DIVISION XI -- BURDEN OF PROOF AND PRODUCTION
SUBDIVISION C -- PRETEXT
[Last updated May 25, 2010]
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XI. Burden of proof and production
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C. Pretext
- 1. Generally
- 2. Illustrative cases
In King v. BP Products North America, Inc. , ARB No. 05-149, ALJ No. 2005-CAA-5 (ARB July 22, 2008), the ARB found that the ALJ had erroneously granted summary decision in favor of the Respondent where, viewing the evidence in the light most favorable to the non-moving party, there was a factual dispute regarding whether the Respondent followed its disciplinary procedures and thus whether its reason for terminating the Complainant was a pretext. One member of the Board dissented, stating that upon de novo review of the case he would have granted summary judgment to the Respondent on an insubstantial claim. Specifically, the dissenter would have found that the Complainant's response to the motion for summary judgment, which was based on the proffer of a legitimate non-discriminatory reason for the firing (causing a preventable accident), failed to demonstrate a genuine issue of material fact over why the Respondent fired him. What was material was not whether the Respondent followed its disciplinary procedures, but whether it fired the Complainant because of an alleged complaint to EPA and not because he caused a preventable accident.
[Nuclear and Environmental Digest XI C 1]
PRETEXT; TEMPORAL PROXIMITY MAY RAISE INFERENCE OF CAUSATION, BUT ONCE RESPONDENT ARTICULATES LEGITIMATE, NONDISCRIMINATORY REASON FOR ITS ACTIONS, COMPLAINANT HAS BURDEN OF SHOWING PRETEXT BY PREPONDERENCE OF THE EVIDENCE
In Barry v. Specialty Materials, Inc. , ARB No. 06-005, ALJ No. 2005-WPC-3 (ARB Nov. 30, 2007), the ARB stated:
Temporal proximity is sufficient to raise an inference of causation. But once an employer articulates a legitimate, nondiscriminatory reason for its actions, the employee then must prove by a preponderance of the evidence that the employer intentionally discriminated against him because of his protected activity, and that the employer's articulated reason was pretext.
USDOL/OALJ Reporter at 7 (footnotes omitted). In Barry , the Complainant had been fired only one month after engaging in protected activity, but failed to prove that the Respondent's decision to eliminate his position for financial reasons was pretext.
XI.C.1. Decision to discharge reasonable
Lockert v. United States Dept. of Labor, 867 F.2d 513 (9th Cir. 1989).
Lockert was a quality control inspector at the Diablo Nuclear Power Plant in California who claimed he was terminated in violation of the ERA for conducting protected activity such as industry code research and safety/quality problem reporting. Employer alleged that Lockert was terminated because he twice left his assigned work area without permission in violation of the rules for employees, on one occasion to do industry code research. Section 5851 provides that an employer may discharge an employee who has engaged in protected conduct as long as the employer's decision to discharge is not motivated by retaliatory animus and the employer has reasonable grounds for the discharge. Jones v. Flagship Int'l, 793 F.2d 714, 729 & n.17 (5th Cir. 1986) (employer may discharge an employee who has engaged in protected conduct under Title VII only if the employer has reasonable grounds to believe that the employee is guilty of misconduct).
[Nuclear & Environmental Whistleblower Digest XI C 1]
RETALIATORY MOTIVE; COMPLAINANT'S BURDEN TO ESTABLISH THAT AGENCY'S EXPLANATION OF LAWFUL MOTIVE IS NOT CREDIBLE
In Pickett v. Tennessee Valley Authority , ARB Nos. 02 056 and 02 059, ALJ No. 2001 CAA 18 (ARB Nov. 28, 2003), the ARB found that Complainant had failed to establish by a preponderance of the evidence that purported blacklisting engaged in by a TVA OIG investigator during an interview of an employer who had engaged Complainant in part time work was motivated in whole or in part by Complainant's protected activity under the environmental whistleblower statutes, where the investigator was asking questions about the employment pursuant to a request from OWCP relating to the Complainant's FECA disability award. The Board considered the evidence of record, and B reversing the ALJ found that if the investigator had any actual animus toward Complainant, it stemmed from the disability case.
[Nuclear & Environmental Whistleblower Digest XI C 1]
PRETEXT; COMPLAINANT MUST ESTABLISH MORE THAN THAT THE JOB
ACTION WAS UNJUST, UNFAIR OR INSENSIBLE IT MUST BE SHOWN TO BE A PHONY
REASON
In Gale v. Ocean Imaging , ARB No. 98 143, ALJ No. 1997 ERA 38 (ARB July 31, 2002), the Complainant argued that "it was wrong, unfair, or unjust for Respondents not to weigh the grounds that they cited against Complainant's past performance and find in favor of retaining her, and that therefore Respondents' rationale was pretext." The ARB rejected this argument, however, quoting the Seventh Circuit: "[I]t is not enough for the plaintiff to show that a reason given for a job action is not just, or fair, or sensible . . . [rather] he must show that the explanation is a 'phony reason.'" USDOL/OALJ Reporter (HTML) at 8, quoting Kahn v. U.S. Secretary of Labor , 64 F.3d 271, 277 (7th Cir. 1995), citing Pignato v. Am. Trans Air, Inc. , 14 F.3d 342, 349 (7th Cir. 1994).
[N/E Digest XI C 1]
PRETEXT; LEGITIMATE, NONDISCRIMINATORY REASON FOR ADVERSE
EMPLOYMENT ACTION; TRIER OF FACT'S DISBELIEF PERMITS INFERENCE OF
INTENTIONAL DISCRIMINATION
In Overall v. Tennessee Valley Authority , 97-ERA-53 (ALJ Apr. 1, 1998), the ALJ issued a recommended decision finding that Respondent's asserted legitimate, non-discriminatory reasons for transferring, laying off, and refusing to recall Complainant were a pretext for discrimination based on the ALJ's finding that Respondent's asserted reasons were false and associated with such a degree of mendacity to establish a strong circumstantial case of intentional discrimination. Citing St. Mary's Honor Center v. Hicks , 509 U.S. 502, 511 (1993), the ALJ noted significant inconsistencies between the reasons given by Respondent and the facts, and the "context of a concerted effort to conceal major safety hazzards by the use of defective ice condenser screws . . . and [Complainant's] admitted zeal and competence in dealing with ice condenser problems...." Slip op. at 34.
PRETEXT, GENERALLY
[N/E Digest XI C 1]
From Zinn v. University of Missouri , 93-ERA-34 and 36 (Sec'y Jan. 18, 1996):
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Once the respondent articulates "...a legitimate,
nondiscriminatory basis for its action, the analysis shifts
to the issue of whether [the complainant] has demonstrated
that such basis is merely pretextual and that [the
respondent's] action was actually based on a discriminatory
motive....
- [The complainant] may demonstrate that the reasons given were a pretext for discriminatory treatment by showing that discrimination was more likely the motivating factor or by showing that the proffered explanation is not worthy of credence. ... In order to determine that [the complainant] has established discriminatory intent in regard to this adverse action by the [respondent], however, "[i]t is not enough . . . to disbelieve the employer; the factfinder must believe the plaintiff's explanation of intentional discrimination." St. Mary's Honor Center , 113 S.Ct. at 2749, 125 L.Ed. 2d at 424. . . . Although found to be pretextual, an employer's stated reasons may nonetheless be found to be a pretext for action other than prohibited discrimination. See Galbraith v. Northern Telecom, 944 F.2d 275, 282-83 (6th Cir. 1991).
Slip op. at 9-10 (some citations omitted).
PRETEXT; COMPLAINANT'S BURDEN; PRETEXT FOR NONDISCRIMINATORY
REASONS
[N/E Digest XI C 1]
Where the burden shifts back to the complainant to establish that the respondent's articulated basis for the adverse employment action was pretextual and that the respondent's action was actually based on a discriminatory motive, the complainant may demonstrate pretext by showing that discrimination was more likely the motivating factor or by showing that the proffered explanation is not worthy of credence. The proof must go beyond disbelief of the respondent--the factfinder must believe the complainant's explanation of intentional discrimination. Further, the respondent's explanation may be pretextual, but nonetheless found to a pretext for actions other than prohibited discrimination. Frady v. Tennessee Valley Authority , 92-ERA-19 and 34 (Sec'y Oct. 23, 1995).
XI C 1 PRETEXT; SHIFTING EXPLANATIONS OFTEN REVEAL RETALIATORY OTIVE
In Hoffman v. Bossert, 94-CAA-4 (Sec'y Sept. 19, 1995), the Respondent testified that his only reasons for laying off the Complainant were lack of work and low seniority. Respondent's counsel introduced other evidence to the effect that the Complainant was rude on occasion. The ALJ found this confusing, so he questioned counsel at length about the Respondent's theory of the case. In the recommended decision, the ALJ found that the testimony about the Complainant's demeanor was "inappropriate and irrelevant."
The Secretary disagreed, finding that this shift in the theory of the Respondent's case was relevant because it strongly indicated that lack of work and low seniority were a pretext.
XI.C.1. Pretext; complainant's burden
Where the respondent articulates a legitimate, nondiscriminatory reason for the adverse action, the complainant has the ultimate burden of persuading that the reasons articulated by the respondent were pretextual, either by showing that the unlawful reason more likely motivated the respondent or by showing that the proffered explanation is unworthy of credence. Nichols v. Bechtel Construction, Inc., 87-ERA-44 (Sec'y Oct. 26, 1992) (as corrected by Oct. 30, 1992 Errata Order).
XI.C.1. Ultimate burden of proof is on complainant
In an ERA whistleblower proceeding, the complainant bears the ultimate burden of persuading that the legitimate reason articulated by the respondent was a pretext for discrimination, either by showing that the unlawful reason more likely motivated it or by showing that the proffered explanation is unworthy of credence. At all times, the complainant has the burden of showing that the real reason for the adverse action was discriminatory. St. Mary's Honor Center v. Hicks, 113 S.Ct. 2742, 125 L.Ed. 2d 407 (1993).
Samodurov v. General Physics Corp., 89-ERA-20 (Sec'y Nov. 16, 1993).
XI.C.1. Pretext; complainant's burden
Where the respondent articulates a legitimate, nondiscriminatory reason for the adverse action, the complainant has the ultimate burden of persuading that the reasons articulated by the respondent were pretextual, either by showing that the unlawful reason more likely motivated the respondent or by showing that the proffered explanation is unworthy of credence.
Nichols v. Bechtel Construction, Inc., 87-ERA-44 (Sec'y Oct. 26, 1992), slip op. at 13.
XI.C.1. Pretext
If the employer successfully rebuts the employee's prima facie case, the employee still has "the opportunity to demonstrate that the proffered reason was not the true reason for the employment decision . . .. [The employee] may succeed in this either directly by persuading the court that a discriminatory reason more likely motivated the employer or indirectly by showing that the employer's proffered explanation is unworthy of credence." Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 256 (1981) (Title VII case) (citation omitted).
The trier of fact may then conclude that the employer's proffered
reason for its conduct is a pretext and rule that the employee
has proved actionable retaliation for protected activity.
Conversely, the trier of fact may conclude that the employer was
not motivated, in whole or in part, by the employee's protected
conduct and rule that the employee has failed to establish his
case by a preponderance of the evidence.
Id.
at 254-65.
Finally, the trier of fact may decide that the employer was
motivated by both prohibited and legitimate reasons, i.e., that
the employer had "dual motives."
Dartey v. Zack Company of Chicago,
82-ERA-2 (Sec'y Apr.
25, 1983).
XI.C.1. Reasonable grounds for discharge
Under section 5851, an employer may discharge an employee who has engaged in protected conduct as long as the employer's decision to discharge the employee is not motivated by retaliatory animus and the employer has reasonable grounds for the discharge. Lockert v. United States Dept. of Labor, 867 F.2d 513, 519 (9th Cir. 1989).
XI.C.1. First determination after articulation
In
Thompson v. Tennessee Valley Authority,
89-ERA-
14 (Sec'y July 19, 1993), Complainant established a prima facie
case, and Respondent articulated a legitimate, nondiscriminatory
reason for the adverse action. The Secretary stated that the
first determination after rebuttal in considering whether
Complainant met his burden of showing intention discrimination is
whether the evidence shows that discriminatory reasons more
likely motivated the adverse action rather than the reasons
proffered by Respondent.
