DOL Home > OALJ > Whistleblower > Dobreuenaski v. Associated Universities, Inc., 96-ERA-44 (ARB June 18, 1998) |
ARB CASE NO. 97-125
ALJ CASE NO. 96-ERA-44
DATE: June 18, 1998
In the Matter of:
KENNETH DOBREUENASKI,
v.
ASSOCIATED UNIVERSITIES, INC.,
BEFORE: THE ADMINISTRATIVE REVIEW BOARD
COMPLAINANT,
RESPONDENT.
This case arises under the employee protection provision of the Energy Reorganization Act (ERA), as amended, 42 U.S.C. §5851 (1994). Complainant, Kenneth Dobreuenaski (Dobreuenaski), asserts that Respondent, Associated Universities, Inc. (AUI), discriminated against him at its Brookhaven National Laboratory, Long Island, New
York, by demoting and constructively discharging him for engaging in various protected activities.
Following a six-day hearing, the Administrative Law Judge (ALJ) issued an Interim Recommended Decision and Order (R. D. and O.) finding that Dobreuenaski had been unlawfully demoted but that he had not been constructively discharged. R. D. and O. at 8-10, 12-13. The ALJ awarded damages of $168.00 for lost wages. R. D. and O. at 13.1
We find that the record supports the ALJ's holding that Dobreuenaski was not constructively discharged. However, we conclude that the ALJ's analysis is fundamentally flawed regarding Dobreuenaski's demotion and find that the demotion was lawful. Accordingly, the complaint will be dismissed.
1. Facts
Dobreuenaski began his AUI employment as a technician in 1981. Beginning in 1984, his work involved operating the "waste concentration facility" at Building 811. Although he complained informally about Building 811 for a number of years, R. D. and O. at 4, he filed his first formal internal complaint in February 1994, referring, inter alia, to contamination of the building, poor maintenance, and problems with storage tanks, alarms and level indicators. CX 5; T. 814-15.
AUI responded by forming an investigative committee separate from Dobreuenaski's Safety and Environmental Protection Division to look into the matter. The committee did not find the situation dangerous but offered various recommendations. It summarized its conclusions as follows:
There was no imminent danger observed in any aspect of the physical plant or any of the operational aspects. However, the Committee found noncompliance with Laboratory ES&H
CX 7 at 3, Mar. 16, 1994.
The committee report noted that Dobreuenaski had made a videotape of the area in December, 1993, but had refused to share it with the committee:
CX 7 at 5. Similarly, despite continued requests, Dobreuenaski never provided the videotape to aid his division's efforts to address problems raised in the report. T. 936-37, 1004-06; CX 8 at 2. He later provided the tape to a television station, which featured extracts and an interview with Dobreuenaski in a January 10, 1996 news report on AUI's purported leakage of radioactive waste into the local water system. CX 18.
In May 1994 Dobreuenaski aggravated a prior injury and was on leave for approximately eighteen months. Although he had filed a complaint with the Department of Energy in October 1995, alleging that AUI had not reinstated him because of his protected activities, CX 20, AUI did not learn of that complaint until mid-December, after he had returned to work. T. 1087-88; RX 44.
Under the collective bargaining agreement negotiated by the Oil, Chemical and Atomic Workers Union, Dobreuenaski was entitled to return to his former position as a Group II Radioactive Materials Technician. T. 1213; RX 1. He requested return to his former Group II position, but, during his eighteen-month absence his former position had been eliminated because Building 811 largely had shut down and was not operating. T. 572-74, 695-96, 1194. Accordingly, he was assigned to work with lower-classified Group III hazardous waste technicians while still being paid at the higher Group II wage rate, with the proviso that whenever Group II work became available, he was to be assigned that work. T. 710-11, 1154; T. 576, 590. He was given training for his new chemical technician duties with the hazardous waste team at Building 445. CX 22 at 1-2; RX 10. He also specifically was encouraged by Leonard Emma, Section Head, Environmental Management Section, to raise safety issues to management. T. 1152-53.
Dobreuenaski submitted complaints in two separate Employee Concerns Reporting Forms on December 28, 1995. Concern No. 95-1, RX 5, referred to violations of procedures for Building 811 and checked off the terms "catastrophic or critical emission/release of nuclear or chemical [matter]" and "damage or loss of facilities or equipment" if the concern remained unresolved. The other complaint, Concern No. 95-2, RX 6, referred to groundwater pollution at Building 811 and improper storage at Building 445.
