Text

Notifies of Enforcement Conference Scheduled Before Oct 1993 to Discuss Two Cases of Employee Discrimination Filed W/Dol Under Provisions of Section 210 of ERA of 1974.Attendance Requested
	ML17352A196
Person / Time
Site:	Turkey Point
Issue date:	08/13/1993
From:	Ebneter S; NRC OFFICE OF INSPECTION & ENFORCEMENT (IE REGION II)
To:	Bell W, Goldberg J; BECHTEL CORP., FLORIDA POWER & LIGHT CO.
References
	EA-93-199, EA-93-200, NUDOCS 9308250094
	Download: ML17352A196 (71)
	v • d • e

AUG I 3 l993 Docket Nos. 50-250, 50-251 License Nos.

DPR-31, DPR-41 EA 93-199 and EA 93-200 Florida Power and Light Company ATTN:

Mr. J.

H. Goldberg President

- Nuclear Division Nuclear Energy Department P. 0.

Box 14000 Juno Beach,-Florida 33408 Bechtel Construction, Inc.

ATTN:

Hr.

W. G. Bell Vice President Labor Relations and Safety Post Office Box 3965 San Francisco, California 94119 Gentlemen:

SUBJECT:

ENFORCEHENT CONFERENCE You are requested to attend an enforcement conference to discuss two cases of, employee discrimination that wer e filed with the Department of Labor (DOL) under the provisions of Section 210 of the Energy Reorganization Act of 1974 (ERA), as amended (now in Section 211),

and on which decisions were recently issued by the Secretary of Labor.

The first case, captioned as Roy Edward Nichols v. Bechtel Construction, Inc.

(DOL Case No. 87-ERA-44) was the subject of a "Decision and Order of Remand" issued by the Secretary of Labor on October 26, 1992.

The second, captioned as James Carroll Pillow, Jr. v.

Bechtel Construction, Inc.

(DOL Case No. 87-ERA-35) was the subject of a "Decision and Order of Remand" issued by the Secretary of Labor on July 19, 1993.

In both cases, the Secretary of Labor found that Bechtel Construction violated provisions of the ERA in its employment actions related to the termination of Hr. Nichols and Hr. Pillow at the Florida Power and Light Company's Turkey Point Nuclear Plant in 1987.

In the complaints filed by Hr. Nichols and Mr. Pillow, it was alleged that they were terminated as a result of raising nuclear safety concerns.

Discrimination by a Nuclear Regulatory Commission (NRC) licensee or a contractor of an NRC licensee against an employee for engaging in certain protected activities as defined by Section 210 (now Section 211) is prohibited

,by 10 CFR 50.7.

The individuals responsible for the discriminatory termina-tion were employees of Bechtel Construction, a contractor to Florida Power and Light Company.

9308250094 9308l3 PDR ADOCK 05000250 6:

PDR

Florida Power and Light Company AU<

I S eral In view of the findings made by the Secretary of Labor in these cases (copies of the Secretary of Labor decisions are enclosed), it is expected that Bechtel Construction will address the pertinent issues associated with these cases at the enforcement conference, including whether the individuals responsible for the discriminatory actions are still employed with Bechtel Construction

and, if so employed, whether those individuals are in positions where they could again engage in discriminatory actions against individuals protected under Section

211, and finally, what actions have been taken by Bechtel Construction to preclude supervisors

'and managers from engaging in such actions.

Florida Power and Light Company is also expected to address the pertinent issues associated with these

cases, including actions taken to ensure that contractors and subcontractors performing work related to NRC licensed activities do not engage in discriminatory actions in violation of NRC regulations and Section 211.

Both Florida Power and Liggt Company and Bechtel Construction should be prepared to discuss any specific programs currently in place that address the ability of employees to raise safety-related concerns without fear of reprisal or job related discrimination and how these programs assure that both licensee and contractor supervisors and managers understand and execute their responsibilities under these programs.

With regard to setting a date for the enforcement conference, please have your representative contact Mr. Marvin V. Sinkule, Chief, Reactor Projects Branch 2, Division of Reactor Projects, Region II, at (404) 331-5506, within seven days of your receipt of this letter to coordinate an acceptable date for the enforcement conference.

We would expect to conduct the enforcement conference before October 1,

1993.

In accordance with Section 2.790 of the NRC's "Rules of Practice,"

Part 2, Title 10, Code of Federal Regulations, a copy of this letter and its enclosures will be placed in the Public Document Room.

Should you have any questions concerning this letter, we will be pleased to discuss them with you.

Sincerely,'tewart D. Ebneter Regional Administrator

Enclosures:

1.

DECISION AND ORDER OF REMAND, Secretary of Labor, 10/26/93, Nichols v. Bechtel Construction, Inc.

87-ERA-44 Enclosures con't:

(see next page)

Florida Power and Light Company AUG I 3 l993 Enclosures con't:

2.

DECISION AND ORDER OF REHAND:

Secretary of Labor, 07/19/93, Pillow v. Bechtel Construction, Inc.

87-ERA-35 cc w/encls:

Honica Gallagher Associate Solicitor for

'air Labor. Standards U.S. Department of Labor Room N-2716 200 Constitution Ave.,

N.W.

Washington, D.C.

20210 Regional Director U.S. Department of Labor Employment Standards Administration Wage and Hour Division 1371 Peachtree

Street, N.E.

Atlanta, Georgia 30367 District Director Wage and Hour Division U.S. Department of Labor/ESA 1150 S.W. First Street Hiami, Florida 33130 T; F. Plunkett, Site Vice President Turkey Point Nuclear Plant P. 0.

Box 029100

Hiami, FL 33102 L. W. Pearce, Plant General Hanager Turkey Point Nuclear Plant P. 0.

Box 029100 Miami, FL 33102 T. V. Abbatiello, Site guality Hanager Turkey Point Nuclear Plant P. 0.

Box 029100

Hiami, FL 33102 Nuclear Licensing Director Florida Power 5 Light Company P. 0.

Box 14000 Juno Beach, FL 33408 cc w/encls con't:

(see next page)

Florida Power and Light Company AUG J3 IPg cc w/encls con't:

E. J. Weinkam, Licensing Manager Turkey Point Nuclear Plant P. 0.

Box 029100

Miami, FL 33102 Harold F. Reis, Esq.

Newman and Holtzinger, P.C.