Complainant failed to meet his burden because there was evidence
that another employee who engaged in the same protected activity
as Complainant had no adverse action taken against him.
XI.C.1. Relationship between dual motive and pretext analyses
Where the complainant contends that the employer's motives were wholly retaliatory and the employer counters that its motives were wholly legitimate, neither party is relying on a "dual motive" theory in advancing its case. In this circumstance, use of the "pretext" legal discrimination model is appropriate because it focuses on determining the employer's true motivation rather than weighing competing motivations. McCuistion v. Tennessee Valley Auth., 89-ERA-6 (Sec'y Nov. 13, 1991). Accord Shusterman v. Ebasco Servs., Inc., 87-ERA-27 (Sec'y Jan. 6, 1992).
XI C 1 Summary judgment when Complainant unable to show he was qualified for position
Summary judgment may be granted where it is shown that there is no issue of material fact to be determined at trial. The party moving for summary judgment has the burden of proof to establish that the nonmoving party cannot prove an essential element of his claim. Once the movant has met its burden of proof, the burden shifts to the opposing party to show the existence of a genuine issue of material fact.
In Smith v. Tennessee Valley Authority , 89- ERA-12 (ALJ Apr. 26, 1994), an "essential element" of the Complainant's case would be to show that there was no legitimate reason for his non-selection and subsequent layoff. The Respondent moved for summary judgment and met its burden of proof by establishing that the Complainant would not have been selected for the position because of his psychological medical history, and that even assuming he was qualified for the position, the Complainant's falsifications and omissions in his application would have been grounds for disqualification and termination from the position. The burden then shifted to the Complainant to establish by evidence beyond the pleadings themselves that there was a genuine issue of material fact. The ALJ found that based on the overwhelming evidence of record, no reasonable trier of fact could find that the Complainant satisfied the requirements of the Site Security Manager position and thus recommended granting the Respondent's Motion for Summary Judgment and dismissing the complaint.
XI.C.1. Management discretion in personnel appraisal
Where the record indicated that management had considerable discretion in determining how excused absences are factored into a personnel appraisal, the ALJ concluded that there was substantial leeway for applying this factor in a discriminatory manner. Varnadore v. Oak Ridge National Laboratory, 92-CAA-2, 5 and 93-CAA-1 (ALJ June 7, 1993) (the Complainant had colon cancer).
In Speegle v. Stone & Webster Construction, Inc. , ARB No. 06-041, 2005-ERA-6 (ARB Sept. 24, 2009), although the ARB found that substantial evidence supported the ALJ's findings of a lack of direct or circumstantial evidence that the Complainant's protected activity contributed to the Complainant's suspension and termination, the ARB found other substantial evidence in the record to support its finding that the Respondent's shifting explanations for the termination were a pretext for retaliation. The ARB found that the Respondent had in fact invented different reasons for terminating the Complainant and that the Respondent had treated the Complainant differently than similarly insubordinate employees.
Specifically, although the Respondent's payroll removal form showed that the Complainant had been removed for insubordination, the Respondent stated in a TVA OIG investigation that the Complainant had been terminated because he was not going to follow a change in procedures (permitting certified apprentices to perform protective painting functions within the facility core) rather than use of offensive language. The Respondent repeated this later rationale in the ALJ hearing. The ARB faulted the ALJ for failing to adequately examine or explain this discrepancy.
The ARB also found that other subordinate employees had been treated more leniently for insubordinate conduct. The ARB rejected the ALJ's findings that the employees were not similarly situated because they had different supervisors, the offenses were not of comparable seriousness, and the Complainant was a foreman who made his insubordinate comments in front of subordinate employees. The ARB found that the difference in supervisors was a non-dispositive factor, because although different supervisors may judge varying insubordinate behavior differently, the insubordinate behavior in the instant cases was identical. The ARB found that pretext was involved in the reason given by the Respondent for determining that the Complainant's insubordinate behavior was grounded in a decision not to obey rules. Therefore the record did not support the ALJ's finding that the insubordination of the other employees was not as serious as the Complainant's insubordination. Finally, the ARB found that the ALJ had parsed the record too closely to conclude that the Complainant's insubordination as a foreman in front of subordinates was more serious than the insubordination of the other employees. The ARB found that although the Complainant was a foreman, one of the other employees was a professional who was expected to comport himself in the same manner as a foreman.
XI.C.2.a. Pretext established
In Nichols v. Bechtel Construction, Inc., 87-ERA-44 (Sec'y Oct. 26, 1992), slip op. at 13-17, the Secretary found that the respondent's stated reason for laying off the complainant, poor job performance and attitude, was not credible. She noted, inter alia , that the testimony only recorded three occasions when supervisors believed that the complainant worked slowly, and that those occasions were not discussed with either the complainant or the foreman's superiors. She noted that three co-workers testified that the complainant was diligent and not disrespectful. Compare Monteer v. Milky Way Transport Co., Inc., 90-STA-9 (Sec'y July 31, 1990), slip op. at 4-5, appeal filed, No. 91-3027-CV-S-4, (W.D. Mo., S. Div., Jan. 1991) (poor attitude not pretext where the employer established complainant's use of profanity and persistent antagonism toward his dispatcher); Connors v. State Auto Sales, 86-STA-13 (Sec'y Sept. 11, 1986), slip op. at 5-6 (poor attitude an insolence credited where the complainant had affixed to his superior's door an "impudent reply" to the superior's inquiry about his job performance).
The Secretary found that testimony concerning the complainant's job attitude under his former foreman was not relevant because it concerned a decision to recommend the complainant for a transfer that was not alleged to constitute adverse action. The Secretary stated that the testimony was not relevant to the complainant's performance after the transfer. Slip op. at 13 n.8.
[Nuclear & Environmental Digest XI C 2 a]
CIRCUMSTANTIAL EVIDENCE CASE
In Overall v. Tennessee Valley Authority , ARB No. 98-111, ALJ No. 1997-ERA-53 (ARB Apr. 30, 2001), Complainant was a power plant specialist at Respondent's Watt's Bar nuclear facility primarily responsible for the ice condenser system. He raised safety concerns about ice basket screws that could have substantially delayed the start up of the facility.
Respondent argued before the ARB that the ALJ had constructed a theory of an extensive conspiracy to remove Complainant from his job, which was not supported by the evidence of record, and was based on unwarranted assumptions and speculation. The ARB, however, found that the ALJ correctly applied the Burdine/St. Mary's Honor Center/Reeves discrimination model in finding a strong circumstantial evidence case to support a finding that Respondent engaged in a coverup of safety hazards to facilitate fuel load and start up at its nuclear facility, an integral facet of which was to remove Complainant from the ice condenser system at the facility, from employment at the facility, from contact with the ice condenser system, and ultimately from Respondent's employment altogether, because of Complainant's activities to ensure the safety of the ice condenser system.
The decision is too complex to distill adequately in a casenote, but the ARB's analysis focused on the temporal proximity of the adverse action and the protected activity: Complainant had an excellent work history prior to a decision to give him the option of either an"at-risk" transfer or transfer to an ostensibly secure position with an underfunded division only a few months after he raised the screw failure problem with "zeal and competence." A complete investigation of the screw problem potentially could have significantly delayed start up of the plant. The ARB thoroughly reviewed the record and found that each of Respondent's "legitimate" reasons for its actions were refuted by the weight of the evidence; thus the ALJ properly found that the unlawful motivation remained. See Reeves v. Sanderson Plumbing Products, Inc. , 120 S.Ct. at 2108-2109 (once employer's justification eliminated, discrimination may well be most likely explanation, especially since employer is in best position to put forth actual reason for its decision).
[Nuclear & Environmental Digest XI C 2 a]
PRETEXT; CONFLICTING REASONS GIVEN FOR TRANSFER; EXTRAORDINARY
PENALTY OF SUSPENSION FOR EMPLOYEE WITH GOOD WORK HISTORY
In Jayco v. Ohio Environmental Protection Agency , 1999-CAA-5 (ALJ Oct. 2, 2000), the ALJ found that the preponderance of the evidence showed that Respondent, the Ohio Environmental Protection Agency (OEPA), held Complainant, a state EPA investigator, in particular disfavor for reasons that could only be attributed to Complainant's vigorous prosecution of an investigation to rule in or out excessive levels of contaminants as the cause of high rates of leukemia in an area surrounding a school at Marion, Ohio. The ALJ found that Complainant's approach was to leave "no stone unturned" while OEPA management wanted to do something graduated and far less effective. The manifestation of this disfavor was a transfer from the Marion investigation and a 10-day suspension.
The ALJ found that the evidence presented by Respondent to support its articulated reason for the transfer a reorganization/realignment was conflicting, without substance, and ultimately not credible. The ALJ found that the transfer was a deliberate retaliation for Complainant's investigative activity. Likewise, the ALJ found that the reason given for Complainant's suspension was pretext for retaliation. The suspension was based on alleged violations of OEPA rules resulting from Complainant consumption of beer during a meal with co-workers prior to a public meeting at which Complainant was to be an observer. Respondent faulted Complainant for allegedly drinking while on duty, and for submitting a reimbursement request that included the beer. The ALJ noted that the alleged violations were not raised until three weeks following the meal, and held that Respondent's summary referral of a complaint of theft to the Ohio State Highway Police without first presenting the matter to Complainant for resolution was intended to hurt Complainant, both in the performance of his job and in his reputation, for protected activities. Some of the circumstances noted by the ALJ were that the amount claimed for the beer was de minimus , that Complainant's supervisor was present during the consumption of the beer and said nothing; that the 10-day suspension was an extraordinary penalty for a technical mistake by for an employee with a 6 1/2 year good, discipline-free, work record.
[Nuclear and Environmental Digest XI C 2 a]
PRETEXT
In Fabricius v. Town of Braintree/Park Dept. , 1997-CAA-14 n.10 (ARB Feb. 9, 1999), Respondent's purported reason for issuing a warning notice to Complainant for leaving the work site was found to be pretext where Respondent had no formally documented policy about leaving a work site to report an environmental hazard; even if a policy existed it was not applied uniformly (co-worker who also left the site was not sent a warning notice); and, it was unclear that such a policy was really violated (Complainant had stopped at the Town offices to attempt to obtain information about possible asbestos at the work site; he did this on his way back to the garage at the end of the work day).
[Nuclear & Environmental Digest XI C 2 a]
PRETEXT; EMPLOYEE NOT A "TEAM PLAYER"
In Timmons v. Franklin Electric Coop. , 1997-SWD-2 (ARB Dec. 1, 1998), the ALJ found that Respondent had concluded that Complainant (a new hire) was not the "team player" Respondent sought and that Complainant's objection to the burial of oil barrels was the last straw. The ARB agreed with the ALJ's conclusion that Respondent did not consider Complainant to be a team player, but clarified:
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It is well-settled that the employee protection provided by the SWDA and similar statutes
does not prohibit an employer from imposing a wide range of requirements on
employees.
See, e.g., Kahn v. U. S. Sec'y of Labor,
64 F.3d 271, 279 (7th Cir.
1995) (under the Energy Reorganization Act);
see also
Smith v. Monsanto
Chem. Co.,
770 F.2d 719, 723 n.3 (8th Cir. 1985) (noting, in a case arising under
Title VII of Civil Rights Act of 1964, that employer may develop arbitrary, ridiculous
and even irrational policies as long as they are applied in a nondiscriminatory manner),
cert. denied
, 475 U.S. 1050 (1986). When an employer applies an otherwise
legitimate criterion in such a way that it interferes with the exercise of specific
whistleblower rights, however, the employer acts in violation of the employee protection
provision of the corresponding statute.
See Assistant Sec'y and Ciotti v. Sysco Foods
of Philadelphia,
ARB No. 98-103, ALJ Case No. 97-STA-00030, July 8, 1998, slip
op. at 8 (citing
Self v. Carolina Freight Carriers Corp.,
Case No. 91-STA-25,
Sec. Dec., Aug. 6, 1992, slip op. at 5).
