DOL Home > OALJ > Whistleblower > Phillips v. Stanley Smith Security, Inc., ARB No. 98-020, ALJ No. 1996-ERA-30 (ARB Jan. 31, 2001) |
Phillips v. Stanley Smith Security, Inc. , ARB No. 98-020, ALJ No. 1996-ERA-30 (ARB Jan. 31, 2001)
U.S. Department of Labor | Administrative Review Board 200 Constitution Avenue, N.W. Washington, D.C. 20210 |
ARB CASE NO. 98-020
ALJ CASE NO. 96-ERA-30
DATE: January 31, 2001
In the Matter of:
ROBERT PHILLIPS,
v.
STANLEY SMITH SECURITY, INC.,
COMPLAINANT,
RESPONDENT.
BEFORE: THE ADMINISTRATIVE REVIEW BOARD
Appearances:
For the Respondent:
For the Complainant:
John T. Burhans, Esq.,
Burhans Law Offices, St. Joseph, Michigan
Miller, Canfield, Paddock and Stone, P.L.C.,
Kalamazoo, Michigan
On October 20, 1995, Complainant, Robert Phillips (Phillips), filed a complaint under the employee protection provision of the Energy Reorganization Act (ERA), as amended, 42 U.S.C. §5851 (1994), and implementing regulations at 29 C.F.R. Part 24 (1995) with the Department of Labor's Wage and Hour Division. Phillips alleged that Respondent, Stanley Smith Security, Inc. (Stanley Smith) improperly terminated him from his security guard position for complaining to company personnel and to a local television station about the disarming of security guards at the nuclear power plant where he was employed.1 The Wage and Hour Division determined that Phillips had been retaliated against in contravention of the ERA and ordered relief. Stanley Smith appealed that determination and requested a hearing before a Department of Labor Administrative Law Judge (ALJ). Following a full evidentiary hearing, the ALJ issued a Recommended Decision and Order (RD&O) finding that Phillips had not engaged in activity protected by the ERA and recommending that the complaint be dismissed.
We have jurisdiction to review the ALJ's recommended decision and to issue the final agency order in this case pursuant to 29 C.F.R. §24.8. Our standard of review is de novo. 42 U.S.C.A. §5851(b)(2)(A); 5 U.S.C.A. §557(b) (West 1996).
I. Facts
Stanley Smith is a security firm providing security guard services to the Indiana & Michigan Power Company (I&M) at its D.C. Cook Nuclear Power Plant (Cook Plant) in Bridgman, Michigan. Phillips was employed by Stanley Smith as an armed security guard at the facility from December 6, 1991, until his discharge on May 3, 1995.
Prior to the spring of 1995, all Stanley Smith security officers guarding the Cook Plant were armed. However, on March 15, 1995, Lowell Wilds, Stanley Smith's Director of Nuclear Security, informed security personnel by memorandum that the firm was working with Cook Plant management to establish a new security force configuration. The restructuring plan called for the creation of a team, comprised of skilled tactical response officers (TRO), which would defend the core areas of the plant. On the other hand, guards patrolling the perimeter of the Plant would be unarmed. This approach was advocated within the nuclear industry generally, and the plan for the I&M plant was authorized by and designed in conjunction with the NRC.
The NRC tentatively approved the plan for restructuring the security force on March 31. On April 7, 1995, Stanley Smith Site Manager Al Hemerling held a meeting to inform security personnel of the contemplated restructuring plan. The plant's security officers, including Phillips, were in attendance, as well as Wilds, Stanley Smith Executive Vice-President Randy Dorn, and Walt Hodge, I&M Superintendent for Security at the Cook Plant.
As explained in a memorandum distributed at the April 7 general meeting:
Respondent's Exhibit (RX) 10 at 1, 5.
Phillips testified that at the April 7 meeting he voiced opposition to the reduction in the number of armed guards, citing the danger to the surrounding community if security were breached, but Hemerling did not respond to these concerns. However, Hemerling and Wilds, whose testimony the ALJ specifically found to be credible (RD&O at 17) "denied hearing any complaint regarding the safety of the plan from" Phillips. RD&O at 14. In fact Hemerling and Wilds testified that at the meeting Phillips only expressed concern that a guard's attendance record would be used in determining eligibility for the TRO position. Wilds added that although Phillips had expressed support for the new security program for some time prior to the meeting, Phillips' support wavered when he learned of the attendance criteria "that basically eliminated him [from eligibility for the TRO position] at that point in time."
Phillips also testified that he complained about using unarmed guards at the Plant's outer perimeters to Lieutenant McKamy, who agreed but told Phillips not to discuss the matter with I&M's Walt Hodge.2 Finally, Phillips also testified that he expressed his criticisms of the plan to various unidentified Stanley Smith lieutenants and captains immediately after the meeting and on various occasions thereafter. According to Phillips, the consensus was "that they should not drop their first line of defense . . ." (i.e. a fully-armed cadre of security officers).