1615 L Street, NW Washington, D.C.

20036 John T. Butler, Esq.

Steel, Hector, and Davis 4000 Southeast Financial Center

Hiami, FL 33131-2398 Attorney General Department of Legal Affairs The Capitol Tallahassee, FL 32304 Jacob Daniel Nash Office of Radiation Control Department.of Health and Rehabilitative Services 1317 Winewood Boulevard Tallahassee, FL 32399-0700 Jack Shreve Office of the Public Counsel Room 4, Holland Building Tallahassee, FL 32304 Administrator Department of Environmental Regulation Power Plant Siting Section State of Florida Twin Towers 2600 Blair Stone Road Tallahassee, FL 32301 Joaquin Avino County Hanager of Metropolitan Dade County 111 NW 1st Street, 29th Floor

Hiami, FL 33128 cc w/encls con't:

(see next page)

Florida Power and Light Company AUG l 3 1993 cc w/encls con't:

'Intergovernmental Coordination and Review Office of Planning and Budget Executive Office of the Governor The Capitol Building Tallahassee, FL 32301 State of Florida

Florida Power and Light Company AUG I g >gy bcc w/encls:

L. Raghavan, NRR Document Control Desk K. D. Landis, RII Ross C. Butcher, Senior Resident Inspector U.S. Nuclear Regulatory Commission P.O.

Box 1448 Homestead, FL 33090 PDR SECY OGC CA

JTaylor, EDO

JSniezek, DEDR HThompson, DEDS

SEbneter, RII JLieberman, OE

JGray, OE

RRosanp, OE JGoldberg, OGC

FIngram, PA Enforcement Coordinators

-RI, RII, RIII, RIV, RV

BHayes, OI

EJordan, AEOD DWil1iams, OIG EA File Day File Document Control Desk Wl~ok~$0>

p kK

.RII NVSinkule 8/~~3 R I Herschoff 8/14/93~ ('~)

RII CF vans 8/13/93'I I

en s

8/(3/ 3 RI r

eyes 8//3/93

U.S. DEPARTMENT OF LABOR SECRETARY OF LABOR WASHINGTON. D.C.

DATE: October 26, 1992 CASE NO. 87-ERA-0044 IN THE MATTER OF ROY EDWARD NICHOLS, COMPLAINANT, vo BECHTEL CONSTRUCTION, INC.,

RESPONDENT.

BEFORE:

THE SECRETARY OF LABOR

,DECISION AND ORDER OF REMAND Before me for review is the Recommended Decision and Order (R.D.

and 0.) of the Administrative Law Judge (ALJ) in this case arising under the employee protection provision of the Energy Reorganization Act of 1974, as amended (ERA),

42 U.S.C.

5 5851 (1988).

Complainant, a carpenter at a nuclear power facility, alleged that Respondent retaliated against him for raising safety concerns by selecting him for layoff.

Respondent appealed the finding of the Area Director of the Wage and Hour Administration that Respondent violated the ERA and sought a hearing.

After a two-day hearing, the ALJ found that Complainant did not make a prima facie showing that he engaged in protected activity or that such activity, if protected, motivated Respondent's decision to lay off Complainant.

R.D.

and O.,

Conclusions Part C (p.8).

-'~

The ALJ recommended denying the complaint.

Id.

Both Complainant and Respondent filed post-hearing proposed findings of fact and conclusions of law, which I have considered in reaching this decision.

Neither party filed a brief before me, as permitted by the Order Establishing Briefing Schedule.

Based upon a thorough review of the entire record before the AIJ, I find that the AIJ's decision is not supported by the evidence and that Complainant established that he was selected for layoff because of engaging in protected activities.

1. The Facts Complainant worked as a carpenter for Respondent Bechtel Construction, Inc.,

a contractor to Florida Power and Light Company (FPSL), the licensee of the Turkey Point nuclear power facility at Florida City, Florida.

At the time at issue here, Complainant had worked full time for Bechtel for approximately 31

months, excluding a nine or ten week period of layoff, at which time Complainant was one of the last workers laid off.

T. 194.

Complainant was a permanent

employee, rather than one hired for a The R.D.

and 0. has no page numbers.

Accordingly, references to the R.D.

and 0. are to the section and part, with the appropriate page number in parentheses.

By mistake, the ALT' R.D. and 0.

and the initial Secretary's Order Establishing Briefing Schedule were not served on the correct counsel for Complainant.

Consequently, a

Supplemental Order Concerning Briefing, permitting an additional period for filing briefs, was served on all counsel.

Counsel for Complainant submitted a letter indicating that he was unaware of the R.D.

and 0. prior to the Supplemental

Order, and was unable to reach his client for authority to submit a brief pursuant to the Supplemental Order.

No briefs were filed.

specific outage.

T.

194, 371.

Prior to March 1987, Complainant was assigned to the crew of foreman Greg Lilge, which worked outside the containment (or radiologically "hot") area of the facility.

T. 288-289.

That

month, Bechtel needed a great number of craft workers to work in the containment area because of outages in two units.

T. 339; CX 3.

Carpenters general foreman Larry Williams decided to form an additional crew of carpenters to work inside the containment area and named John Wright the foreman of the new crew.

T. 338-340.

Bechtel staffed the new crew by a transfer from an established crew and by hiring new workers.

T. 340-341.

Williams told Lilge to name a carpenter to be transferred to Wright's new crew, and suggested carpenter Russ Smith.

T. 342.

Lilge asked Williams to take Complainant instead.

Id.

Lilge testified that for about six months, he had been having "an attitude problem" with Complainant.

T. 290.

Lilge stated that a few weeks prior to suggesting Complainant for transfer to Wright's new crew, Lilge had recommended to Williams that Nichols be laid off in the next reduction in force.

T. 290; T. 342-343.

T. 343.

Williams told Complainant that Wright's crew needed some experienced carpenters, and that it was "more than likely" that Complainant would return to Lilge's crew when the outage was Approximately every 18 months, the nuclear units at Turkey Point are shut down for refueling, maintenance, and general repairs.

These periods of shut down are called "outages" and require an increase in the number of workers.

R.D.

and O.,

Findings of Fact (p.

2).

over.

T. 345.

At the hearing,

however, Williams testified that he did not tell Complainant the whole truth, and that Williams actually believed that all of Wright's crew (including Complainant) would be laid off at the end of the outage.

T. 344-346.

Complainant. was transferred to Wright's crew in early

March, 1987.

T. 46.

When Wright's crew began working inside the containment

area, a difference of opinion arose between Complainant and Wright concerning the proper procedure for surveying and tagging contaminated tools.

Wright told Complainant that it was not necessary to wait at the tool box for a Health Physics (HP) worker to survey and tag the tools,

~~ but rather that it was acceptable to transport the tools to the HP work station for the survey.

T. 196-197.

Complainant disagreed and stated that he believed safety procedures required that the tools be dose rated and tagged at the tool box.

T. 197, 258.

On occasions when Complainant waited at the tool box for an HP worker to survey and tag the tools, Wright showed his disgust and impatience with Complainant, and said that he wanted Complainant to get to the work site and start working.

T. 107, 199.

Complainant acknowledged that because of his size, he was somewhat slower than other employees in putting on protective gear, T. 200, but stated that another reason he was slower to start the assigned work was that he observed the proper procedures for surveying and

>4 HP workers survey the tools to determine the level of contamination, and indicate on a tag that the tools have been

surveyed, or "dose rated."

