DOL Home > OALJ > Whistleblower > McCafferty v. Centerior Energy, 96-ERA-6 (ALJ June 11, 1996) |
412 644-5754
DATE: June 11, 1996
CASE NO: 96-ERA-6
In the Matter of
OWEN McCAFFERTY,
DENNIS MALONEY,
SEAN KILBANE,
TERRY McLAUGHLIN,
SEAN McCAFFERTY, AND
ROBERT PROHASKA,
Complainants
v.
CENTERIOR ENERGY,
Respondent
Appearances:
Steven D. Bell, Esq.
Lynn Rogozinski, Esq.
For the Complainants
ary E. O'Reilly, Esq.
David R. Lewis, Esq.
For the Respondent
Before: THOMAS M. BURKE
Administrative Law Judge
This is a proceeding brought under the Energy Reorganization Act of 1974 ("ERA"), 42 U.S.C. § 5851 and the regulations promulgated thereunder at 29 C.F.R. Part 24. These provisions protect employees against discrimination for attempting to carry out the purposes of the ERA or of the Atomic Energy Act of 1954, as amended, 42 U.S.C.A. § 2011, et seq. The Secretary of Labor is empowered to investigate and determine "whistleblower" complaints
filed by employees at facilities licensed by the Nuclear Regulatory Commission ("NRC") who are discharged or otherwise discriminated against with regard to their terms and conditions of employment for taking any action relating to the fulfillment of safety or other requirements established by the NRC.
This proceeding involves complaints filed on
October 26, 1995 by complainants, Owen McCafferty, Dennis
aloney, Sean Kilbane, Terry McLauglin, Sean McCafferty and
Robert Prohaska, against Centerior Energy ("Centerior")
alleging that Centerior discriminated against them in violation
of Section 211 of the ERA1 by barring complainants from employment at any
Centerior facility, and by revoking a security clearance that had
been granted to complainant, Dennis Maloney. The complaints
assert that the sole basis for the adverse actions was the
commencement of a proceeding by the complainants against
Centerior under the Atomic Energy Act of 1954 in the United
States District Court for the Northern District of Ohio.
The October 26, 1995 complaints were
investigated by the District Director of the Cleveland, Ohio,
regional office of the Wage and Hour Division of the United
States Department of Labor. The District Director notified
Centerior by letter dated January 9, 1996 that its fact finding
had determined that the complainants were protected employees
engaging in a protected activity within the scope of the ERA and
that discrimination as defined by the ERA was a factor in the
aforesaid actions taken against the complainants.
Centerior filed an appeal with the Office of
Administrative Law Judges on January 16, 1996. Complainants
filed a cross-appeal on January 16, 1996, requesting additional
relief to that ordered by the District Director. Specifically,
complainants requested back pay and benefits equivalent to their
loss because of the discriminatory actions of Centerior.
A hearing was held on February 26 and 27,
1996 in Cleveland, Ohio. Post-hearing briefs were received on
April 5, 1996.
Centerior Energy Corporation is the parent
holding company of the Cleveland Electric Illuminating Company,
The Toledo Edison Company and Centerior Service Company.
Cleveland Electric Illuminating Company and Centerior Service
Company are jointly
licensed by the NRC as the operator of the Perry Nuclear Power
Plant. The Toledo Edison Company and Centerior Service Company
are jointly licensed by the NRC as the operator of the
Davis-Besse Nuclear Power Station.
Periodically, approximately every 18 months
to two years, nuclear power plants are shut down for refueling
and maintenance. During these outages, Centerior performs
substantial maintenance and modification work that can not be
done while the facility is operating. Nearly all of this work is
performed in radiologically-restricted areas, that is, areas
where there is exposure to radiation. During the fall of 1994,
complainants were performing outage work at the Davis-Besse
Nuclear Plant in Oak Harbor, Ohio as employees of Gem Industrial
Services, a contractor at Davis-Besse. Their work included
removing mirror insulation from steam generators and other
components of the plant. Mirror insulators are removable panels
made out of stainless steel with reflective insulation on both
sides. (Tr. 19) On October 7, 1994, complainants were exposed to
radioactive materials after removing a piece of the insulation.
The exposure was unplanned as the area where they were working
was supposed to be "clean," in that a survey of the
area supposedly determined that they would not encounter
radioactive materials.
The exposure by complainants to the
radioactive materials prompted an investigation by the NRC.
Following the investigation, the NRC issued a notice of violation
to Centerior. The notice of violation asserted that Centerior
did not take the steps necessary to assure compliance with the
regulations requiring engineering controls to control the
concentration of radioactive material in the air. Specifically,
the notice stated:
In response, Centerior accepted
responsibility for the violation. (Complainant's Exhibit D, p. 2)
Complainants continued to work at the plant
for another six weeks, when they were laid off because the
refueling outage was completed.