According to Phillips, on April 20, 1995, he was contacted by Luke Choate, a relative by marriage and television anchor at WSBT, Channel 22, in South Bend, Indiana, regarding the restructuring plan. After confirming that the plan provided for unarmed guards at the plant's perimeter, Phillips declined Choate's invitation to appear on television to discuss the plan for fear of jeopardizing his job. Instead, he suggested that Greg Peck, local plant guard union president, be contacted for further information. RD&O at 5.
Peck was contacted by Channel 22 reporter Steve Barron and interviewed on the evening of April 24. According to Peck, he merely confirmed information that Barron already had, which included manpower numbers as well as the details of the restructuring plan. The news story about the restructuring plan ran that night and again the next day. In the news clip Peck confirmed that the proposed plan would result in a reduction in the number of armed security guards and expressed his concern that the plan would adversely affect the security of the plant. Id. at 5.
The Channel 22 newscasts also broadcast a copy of an internal I&M e- mail, captioned "Threat Advisory," from Cook Plant Security Chief Hodge to site Vice President Al Blind.3 The reports highlighted a sentence in the e-mail which indicated that the FBI had received information that terrorist groups had made threats toward nuclear facilities in the U.S. The news stories failed to mention that the e-mail actually minimized the likelihood of a terrorist attack at the facility. The e-mail previously had been posted in the security guards' break room at the Cook Plant.
Word of the television news story spread throughout the plant on April 25. Stanley Smith officials immediately suspended Peck on suspicion of disclosing security-related information to unauthorized personnel and launched an investigation into the circumstances of the disclosure.4 Shortly after Peck's suspension, armed guard Theresa Greer told Stanley Smith managers that on the morning of April 25 Phillips had told her that he had called Channel 22 and had spoken to an individual named "Steve" concerning the security restructuring plan, had faxed him a copy of Hodge's e-mail on terrorist threats, and given him Peck's name for further inquiry.5
Phillips made a video recording of the April 24 late evening Channel 22 news broadcast, brought it to the Cook Plant on the morning of April 25, and allowed Stanley Smith managers to copy it. When Hemerling returned the tape to Phillips on the afternoon of April 25 he asked Phillips about his involvement in the Channel 22 report. Phillips acknowledged speaking to his relative, Choate, but indicated nothing further. Hemerling then asked Phillips to prepare a written statement concerning his involvement.
The following morning, Stanley Smith assistant site manager Al White met with Phillips and notified Hemerling that Phillips was refusing to prepare a statement regarding his involvement with the broadcast. Hemerling then interviewed Phillips in the presence of his union representative. When Hemerling reminded Phillips that they had discussed the need for him to prepare a written statement the previous afternoon, Phillips denied having any such conversation with Hemerling. However, after further questioning, Phillips conceded that Hemerling had made such a request. Phillips continued to deny any involvement in the broadcast other than his contact with Choate, specifically denied that he had any conversation with "Steve" from Channel 22, and also denied that he had any contact with any other Channel 22 personnel, either by phone or fax. Although he initially continued to refuse to prepare a written statement, at the end of the meeting he complied. Phillip's written statement merely acknowledged affirmatively answering Choate's inquiry about "unarming security" and stated that he refused to appear on television with the story but suggested Peck instead.
A second meeting was held with Phillips the next day, April 27. Hemerling, Wilds, and union representative Gary Anderson were present. At the meeting Phillips refused to sign a consent form stating that he would cooperate in the investigation of the disclosure of information to Channel 22 and declined to add anything to his written statement of the previous day.
In the meantime, Peck was also interviewed at length about his involvement in disclosing information to Channel 22. In management's view, Peck cooperated with the investigation, readily providing a statement detailing the circumstances under which he had agreed to appear on the news broadcast.
On May 1 Wilds submitted a report of his investigation into the disclosures to Stanley Smith Executive Vice-President Randy Dorn. Wilds concluded that Phillips was the "primary person involved in releasing information and the E-Mail," hypothesizing that Phillips' motive was to scuttle the restructuring plan because he would not be eligible to apply for a higher-paying TRO position. Wilds also stated that Phillips had contradicted himself in his interview with Hemerling. Wilds concluded that Phillips should be terminated because "[h]e violated state law and company/plant policies and has serious trustworthiness failures." RX 19 at 4.6 Dorn concurred with Wilds' recommendation and Phillips was notified of his termination on May 3 at a meeting with Hemerling and Al White, Stanley Smith Assistant Site Manager. Phillips' written termination notice, which he received and signed on that date, indicated that he was being dismissed for violating confidentiality requirements under State law, employee handbook provisions, and company and plant policies for "[o]n or about April 24 through April 26, 1995, removal of notice from bulletin board and dissemination to news media or others." RX 20.
