ML20203J912
| ML20203J912 | |
| Person / Time | |
|---|---|
| Issue date: | 07/24/1996 |
| From: | NRC COMMISSION (OCM) |
| To: | |
| Shared Package | |
| ML20203J328 | List:
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| References | |
| FOIA-97-384 NUDOCS 9712220131 | |
| Download: ML20203J912 (88) | |
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l', . @fficial Transcript of Prococdings NUCLEAR REGULATORY COMMISSION i
Title:
Meeting to Discuss the Department of Labor Decision in the Case of D. S. Robalnas v.
Florida Power and Light Company Docket Number: (not applicable) 1 Location: Rockville, Maryland l
l Date: Wednesday, July 24,1996 l
Work Order No.: NRC-784 Pages 1-49 l
NEAL R. GROSS AND CO., INC.
Court Reporters and Transcribers 1323 Rhode Island Avenue, N.W.
Washington, D.C. 20005 (202) 234-4433 Q 22 g 1 971217 I LEONNIQ97-384 PDR ATTACHMENT 1 Qr\ \'l.'h10\' DT
- 1 1 UNITED STATES OF AMERICA J
2 NUCLF.AR REGULATORY COMMISSION g,
I +++++
3 4 MEETING TO DISCUSS 5 THE DEPARTMENT OF LABOR DECISION IN THE CASE OF 6 D. S. ROBAINAS v. FLORIDA POWER AND LIGHT COMPANY 7 (92-ERA-10) 8 +++++
9 WEDNESDAY 10 JULY 24, 1996 11 +++++
12 ROCKVILLE, MARYLAND 13 +++++
14 The parties met in Room 6B11, One White Flint, 15 Rockville, Maryland at 8:30 a.m.
16 PRESENT:
17 JIM LIEBERMAN, Director, Office of Enforcement, NRC 18 JACK R. GOLDBERG, Deputy Assistant General Counsel, NRC 19 JOSEPH R. GRAY, Deputy Director, Office of Enforcement NRC 20 LEMOINE CUNNINGHAM, Branch Ch.ief, Safeguards Branch, NRR 21 STEPHEN BURNS, Deputy Assistant General Counsel, NRC
~
22 ROBERT BISHOP, General Counsel, NEI 2a ELLEN GINSBERG, Assistant General Counsel, NEI 24 LOREN BUSH, Senior Program Manager, NRR 25 RICHARD P. ROSANO, Senior Enforcement Specialist, OE NEAL R. GROSS coum mErocuns AND TMNSCMSEMB 1323 MHoOE ISt.AND AVE.. N.W.
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2' 1 _PRESENT (cent.ls
-e o 2 NANCY E. ERVIN, Reactor' Security Specialist, NRR 3 SUSAN CHIDAKEL, Senior Attorney, OGC 4 W:: LIAM BECKNER, Director, PD IV-1/NRR '
5 EDWARD BAKER, Agency Allegation Advisor 6 JOSEPH TAPIA, Regional Coordinator, EDO 7 JANET "CKER, Attorney, Morgan, Lewis & Bockius 8
9 10 11 12 13 14 15
-16 17 18 19 20 21 22 ,
23 24 25 NEAL R. GROSS l coum .o== = nw.c==. i 1333 M ISLAND AVE., MW.
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. 2 (8:30 a.m.)
3 MR. GOLDBERG: Good morning, everyone. This 4 is a meeting which was requested by NEI to discuss their 5 concerns about the Secretary of Labor decision in the case 6 D.'S. Robainas v. Florida Power and Licht comeanv, 92-ERA-7 10, which was decided by the Secretary of Labor on 8 January 19, 1996.
9 What I'd like to do is pass around a sheet so 10 that all those who are present can sign this and indicate 11 their affiliation. And maybe we should go around the room 12 and ask everyone co identify themselves.
13 I'm Jack Goldberg from the NRC's Office of the
. 14 General Counsel.