Complainants filed a civil complaint against
Centerior in the United States District Court for the Northern
District of Ohio on August 7, 1995. Jurisdiction was asserted
under the Price-Anderson Act, 42 U.S.C. § 2210. The
Price-Anderson Act is a part of the Atomic Energy Act. The
complaint
alleged, inter alia, that Centerior breached a
duty owed to the complainants by failing to take the necessary
precautions to prevent complainants' unwarranted exposure to
radioactive materials when Centerior knew or should have known
that the radioactive materials presented an unreasonable risk of
harm to the complainants. The complaint includes multiple
counts, including claims of negligence, strict liability,
intentional infliction of emotional distress, and negligent
infliction of emotional distress.
In September, 1995, one of the complainants,
Dennis Maloney, was hired by Fishbach Power Services, Inc.
("Fishbach") to perform maintenance work at Centerior's
Perry Nuclear Power Plant in Perry, Ohio. Maloney had worked at
several nuclear and non-nuclear facilities owned or operated by
Centerior including Perry Nuclear Powerhouse, Avon Powerhouse,
East Lake Powerhouse, East 72nd Street, Astabula and
Davis-Bessie. (Tr. 18) Maloney has had no discipline problems
while
working for Centerior. No complaints have been filed against him
and no concerns were raised regarding his professionalism. (Tr.
19)
Maloney was working for Fischbach removing
insulation and otherwise doing the same sort of work at Perry as
he had been doing at Davis-Besse. (Tr. 34) Maloney was permitted
to enter into restricted areas, which require safety clearances
and certain training. (Tr. 37) He testified to meeting with a
member of the radiological protection staff and submitting a
suggestion on minimizing risk of exposure to radiation which was
appreciated and accepted. (Tr. 40, 41) Complainant did not
refuse any jobs, did not stage any protests, and did every thing
he was told.
On October 16, 1995, Maloney was called from
his job by the field superintendent for Fishbach and informed
that his access to Perry had been revoked by Centerior. Maloney
could not get a reason for the revocation until he talked to Don
Timms, the plant ombudsman, during the exit process. The
ombudsman asked Maloney the reason for the revocation. Maloney
replied that he did not know, except that he was involved in
litigation with Centerior. Timms offered to find out the reason.
After making a telephone call, Timms informed Maloney that the
reason was "biting the hand that feeds you." (Tr. 42)
aloney understood Timms to mean that he was out because he had
filed the lawsuit. (Tr. 43)
Timms testified that he made a telephone call
to Jim Featherstone, the Fishbach representative to determine why
aloney's employment was being terminated. Timms was informed by
Featherstone that he had received a letter stating Maloney
should be let go. (Tr. 274)
About two days later while at his union hall
aloney was shown a letter dated October 13, 1995 from Robert
Schrauder, Director, Perry Nuclear Services Department, to
Richard Cline of Fishbach stating:
The Ombudsman's statement and Schrauder's
letter provided the only reasons given to Maloney for being fired
from Perry.
Pat Volza is the site radiation protection
manager at Perry. On about the 5th or 6th of October, 1995, he
was informed by a member of his staff that Maloney had requested
a copy of Maloney's incoming whole body count. Whole body count
is a monitoring program whereby any employee who is going to be
subjected to external or deep dose radiation is required to
undergo a bioassay to determine the level of radioactive
material, if any, he is bringing with him. It allows for the
establishment of a baseline prior to the incoming employee being
exposed to radioactivity. (Tr. 150, 151) Maloney's request was
considered unusual by someone on Volza's staff; it prompted the
staff member to alert Volza of the request and of Maloney's
involvement "in the insulator issue at the Davis-Bessie
plant." (Tr. 151) Volza in turn contacted, Ron Scott, his
counter part at Davis-Bessie to discuss Maloney's involvement in
the insulator matter. Volza testified that Scott told him about
aloney's civil complaint against Centerior and a discussion
ensued regarding whether, in light of the allegations of the
complaint, Maloney would suffer emotional distress on the job or
would in someway have a problem with complying with Centerior's
programs and policies. (Tr. 152) Volza testified that he then
contacted Schrauder to express concerns about Maloney's request
for whole body count levels and the possibility Maloney might
make use of such information to buttress his lawsuit, and also
the concerns he had discussed with Scott regarding whether the
allegations of the lawsuit meant Maloney could not comply with
Centerior's programs and procedures. (Tr. 152, 168)
Schrauder subsequently instructed Fishbach to
remove Maloney from employment at Perry, and to not hire for work
at any Centerior facility the plaintiffs to the Davis-Bessie
lawsuit. When Fishbach requested the instructions in writing,
Schrauder forwarded the aforesaid October 13, 1995 letter to
Richard Cline, identified as Complainant's Exhibit No. 2. (Tr.
207) Schrauder testified that he terminated Maloney's employment
and barred the other complainants from working for Centerior
because of allegations in the complainants' lawsuit against
Centerior. He stated that he took the complainants' word that
they had been debilitated and suffered emotional distress as a
result of the unplanned exposure at Davis-Bessie. (Tr. 207, 208)
Schrauder testified that he did not convey
his "full rationale" in the October 13, 1995 letter
because he wanted to keep the letter short, (Tr. 209) and that he
only barred the complainants until the litigation was resolved
because he thought that by that time they may have overcome their
concern regarding the use of respirators. (Tr. 209)
The initial question is whether the
complainants' civil lawsuit against Centerior in the United
States District Court for the Northern District of Ohio
constitutes protected activity under § 211 of the ERA.
