DOL Home > OALJ > Whistleblower > James v. Pritts McEnany Roofing, Inc., 96-ERA-5 (ALJ Aug. 22, 1996) |
Date issued: AUG. 22, 1996
Case No. 96-ERA-5
In the Matter of
TRACY A. JAMES,
vs.
PRITTS-MC ENANY ROOFING, INC.,
Appearances:
Louis D. Putney, Esq.
4805 South Himes Avenue
Tampa, Florida 33611
(813) 831-3376
Lorraine E. Robinson, Esq.
Law Offices of Dale M.Swope, P.A.
777 S. Harbour Island Boulevard
Suite 850
Tampa, Florida 33602
(813) 273-0017
Before:
I. JURISDICTION
This is a "whistleblower" proceeding arising under the employee protection provisions of the Energy Reorganization Act of 1974 [hereinafter "ERA" or "the Act"], 42 U.S.C. §5851, and the applicable regulations at 29 C.F.R. Part 24. The ERA prohibits an employer from discharging or discriminating against an employee, in terms of salary or work conditions, as a result of the employee's notifying the employer of, or commencing proceedings to enforce, safety violations in connection with nuclear energy facilities.
Complainant Tracy James was hired in August 1995 as a firewatch and nuclear security escort with Pritts-McEnany Roofing, Inc. The company was in the midst of a large roofing project that it had contracted to perform at the Crystal River nuclear plant owned by Florida Power. The company had never worked at a nuclear plant before, and this was its biggest job in history. It did not fully appreciate the importance of safety and security at a nuclear plant.
Ms. James is a young woman in her early thirties. She was put in charge of a crew of roofers of another cultural background who demonstrated almost total disregard for her authority and refused to follow her safety instructions. On October 11, 1995 she reported a security violation by one of the crew members who had disregarded her escort instructions, whereupon the remainder of the crew walked off the job in protest. She was discharged by
respondent's CEO, Mike McEnany, on October 11, 1995 because of her enforcement of security regulations, in order to get the crew back to work.
Though respondent attempted to revoke the discharge a few hours later, the damage had been done, and the environment at the plant made it impossible then, and makes it impossible now, for complainant to return to that position.
She has suffered damages in the form of lost wages and emotional distress as a result.
Ms. James' complaint of a "whistleblower" violation was investigated by the Wage and Hour Division [WHD] of the Department of Labor, and found to be substantiated. However, WHD held that damages could not be awarded because of the employer's immediate offer to reinstate her and, later in negotiations, to pay back wages. [ALJX 1] Complainant submitted a timely request for hearing [ALJX 2]. The case went to hearing before the undersigned administrative law judge on April 16, 1996 in Tampa, Florida.
The record consists of ALJX 1-21; CX 1-17, 19-24, and RX 1-2 and 4.1
The parties entered into various stipulations of fact and law, narrowing the issue(s) to be resolved, in a thorough and admirable piece of legal work by their counsel [ALJX 18]. The parties agree, in essence, that Ms. James was engaged in protected activity; that respondent knew of the protected activity; and that there is a temporal proximity between the protected activity, the respondent's knowledge thereof, and her firing that would justify an inference of causation. While respondent admits that complainant was told that she had been discharged, respondent's position is that she was not actually discharged, because the "firing" was an impulsive move by the company's president, withdrawn only a few
hours later with an immediate offer to reinstate. Even assuming she had been discharged, respondent contends that the protected activity was not the motivation for the discharge. Rather, respondent alleges that the reason she was fired was her supposedly pushy, unfair conduct with the crew that caused the crew to be unable to work with her.
The parties have stipulated as follows:
This proceeding arises under the Energy Reorganization Act provisions prohibiting employers from taking retaliatory action against workers who complain or report about nuclear safety matters, 42 U.S.C. §5851. Respondent, Pritts-McEnany Roofing, Inc. is an employer subject to the Act. Pritts-McEnany Roofing, Inc. is located in and does business in Tampa, Florida, and is the same corporation known as McEnany Roofing, Inc. Tracy James was an employee of respondent on October 11, 1995. Her whistleblower complaint under the Act was timely filed, as was her request for hearing. She has complied with all procedural requirements necessary to present a claim under the Act.
Before coming to work for respondent Pritts-McEnany Roofing, complainant Tracy James worked on and off at the Crystal River nuclear plant, owned and operated by Florida Power Corporation, as a laborer, firewatch and security escort. James came to work for respondent on August 14, 1995 and was employed with respondent until October 11, 1995. During all material times, she possessed a nuclear security clearance badge ("green badge"). James served as firewatch and nuclear security escort for respondent's roofing crew. The members of the roofing crew had "red badges," meaning that they were not authorized to be on the premises of the nuclear plant without a properly badged security escort.
On October 11, 1995, at approximately 10:30 a.m. James was supervising respondent's roofing crew on the Intermediate roof at the Crystal River plant. She was informed that one of the crew members, Jose Ramirez, needed to use the restroom. The company foreman, Mike Morgan, told her to assemble the men to take their regular morning break, during which time Ramirez would be able to
use the restroom. As she began to escort the crew to the break area, Ramirez began to walk out in front and away from the group. He continued to walk on although James shouted for him to stop on several occasions. James says that because she lost sight of Ramirez (a fact respondent disputes; see Fn. 3), she called plant security guards who located him in a restroom. The guards explained to Ramirez that he was required to follow his security escort's instructions. Complainant proceeded to escort all the men to the break area. James asked the security guards to escort Ramirez off the premises after (she claims) he called her an insulting name in the break room.2 Being escorted off the premises meant that Ramirez would be barred from returning to work at the plant.
