DOL Home > OALJ > Whistleblower > Ross v. Florida Power & Light Co., 1996-ERA-36 (ARB Mar. 31, 1999) |
ARB CASE NO. 98-044
ALJ CASE NO. 96-ERA-36
DATE: March 31, 1999
In the Matter of:
ICHAEL L. ROSS
v.
FLORIDA POWER & LIGHT COMPANY,
COMPLAINANT,
RESPONDENT.
BEFORE: THE ADMINISTRATIVE REVIEW BOARD
Appearances:
For the Complainant:
Frank J. McKeown, Jr., Esq., West Palm Beach, Florida
For the Respondent:
James S. Bramnick, Esq., Carmen S. Johnson, Esq., Muller,
intz, Kornreich, Caldwell, Casey, Crosland & Bramnick, P.A., Miami, Florida
This case arises under the employee protection provision of the Energy Reorganization Act of 1974, as amended, 42 U.S.C. §5851 (1994). Complainant Michael L. Ross (Ross) alleged that Respondent Florida Power & Light Company (FP&L) harassed and terminated him in retaliation for refusing to falsify calibration data sheets in the Spring of 1994, and for reporting FP&L's improper calibration techniques to the Nuclear Regulatory Commission (NRC)
in March 1995. On December 3, 1997, the Administrative Law Judge (ALJ) issued a Recommended Decision and Order (R. D. and O.) concluding that Ross did not file his complaint with the Department of Labor's Wage and Hour Division (Wage and Hour) within the 180 day statutory time period under the ERA. The ALJ also held that FP&L proved that it had a legitimate, nondiscriminatory reason for terminating Ross.
Because we conclude that Ross' complaint was timely filed, we reach the merits of the case. After a thorough review of the record we conclude that Ross failed to prove that his suspension and subsequent termination were in retaliation for activity protected by the ERA's employee protection provision. Therefore, we dismiss the case.
In 1989 Ross was hired to occupy an entry-level position in FP&L's Port Everglades Plant. In 1990 he moved to an Associate Nuclear Plant Operator position at FP&L's Turkey Point Nuclear Plant. In 1992 he was awarded a position as an Instrument and Control (I & C) Specialist. Transcript (TR) 51-68. The I & C Specialist position was security-sensitive.
Ross alleged that in the Spring of 1994 he was instructed to falsify
pressure
gauge calibration readings. TR 87, 220-221; R. D. and O. at 5. He also claimed that in 1994 and
the
Spring of 1995 he made complaints to Tom Johnson, Senior Resident Inspector for the Nuclear
Regulatory Commission (NRC), stationed at the Turkey Point facility. During this same period,
Ross
was involved in several incidents which led his supervisors to conclude that Ross should be
suspended
with pay while he underwent a psychological evaluation.1 R. D. and O. at 11-12, 13-15; TR 655-656.
Ross was first informed of his suspension during a September 16, 1995
meeting
with FP&L management. At that meeting Ross was told to contact FP&L's Employee Assistance
Program in order to undergo a psychological evaluation. Ross specifically was informed that his
cooperation in the evaluation process was essential if he was to be allowed to return to work.
Dr. Dennis Johnson, the clinical psychologist who subsequently conducted
the
evaluation of Ross, concluded that, "Mr. Ross is not judged as psychologically suitable for
unescorted access authorization at the current time." RX 20 at 5. Dr. Johnson
recommended
that Ross undergo psychological and psychiatric treatment.
On November 3, 1995, Ross again met with FP&L management and was
given
a memorandum which stated:
Complainant's Exhibit (CX) 3. Ross was also told that he should seek psychological
treatment,
and that, after obtaining treatment he could, within the 45 days, seek conditional unescorted
access
to the facility. R. D. and O. at 20. However, FP&L managers told Ross that they believed his
problems to be deeply rooted, and that he should not expect to obtain access in a short time.
Id.
On December 29, 1995, Ross received a letter terminating his employment,
which stated:
Respondent's Exhibit (RX) 32.
Ross filed his complaint with Wage and Hour on June 21, 1996.