- An employer's expectation that an employee interact with others in the company as a "team player" does not constitute a proscribed criterion per se. See Odom v. Anchor Lithkemko/ International Paper, ARB No. 96-189, ALJ Case No. 96-WPC-0001, Oct. 10, 1997, slip op. at 12; Erb v. Schofield Mgmt., ARB No. 96-056, ALJ Case No. 95-CAA-1, Sept. 12, 1996, slip op. at 2-3. Nonetheless, the extension of that expectation to a point where it interferes with protected activity is prohibited. Therefore, Akins legitimately could require Franklin employees to follow management's lead unquestioningly in most aspects of their work, including the scheduling of overtime work and the manner in which Franklin's work generally was accomplished. However, Akins could not legitimately penalize Timmons for raising SWDA-based objections to Franklin's plan to bury the drums of oil.
The ARB concluded that Respondent was a close-knit company, that Complainant's performance was commented on negatively by the company manager to other employees, and that Complainant was considered an outsider. Nonetheless, the ARB found that the not-a-team- player justification for termination of Complainant's employment was pretext where there was temporal proximity between Complainant's protected activity and his termination, Respondent could not explain adequately why it had waited until then to actually terminate the employment (almost a month after Respondent purportedly had decided to do so), and testimony indicated that Respondent's managers were still uncertain regarding whether or not to terminate Complainant's employment as of the date of the protected activity.
[Nuclear & Environmental Digest XI C 2 a]
PRETEXT; SHIFTING EXPLANATIONS
A shift in Respondent's explanation for a termination action provides support for the conclusion that the action was motivated by retaliatory intent. Timmons v. Franklin Electric Coop. , 1997-SWD-2 (ARB Dec. 1, 1998).
[Nuclear & Environmental Digest XI C 2 a]
PRETEXT; REJECTION OF RESPONDENT'S EXPLANATIONS OF POOR WORK
PERFORMANCE NOT A SUBSTITUTION OF BUSINESS JUDGMENT
In Timmons v. Franklin Electric Coop. , 1997-SWD-2 (ARB Dec. 1, 1998), the ARB found that Respondent had failed to establish that Complainant's poor work performance was the sole reason for his termination from employment, even though Respondent's manager had expressed concerns about Complainant's performance to other workers. Respondent contended that the ARB's "rejection of its explanation for the termination action effectively imposes a requirement on employers to provide formal warnings prior to terminating whistleblowing employees on the basis of unsatisfactory performance, even if such warnings are not required by the employer's established practice or procedure."
The ARB disagreed, holding that its conclusion that Complainant's termination was prompted by his protected activity was based on a number of factors, and did not run afoul of the prohibition against DOL supplanting the employer's business judgment. The ARB held that the failure of supervisory personnel to advise Complainant of any perceived shortcomings in his work performance was a relevant factor, but did not itself play a determinative role in its conclusion.
[N/E Digest XI C 2 a]
PRETEXT; FAILURE TO FOLLOW WELL-ESTABLISHED GRIEVANCE
RESOLUTION POLICY
In Van Der Meer v. Western Kentucky University , 95-ERA-38 (ARB Apr. 20, 1998), evidence of improper motivation on the part of Respondent was established by, inter alia , its failure to follow a well-established policy of informal resolution of faculty grievances.
[N/E Digest XI C 2 a]
PRETEXT; ACTING IN HASTE ON COMPLAINTS FROM PERSONS WHO HAD AN
AX TO GRIND WITH COMPLAINANT AND EPA
In White v. The Osage Tribal Council , 95-SDW-1 (ARB Aug. 8, 1997), the ARB adopted the ALJ's findings in regard to pretext. Respondent had discharged Complainant, an environmental inspector with responsibility for monitoring and reporting on Respondent's compliance with certain provisions of the SDWA, for "disloyalty" and "misconduct". The charges against Complainant were found to be based in Complainant's dogged enforcement of the SDWA. The ARB noted that one complaint filed against Complainant by a leaseholder who had been cited for serious violations and lost substantial money because of EPA action initiated by Complainant was based on a person "who clearly had his own ax to grind with [Complainant] and the EPA", and that Respondent's taking this person's statements at face value, and acting on them with haste, clearly supported a finding of pretext. Earlier in the decision, the Board had found that Complainant had taken on "responsibilities to report on surface pollution problems seriously and discharged them in a professionally respected manner."
PRETEXT; SEIZING ON COMPLAINANT'S REVELATION THAT HE WAS
UNDER STRESS AS AN EXCUSE FOR RETALIATION
[N/E Digest XI C 2 a]
In Diaz-Robainas v. Florida Power & Light Co., 92-ERA-10 (Sec'y Jan. 10, 1996), the Secretary found that a supervisor who ordered the Complainant to submit to a psychological evaluation had the duty and responsibility to insure that the people working for him were fit for duty, and that the Complainant had told the supervisor and others that he was under stress. Nonetheless, the Secretary found that stress was not the reason for the order, but was seized on as an excuse under the circumstances of the case.
XI.C.2.a. Removing complainant from area where whistle likely to be blown; chilling effect
In Scerbo v. Consolidated Edison Co. of New York, Inc., 89-CAA-2 (Sec'y Nov. 13, 1992), the Secretary adopted the ALJ's findings in regard to pretext. The Complainant had been transferred from the pipe yard to a less desirable inside position in the warehouse. The Respondent contended that the reason for the transfer was to separate the Complainant from a supervisor, who the Complainant claimed had bumped or jostled him on occasion. In part, the ALJ wrote:
There is no evidence of ongoing conflict, argument, or resistance to supervision. The evidence is to the effect that [the supervisor] regarded [the Complainant] as a good worker who functioned in the highest estimation within several parameters of performance. The real effect of the transfer was to remove [the Complainant] from the locale where he was observing and reporting on a situation of potential contaminating influence. What happened is that the whistleblower was removed from the area where the whistle would most likely be blown. The chilling effect on fellow workers' propensity to report problems would be the unmistakable message sent by the company in moving [the Complainant].
XI.C.2.a. Pretext established
In The Detroit Edison Co. v. Secretary, United States Dept. of Labor, No. 91-3737, slip op. (6th Cir. Apr. 17, 1992) (per curiam) (unpublished) (available at 1992 U.S. App. LEXIS 8280), the Sixth Circuit affirmed the Secretary's finding that the Respondent's articulated reason for demoting the Complainant -- she was reassigned so that other nuclear security officers could receive temporary promotions -- was pretextual. Probative factors included the timing of the adverse action (only two weeks after gaining knowledge of the whistleblowing), the fact that the Complainant's temporary promotion was rescinded several months before it would have expired and that this was not normal procedure, the demotion occurred while the Complainant's immediate supervisor was on vacation and implemented over his serious objection (the immediate supervisor's memo stating why the demotion would undermine security also indicated that the decision was not for legitimate business reasons), the testimony of the two supervisors who demoted the Complainant indicated (according to the ALJ) animus toward whistleblowers.
XI.C.2.a. Pretext not established
In Crosier v. Portland General Electric Co., 91- ERA-2 (Sec'y Jan. 5, 1994), the Secretary found that Respondent's clinical psychologist had ample reason to question Complainant's trustworthiness and reliability and to recommend denial of plant access under Respondent's established, written policy to "maintain a continuous behavioral observation program which is designed to [p]rovide prompt detection of aberrant behavior" and "[e]xclude an individual displaying such behavior from the protected, vital areas and restricted areas of the plant." As such, Complainant failed to establish pretext, and even for the sake of argument Complainant established an illegitimate motive, Respondent established by a preponderance of the evidence that it would have discharged Complainant even if he had not engaged in protected activity.
XI.C.2.a. "Personality deficiency" directly related to complaint activity
Where there was no evidence that the Complainant's alleged personality or professional deficiencies [in interpersonal relations] arose in any other context outside his complaint activity, the Respondent's conclusion that the Complainant had a personality problem or deficiency of interpersonal skills was reducible in essence to the problem of the inconvenience the Complainant caused by his pattern of complaints. Passaic Valley Sewerage Commissioners v. United States Dept. of Labor, No. 92-3261 (3rd Cir. Apr. 16, 1993) (available at 1993 U.S. App. LEXIS 7906).
XI.C.2.a. Pretext
The respondent's stated reason for discharging the complainant (a crew boat skipper) -- abandonment of his crew, was not credible where the testimony did not indicate that the complainant was ordered to stay with the crew until a replacement arrived, where alternative transportation was available, the complainant initially learned he was fired prior to leaving the area.
Neither was leaving the boat and equipment unattended a credible reason for discharge of the complainant, where uncontradicted testimony established that the respondent routinely left its boats unattended and unlocked at public docks in high theft areas.
Finally, interference with work crews was not a credible reason for the discharge where no work crew members complained about interference, where the complainant's "interference" was objecting to and reporting an oil spill, and where there was testimony that a worker who cares to keep his job would not take photographs around an oil field and would not report an oil spill to the Coast Guard without first reporting it to his employer, and respondent's president mentioned the photographs and report when he fired the complainant.
Adams v. Coastal Production Operators, Inc., 89- ERA-3 (Sec'y Aug. 5, 1992).
[Editor's note: Adams v. Coastal Production Operators, Inc., 89-ERA-3, did not arise under the Energy Reorganization Act, although the OALJ gave it an "ERA" docket number. It was actually a Federal Water Pollution Control Act case.]
XI.C.2.a. "Problem" employee
In Pillow v. Bechtel Construction, Inc., 87- ERA-35 (Sec'y July 19, 1993), Employer's witness testified that Complainant was selected for layoff because he was a problem employee. Two other employees selected for layoff were also "problem" employees, one having excessive absences and the other charged with keeping other employees from doing their work.
The Secretary examined each of the purported problems with Complainant's employment, and found that they there were not convincing as a reason for lay off:
XI.C.2.a. Pretext; failure to follow normal procedures; unrealistic period to comply with management directives
The Respondent's assertion that it discharged a Complainant because she did not own an automobile was pretext where (1) there was corroborating testimony that owning an automobile was not an employment requirement; (2) management knew for some time that the Complainant did not own an automobile and never took action against her until made aware of her protected activity; and (3) the Complainant was subjected to disparate treatment because tardy employees were normally subject to progressive discipline.
In the instant case, the Complainant was given only ten days to obtain an automobile to get to work. She had been riding a bicycle or catching rides.
An employer's failure to follow its normal procedures can, in an appropriate case, suggest deliberate retaliation. DeFord v. Secretary of Labor, 700 F.2d 281, 287 (6th Cir. 1983). oreover, an unrealistically short period of time allowed a complainant to comply with a management ultimatum is evidence of pretext. See Kansas Gas & Elec. Co. v. Brock, 780 F.2d 1505, 1513 (10th Cir. 1985), cert. denied, 478 U.S. 1011 (1986).
Johnson v. Old Dominion Security, 86-CAA-3, 4 and 5 (Sec'y May 29, 1991).
XI.C.2.a. "Personality deficiency" directly related to complaint activity
Where there was no evidence that the Complainant's alleged personality or professional deficiencies [in interpersonal relations] arose in any other context outside his complaint activity, the Respondent's conclusion that the Complainant had a personality problem or deficiency of interpersonal skills was reducible in essence to the problem of the inconvenience the Complainant caused by his pattern of complaints. Passaic Valley Sewerage Commissioners v. United States Dept. of Labor, No. 92-3261 (3rd Cir. Apr. 16, 1993) (available at 1993 U.S. App. LEXIS 7906).
XI.C.2.a. Sufficiency of evidence of pretext
Ample evidence supported the Secretary's finding that a nuclear power plant had fired a quality assurance inspector based on pretext (unverifiable references) where
-
the employer failed to offer any counseling or
warning prior to a meeting at which it was planned to
dismiss the complainant;
-
it had taken no action against other employees who
did not meet the educational prerequisites for
employment;
-
it only allowed a short period of time for
complainant to produce documentation of his educational
and employment qualifications;
-
that period was curtailed;
-
the complainant's superior removed the
complainant's discrepancy report from the typing
box and had it date stamped (?); and
- the employer's refusal to re-employ the complainant after the required documentation of qualification was obtained.