In response to a request by plant security personnel, James prepared a written report of the incident, describing the foregoing facts and alleging a violation of security escort regulations by Jose Ramirez. The parties agree that this constitutes protected activity under the nuclear whistleblower protection provision of the Act (see Paragraph 8, ALJX 18, p 3).3 Around 11:30 a.m., Mike McEnany learned from his foreman that Ramirez had been removed as a result of complainant's report, and also that the remainder of the crew had walked off the job in protest, insisting that they would not work with James. McEnany directed the foreman to discharge the complainant, which he did. It is undisputed that respondent knew at the time of her discharge that complainant had reported Ramirez for failing to abide by her escort instructions.
There being adequate support in the record for the parties' stipulations in Paragraph IV herein, those stipulations are hereby incorporated into this Paragraph VI as Findings of Fact and Conclusions of Law, as if fully set forth.
The Energy Reorganization Act of 1974 abolished the Atomic Energy Commission and established the Nuclear Regulatory Commission, whose primary function was to license and regulate nuclear facilities, and in particular to assure their safe operation. 42 U.S.C. §§5841-5850. Central to the ERA were provisions for employee protection from discriminatory and/or retaliatory personnel action for having reported unsafe acts by the employer facility. The Act as amended in 1992 applies to all claims filed on or after October 24, 1992 and thus governs this proceeding. The Act provides at 42 U.S.C. §5851 that:
Section 5851(b) of the Act refers to standards of proof:
The burdens of proof under the Act have been adopted from the
model articulated by the Supreme Court in Texas Dept. of
Community Affairs v. Burdine, 450 U.S. 248 (1981) and, more
recently, in St. Mary's Honor Center v. Hicks, __ U.S. __,
113 S.Ct. 2742 (1993). See Rogers v. Multi-Amp. Corp., 85
ERA-16 (Sec'y, December 18, 1992).4 Under this model, the complainant must, at the outset
and at a minimum, "... set forth facts which justify an
inference of retaliatory discrimination," that is, the
existence of protected activity and an inference of a causal
connection with that activity and adverse employment action, in
order to establish a prima facie case. Bartlik v.
Tennessee Valley Authority, 73 F.3d 100, 103 (6th Cir. 1996);
Pillow v. Bechtel Construction Inc., 87-ERA-35 (Sec'y, July
19, 1993).
While proof of a prima facie case is a predicate for
shifting the burden of production to the employer, it is
well established that proof sufficient to show a prima facie
case is not enough to establish the claim itself. Claimant must
demonstrate retaliatory, discriminatory action in violation of the
statute, and always bears the ultimate burden of persuasion.
Saint Mary's Honor Center v. Hicks, ___ U.S. ___, 113 S.Ct.
2742 (1993); McDonnell Douglas Corp. v. Green, 411 U.S. 792,
802-803 (1973); Dysert v. Florida Power Corp., 93-ERA-21
(Sec'y August 7, 1995), appeal docketed Dysert v. Sec'y of
Labor, No. 95-3298 (11th Cir. September 28, 1995). In Zinn
v. University of Missouri, 93-ERA-34 and 36 (Sec'y January 18,
1996), the Secretary provided a thorough restatement of the burdens
of proof and production in ERA whistleblower cases under the Act as
amended in 1992:
The four key elements of the prima facie case, then, are
that
Once the complainant satisfies these four elements, the burden
of production shifts to the employer to articulate a legitimate,
non-discriminatory reason for the adverse action.
The burden shifting to the employer at that point is only to
articulate a legitimate, nondiscriminatory, reason for the adverse
action. The employer's burden at this point is one of production,
not of proof. Saporito v. Florida Power and Light, 90 ERA
27 and 47 (Sec'y August 8, 1994). Once the employer produces such
evidence, the burden of production shifts back to the complainant
to establish that the employer's proffered reason is pretextual or
otherwise not legitimate. Bechtel Construction Co. v. Sec'y of
Labor, 50 F.3d 926, 934 (11th Cir. 1995). At that point, the
prima facie case analysis is no longer useful. USPS
Board of Governors v. Aikens, 460 U.S. 711, 714 (1983);
Carroll v. Bechtel Power Corp., 78 F.3d 352 (8th Cir. 1996)
aff'g 91-ERA-46 (Sec'y February 15, 1995). The burden
remains always with the complainant to establish by a preponderance
of the evidence (1) protected activity, (2) a causal nexus to the
adverse action, and (3) in response to the employer's proffering
evidence of a non-discriminatory reason, evidence of pretext.
Once the evidence establishes that the proffered reason is not
legitimate, then the employer must establish by "clear and
convincing evidence" that it would have taken the adverse
employment action independently of complainant's protected
activity. Zinn v. University of Missouri, supra, 93-ERA-34 and 36 (Sec'y,
January 18, 1996).5
The record must be examined in light of the foregoing standards.