T. 68-69.

tagging tools.

T. 199-200.

Complainant told Laborer General Foreman Williams that he had a problem with the way Wright said to handle the tools, and Williams told Complainant he would check into it.

T. 201.

Williams raised the issue with Wright, who confronted Complainant, asked if Complainant had a problem with procedures concerning tools, and advised Complainant to come to Wright first with any such problems.

T.99-100, 202.

Complainant indicated that he already had come to Wright about the issue.

T. 202-203.

Ultimately, HP shift supervisor Hicks resolved the issue of where to survey and tag the tools.

>~

Hicks told Wright that Complainant was correct about where the tools had to be surveyed, and Wright still indicated that he believed that surveying the tools at the tool box caused too much delay.

CX 5 at 10, 22.

Wright capitulated,

however, and told his crew that they had to have their tools surveyed and tagged at the tool box, T. 209-210, as Complainant maintained all along.

Complainant testified that after members of another crew of carpenters, headed by foreman Dave Trantham, were caught violating the tool survey safety procedure, a certain carpenter exhibited offensive behavior toward Complainant in the lunchroom.

T. 203-206.

Wright observed the offensive behavior on several occasions and said words to the effect that if Complainant did The testimony revealed that various health physics supervisors differed on whether it was acceptable to transport the tools to the HP station before surveying and tagging them.

See, e.cC,,

CX 5 at 8-9.

not like it, he could quit.

T. 58-59, 205.

Wright testified that Complainant was slow in getting dressed out in the required protective gear and stretched out the work by working slowly on some assignments.

T. 89-92.

Wright believed that Complainant had "slacked off" recently and exhibited a poor attitude.

T. 89.

Notwithstanding his disappointment in Complainant's performance, Wright did not, inform Complainant that his work was too slow, T. 107-108, or report Complainant's allegedly slow performance to Wright's

'superiors, T. 111-112, except for once mentioning to Williams that Complainant was slow in getting dressed and ready for work in the morning.

T. 120.

When it is time to reduce the number of workers at the Turkey Point plant, the general foreman asks craft foremen to recommend particular workers for layoff.

T. 364-365.

Toward the end of the outage at issue, Williams told Wright to select one of the carpenters on his crew to be laid off as part of an ongoing reduction in force.

T. 366-367.

Wright initially selected a worker who had been absent from work, but then changed his mind and selected Complainant.

T. 366-367, 461-462.

When Wright informed Williams that Complainant would be the first

\\

worker laid off from the crew, Williams asked Wright if he was sure about the choice.

T. 367.

Wright testified that he chose Complainant because of slow work performance and stretching out Xt is undisputed that Bechtel does not use seniority in layoffs.

Complainant acknowledged that the foreman has discretion to choose which workers to lay off.

T. 208.

jobs, and a belief that Wright could get more work out of other crew members.

T. 89, 367.

During the months following Complainant's layoff, Wright's entire crew was laid off except for Wright, who was transferred back to being a laborer on his former crew.

T. 44.

After Complainant was laid off, he asked Williams the reason.

Williams indicated that Complainant had always been a

good worker, and was laid off at John Wright's discretion because Wright believed he could work better with the other carpenters on the crew.

T. 215-216, 369.

Complainant testified that the only time he ever intentionally stretched out a job was when his foreman directed him to do so.

T. 210-211.

Carpenters Lawrence Kippenhan and Paul Ramsdale, who worked on the same crew as Complainant during the Spring 1987 outage, T. 122, 162, testified that Complainant did his work correctly and according to procedures, and did not stretch out jobs, work slowly, or exhibit a poor attitude toward work or his foreman.

T. 135,

138, 172-173.

Complainant's

partner, Michael Dean, agreed that Complainant followed procedures, worked steadily, and got along with his foreman.

T.

279-280.

Ramsdale testified that, based on working for Bechtel as a

temporary worker during five outages, the temporary and less experienced workers usually were laid off ahead of more senior, experienced workers.

T. 175.

However, as the outages ended in the Spring of 1987, Complainant was laid off from Wright's crew

earlier than other, less experienced workers.

T. 75-77.

Kippenhan stated that on three occasions in 1987, Wright directed him to violate established safety procedures.

T. 123-129.

Ramsdale similarly testified about an occasion in 1987 when Wright told him to violate safety procedures.

T. 162-165.

Ramsdale thereafter attempted to be the first person in the containment area so that he could follow the correct safety procedure at issue.

T. 165-166.

2.

~Anal sis There is no dispute that Respondent, a contractor to licensee FP&L, is an employer covered by the ERA, 42 U.S.C.

g 5851(a),

and Complainant, who.worked for Respondent at FP&L's Turkey Point nuclear facility, is a covered employee.

To make a prima facie case, the complainant in a whistleblower case must show that he engaged in protected activity, that he was subjected to adverse action, and that respondent was aware of the protected activity when it took the adverse action.

Complainant also must raise the inference that the protected activity was the likely reason for the adverse action.

Darte

v. Zack Co. of Chica o, Case No. 82-ERA-2, Sec.

Ord., Apr. 25, 1983, slip op. at 8.

At the hearing, Bechtel moved for a directed verdict.

Relying upon Brown

& Root Inc. v. Donovan, 747 F.2d 1029 (5th Cir. 1984),

Bechtel argued that Complainant did not show that he engaged in any protected activities because he did not participate in a Nuclear Regulatory Commission proceeding.

T. 258-262.

In that decision, the Fifth Circuit defined protected activity as requiring "the employee's contact or involvement with a competent organ of government Brown

& Root, 747 F.2d at 1036.

The ALT denied Respondent'6 motion.

T. 268.

The ALZ correctly noted that there is no precedent in the controlling circuit requiring an "external" contact with a government agency to establish protected activity.

See T. 268.

This case arises in the Eleventh Circuit, which has not ruled on the issue.

The majority of courts that have considered the question have held or stated, either explicitly or implicitly, that internal complaints to management are protected under the whistieblower provision in the ERA.

See Zones v. Tennessee Valle Authorit,

948 F.2d 258, 264 (6th Cir. 1991) (explicit);

Cput

v. Dole, 886 F.2d 147 (8th Cir. 1989) (implicit); Kansas Gas

& Elec.

Co. v. Brock, 780 F.2d 1505, 1513 (10th Cir. 1985)

(explicit), cert.

denied, 478 U.S.

1011 (1986); Machowiak v.

Universit Nuclear S stems Inc.,

735 F.2d 1159, 1163 (9th Cir.

1984) (explicit); Co solidated Edison Co. v. Donovan, 673 F.2d 61 (2d Cir. 1982) (implicit).

I continue to be persuaded that reporting violations v

r e

Gas

& Elec., rather than Brown

& Root, set forth the appropriate resolution of this issue.