Again, AUI responded by forming an investigatory committee separate from Dobreuenaski's Safety and Environmental Protection Division. T. 1384-85. It concluded that none of his concerns represented a serious or immediate hazard, but recommended various improvements. It summarized its conclusions as follows:
RX 20 at 6, Jan. 20, 1996. The committee considered Dobreuenaski's concerns "as a possible environmental contamination problem, but in general, these problems were not large enough to be of major concern. . . . [W]e didn't validate them as being serious. [H]e was much more concerned about them than we would judge they should be." T. 1406, 1415.
Around the same time, on January 10, 1996, a local television station
broadcast the report referred to above in which Dobreuenaski charged that AUI was leaking
radioactive waste into the area groundwater.2 The report contained an interview with Dobreuenaski, a portion of his 1993
video recording of Building 811 and its environs, and an interview with Senator Alphonse
D'Amato calling for further investigation.3
Alan MacIntyre, who supervised the Group II technicians, learned in
January 1996 that a wastewater transfer was scheduled to take place. On January 22,
acIntyre requested that Dobreuenaski participate in this effort with another Group II
technician by entering the basement of Building 811 for approximately five minutes to turn on
two or three valves. T. 328-32. MacIntyre arranged for health physicist Nick Contos to
explain the safety of the assignment, and Dobreuenaski was offered a respirator to assuage his
concern with radioactive airborne particles. T. 378-82; RX 11. Nevertheless, Dobreuenaski
refused the assignment because he was concerned about contamination. T. 335. He was
issued a verbal warning on January 23 for his refusal to perform the assigned task. RX 13;
T. 331-34.
Because of the publicity resulting from the telecast, AUI management
decided to clean and decontaminate the basement in Building 811. T. 426-28, 1011-13.
acIntyre assigned the job to Dobreuenaski and Eric Klug, another Group II technician. T.
397. MacIntyre arranged a meeting for January 24 with Dobreuenaski and others to plan the
project. An hour before the scheduled meeting, Dobreuenaski informed MacIntyre that he
would not participate either in the planning or execution of any clean-up or decontamination
activities regarding the basement. MacIntyre requested that Dobreuenaski provide a written
statement. RX 15. Dobreuenaski's written statement objected to alleged "contamination
problems" in the assigned work area. T. 337; RX 16. Dobreuenaski's assessment of
danger was incorrect. As the ALJ noted, "[t]here is no doubt, on this record, that
Respondent overwhelmingly proved that the level of radioactivity in the pit' [basement] and
the exposure thereto was not harmful." R. D. and O. at 13, n.25 (citations omitted).
AUI and the Union ultimately resolved Dobreuenaski's employment
status by agreeing to his reassignment to a Group III chemical technician position outside the
scope of Building 811 work (with the possibility of return to his former position if he agreed
to perform the requisite duties in the future), with the provision that he receive the specialized
training that he had previously requested for handling chemical waste. T. 590-94, 658-60.
As the Union explained in its February 8 letter to him:
RX 30.
Dobreuenaski's reassignment to the Group III chemical technician
position began on February 2, 1996. Because he was involved in training and needed a place
to study, he was assigned to an individual office in a temporary trailer occupied by other
workers. T. 1159, 1329. After management learned that he had complained to a local
newspaper that his facility lacked its own bathroom (there was a bathroom in an adjacent
building fifteen yards away), he was reassigned to a vacant office in a building occupied by
management officials. T. 741-44, 1160-62.
Dobreuenaski remained at AUI for only three works after his
reassignment. RX 40. During the week of February 5, 1996, he received offsite training
previously scheduled as part of his preparation for resuming his duties the previous December.
He was absent from February 12 through 14. He was in his office on February 15 and 16.
His tutoring by a high school chemistry teacher retained by AUI began on Tuesday, February
20, and was to have continued for several weeks. T. 1288. He was absent February 25, the
day he was scheduled to meet with the investigatory committee established to consider his
December, 1995 complaints. T. 910, 1392; RX 44, entry of 2/23/96.
On February 16, 1996, Dobreuenaski received a written warning from
the Labor Relations Manager for his second failure to properly notify his immediate
supervisor, Karl Sherburg, of his absence. The notice stated:
RX 31.