(1) Protected Activity
The security rules at the Crystal River facility provide in
pertinent part ["you" refers to respondent]:
[CX 17, pp. 15-16]
Although respondent appears to concede that James was engaged
in protected activity when she reported Ramirez to plant security
guards for walking away from his security escort, it suggests a
caveat by asserting that it was proper for her to report Ramirez
if she actually lost visual and conversational voice control
over him, and/or she exercised good judgment in reporting him. In
other words, respondents argue that there must have been an actual
security violation, that is, that James had to have been correct
and not mistaken; and further that James is required to have used
good judgment under the circumstances, in order to constitute
protected activity.
At the outset, I conclude that the very essence of James' job
was to provide a safety-security service within this nuclear
facility and to report violations of the plant rules. As with
employees responsible for quality control functions in a nuclear
power plant, reporting safety violations in the regular course of
her duties constitutes protected activity under the ERA. Jopson
v. Omega Nuclear Diagnostics, 93-ERA-54 (Sec'y, August 21,
1995). As a result, virtually any report or enforcement action she
takes in furtherance of her job duties constitutes protected
activity per se. Collins v. Florida Power Corp.,
91-ERA-47 (Sec'y, May 15, 1995).
In addition, even if filing a report did not constitute
protected activity per se, the Act contains no provision
requiring a complainant to prove the violation by Ramirez. The
absence of such a provision is not insignificant: the Congress
knows full well how to insert such a requirement in a whistleblower
statute, and has done so as one of the alternative bases of relief
under the whistleblower provisions of the Surface Transportation
Assistance Act, 49 U.S.C. App. § 31105 (a)(1)(B)(I). To
require that the complainant prove the actual underlying violation
would frustrate the purpose of the Act, which is to foster the free
flow of information about safety concerns in a nuclear facility and
to assure compliance. Indeed, the statute is read broadly in order
to further the remedial purposes of the Act. Bechtel
Construction Co. v. Secretary of Labor, supra, 50 F.3d
at 932; Tyndall v, U.S. Environmental Protection Agency, 93-CAA-6 and 95-CAA-5
(ARB, June 14, 1996). The only requirement for
an employee's conduct to come under the umbrella of "protected
activity" is that she demonstrate a "reasonably
perceived" violation of the underlying statute, regulation or
safety standard. Minard v. Nerco Delamar Co., 92-SDW-1
(Sec'y, January 25, 1994); Oliver v. Hydro-Vac Serv., Inc.
91-SDW-1 (Sec'y, November 1, 1995), slip op. at 14.
James explained that on the morning of October 11, 1995, she
was assembling the seven roofing crew members -- all "red
badge" workers -- to go on their break, but Jose Ramirez went
ahead on his own:
[TR 51-54].
The employer introduced only the testimony of Kathleen
Roberts, a second escort/fire watch employee who worked with
complainant, in an attempt to refute complainant's version of the
events.6 The general
gist of Ms. Roberts' testimony was that although the crew grumbled
about safety rules and sometimes ignored them, they would usually
obey them when reminded [TR 181]. It was Ms. Roberts' conclusion
that at the particular instant when she saw James and Ramirez on
October 11, 1995, James had an unobstructed view of Ramirez, and
there was no escort violation [TR 198-199], but she admitted that
she did not see the entirety of the incident. Specifically, she
testified that she was standing at the soda machines in the break
room when she saw James at the bottom of the stairs, Ramirez ahead
of her, and the remainder of the crew coming down the stairs behind
her. Robert was about 20-25 feet away from this scene. She saw
nothing further, because she and the people she was escorting then
went another route [ TR 188-90; RX 5]. Ms. Roberts admitted that
that was the extent of her knowledge:
[TR 196]
Roberts admitted that she knew nothing of what may have happened
during the time James was escorting the crew from the roof up to
the point she [Roberts] saw them on the stairs. This is because
she and her own escorts had left the roof from a different
door:
[TR 211-213] See also TR 208
I find the evidence undisputed that complainant lost voice and
visual control over Ramirez for a sufficient length of time that
she reasonably perceived a violation of the security escort rules
of the plant. Ms. Roberts admits she did not see the key events
when James and her escorts were en route from the turbine deck. I
credit James' testimony in this regard, and in particular her
explanation that Roberts could not have seen much at all from the
soda machines, given the angle of the stairs [TR 276-278]. By the
time Roberts caught a glimpse of the situation, the problem had
already occurred.
It is undisputed that respondent knew of James' report of
Ramirez to the nuclear plant security personnel. This is more than
adequately supported in the record [e.g., TR 222, 230, 234]
Respondent contends that its firing of James at 11:30 a.m.
does not constitute a discharge because she was "unfired"
and offered her job back at 1:30 p.m. when the company's CEO
discovered that it had been illegal to fire her in the first place.
This contention misses the mark. The statute prohibits not
only discharge but any form of discriminatory or adverse
employment action as a result of protected activity. James need
not prove a full-fledged discharge. Many employment decisions
short of discharge or suspension constitute adverse employment
action under the Act. Dias-Robainas v. Florida Power and
Light, 92-ERA-10 (Sec'y, January 19, 1996). In any event,
respondent's message to James at 11:30 was unequivocal:
"you're fired." This was not merely an offhand remark,
nor a slap on the wrist, nor a mere "talking to" and
James understood the import of it full well [TR 72, 75]. Moreover,
there is no authority for the proposition that because an employer
realizes his rash mistake within a few hours, no mistake was made.
The respondent's contention is not supportable, a conclusion
that is all the more apparent in the context of the prior problems
experienced on this job with this crew in terms of safety concerns.