On the other hand, Peck's ten-day suspension was reduced to five days. He was not discharged because management believed that his role as local union president forced him into the public limelight; he had received approval to speak to the media from the union's international president; and, unlike Phillips, Peck had been cooperative and truthful about his involvement.
II. The ALJ's Recommended Decision
The ALJ made several critical credibility determinations in reaching his conclusion that Phillips was not discharged in violation of the ERA whistleblower protection provision. First, the ALJ found Phillips to be a "less than credible witness, whose testimony was often contradictory and evasive." RD&O at 12. The ALJ continued:
RD&O at 12. Second, the ALJ explicitly found that Hemerling and Wilds, who were involved in the events leading up to -- and who recommended -- Phillips' termination, were credible witnesses. RD&O at 17.
These credibility determinations provided the foundation for the ALJ's ultimate findings that: 1) Phillips had not registered safety complaints about the restructuring to Stanley Smith managers, but instead had expressed his concern that Stanley Smith intended to take attendance records into account in selecting officers for the TRO positions; 2) Phillips contacted Channel 22, gave the station information regarding the restructuring, and sent a copy of the "Threat Alert" e-mail to Channel 22 by fax; 3) Stanley Smith managers believed that Phillips had turned over information regarding the restructuring as well as the e- mail to Channel 22; and 4) Stanley Smith managers became convinced that Phillips had repeatedly lied to them about his contacts with Channel 22.7 However, the ALJ limited his conclusion to the issue of protected activity: "Based on the foregoing, I find that the Complainant has failed to establish that he engaged in protected activity. As this is a prima facie element of any whistleblower claim, the complaint must be dismissed." RD&O at 18.
In order to prevail in an ERA whistleblower case such as the one before us, the complainant must prove by a preponderance of the evidence that he engaged in protected conduct, and that the employer took some adverse action against him because of that protected conduct. Carroll v. Bechtel Power Corp., Case No. 91-ERA-46, Sec. Fin. Dec. and Ord., February 15, 1995, slip op. at 11, n.9, aff'd Carroll v. Dept. of Labor, 78 F.3d 352 (8th Cir. 1996). We first discuss Phillips' claims of protected activity and then the question whether Stanley Smith retaliated against him in violation of the ERA.
A. Protected Activity
Phillips argues two bases for a finding of protected activity, internal complaints and media contact. We address each of these allegations in turn.
1. Internal Complaints. Phillips contends that he made internal complaints at the April 7 restructuring plan meeting and thereafter with regard to the safety consequences of the plan. We conclude that Phillips did not make nuclear safety-related complaints about the restructuring plan at the April 7 meeting, and that even if he expressed such concerns to fellow officers and to low level supervisors thereafter, none of the Stanley Smith supervisors who were involved in his termination were aware of such complaints.
Phillips testified that he raised nuclear safety-related objections to the
restructuring plan at the April 7 meeting and afterward.8 Both Hemerling who conducted the meeting and Wilds who was in
attendance testified that Phillips only objected to the use of attendance records as an eligibility
criterion for the TRO positions. As the ALJ found:
RD&O at 17. Moreover, both Hemerling and Wilds testified "that they received no
safety complaints from the Complainant subsequent to this meeting nor were they made aware
of any such complaint by any other person." Id. The ALJ explicitly credited the
testimony of Hemerling and Wilds on both points, and concluded that "neither Mr.
Hemerling nor Mr. Wilds knew of the Complainant's safety concerns when the decision to
terminate him was made." Id.
Although we review ALJ decisions under the ERA de novo, in
conformity with the federal courts, we accord special weight to an ALJ's demeanor-based
credibility determinations. See, KP&L Electrical Contractors, Inc., ARB Case No. 99-
039, ALJ Case No. 96-DBA-34, ARB Fin. Dec. and Ord., May 31, 2000, at 4 n.2; NLRB v.
Cutting, Inc., 701 F.2d 659, 667 (7th Cir. 1983) (contrasting exceptional weight accorded
to ALJ credibility findings that rest on demeanor with lesser weight accorded to credibility
findings based on other aspects of testimony, such as internal discrepancies or witness self-
interest). "One must attribute significant weight to an ALJ's findings based on demeanor
because neither the Board nor the reviewing court has the opportunity similarly to observe the
testifying witnesses." Kopack v. NLRB, 668 F.2d 946, 953 (7th Cir. 1982). Here
the ALJ weighed the directly conflicting testimony of Hemerling and Wilds on the one hand and
Phillips on the other, and implicitly found Phillips' version of his participation in the April 7
meeting incredible. We can find nothing in the record that would lead us to overturn that
determination.