Kansas Gas & Electric Co. v. Brock, 780 F.2d 1505 (10th Cir. 1985), cert. denied, 478 U.S. 1011, 92 L.Ed.2d 724, 106 S. Ct. 3311 (1986).
XI.C.2.a. Pretext established
The respondent's stated reasons for termination of the complainant were shown to be pretext in Lederhaus v. Donald Paschen & Midwest Inspection Service, Ltd., 91-ERA-13 (Sec'y Oct. 26, 1992), slip op. at 8-9. The complainant's failure to lock a camera after each exposure in violation of NRC and respondent's rules was not a credible basis for discharge where the respondent observed the complainant taking pictures, said nothing, and gave the complainant as "satisfactory" rating on his performance with the camera. The complainant's "falsification" of a utilization log was an equally specious reason for discharge where the respondent admitted that he had made precisely the same kind of mistake himself, and where the respondent could not state why this was a "falsification" as opposed to a mere oversight, or why anyone would have anything to gain from falsifying the log.
XI.C.2.a. Proof of Discriminatory Motive
Blake v. Hatfield Electric Co., 87-ERA-4 (Sec'y Jan. 22, 1992).
The Deputy Secretary of Labor affirmed the Recommended Decision of an ALJ which found that Respondent discriminated against the Complainant in violation of the Energy Reorganization Act (ERA) when it laid him off from his position of quality control inspector at the Respondent's nuclear power plant. The Deputy Secretary determined that the Respondent's articulated reasons for its employment decisions were pretextual. A supervisor's comment on a performance evaluation that Complainant "use[s] N.R.C. (Nuclear Regulatory Commission) as a threat," virtually amounted to direct evidence of discrimination in and of itself. In fact, the supervisor admitted that the Complainant never made such threats, but was merely seen conferring with an N.R.C. investigator on one occasion. The Deputy Secretary further found that this remark could not be considered merely a "stray remark," Price Waterhouse v. Hopkins, 490 U.S. 228, 277 (1989) (O,Connor, J., concurring), but rather, spoke directly to the issue of discriminatory intent and related to the specific employment decision in this case.
In this case, the sole question was whether Respondent met its burden of "proving by a preponderance of the evidence that it would have made the same decision even if it had not taken the illegitimate criteria (the NRC threat) into account." Price Waterhouse, supra at 258.
There was also evidence that the Complainant's low performance ratings and denial of a promotion in favor of a lesser qualified individual were discriminatorily motivated because of the pretextual reasons given by the supervisors. The Deputy Secretary found those actions violated 42 U.S.C § 5851, which prohibits discrimination because an employee is about to commence a proceeding under the ERA.
XI C 2 a Pretext; timing; Complainant's abilities; direct evidence
In Jenkins v. U.S. Environmental Protection Agency, 92-CAA-6 (Sec'y May 18, 1994), Respondent proffered that it transferred Complainant because she had been working under a supervisor whose section did not perform the work done by Complainant (Complainant had been placed under this supervisor because she had filed harassment charges against the supervisor in charge of the section that did Complainant's type of work). Respondent contended it transferred Complainant because she had completed her current assignments because continued supervisor by the current supervisor was awkward because he was not responsible for and lacked expertise in Complainant's work.
The Secretary found this reason to be pretext because:
-
The timing was suspect. The "awkward"
arrangement had been going on for two years and was
changed only once Complainant's whistleblowing began to
elicit results and it became apparent that no
legitimate basis existed for disciplining her.
-
Complainant was very good at her work. The logical
choice would have been to transfer her back to the
section that did her kind of work because Complainant
was very good at this work, the supervisor against whom
she had brought charges no longer worked for
Respondent, that section's work had increased
dramatically as a result of a settlement of a law suit,
and she was not qualified to perform the type of work
done by the section to which she was transferred.
- There was direct evidence that the supervisor of the section to which she was qualified to be transferred wanted her treated like other whistleblowers in the agency: assigned administrative work of little consequence.
XI.C.2.a. Need to repeatedly instruct complainant resulted from complainant's insistence on adhering to safety & quality guidelines
In Blake v. Hatfield Electric Co., 87-ERA-4 (Sec'y Jan. 22, 1992), the respondent's articulated legitimate reason for laying off the complainant -- his low numerical score on his most recent performance evaluation -- was found to be a pretext for retaliation. Among other factors, the supervisor's explanation for a comment that the complainant was "argumentative [and] has trouble accepting decisions from superiors" and that the complainant needed to be given repeated instructions, was found to be unconvincing. The alleged need to give the complainant repeated instruction arose from his insistence on adhering to safety and quality procedures requiring that the plant blueprints take precedence over any other standards or instructions, and his resistance to directives that would have left a gap in the paper trial showing that those procedures had been followed.
XI.C.2.a. Pretext
The "legitimate" motivation of job rotation proffered as an explanation for a Complainant's job demotion shortly after engaging in protected activity was rebutted as pretext where:
-
under the employer's system, any rotation
should have occurred at a six month interval rather
than, as here, midway through an assignment term; -
Complainant was not apprised that job rotation
was the reason for the reassignment; -
Complainant's reassignment made little sense
in the context of the employer's plant development
Complainant had received excellent performance evaluations and had acquired considerable experience in programs that the employer was under time constraints to implement. She had received special training for the work she was performing at the time of her abrupt reassignment, while her replacement was inexperienced and untrained. Complainant's supervisor opposed her reassignment because he believed that it would jeopardize his ability to meet the program objectives and would raise concerns with the NRC.
Larry v. Detroit Edison Co., 86-ERA-32 (Sec'y June 28, 1991).
XI. C. 2. a. Illustrative cases; pretext established
When the respondent articulates a legitimate, nondiscriminatory reason for the adverse action, the Complainant bears the ultimate burden of persuading that the legitimate reasons articulated by the respondent were a pretext for discrimination, either by showing that the unlawful reason more likely motivated the respondent or by showing that the proffered explanation is unworthy of credence. At all times, the complainant has the burden of showing that the real reason for the adverse action was discriminatory. Thomas v. Arizona Public Service Co., 89-ERA-19 (Sec'y Sept. 17, 1993).
In Thomas , the Complainant meet that burden. In regard to the articulated reasons for denial of a promotion, she rebutted each as follows:
In addition, there was evidence of a supervisor's positive impression of Complainant's proficiency prior to the application (he thought she already was a senior technician and qualified to apply as an Associate Engineer; he named her as the contact person in his absence). There was evidence that not as much experience for promotion as was told was needed to Complainant was actually required for promotion. (evidence of promotions of other technicians with narrower experience and less seniority). When Complainant applied for the even higher ranking position of Associate Engineer, she was ranked fifth out of seventeen applicants.
The Complainant also rebutted the articulated reason for suspending her certifications to perform a number of tests. Although there was undisputed evidence that Complainant had difficulty administering the sixth test, the Secretary found that it was not credible to use that difficulty as a ground for suspending all of the Complainant's certifications. One of the tests, for example, did not even use the same test panel as the sixth test. There was also evidence that the re-certification requirement was unique to Complainant, and was humiliating to her.
XI.C.2.a.
Poor attitude versus manifestation of protected
activity
In Dodd v. Polysar Latex, 88-SWD-4 (Sec'y Sept. 22, 1994), the Respondent maintained that it discharged the Complainant because of poor work performance and poor attitude.
Reviewing the record, however, the Secretary concluded that what the Respondent viewed as poor attitude were nothing more than the result and manifestation of the Complainant's protected activity.
The Secretary stated that the right to engage in statutorily protected activity permits some leeway for impulsive behavior, which is balanced against the employer's right to maintain order and respect in its business by correcting insubordinate acts. A key inquiry is whether the employee has upset the balance that must be maintained between protected activity and shop discipline. See Asst. Sec. and Lajoie v. Environmental anagement Sys., Inc., 90-STA-31 (Sec'y Oct. 27, 1992), slip op. at 10-11, and cases cited therein, appeal dismissed, No. 92-2472 (1st Cir. Feb. 23, 1993); Kenneway v. Matlack, Inc., 88-STA-20 (Sec'y June 15, 1989), slip op. at 6-7.
The Secretary determined that the balance weighs heavily in Complainant's favor in the instant case. Even if the incident immediately provoking the discharge involved the use of intemperate language by Complainant, the incident was private, was far from egregious, was not indefensible in the context of the escalating conflict, and thus did not remove Complainant from statutory protection.
In sum, the Secretary concluded that Complainant's termination was based solely on his "attitude," which in this case was a manifestation of his protected complaining. Even if the decision also was based in part on Complainant's performance and/or some legitimate attitudinal problems, Respondent failed to prove that it would have fired Complainant in the absence of his protected activity that immediately preceded his discharge.
[ Editor's note: It is unclear whether the Secretary's position is that Respondent's articulated reason was not credible, or that it was pretextual.]
XI.C.2.a. Direct evidence of discrimination
In Blake v. Hatfield Electric Co., 87-ERA-4 (Sec'y Jan. 22, 1992), the respondent's articulated legitimate reason for laying off the complainant -- his low numerical score on his most recent performance evaluation -- was found to be a pretext for retaliation. Particularly persuasive in this regard was a supervisor's comment on the performance evaluation that the complainant "[u]ses NRC as a threat", which virtually amounts to direct evidence of discrimination.
This was not merely a "stray remark" in the work place, Price Waterhouse v. Hopkins, 490 U.S. 228, 277 (1989) (O'Conner, J., concurring), but meets the test that the remark "speak[s] directly to the issue of discriminatory intent, [and] . . . relate[s] to the specific employment decision in question." Randle v. LaSalle Telecommunications, Inc., 876 F.2d 563, 569 (7th Cir. 1989); see also Beshears v. Asbill, 930 F.2d 1348, 1354 (8th Cir. 1991), and cases cited therein (comments by a manager or those closely involved in employment decisions may constitute direct evidence of discrimination).
Where there is direct evidence that discrimination motivated the adverse employment decision, the sole question is whether the respondent has met its burden of "proving by a preponderance of the evidence that it would have made the same decision even if it had not take the [illegitimate criteria] into account." Price Waterhouse, 490 U.S. at 258 (plurality opinion).
In the instant case, the respondent, by relying exclusively on the performance rating as justification for discharging the complainant, did not offer any convincing non-discriminatory rationale for its evaluation.
Even if an inference must be drawn from the supervisor's comment that the evaluation was discriminatorily motivated, see Lee v. Russell County Bd. of Educ., 684 F.2d 769, 774 (11th Cir. 1982) (no inference of discrimination required when direct evidence is presented), the statement was strong evidence that the complainant's low score was pretextual.
XI.C.2.a. Reorganization
In Jenkins v. United States Environmental Protection Agency, 92-CAA-6 (ALJ Dec. 14, 1992), the ALJ ruled that the Respondent failed to articulate a legitimate, nondiscriminatory reason for reassigning the Complainant. In Jenkins , there was evidence that the reassignment was motivated at least in part by the protected activity. The reason, reorganization, was also found to be pretextual -- it was clear that the Complainant's conduct was an embarrassment to EPA and that EPA's intent was to isolate the Complainant.
[Editor's note: The ALJ cited McDonald Douglas and the "but for" test, but appears to have applied a pretext test.]
XI.C.2.a. Reason made up for litigation is pretextual
In Priest v Baldwin Associates, 84-ERA-30 (Sec'y June 11, 1986), where a proffered reason for discharging Complainant -- distracting another worker -- was not mentioned on the termination slip as a reason for discharge, Respondent had two opportunities to cut off the distraction by directly informing Complainant and the other workers to move on and return to work, the reason was pretext. The Secretary, quoting Marathon Le Tourneau Co., Longview Division v. NLRB, 699 F.2d 248, 252 (5th Cir. 1983), stated that "[r]easons which are a 'mere litigation figment or were not relied upon at the time of the adverse action are pretextual.'"
XI.C.2.a. Employer's judgment of employee quality
In Blake v. Hatfield Electric Co., 87-ERA-4 (Sec'y Jan. 22, 1992), the respondent attacked the ALJ's finding that the complainant was one of the respondent's best inspectors and should have been retained over a less experienced and effective inspector. The respondent contended that management retains the prerogative under the ERA of putting more emphasis on attitude and eagerness to do the job than "sheer technical competence."