Section 211 provides:
42 U.S.C. § 5851(a).
Complainants' civil complaint against
Centerior asserts jurisdiction under the Price-Anderson Act, 42
U.S.C. § 2210. The complaint alleges, inter
alia, that Centerior breached a duty owed to the
complainants by failing to take the necessary precautions to
prevent complainants' unwarranted exposure to radioactive
materials, when Centerior knew or should have known that these
radioactive materials presented an unreasonable risk of harm to
the complainants. The Price-Anderson Act, enacted in 1957, added
Section 170 to the Atomic Energy Act, 42 U.S.C. § 2210.
As complainants' civil complaint against
Centerior is an action under the Atomic Energy Act, it would
appear that there could be little room for argument that filing
the complaint is protected activity under subsections (D) and (F)
of § 211 of the ERA, that is, that the civil action
constitutes a proceeding, or "any other action" under
the Atomic Energy Act. Centerior, however, argues that §
211 does not mean what it says. Centerior argues that Congress
only intended § 211 to protect notifications to the NRC or
licensee management of safety concerns or regulatory violations,
in order to protect the free flow of safety information to
government regulators. In support of its construction of the
statute, Centerior presents three arguments: (1) the ERA has
never been applied to protect private lawsuits filed under the
Atomic Energy Act; (2) the courts have found the definition of
the term "proceeding" to be ambiguous and undefined,
therefore the legislative history of the ERA must be considered
to determine the intent of Congress; and (3) protect- ing
private tort actions under the Atomic Energy Act would not serve
the purpose for which the ERA was promulgated.
Centerior is correct that there is no history
in the case law of § 211 being applied to a private action
under the Atomic Energy Act. However, it is more than likely
that prior to the instant case, no employer had fired an employee
because of the employee's filing of a civil suit under the Atomic
Energy Act.
It is a basic tenet of statutory construction
that if statutory language is clear and unambiguous on its face
then it must be given its plain meaning and no resort to the
underlying legislative history is appropriate. Kansas &
Electric Co. v. Block, 780 F.2d 1505, 1510 (10th Cir. 1985),
cert. denied, 478 U.S. 1011 (1986); Chevron,
U.S.A. v. Natural Resources Defense Council, 932 F.2d 985 988
(D.C.Cir. 1991), 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694
(1984).
Centerior's argument that a review of the
legislative history of § 211 is necessary to interpret the
meaning of the term "proceeding" because the Courts
have held its meaning to be ambiguous is rejected. Centerior is
correct that some courts have found ambiguity in the term.
However, in every instance, the court's intent was not to narrow
the definition to exclude a specific legal proceeding such as the
present civil action, but to expand the definition to include
activity not normally considered a proceeding or action. In
Kansas & Electric Co. v. Block, supra, the Court
held that the intent of Congress is reflected by an expansive
reading of the term "action" to include the filing of
internal complaints. Id. at 1413. The Court in Bechtel
Construction Company v. Secretary of Labor, 50 F.3d 926 (11th
Cir. 1995), interpreted the term "proceeding" and the
phrase "any other action" to include raising particular
concerns about safety with an employer. Id. at 931-933.
In Passaic Valley Sewerage Com'rs v. United States Department
of Labor, 992 F.2d 474 (3d. Cir. 1993), the Court interpreted
the term proceeding as used in the whistle blower provision of
the Clean Water Act to include intracorporate complaints.
Id. at 478. The whistleblower provision of the
Occupational Safety and Health Act, 29 U.S.C.A. § 651, which
provides that "the institution of a proceeding" is
protected activity, has been interpreted to cover a complaint to
an employee's union, Donovan v. Diplomat Envelope Corp.,
587 F.Supp. 1417 (E.D.N.Y. 1984), aff'd, 760 F.2d 253 (2d
Cir. 1985), a communication with a newspaper, Donovan v. R.D.
Anderson, 552 F.Supp. 249 (D.Kansas 1982), and a decision to
retain counsel to represent him in rectifying what he considered
to be unsafe working conditions.
Accordingly, the case law interpreting the
meaning of a "proceeding" or "any other
action" as used by § 211 of the ERA reveals no
ambiguity about their application to a civil action under the
Act. Thus, a resort to the ERA's legislative history is not
appropriate. Moreover, even if its legislative history is
considered there would be no reason to deviate from the plain
meaning of the ERA. The complainants point out in their
post-hearing brief that a review of the legislative history of
the
1992 amendments to § 211 confirms that Congress intended the
ERA to protect employees who file a civil suit under the Atomic
Energy Act. Its legislative history provides in part:
Centerior also argues that Congress could not
have intended § 211 to apply to a private action under the
Atomic Energy Act because "until amendments in 1988,
Price-Anderson did not create any federal cause of action or
Federal
jurisdiction for injury relating to nuclear incidents."2 Centerior's argument
fails for two reasons. Initially, a private right of action did
exist under Price Anderson prior to the enactment of the ERA in
1974. Price-Anderson was amended in 1966 to provide for a
private right of action for extraordinary nuclear occurrences.