During the course of a February 26, 1996 counseling meeting with
Sherburg on attendance matters, Dobreuenaski accused Sherburg of harassment for requiring
that Dobreuenaski adhere to standard attendance procedures for checking in and out. T. 914-23, 1333; RX 52 (Dobreuenaski's cassette tape). Following this meeting, Dobreuenaski
requested a voluntary layoff. T. 923-24; RX 34, 35. He subsequently received, inter
alia, approximately $14,000 in severance pay. T. 1096-97; RX 36. Pursuant to his
request, the payment was calculated on his earlier, higher-paying position as a Group II
Radioactive Materials Technician. RX 34 at 2; RX 35.
2. The Administrative Law Judge's Recommended Decision and
Order
The ALJ ruled that Dobreuenaski had engaged in activity protected by
the ERA employee whistleblower provision on numerous occasions and in a variety of forums.
R. D. and O. at 4-5. Moreover, AUI was aware of Dobreuenaski's protected activity.
Id. at 5. The issue to which the ALJ devoted most of his attention was whether
Dobreuenaski had been subjected to adverse action as a result of that protected activity. The
ALJ concluded that Dobreuenaski had proven that AUI demoted him to Group III technician,
at least in part, because of his protected activities: "I find that Respondent demoted
Complainant, in part, for a legitimate reason, and in part, for an illegitimate, retaliatory
reason." Id. at 6 (footnotes omitted). Because, in the ALJ's view, AUI had
not proven by clear and convincing evidence that it would have made the same decision
notwithstanding its unlawful motives, the ALJ concluded that Dobreuenaski had been
unlawfully demoted. Id. at 10.
However, the ALJ concluded that Dobreuenaski had not been subjected
to constructive discharge. Id. at 11-13. Therefore, the ALJ only recommended
relief related to the demotion, in the form of $168.00 for lost wages. Id. at 13.
Dobreuenaski argues that AUI downgraded him to a lower paying
position and subsequently forced him to resign for filing his three internal complaints and
bringing negative publicity to AUI's operations. Complainant's brief to the ARB at 13, 26.
"AUI did not want to take the chance of having its retaliation appear too obvious (if they
fired Dobreuenaski as a result of his refusal to perform the work assignment), so instead, they
suspended him with pay, conspired with the union to demote him and finally took a course of
action specifically designed to force him to quit." Complainant's reply brief to the ARB
at 10. We disagree.
Dobreuenaski's actions in filing his Employee Concerns complaints and
participating in the television report clearly were protected activities under the ERA.
Rudd v. Westinghouse Hanford Co., ARB Case No. 96-087, ALJ Case No. 88-ERA-33, ARB Dec. and Ord. of Rem., Nov. 10, 1997, slip op. at 4; Trimmer v. Los
Alamos National Laboratory and University of California, ARB Case No. 96-072, ALJ
Case Nos. 93-CAA-9, 93-ERA-55, ARB Fin. Dec. and Ord., May 8, 1997, slip op. at 2-3;
R. D. and O. at 4-5. However, Dobreuenaski has not proved by a preponderance of the
evidence that he was demoted or constructively discharged because of his protected activities.
1. Dobreuenaski's Demotion.
The ALJ held that Dobreuenaski was retaliatorily demoted from a Group II
Radioactive Materials Technician to a Group III Hazardous Waste Technician position. R. D. and
O. at 6-10. The ALJ viewed Dobreuenaski's demotion as unlawful because he determined that it was
predicated upon: (1) a motive that the ALJ viewed as lawful, i.e., Dobreuenaski's January
22 refusal to enter Building 811 for a few minutes to turn on the valves; and (2) a motive that the
ALJ viewed as unlawful, i.e., his refusal to participate in the cleanup of the building on
January 24. The ALJ viewed the January 22 directive as lawful because AUI was then unaware of
Dobreuenaski's reluctance to enter the area, while he viewed the January 24 directive as unlawful
because AUI was then clearly on notice of Dobreuenaski's reluctance to work in Building 811.
Further, because the ALJ concluded that AUI had failed to establish by clear and convincing
evidence that it would have demoted Dobreuenaski for the lawful reason alone, the ALJ held that
Dobreuenaski had been unlawfully demoted in violation of the ERA whistleblower provision. R.