We similarly credit the testimony of Hemerling and Wilds that they knew
nothing about any ERA-related complaints Phillips had made to other officers after the meeting.
Therefore, we find that Phillips did not express any nuclear safety-related objections to the
restructuring plan at the April 7 meeting, and that if he did express any such objections to other
officers later, those objections never came to the attention of the Stanley Smith officials who
ultimately terminated his employment.9
Thus, Phillips could not have been terminated for making internal safety-related complaints
about the restructuring plan.
2. Media Contact. Phillips testified that he had only one
extremely limited conversation with anyone at Channel 22 prior to the broadcast of the news
story on April 24. He gave the following version of his telephone conversation with Channel
22 anchorman Choate:
T. at 200-201. Thus, with regard to media contacts, Phillips is evidently contending that Stanley
Smith officials erroneously concluded that he had engaged in protected activity by
giving information to Channel 22 regarding the details of the restructuring plan and turning over
to news personnel a copy of the "Threat Alert" e-mail.10 For purposes of our analysis of this
issue, it is not important whether in fact Phillips gave information and the e-mail to Channel
22.11 It is also irrelevant what Phillips'
motive actually might have been for disclosing that information, if such a disclosure was, in fact,
made.12 We also need not decide
whether Phillips' asserted belief that the restructuring plan would make the Cook Plant
vulnerable to attack was reasonable.13
What is of decisive importance is Respondent's motivation for taking action against
Phillips. As the Dissent accurately points out, "[t]he evidence must support a finding that
retaliatory motive animated the adverse employment action taken." Dissenting Opinion
at 17.
Stanley Smith officials represent that they terminated Phillips because they
believed that: 1) Phillips disclosed security information about the nuclear power plant to
unauthorized personnel at Channel 22; 2) Phillips did so not because he was concerned
about the safety of the facility, but because he would not be eligible to apply for a TRO position
and would therefore be downgraded to an unarmed guard; and 3) Phillips obstructed their
investigation into the disclosure and flatly lied about his activities. We find compelling Stanley
Smith's evidence in support of their rationale for terminating Phillips.
First, it makes sense to us that Stanley Smith officials believed that Phillips
had turned over security information to Channel 22. Although Phillips denied it to Stanley Smith
officials, on April 26 officer Greer gave Stanley Smith officials a detailed account of the
conversation she had with Phillips on April 25 in which he bragged about contacting the Channel
22 reporter, giving him information regarding the restructuring plan, and sending the
"Threat Alert" e-mail to the station. As the ALJ himself concluded, "the finger
of suspicion points only to" Phillips. RD&O at 12.
Second, the Stanley Smith officials who made the recommendation to
terminate Phillips Hemerling and Wilds -- had no reason to think that Phillips would have
turned security information over to Channel 22 out of a concern that the restructuring plan would
endanger the Cook Plant should it go into effect. This is so because, as the ALJ and we have
found, they had never heard Phillips make a safety-related complaint about the plan. In fact,
Phillips was in favor of the plan until he learned that he would not be eligible for the armed TRO
position, and the eligibility criterion was the only aspect of the plan to which they had heard him
object. Thus, Stanley Smith officials did not believe that Phillips had engaged in a protected
ERA- or Atomic Energy Act-related disclosure, and believed that Phillips had taken security
information to the media out of a purely personal desire to derail the plan.
Third, Hemerling and Wilds had every reason to think that Phillips had
lied to them about his involvement and had, in Hemerling's words, "serious trustworthiness
failures." RX 19 at 529. They had Greer's statement, and had no reason to disbelieve her
account of her conversation with Phillips. Additionally, Phillips contradicted himself, and
engaged in obvious falsehoods during the investigation. For example, although on the afternoon
of April 25 Hemerling asked Phillips to write a statement regarding his involvement, on the
morning of April 26 Phillips flatly denied that he had even had such a conversation. When
confronted about this falsehood, Phillips reversed course and agreed that the conversation had
taken place. Finally, Phillips even refused to sign a form stating that he would cooperate with
Stanley Smith's investigation. Thus, Stanley Smith officials had ample reason to believe that
Phillips was lying to them and obstructing their investigation into what they considered to be a
serious breach of security.
On this point we think it is significant that Phillips continued his attempts
at deception even before the ALJ. Thus, he testified that the conversation with Greer never
happened, although he was at a loss to attribute a motive for Greer's asserted false testimony.
In the face of credible contrary testimony, Phillips also flatly denied that he had any conversation
with officer Bennett about copying an e-mail from the bulletin board. The ALJ concluded, based
upon the evidence and his own evaluation of the demeanor of the witnesses, that Phillips was
"a less than credible witness whose testimony was often contradictory and evasive."