See O'Conner v. Commonwealth Edison Co., 13 F.3d
1090 (7th Cir. 1994) where the court noted that the 1988
amendments expanded the reach of 42 U.S.C. § 2210(n)(2) to
provide for removal of, and original federal jurisdiction over,
claims arising from any 'nuclear incident' instead of actions
arising from only extraordinary nuclear occurrences. Secondly,
when § 211 was amended in 1992 Congress had the opportunity
to remove civil actions under the Atomic Energy Act as a
protected activity. Instead, the amendments expanded the
activities protected.
Centerior also argues that Congress would not
have intended to protect the filling of private civil actions
under the Atomic Energy Act because no purpose would be promoted
thereby. However, protection of the public is one of the reasons
for prohibiting an employer from discriminating against an
employee because the employer was the recipient of a civil action
under the Atomic Energy Act alleging a breach of duty by failing
to take the necessary precautions to prevent unwarranted exposure
to radioactive materials. The Court in O'Conner,
discussed Price-Anderson's role in Congress' attempt to both
encourage private sector involvement in the nuclear industry and
simultaneously to protect the public. O'Conner,
supra, 13 F.3d 1090 at 1105. See 42 U.S.C.
§§ 2012, 2013.
Accordingly, it is determined that the plain
language of § 211 precludes Centerior from taking
retaliatory action against complainants because they filed the
civil action against Centerior under the Atomic Energy Act.
Prima Facie Case
The requirements for establishing a
prima facie case under Section 211 of the ERA were
set out by the Secretary of Labor in Darty v. Zack Co. of
Chicago, Case No. 82-ERA-2, Secretary of Labor, April 25,
1983, slip op. at 8. They are: (1) the
complainant engaged in protected activity; (2) the complainant
was subject to adverse action; and (3) that the respondent was
aware of the protected activity when it took the adverse action
against him. The complainant must also present sufficient
evidence to raise the inference that the protected activity was
the likely reason for the adverse action.
As previously discussed, complainants engaged
in
protected activity under § 211 when they filed the civil
action under the Atomic Energy Act against Centerior.
ADVERSE ACTION
Complainant, Maloney suffered an adverse
action by Centerior when Schrauder instructed Fishbach to remove
him from employment at Perry. The other five complainants
suffered adverse actions by Centerior when Schrauder instructed
Fishbach to not hire them for work at Perry. See
Complainants' Exhibit B.
KNOWLEDGE OF PROTECTED ACTIVITY
Complainants must show that Centerior had
knowledge of their protected activity at the time of the adverse
employment action. Hassell v. Industrial Contractors,
Inc., Case No. 86-CAA-7, Secretary of Labor, February 13,
1989. That Centerior had such knowledge is undisputed.
Volza testified that he was alerted to
complainants' lawsuit against Centerior on about the 5th or 6th
of October, 1995, and that it prompted him to contact Schrauder
to express his concerns that the allegations of the law suit
indicated that Maloney could not comply with the Centerior's
programs and procedures. Schrauder took the action terminating
aloney's employment and barring the other complainants from
working at any Centerior facility within a few days after his
conversation with Volza.
REASON FOR TERMINATION
Complainants have shown that they engaged in
protected activity and that they suffered adverse action when
they were subsequently fired or banned, and that Centerior knew
of the protected activity when it took such actions.
Complainants must, to establish a prima facie case,
present evidence to raise the inference that the protected
activity was the likely reason for the adverse actions. Dean
Dartey v. Zach Company of Chicago, Case No. 82-ERA-2,
slip op., Secretary of Labor, April 25, 1983.
Stack v. Preston Trucking Co., Case No. 86-STA-22,
slip op., Secretary of Labor, February 26, 1987 and
Haubold v. Grand Island Express Inc., Case No. 90-STA-10,
slip op., Secretary of Labor, April 27, 1990.
The temporal proximity of the adverse actions
to the protected activity is sufficient in itself to raise the
inference that the protected activity was the reason for the
adverse actions. The Court of Appeals in Couty v. Dole,
886 F.2d 147 (8th Cir. 1989) held that the temporal proximity of
"roughly thirty days" is sufficient as a matter of law
to establish an inference of retaliatory motivation. See also
the Secretary's decision in Goldstein v. Ebasco Contractors
Inc., Case No. 86-ERA-36, Secretary of Labor, April 7, 1992.
Also, Schrauder's October 13, 1995 letter
states that the Complainants' lawsuit was the reason for
aloney's termination and the ban on the other complainants'
employment.
As the complainants have established a
prima facie case, Centerior 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, nondiscrimatory 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.
Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248,
254-255 (1981). Dartey v. Zack Company of Chicago, Case
No. 82-ERA-2, Secretary of Labor, April 25 1983. Once a
respondent satisfies its burden of production, the complainant
then may establish that respondent's proffered reason is not the
true reason, either by showing that it is not worthy of belief or
by showing that a discriminatory reason more likely motivated
respondent. Shusterman v. EBASCO Services, Inc., Case No.