James had previously expressed numerous concerns about the crew's
unwillingness to cooperate with her safety instructions and the
security rules. The foreman, Mike Morgan, always promised to do
something about it, but the company never did anything effective
(until after the fact), indicating only a grudging regard for
safety issues [TR 154]. McEnany regarded her complaints as petty
and silly and responded by restricting access to the main office
[CX-18 and TR 226-227] In the context of months of frustration in
trying to do her job, without much support and without access to
the people in management who could help her, the message
"you're fired" after filing a security report cannot
constitute anything but an adverse employment action. At best, the
employer's later attempted withdrawal amounts to mitigation, but
does not undo the damage done.
Respondent argues that a "discharge in the context of the
Act has to be more than words because the Act is seeking to protect
the employee from the consequences of real retaliation by the
employer, not words." This argument seeks to reduce the
circumstances surrounding the incident to something quite different
than they really were. McEnany told Morgan to fire James in the
immediate aftermath of a very disturbing confrontation with crew
members who had defied her repeatedly in the past while management
looked the other way. To suggest that the latter is mere
mismanagement "that [did] not ultimately result in any
retaliation" [ALJX 19, p. 13] dilutes the real import of
respondent's actions.7
Nor do I accept respondent's suggestion that James had some
duty to accept McEnany's offer of reinstatement, "to give him
an opportunity" to address her concern about the crew.
Nothing in the law or the record before me suggests that she was
required to give him another chance. Quite, the contrary, if she
had not been fired, she would have the right to refuse to return to
work until McEnany corrected the situation in which she found
herself on October 11.8
cEnany certainly had not accomplished that when he offered
reinstatement. As discussed later in this decision, he finally did
take positive steps to see that the crew complied, but James was
never told this [TR 258-259]. In fact, the converse of
respondent's argument is true: it is James who was not given the
opportunity to return to an acceptable environment. She did not
owe McEnany another chance to create an acceptable work
environment. She had already tried that on a number of occasions
previously, and her concerns were labeled petty or silly.
I do agree with respondent, however, that McEnany's quick
realization that he had been wrong and his quick attempt to rectify
the situation is admirable and to be commended. That does not mean
that no harm was done, although an employer's candidly taking
responsibility may minimize the damage resulting from an adverse
action.
To complete her prima facie case, a complainant must
present evidence sufficient to raise the inference that her
protected activity was the likely reason for her discharge. This
is not an onerous burden, and at this juncture, the claimant is not
required to prove motivation by a preponderance of the evidence.
McMahan v. California WQCB, 90-WPC-1 (Sec'y, July 16, 1993).
Because it is rare that a complainant can produce direct evidence
establishing a connection between protected activities and an
adverse employment action, it is well established that a
complainant may prove such a connection with circumstantial
evidence, in particular a temporal proximity. Bechtel
Construction Co. V. Secretary of Labor, 50 F.3d 926, 934 (11th
Cir. 1995). Respondent concedes that McEnany's immediate
"you're fired" response to James' reporting Ramirez
raises an inference of causation. McEnany admits that the
"voice and visual control" provision of the security
rules was the section that James was enforcing just before being
fired [TR 250].
I therefore find and conclude that Tracy James has established
a prima facie case of whistleblower discrimination under the
Act.
Because complainant has established a prima facie case
of retaliatory discharge, the burden shifts to respondent to
produce evidence that her discharge was motivated by a legitimate,
non-prohibited reason.
Respondent argues that the reason James was discharged is that
the crew refused to work with her any longer and walked off the
job, which in turn was due to her unreasonable and pushy behavior.
[See, e.g., ALJX 19, p. 11 and TR 223-224]. But the record does
not support the allegation that she actually was pushy or
unreasonable, or that her personality had anything to do with her
discharge on October 11, 1995. Mike McEnany put his reasons in a
nutshell:
A: I ... talked with Mike [Morgan], Mike told me that Tracy
had kicked Chickaleen [Ramirez] off the roof and that
consequently ... the remaining part of my crew refused to
work. ... they were refusing to go back to work if Tracy continues to work. Regrettably, I
said okay, well ... it's easy.
You know, I have a deadline to meet with Florida Power, I
can't meet it with my crew not working, you know, I could
go back there and kick Juan off the roof and lord knows what happens with the rest of my
crew, so I chose to fire
Tracy. [TR 232-33].
A. Florida ... that was the biggest, that is still today, the
biggest job we have ever undertaken. It was the most
prestigious, we were working on a nuclear power plant, we
had to complete the job before December 15th, we were ... as it
was, behind schedule, that's why we were having to work
overtime and work Saturdays, and here it is getting close to
the midnight hour and I've got my crew refusing to work for
me and I can't replace that crew. [TR 235].
He went on to explain that he fired James not because she had done
her job, but because of a "personality conflict" [TR
236], although he later admitted that he had been wrong.
McEnany made a conscious, deliberate choice: to serve the
company's business interests by keeping the crew working, while
sacrificing James, his security escort. He did not care that her
conduct may have constituted protected activity, he said, because
he had a job to get done: "It was either Tracy or my
crew." [TR 251; also TR 127-128]. Morgan agreed that James
had to be fired to keep the job going, but admitted that she had
been doing her job properly and that she had been treated unfairly
[TR 164-65]
This is not allowed under the Act, and does not constitute a
legitimate, nondiscriminatory reason for her discharge.