For the reasons set forth more fully in Goldstein v. Ebasco Constructo s

nc.,

Case No. 86-ERA-36, Sec.

Dec., Apr. 7, 1992, slip op. at 5-10, a

eal docketed, No.

10 92-4567 (5th Cir. June 1,

1992),

and Will v. The Coastal Co Case No. 85-CAA-1, Sec.

Dec.,

June 4,

1987, slip op. at 3-4, 8, I decline to follow the Brown

& Root decision, as the ALJ stated.

The ALJ found, however, R.D.

and O., Conclusions Part B (p.

7), that Complainant's "mere questioning of the correct method in which to handle tools" was not protected activity under the ERA.

-I disagree.

The whistleblower provision of the ERA and similar statutory provisions "share a broad, remedial purpose of protecting workers from retaliation based on concerns for safety narrow, hypertechnical reading of the

[ERA's whistleblower provision] will do little to effect the statute's aim of protection."

Kansas Gas

& Elec.,

780 F.2d at 1512.

Response

to Complainant '

Amended Exceptions, submitted '.. June

~ 989.

Complainant has not offered any reasons why ne should not be bound by the Joint Stipulation.

Accordinaiy, -he Notice has

not, been considered.

Complainant argues that he ALJ denied him a fair hearing by issuing the R.D.

and O. without either permitting closing C/

arguments or considering Complainant's post hearing brier.

Complainant's counsel had just. received a copy of the transcr'pt and notified he ALJ that Complainant would submit a post hearing

brief, when the AZJ issued the R.D.

and O.

seven months after the close of the hearing.

By order of February 13,

'990, "he Secretary accepted for filing Complainant's 157 page, single spaced post hearing brief, and it has been considered in reaching this decision.

Thus, any possible unfairness has been cured.

Complainant urther contends that "he testimonv of Bechtel's expert witness Kelley deprived him o" a fair hearing.

Complainant 'itially moved to strike Kelley's ent' testimony on the ground that Bechtel had not listed him as a witness prior "o the hear'na.

T. 456.

When the AIJ allowed Complainant "o renew his objection at "he completion of Kellev's '=est'mony, Comolainant withdrew his motion to s rike.

T. 464.

Since Closin'arguments and pos" hearing submissions are discretionary.

See 29 C.F.R. j 24. (e)(3).

n this case, the ALJ author zed submission of post-hearina proposed findings of fact and conclusions o= 'aw 30 days after eceipt of "he hearing

=ranscria"-.

689.

Complainant waived cbjec='on to the testimony, '-'as not "nzair to include it.

Finally, Complainant contends that he also was prejudiced by the admission at he hearing of 0he depositions of Bechtel's witnesses Robarge and Williams, who resided outside Florida and did not appear at the hearing.

After nitially indicating that he would not call Robarge and Williams at rial, Bechtel's counsel took "heir deposit'ons by teiepnone on the dav before the hearing

opened, after one day's notice to Complainant.

T.

-29.

Complainant '

counsel cid not participate in the last minute telephonic depositions and therefore the witnesses'estimony was not subjected to cross-examination.

At the hearing, the AEJ admitted both depositions over Complainant '

strenuous objection.

T. 530.

Tn view of the lack of cross-examination, I have given little weight o the testimony in the depositions.

moreover, any possible prejudice to Complainant from the admission o" "he depositions

's at most harmless

error, since Z have found that Bechtel violated the ERA.

A.

Prima Facie Case ZZZ.

~Anal sis To make a prima facie case, "he complainant a

whistleblower case must show that he engaged in protected act'vi"y, that he was subjected to adverse

action, nd ".".at "he

moreover, although Complainant contends that 'c'ding Kelley' testimony was unfair, Amended Exceptions No.

6 at p.

6 and Nos.

2, 33 at p.

4, Complainant seeks to relv on portions of Kelley's testimony that substantiate his own.

See, e.cr.,

Amended Exceptions No.

3 at p. l3; No..2 at --.

0 responden" was aware of he protected activit,: "hen '" -"ok adverse action against him.

Complainam also

...usa present sufficient evidence to raise the inference that

=h protected activity was the likely reason for the adverse action.

Dartev v.

Zack Co. of Chica o, Case No.

82-ERA-2, Sec.

rd., Apr. 25, '983, slip op. at 8.

Under the

ERA, No employer, including a

. contractor

. of a Commission licensee,...

may discharge any employee or otherwise discriminate against any employee with respec" to his compensation,

=erms, "onditions, or "rivileges of employment because the employee (1) commenced, caused to be commenced, or is about to commence or cause to be commenced a proceeding under this chapter (2) testified or is abouT to testify in any such proceeding or; (3) assisted or participated or is about

=o assist or participate in any other manner in such a

proceeding 42 U-S-C.

5 5851 (1988)

~

There is no dispute 'n this case that the complaint to the NRC is protected activity under the Act.

See Kansas Gas

& Elec.

Co.

r. Brock, 780 F.2d '505, 510-1513 (10th

'=. '985), cer".

denied, 478 U.S.

1011 (1986)

(protection afforded during all stages of participation in order to maintain 'ntegrity of administrative process in its entirety).

Complainant argues "hat the ALJ unfairly limited the p otected ac" vit'es in this case to the NRC complaint, whereas Complainant's internal complaints to his supervisors also are protected.

Although do not believe that the AIJ so limited the scope o= protected activities, agree that internal complaints are protected.

See Adams Coastal Production Operators nc.,

Case Ho. 89-iRA-3, Dec.

and Order cf Remand, Auc.

=,

992, slip op. at 9; Kansas Gas

& Elec.,

11 780 F.2d at '513:

Nackowiak '. "niversit. Nuclear Systems nc.

735 F.2d 1159, 13.63 (9th Cir. '984)

I f'nd that Complainant's protected activities included both internal complaints to his supervisors and management, contacting the union representative Nestin house Electric Co Case No.

86-ERA-39, Final Dec.

and

Order, Oct.

30, 1991, slip op. at 1-3 (employee complaints to team leader about procedures used 'n testing instruments

's protected internal complain" under =he ERA).

Complainant' layoff clearly constituted adverse act,ion against him.

Complainant also established that transfer to the day shift was adverse since day shift workers received less overtime pay than those on night shift.

Although Complainant testified convincingly that he found working in the cask wash to be a hot, distasteful assignment, T. "16-117, he did not complain about 'o the assigning

foreman, Calvin Battle.

T. 208.

Battle testified that in his opinion, the cask wash was not the-worst assignment for his workers, that some laborers volunteered to do it, and that after Complainant '

lavoff, he assigned laborer Chris Lee to cask wash a similar percentage and duration of time as he had assigned

)

The AIJ's founding that "no Nuclear Regulatory C mmission regulation was violated," R.D.

and O. at ', is not dispositive on the issue of protected act'vity, since a complaina:at need not prove a violation of Federal safetv laws cr egulations to establish a violation of a whistleblower orovision.

see Yellow

'Frei ht S stem no. '. 'Mar"in, 554 5.2d '53,

56-357 (6th C'=.

