicate such information but only that he (Farley) was sorry that he had been selected to go. On or about April 11, 1995 Mr. Monopoli met and discussed the matter with Mr. Evans as he really couldn't believe that anybody would do what Mr. Evans had done and he wanted to find out for himself so he decided to talk to Mr. Evans.
[PAGE 4] (Complainant's Exhibit 1, page 36, lines 18 -24). In the discussion with Mr. Monopoli, Mr. Evans acknowledged that he knew he was not to attend the conference but decided to go anyways because in his judgment it was in the best interest of the Supply System. Mr. Monopoli decided to terminate the Complainant for this unauthorized travel. He alone made the decision to terminate because there were no mitigating circumstances since Evans admitted knowing that he was not to go after his prior authorization had been revoked for budgetary reasons and this change was communicated to Evans by Mr. Sampson, understood by him, and nevertheless Evans went to the conference at the Supply System's expense. Mr. Monopoli felt that Complainant made a willful decision for which there was no excuse. Complainant testified and denied that Mr. Monopoli had ever asked him whether he was aware that he was not to go to the MUG conference. This denial I find to be incredible and consistent with other portions of Complainant's testimony to the effect that he did not understand Mr. Farley's communication to him on January 12, 1995 as meaning that he was not to go. Further the conversation a few days after the January 12, 1995 phone message between Mr. Evans and Mr. Farley was also not viewed by Mr. Evans as a communication that he was not to go to the conference. This testimony is on its face inherently incredible as any rational person would understand the communication of Mr. Farley both on January 12, 1995 and a few days thereafter, in person, that Mr. Farley's expression of regret that Mr. Evans couldn't go to the conference meant anything other than Mr. Evans was not to go to the conference. Compounding his untruthful testimony, the Complainant, after first denying that Farley's communications did not direct him not to attend the conference, thereafter testified he wasn't sure what Farley's communications meant. Yet he acknowledged in his own complaint that Mr. Farley had told him a few days after the phone message that he regretted that Complainant could not go to the conference. This communication r. Evans characterized as being vague. This characterization is unworthy of belief. Significantly, Complainant never made any attempt to clarify what he characterizes as vague any of the messages from Mr. Farley with either Mr. Farley or even his own immediate supervisor. Complainant's immediate supervisor, Mr. Bliss, who, on January 3, 1995, had originally authorized Mr. Evans to attend the conference was never informed that Mr. Evans was told by Mr. Farley on January 12, 1995 that only Mr. Farley was going to attend the conference. Mr. Bliss stated in his affidavit which was admitted into evidence by stipulation that he would have expected Mr. Evans to come to him to seek clarification if there was any vagueness in the direction he received from Mr. Farley.
[PAGE 5] Had Mr. Evans informed Mr. Bliss that he had been told not to attend the conference, Mr. Bliss would have contacted Mr. Farley and Mr. Sampson to discuss and resolve the situation. (Respondent's Exhibit 9) It is quite clear that the impeached testimony of the Complainant is not worthy of any credibility and that his decision to attend the conference in Charlotte, North Carolina at the Supply System's expense was motivated by the fact that he had personal travel arrangements scheduling a visit to friends in Orlando, Florida following the conference. His wife had already had travel plans to travel to Orlando, Florida one week prior to the conference. It should be noted that in 1993 Mr. Evans was disciplined for attending a motor operated valve (MOV) conference in Arizona. Apparently immediately prior to the Arizona conference in 1993, the Complainant attended a planning session for a special Nuclear Regulatory Commission emergency drill exercise. Mr. Evans attended the meeting on February 19, 1993 where the NRC exercise was discussed and was scheduled for February 23, 1993. After the meeting he did not return to the office but instead drove to Portland, Oregon to catch a plane to attend an Arizona conference scheduled the following week from February 22 through February 26. Mr. Evans made the conscious decision that the MUG meeting was more important than the NRC emergency exercise and failed to communicate to management that he had a conflict in the schedule. From Arizona, on February 22, 1993, the Complainant called and advised management that they would have to find a replacement for him for the NRC exercise and put management in a position of finding a replacement at the last minute. Mr. Evan's decision not to communicate this conflict in his schedule created a situation which impacted upon many other individuals and departments. (Respondent's Exhibit 4) When Mr. Evans was asked why he did not inform management of his conflict in 1993, Mr. Evans stated that he was concerned that management would not let him attend the MUG conference. (Respondent's Exhibit 3) Mr. Evans was disciplined since the MUG conference was clearly secondary to his responsibilities for the emergency response commitment and r. Evans was specifically warned that subsequent similar occurrences could result in the termination of his employment. (Respondent's Exhibit 3) At the time of this 1993 discipline, Mr. Evans acknowledged that he had made an error in judgment and accepted the disciplinary letter. He never challenged the 1993 discipline and accepted it. At the time of the trial herein he apparently testified for the first time that he now felt that the discipline in 1993 which was imposed and which he accepted was "unfair". In an apparent effort to fabricate liability under the Act