There certainly can be valid business reason for adverse
employment actions: a general reduction in force due to economic
conditions, a decision to prefer employees with different or better
qualifications or seniority, poor performance, and the like.
Carroll v. Bechtel Power Corp., 91-ERA-46 (Sec'y, February
15, 1995), aff'd sub nom. Carroll v. U.S. Department of
Labor, 78 F.3d 352 (8th Cir. 1996). Standing alone, the need
to keep a crew working is certainly a valid business reason. An
employer has a legitimate interest in making personnel adjustments
when the conduct of one employee adversely impacts his co-workers.
Delaney v. Mass. Correctional Industries, 90-TSC-2 (Sec'y,
arch 17, 1995) aff'd 69 F.3d 531 (1st Cir. 1995)
(unpublished opinion)..
But that is not the situation here. An employer's preferring
to reinforce his crew's refusal to abide by security instructions,
and firing the security person in order to keep the job going,
cannot by any stretch of the imagination constitute a valid
business reason. To allow a crew to flout and protest the
enforcement of security rules, and then successfully maneuver the
employer into punishing the security personnel would turn
the Act upside down, putting security decisions in the hands of the
people who are supposed to follow the rules rather than in the
hands of those who are trained to oversee compliance. To allow an
employer to choose his own business interests over the remedial
purposes of the Act by claiming a "personality conflict"
would so dilute the ability of security personnel to do their job,
that the Act would become meaningless. Indeed, James contends that
she would "think twice" about blowing the whistle on
security violations, given what has happened to her [TR 88].
An employer is not expected to tolerate abusive or
unreasonable conduct by a security employee in positions such as
James's, and can place reasonable constraints on the performance of
that employee's work. Lockert v. U.S. Department of Labor,
867 F.2d 513 (9th Cir. 1989); Floyd v.Arizona Public Service
Co., 90-ERA-39 (Sec'y , September 23, 1994). At the same time,
the Act actually encourages safety and security employees such as
James to be alert and aggressive in addressing security and safety
concerns. In considering the propriety of the complainant's
conduct, the right of the employer to maintain discipline in the
workplace must be balanced against the "heavily
protected" statutory rights of the employee. To fall outside
statutory protection, an employee's conduct must reach the level of
being egregious or indefensible. Carter v. Electrical District
No. 2 of Pinal County, 92-TSC-11 (Sec'y, July 26, 1995);
Martin v. Department of the Army, 93-SDW-1 (Sec'y, July 13,
1995).
Here, the evidence did not establish overbearing conduct on
James' part. To the contrary, it established surly and begrudging
conduct by the crew, and at best a lackadaisical attitude by
organ, who seemed to blame James for complaining and accused her
of "costing him his job" when she reported Ramirez [TR
65]. In this regard, I am not persuaded by the testimony of Ms.
Roberts, who seemed not as upset at the crew's behavior as did
James. Although James argues neither constructive discharge nor
hostile environment, it is useful to borrow from the principles in
that area, both as to liability and later in this discussion as to
appropriate remedies. This is because the Act is intended to
protect employees not only from retaliatory discharge or
suspension, but also from harassment constituting a hostile work
environment. English v. General Dynamics Corp., 85-ERA-2
(Sec'y, February 13, 1992). Such an environment is one in which
hostility is sufficiently severe or pervasive to alter the
conditions of employment and create an abusive working environment.
Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57 (1986).
"Hostility" must be established by way of both a
subjective standard and an objective -- or "reasonable
person" -- standard. Harris v. Forklift Systems, Inc.,
507 U.S. ___, ___ S.Ct. ___ (1993).
James testified that the crew directed vulgarities toward her,
threatened her physically, and even that two of them [one being
Ramirez] urinated off the roof right in front of her [TR 42, 45-51,
57, 65-66]. Morgan confirmed that both Roberts and James had told
him about the urinating incident with Ramirez; and that he was
aware of the crew using lewd language but he never told the crew to
cease and desist [TR 158-62, 168, 225]. Roberts testified that
they used "coarse language" sometimes [TR 186]. Indeed,
when the crew walked off the job that day, they told Mike McEnany
"we cannot work for that bitch" [TR 264-265]. While
Roberts may indeed have had a thick skin, her testimony does not
establish that James had a thin one. Rather, the evidence suggests
that Roberts did not enforce the rules as closely as James, and
that the hostility was not directed to Roberts. Under both a
subjective and an objective standard, it would be proper to find
such an environment hostile to intolerable.
One of the most telling pieces of evidence for the undersigned
is that two days after the incident on October 11, when Mike
cEnany finally understood the importance of safety and security,
and his crew's compliance with those rules, he gathered all his
workers up and laid down the law to them. [CX 18; TR 239-240]. At
that point, the behavior of the crew improved, and they began to
comply [TR 230]. Had the management of McEnany Roofing taken these
steps when James initially requested help on those many previous
occasions, the incident of October 11 might never have happened.
As it was, management allowed or ignored a work environment where
the complainant was ridiculed, embarrassed, called names and
exposed to threatening behavior by the crew, to which the company
turned a winking eye. This in itself demonstrates "antagonism
toward activity that is protected under the ERA." Timmons
v. Mattingly Testing, 95-ERA-40 (ARB, June 21, 1196).