15 MR. LIEBERMAN: I'm Jim Lieberman, the 16 Director of the Office of Enforcement.
17 MS. GINSBERG: Ellen Ginsberg, Assistant 18 General Counsel, NEI.
19 MR. BISHOP: Bob Bishop, General Counsel, NEI.
20 MR. CUNNINGHAM: J. Cunningham, Branch Chief, 21 Safeguards Branch, NRR. :
22 MR. GRAY: Joe Gray, Deputy Director, Office 23 of Enforcement.
24 MS. ERVIN: Nancy Ervin, NRR.
25 MR. ROSANO: Dick Rosano, Senior Enfortement NEAL R. GROSS coum REPomM AND TMSCROGW l 1323 MHoOE C3 LAND AVE. N.W.
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4 1 specimlist, office of Enforcement.
3 MS. CHIDAKEL: Susan Chidakel, Senior 4 Att:rney, OGC.
5 MR BAKER: Ed Baker, Agency Allegation 6 Advisor.
7 MR. BECKNER: Bill Beckner, NRR.
8 MR. TAPIA: Joseph Tapia, EDO staff.
9 MS. ECKER: Janet Ecker, Morgan, Lewis &
30 Bocklus.
11 MR. GOLDBERG: Bob, it was NEI who requested 12 this meeting in a letter to the Chairman. The chairman 13 wrote back and indicated that representatives of the 14 General Counsel's office and staff would contact the NEI 15 to schedule a meeting so that your con: erns could ba 16 d_acussed with us.
17 And we would then report the results of this 18 meeting to the Commission. I think what I'll do is ask 19 you to discuas your concerns with us.
20 MR. BISHOP: Sure. Let me finish writing my 21 name here. The purpose today is certainly not to argue 22 the D. S. Robainas case. We don't represent Florida Power 23 and Light.
24 Our concern is just because of the 25 implications, the generic implications, that we thought NEAL R. GROSS coum mapomnB AND NNDCNSWW 1883 M400E ISLAND AVL N.W.
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5 1 that that case had that we remain concerned that the case
. 2 does have.
3 I guess, first, we ought to talk about an area 4 where I think we all agree. We all agree that there is no 5 question that anyone who violates Section 211 .should b3 6 dealt with strongly and promptly.
7 I think the industry is committed to that.
8 Not just because it's the law, but because it also makes 9 good sense.
10 In our view the D. S. Robainas case, however, 11 argues, brings up a number of troublesome areas that we 12 thought it might be helpful to be able to discuss in this 13 meeting and perhaps even subsequent moutings.
. 14 I guess first of all, the broader issue is the 15 potential conflict that we see between the NRC's 16 responsibility to ensure that licensees carry out their 17 responsibilities to protect public health and safety.
18 That's the responsibility given to the NRC, 19 demanded of the NRC under the Atomic Energy Act. The 20 Secretary of Labor's responsibilities are dramatically 21 different.
22 They are to ensure that appropriate remedies 23 are imposed for any individual who has violated the law or 24 regulation within the Secretary's jurisdictior. In our 25 view, the D. S. Robainas case, as a. matter of broad NEAL R. GROSS cove neromes ANo tiwacsesse 135 fD400E ISLAND AVE., N.W.
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1 principle, seems to put those two policies at conflict. l
, 2 Simply scated, Part 26 requires licensees to 3 take aggressive early action to attempt to identify and 4 ameliorate any threats that could impact public health and 5 safety by worker conduct, by any aspect of their te.ag.
6 By that, I mean physically if they are 7 impaired by drugs, by alcohol, by fatigue, by any other 8 reason from carrying out their responsibilities. And the 9 overarching goal is to ensure public health and safety 10 and, in fact, worP.cr safety, the safety of the co-workers.
11 But Part 26 as we've read it, as we interpret 12 it, requireu licensees to take aggressive early action. I 13 believe the statement, Part 26 itself -- let me see if I 14 can find it here.