RD&O at 12. We agree wholeheartedly. There is every indication that Phillips made false
statements under oath about his involvement in the disclosure.14 Under these circumstances we confess
that we are not surprised that Stanley Smith officials believed that they were dealing with a
security guard who would disclose security information about their facility and then lie about it.
Finally, we wish to emphasize that we agree with much of what Member
Brown says in his Dissenting Opinion:
Employee whistleblowing contact with the media may
be protected (Id. at 20);
In order for safety concerns to be protected, they must
be grounded in conditions constituting reasonably
perceived violations of the ERA and/or the Atomic Energy
Act (Id. at 21); and
NRC's approval of the restructuring plan did not render
concerns expressed about it unreasonable (Id. at
22-23). However, as the ALJ correctly found, this case is not about Phillips' "raising security-
related concerns," or raising concerns constituting reasonably perceived violations of the
ERA; it is not about Phillips engaging in protected contacts with the news media. At bottom,
the Dissenting Opinion stands for a proposition which we find to be wholly untenable: that a
security officer at a nuclear power plant may, with complete abandon, disclose to the news media
security-related information "related to manpower and weapons," then lie about
those disclosures and obstruct the subsequent investigation into the disclosures, and find
sanctuary in the ERA whistleblower provision.
We conclude that Stanley Smith officials terminated Phillips' employment
not because they believed that he had engaged in activity protected by the ERA, but because they
believed that he had turned over security information to an unauthorized person to further his
own personal interests, and then lied about it. Therefore, we conclude that Stanley Smith did not
terminate Phillips for retaliatory reasons. Accordingly, we DISMISS the complaint.
SO ORDERED.
PAUL
GREENBERG
CYNTHIA L.
ATTWOOD
E. Cooper Brown, Member, dissenting:
Respondent Stanley Smith Security cited the basis for its termination
decision as being Complainant Phillips' participation in the disclosure of security-related
information to members of the media in violation of company policy, which Respondent viewed
as motivated out of a desire on Phillips' part to derail the security guard reorganization;
aggravated by Phillips' refusal to cooperate in Respondent's subsequent investigation.
See R. D. & O. at 7, 9.
I am of the opinion that Phillips' disclosures to the media were protected
activity under the Energy Reorganization Act, which cannot be discounted due to either his
personal motive in releasing the information or his refusal to cooperate in Respondent's internal
investigation. Moreover, I am of the opinion that Respondent terminated Phillips' employment
in violation of the ERA whistleblower protection provisions. Thus, I dissent from the majority's
opinion in this case.
As the majority points out, there exists considerable disagreement between
the parties about Phillips' involvement in the media coverage of the new security force
configuration that was, at the time, being put into place at the Cook Nuclear Power Plant.
However, for purposes of determining whether Respondent retaliated against Phillips for having
engaged in activities protected under the ERA, this dispute is largely irrelevant.
Whether or not Complainant actually engaged in the activity Respondent
perceived him to have engaged in is immaterial. The focus is necessarily on the employer's
perception of the employee's activity and whether the employer was motivated by its belief that
the employee had engaged in protected activity. Willy v. Coastal Corp., 85-CAA-1,
Sec'y D&O (June 1, 1994), slip op. at 6, 13-14; Smith v. ESICORP, Inc., 93-ERA-16,
Sec'y Dec. & Ord. of Remand (March 13, 1996). This is because it is the employer's motivation
or intention with regard to the adverse employment action it has taken that is key to establishing
a causal connection. The evidence must support a finding that retaliatory motive animated the
adverse employment action taken. Reich v. Hoy Shoe Co., 32 F.3d 361, 367-368 (8th
Cir. 1994) (construing the Occupational Safety and Health Act's (OSHA) anti-retaliation
provision, 29 U.S.C. §660(c), to protect employees from adverse employment actions
because they are suspected of having engaged in protected activity). Cf.
Brock v. Richardson, 812 F.2d 121, 123-125 (3d Cir. 1987) (holding that the analogous
employee protection provision of the Fair Labor Standards Act, 29 U.S.C. §215(a)(3), is
not rendered inapplicable if the employer's belief that the employee engaged in protected
activity proves false).15
In the instant case it was clearly Respondent's perception, based on the
information Respondent had before it at the time of its termination decision, that Phillips had
played a principal role (if not the principal role) in the disclosure of security-related
information to members of the media in violation of company policy.16 As the questioning of Respondent's
principal officials involved in the decision to terminate Phillips makes clear, the decision to
terminate Phillips was in reaction to the news stories that appeared on television and in the local
papers critical of the impending security guard restructuring and partial disarming. Based on the
information gathered as a result of an internal investigation, Respondent (Mssrs. Hemerling and
Wilds in particular) concluded that Phillips had played an instrumental role in the news stories.