87-ERA-27, Secretary of Labor, January 6, 1992.
Centerior contends that it had legitimate
non-discriminatory reasons for terminating Maloney's employment
and barring the other complainants from further employment at any
of Centerior's facilities. Centerior stated reasons are that it
was concerned that complainants would be unwilling to work
without respirators, that complainants claimed to be suffering
from severe and debilitating emotional distress stemming from
exposures which federal regulations specifically permit and which
complainants would likely again receive, and that the
complainants might therefore seek to pick and choose the work
they would perform, and that this could disrupt the busy outage
schedule. Centerior's argument relies solely on the averments of
the complaint in complainants' civil action. The argument
assumes from the averments of the complaint that the
complainants' employment at Perry would be disruptive and
proceeds to offer case law showing that disruptive employees may
be denied employment even if they engaged in protective
activities.
Centerior attempts to argue the merits of the
complainants civil case in this proceeding. The gist of
Centerior's argument is that the dosage of radiation received by
the complainants because of the October 7, 1994 incident was
within the level approved by the NRC, therefore complainants'
averments in the civil suit that they suffered injury and
emotional distress compel the conclusion that complainants in the
future may suffer emotional distress, refuse to wear a respirator
or insist on a change of job even though the potential radiation
dosage to which they will be subjected is within NRC approved
limits. For example, Centerior argues that "Centerior
cannot hire individuals who appear unwilling to accept the NRC's
regulations, the radiation philosophy underlying those
regulations, or Centerior's radiation protection program.
Centerior is required to implement its program in accordance with
NRC requirements and has no leeway to violate those requirements
in order to accommodate an employee's personal views and
preferences."3
Centerior has not produced any evidence to
support its contentions. Each of the complainants continued to
work at the Davis-Bessie plant after the October 7, 1994 incident
until early December when their work was completed and they were
laid off. Nothing that could be considered disruptive occurred.
No complaints were brought to the attention of their union.
(Tr. 112) Their supervisor complimented them on doing a good job
and told them they were welcome to return to work on future
outages. (Tr. 28, 29) Maloney worked without incident at Perry
until his job was terminated. Volza agreed that nothing in
aloney's behavior indicated any emotional problems that would
effect his work. (Tr. 172) Neither Volza nor Schrauder
interviewed complainants, or in any other way attempted to
determine if their past behavior was disruptive or predictive of
disruptive behavior in the future. Volza contacted Scott, his
counterpart at Davis-Bessie plant, to discuss Maloney's status as
a plaintiff in the civil complaint. Volza testified that Scott
told him about Maloney's civil complaint against Centerior and a
discussion ensued regarding whether, in light of the allegations
of the complaint, Maloney would in someway have a problem with
complying with Centerior's programs and policies. (Tr. 152)
However, Volza did not discuss with Scott, Maloney's actual
understanding of and willingness to abide by Centerior's
respirator policy. (Tr. 154)
To support its argument that the actions of
Centerior toward the complainants were made dispassionately,
Centerior asserts in its brief that the record shows not one whit
of evidence of hostility towards the complainants. Centerior
overlooks the reason given by the plant ombudsman to Maloney for
his discharge, and the testimony of Schrauder on his reason for
terminating Maloney's employment. The ombudsman told Maloney
that he was out because he was "biting the hand that feeds
you." (Tr. 42) Schrauder was asked on direct examination
why he didn't interview Maloney before having his employment
terminated. Schrauder answered:
The dosage level of radiation received by
the complainants on October 16, 1995 is not relevant to this
proceeding, nor is the extent of injury caused thereby.
Nevertheless, Centerior argues that the dosage level of radiation
received by the complainants and the complainants' resulting
request for damages for emotional distress is a predictor that
the complainants will claim future emotional problems and is
therefore a legitimate basis for the firing. Centerior's
argument shows a lack of understanding or concern for the basis
of complainants' lawsuit. Maloney testified generally to his
reaction to the October 16, 1995 radiation incident. His
emotional distress did not result from knowledge of the level of
the radiation but the total circumstance surrounding the
incident. Maloney was asked how he first knew he was the subject
of an unplanned exposure to radioactivity. Maloney responded
that at the completion of their shift, when they left their
worksite, undressed and approached the portable monitors, they
set them off without even being around them. "All the
monitors were going off and the RP's and the HP's...came running
down to the area where we exit and they made us shower several
times, clean out our noses. They took masks. They had high
count ratings on everything." Maloney testified that they
continued to set off alarms for approximately a month. When
complainants arrived at the plant they showed a slip of paper
which permitted them to enter and exit the plant without going
through the monitors because they would set them off before they
got to them. At the end of the shift, complainants left earlier
than the other workers so they wouldn't jam up their fellow
employees passing through the monitors. "We couldn't go
within a couple of feet of them without setting those monitors
off." (Tr. 93)
Maloney was asked:
If Centerior's argument is found to prevail
in this case, and Maloney's firing is found to result not from
his filing of the civil action, but from a legitimate,
nondiscriminatory motive because the injury Maloney alleged in
the civil action may be considered a predictor of future injury,
and inconsistent with an "employer's legitimate demands for
loyalty, cooperation and a generally productive work
environment," then all protected actions that include an
allegation of injuries to the employee could no longer be
protected. Mere allegations of injuries in a complaint by an
employee against his employer, even if the complaint was
protected by "whistleblower" statutes such as the ERA,
as here, OSHA, or Title VII of the Civil Rights Act, would
constitute cause for terminating the employee.