[PAGE 6] herein, Complainant testified that his termination was due to his filing a PER in 1994,[2] and allegedly because of his instigating another PER thereafter in the spring of 1994 which in fact was filed by Robert Morris. Certainly the filing of PERs would be considered protected activity. However the aforesaid PERs apparently filed in the spring of 1994 had no causal relationship to Complainant's ultimate termination of his employment. At the Respondent's plant there are three PERs filed per day and approximately 1200 per year and they are encouraged by management to be filed by the employees in an effort to make things better and improve the operational facility. Management as testified by Mr. Monopoli want personnel to identify problems so that they can be addressed and corrected. Such was done with the two PERs identified by Mr. Evans. Mr. Monopoli's investigation of Mr. Evan's unauthorized trip to North Carolina was not in any way affected by problem evaluation requests generated by Mr. Evans as he was unaware of them. (Complainant's Exhibit 1, page 5, lines 20 -24, page 6, lines 6 -12.) Mr. Monopoli made the decision to terminate Complainant following his personal investigation that Mr. Sampson had put out a policy that only one person was to travel for any of these industry events, and that Complainant was aware that he was not the person who was suppose to travel to the conference in North Carolina. Mr. Evans acknowledged knowing such and his sole response as to why he performed such travel was "it was the right thing to do for the Supply System." Mr. Monopoli's assessment was that it was viewed by him as a "pretty straight forward misappropriation of public funds. If you want to call that stealing, I guess that's what that is, and it sure seemed pretty black and white to me, and I couldn't find much that would mitigate it." (Complainant's Exhibit 1, page 27, lines 19 -25, page 28, lines 1-7) It was solely on this basis that Mr. onopoli made the decision to terminate Mr. Evans. (Complainant's Exhibit 1, page 27, lines 15-16) The allegation that the generation of two PERs by Mr. Evans in the Spring of 1994 played a part in the decision to terminate him is not believable, factually unsupportable and I reject the Complainant's testimony containing such allegations. LEGAL ANALYSIS The law applicable to this case is summarized in Darley v. Zack Company of Chicago, 82-ERA-2 (Sec'y April 25, 1993) slip op. at 7-9: "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.
[PAGE 7] In addition, as part of his prima facie case, 'Plaintiff must present evidence sufficient to raise the inference that...protected activity was the likely reason for the adverse action.' Cohen v. Fred Mayer, Inc., 686 F2d 793 (9th Cir. 1982).... 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.... If the employer 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'.... Texas Department of Community Affairs v. Burdine, 450 U.S. 248 (1981) at 256. The trier of fact may then conclude that the employer's proffered reason for its conduct is pretexted 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 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.' ...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 absence of the protected conduct. (citations omitted.) A recent decision raised the employer's burden from a preponderance to "clear and convincing" evidence. Yule v. Burns International Security Service, 93-ERA -12 (Sec'y May 24, 1995). In this case the Complainant, if credible, has alleged that
[PAGE 8] as a result of his involvement in the generation of two problem evaluation requests in the spring of 1994 which constituted protected activity, it resulted in the creation of animus on the part of management and was a motivating factor in his termination on April 11, 1992. As part of Complainant's prima facie case Mr. Evans has the burden of presenting evidence sufficient to raise the inference that his protected activity was the likely reason for the adverse action. At this point it is a conclusion of the undersigned that the employee herein has not presented a prima facie case as his testimony is so inherently incredible that he is unworthy of relief. Even assuming that he was involved in the filing or generating of two problem evaluation requests in 1994, such PERs are encouraged by management and his, in fact, were addressed and resolved. No adverse action was taken against him for the generation of the two PERs. In addition there is no causal relationship between such protected conduct and his termination. The decision by Mr. Monopoli to terminate Mr. Evans was made without any awareness on the part of Mr. Monopoli, which I fully believe, of the generation by Mr. Evans of the two problem evaluation requests. Complainant has not presented credible evidence sufficient to raise the inference that such protected activity was the likely reason for the adverse action, but to the contrary, the credible evidence herein is that such protected activity bore no causal relationship to Mr. Evans' ultimate termination on April 11, 1992. As a consequence, I conclude that the employee herein has not established a prima facie