Respondent's investigation revealed that, in addition to faxing the e-mail "Threat
Advisory" to the television station (see majority opinion, supra at 4 n.3),
Phillips instigated the initial media interest in the guard restructuring, provided background
information (including information related to manpower and weapons), and arranged the TV
interview of others for additional information. See Transcript (T) at 257, 276-277, 281-
282, 287, 322, 369, 382, 385, 387. See also RX 12, Greer's statement of April 26,
1995;17 RX 19, Wilds' memo to Randy
Dorn, May 1, 1995, regarding results of Respondent's investigation; RX 16, Wilds' memo to
Respondent's employees, April 27, 1995; and RX 20, the "Employee Disciplinary
Report" regarding Phillips, issued at the time of his termination.
Respondent's perception of Phillips' activities was clearly a contributing
factor in the decision to terminate his employment. When the two principal Smith Security
officials involved in recommending Phillips' termination (Mssrs. Hemerling and Wilds) were
asked at hearing why Phillips was terminated, they indicated without hesitation that it was due
to his participation in the communication and release of what was considered "security
related" information to the media. See T. at 276-277, 281-282, 369, 385.18
By the express language of the ERA whistleblower protection provision,
42 U.S.C. §5851(a), an employee is protected against discharge or discrimination by his
employer for, inter alia, engaging in any action in furtherance of the purposes not only
of the ERA, but of the Atomic Energy Act of 1954, 42 U.S.C. §2011 et seq., as
well. This is clearly recognized in the legislative history accompanying the 1978 amendments
to the ERA that placed into law the whistleblower protection provision. "Under this
section, employees and union officials could help assure that employers do not violate
requirements of the Atomic Energy Act." Senate Rep. No. 95-848, 95th Cong., 2nd Sess.
(May 15, 1978), 1978 U.S.C.C.A.N. 7303- 7304.
The fact that the scope of the ERA's whistleblower protection goes beyond
the ERA to include the purposes of the Atomic Energy Act has been repeatedly recognized by
this Board and the Secretary of Labor before us. Numerous decisions have recognized the
raising of security-related concerns at various nuclear facilities as protected activity under the
ERA. See, e.g., Miller v. T.V.A., ALJ Case No. 97-ERA-2, ARB Case No. 98-
006, slip op. at 5 (Sept. 29, 1998) (expression of security concerns regarding proposed
implementation and installation of new security system considered protected activity because it
"affected nuclear safety matters"), aff'd sub nom. Miller v. Department of
Labor, 191 F.3d 452 (6th Cir. 1999) (table); Larry v. Detroit Edison Co., 86-ERA-
32, Sec'y D. & O. (June 28, 1991) (raising of security concerns related to the processing of
confidential "safeguards" information), aff'd sub nom. Detroit Edison Co. v.
Secretary of Labor, 960 F.2d 149 (6th Cir. 1992) (table); Yule v. Burns International
Security Service, 93-ERA-12, Sec'y Final D. & O., slip op. at 3, n.6 (May 24, 1995)
(complaint to supervisor regarding posting of unarmed security guard at nuclear plant);
Creekmore v. ABB Power Systems Energy Services, Inc., 93-ERA-24, Dep. Sec'y D. &
O. of Rem. (Feb. 14, 1996) (raising concerns regarding security violations); Boytin v.
Pennsylvania Power & Light Co., 94-ERA-32, Sec'y D. & O. of Rem. (Oct. 20, 1995)
(reporting security violations to NRC and subsequent participation in NRC investigation).
The ERA's employee protection provision proscribes discharging or
discriminating against an employee because he has, inter alia, "assisted or
participated or is about to assist or participate . . . in any . . . action to carry out the purposes of
this chapter or the Atomic Energy Act of 1954, as amended." 42 U.S.C.
§5851(a)(1)(F). This provision, it has been recognized, was drafted broadly by Congress.
Stone & Webster Engineering Corp. v. Herman, 115 F.3d 1568, 1575 (11th Cir. 1997).
Accordingly, protection is not limited to an employee's internal complaint or participation in a
formal "proceeding" under 42 U.S.C. §5851(a)(1), but has been held to also
include employee contact with the media. See, e.g., Dobreuenaski v. Associated
Universities, Inc., ALJ Case No. 96-ERA-44, ARB Case No. 97-125, slip op. at 9 (June 18,
1998); Rudd v. Westinghouse Hanford Co., ALJ Case No. 88-ERA-33, ARB Case No.
96-087, slip op. at 3-4 (Nov. 10, 1997); Trimmer v. L.A.N.L., ALJ Case Nos. 93-CAA-9
& 93-ERA-55, ARB Case No. 96-072, slip op. at 2-3 (May 8, 1997), aff'd sub nom. Trimmer
v. U.S. Dept. of Labor, 174 F.3d 1098 (10th Cir. 1999); Carter v. Electrical District No.