991)

(under analogous whistleblower provision of the Surface T ansportation Assistance

Act,

'9 UPS-CD 2305 ('988)).

Complainant

== it.

T. 208-210; see RX 2.

find "hat

=he evidence establishes that Complainant's assignment to cask wash was rout'e and did not constitute adverse action against 7/

him.

Bechtel managers King and Hampton clearly knew oi the internal safety complaints Complainant made to them.

As for the external complaint, Ferguson knew that Complainant had complained "o the HRC, :.

199, 633-634, and several managers heard rumors, or assumed, "hat Complainant spoke with the NRC about his safety concerns.

581, 584-585 (King);

RX 18 at 47 (Larry Booth).

In addition, several managers heard rumors that Complainant had tipped off the NRC about the pipe fitters'rug use, a serious safety violation.

T.

573 (King) and T.

476 (Slover).

Therefore, Bechtel managers either were aware, or strongly suspected, "hat Complainant

'.-.ad complained to the NRc.

~

see williams v.

IW Fabrication Machinin

.nc.,

Case No.

88-SHD-3, Sec.

Dec.,

-ven if assignment to cask wash were considered an adverse action, Becntel proferred legitimate business reasons for assigning him to it: the task needed to be done and Complainant was good at '.

T. 207-208.

I find that Complainant did not sustain the burden of establishing by a preponderance of the evidence that the reasons Bechtel gave were a pretext for discriminat'n, or that Bechtel discr'minated in assigning him to cask wasn.

Complainant proffered in rebuttal the testimony oz FP&L off-'c'al Tcm Young that two days before complainan" "as laid off, Young notified a Becntel manager that Complainant

'.".ad made a

comoiaint to the NRC.

T. 686.

The ALJ excluded the "estimony because it was not rebuttal evidence,

687, and "ould not lish "hat the foreman who selected Complainant

=or lavoff was aware c" the NRC complaint.

T.

689.

In light "= my g

T..

'=,

f'ndin that Complainant established that Bechtel was aware f his protected activity, "he exclusion of the testimony cid not prejudice Complainant.

13 June 24, 992, -lip op. at 6 (managers'uspic ons that complainant had

'led complaints with government aaencv sufficient, to snow responaent's knowledge).

Causation is snown in that Complainant's t=ansfer to aay

\\

shift occurred shortly after he made his internal safety complaints and his layoff occurred short'y after he made his complaint to the NRC.

Cput,

v. Dole, 886 F.2d "47 '48 (8th Cir.

'989)

(temporal proximity suff'cient to establ'sn causation).

Moreover, Complainant produced ample testimony support'ng the inference that Bechtei retaliated against him beca'use of his safety complaints.

Complainant testified that his foreman,

Ferguson, became angry and told Complainant he was fired when Complainant raised safety concerns to Ferguson's superior.

T.

101.

Bechtel manager Kenneth Hampton told Complainant to keep his dispute with Ferguson auiet or Complainant would be out of a job.

T.

102.

According to Compiainant.

" 05, B~chtel superintendent Larry Booth warned that Bechtel transferred Complainant to the day shift in oraer to set him up to be fired.

Finally, Complainant stated that Murphy ordered him not to go to the union hal'ith his complaints, which involved a safety The ALJ founa Complainant's prima =acie c se aefect've because he ""ailed to establish that Respondent "as even partially mot'vated 'n its act'ons bv Complainant's protectea activitv. "

R. D.

and O. at '

At this stage, Complainant was not reauired to establisn motivation.

To establish a prima facie

case, Complainant need produce only enough evidence to raise the

'nference that "he motivation for "he aaverse act'on was his Drotec-ed act'; 'zy.

~Oar=a,

=-1'ip op.

=-" S.

related dispute with ferguson.

T. '06.

After "hese evens, Complainant wa switchea to aav shift, "hen laici off.

22.

I find that Complainant establisnea a prima facie case that the transfer to day snift and his layoff violaceci =he emplovee protection provision of the ERA.

B.

Motivation for Adverse Act'ons Rebut al Pretext Dual Motive Once Complainant established a prima facie case, Respondent naa the buraen zo come forth "ith legitimate,

-..ondiscriminarory "easons for the adverse actions.

Dartev, slip op. at S.

Bechtel articulated legitimate reasons for "ransferring Complainant to day shift and laying him off.

Complainant had the ultimate burden of persuading thar, the articulatea reasons were a

pretext, and that the real reason for the adverse action was discriminatory.

St. Mary's Honor Center... Hicks, No.

2-602, 1993 U.S.

LEXIS 4401, at '5-16 (U.S.

Zune 25, 993).

When the employer's aaverse ac" ion agains-

=he emplovee was motivated by both pronibitea and legitimate

easons, the aual motive doctrine applies.

~Darts, slip op. at S-o; see sackoviak, 735 F.2d at 1163; Mt. Health Cit School Distr' Board of Education v. Doyle, 429 U.S.

"74, 287 (1977).

n sucn a case, The ~Darts

decision, "hich laid out "he hurdens of production and persuasion in "whis-'eblower" cases "naer "he

ERA, n rum relied upon the framework or cases brought

'naer Title VII of the Civil Rights Act of '64.

See Dartev, slip op. at:-8, citing Texas Den't of Community Affairs '. Burciine,

'50 U.S.

248 (1981).

The Supreme Court's recent dec'sion in St. Mary's Honor center clarifies thar. =he plaintif in a Title VII case

'nas "he burden of persuading

-he t ier of act that "he defendant intentionally discriminated against "he plainti on an

'mpermissible basis.

=he emplover

'.".as the burden to snow bv a preponderance cf t.".e evidence that 't would have taken the same action "oncerning the employee even 'n the absence of the protecteo concuc".

Dartev, at 287; Price Waterhouse

v. Hopkins, 490 U.S.

228, 252 (1989)

(plurality opinion).

The employer bears the risk that "he influence of:egal and illegal motives cannot be separated.

Mackowiak,

.35 F.2d at 1164; Cuttman v. Passaic

')alley Sewera e

Comm',

Case Ho.

85-RPC-2, Final Dec.

and Order, Aar.

3, '992, slip op. at '9, affirmed sub nom.

Passaic Valley Sewezacre Comm~

s

v. Martin, No.

92-3261 (3d Cir. Apr. 16, 1993).

C.

Transfer to da shift Complainant argues that Bechtel transferred him to the day shift in retaliation for his internal safety complaints about a

night shift =oreman, Ferguson.

Bechtel witness King explained that n immeaiate response to Complainant's disagreements with

Ferguson, he placed Complainant on a different night snif" crew under a dif erent foreman.