We disagree with the ALJ's conclusion that the statute of limitations began
to
run when Ross' access privileges were suspended on November 3, 1995. However, because we
conclude that Ross was not retaliated against for engaging in activity protected by the ERA's
employee protection provision, we dismiss the complaint. We discuss these issues in turn.
I. Timeliness of Ross' Complaint.
The employee protection provision of the ERA, as amended, contains a
180 day
statutory time limit for the filing of complaints. 42 U.S.C. §5851(b) (1994). It is
undisputed
that Ross filed his ERA complaint with Wage and Hour more than 180 days after he received the
November 3, 1995 letter but less than 180 days after he received the December 29, 1995 letter.
Therefore, the timeliness of Ross' complaint is dependent upon whether the limitations period is
measured from November 3 or December 29. Because we conclude that Ross was not given
sufficient notice of the adverse action being taken against him to start the running of the
limitations
period until the December 29, 1996 letter, we hold that Ross' complaint was timely filed.
The Secretary of Labor has articulated the standard by which to determine
if an
ERA complaint has been timely filed. In McGough v. U.S. Navy, Case Nos.
86-ERA-18, 19,
and 20, Sec. Dec. June 30, 1988, the Secretary held that the ERA statute of limitations begins to
run
"on the date when facts which would support the discrimination complaint were apparent
or
should have been apparent to a person [similarly situated to Complainant] with a reasonably
prudent
regard for his rights . . . ." McGough slip op. at 9-10 (citing numerous cases).
See
also Rose v. Dole, 945 F.2d 1331, 1336 (6th Cir. 1991). The Under Secretary has also held
that
the ERA's statute of limitations begins to run when the employee receives notice of the
challenged
employment decision, rather than the time that the effects of that decision are ultimately felt.
English v. General Electric, Case No. 85-ERA-2, Under Sec. Final Dec. and Ord., Jan.
13,
1987, slip op. at 6, aff'd sub nom. English v. Whitfield, 858 F.2d 957 (4th Cir. 1988).
Relying heavily on English, the ALJ ruled that on November 3 Ross received final and
unequivocal notice that adverse action was being taken against him:
R. D. and O. at 27.
We do not consider English controlling in this case. In
English
General Electric notified English that she had been removed permanently from the laboratory
where
she worked and permanently barred from working in controlled areas of the facility. She was
given
90 days within which to search for and bid on another position outside the controlled areas of the
facility. When she had not found such a job, she was terminated.
English filed her complaint under the ERA within 30 days of the last day
she
worked for General Electric, but more than 30 days after the notification of her permanent
removal
from the controlled areas of the facility.2
The
Under Secretary ruled that English's complaint was not timely filed, citing Supreme Court
decisions
under Title VII of the Civil Rights Act of 1964, 42 U.S.C. 2000e et seq., and 42 U.S.C.
§1983.3 English v. General
Electric, slip op. at 8-9.
Although there is a superficial similarity between this case and
English,
we believe that there is one decisive difference. In the first notice English received, she was
permanently barred from the laboratory in which she worked and from other secure areas
of
the facility. Although English was told she had 90 days within which to seek a position in the
unsecured areas of the facility, there was no ambiguity about the fact that she had permanently
lost her
position.
In the instant case, on the other hand, on November 3, 1995, Ross was
informed
that his access was suspended for 45 days. He was told explicitly that there were two
methods by which he could retain his employment with FP&L: (1) he could seek psychological
treatment and attempt to clear his access to secured areas; or (2) he could find another position in
the
unsecured areas of the FP&L facility. Thus, on November 3 Ross knew that his final removal
from
FP&L was conditioned on his failure to clear his access to the secured area, and thus regain his
job,
and to find another position at FP&L for which he was qualified. Until Ross was given the
December
29, 1995 notice, it was reasonable for Ross to think that it was still possible for him to regain his
access to the secured area, and thus his position.