15 MR. GOLDBERG: 2610.
16 MS. GINSBERG: Here it is.
17 MR. BISHOP: Right. What I was interested in 18 is what I had was the early detection part of 2610 and the 19 acknowledgement in the SOC, the statement of 20 considerations, for Part 26 that these issues are 21 difficult.
They are complex and require licensees to take 22 23 a broad approach to ensure that Part 26 is obeyed because 24 of the potential direct implications to public health and 25 safety.
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7 1 Again, our purpose here is not to arguo the D. l i
. 2 S. Robainas case, to argue the facts, but to step back and 1 3 look at the principles. And we see that there were a 4 number of troublesome aspects of that case that challenge '
l 5 our ability to comply with Part 26.
6 I recognize the Chairman's letter, the NOV I i 7 should say, that describes the agency's posicion that one 8 can comply with both. And I think that's potentially 9 possible, although practically, the D. S. Robainas case 10 makes it very difficult.
11 For example, the Secretary of Labor takes it 12 upon himself to establish a new criteria which are not in 13 Part 26. With respect to when licensees can take actions 14 based on the evaluation, I think the words were something 15 like demonstrated psychological instability or words te 16 that effect, as observed by the individual supervisor or 17 co-worker.
18 This is not in Part 26. We think that tnat is 19 in conflict with Part 26. We think it's troublesome that 20 the agency adopted, as best one can tell from looking at 21 the NOV, the Secretary's decision lock, stock, and barrel 22 without giving any weight to its independent 23 responsibilities, without even acknowledging that the NRC 24 itself had done an investigation and found that this 25 action complained of was not discriminatory and did not NEAL R. GROSS countnapoetne no inANSCROGG t338. hoot ISWC AVE KW.
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9 1 violate Section 211 in the NRC's own investigation.
o 2 That's also troublesome. But the bottom line 3 is wt <e worried about v'lat advice we can give to 4 l'.:ensees in light of the D. S. Robainas case, in light of 5 the NRC's ado.+. ion of the Secretary's decision. And 6 that's what we'd like to talk about.
7 MR. GOLDBERG: So, nhat we can understand your 8 position, suppose just for purposes of discussion, we 9 focus on a principle announced by the Secretary in that 10 decision and again put aside the facts of the case.
11 As you indicated, we're not here to debate 12 that case, per se. The Secretary clearly stated in that 13 case that a licensee's referral of an individual for
. 14 psychological evaluation solely because the individual 15 engaged in a protected activity is a violation of 211.
16 MR. BISHOP: No question.
17 MR. GOLDBERG: Do you agree with that?
18 MS. GINSBERG: If that were the case, if you 19 could make an objective determination that the only basis 20 upon which the psychological evaluation or psychological 21 referral was suggested was because of protected activity, 22 yes, that would be we believe actionable under 211, 23 The problem that we see which has arisen is 24 that it's not clear. In most cases, and I would venture 25 to say perhaps in all cases, but at the very least in most NEAL R. GROSS coum MoomMS AND TRANSCNSERS 1333 PHoof ISLAND AVE N.W.
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3 1 cases, you're not going to have a black and white
. 2 situation whereas an object of matter you can make the 3 causal connection between the psychological evaluation and 4 the protected activity.
5 One concern that we have is, if someone does 6 engage in protected activity, does that essentially put 7 the licensee in the position of being unable to suggest 8 that ehere is a need for a psychological evaluation 9 precisely because they are then in a section 211 space, if 10 you will? I was going to use the word trap and decided 11 not to.
12 MR. GOLDBERG: Well, clearly that's not the 13 case. But isn't it the same issue you face with any 14 employee who has engaged in protected activity where you 15 believe there might be a legitimate basis to take some 16 action?
17 Maybe the individual is performing poorly. He ,
18 may be jeopardizing public health and safety because he's l
19 simply not doing his job or not doing it properly. And 20 you have a difficult decision to make.
21 If you try to deal directly with that based 22 u$onwhatyoubelievearelegitimate,non-discriminatory 23 reasons, that employee may very well assert that the real .
24 reason why you're taking action against him is his
! 25 protected activity.