The Secretary agreed that the ERA does not displace an employer's judgment of what qualities it seeks in its employees and its good faith evaluation of those qualities. Nonetheless, she indicated that the employer's misjudging the qualifications of the employee "'may be probative of whether the employer's reasons are pretexts for discrimination.'" Slip op. at 12 (quoting Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 259 (1981)). Thus, where the record supported the ALJ's conclusion that the reasons for the complainant's poor rating often were contradictory, had no basis in fact, or were not credible when weighed against other testimony, the respondent's professed reliance on the performance evaluation was pretextual because the evaluation scores were motivated by discrimination. See Norris v. Hartmarx Specialty Stores, Inc., 913 F.2d 253, 255-56 (5th Cir. 1990).
XI.C.2.a. Burden of production of evidence in Respondent's control to support assertion of firing of other employees in same circumstances
In Priest v Baldwin Associates, 84-ERA-30 (Sec'y June 11, 1986), one of the proffered reasons for discharging Complainant was that he was out of his work area for 20-30 minutes. This reason was found to be pretext because
-
Complainant's immediate supervisor did not consider
Complainant to be out of his work area nor to have
violated any company policy
-
A company official testified that other employees had
been fired for being out of their assigned work areas,
but could not testify to any specific examples, and no
corroborating documents from company records were
introduced
- The only evidence of company policy provided for termination for three consecutive days' absence without notifying the timekeeper, but was silent regarding being out of one's work area. It was difficult to believe that an employee with one or two full days of unexcused absences would be retained but one out of his work area for 20-30 minutes would be discharged.
XI.C.2.a. Anger over failure to follow chain of command
Under the ERA whistleblower provision, an employer may not, with impunity, hold against an employee his going over his superior's head, or failing to follow the chain of command, when the employee raises a safety issue. See, e.g., Pogue v. United States Dep't of Labor, 940 F.2d 1287, 1290 (9th Cir. 1991). Thus, where the complainant's foreman admitted to being upset that the complainant had raised a safety issue with the foreman's superior because the foreman had instructed the complainant to come to him first, that fact supported the Secretary's conclusion that the respondent's proffered reason for selecting the complainant for layoff was pretext. Nichols v. Bechtel Construction, Inc., 87-ERA-44 (Sec'y Oct. 26, 1992), slip op. at 17.
XI.C.2.a. Evidence of deliberate retaliation
The court agreed with the Secretary's finding that the following constituted evidence that employee's transfer was a deliberate retaliation:
DeFord v. Secretary of Labor, 700 F.2d 281, 287 (6th Cir. 1983).
XI.C.2.a. Pretext not established
In Crosier v. Portland General Electric Co., 91- ERA-2 (Sec'y Jan. 5, 1994), the Secretary found that Respondent's clinical psychologist had ample reason to question Complainant's trustworthiness and reliability and to recommend denial of plant access under Respondent's established, written policy to "maintain a continuous behavioral observation program which is designed to [p]rovide prompt detection of aberrant behavior" and "[e]xclude an individual displaying such behavior from the protected, vital areas and restricted areas of the plant." As such, Complainant failed to establish pretext, and even for the sake of argument Complainant established an illegitimate motive, Respondent established by a preponderance of the evidence that it would have discharged Complainant even if he had not engaged in protected activity.
XI C 2 a Articulated reason lacked credibility
In Nathaniel v. Westinghouse Hanford Co., 91-SWD-2 (Sec'y Feb. 1, 1995), where there was evidence that the Respondent was concerned about media exposure, the Complainant had sent an E-mail message complaint about a health and safety issue which she declined to rescind, and the evidence concerning other reasons for the adverse employment action (effort to have Complainant rescind the E-mail message and subsequent transfer to less desirable employment) were not credible, the Secretary found that the Complainant had established entitlement to relief. Since this finding was that the Respondent was not motivated by any legitimate reason, dual motive analysis was not applied.
XI.C.2.a. Layoff when employer had backlog of work; irregularities in method of layoff
In Williams v. TIW Fabrication & Machining, Inc., 88-SWD-3 (Sec'y June 24, 1992), the Respondent's proffered reason for laying off the Complainant -- insufficient work -- was found to be pretext where the evidence established that the time the Respondent was amassing a backlog of work calling for the Complainant's skills, and irregularities in the notice and method used to lay off the Complainant.
XI C 2 a Pretext established
In Artrip v. Ebasco Services, Inc., 89-EA-23 (Sec'y Mar. 21, 1995), the Secretary found that the Complainant, who had been laid off, proved that the Respondent violated the ERA by refusing to refer the Complainant to a licensee that had requested a list of former inspectors for employment consideration. The Secretary found that Respondent's site manager knew of a prior NRC investigation in which the Complainant participated that resulted in substantial delays and untold financial loss, knew that Complainant had a prior connection with the supervisor at the licensee who made the request for personnel, and knew of Complainant's well-known reputation as a whistleblower. Thus, the Secretary concluded that the site manager did not make the referral because he knew, or at least suspected, that the licensee's supervisor would not be interested in rehiring the Complainant.
In Benson v. North Alabama Radiopharmacy, Inc. , ARB No. 08-037, ALJ No. 2006-ERA-17 (ARB Apr. 9, 2010), the ARB found that the record supported the ALJ's finding that the Respondent did not know prior to discharging the Complainant that the Complainant spoke with the NRC and a state office about exposure to radiation from the exterior of a nuclear pharmaceutical transport container. The ARB also found that the record supported the ALJ's finding that even if the Respondent knew about the Complainant's protected activities, that activity was not proved to have been a contributing cause to the adverse action. The Respondent had investigated the Complainant's allegations in October 2005, and reported the allegations to the state office, which informed the Respondent that it was operating in compliance with the law. The Respondent did not subject the Complainant to any adverse action until February 2006 when it reduced his work hours, for cause. The ALJ found that the hours were reduced for the nonpretextual reason that the company had lost a customer and decided to refrain from sending the Complainant to another customer that had complained about the Complainant's behavior during a delivery. Moreover, the Complainant had been fired for insubordination.
[Nuclear and Environmental Digest XI C 2 b]
LEGITIMATE NONDISCRIMINATORY REASON FOR TERMINATION; VIOLATIONS OF EXPENSE ACCOUNT RULES
In Redweik v. Shell Exploration and Production Co , ARB No. 05-052, 2004-SWD-2 (ARB Dec. 21, 2007), the Complainant had contended that the Respondent used his violations of expense account rules as a pretext for forcing him to resign in retaliation for protected activity. The ALJ, however, found that the Respondent's investigation into the expense account violations had been very thorough and that the official who made the decision to terminate the Complainant had not blindly accepted the recommendation to terminate. On appeal, the Complainant argued that the ALJ had erred in ignoring evidence that supported a pretext theory. The ARB, however, found that the preponderance of the evidence did not support the Complainant's pretext theory.
[Nuclear and Environmental Digest XI C 2 b]
PRETEXT; INSUFFICIENT TO SHOW THAT RESPONDENT MISINTERPRETED THE TONE OF THE COMPLAINANT'S COMMUNICATIONS OR THAT THE COMPLAINANT BELIEVED THAT HIS ACTIONS WERE IN THE RESPONDENT'S BEST INTERESTS
In Stojicevic v. Arizona-American Water , ARB No. 05-081, ALJ No. 2004-SOX-73 (ARB Oct. 30, 2007), the Respondent's articulated reason for terminating the Complainant's employment was inappropriate behavior and insubordination. The Complainant argued that his e-mails - which the Respondent considered to be hostile and rude - were misunderstood because English was not his first language. The ARB agreed with the ALJ's finding that the Complainant had not been merely misunderstood in his e-mails. Moreover, the ARB indicated that merely establishing that the Respondent misinterpreted the e-mails was not sufficient to establish that the Respondent had an unlawful motive to discriminate in violation of the SDWA. The Complainant's burden was to establish that the proffered explanations were false and a pretext for discrimination. Similarly, the Complainant showed up for work on a day on which he was scheduled to serve a suspension and told to leave. He later showed up at a work site with a client. The Respondent found this to be insubordination contributing to the decision to discharge. The Complainant argued that he had previously scheduled the meeting with the trade representative, and that he had not had a chance to cancel the meeting. The ARB indicated that even if the Complainant believed that his actions were in the Respondent's best interests, this did not show that he had been suspended in retaliation for protected activity rather than because he insubordinately refused to comply with the suspension.
[Nuclear and Environmental Digest XI C 2 b]
PRETEXT; DISPARATE TREATMENT
In Patrickson v. Entergy Nuclear Operations, Inc. , ARB Nos. 05-069 and 05-070, ALJ No. 2003-ERA-22 (ARB Aug. 32, 2007), the Complainant had been placed on a PIP, and later discharged when the Respondent concluded that he was not meeting his goals and that his performance was deteriorating. The Complainant claimed pretext. The ARB, however, found that the Complainant failed to prove pretext by a preponderance of the evidence because the Complainant presented no proof or even argument that any of the reasons given by the Respondent for the discharge were false. The ARB also found that the record did not support the ALJ's conclusion that the Complainant had been treated differently from similarly situated employees. The Respondent had not dismissed another employee who had been on a PIP for longer than the Complainant, but the ARB found that this employee was not similarly situated, being in a different job and having made steady improvement and having met all of his deadlines, unlike the Complainant. Although other employees had not been discharged for failing to complete health systems reports on time, they did not have the additional performance problems that the Complainant had exhibited. Finally, other employees had not taken projects with them when they changed departments, whereas the Complainant had. However, the ARB found that the record showed that the Complainant had volunteered to take the project when he transferred.
PRETEXT; WHERE THE ONLY TWO WITNESSES WHO TESTIFIED WERE THE COMPLAINANT AND THE RESPONDENT'S OWNER, WHO GAVE CONFLICTING TESTIMONY, AND THE ALJ BELIEVED THE OWNER, PRETEXT IS NOT ESTABLISHED
In Murphy v. Atlas Motor Coaches, Inc. , ARB No. 05-055, ALJ No. 2004-STA-36 (ARB July 31, 2006), PDF | HTM the Respondent was a motor coach company. The Complainant failed to establish that the Respondent's stated ground for dismissal (that the Respondent's main client had asked that the Complainant not drive routes contracted to it because of an allegation that the Complainant had misappropriated a passenger's cell phone) was pretext. The only witnesses were the Complainant and the Respondent's owner/president, who gave differing versions of the cell phone incident. Since the owner/president's version constituted substantial evidence (which the ALJ accepted), the ARB was obliged to uphold the ALJ's finding that the Complainant was fired for legitimate, non-discriminatory reasons.
IX C 2 b Evidence that other employees were also discharged
Where the Complainant and seven other employees had prepared a list of grievances while away from their work site for over one hour -- only the last of which involved a safety issue -- and presented the list to a supervisor, who then merely glanced at the list and immediately discharged all eight employees for insubordination, the Secretary accepted the ALJ's credibility assessment and found that the supervisor did not realize the grievance list contained a safety-related complaint at the time Complainant was discharged, though he had previously discussed all of the issues on the grievance list with the employees. Although Complainant had made safety complaints throughout his five month employment, the Secretary agreed with the ALJ that pretext had not been shown -- that it was inconceivable that all eight employees would be fired in retaliation for Complainant's safety related complaints. Seal v. The American Inspection Co., 92-ERA-6 (Sec'y Mar. 17, 1995), amended (Sec'y Mar. 24, 1995).
[Nuclear and Environmental Whistleblower Digest XI C 2 b]
PRETEXT; BELIEF THAT THE COMPLAINANT POSED A THREAT OF VIOLENCE AT WORK; EX PARTE RESTRAINING ORDER
In Morriss v. LG&E Power Services, LLC , ARB No. 05-047, ALJ No. 2004-CAA-14 (ARB Feb. 28, 2007), PDF | HTM the ALJ erroneously placed the burden upon the Respondent to prove that the Complainant posed a threat of violence at work. Rather, the Complainant had the burden of proving that the Plant Manager did not genuinely believe that the Complainant posed a threat of workplace violence and therefore, his asserted reliance on this belief was merely a pretext for discrimination. The Board wrote: "There is a crucial distinction here. It is not sufficient for [the Complainant] to establish that the decision to terminate [the Complainant]'s employment was not "just, or fair, or sensible . . . rather he must show that the explanation is a phony reason." Thus, [the Complainant] must show that the [Plant Manager]'s proffered explanations are false and a pretext for discrimination." Slip op. at 42 (footnote omitted).