T. 572.

Bechtel's witnesses also stated "hat Bechtel transferred Complainant "o day shift only after.".earing threats against Complainant over =he public address system during the night shift.

Bechtel managers knew of rumors that, Complainant had "'ppea off the HRC about emplovees'rug use.

n light of the fact that several pipe ='tters had been discnarged for positive arug tests, i" 's bel'evable that Complainant does not contend that the switch to a different night crew "as aiscr'minator;

Bechtel's managers feared that someone r ight =~ to harm Complainant.

Prospecting an employee 's generally a legitimate management concern.

The enti=ety of the evidence convinces me that Bechtel also had another votive for the shift switch, nowever.

Complainant convincingly testified that he was not notified of the switch to day shift and that he had a telephone answering machine and did not receive a 'message about he switch.

114.

Hone of Bechtel's witnesses stated that thev attempted to inform Complainant about the switch prior to the day 't took effect.

,If, as Bechtel witnesses testified, the company feared for Complainant's safety if he continued to work nights, it seems odd that no one 'nformed Complainant ahead of time that he was being switched to the day shift.

Bechtel made the decision to switch

'I shifts on P 'ay, April 17, T. 490-491, and Complainant was not scheduled to work again until Monday, April 20.

T.

113.

hrough Bechtel's failure to advise him. Complainant pparently was put in danger an extra evening when he reported for the night shift on April 20, 1987.

In addi ion, as a consequence of the work rules, Complainant was not permitted to work during the weekend of April 25-26 because he had missed the day shift (through no fault of his own) on April 20.

T.

141.

Complainant testified that Murphy said he might be f'd for missing work.

T. '14, 141-142.

Murphy did noi, eiute Complainant's testimony on the subject..

Since clearlv was Bdchtel's fault that Complainant missed work that

-ay,

='" seems punit've e'the "o consider ='.-.

him or not to pay him compensation to which he would otherwise have been

entitled, or woric on Apr' 20 and the subseauent weekend.

n addition to these anomalies, Complainant =esii"'d creciibly that his superiors threatened him about safety related complaints and warned him he was being set for discharge through the switch to day shift.

I therefore find that Bechtel also had a

disc= minatory motive of punisnina Complainant or =aisina safetv issues concerning foreman Ferguson.

Bechtel thus had mixed motives for trans err'.zg Complainant to day shift, both a legitimate motive of protecting him from

.threatened

harm, and a retaliatory motive because he raised safety issues.

After weighing the evidence carefully, i find that Bechtel did not sustain 'ts burden of establishing that it would have made the transfer or Complainant '

safety even i" he had not enaaged in protected activit'es.

"n =ail'ng to noti y about "he switch to dav snif and penali"ina Complainant monetarily for missing the day shrf on Apri'0, Bechtei did not act consistently with 'ts avowed desire to protect, Complainant from harr.'..

The "hreats about Complainant "ursuina a safetv-related dispute with Ferguson were particularly egregious, and occurrea shortl; before the switch 'n shi" s.

Accordingly, jnd that Complainant convincingly estab

'sheci tha'.= the eai reason for 'the t=ansfer to aay shif" was

'.".is engaaing protected activities.

18 D.

Select'on "or 'avof Concerning the layoff, Murphv teszi ied that when he was noti ied to reduce the aborers'ork force by three, ne chose employees with whom he had problems,

'ncluding Complainant.

674.

The other two emplovees Murphy selected for layof on the same day as Complainant caused problems of the type for which any employer would find fault in a worker:

absenteeism and keeping other emplovees

==om doing their work.

=.

389, 674-675.

will examine in turn each of Murphy's stated reasons for selecting Complainant.

According to Murphy, the first problem was Complainant's

.interference with the safety department.

When he rehired Complainant in 1987, Murphy said that because of complaints of interference with the fi st aid department during Complainant's prior employment at Bechtel.

he warned Complainant not to

'nterfere with the department again.

378 669 Notwithstanding that warning, Murphy testified, Complainant vent to the first aid department

-ithin. the first few weeks of his 1987 reemployment to ask about joining an "emergency response team" mentioned in a Bechtel brochure.

. 382-385; see RX 21 at 5-6.

Bechtel did not have such a team at the Turkey Point plant,

however, and used only professional safety department staff to handle f'rst aid.

PZ 1 at 6, 11.

Projec" Safety Supervisor Ken Elledge corroborated that Complainant hac; interfered with 'the Safety (first aid)

Department

'n '984.

. 507-508.

1 9 Complainant argued that Bechtel's "safe prac"'ces" booklet directs all employees to tell 0he responsible safe'=y supervisor that they have first aid t aining,

'~~ and he visited the i'rst aid department to do so.

Comp. Pose,-Trial Br. at 110-111.

When safety department employee Mike Williams complained to Murphy about Complainant's visit, Murphy believed that Complainant had breached his promise not to interfere with the department.

T.

670.

Complainant contends,

however, "hat Murphv's warning to stav away from the department occurred azter his visit to report his first aid training, and not before.

108.

Comp

~ Posr.-Trial Br. at According to Williams, Complainant visited the first aid department a second time in 1987 and gave unsolicited medical advice to an injured employee.

RX 21 at 7-8.

Complainant did not testi y about such a visit.

~

15/

The AIJ ound that Complainant '

interference with the first aid department alone was sufficient justification for lavoff, The "safe practices" booklet "o. which Complainant's counsel referred was not admitted into evidence.

The part of the booklet that counsel ead into the record, T. 39-40, does not mention an employee's obligation to notify the safety department about first aid certification or t aining.

Since Bechtel's project sazety supervisor did not dispute that the booklet so states, T. 618, will assume that it does.

Complainant also visi"ed the f'rst aid department "ur'ng his 1987 employment to receive medical attention for heat stress.

612-614; CX 11.

No witness aulted Complainant.or his visi" for the purpose of treatment.

As explained

above, Complainant's counsel did not attend the eleventh hour deposition of Williams, which was taken on one day's notice.

At the, time Complainant testified a'= the nearing, Williams'eposit on was not yez, a part oi the near'na record.

20

6/

absent omplainant '

engaging in protected ac=; ities.

R.D.

and 0. at 12.

But Complainant had a plausible basis icr visit'ng the department "o report his f'rst aid training and to offer "o join a purported emergency team at rkey Point, as Project Safety Supervisor Elledge conceded..

619.: find that Murphy's concern about the first visit to inform about Complainant's first aid training was not a c edibl basis for laying off Complainant.

As for Complainant's alleged second visi" =o the safetv department 'n 1987, other witnesses appeared

=" contradict Williams.

Murphy testified that after chast'sing Complainant about."he first visit concerning the emergency

team, he had no further complaints about Complainant interfering with the saf ety department.

