DOL Home > OALJ > Whistleblower > Abraham v. Lawnwood Regional Medical Center, 96-ERA-13 (ALJ Dec. 13, 1996) |
DATE: December 13, 1996
CASE NO: 96-ERA-0013
THOMAS ABRAHAM,
Complainant,
v.
LAWNWOOD REGIONAL MEDICAL CENTER,
Respondent
Appearances:
Thomas Abraham, pro se
For Complainant
Sarah Galvarro, Esq.
For Respondent
Before: RALPH A. ROMANO
Administrative Law Judge
On November 14, 1995, Complainant filed a complaint (ALJ 1)1 pursuant to 29 C.F.R. §24.3, as amended, alleging that Respondent violated the provisions of the Energy Reorganization Act of 1974, 42 U.S.C. Section 5851(a), as amended, (hereinafter the "Act").
By letter dated March 15, 1996, the United States Department of Labor informed Complainant that its investigation of his complaint disclosed insufficient evidence to support the alleged violation (ALJ 2).
By facsimile transmission dated March 19, 1996 (ALJ 3 & 4), Complainant requested a hearing pursuant to 29 C.F.R. §24.4(d)(2)(1), as amended. The matter was assigned to me on April 2, 1996.
A hearing was held in Port St. Lucie, Florida
on October 7 and 8, 1996.2 Briefs were filed on November 21, 1996.
42 U.S.C. 5851(a), as amended H.R. 776
Comprehensive National Energy Policy Act, effective October 24,
1992, reads as follows:
Under this statute's predecessor, it has been
held that it must be proven by Complainant, Texas Dept. of
Community Affairs v. Burdine 450 U.S. 248 (1981): (1) that
the party charged with discrimination is an employer subject to
the Act: (2) that the complaining employee was discharged or
otherwise discriminated against with respect to his compensation,
terms, conditions or privileges of employment; and (3) that the
alleged discrimination arose because the employee commenced or
was about to commence, testified or was about to testify,
assisted, participated, or was about to assist or participate in
any proceeding, or in any other action to carry out the purposes
of 42 U.S.C. §5851 (Energy Reorganization Act) or 42 U.S.C.
§2011 (Atomic Energy Act). See, DeFord v. Secretary of
Labor, 700 F.2d 281, 286 (6th Cir. 1983).
As to element (3) above, that is, employee
conduct constituting activity protected under the Act, the
Secretary of Labor has made it clear that the reporting of safety
and quality concerns internally to an employer is protected
activity.3
Where a complainant shows:
1. Whether Complainant engaged in activity
protected under the Act, and whether Respondent was aware of
same.
2. Whether Complainant was terminated as a
result of such protected activity.
Complainant, hired by Respondent in February,
1995 as a technologist in its Nuclear Medicine Department,
maintains that throughout his tenure5 , he regularly
expressed his concerns to various of Respondent's officials6 about shoddy, careless,
disorganized procedures and practices impacting the operation of
that department and its personnel. He argues that although his
work performance was certainly satisfactory, Respondent fired him
because of these expressions of concern, and not because of his
behavior during an incident occurring on August 9, 1995
(involving Ms. Rhoda Hammer), Respondent's proffered reason for
firing him.
Respondent insists that Complaintant never
expressed the kinds of concerns protected under the Act to any of
its officials involved in the decision to fire him. Moreover,
Complainant was fired, per Respondent, solely because of his
threatening and abusive behavior toward Ms. Hammer, another of
its employees, on August 9, 1995.
1. Protected Activity
I find, first, that this record contains
sufficient evidence to establish that Complainant engaged in
protected activity, known to Respondent, and that Complainant's
termination occurred in sufficiently close temporal proximity to
such protected activity so as to raise the inference of
retaliatory discharge. Thus, Complainant has established a
prima facie case of discrimination under the Act.
Couty, supra.
As early as April, 1995, Complainant
expressed "quality improvement" concerns during a job
performance appraisal evaluation (CX 2-3; Tr. 70-73; 75), and
also had discussions about "quality management" with
his superior, Mr. Stouffer (Tr. 398-403).7 In July, 1995,
Complainant authored a memorandum concerning safety matters (CX
13). Complainant raised safety concerns with several physicians
on Respondent's staff (Tr. 359-360). Moreover, I find that
Complainant was officially terminated on August 15, 1996 upon his
direct supervisor's (Robert Stouffer) ratification or upholding
of Mr. Riley's (personnel) earlier (8/9/95) preliminary decision
to fire him (Tr. 454-457; 432, 443). Thus, Complainant's report
to the State of Florida authorities on August 11, 1996,8 qualifies as a
protected activity under the Act.