Accordingly, it is determined that the
complainants have met their burden of showing that Centerior's
proffered reasons for the firing of Maloney and banning of the
other complainants are pretextural. They have shown by the clear
preponderance of the evidence that Centerior's actions
terminating Maloney and banning the other five complainants were
a deliberate retaliation for their filing the civil complaint
under the Atomic Energy Act.
42 U.S.C. § 5851(b)(2)(B) provides that
once discrimination that is prohibited by the Act is found:
The Court in Deford v. Secretary of
Labor, 700 F.2d 281 (6th Cir. 1983), interpreted the
above-quoted section as permitting an award of reinstatement to a
former job; restoration of all back pay, benefits and
entitlements; compensatory damages insofar as they are thought to
be appropriate; and reasonable attorney fees and costs.
REINSTATEMENT
Christopher Scarl is the business manager for
the Asbestos Workers Heat and Frost Insulators Union, Local 3, of
Cleveland Ohio. He testified that a refueling outage is
scheduled to commence at Davis-Bessie on April 8, 1996, as soon
as Perry goes back on line, and the complainants would have been
eligible to work that job but for the October 13, 1995 letter
barring their employment pending the outcome of their lawsuit.
(Tr. 112)
If Centerior commenced the work at
Davis-Bessie testified to by Scarl, or any work for which the six
complainants would have been hired but for the October 13, 1995
letter barring their employment, the six complainants shall be
immediately hired for those insulator positions as if Centerior
had never issued the ban on their employment with Centerior.
Centerior contends that Sean McCafferty is
not qualified to work at Centerior's nuclear plants because he
falsified a self-disclosure questionnaire by failing to disclose
a prior drug test. In support of its contention, Centerior
refers to November 28, 1994 letters to McCafferty and Gem
Industrial stating that McCafferty is denied access to the
Davis-Besse Nuclear Power Station due to falsification of a
Toledo
Edison Self Disclosure Questionnaire. Initially, the record does
not support Centerior's argument as the aforesaid letters refer
only to denial of access to Davis-Bessie, not all of Centerior's
nuclear plants, or Perry. Moreover, McCafferty testified that he
was eligible for reinstatement after a year from the issuance of
the November 28, 1994 letter, and was told by Centerior that he
would be reinstated upon the completion of a professional
assessment to determine whether a treatment program is required.
cCafferty has not requested the professional assessment because
of Centerior's ban on his employment as a consequence of his
lawsuit under the Atomic Energy Act.
BACK PAY
Dennis Maloney
Had Maloney's employment not been terminated
on October 16, 1996, he would have been working on the outage at
Perry on the day of the hearing, February 26, 1996. He was the
fourth man hired out of about thirty or thirty-five. (Tr. 47)
aloney testified that work on the outage was projected to
continue until April 6, 1996. (Tr. 260)
Richard Cline testified for Centerior. Cline
is the site project manager for Fishbach Power Services at Perry.
Cline testified to the work of insulators employed by Fishbach
from copies of records submitted to the local union for payment
of benefits. Cline testified that six insulators worked on site
until October 30, 1995 when the number was increased to eleven.
These eleven insulators worked until December 18, 1995, when they
were laid off for two weeks. (Tr. 281) According to Cline, they
worked a 40 hour week at straight time. (Tr. 279) Maloney
testified that his wage rate was $31.48 per hour. Thus, Maloney
lost ten weeks of work at ,259.20 per week (40 X $31.48 =
,259.20) during the period October 16, 1995 through December
22, 1995 for a total of $12,592.00.
Cline testified that the insulators were
called back to work on January 2, 1996. His records show that
the average insulator worked 29 straight time hours, 9 time and a
half hours, and one double time hour per week. It is assumed
that Maloney would have worked a full 40 hour straight time week
and would have earned the overtime the average insulator earned
during that period, that is, 9 time and a half hours and one
double time hour per week, for a total of 55.5 hours (40 + 13.5 +
2) per week.4 There
were six weeks during the period January 2 through February 11,
1996. Thus, Maloney lost 333 hours of work at $31.48 per hour,
or $10,482.84 from January 2 through February 11, 1996.