Respondent's lack of support for her job and then its discharge of
her for doing her job created an intolerable situation for
James, one that she would understandably decline to return to [TR
82].9
Indeed, Mike McEnany now realizes that he was wrong to have
fired her:
Addressing the issues of motivation and causal nexus,
respondent attempts to argue that James was fired not because she
was doing her job, but because the crew walked off the job. This
argument attempts to create a distinction without a difference.
The crew's "mutiny" arose directly from James'
performance of her job, perhaps indirectly aided and abetted by
respondent's failure to support her previously, and she bore the
adverse consequence of the situation. The crew's action in walking
off the job is not at issue in any event. It is the employer's
action toward James that is at issue.
Respondent relies on Delaney v. Mass. Correctional
Industries, supra, 90-TSC-2 (Sec'y, Marrch 17, 1995) for
the proposition that an employer motivated by concern for the
overall climate and security of the facility when it transferred
complainant may do so despite the complainant's having engaged in
protected activity. This is not a situation like that seen in
Delaney. That case involved improper conduct by the
complainant in terms of the way he broached his safety concerns
with his supervisor. It is significant to the undersigned that the
Secretary explicitly limited his holding to the "unusual facts
of the case," which involved a prison setting. Under other
circumstances, the Secretary held, the manner in which complainant
conducted himself would not have deprived him of whistleblower
protection. In any event, there is no evidence whatsoever of
misconduct by James.
I therefore find that the respondent has failed to rebut the
claimant's prima facie case. Claimant's prima facie
case being not contradicted or overcome by respondent's evidence,
she is entitled to prevail. Carroll v. Bechtel Power Corp.,
91-ERA-46 (Sec'y February 15, 1995), aff'd sub nom.
Carroll v. Department of Labor, 78 F.3d 352 (8th Cir. 1996).
I further find that the evidence establishes by a
preponderance that the proffered motivation -- to avoid the crew
walking off the job -- was not a legitimate reason for discharging
her. The events on October 11, 1995, particularly when seen in
light of the events leading up to it, suggest that James' was
highly resented by the crew and that performance of her
security/safety duties was merely tolerated by management. Safety
and security oversight were the first to go when the need to finish
the job was imperiled.
Complainant argues that there is direct evidence of
discrimination, such that the foregoing shifting burden of proof
analysis is unnecessary. Such a conclusion is warranted on the
record before me, and I find in the alternative that because there
is unrebutted direct, as well as circumstantial, evidence of
discrimination, complainant is entitled to judgment. In such a
case, respondent can avoid liability only by showing that it would
have taken the same action in the absence of James' protected
activity. Jones v. Gerwens, 874 F.2d 1534, 1539, N. 8 (11th
Cir. 1989); Blake v. Hatfield Elec. Co., 87-ERA-4 (Sec'y,
January 22, 1992).
Even assuming respondent had successfully rebutted
complainant's prima facie case, Mike McEnany's own testimony
reveals that his decision to terminate complainant was motivated,
at least in part, by a protected activity. Under the "dual
motive" framework, in order to avoid liability under the Act,
the respondent must show by "clear and convincing" the
evidence that it would have made the same decision to discharge
James even in the absence of the protected conduct. In such cases,
the respondent bears the risk that the influence of the legitimate
and prohibited motives cannot be separated. Crosier v. Portland
General Electric Co., 91-ERA-2 (Sec'y, January 15, 1994).
For purposes of the analysis, one can assume that the need to
keep the crew on site and working is a legitimate business reason
for adverse action. Indeed, standing alone and out of context, the
need to keep one's employees working must constitute a legitimate
business reason. However, as indicated above, such a decision
cannot constitute a legitimate reason when, as here, it is
inextricably linked with James' protected activity. Respondent
concedes that James' work performance was always good [ALJX 19, p.
15]. Mike McEnany had no problem with her work. There was no
indication whatsoever that her job was in jeopardy [TR 47-48, 121,
128-29, 152, 259]. McEnany admits that the way she was performing
her job had nothing whatsoever to do with his decision to fire her
[TR 263]. It was the fact that she was performing her job
that led to her discharge.
On the basis of the record before me, I conclude that
respondent has failed to demonstrate that it would have terminated
James even if she had not engaged in protected activity. There is
no "clear and convincing" evidence -- or indeed, any
evidence at all -- that James would have been fired but for her
enforcement of the plant security rules and the crew's walking off
the job in protest
As indicated previously, the claimant retains at all times the
burden of proof by a preponderance of the evidence. Having
thoroughly reviewed the evidence above, I find that the
preponderance of the evidence establishes each and every element of
her whistleblower claim. Specifically, the evidence demonstrates
that James was engaged in protected activity when she reported
Ramirez, that respondent knew about the protected activity, and
that an adverse employment decision was made against her for that
reason.
Further, the evidence establishes that respondent's stated
reason for discharging James -- to keep the crew on the job -- is
not a legitimate reason under the Act, because it is inseparable
from the performance of her duties as a security escort.
Respondent has further failed to establish that it would have
discharged the complainant even if she had not engaged in protected
activity. Rather, I find that respondent intentionally
discriminated against complainant because she had engaged in
protected activities.
Accordingly, I find and conclude that complainant Tracy James
is entitled to relief under the Act.