The ALJ had declined to infer that " ex parte Domestic Relations Orders raise an inference of a tendency toward violence against fellow employees or anyone else at work." The ARB found that the ALJ's ruling ignored pertinent facts: that the restraining order was entered after a domestic relations state court judge heard evidence and that the Complainant's wife was herself an employee of the Respondent who had been the subject of violence at the Complainant's hands. The Board wrote: "We do not believe that it was necessary for [the Plant Manager] to wait until the Complainant more seriously injured [his wife] or another employee while at work to reasonably believe that the Complainant might pose a threat of workplace violence and to act to fulfill his duty to provide his workforce, including [the Complainant's wife], with a safe and secure work environment. Thus, while the evidence of record did not convince the ALJ that [the Complainant] posed a threat of violence in the workplace, we find that [the Complainant] has failed to establish by a preponderance of the evidence that [the Plant Manager] did not genuinely believe this to be true.
[Nuclear and Environmental Whistleblower Digest XI C 2 b]
LEGITIMATE NON-DISCRIMINATORY REASONS FOR ADVERSE ACTION; PRETEXT NOT SHOWN
In Schlagel v. Dow Corning Corp. , ARB No. 02-092, ALJ No. 2001-CER-1 (ARB Apr. 30, 2004), the ARB reviewed the evidence and found that the Complainant failed to establish by preponderance of the evidence that the Respondent had discriminated against him by transferring, suspending and ultimately firing the Complainant where the record showed
-- that employees were encouraged to raise environmental issues and concerns, and that that the Complainant's concerns had been investigated and either been addressed and resolved or proven to be unfounded;
-- that, although that Complainant's technical engineering skills were respected, performance appraisals (including one prior to his protected activity) noted a need to improve leadership skills;
-- that Complainant was offered a new position because an upcoming reduction in production made it impossible for the Complainant to stay in his manufacturing position, and testimony indicated that the new position was a good fit for the Complainant and was not a demotion;
-- that the Complainant was justifiably suspended when he sent an e-mail to the Respondent's CEO stating that he had been bullied into the job and later sent an e-mail to everyone at the facility (including non-employee contractors) disparaging his potential supervisor.
-- that the e-mail to the entire work force attached confidential information and caused disruption at the plant requiring the plant manager to explain to the workers that the safety and environmental concerns had already been investigated and resolved.
[Nuclear & Environmental Whistleblower Digest XI C 2 b]
PRETEXT; ABSENCE OF PRIOR DISCIPLINE; ERA WHISTLEBLOWER
PROVISION IS A DISCRIMINATION STATUTE, NOT A PERSONNEL MANUAL
In Gale v. Ocean Imaging , ARB No. 98 143, ALJ No. 1997 ERA 38 (ARB July 31, 2002), the ALJ had found Respondent's articulated reasons for discharging Complainant to be insignificant, and therefore pretextual, in large part because Complainant had not been disciplined prior to her termination. The ARB reviewed the evidence of record, and came to the opposite conclusion, largely because each of the instances of conduct alleged by Respondent to have led to Complainant's discharge did occur. In regard to the lack of prior discipline, the ARB wrote:
The absence of disciplinary action against Complainant prior to her protected activity does not establish that Respondents' alleged reasons for her discharge were pretextual. Ventura testified without contradiction that Gale was terminated under the same process as any other employee and that Respondent did not have a policy requiring it to bring decrements in an employee's performance to the employee's attention. T. 197. The ALJ's contention that the absence of prior disciplinary acts showed pretext assumes that Respondent had to take other disciplinary measures before dismissing Complainant. There was no evidence that Respondent had a policy or practice of progressive discipline, under which it imposed lesser sanctions prior to terminating employment, nor does the ERA require Respondents to have had such a policy or practice. Similarly, Respondents' failure to weigh the favorable comment of a patient in August against the earlier comment on Gale's rudeness, made by a different patient in March, does not establish pretext. "We [courts] do not sit as a super personnel department that reexamines an entity's business decisions." Morrow v. Wal Mart Stores, Inc . 152 F.3d 559, 564 (7th Cir. 1998). Section 5851 of Title 42 of the U.S. Code is a discrimination statute, not a code of sound personnel management.
[Nuclear & Environmental Whistleblower Digest XI C 2 b]
PRETEXT NOT ESTABLISHED
In Pafford v. Duke Energy Corp. , ARB No. 02 104, ALJ No. 2001 ERA 28 (ARB Jan. 30, 2004), an accidental electrical fire and small explosion occurred at one of Respondent's facilities, and following an investigation Complainants were discharged on the ground that they made false and misleading statements about their role in the accident. Complainants contended that Respondent actually fired them because they engaged in protected activity. Following a hearing the ALJ found that the investigation into the accident was "thorough and fair" and that Respondent's management sincerely and reasonably relied upon it in finding that Complainants had lied to and misled the investigators. The ARB found that the ALJ had thoroughly analyzed all of the evidence and correctly applied relevant law in finding that Complainants had failed to establish pretext.
[Nuclear & Environmental Whistleblower Digest XI C 2 b]
ULTIMATE QUESTION OF RETALIATORY MOTIVE; PROTECTED ADVOCACY THAT INTERFERS WITH PERFORMANCE OF ASSIGNED DUTIES
In Jenkins v. United States Environmental Protection Agency , ARB No. 98 146, ALJ No. 1988 SWD 2 (ARB Feb. 28, 2003), the ARB concluded that although Complainant was "free vigorously to report what she considered to be violations of the environmental laws without reprisal... it was her responsibility to carry out EPA policy as senior management determined it [and] she was not at liberty to disregard or thwart the instructions of her supervisors...." The Board found that Complainant was not removed from certain assignments for her advocacy per se, but on account of her employer's business needs. The Board wrote that it distinguished "between protected complaints and unprotected failures to complete work assignments as requested...."
[Nuclear & Environmental Whistleblower Digest XI C 2 b]
RETALIATORY MOTIVE; RELATIVE NEED TO RESOLVE DISPUTES OVER SCIENTIFIC AND POLICY DISPUTES
The ARB's role is not to resolve scientific or policy questions over which a complainant and her employer may disagree or have differing views of priorities, but to determine whether the respondent reliatated against the complainant for expressing her views. See Jenkins v. United States Environmental Protection Agency , ARB No. 98 146, ALJ No. 1988 SWD 2 (ARB Feb. 28, 2003).
[N/E Digest XI C 2 b]
PRETEXT NOT ESTABLISHED
In Olsovsky v. Shell Western E&P, Inc. , 96-CAA-1 (ARB Apr. 10, 1997), Complainant conceded that he may have been legitimately disciplined for his misconduct, but maintained that discharge was unreasonably harsh in light of his conduct and in comparison with discipline imposed on other employees. The Board found that pretext for discharge was not established where Complainant had failed to show that other employees similarly situated ( i.e. , those with substantially similar disciplinary records) received more lenient treatment; Complainant's discharge occurred only after counseling and progressive discipline; many witnesses indicated that Complainant was difficult to get along with and sometimes worked in an unsafe manner; many of Complainant's performance problems began before he engaged in any protected activity.
[N/E Digest XI C 2 b]
EMPLOYER'S MISTAKEN BUT HONEST ACTIONS
In Keene v. Ebasco Constructors, Inc. , 95-ERA-4 (ARB Feb. 19, 1997), Complainant (who had unescorted access clearance) was treated as a "visitor" and given a Fitness-for-Duty drug test when, accompanying a friend to the work site, a worker had noticed alcohol on Complainant's breath. The Board found that the test had not been given as a means of discouraging Complainant's return to work because of protected activity, but based on a reasonable and honest belief that Complainant should be treated as a "visitor". The Board held that even if that was a mistake, such a mistake was not a violation of the ERA under the circumstances.
RETALIATORY MOTIVE; REMOVAL FROM SITE FOR MEDICAL REASONS;
COMPLAINANT PLACED IN RESPONSIBLE POSITION
[N/E Digest XI C 2 b]
Where the Respondent was aware of the Complainant's reputation as a whistleblower and his commitment to correcting certain violations, and had placed the Complainant in a position of responsibility for correcting the violations based on his qualifications and knowledge, the Secretary found the Complainant's theory that the Respondent had sent him to a doctor to prevent the Complainant from reporting and correcting problems to be "improbable." Smith v. Esicorp, Inc. , 93-ERA-16 (Sec'y Mar. 13, 1996).
XI C 2 b Pretext not established
Where the Respondent began advertising for a replacement for the Complainant nearly a month before it learned of the Complainant's protected activity, and where there was ample evidence that the Respondent terminated the Complainant's employment because of poor attitude, abuse of overtime, and complaints from clients, the Complainant failed to establish that he protected activity either led to, or played a role in the Respondent's decision to discharge the Complainant. Jopson v. Omega Nuclear Diagnostics, 93-ERA-54 (Sec'y Aug. 21, 1995).
XI C 2 b CAUSATION; UNPROTECTED CONDUCT IMMEDIATELY PRIOR TO ADVERSE EMPLOYMENT ACTION; PERVASIVE POLICY OF ENCOURAGING SAFETY COMPLAINTS; REDUCED PUNISHMENT
Evidence that a complainant engaged in wholly unprotected misconduct immediately prior to the respondent taking adverse employment action may belie a causal connection between earlier, ongoing protected action and the adverse action. See Gibson v. Arizona Public Service Co., 90-ERA-29, 46 and 53 (Sec'y Sept. 18, 1995), citing Monteer v. Milky Way Transp. Co., Inc., 90-STA-9 (Sec'y July 31, 1990).
Evidence of a pervasive policy by the respondent of encouraging safety complaints may assist in persuading the factfinder that retaliation was not a factor in the decision to take adverse employment action against a complainant. See id.
The mere fact that the respondent takes an adverse employment action that deviates from company policy does not, in itself, establish retaliatory motive. See id.
The fact that adverse employment action may be reduced as a result of a complainant's protected activity does not establish actionable retaliation where it is established that the original punishment was warranted for legitimate and nondiscriminatory reasons. See id. (Complainant's punishment may have been reduced as a result of his threat to go to the NRC).
XI C 2 b Progressive discipline policy; absence of evidence that failure to use was for illicit reasons and presence of evidence that Complainants' behavior was different in nature that others who engaged in similar behavior
In Collins v. Florida Power Corp., 91-ERA-47 and 49 (Sec'y May 15, 1995), the Complainants were immediately terminated from employment upon the Respondent's discovery that they had been using Respondent's computers for a private business purpose. Although the Complainants argued that the Respondent should have used its progressive discipline policy, the Secretary found that there was no evidence that there was a failure to apply a progressive discipline for illicit reasons. The Secretary quoted with approval the ALJ's observation that the Respondent "was entitled to fire the Complainants for good reasons, bad reasons, or no reason, 'as long as it's not a discriminatory reason.'" Slip op. at 12-13, quoting transcript at 525.
In addition, the Secretary dismissed the Complainants' evidence that other private businesses were being carried on at the Respondent's facility without disciplinary action based on credible testimony that the persons who disciplined the Complainant did not know about the other businesses, and based on evidence that the Respondent believed that the nature of the Complainants' business (which included the sale of sexual devices) would discredit and embarrass the company. Further, one Complainant had not been entirely forthcoming in discussing his outside activities when confronted prior to the discharge.
XI.C.2.b. Pretext not established
In Chavez v. Ebasco Services, Inc., 91-ERA-24 (Sec'y Nov. 16, 1992), the respondent established legitimate, nondiscriminatory reasons for the complainant's layoff, and the complainant failed to show that these reasons were a pretext for discrimination where
-
the nuclear power plant mandated layoffs by the
respondent, a contractor, because of a reduction in
force.