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10 1 H3 may file a complaint over at DOL. They
, -2 make an allegation to us. There's no questien that there 3
are difficult decisions that licensees have to make and 4 'that you may find yourself defending an allegation of 5 discrimination.
6 MS. G NSBERG: But that's what makes it so 7 critical that taking the action of referral for 8 psychological evaluation is not adverse. It is the result 9 of that adverse action.
10 In other words, if you use the psychological 11 evaluation to terminate someone solely because, and that 12 was the mechanism, based on engaging a protected activity, 13 yes, then you have a problem. But if the referral itself
. 14 is not adverse action, then you're not in the same 15 situation.
- 16 MR. GOLDBERG: We understand --
17 MS. GINSBERG: You're free to take fitness for 18 duty kinds of action without implicating Section 211.
19 MR. GOLDBERG: We understand your argument on 20 that. That was presented to DOL and rejected by the 21 Secretary of Labor.
22 But again, for purposes of analysis of the 23 principles involved, let me ask you this question. Do you 24 think a licensee is free to refer individuals for 25 psychological assessment based solely on the fact that NEAL R. GROSS coum nanomen wo nweesseen 4 1333 Mo0E ISLApe AVE., KW.
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u a they have engaged in protected activity, given that you l
. 2 take no further action against that individual? Do you l
3 think it's permissible to do that?
i j
4 MS. GINSBERG: If the only reason you're {
S referring them is as a matter of retribution, the answer 6 is no.
7 MR. GOLDBERG: So, then the referral itself is 8 a violation of the statute.
O MR. BISHOP: If those facts could be -- if the l
10 supervisor said, "You've raised safety issues, therefore, 11 I'm going to refer you for psychological counselling," I 12 don't think anybody would quarrel with the text.
13 Not again to get into the facts, that clearly 14 was not this case, however. There's no evidence of that.
15 MR. LIABERMAN: Then under those 16 circumstances, their referral would adverse action.
17 MR. BISHOP: Yes, and I recognize that it is 18 not one of the classic ways in which you can discriminate.
19 And I'll ask you to work with me on a hypothetical later, 20 so I'll work with you on this one.
21 I think it is possible that your intent if you 22 were a supervisor, if that was your intent, if you hope 23 thereby to bring this individual to some discredit within 24 the eyes of his co-workers to somehow give you a further 25 excuse for further action, all those are bad motives. And NEAL R. GROSS coum muomuns AND MNBCROEM 133s mHoot ist.AND Avt., N.W.
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I 12 1 c11 thaca would cnd up being ebvicuoly --
. 2 MR. LIEBERMAN: Or simply to harass.
3 MS. GINSBERG: But it's going to be a change 4 in terms and conditions of employment.That's what this has 5 to result in. That's what adverse employment action is.
6 MR. BISHOP: But I think Joe's right, if the 7 purpose is to harass him.
8 MR. GOLDBERG: A condition of this 9 individual's employment is every time you raise a safety 10 concern, you have to go get psychological evaluation even 11 though we're not going to take any further action.
12 And what the Secretary of Labor has said is, 13 "You have mSde a condition of employment for this 14 individual that he will be referred to psychological 15 counselling for health and safety concerns."
16 MR. BISHOP: But now you're putting a 17 hypothetical into this case. And that didn't happen in 18 this case.
19 MR. LIEBERMAN: We're talking about general 20 principles.
21 MR. BISHOP: General principle, yes. ,
22 MR.,GOLDBERG: What is the status of that case 23 in terms of any appeals to the court of Appeals?
24 MR. BISH(1 My understanding is that I don't 25 know if there has been an appeal, but it will be appealed.
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.3 1 MS. ECKER: Yes --
. 2 MR. BISHOP: It has been appealed. i 3 MR. LIEBERMAN: Let's talk about another case.
4 Are you familiar with the Comanche Peak case?
5 MR. BISHOP: No.
J MR. LIEBERMAN: Where we exercised enforcement I
7 discretion involving an employee who was informed he was
. 8 going to be laid off, or he may be laid off in the next 9 several months.