Based upon my finding that respondent has violated the Act,
complainant is entitled to damages pursuant to 42 U.S.C. §
5851(b)(2)(B) and 29 C.F.R. § 24.6(b)(2). Complainant seeks
back pay and interest from the date of her discharge until October
28, 1995, in the amount of $603.50 [CX 19, p. 2]. Complainant also
seeks front pay in an unspecified amount, compensatory damages of
$25,000, and attorneys fees in an amount to be determined by
separate proceedings.
An award of back pay is not a matter of discretion but is
mandated once it is determined that an employer has violated the
Act. Adams v. Coastal Production Operators, Inc., 89-ERA-3
(Sec'y, August 5, 1992). The purpose of a back pay award is to
make the employee whole by restoring the employee to the position
where he or she would have been had the unlawful discharge not
occurred. Blackburn v. Metric Constructors, 86-ERA-4
(Sec'y, October 30, 1991), slip op. at 11, aff'd sub nom.
Blackburn v. Martin, 982 F.2d 125 (4th Cir. 1992).
Back pay ordinarily runs from the date of discharge to the
date that complainant receives a bona fide offer of reinstatement.
Williams v. TIW Fabrication and Machining, 88-SDW-3 (Sec'y,
June 24, 1992). However, although respondent made an unconditional
offer of reinstatement only a few hours after her discharge, it had
not at that time taken steps to assure that the workplace was safe
and no longer hostile. Cf. Boytin v. Pennsylvania Power
and Light Co., 94-ERA-32 (Sec'y, October 20, 1995). As such,
I find that James was not required to accept the offer and that her
back pay continued.
Respondent has stipulated that the sum of $603.50 is an
accurate calculation of complainant's back pay [TR 85-86]. That
sum is therefore awarded, along with other related benefits, and
pre-judgment interest calculated pursuant to 26 U.S.C. §6621.
I note that James obtained alternative employment with Florida
Power at the Crystal River plant effective October 30, 1995 at a
higher rate of pay than she was earning with respondent [TR 85].
James argues that she is entitled to front pay in lieu of
reinstatement. Front pay may be appropriate where "discord
and antagonism" would render reinstatement an ineffective
remedy. Goldstein v. Manhattan Industries, Inc., 758 F.2d
1435 (11th Cir.), cert. denied, 474 U.S. 1005 (1985);
Creekmore v. ABB Power Systems Energy Services, Inc., 93-ERA-24 (Sec'y, February
14, 1996). As indicated throughout this
decision and order, reinstatement was not a viable option when
offered, and is not sought by complainant. In West v. Systems
Applications International, 94-CAA-15 (Sec'y, April 19, 1995),
the Secretary held that the administrative law judge may order
reinstatement despite complainant's not seeking it, when
complainant offers no strong reason for not returning to her former
job. In that event, respondent's back pay liability terminates
upon its tender of a bona fide offer of reinstatement, whether
complainant accepts it or not.
More practically for this case, however, an additional award
of front or back pay would be meaningless in this situation, where
complainant has been employed since October 30, 1995, is now
earning more than she did with McEnany, and her post-discharge
earnings will offset any front or back pay award after October 30,
1995..
Complainant claims compensatory damages in the amount of
$25,000, primarily for emotional distress. The Act authorizes
compensation for pain, suffering, mental anguish or loss to
reputation. 42 U.S.C. § 5851(b)(2)(B).
The record establishes that James was extremely upset and
crying on the day of her discharge, and that thereafter she
experienced difficulty sleeping, eating and functioning socially,
and visited a physician who prescribed Valium. In the days that
followed her discharge, she was worried that members of the crew
might follow her [TR 86-87]. She was also concerned about her
reputation at work, where she found news articles posted in the
locker room about her job situation [TR 88-89]. Her husband
corroborated the troubles she experienced [TR 170-173] and there
was no evidence to contradict it.
On the other hand, there is no evidence that she suffered
physical harm, wage loss over $600, or other financial loss such as
home or penalties on retirement withdrawals. Comparative review of
other cases awarding compensatory damages for emotional distress
and humiliation shows a range from ,000 to $50,000. For example,
in Creekmore v. ABB Power Systems Energy Services, Inc., 93-ERA-24 (Sec'y,
February 14, 1996), the complainant suffered
emotional distress, humiliation and loss of reputation much like
that described by James. However, he also had a heart attack,
arguably because of the layoff, was out of work for several months
and had to dip into his retirement fund. The Secretary had doubts
about an actual connection between the layoff and the heart attack,
but concluded that an award of $40,000 was justified for the
emotional distress.
Damages for emotional distress are not amenable to precise
calculation, yet that does not and should not preclude an award for
the suffering attributable to it. Given the awards previously
approved by the Secretary, the sum of $25,000 is justified under
the circumstances of this case.
Complainant is entitled, as the prevailing party, to an award
of reasonable attorney's fees and expenses related to the
complaint. The complainant's attorney is directed to submit
documentation of fees and expenses incurred within 15 days of the
issuance of this Recommended Decision and Order, to which the
respondent may respond not later than the close of business,
September 30, 1996. The parties' attention is directed to
Sutherland v. Spray Systems Environmental, 95-CAA-1 (ARB,
July 7, 1996) in reference to the presentation and calculation of
fees and expenses.
For the foregoing reasons, it is hereby ORDERED that
respondent Pritts-McEnany Roofing, Inc., also known as McEnany
Roofing, shall make complainant Tracy A. James whole for losses
suffered by reason of its unlawful discharge of her, by paying the
following amounts:
1. For the period of October 11, 1995 to and including
October 28, $603.50 representing lost wages in the form of back
pay, plus pre-judgment interest calculated pursuant to 26 U.S.C.