-
the complainant was one of many employees laid
off.
-
testimony indicated that the respondent was not
aware of the complainant's protected activity at the
layoff selections were made.
-
testimony indicated that the personnel involved in
selecting the complainant for layoff never mentioned
safety complaints or other problems with the
complainant, and the record showed that the complainant
had been given a "good" evaluation and was
eligible for rehire.
- testimony indicated that the complainant's difficulty in being rehired related to his status as a traveler from a different union local.
XI.C.2.b. Simultaneous discharge of employee who did not engage in protected activity
In Seraiva v. Bechtel Power Corp., 84-ERA-24 (ALJ July 5, 1984), adopted (Sec'y Nov. 5, 1985), the fact that another employee who did not engage in protected activity was also discharged for being involved in the same violation as Complainant indicated that stated reason for Complainant's discharge was not pretext.
XI.C.2.b. Self-evident that excessive frivolity at nuclear facility could create safety problems
The Secretary dismissed the complainant's argument that the respondent's stated reason for terminating the complainant's employment, past horseplay, was pretext, because there was no testimony to support the ALJ's conclusion that the alleged joking on the job could endanger the safety of fellow employees, on the ground that "it should be evident that excessive frivolity at a nuclear facility could very easily create safety problems."
Young v. CBI Services, Inc., 88-ERA-8 (Sec'y Dec. 8, 1992), slip op. at 8.
XI.C.2.b. Past behavior and performance of complainant
In Kettl v. Gulf States Utilities Co., 92-ERA-16 (ALJ Dec. 30, 1992), the ALJ found that Respondent had a reasonable independent basis for not recommending Complainant for management training even if he had not engaged in protected activity, namely, he was not recommended by the majority of his supervisors due to an inability to get along with them. Specifically, he had shown past poor judgment in stressful situations, and had surreptitiously tape recorded a conversation with a vice-president complaining about his mistreatment by Respondent.
XI.C.2.b. Requiring Complainant to submit to psychological testing
In Diaz-Robainas v. Florida Power & Light Co., 92-ERA-10 (ALJ Oct. 29, 1993), the ALJ found that requiring a employee to attend a psychological evaluation was a legitimate management decision under the circumstances. Respondent had a reasonable suspicion that Complainant's fitness for duty may have been questionable because important aspects of his performance were repeatedly below average and Complainant had discussed his stress, fatigue and medical problems with numerous people. The ALJ noted that NRC regulations require that senior engineers are fit for duty, and that Respondent's fitness for duty policy included psychological testing. The ALJ found that the person who directed Complainant to submit to evaluation did not know that Complainant had made internal complaints, and that Complainant did not go to the NRC until after he was directed to submit to evaluation.
XI.C.2.b. Work refusal
In Abu-Hjeli v. Potomac Electric Power Co., 89-WPC- 1 (Sec'y Sept. 24, 1993), Complainant was given a "marginal" rating on his performance review by a new supervisor (a much lower rating than that given by the predecessor), largely because Complainant had refused to perform a review on a study unless he could have access to the raw data. The Secretary, in agreeing with the supervisor's assessment, noted that as a subordinate, Complainant was not in a position to dictate the conditions for his review of the study. Pensyl v. Catalytic, Inc., 83-ERA-2 (Sec'y Jan. 13, 1984) ("Employees have no protection [under an analogous employee protection provision] for refusing work simply because they believe another method, technique, or procedure or equipment would be better or more effective.") The supervisor had given Complainant the option of qualifying his review with a written statement about the conditions under which it was performed.
XI.C.2.b. Pretext not established merely because additional steps were taken in performance evaluation
In considering whether Complainant established pretext for the stated reason for a poor performance evaluation -- that Complainant was not aggressively pursuing his new assignment -- the Secretary found that the fact that Complainant and his supervisors submitted written rebuttal and surrebuttal regarding the performance evaluation and held an "unusual" conference, showed only that Complainant and his supervisors disagreed and, quite typically, became combative over the evaluation. Bassett v. Niagara Mohawk Power Corp., 85-ERA-34 (Sec'y Sept. 28, 1993).
XI.C.2.b. No adverse action taken against another employee who engaged in same protected activity
In Thompson v. Tennessee Valley Authority, 89-ERA- 14 (Sec'y July 19, 1993), Complainant established a prima facie case, and Respondent articulated a legitimate, nondiscriminatory reason for the adverse action. The Secretary stated that the first determination after rebuttal in considering whether Complainant met his burden of showing intention discrimination is whether the evidence shows that discriminatory reasons more likely motivated the adverse action rather than the reasons proffered by Respondent.
Complainant failed to meet his burden because there was evidence that another employee who engaged in the same protected activity as Complainant had no adverse action taken against him.
XI.C.2.b. Reasonableness of discharge
Lockert v. United States Dept. of Labor, 867 F.2d 513 (9th Cir. 1989).
Lockert was a quality control inspector at the Diablo Nuclear Power Plant in California who claimed he was terminated in violation of the ERA for conducting protected activity such as industry code research and safety/quality problem reporting. Employer alleged that Lockert was terminated because he twice left his assigned work area without permission in violation of the rules for employees, on one occasion to do industry code research. Lockert claimed that industry code research is condoned on the job but now being used to discharge him. The facts make clear that very few co-workers or supervisers worked well with Lockert. Both the ALJ and the Secretary of Labor concluded that Lockert's discharge was not in retaliation for his safety related activities so the whistlebower protection did not apply. They relied primarily on two witnesses (supervisors) who were found to be credible, Lockert's admission to leaving work without permission, and Lockert's failure to submit any evidence establishing that he made unusually numerous or serious safety complaints. The Court of Appeals affirmed, noting that it might have ruled differently had the matter been before it de novo instead of as a deferential review of the factual findings.
XI.C.2.b. Other employees not shown to have been granted leave denied to Complainant
Where the Respondent denied the Complainant's request for leave without pay to take a course not related to his job duties, the reason for the denial -- not wishing to set a precedent -- was not shown to be pretextual where the record was silent in regard to whether other employees had been granted such leave and under the terms of the personnel manual, employees are not entitled to leave without pay as a matter of right. Furthermore, the Complainant's discharge came only after he decided to stay away from work to take the course, and persisted in refusing to return to work despite warning that he would be deemed to have resigned.
Devine v. Buncombe County Dept. of Engineering Services, 87-SWD-1 (ALJ June 19, 1987), aff'd (Sec'y June 28, 1990).
XI.C.2.b. Recurring work deficiencies
When an employee has recurring work deficiencies, the employer legitimately may respond with low performance ratings, suspension and discharge. Jain v. Sacramento Municipal Utility District, 89-ERA-39 (Sec'y Nov. 21, 1991) (recurring deficiencies in performance justified adverse performance appraisal); Sellers v. Tennessee Valley Authority, 90-ERA- 14 (Sec'y Apr. 18, 1991) (inability or lack of desire to perform work in a timely manner justified adverse performance rating and discharge), aff'd mem., No. 91-7474 (11th Cir. Apr. 30, 1992).
Crosby v. Hughes Aircraft Co., 85-TSC-2 (Sec'y Aug. 1, 1993).
XI.C.2.b. Previous discharge of different employee for same violation
The testimony of another district manager that he had previously
discharged an employee for failure to complete the same forms the
Complainant failed to complete, under similar circumstances, was
found to be credible evidence in regard to the issue of pretext
in
Monteer v. Casey's General Stores, Inc.,
88-SWD-1
(Sec'y Feb. 27, 1991).
XI.C.2.b. Protected activity does not immunize insubordinate employee
Even when an employee has engaged in protected activities, employers legitimately may discharge for insubordinate behavior, work refusal, and disruption. See, e.g., Dunham v. Brock, 794 F.2d 1037, 1041 (5th Cir. 1986); Hale v. Baldwin Associates, 85-ERA-37 (Sec'y Sept. 29, 1989), adopting , (ALJ Oct. 20, 1986) (no statutory violation where employee discharged for not accepting assignments and for disrupting the work place); Couty v. Arkansas Power & Light Co., 87-ERA-10 (Sec'y Feb. 13, 1992). Abu-Hjeli v. Potomac Electric Power Co., 89-WPC-1 (Sec'y Sept. 24, 1993) (record established incidents of shouting at the workplace and insubordination; during and after meeting with new Vice President, Complainant's behavior was erratic).
XI.C.2.b. Employer's belief, not fairness of discharge, is what is relevant
In Seraiva v. Bechtel Power Corp., 84-ERA-24 (ALJ July 5, 1984), adopted (Sec'y Nov. 5, 1985), Complainant was discharged for failing to verify that safety tags had been put where they should have been. The ALJ found that Complainant's supervisors believed that it was Complainant's responsibility to verify the placement the tags, and although Complainant disputed whether it was really his responsibility to make that verification, the ALJ found that it did not matter whether the discharge was warranted under the circumstances but only whether the discharge was in retaliation for protected activity. The ALJ quoted Turner v. Texas Instruments, 555 F.2d 1251, 1257 (5th Cir. 1977): "Title VII and section 1981 [Equal Rights Under the Law, including freedom from employer retaliation] do not protect against unfair business decisions -- only against decisions motivated by unlawful animus."
XI.C.2.b. Pretext not established
In Dysert v. Westinghouse Electric Corp., 86-ERA-39 (Sec'y Oct. 30, 1991), the Respondent's stated reason for discharging the Complainant was that he assaulted a co-worker, and the Complainant contended that the stated reason was pretext, inter alia , based on the lack of a fair hearing. The Complainant's burden was to show, not a lack of due process which is not applicable to a private employer's decision making, but that the procedures were so inherently unfair that discrimination can be inferred from it. Morgan v. Massachusetts General Hospital, 712 F. Supp. 242, 253 (D. Mass. 1989) (termination decision reviewed by several people with no knowledge of plaintiff's situation, but without a "full and fair hearing", does not justify inference of discrimination), aff'd in part, vacated in part, on other grounds, 901 F.2d 186 (1st Cir. 1990). In Dysert , the Respondent's investigation depended on the credibility of the Complainant and the other employees interviewed. The Respondent's decision to believe the other employees and not the Complainant did not imply discrimination.
XI.C.2.b. Fact that Respondent assigned quality control work to Complainant made unconvincing Complainant's contention of retaliation
Where the record indicated that Respondent appeared to value Complainant's statistical analysis of reports used to obtain licenses and permits under the FWPCA (it continued to assign him to statistical reviews despite his severe criticism of an earlier report and changed its statistical analysis in response to Complainant's suggestions), Complainant's contention that Respondent retaliated against him because of his criticisms of its environmental studies was unconvincing. Abu-Hjeli v. Potomac Electric Power Co., 89-WPC-1 (Sec'y Sept. 24, 1993).
XI.C.2.b. Pretext not established
In Chavez v. Ebasco Services, Inc., 91-ERA-24 (Sec'y Nov. 16, 1992), the respondent established legitimate, nondiscriminatory reasons for the complainant's layoff, and the complainant failed to show that these reasons were a pretext for discrimination where
-
the nuclear power plant mandated layoffs by the
respondent, a contractor, because of a reduction in
force.
-
the complainant was one of many employees laid
off.
-
testimony indicated that the respondent was not
aware of the complainant's protected activity at the
layoff selections were made.
-
testimony indicated that the personnel involved in
selecting the complainant for layoff never mentioned
safety complaints or other problems with the
complainant, and the record showed that the complainant
had been given a "good" evaluation and was
eligible for rehire.
- testimony indicated that the complainant's difficulty in being rehired related to his status as a traveler from a different union local.
XI.C.2.b. Pretext not established
In Atchison v. Tompkins-Beckwith, Inc., 82-ERA-12 (Sec'y Jan. 28, 1988), Respondent learned at the same time that Complainant was testifying before the NRC and that he had been fired rather than laid off from his prior position as he had told the recruiter. It was after receiving information that the reason for the firing was failure to carry out assigned functions and receiving confirmation of this fact from Complainant that Complainant was fired by Respondent.