For these reasons, the information that Ross was given on November 3
(including what he was told by FP&L managers) did not constitute final and unequivocal notice
that
he was being terminated. See English v. Whitfield, 858 F.2d at 961. It was not until
December 29, 1995, that "facts which would support the discrimination complaint were
apparent
or should have been apparent to a person [similarly situated to Complainant] with a reasonably
prudent
regard for his rights . . . ." McGough v. U.S. Navy, slip op. at 9-10. Therefore,
Ross'
complaint was timely filed.
II. The Merits.
The employee protection provision of the ERA provides in pertinent part:
42 U.S.C. §5851 (1994). In order to establish a violation of this provision Ross was
required to prove by a preponderance of the evidence that: (1) he engaged in activity protected by
the
ERA; (2) FP&L officials were aware of that protected activity; and (3) FP&L retaliated against
him
because of his protected activity. See Dysert v. Sec'y of Labor, 105 F.3d 607 (11th Cir.
1997); Simon v. Simmons Foods, Inc., 49 F.3d 386 (8th Cir. 1995). Because Ross failed
to prove any of these elements, we conclude that he was not terminated in violation of the ERA.
First, Ross failed to prove that he ever engaged in activity protected by the
ERA.4 Ross asserted that he engaged in
protected activity three times. First, he testified that while he was working in the Calibration Lab
in
1994 he complained to his supervisor and colleagues5 about the methods used in reporting the calibration of certain pressure gauges. R.
D.
and O. at 5. Ross also testified that on two occasions once in 1994 and again in 1995 he
complained about the calibration methods to Tom Johnson, the NRC's Senior Resident Inspector
at
the Turkey Point facility. R. D. and O. at 6-7.
All of the named employees testified that Ross never complained to them
about
the calibration methods used in the Lab. R. D. and O. at 5. Furthermore, NRC Resident
Inspector
Johnson reported that, although Ross had talked to him on several occasions during his
employment
at FP&L, Ross had never made any safety related allegations:
R. D. and O at 8.6 Ross did
complain
to Johnson about calibration records after he was terminated by FP&L. R. D. and O. at
8.
However, that complaint could not have caused FP&L to terminate Ross.
Based upon the overwhelming evidence in the record which contradicts
Ross'
allegation that he made safety-related complaints about the calibration methods used in the Lab,
we
conclude that Ross did not prove the first element of an ERA violation -- that he engaged in
activity
protected by the ERA employee protection provision.
Because Ross did not engage in protected activity, there is no factual basis
upon
which to conclude that FP&L knew of Ross' protected activity. Therefore, Ross has also
failed to prove the second element of an ERA violation.
Third, there is overwhelming evidence in the record that FP&L suspended
and
then terminated Ross not because of any protected activity, but solely because of his troubling
behavior, and the results of the psychological evaluation which was conducted because of his
behavior. Wholly apart from any alleged protected activity, Ross engaged in "unusual,
erratic
and bizarre behavior" which led FP&L officials to question his psychological fitness to
work
in a secured area of a nuclear facility. R. D. and O. at 32. For example, in July 1994 Ross had a
conversation with plant supervisor Tom Wogan in which Ross made a veiled threat about killing
people. TR 249-251, 603. Wogan reported the comments to John Franzone, Ross' supervisor.
R. D. and O. at 11.7
However, the incident that immediately preceded the September 16, 1995
meeting at which Ross was suspended evolved out of Ross' complaints about a cartoon that one
of
his fellow employees had drawn. Ross thought the cartoon was derogatory.8 Joe Myszkiewicz, one of Ross' fellow
employees, had heard a rumor that Ross had complained to management about the cartoon and
asked
him about it. In response, Ross remarked "the innocent [always] get the blame" and
"all this stuff makes you want to bring in an uzi." TR 902, 904, 906.
In light of this comment, Myszkiewicz became concerned about the safety
of
the I&C Specialists. He reported Ross' comment to several FP&L management personnel. R. D.
and
O. at 15. Several of Ross' co-workers then complained to Franzone that they did not want to
work
with Ross. Franzone decided to suspend Complainant's access and have him evaluated by the
Employee Assistance Program. R. D. and O. at 13-17.