Ms. Bruggink, Complainant's acting
supervisor, was told by Complainant, on August 10, 1995, that he
would notify the State authorities (a protected activity) and was
given a copy of his memorandum concerning the subject August 9,
1995 incident (CX 10; Tr. 185-189). As Ms. Bruggink was acting
as an agent of Respondent, as was Mr. Stouffer and the
physician's on Respondent's staff as above mentioned, awareness
of Complainant's protected activities is thus imputed to
Respondent.
The temporal proximity of Complainant's
statement (on 8/10/95) that he was going to telephone the State
authorities, to his termination on August 15, 1995, certainly
justifies raising the inference of retaliatory discharge,
Couty supra.
2. Reason for Discharge.
The factual circumstances surrounding the
seminal incident which occurred on August 9, 1995 between
Complainant and Ms. Rhoda Hammer, Respondent's Assistant Director
of Cardiology, are, in all relevant respects, found to have
occurred as contained in Ms. Hammer's memorandum of the incident,
written contemporaneously therewith (RX 1).
Ms. Hammer, having been tasked by a physician
(Dr. Shadani) to investigate a breakdown in communication between
himself and the Nuclear Medicine Department (and to design a
policy to avoid such breakdowns in the future), together with a
r. Steve Burgin, visited Complainant at his work area. After an
exchange of words with Complainant, during which time Complainant
was apparently simultaneously trying to eat his lunch and attend
to the busy flow of patients, Ms. Hammer perceived what she
considered to be a developing and potential breach of
confidentiality by certain statements being made by Complainant
in the presence of a patient. She attempted to alert Complainant
to this potential when Complainant, apparently in a raised voice
and with arm gestures and finger pointing of exasperation toward
s. Hammer, expressed his displeasure with what he considered to
be an untimely visit interrupting his busy schedule of
administering tests to patients. In no uncertain terms,
Complainant eventually told Ms. Hammer to leave. Mr. Burgin
confirms, in these pertinent parts, this rendition of what
transpired (CX 19), as does another eyewitness, Ms. Melony Henry,
the receptionist at Complainant's work situs (Tr. 242; 251-2;
262; CX 14). Indeed, Complainant confirms his state of utter
frustration at the time of the incident (Tr. 335-9; CX 10).
What is most important, is that I must credit
s. Hammer's perception of fear and physical threat by
Complainant's conduct during the subject 10-15 minute incident.
There is no evidence in this record to support the proposition
that Ms. Hammer created or otherwise fabricated her
perception. Moreover, there is some evidence buttressing
her acute reaction to Complainant's behavior (see CX 14 at 2; CX
19 at 35).
On the basis of my acceptance of the fact of
s. Hammer's perception of fear and threat, together with
management's9
crediting of that perception, I am compelled to find that
Respondent's proffered reason for firing Complainant, i.e.,
Complainant's behavior, as above, is not pretextual. That is to
say, I am compelled to find that Complainant has failed to
establish that his behavior, as noted above, was not the reason
for his termination.
The decisions put forward in Complainant's
brief (at pgg. 2,9) to support his position are distinguishable
from the matter at hand. In both those (dual motive) cases, the
employee established that an illegal motive played some role in
the decisions to terminate. Here, no such evidence has been
adduced. Furthermore, the "victim" in Cotter
was admittedly not threatened by the employee's behavior (as
opposed to Ms. Hammer's situation here), and was the only witness
to the questioned behavior (unlike the corroboration present
here).
Finally, it needs to be emphasized that while
there may exist in this record some evidence that Ms. Hammer
over-reacted to or misperceived Complainant's behavior on August
9, 1995,10 and thus
that Respondent fired Complainant unreasonably, there is
no evidence that Respondent fired Complainant for
"blowing the whistle", the only reason actionable under
the Act. Even if I were to conclude that Respondent made the
wrong decision to terminate a good employee11 , besieged by too
busy a work schedule,12 and altogether dedicated to performing in the best
interests of the patients brought to him, or even if I were to
fully believe that Claimant's behavior on August 9, 1996 was not
threatening in the objective sense and/or that he did not intend
to threaten,13 the
Act does not provide any relief for this type of finding. The
Act is simply not concerned with, nor am I authorized to conduct,
a review of management's decision to fire an employee
unless the termination is shown to have been occasioned by
the employee's reporting of safety hazards, etc.