T. 383, 677.

Nor did Elledge know of any contact between Complainant and the safety department during his 1987 employment, with the exception of Complainant's clear'y legitimate visit for treatment...

611-613.:"

appears that after complaining to Murphy about the visit concerning irst aid training, Williams inexplicably did nor, complain about a second visit in which Complainant purportedlv offered medical advice.

Williams'estimony was not subject "o cross examination and does not convince me that the alleged second visit occurred in 1987.

1 note that Complainant had periods cf employment at urkev Point At cne point in his decision, "he AIJ mistaken'y "eferred to the adverse action against Complainant as a discharge, R.D.

and O. at,12,,

whereas Complainant was aid off "ue zo

~

educ"'on orce.

X 8.

21 other than his 1987 employment at 'ssue.

hus,

"'nd that. "he alleged second visit 's also unconvincing as a reason for 'aving off Complainant.

Murphy's secona reason for selecting Comalainant was his belief that Complainant might work only a very br'f time or

Bechtel, as he had previously.

In 1986, Complainant left Bechtel's employ after only three days of training o take a

better payinc job with another contractor at urkev Point.

T.

682.

Murpny testified that he remembered Complainant's short-lived '1986 stint and reluctantly hired Complainant during the 1987 outage only because Complainant was a union member and Murphy. felt compelled to hire him.

T. 377.

The fear that Complainant might cuit is not a convincing reason to select him for layoff.

Bechtel established that the 1987 outage'as nearing completion at the time i" hired Complainant..

289.

he l'st of employees that Zechtel 'aid off between Mav 15 and May 29,

1987,

'ncluaes eicnt other

laborers, RX 8, and Bechtel reducea the number of 'borers even more through August 1',

1987.

RX 22.

Therefore, even if Complainant had cuit his job before the ena of the 1987 outage, it would not, have harmed Bechtel substantially because of the need to reduce the number of laborers.

Moreover, Project Field Superintenaent Hamilton said that Bechtel would not. hold against a worker who cuit to take a better job..

551-552.

That 's prec'sely why Complainant resignea

="om Bechtel's emplov in 1986.

Murphy's -hird stated eason was Complainant's seeking help rom the union hall without 'z giving Murpny a chance to resolve the problem.

Complainant argues that "he statement cf Bechtel's counsel that bringing a complaint to the union nail was "the motivating factor"

'" in deciding to lay off Complainant was an admission that Bechtel discriminated against Complainant for engaging in protected activity, since the issues he intended to raise were safety related.

T. 103-104.

See Amended Exceptions No.

31, p.

14; P-'Z Br. at 126.

Under t'xe ERA, t is not permissible to find ault with an emplovee for failing to observe established channels when making a safety complaint.

See, e.cC,,

Po e v. United States De 't of Labor, 340 F.2d 1287, 1290 (9th Cir.

1991)

(superior's purported anger over employee's failing to follow chain of command in reporting a whistleblower complaint was pretext for anger over the making of the complaint)

Murphy did not state thar, he was aware that Complainant intended to obtain the union hall's help on safety issues.

Rather, Murphy referred to the firewatch issue as 'f it were solely an economic issue involving payment for working through lunch.

Complainant "esti 'ed, however, that the issue was in arguing a motion, Respondent's counsel "eferred to the Union Hall issue as "the motivating factor" in selecting Complainant or lavoff.

'Z. 26-27.

Murpnv testified,

however, that Complainant's going to the Union Hall was one of three factors that led h'm "o choose Complainant..

389-391.

See, e.a.,

'Z.

335, 347, and 671.

When asked he knew whether Complainant raised safetv issues with the Union Hall, (continued...)

23 one of safetv:

whether anyone would be on f'wazch when Complainant ook a lunch break.

T. 112-113.

Murpny understood that Ferguson and Complainant disagreed over "he correct RWP for a job,

. 336, and that was clearly a safety issue.

Moreover, Union president Huston testified that he was aware that Complainant had a safety complaint, and that he asked Murpny to address the problem.

T. 596,, 598-599.

Huston may have indicated to Murphy that, the issue was safety based.

Since boch Complainant and Huston viewed the issues as safety related, I find it disingenuous that Murphy purportedly did not know that Complainant intended to raise safety issues with the union hall. ~ I find further that Murphy's faulting Complainant or going around established channels to bring a safety complaint was not a valid basis for choosing him for layoff.

Citing Complainant, '

"altercations" with Ferguson, "he AZJ found that Respondent established that 't would have laid off Complainant even in the absence of his protected a"t'vities.

R.D. and 0. at 11-12.

Respondent,

however, did not proffer this reason for selecting Complainant for layoff.

Murphy did not mention the relationship between Complainant and Fercuson as a

reason for choosing Complainant, and therefore, it 's not

>~ (...continued)

Murphy testified that he did not.

T.

348.

The AZJ did not discuss Murphy's statement that

".".e union hall

'ssue was one reason he laid off Complainant.

24 probative that Complainant legitimately could

'.".ave been 'aid off absent his protected activities. ='omplainant disagreed with Ferguson on a safety issue, and that disagreement 'd to the strong feelings they exhibited toward one another.

In any event, no one alleged or demonstrated that Complainant engaged in abusive or violent behavior toward Ferguson that could legitimately jt stify discharge, rather than layoff.

The fact that Bechtel considered complainant eligible for

ehire, R.D.

and O. at 11, undermines the seriousness of he "altercations" between him and Ferguson.

Nor 's the AZJ's assessment, R.D.

and

p. at 11, that pillow had difficulty getting along with coworkers

relevant, since Murphy did not mention 't as a reason for the layoff either.

After a thorough review of the record and the AIJ's

decision, find that Complainant met his burden of establishing that the reasons Bechtel advanced for choosing nim for 'ayoff were a pretext, and I am persuaded that Murphy selected him for layoff because he pursued safety-'based disputes wi'=h Ferguson.

I note that the ALJ found no contradictions between the testimony of Complainant and that of Respondent's witnesses, R.

D. and O.

Similarly, the ALT's reliance on Dunham v. Brock, 794 F.2d 1037 (5th C'r. 1986),

R.D.

and 0. at '

's misplaced.

In that case, he Secretary and the court ound that "he emplover legitimately could have discharged an emplovee or his insubordination.

Here, however, Murphy did not cite insubordination as a reason for laying of Complainant.

In any event some co-workers testified to the contrary, 1

'Tl that Complainant got along well on the job.

See, e.a.,

203 (foreman Battle) and

. 249-250 (co-worke Dalton).

25 az 4, and made no deter. inazions of witness credibilitv.

Therefore, have nor. disagreed with anv assessmenz of witness credibility.

Rather, disagree with the legal conclusions the AIJ drew from the evidence.

find that Bechtel violated the ERA when it laid off Complainant on May 15, 1987.