§6621, plus any fringe benefits the complainant would have
accrued during that period; and
2. In compensation for mental and emotional distress, the sum
of $25,000.
It is further ORDERED that respondent take the
following remedial action:
1. Remove from complainant's personnel and other records any
and all adverse references regarding her protected activities;
2. Refrain from including statements in any job references
which have the effect of "blacklisting" complainant
because of the performance of her protected activities; and
3. Post a copy of the Secretary's final Decision and Order
for a period of thirty (30) days after review and issuance by the
Administrative Review Board, in conspicuous places where
respondent's employees may congregate; and further provide a copy
of the Secretary's final Decision and Order to any of its employees
who may request a copy.
IT IS FURTHER ORDERED that within fifteen (15) days of the
issuance of this Recommended Decision and Order, complainant's
attorney shall submit to the undersigned and to counsel for
respondent documentary evidence of the professional fees and
expenses incurred in pursuing this litigation to date. The parties
are encouraged to enter into stipulations as to such aspects of the
complainant's fees and expenses as they can reasonably agree to.
Respondent shall submit its objections, if any, to the undersigned
and to counsel for complainant not later than the close of
business, September 30, 1996.
NOTICE: This Recommended Decision and Order and the
administrative file in this matter will be forwarded for review by
the Administrative Review Board, U.S. Department of Labor, Room S-4309, Frances Perkins
Building, 200 Constitution Ave. N.W.,
Washington, D.C. 20210. The Administrative Review Board has the
authority to issue final decisions in employee protection cases
adjudicated under the regulations at 29 C.F.R. Parts 24 and 1978.
See 61 Fed. Reg. 19978-19989 (1996).
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[TR 244].
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2Respondent does not stipulate that Ramirez called James an insulting name.
3Despite its stipulation that complainant was acting properly and in complete compliance with her duties as an escort when she reported Ramirez to the security personnel, respondent also contends that it is proper if she actually lost "visual and conversational voice control" of the man (see Paragraph 5, ALJX 18, p. 3). Respondent disputes that she lost such control, and contends that Ms. James made a poor judgment, given the minor nature of the transgression by Ramirez (Id at Paragraph 3, p. 7; and ALJX 19, pp. 5-6).
4When Section 5851 was added to the Energy Reorganization Act in 1978, the Senate Committee Report summarized the employee protection provision as "substantially identical" to whistleblower provisions in the Clean Air Act and the Federal Water Pollution Control Act, both of which were modeled after the Federal Mine Safety Act. S. Rep. No. 95-848 (May 15, 1978), reprinted in 1978 U.S. Code Congressional and Administrative News 7303. As a result, the law that has developed under the environmental statutes is instructive in ERA cases.
5In a ruling one month after Zinn, the Secretary clarified that it is only when the evidence establishes that both legitimate and discriminatory factors contributed to the decision to take the adverse action -- the dual, or mixed, motive doctrine -- that "clear and convincing" evidence is required from the employer. In other words, where there are both legitimate and prohibited motivations for an adverse employment action, the employer escapes liability only by "clear and convincing" evidence that the action would have been taken in the absence of the protected activity. Remusat v. Bartlett Nuclear, Inc., 94-ERA-36, Slip. Op. at pp. 3-5 (Sec'y February 26, 1996). See also Gibson v. Arizona Public Service Co., 90-ERA-29, -46, and -53, Slip Op. at pp. 2-3 (Sec'y September 18, 1995). Although the more recent decision in Timmons v. Mattingly Testing, 95-ERA-40 (ARB, June 21, 1996) did not make such a clear distinction, it is consistent with the ruling in Remusat, and I shall therefore apply the "clear and convincing evidence" standard in the dual motive analysis.
6Mike Morgan, the general superintendent for McEnany Roofing, testified that he did not see the problem between James and Ramirez [TR 219].
7This situation is distinguishable from that in McDonald v. University of issouri, 90-ERA-59 (Sec'y March 21, 1995). In that case, after complainant told him about a co-worker's safety violations, a senior professor upset about the discord in his laboratory asked the complainant to finish up her work within a couple of months and leave. This action did not immediately change her status as an employee or as his assistant, and the personnel office was not informed. The professor changed his mind, however and her contract was subsequently renewed twice. In the ensuing two months, the professor equivocated about whether and when to discharge her (or rather, not renew her contract). Such is not the case here, where the words "you're fired" conveyed an immediate and unmistakable message that James' status as respondent's employee was ended. In addition, McDonald involved the question of whether the discharge was sufficiently "final and unequivocal" to start the 30-day clock running within which a complaint had to be filed, an issue not present in this case.
8A worker is protected in her refusal to return to work where she has a good faith belief that working conditions are unsafe. Whether they are actually unsafe is not the question, but rather the reasonableness of her concern for her safety: her belief must be reasonable under the circumstances. Her refusal to return to work remains protected until the objectional conditions are investigated and cure, and she is adequately informed that they have been cured. Pensyl v. Catalytic, Inc., 83-ERA-2 (Sec'y, January 13, 1984).
9McEnany never informed James that he had spoken to the crew on October 13 about the need to comply with security rules and that their behavior had improved. [TR 258-259].