2, 92-TSC-11, Sec'y D. & O. of Rem., slip op. at 12 (July 26, 1995); Floyd v. Arizona
Public Service Co., 90-ERA-39, Sec'y D. & O. (Sept. 23, 1994). See also,
Dias-Robainas v. Florida Power & Light Co., 92-ERA-10, Sec'y D. & O. of Rem. (Jan.
19, 1996) (employee's mere threat to take safety concerns to media considered protected).
Cf. Crosby v. Hughes Aircraft Co., 85-TSC-2, Sec'y D. & O., slip op. at 23, n.15 (Aug.
17, 1993) (contacting news media not protected under analogous whistleblower provisions of
TSCA only because the subject matter raised with media was not an environmental concern).
Providing the media with information concerning perceived violations of
the environmental whistleblower laws has been held to constitute protected activity because it
is recognized as "tantamount to preliminary steps in a 'proceeding'" under such Acts
"which could expose employer wrongdoing." Pooler v. Snohomish County
Airport, 87-TSC-1, Sec'y D. & O., slip op. at 3 (Feb. 14, 1994). As the Secretary of Labor
has explained, the whistleblower protection provisions are intended not only to protect an
employee's commencement or participation in proceedings governed by the whistleblower laws,
but also to "protect preliminary steps to commencing or participating in a proceeding,
when those steps 'could result in exposure of employer wrongdoing.'" Helmstetter v.
Pacific Gas & Electric, 91-TSC-1, Sec'y D. & O., slip op. at 3 (Jan. 13, 1993) (citing
Poulos v. Ambassador Fuel Oil Co., 86-CAA-1, Sec'y D. & O. of Rem., slip op. at 3-4
(April 27, 1987)). Accord Donovan v. Andersen Construction Co., 552 F. Supp. 249,
251-253 (D. Kan. 1982) (employee communication to the media protected under analogous
provisions of OSHA, 42 U.S.C. §660(c), because it could result in institution of agency
proceeding under Act).
Respondent's perception that Complainant disclosed the security-related
information out of a desire to derail the security guard reorganization for purely personal reasons
is irrelevant to the question of whether Complainant engaged in protected activity.
"[W]here the complainant has a reasonable belief that the respondent is violating the law,
other motives he may have for engaging in protected activity are irrelevant." Diaz-
Robainas v. Florida Power & Light Co., supra, slip op. at 15. Accord,
Carter v. Electrical District No. 2, supra, slip op. at 10-11; Oliver v.
Hydro-Vac Services, 91-SWD-01, Sec'y Dec., slip op. at 14 (Nov. 1, 1995).
To be protected, Phillips' security concerns must be grounded in conditions
constituting reasonably perceived violations of the ERA and/or the Atomic Energy Act.
Jones v. EG & G Defense Materials, Inc., ALJ Case No. 95-CAA-3, ARB Case No. 97-
129, slip op. at 10-12 (Sept. 29, 1998), appeal pending sub nom. EG & G Defense
aterials, Inc. v. U.S. Dept. of Labor, No. 99-9501 (10th Cir.); Tyndall v. U.S.
Environmental Protection Agency, 93-CAA-6 & 95-CAA-5, ARB Dec. & Rem. Ord., slip
op. at 5-6 (June 14, 1996); Crosby v. Hughes Aircraft Co., 85-TSC-2, Sec'y Dec. &
Ord., slip op. at 26 (Aug. 17, 1993), aff'd sub nom. Crosby v. U.S. Dept. of Labor, 53
F.3d 338 (9th Cir. 1995) (table); Johnson v. Old Dominion Security, 86-CAA-3, Sec'y
Fin. Dec. & Ord., slip op. at 15 (May 29, 1991). Mere belief that plant security may be
negatively impacted by the employer's conduct is not by itself sufficient to establish
protected activity. Johnson v. Oak Ridge Operations Office, U.S. Dept. of Energy, ALJ
Case Nos. 95-CAA-20, -21and -22, ARB Case No. 97-057, slip op. at 10 (Sept. 30, 1999);
Minard v. Nerco Delamar Co., 92-SWD-1, Sec'y Dec. & Rem. Ord., slip op. at 4, 8 (Jan.
25, 1995).