The Secretary assumed arguendo that a prima facie case had been established, and analyzed the case under the pretext approach. Based on extensive evidence that Complainant was hired as part of a re inspection program in which the need for qualified and trustworthy inspector was paramount, the Secretary concluded that the reasons stated for firing Complainant were not pretextual. The Secretary's discussion of the evidence is lengthy. The following paraphrases that discussion:
The Secretary concluded that "it is neither the function of the ALJ, nor mine to determine which misrepresentations made to an employer are material or represent egregious conduct. Whistleblower protection provisions are not intended to deprive employers from using their best business judgment as to whom they will employ or retain in employment, so long as that judgment is untainted by unlawful motive. See Dunham v. Brock, 794 F.2d 1037, 1040-1041 (5th Cir. 1986)."
[Editor's note 1: The Fifth Circuit issued a slip opinion in this matter, but I do not have a copy of it. Atchison v. cLaughlin, No. 88-4150 (5th Cir. Nov. 7, 1988).]
[Editor's note 2: Complainant's complaint against his former employer was litigated in case no. 82-ERA-9. The Secretary found Atchinson to have been discriminated against in that case, but the Fifth Circuit in Brown & Root v. Donovan, 747 F.2d 1029 (5th Cir. 1984), found that Atchinson's internal complaints were not protected under the ERA.]
XI.C.2.b. Pretext not established
Where the uncontradicted testimony adduced at hearing indicated that the complainant failed to follow instructions, was inflexible, and lacked diplomacy in interacting with the staff, and where the complainant was one of twelve employees hired to report safety concerns and none of the others were discharged, the complainant failed to prove that the articulated reason for his discharge was pretextual. St. Laurent v. Britz, Inc., 89-ERA-15 (Sec'y Oct. 26, 1992), slip op. at 3- 5.
XI.C.2.b. Documentation of reason for discharge not required where such documentation not shown to be normal business practice
In Thompson v. Tennessee Valley Authority, 89-ERA- 14 (Sec'y July 19, 1993), the ALJ accepted as worthy of credence Respondent's proffered explanation for Complainant's discharge -- ineffective leadership -- even though there was no documentation to back up the testimony to this effect. The Secretary found that there was no requirement of such documentation where Respondent presented testimony that its practice was not to document for senior managers such as Complainant because they served at the pleasure of the Board, and Complainant did not present any evidence that documentation was required.
XI.C.2.b. Pretext not established
Where the Respondent's articulated reason for discharging the Complainant was that he assaulted a co-worker, the Complainant failed to establish pretext based on disparate treatment between him and another worker who had an argument with the same co- worker assaulted by the Complainant and had at one point grabbed the co-worker's arm and moved him toward a wall. The Respondent had concluded that this incident was not comparable to the Complainant's attack, and there was nothing in the record to prove that the Respondent's conclusion was pretext. See cDonald v. Santa Fe Trail Transportation Co., 427 U.S. 273, 283 n.11 (1976) (plaintiff must show that offenses "of comparable seriousness" were committed by other employees who were not fired); Moore v. Charlotte, 754 F.2d 1100, 1107 (4th Cir. 1985) (court must assess "the gravity of the offenses on a relative scale . . . 'in light of the harm caused or threatened to the victim or society and the culpability of the offender.'") Dysert v. Westinghouse Electric Corp., 86-ERA-39 (Sec'y Oct. 30, 1991).
XI.C.2.b. Inappropriate behavior
Where the evidence of record overwhelmingly supported the reason
the Respondent gave for discharging the Complainant, his
inappropriate behavior and language toward co-workers, which
culminated in the shouting and poking incident with his team
leader, the Secretary adopted the ALJ's discussion of the
voluminous evidence indicating that the Respondent constructively
discharged Kahn because of his behavior and not for reasons
proscribed by the ERA.
Kahn v. Commonwealth Edison
Co.,
92-ERA-58 (Sec'y Oct. 3, 1994).
XI.C.2.b. Complainant retained longer than he would have been because he engaged in protected activity
In Scott v. Alyeska Pipeline Service Co. , 92-TSC-2 (ALJ Jan. 29, 1993), Complainant obtained confidential, non- discoverable documents prepared by attorneys for Respondent to assess the ramifications of an investigation of Complainant. The investigation began when a television documentary aired -- "The Scottish Eye" -- about the Exxon Valdez oil spill (Complainant's last name is Scott). That program included confidential company documents, and Respondent decided to launch an undercover-type investigation.
The documents showed that at the end of an owner's meeting, it was determined that Complainant should be terminated, but not for having caused the leaks because it was clear that the owners were concerned was improper and may have been illegal. The record established that Complainant had been recommended for termination of employment by other Officers who had no knowledge of the investigation and whose recommendations were based solely on job- related factors.
The ALJ was clear in his conclusion that Complainant's work history "was such that it is remarkable he still was employed at the time the Wackenhut investigation began." The ALJ was also clear that he found Complainant to be totally lacking in credibility.
[Editor's note: This is a very brief summary of a long and detailed opinion, but in essence, Complainant's protected activity actually delayed his firing rather than caused it.
Complainant obtained the attorney's notes after they were leaked by a Congressional committee]
XI.C.2.b. Pretext not established: management decision on who to promote; that Complainant may have lacked recent supervisory experience was not an impermissible consideration even though it was possibly due to prior discrimination where there was not a timely complaint about the prior discrimination ; reasonable time limits may be placed on quality control work
In Bassett v. Niagara Mohawk Power Co., 86-ERA-2 (Sec'y Sept. 28, 1993), Complainant alleged that he was denied a promotion during a company reorganization because of past protected activity. The Secretary found that Complainant's protected activity played no part in his failure to receive a promotion:
-
The ALJ found the supervisor who made the decision not
to promote Complainant to be a credible witness and
accepted his explanation of the motivation -- the
Secretary found this conclusion to be supported by the
evidence and the law
-
The supervisor testified that Complainant was
technically competent and assigned him a "key
assignment" [which the Secretary noted was not a
less desirable job -- it was just not a management
position], but did not place him in a management
position because he had "shortcomings" when
compared to other candidates. Specifically, others had
more cumulative or recent managerial experience and
better relative performance records. In addition, the
supervisor testified that Complainant had not
demonstrated to him the necessary administrative and
leadership abilities, and gave specific examples.
-
These reasons are legitimate and nondiscriminatory.
-
The supervisor was permitted to take into consideration
the lack of recent supervisory experience, even though
it may have occurred as a natural consequence of an
earlier demotion that Complainant had contended was
discriminatory. Since Complainant did not timely
challenge the demotion, Respondent was entitled to
treat the demotion as lawful.
United Air Lines,
Inc. v. Evans,
431 U.S. 553, 557 (1977).
-
Although the supervisor relied in part on perceptions
of Complainant's failed performance on a project to
coordinate comments on revisions to internal quality
assurance procedures, and certain aspects of such work
may have been protected activity, the aspect of the
work that led to the supervisor's disapproval of
Complainant's performance was not protected -- failure
to complete the assignment within the time allotted.
The time limits had not been shown to be unreasonable
or unnecessary.
See Lockert v. United States Dept.
of Labor,
867 F.2d 513, 518 (9th Cir. 1989)
(employer has the right to place certain reasonable
restrictions on employee's performance of protected
activity, and employee's failure to comply is not
protected);
see also Jefferies v. Harris County
Community Action Assoc.,
615 F.2d 1025, 1036 (5th
Cir. 1980) (not all "opposition" activity is
protected under Title VII; employee's conduct must be
reasonable in light of the circumstances). The record
showed that the supervisor sincerely believed that
Complainant failed to follow supervisory instructions,
and the supervisor did not discriminate in acting on
that belief.
See Jefferies,
615 F.2d at 1036;
Dister v. Continental Group, Inc.,
859 F.2d
1108, 1116 (2d Cir. 1988) (reasons tendered need only
be nondiscriminatory).
- The supervisor had announced, on assuming his job, that there would be a reorganization and started recruiting. This was before the most recent of Complainant's protected activity. The new managers placed above Complainant were hired from the outside, at levels well above Complainant at the time they were hired. The supervisor was aware of Complainant's participation in certain claims of unfair treatment and the Secretary concluded that it would have been unlikely that the supervisor would have retaliated at that point. (the supervisor had come on board after an earlier group of incidents involving Complainant and protected activity; many prior managers left and the new supervisor had demonstrated a commitment to change and improvement; the new supervisor had prior opportunity to retaliate against Complainant and had not done so).
XI.C.2.b. Pretext not established; all employees fired; lack of knowledge
Where eight technicians had been engaged in the preparation of a grievance petition while waiting for work authorization in their assigned area, and had been out of contact with superiors during that time, and were fired immediately upon presentation of the petition, the respondent's stated reasons for the mass firing were completely credible: the company for which the respondent was performing under contract was extremely sensitive about the amount of work contracting employees did and about their being in unauthorized areas.
Pretext was not shown. All eight technicians were fired, many of whom apparently had not expressed concerns about safety matters. The supervisor who actually fired the complainant did not know that the grievance petition contained a safety related complaint. Morris v. The American Inspection Co., 92-ERA-5 (Sec'y Dec. 15, 1992), slip op. at 9-10.
XI.C.2.b. "Provoked" protected employee is not automatically absolved from overstepping defensible bounds of conduct
In Dunham v. Brock, 794 F.2d 1037 (5th Cir. 1986), the ALJ found that although Complainant was brought into a counseling session for the impermissible motive of trying to modify his attitude and behavior in regard to protected activity, Complainant's behavior during the counselling session provided a genuine overriding impetus for termination of his employment. The ALJ found that the counselling session was not a set-up to provoke Complainant, and that Complainant's foul language and disdainful conduct, essentially telling his supervisor to "take his job and shove it," was the reason for the discharge, not retaliation for protected activity.
The Fifth Circuit, applying a substantial evidence review standard, found that substantial evidence supported the ALJ's factual findings. The court stated that abusive or profane language coupled with defiant conduct or demeanor justify an employee's discharge on the ground of insubordination. The court stated that the foul language and mere resistance to change, without more, may have led to a different conclusion, but that when taken together with Complainant's cavalier attitude and his repeated encouragement that Complainant show him to the door, the facts supported a reasonable inference of insubordination sufficient to justify a discharge. Section 210 does not sanction this type of abuse, and an employer need not tolerate it.
Complainant contended that his discharge was automatically invalid because it was provoked by and inextricable from the improperly motivated counseling session during which it transpired. The court stated that a fact-finder is to weigh the evidence and determine whether a particular employee response to improper employer provocation is justified. An otherwise protected "provoked employee" is not automatically absolved from abusing his status and overstepping the defensible bounds of conduct.
XI.C.2.b. Threatening behavior
A company may discipline a worker who makes threats against other employees.
In Floyd v. Arizona Public Service Co., 90-ERA-39 (Sec'y Sept. 23, 1994), the Secretary agreed with the ALJ that revealing a pact to kill executives if any harm came to the Complainant or another whistleblower provided ample reason for ordering the Complainant to submit to a drug and alcohol screen and a psychological evaluation and suspending him with pay pending the results of the evaluations, and for issuing a written reprimand and ordering a one day suspension of the Complainant's pay.
XI.C.2.b. Pretext not established
Where Respondent established that it was involved in a program to standardize and upgrade its quality assurance program in all plants, and in accordance with that program made it mandatory that an applicant for an engineering position have an engineering degree or its equivalent, and where Complainant did not have such a degree or its equivalent, and there was no support for Complainant's allegation that others who did not have engineering degrees were promoted, Complainant failed to establish that the denial of a promotion to an engineering position was based on his performance of quality assurance function duties. Similarly, his removal from a procurement position was not shown to be discriminatory where that position, even prior to reorganization, was an engineering function, and where his status and job description had not qualified him for the procurement position. The removal merely put him back to the functions of his job description. Batts v. Tennessee Valley Authority, 82-ERA-5 (Sec'y Mar. 6, 1985).
XI.C.2.b. Weapons brought into previous employer's facility
A legitimate reason for the denial of site access to a nuclear facility is discovery that the Complainant had admitted having taken a pistol into and out of the secured area at another facility. Crosier v. Westinghouse Hanford Co., 92- CAA-3 (Sec'y Jan. 12, 1994).