D. and O. at 10.
We disagree. Under the ERA, "a determination that a violation has
occurred may only be made if the complainant has demonstrated that protected behavior or conduct
was a contributing factor" in the adverse action taken against the complainant. 63 Fed Reg.
6614, 6623 (Feb. 9, 1998), to be codified at 29 C.F.R. §24.7(b); see 42 U.S.C.
§5851(b)(3)(C) (1994). Abraham v. Lawnwood Regional Medical Center, ARB Case
No. 97-031, ALJ Case No. 96-ERA-3, ARB Fin. Dec. and Ord., Nov. 25, 1997, slip op. at 6;
Talbert v. Washington Public Power Supply System, ARB Case No. 96-023, ALJ Case No.
93-ERA-35, ARB Fin. Dec. and Ord., Sept. 27, 1996, slip op. at 4. Dobreuenaski has not met that
test.
First, although we agree with the ALJ that Dobreuenaski's work refusals
of January 22 and 24 were major reasons for his demotion, we conclude that the ALJ was
incorrect in holding that AUI made the January 24 assignment as part of a plan to downgrade
him for engaging in protected activities. Dobreuenaski has not proved by a preponderance of
the evidence that AUI's actions were intended to force his removal from his prior position.
Indeed, the record reflects the opposite. AUI diligently attempted to assuage Dobreuenaski's
concerns, only to be rebuffed by him at various turns. The brief January 22 wastewater
transfer assignment was accompanied by a discussion with health physicist Nick Contos and
an offer of a respirator. Management was precluded from further counseling Dobreuenaski
on January 24 for the basement cleanup assignment because he adamantly refused to
participate even in a planning meeting where his concerns might be addressed. At the meeting
on January 25, attended by MacIntyre, Contos, Klug, and Mike Clancy (Hazardous Waste
anagement Deputy Group Leader), Dobreuenaski reiterated his refusal and indicated that he
would neither read nor sign the requisite Radiation Work Permit for entry into the basement
for a short exploratory visit as part of the planning process. He repeated his refusal in the
presence of his union representative and was suspended for three days with pay. T. 204, 364-67, 1167-69; RX 17.
AUI's extensive and good-faith efforts to convince Dobreuenaski that
his assignments in Building 811 were safe proved unavailing in the face of Dobreuenaski's
stubbornness. As MacIntyre testified:
T. 342-43. Indeed, Dobreuenaski was so unreasonable that when AUI and the Union
sought to interest him in retaining his position by agreeing to work in Building 811 if it was
first cleaned without his participation, he continued to refuse. T. 643-44, 658-59.
Dobreuenaski also has not demonstrated by a preponderance of the
evidence the ultimate fact: that his protected behavior was a contributing factor in his
demotion. To the contrary, AUI's decision to reassign him was based solely on his refusal to
perform work integral to his job classification.
AUI did not fire Dobreuenaski outright, although it was entitled to do
so under its collective bargaining agreement. T. 660. AUI conscientiously attempted to allay
his concerns, and reassigned him to a different job category so that he would not be called
upon to perform work which he rejected. These actions by the employer belie a
discriminatory motive. Accord v. Alyeska Pipeline Service Co. and Arctic Slope
Inspection Services, ARB Case No. 97-011, ALJ Case No. 95-TSC-4, ARB Fin. Dec.
and Ord., June 30, 1997, slip op. at 10-11; Ashcraft v. University of Cincinnati,
Case No. 83-ERA-7, Sec. Dec. and Fin. Ord., Nov. 1, 1984, slip op. at 18-19. The meeting
called by Leonard Emma, Hazardous Waste Management Section Head, "to implore my
employees not to treat [Dobreuenaski] any differently [because of his participation in the
television news report] and to respect his right to say the things he said [so that it not] have
any impact on the work environment," T. 1202, and AUI's timely and thorough
investigations of his formal 1994 and 1995 complaints are also indicative of its
nondiscriminatory intent. See Timmons v. Mattingly Testing Services, Case No.
95-ERA-40, ARB Dec. and Ord. of Rem., June 21, 1996, slip op. at 10-13 (determination of
unlawful retaliatory intent requires careful evaluation of all evidence pertinent to the mind set
of the employer and its agents).