10 And this was an employee who was a pretty 11 quiet person, usually somewhat moody. And when he found 12 out that he was going to be possibly laid off, a fellow 13 employee believed he observed him calling up the NRC.
14 And his personality suddenly changed to be a 15 happy person, a talkative person. And the supervisor 16 said, " Hey, his behavior is changing. We think he went to 17 the NRC."
18 They called up security. They checked the -
19 telephone records. Did he call up the NRC7 And they 20 decided to pull his access because he may '. ave gone to the 21 NRC. And that's a change in his behavior.
22 And when the senior vice president found out 23 about it, he said, 'No way is this kcceptable." Restored 24 the person's access. And this occurred between 5:00 in 25 the evening one day or very early the next day.
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3 1 so, the fellow never realized his access was
. 2 pulled. We consider that to be discrimination because the 3 cnly reason they pulled the accese was because the person 4 engaged in protected activity, or they thought he engaged 5 in protected activity and contacted the company, 6 contacting the NRC.
7 The company initially argued that this was not 8 discrimination, but rather his personality has changed.
9 And thus, we had to pull his access because we had a 10 question concerning the person's trustworthiness because 11 of his changed behavior.
12 The only evidence of the changed behavior 13 essentially was he went to the NRC and that's unusual 14 behavior for that person. So, that's a situation where 15 the rules do conflict, protecting the plant against 16 security risk, safeguard requirements, and Section 211.
17 We didn't think the company or the supervisors 18 were necessarily in good faith. And we concluded that 19 this was a retaliation and not protection of the public's 20 health and safety. You're maintaining security 21 requirements.
22 That's a fact question. The Robainas case is 23 a fact question. Some of these are difficult cassa. You 24 have to balance various facts.
25 MR. BISHOP: Let me understand a little bit NEAL R. GROSS 4 coum manomve AND TMNGCROSe 1333 R400t ISLAND AW., N.W.
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15 1 moro cbout that cc03. And I kn:w nothing of the case.
4
, 2 So, I'm obviously not well prepared to discuss it.
3 But, Jim, if I understood correctly, the 4 senior managers as soon as they found out about him 5 aggresnively addressed and resolved the problem.
6 MR. LIEBERMAN: I should point out the vice 7 president was the one who pulled the access. The senior 8 vice president restored the access.
9 MR. BISHOP: So, the senior vice president 10 speaking for senior management the -- senior management 11 took the right action.
12 MR. LIEBERMAN: Exactly.
13 MR. BISHOP: But you believe it's appropriate 14 to punish the licensee?
15 MR.LkEBERMAN: No. We exercise enforcement 16 discretion. It did not take an enforcement action, 37 recognizing the competence of senior management to address 18 the issue.
19 But what I wanted to point out was it was 20 perceived by some supervisors that the performance of the 21 individual would change, the behavior of the individual 22 changed. And the only change basically was he went to the 23 NRC. He was engaged in protected activity.
24 MR. BISHOP: Right.
25 MR LIEBERMAN: So, just because there's NEAl. R. GROSS coum upomaB AND MNBCNeERB 1SEB INoOE ISLAND AVE., RW.
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. ' Y~ 16 1 rcquiro..cnto to be ccncorn:d cb:ut ch nga in behavior 2 doesn't necessarily mean that they override section 211. l 3 Mr.. BISHOP: No question. And there's also no 4' question that some people don't understand what their 5 obligations are well enough.
6 There's no question that in a work force that 7 may number 80,000 people in any given year, you're likely 8 to get some people that make the wrong decisions, at all 9 levels. Let me come back to the D. S. Robainas case.
10 Again, not to that case, but to that 11 principle. What conca.rns us most is, what concerns me 12 most, is the NRC's seeming acknowledgement that the 13 Department of Labor is in the position, and that position 14 has been solidified as to the advice me must give to our 15 clients, that Part 26 has changed without forgiving 16 benefit of the Administrative Procedure Act, 17 The Secretary grafts new requirements under 18 Part 26 that don't otherwise exist. What is a licensee to 19 do, to comply with Part 26 as it exists or as the 20 Secretary of Labor has interpreted it and as the NRC has 21 acquiesced?