In the event that a respondent is found to have violated the ERA, "the Secretary shall order the person who committed such violation zo (1) take affir;..alive action to abate the violation, and (ii) reinstate the complainant

'o his former position together with the compensat'on (including back pay),

terms, conditions, and privileges of his employment.

42 U-S.C.

5851{b){2)(B).

See aenerall Wells v. Kansas Gas 6 Elec.

Co.,

Case No. 85-ERA-0072, Final Dec.

and Order, Mar. 2",

1991, slip op.

at, 17.

In addit'on, "the Secretary may order

. uch person to provide compensatory damages

-o the complainant."

and shall assess costs and expenses,

'ncluding attorney

fees, "easonably incurred in bringing the complaint.

~d.; GeFord v. Secreta of Labor, 700 F.2d 281, 288-289, 291 (6th Cir. 1983).

Complainant does not ask or reinstatement, but seeks back

pay, compensatory

damages, costs and -attorney fees, and asks that, 1 remand to the AIJ for a hearing limited to damages.

Comp.

post-Trial Brief at '57.

Complainant has 0he burden of establishing the amount c" back pay that Responden'=

owes.

He testified that the switch -o day shift caused him :o lose between 20 and 30 hours3.472222e-4 days 0.00833 hours 4.960317e-5 weeks 1.1415e-5 months of pav per week at time and a half during his

26 1987 employment,

115, and Bechtel d'd not =efuta h's testimony.

Complainant is entitled to 30 hours3.472222e-4 days 0.00833 hours 4.960317e-5 weeks 1.1415e-5 months back pav per week az, time and a half for the period from April 20,

'987,

-hrough May 15, 1987.

The issue of the correct amount of back pay due co the discriminatory selection for layoff requires determining whether, and when, Complainant would have ceased working for Bechtel, absent any discrimination.

Complainant is ent'tied "only to recover damages for the period of time he would have worked but for wrongful termination; he should not ecover damage for the time after which his employment would have ended for a nondiscriminatory reason."

Blackburn v. MartinI 932 F ~ 2d 125, 129 (4th Cir. 1992).

The record reveals that Bechtel hired Complainant on three different occasions as part of a build-up of staff during outages:

in 1984-85, again in 1986, and n 1987.

Complainant "id not establish "hat he was hired 'n 1987 as a

permanent employee who could expect to continue working at Turkey Point after the outage ended.

l -find that even absent any discrimination, Bechtel would have laid off Complainant some time in 1987 as the outage ended.

Respondent showed that '" laid off a total of 56 laborers, including Complainant, from Nay 15, 1987 (date Complainant was laid off), through August 14,.

987, as the 1987 outage ended.

RX 15.

Bechtel's Constr'c"ion'Daily Force Report corroborates that the number of lahore s az urkey Point declined substantially during that period, and thac "hereafter the number was held between 38 and 44 laborers for "he remainder

27 of '987.

RX "".

further f'nd that "he caco" date for '-ack pay 's August 14,

1987,

=he last day on which Bech'=el laid off laborers as -he 1987 outage ended.

Complainant testified that after "he time of ".is lavoff, he was employed or an unspecified period bv Bartlett.')uclear, nc.

T. 68.

Zf his employment occurred dur'g the period May 16 through August. 14,

1987, the amount that Complainant earned must t

be deducted rom the back pay award.

Complainant is entitled to back pay as a night shift worker, for the per'od Hay 16 through August 1',

1987, including overtime pay, less any earnings during that period, togethe with interest thereon calculated pursuant to the rate for underpayment of axes in the Internal Revenue

Code, 26 U.S.C.

6621.

Wells, slip op. at 17 and n.6.

Z will remand for the AL3'o take evidence on, and recommend, "he amount of back pay to which Complainant is entitled under "he discussion of back ay outlined above.

Complainant also seeks compensatory

damages,

'hich may be awarded for pain and suffering, mental anguish, embarrassment, and humiliation.

DeFord, 700 F.2d at 283.

Such awards may be supported bv 0he circumstances of the case and testimonv

about, physical or mental conseauences of retaliatory act'on.

Lederhaus

v. Donald Paschen et al.,

Case No.

91-ERA-13, Final Dec.

and Order, Jan.

"3, 1993, slip op. at ',

and cases there c'ted.

On

remand, the ALJ shall afford the opportunity to present evidence

'concerning entitlement to compensatory damages and any opposition

thereto, and shall recommend the amount of such damages, 'f anv.

28

inallv, Complainant seeks an award of cos-s and an attorney ee associated with br'nging his complaint,.

On remand, "he AIJ shall afford Ccmplainan counsel a period of "'e to submit a

request for costs and a ~torney fee, shall afford Respondem counsel a like period to file any objection, and shall make a

recommendation on an appropriate award.

Accordingly, this case is REMANDED to the ALJ for further proceedings and a recommended decision on the amount of back pay, compensatory damages, '" any, and costs and attorney fees,

-o which Complainant 's entitled.

SO ORDERED.

Secretary of Labor Washington, D.C.

~z'PTI TC>> TE Ot'EQWJICE Case Name:

James Carroll Pi'ow.

=.:. deci:tel Const 'tion Inc.

Case No.

87-ERA-35 Document Decision and Order of Remand A copy of the above-referenced document was sent, "o the following m l9$93 persons on CERTIFIED IL Michael R. Seward, Esq.

2621 Natoma Street Coconut Grove, FL 33133 James C. pillow, Jr.

p.O.

Box 741

Marianna, FL 32447 William F. Hamilton, Esq.

Holland

& Knight P.O.

Box 015441 Miami, FL 33101 HAND D'ELIVERED Monica Gallagner Associate Solicitor for Fair Labor Standards U.S.

Department of Labor Room N-2716 200 Constitution Ave.,

N.W.

Washington, DC 20210 REGULAR NAIL Director Office of Enforcement Nuclear Pegulat.ory Commission Washington, DC 20555 Acting Administrator Wage and Hour Division U.S.

Department, of Labor/ESA Room S-3502 200 Constitution Ave.,

N.W.

Washington, DC 20210

District Director Wage and Hour Division U.S.

Department of Labor/ESA 1150 SW First Street Miami, FL 33130 Environmental Protection Agency 401 M Street, S.W.

Washington, DC 20460 Enforcement Coordinator U.S.N.R.C.

Region II

'101 Marietta Street Suite 2900

Atlanta, GA 30323 Hon.

E. Earl Thomas District Chief Administrative Law Judge Office of Administrative Law Judges 200 S.

Andrews Avenue Suite 605 Ft. Lauderdale, FL 33301 Hon.

Nahum Litt Chief Administrative Law Judge Office of Administrative Law Judges 800 K Street, N.W.

Suite 400 Washington, DC 20001-8002 Hon. John M. Vittone Deputy Chief Administrative Law Judge Office of Administrative Law Judges 800 K Street, N.W.

Suite 400 Washington, DC 20001-8002

ML17352A196

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