The ALJ's analysis is also flawed because it assumes that Dobreuenaski's
safety concerns permitted him to summarily reject the January 24 cleaning assignment.4 Although a work refusal may
be protected under the ERA if the complainant has a good faith, reasonable belief that working
conditions are unsafe or unhealthful, it loses its protection after the perceived hazard has been
investigated by responsible management officials and, if found safe, is adequately explained
to the employee. Stockdill v. Catalytic Industrial Maintenance Co., Case No. 90-ERA-43, Sec. Fin. Dec. and Ord., Jan. 24, 1996, slip op. at 2; Tritt v. Fluor
Constructors, Inc., Case No. 88-ERA-29, Sec. Dec. and Ord. of Rem., Aug. 25, 1993,
slip op. at 6-7, petition dismissed sub nom. Fluor Constructors, Inc. v. Reich, 111
F.3d 94 (11th Cir. 1997); Van Beck v. Daniel Construction Co., Case No. 86-ERA-26, Sec. Dec. and Ord. of Rem., Aug. 3, 1993, slip op. at 3. As explained above,
AUI's diligent efforts to convince Dobreuenaski that working conditions were safe were
rebuffed by his obduracy. Hence, AUI was free to reassign him to a different position.
2. Constructive Discharge
We agree with the ALJ that Dobreuenaski has not proven by a
preponderance of the evidence that he was subjected to a constructive discharge for his
protected activities. R. D. and O. at 10, 11, 13. Whether a constructive discharge has
occurred depends on whether working conditions were rendered so difficult, unpleasant,
unattractive or unsafe that a reasonable person would have felt compelled to resign.
Mintzmyer v. Dept. of the Interior, 84 F.3d 419, 423 (Fed. Cir. 1996);
Talbert v. Washington Public Power Supply System, ARB Case No. 96-023, ALJ
Case No. 93-ERA-35, ARB Fin. Dec. and Ord., Sept. 27, 1996, slip op. at 10;
Nathaniel v. Westinghouse Hanford Co., Case No. 91-SWD-2, Sec. Dec. and
Ord., Feb 1, 1995, slip op. at 20; Johnson v. Old Dominion Security, Case Nos.
86-CAA-3 et seq., Sec. Fin. Dec. and Ord., May 29, 1991, slip op. 19. AUI's
treatment of Dobreuenaski was conciliatory and fair-minded, and was not intended to harass
him into resigning. As the ALJ explained:
R. D. and O. at 11-12 (citations and footnotes omitted) (brackets in original). Thus,
we agree with the ALJ that Dobreuenaski had not demonstrated by a preponderance of the
evidence that he was constructively discharged.
Because Dobreuenaski was not discriminatorily demoted or
constructively discharged, the complaint is DISMISSED.
SO ORDERED.
KARL
J. SANDSTROM
PAUL
GREENBERG
CYNTHIA L. ATTWOOD
1 The ALJ later issued a
Final Recommended Decision and Order incorporating the R. D. and O. by reference and awarding
amounts for attorney's fees, costs and disbursements.
2 The broadcast
transcript stated, in part:
CX 18 at 1.
3 Shortly after his
television appearance, Dobreuenaski was contacted by a Senate employee, flown to Washington, D.C.
and questioned by that employee and Senator Ted Stevens. T. 718-19.
4 See
R. D. and O. at 8, n.13 and surrounding text.
5 We agree with this
conclusion. The airing of this video in the employee cafeteria was not proven to be part of a pattern
of harassment on the part of AUI. Moreover, there was no evidence that Dobreunaski was motivated
by the showing of the tape, or by his colleagues' reaction to the tape, to quit his job.
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After Complainant's demotion to Group III technician, he
was given training appropriate to such category of technician at
Respondent. The office space to which he was assigned, I find
to be appropriate and not designed to harass. Upon
Complainant's (public) complaint relative to accessibility to
bathroom facilities, he was accommodated and re-assigned to
another office. The record evidence does not support
Complainant's proposition that Respondent's behavior relative to
the above was designed/intended to harass him or render his job
circumstances intolerable. That Complainant was excluded from
"plan-of-the-day" morning meetings is adequately
explained. He was required to sign-in and out and give notice of
absences from work, as any other employee was, not for the
purpose of making his work life miserable.
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Chair
Member
Acting
ember