Cline projected that the insulating work
would continue until April 6, 1996 with a steady decreasing
number of insulators from a high of sixty to eighteen the last
two weeks. (Tr. 281) As Maloney was the fourth hired it can
reasonably be assumed that he would have been one of the last
eighteen on the job. Cline testified that the work would be done
on a 60 hour a week basis (40 hours of straight time and 20 hours
of time and a half, or 70 hours of compensation). As there are
eight weeks during the period February 11, 1996 to April 6, 1996,
aloney lost 560 hours of work (8 weeks X 70 hours) at $31.48 per
hour, or $17,628.80
Accordingly Maloney lost a total of
$40,703.64 ($12,592.00 + $10,482.84 + $17,628.80) because he did
not work at Perry during the period October 16, 1995 through
April 6, 1996.
Centerior argues that Maloney should not
recover the full union wage of 31.48 per hour because he would
not be required to make contributions for union dues,
apprenticeship fund or pension. Christopher Scarl, the business
manager for Local 3, testified that the union assesses a dues
payment to its members of 4.9%, and an apprenticeship fund
payment of .05 per hour. Scarl does not believe that the union
assesses those payments against an award of damages; he does not
know whether an assessment would be made for the pension. (Tr.
117, 118) Centerior's argument is rejected. These fees
subtracted from the complainants' wages derive from arrangements
between the complainants and their union for the upkeep and
betterment of the union. They are paid with monies earned by the
complainants. Centerior has no say in such an agreement. The
purpose of a union policy to not tax damage awards should not
enure to the benefit of the employer.
Maloney testified that he worked for BP Oil
Company Refinery in Toledo, Ohio from October 24, 1995 until
January 5, 1996 and for other employers from January 6, 1996
until the date of the hearing. His compensation during that
period equaled $16,152.64 and must be subtracted from his lost
earnings to determine wages lost. Also, any wages that Maloney
earned between the date of the hearing and April 6, 1996 must be
subtracted from the compensation lost because of not working at
Perry.
Maloney testified that traveling to Toledo,
Ohio to work at BP Oil resulted in additional expenses of travel
of 10,500 miles at .30 per mile or $3,150. Maloney is entitled
to reimbursement for his travel expenses. Maloney also requests
compensation for the time that it took him to travel to Toledo,
Ohio, 125 hours, at an hourly rate of $31.48 per hour. However,
aloney offers no rationale for such compensation. It does not
compensate for a loss of earnings or opportunity for earnings.
aloney is receiving credit for working more than an eight hour
work day at Perry, including a ten hour day after January 2, 1996
whereas the earnings at Perry are offset by only eight hour days
at BP Oil Company. Maloney's request for compensation for the
time he took to travel to BP Oil is denied.
As additional back pay damages, Maloney is
entitled to reimbursement for wages he would have earned if he
would had returned to work at a Centerior plant after April 6,
1996 but for the ban on his employment.
Thus, Maloney's damages from loss of pay are:
plus any wages he would have earned from Centerior after April 6,
1996 but for the ban, minus any offset for employment after
April 6, 1996 (compensation minus expenses).
Five Complainants Barred From Employment
Maloney testified that if the other five
complainants had not been barred from employment at Centerior,
they would all have been working at Centerior on the date of the
hearing. He was certain of this because his union had called in
"travelers" from sister unions in other areas to work
at Perry, and travelers would not be called in as long as there
were local members available to work. At the time of hearing
there were about 20 to 25 travelers working at Perry.
Cline testified that six insulators worked on
site until October 30, 1995 when the number was increased to
eleven.
It is assumed that the other five
complainants
would have been brought on at that time. There is no way of
determining from the record whether the seniority of the
complainants would have enabled them to be hired on October 30 or
on December 19, 1995 when an additional 19 insulators were hired.
However, because "recreating the past will necessarily
involve a degree of approximation and impression all doubts are
to be resolved against the proven discriminator rather than the
innocent employee." Woolridge v. Marlene Industries
Corp., 875 F.2d 540, 546 (6th Cir. 1989). Under the same
reasoning, the five complainants are considered to be among the
eighteen insulators who worked until April 6, 1996. Accordingly,
the five banned complainants are considered to have lost work at
Perry from October 30, 1995 until April 6, 1996, minus the two
weeks from December 22, 1995 to January 2, 1996 when all the
insulators were laid off. Their wages are determined to be the
same as Maloney,
$40,703.64, minus the two weeks from October 16 to October 30,
or $40,703.64 minus $2,518.40 = $38,185.24.
Robert Prohaska
Robert Prohaska's loss of wages from Perry
are offset by income of $19,139.84 up to February 27, 1996 at PCI
ichigan. He had expenses for living in Detroit of $3,000.00
($250 per week for 12 weeks) that must be deducted from the
offset. Prohaska's damages from loss of pay are:
plus any wages he would have earned from Centerior after April 6,
1996 but for the ban, minus any offset for employment after
April 6, 1996 (compensation minus expenses).
Owen McCafferty
Perry are offset by income of $20,147.20 up to February 27, 1996.
cCafferty's damages from loss of pay are:
plus any wages he would have earned from Centerior after April 6,
1996 but for the ban, minus any offset for employment after
April 6, 1996 (compensation minus expenses).