Based upon the foregoing, I recommend the
complaint be DISMISSED.
RALPH A. ROMANO
Dated: December 13, 1996
NOTICE: This Recommended Decision and Order and the
administrative file in this matter will be forwarded for review
by the Secretary of Labor to the Administrative Review Board,
U. S. Department of Labor, Room S-4309, Frances Perkins
Building, 200 Constitution Avenue. N.W., Washington, DC 20210.
The Office of Administrative Appeals has the responsiblity to
advise and assist the Secretary in the preperation and issuance
of final decisions in employee protection cases adjudicated under
the regulations at 29 C.F.R. Parts 24 and 1978. See 55
Fed. Reg. 13250 (1990).
1 References
herein are as follows: "ALJ" - Administrative Law Judge
Exhibits, "RX" - Respondent Exhibits, "Tr." -
Transcript of trial, "CX" - Claimant's Exhibits.
2 A joint
motion to continue the hearing (ALJ 7), initially set for June 4,
1996 (ALJ 5), was granted (ALJ 8). Respondent's later motion to
further continue the hearing (ALJ 14), was denied (ALJ 16). The
parties have waived all statutory time constraints relative to
decision issuance (ALJ 7).
3 Priest v.
Baldwin Assocs, 84-ERA-30 (6/11/86); Willy v. Coastal
Corp., 85-CAA-1 (5/4/87), adopting the Ninth and Tenth
Circuit rational in Mackowiak v. University Nuclear Systems,
Inc., Case No. 82-ERA-8 (4/29/83), aff'd and remanded,
735 F.2d 1159 (9th Cir. 1984), and Wells v. Kansas Gas and
Electric Co., Case No. 83-ERA-12 (6/14/84), affd' sub nom
Kansas Gas & Electric v. Brock, 780 F.2d 1505 (10th Cir.
1985), cert.denied, 106 S.Ct. 3311 (1986); as against the
decision reached in Brown & Root, Inc., v. Donovan, 747
F.2d 1029 (5th Cir. 1984), absent resolution of this circuit
conflict by the U.S. Supreme Court.
4 Complainant,
while initially represented by counsel, appeared pro
se (ALJ 14 & 15).
5 Complaint was
terminated in August, 1995 see infra.
6 And to State
regulatory authorities.
7 I find no
meaningful distinction between the expression of
"quality" and "safety" concerns vis a vis the
protected activity issue, especially where, as here, nuclear
medicine is being practiced. An "overload" or backup
of patients waiting to be tested by nuclear medicine device, for
example, obviously impacts not only upon management efficiency
concerns, but medical safety concerns as well (see Tr. 34-35; Cf.
Tr. 426; 442).
8 Which report
triggered an official State investigation of Respondent (CX 4).
9 Mr. Riley
(Tr. 451-4), Mr. Stouffer (Tr. 432-4), and Ms. Bruggink (Tr. 205;
208-9).
10 See, for
example, Ms. Henry's sympathy with Complainant's frustration and
manner of communication (Tr. 255).
11
Respondent's stipulated to Complainant's good job performance
(Tr. 224).
12 There is
ample evidence of hectic, stressful work conditions (Tr. 30-47).
s. Hammer's choice of (Complainant's hectic work station)
location in which to discuss Dr. Shadani's problem may indeed be
viewed as altogether inappropriate. Also well-taken, is
Complainant's utter frustration at Ms. Hammer's attempt to
silence him, in the middle of his response, after she first
engaged him in the "brainstorming" of the pending
matter. Noted also is that Ms. Hammer's sense of inpending
breach of "patient confidentiality" by Complainant
appears, more precisely, to have been a concern that the patient
being ministered to by Complainant during her visit might
overhear a discussion about a previously failed test.
13 There is
no evidence that Complainant intended to frighten/threaten, or to
physically harm, Ms. Hammer.
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Administrative Law Judge