Ross was first informed of his suspension during a September 16, 1995
meeting
with FP&L management. At that meeting he also was told to contact FP&L's Employee
Assistance
Program and to undergo a psychological evaluation. Ross specifically was informed that his
cooperation in the evaluation process was essential if he was to be allowed to return to work.
The EAP referred Ross to Dr. Dennis L. Johnson, who evaluated Ross and
also
referred him to Dr. Salo Shapiro, a psychiatrist. Dr. Shapiro reported that Ross was suffering
from
a "major mental illness, manifesting clear paranoid compensation as well as a thought
process
defect." R. D. and O. at 18. Dr. Johnson subsequently sent his report on Ross to FP&L.
Dr.
Johnson concluded that Ross was not psychologically fit for unescorted access authorization. He
also
recommended that Ross receive professional psychological and psychiatric treatment. R. D. and
O.
at 18-19.
Following receipt of Johnson's report, FP&L asked Ross to attend a second
meeting with FP&L managers on November 3. At that meeting Ross was given the letter
suspending
him, and giving him 45 days in which to find a job with the company outside of the secured area.
Complainant's Exhibit (CX) 3. Ross also was told that he could seek psychological treatment
and
attempt to have his suspension lifted within the 45 day period. Thus, the ALJ found:
R. D. and O. at 20 (citations omitted).
Between November 3, and December 29, 1995, Ross did not find another
position within the facility. R. D. and O. at 21-22. Although he sought psychiatric treatment, he
did
not present to FP&L any evidence that would support a psychological clearance to work in the
secured area. Id. at 21. On December 29, 1995 Ross received a letter terminating his
employment. RX 32.
We find there is conclusive evidence that Ross was suspended for a
legitimate,
non-discriminatory reason, and that he was terminated because he failed either to find another
position at the plant or to clear the bar placed on his access to the secured area of the facility.
For the foregoing reasons, we conclude that while Ross' ERA complaint
was
timely filed, he failed to prove that he was retaliated against for engaging in activity protected by
the
ERA. The complaint is DISMISSED.
SO ORDERED.
PAUL
GREENBERG
E. COOPER
BROWN
CYNTHIA L.
ATTWOOD
1 As the ALJ found:
R. D. and O. at 32.
2 Prior to its amendment in
1992,
the statute of limitations for employee whistleblower complaints under the ERA was 30 days. 42
U.S.C. §5851(b)(1) (1988)
3 Delaware State College v.
Ricks, 449 U.S. 250 (1980); Chardon v. Fernandez, 454 U.S. 6 (1981).
4 We evaluate the evidence in
the
record in light of the ALJ's credibility determination:
R. D. and O. at 25.
5 Ross testified that he
questioned
the calibration methods in front of "everyone" in the Lab (TR 85-86, 221-222), and
complained to Lab Supervisor John Halvorsen, and employees Harold Blehm, Larry Slone, and
Claude Arashiro. R. D. and O. at 5.
6 Although NRC Resident
Inspector Johnson did not testify at the hearing, the NRC report on Ross' claims of retaliation
was
admitted in the record. RX 48. The NRC report concluded that prior to his discharge Ross never
raised safety complaints with Johnson. Id. at 11.
7 After either the Wogan
incident
or the parking lot incident, FP&L management recommended that Ross speak to a psychologist
in
the company's Employee Assistance Program. R. D. and O. at 11; TR 114, 508-509, 604.
8 Ross is Jewish. In the cartoon
Ross was depicted with a circle on the back of his head. Ross thought the circle represented a
yarmulke. The artist testified that he did not know Ross' religion, and that the circle depicted the
bald
spot on the back of Ross' head. R. D. and O. at 13. In any event "Ross could not explain
how
the cartoon had anything to do with any nuclear safety concerns or retaliation for raising such
concerns." Id.
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Ross testified that [Norm] Jacques cut him off in the parking lot, looked at him and
laughed, after which Ross parked his vehicle and approached Jacques. He admitted
placing his hand near or on Jacques' neck area and putting a "choke hold"
on Jacques. . . . [A fellow car pool member who witnessed the incident] testified that
Ross lunged at Jacques, picking him up from underneath the neck and stated
"don't ever do that to me again."
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Chair