Terry McLauglin
Terry McLaughlin's loss of wages from Perry
are offset by income of $13,599.36 up to February 27, 1996.
cLauglin's damages from loss of pay are:
plus any wages he would have earned from Centerior after April 6,
1996 but for the ban, minus any offset for employment after
April 6, 1996 (compensation minus expenses).
Sean Kilbane
Sean Kilbane's loss of wages from Perry are
offset by income of $24,176.64 up to February 27, 1996.
Kilbane's damages from loss of pay are:
plus any wages he would have earned from Centerior after April 6,
1996 but for the ban, minus any offset for employment after
April 6, 1996 (compensation minus expenses).
Sean McCafferty
Sean McCafferty's loss of wages from Perry
are offset by income of $6,552.00 up to February 27, 1996.
cCafferty's damages from loss of pay are:
plus any wages he would have earned from Centerior after April 6,
1996 but for the ban, minus any offset for employment after
April 6, 1996 (compensation minus expenses).
INTEREST
Interest is assessed on back wages in order
to make whole the employees who have suffered an economic loss as
a result of an employer's illegal discrimination. Interest is
calculated in accordance with 29 C.F.R. § 20.58(a), at the
rate specified in the Internal Revenue Code, 26 U.S.C. §
6621. Blackburn v. Metric Constructors, Inc., 86-ERA-4,
Secretary of Labor, October 30, 1991.
ATTORNEY FEES
Attorney Fees under the ERA in cases where
the Administrative Law Judge issues a recommended decision on the
merits finding that the respondent violated an employee
protection provision are awarded to the complainant from the
respondent as fees reasonably incurred. In calculating attorney
fees under the statute, the Secretary employs the lodestar
method, which requires multiplying the number of hours reasonably
expended in pursuing the litigation by a reasonable hourly rate.
See § 5851 (b)(2)(A) and (B); Gaballa v. The Atlantic
Group, 94-ERA-9, Secretary of Labor Interim Order, December
7, 1995; Tinsley v. 179 South Street Venture, 89-CAA-3,
Secretary of Labor Order of Remand, August, 1989.
IT IS HEREBY RECOMMENDED THAT Respondent,
Centerior Energy, be ordered to:
1. Remove denial of access flag from all
records of the complainants.
2. Reinstate complainants, Owen McCafferty,
Dennis Maloney, Sean Kilbane, Terry McLaughlin, Sean McCafferty
and Robert Prohaska, in accord with the directives under
Reassignment, at pages 15 and 16, herein.
3. Pay to the complainants, Owen McCafferty,
Dennis Maloney, Sean Kilbane, Terry McLaughlin, Sean McCafferty
and Robert Prohaska, back pay in accord with the directives under
Back Pay, at pages 16 through 20, herein.
4. Pay to the complainants, Owen McCafferty,
Dennis Maloney, Sean Kilbane, Terry McLaughlin, Sean McCafferty
and Robert Prohaska, interest on back pay from the date the
payments were due as wages until the actual date of payment. The
rate of interest is payable at the rate established by section
6621 of the Internal Revenue Code, 26 U.S.C. § 6621; and
5. Pay to complainants, Owen McCafferty,
Dennis Maloney, Sean Kilbane, Terry McLaughlin, Sean McCafferty
and Robert Prohaska, all costs and expenses, including attorney
fees, reasonably incurred by them in connection with this
proceeding. Thirty days is hereby allowed to complainants'
counsel for submission of an application of attorney fees. A
service sheet showing that service has been made upon the
respondent and complainants must accompany the application.
Respondent has ten days following receipt of such application
within which to file any objections.
TMB:mr
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, 200 Constitution Avenue, NW, Washington, DC 20210.
The Administrative Review Board was delegated jurisdiction by
Secretary Order dated April 17, 1996 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
(1996).
1 The employee
provisions of the ERA were originally located at § 210 of
the ERA but when the ERA was amended in 1992, the employee
protection provision were redesignated as § 211.
2 Centerior's
post-hearing brief p. 20.
3 Centerior's
post-hearing brief, p. 26.
4 Maloney
testified that he was available for work at all times from
October 16, 1995 until the hearing. He was not on vacation or
ill. (Tr. 88)
[Page 3]
[Page 4]
[Page 5]
[Page 6]
[Page 7]
[Page 8]
[Page 9]
[Page 10]
S.Rep.No. 848, 95th Cong., 2nd Sess. at 29-30, U.S. Code Cong. &
Admin, News 198, pp. 7303, 7304. (emphasis added)
[Page 11]
[Page 12]
[Page 13]
[Page 14]
[Page 15]
[Page 16]
[Page 3]
[Page 18]
[Page 19]
[Page 20]
$40,703.64
-$16,152.64
+$ 3,150.00
________
$27,701.00
[Page 21]
$38,185.24
-$19,139.84
+$ 3,000.00
________
$22,O45.40
[Page 22]
$38,185.24
-$20,147.20
_________
$18,038.04
$38,185.24
-$13,599.36
_________
$24,585.88
$38,185.24
-$24,176.64
_________
$14,008.60
[Page 23]
$38,185.24
-$ 6,552.00
________
$31,633.24
[Page 24]