case. Notwithstanding the aforesaid conclusion, the employer produced evidence which was credible that the termination of Mr. Evans was for a legitimate nondiscriminatory reason to wit, his traveling to a conference in January of 1995 which was knowingly unauthorized, at the Supply System's expense because he was motivated to fulfill his own personal and family travel arrangements which had been made incident to his attendance at the Conference in question. The employer's evidence presented was clear and convincing. The employee herein has not met his ultimate burden of persuasion of the existence of any intentional discriminatory reason for the termination of his employment. Clearly the termination of Mr. Evans was for his insubordinate and unauthorized attendance at a MUG conference at the expense of Supply System's travel funds and despite receiving direction not to attend such conference. Mr. Evans had previously received a warning for similar conduct in 1993. The termination of Mr. Evans was legitimate, justified and did not constitute any violation of the Act herein. Mr. Evans had the opportunity to demonstrate that the reason he was terminated was not the true reason for the employment
[PAGE 9] decision but has failed to do so. Complainant has not presented any persuasive evidence that a discriminatory reason in any way motivated the employer directly or indirectly or that the employer's proffered explanation was unworthy of credence. The employer's reasons for terminating the Complainant were not a pretext and the employee has not proven or convinced the undersigned that his termination was in fact retaliation for protected activity. The sole credible evidence presented herein was on behalf of the employer. I conclude that the employer was not motivated, in whole or in part, by the employee's protected conduct in the spring of 1994. 1 specifically rule that the employee has failed to establish his case by a preponderance of the evidence or for that matter any standard of credible evidence since I find his testimony as being inherently incredible. To summarize, Complainant was not engaged in activity protected under the Energy Reorganization Act when he traveled to a North Carolina conference at the employer's expense after it was communicated to him that he was not selected to attend said conference, which he acknowledged he knew and understood that he was not to attend such conference but elected to travel to said conference notwithstanding. He had been advised in 1993 that such conduct could result in his termination and yet he elected to do so in order to satisfy his own personal travel plans. Under the Energy Reorganization Act, an employer may appropriately discharge an employee as long as the employer's decision to discharge the employee is not motivated by retaliatory animus and the employer has reasonable grounds for discharge. Lockert v. U.S. Department of Labor, 867 F.2d 513 (9th Cir. 1989). Certainly the employer's decision herein to discharge the employee was reasonable and there is no credible evidence that it was motivated by retaliatory animus. A termination of employment does not violate the "whistleblower" protection provisions of the Energy Reorganization Act, notwithstanding an employee's claim that he was discharged for engaging in protected activity, when there is clear and convincing evidence that the discharge was not motivated by retaliatory animus and that reasonable grounds existed for discharging the employee for insubordination and unauthorized travel at employer's expense. The proposed findings of fact and conclusions of law submitted by Respondent are adopted and incorporated by reference insofar as they are consistent with this opinion. ORDER For the aforesaid reasons, it is recommended that this complaint be dismissed. HENRY B. LASKY Administrative Law Judge NOTICE: This Recommended Decision and Order and the administrative file in the matter will be forwarded for review by the Secretary of Labor, Room S4309, Frances Perkins Building, 200 Constitution Avenue, N.W., Washington, D.C. 20210. The Office of Administrative Appeals has the responsibility to advise and assist the Secretary in the preparation 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] Mr. Evans' chain of command had an established reporting relationship from a supervisor up to the Maintenance Manager. In the 1993 time frame, Mr. Evans' immediate supervisor was Mr. R.A. orris. In the 1994 and 1995 time frame, Mr. Evans' immediate supervisor was Mr. C.L. Bliss. During the January to March 1995, time frame, however, Mr. Bliss was detailed to a training assignment and Mr. T.R. Eldhardt was assigned as an acting supervisor over Mr. Evans and other individuals. Messrs. Bliss and Eldhardt reported to T.W. Albert. Mr. Albert reported to Mr. J.R. Sampson, and Mr. Sampson reported to Mr. M. M. Monopoli, the aintenance Manager. During the 1995 time frame, Mr. Evans worked in the Electrical Planning functional area. Mr. Evans was one of several planners; however, unlike the other planners in his group, Mr. Evans' work was greater than 90% in support of the MOV program. TR 73:19-20. This special dedication resulted in a unique working relationship for Mr. Evans in that he routinely received work-related direction from individuals outside his chain of command. For example, it was common for Mr. Evans to receive direction from the MOV Team Leader (Mr. Farley) with regard to hours of work, the general discharge of his duties and responsibilities, training, and the scheduling of time off. [2] A PER is a Problem Evaluation Request.