22 MR. GCLDBERG I don't think the Secretary of 23 Labor has or could change Part 26 or the NRC's criteria to 24 determine whether there's a violation of Part 26.
25 MR. BISHOP: But-how about the testing that NEAL R. GROSS coum nEpomme AND MNSCRWWW 1333 MHoOE ISLAND AVE NW.
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1 establishes?
2 MR. GOLDBERG: Well, the Secretary in the ,
l 3 decision, in reaching the ultimate conclusion that there 4 was a referral for psychological evaluation solely because 1
5 the individual engaged in protected activity and that 6 that's in violation of the statute, described criteria,
{
7 circumstances, factors, or whatever that the Department of l 8 Labor would use in determining whether it was a violation 9 of 211.
10 MS. GINSBERG: But it's a Part 26 violation 11 that he's using, or Part 26 is involved for purposes of 12 this 211 determination. Aad the question is, when the NRC 13 is asked, "Must someone be psychologically unstable in 14 order for there to be a referral under Part 26," what's 15 the answer?
16 MR. LIEBERMAN: The answer is no. But what 17 the Secretary said is their record does not substantiate la the -- observed or engaged in abnormal or aberrant 19 behavior suggestive of any risk to public health and 20 safety.
21 MR. GOLDBERG: But isn't that the test now?
~
22 MS.,GINSBERG: But isn't it reasonable for a i 23 licensee, and we're stuck with the facts as we have them i 7.4 in the Robainas case and for purposes of this discussion, i
25 isn't it reasenable for someone who says, "I'm under NEAL R. GROSS
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16 1 significant stress.
. 2 I've got significant family problems,"
3 whatever it is that he articulated, and then should that 4 sliding performance, decreasing performance, at that point 5 to say, "Well, perhaps you ought to go to the EAP."
6 "No, I don't want to go to the CAP." "Well, 7 then perhaps we ought to be sure that you are fit in some 8 other way." It seems to me that there is a reasonable 9 determination there, given a variety of circumstances.
10 MR. LIEBERMAN: And maybe there is. But you 11 got to take the whole case. And each case is fact 12 dependent. And that car. te also had a supervisor.
13 We had ombudsman, both of whom were closely
. 14 with the gentleman, who had been trained in behavior 15 observation issues. And apparently, they didn't see any 16 potential problem.
17 Another person who had relatively limited 18 contact observed some potential problem. From the 19 decision, it doesn't appear that that person checked with 20 people who knew him more to get any perspective.
21 And I guess this is a case and the facts of 22 that particular case that was adjudicated through the 23 process. And the Secretary's, I guess, bottom line is 24 that the company was unreasonable in its belief that there 25 was a potential problem.
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- 9 1 MS. GINSBERG: But, Jim, with respect to your
. 2 saying that the company should have perhaps checked with 3 other people who knew this individual, that goes to this i
4 argument about co-workers, the statement about co-workers.
5 Would you have a company necessarily have co-6 workers be determining --
7 MR. LIEBERMAN: It's not just co-workers. The He knows 8 individual supervisor clearly is a key person.
9 that individual, that indivitual's work habits, that 10 individual's personclity in the work place maybe better 11 than anyone else.
12 And I think that's reflected in Part 73 of our 13 regulations also, that the supervisor is a key person that 14 the licensee ought to be relying on in making these l
l 15 judgments as to whether someone should be referred for 16 psychological evaluation.
17 And although we agree that the purpose of this 18 meeting is to not debate the facts of the Robainas case, 19 according to the Secretary of Labor's decision there, the 20 individual's supervisor, the ombudsman, were not consulted 21 prior to Mr. -- decision to terminate the individual.