Phillips' security concerns were protected under the ERA because they
were based on his reasonable belief that Respondent had violated, or was in the process of
violating security requirements applicable to the Cook Nuclear Facility. He had a rational basis
for his concern regarding the adequacy of the new plant security format notwithstanding its NRC
approval. Complainant's perception was predicated on his contemporaneous belief that NRC
approval had been obtained fraudulently based on information suggesting that the tests and
exercises relied upon to support the new security format had been intentionally contrived. As
Phillips testified at the hearing before the ALJ:
T. at 151-153.
Phillips was not alone in his perception that NRC approval was based on
sham security drills. Mr. Peck, the union local president, testified that he had voiced his
concerns to fellow guards, including Phillips, prior to the announcement of the guard
restructuring. T. 61-64, 68.19
Nor do I consider the NRC's "approval" of the guard
restructuring to remove Phillips' subsequent dealings with Channel 22 from ERA protection.
Nuclear safety is enhanced by encouraging employees to assert their concerns, regardless of prior
NRC approval. Protection of their concerns is not dependent upon proof of actual ERA
violations. Rather, as indicated above, protection is accorded to reasonably perceived violations,
regardless of their full merit. Employees would be discouraged from lodging meritorious
complaints if their complaints were unprotected merely because the subject of the complaint had
previously received NRC approval or acquiescence. Recent events fully attest to the fact that
such approval does not automatically mean that the agency acted correctly or irrevocably or that
it could not require subsequent modification based upon further agency review.20
In the instant case, however, there can be no claim that Complainant's
concerns were not reasonable based on agency approval of the actions in question, for at the time
Phillips presented his concerns to the media the NRC was continuing to examine the security
guard restructuring. RX 28, Nov. 3, 1995 I & M memo from J. F. Labis regarding Oct. 30 - Nov.
3, 1995 NRC inspection.21
Finally, Respondent cited Phillips' refusal to cooperate with Respondent's
internal investigation (including lying at the time to Respondent's officials), upon which
Respondent concluded that Complainant was untrustworthy, as an aggravating factor leading to
its decision to terminate Phillips. Phillips' conduct must, however, be evaluated within the
whistleblower context in which it arose. Carter v. Electrical District No. 2,
supra, slip op. at 11-12; Kenneway v. Matlack, 88-STA-20, Sec'y Final Dec.
& Ord., slip op. at 5-6 (June 15, 1989).
Within the instant context of Complainant's whistleblowing activities, it
was not unreasonable for Complainant to refuse to cooperate in Respondent's internal
investigation. For reasons of self-preservation it is certainly understandable that an employee,
such as Phillips, might be less than candid during management's efforts to assess blame for his
protected activity. He should not be forced to put himself at immediate risk of adverse action
for failing to divulge his role in such activity. To hold otherwise would discourage potential
whistleblowers, contrary to public policy. "The ability of nuclear industry employees to
come forward to either their employers or to regulators with safety concerns without fear of
harassment or retaliation is a key component of our system of assuring adequate protection of
public health and safety from the inherent risks of nuclear power." H. Rep. No. 102-
474(VIII) at 79 (1992), reprinted in 1992 U.S.C.C.A.N. 2282, 2297.
Under the ERA, the relevant question, which I would decide in
Complainant's favor, is whether he established that his protected activity was a contributing
factor in Respondent's decision to terminate his employment. 42 U.S.C.
§5251(b)(3)(C). Clearly, based upon the preponderance of the evidence of record, it was.
But of course, under the ERA this is not the end of the analysis. If Respondent Smith Security
was to demonstrate "by clear and convincing evidence that it would have taken the same
unfavorable personnel action in the absence of such behavior," Respondent still would not
be liable. 42 U.S.C. §5851(b)(3)(D). Creekmore v. ABB Power Systems Energy
Services, supra, slip op. at 5. "For employers, this is a tough standard, and
not by accident." Stone & Webster Engineering Corp. v. Herman, 115 F.3d at
1572 (citing ERA 1992 legislative history).
As noted previously, the only additional basis cited by Respondent for
Complainant's discharge is his failure and refusal to cooperate, and be "forthcoming and
honest," in Respondent's internal investigation of the television reports. However, given
the context, this cannot serve as an independent basis for Phillips' termination. Phillips had the
right under the ERA to anonymous and unfettered communication of his concerns regarding the
security of the guard restructuring plan, which communication under the facts he reasonably
believed was in furtherance of the purposes underlying the ERA. Respondent cannot lawfully
assert an employment-related obligation on Phillips' part for full disclosure of his role in
derogation of this federal right. Therefore, Phillips' reticence and apparent deceptiveness during
the company's investigation of the news leaks cannot furnish an independent, nondiscriminatory
basis for his dismissal. See Stone & Webster Engineering Corp. v. Herman, 115
F.3d at 1573-74; Kahn v. U.S. Secretary of Labor, 64 F.3d 271, 279-81 (7th Cir.
1995).22
For the foregoing reasons, I would thus hold that Respondent Stanley
Smith Security terminated Complainant Phillips' employment in violation of the whistleblower
protection provision of the ERA.
E. COOPER BROWN
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