22 And, furthermore, he apparently testified that 23 he had no basis to question the individual's be.havior.
24 MR. BISHOP: Mr. Goldberg, as counsel to a i 25 licensee, wouldn't you feel some obligation to advise your l NEAL '1. GROSS l ocum uposmoe AND WNBCRO5W 12 PD4cOE 18 LAND AVE KW.
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2C client that there is now a new test that they have to
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1
. 2 ensure that the supervisor has evalanted with a co-worker 3 the supervisor's judgment?
4 MR. GOLDBERG: No, I would counsel my client 5 if I were counselling a licensee to use its best judgment ;
1 6 and make essry reasonable attempt to comply with the NRC's j 7 requirements. 1 a If you believe that an individual should 9 undergo psychological evaluation because you have a 10 concern about his involvement in licensed activities and a 11 potential adverse effect on public health and safety, 12 refer the individual for psychological counselling.
13 If the individual asserts that the reason why
. 14 you did it was because of his protected activity, you'll 15 have to deal with that'with the Department of Labor and 16 rely on the good judgment of your supervisors and the 17 people who refer him and hope you can persuade the 18 Department of Labor that 'you did have a legitimate, non-19 discriminatory reason.
20 And that's what I would hope to hear from you 21- also that, although we don't believe there's a conflict 22 bYtween the Secretary's decision and our fitness for duty 23 requirements, that even if you continue to believe that 24 there is a conflict that you will continue to exercise 25 your authority to ensure compliance with NRC requirements Nf.AL R. GROSS coum womure ANo mHBCf40 ERB taas PD4o0E 18We AVE., N.W.
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.i
. 2 which you believe is not based on the facts.
3 And even if it might mean that you might lose 4 that case, that the most important thing is to ensure 5 protection of public health and safety.
6 MR. BISHOP: And certainly, I would counsel 7 that. I would continue to counsel that. But two things 8 obviously make that more difficult. One is the NRC's 9 acquiescence to DOL.
10 so, it says that even if you do right by your 11 judgment at the NRC, and frankly in the facts of this 12 case, even if the NRC determines that you did right, if 13 you lose at DOL, you will in turn lose at the NRC.
14 That's what happened here. It was an NRC 15 investigation. The NRC investigation concluded that there 16 was no discriminatory conduct.
17 If I were advising a licensee, I'd say maybe is the first thing we need to do is we need to talk to the 19 NRC right now when this decision is right in front of us 20 before we taku any action and ask the NRC what do they 21 think about this situation.
22 Well, that doesn't buy you very much as it 23 turns out because, under this case, that's the equivalent 24 of what happened. Yet, it was of no value.
25 The NRC came in after the fact ra'ther than .
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22 1 before the fact, but concluded there was no problem here.
2 That was overturned as wts the ALJ's dec!.sion by DOL by 3 the Secretary. l l
4 And I guess the most troublesome aspect is the l 1
5 NRC doesn't appear, from the Notices of Violation, to have j 1
6 done any indepen69nt evaluation of the facts of the 7 circumstances as you laid it out.
8 Was there a public health and safety issue 9 here that should supplant the concorn for the individual 10 remedy which is the Department of Labor's responsibility, 11 such that the licensee did satisfy the responsiLilities 12 under the Atomic Energy Act?
i 13 But rather, it appears the NRC just said DOL's 14 decided it's a Saction 211 case, therefore, we adopt 00L's 15 finding, without any further investigation. That's what 16 the Notice of Violation says to me.
17 That's a troublesome aspect. Because even if i
18 we do what you said, we're still liable to the NRC for 19 obeying the, NRC's regulations.
20 MR. LIEEERMAN: Well, in this case, we did not 21 just willy nilly just take the secretary's decision and 22 act upon it.
23 MR. BISHOP: All I can go by is the Notice of 24 Violation which certainly doesn't use the words willy 25 nilly. But it doesn't in any way qualify the Secretary's NEAL R. GROSS coum neroment AND NNSCROEMS 1885 fHOot ISLMC AVE., N.W.
(304 3B M ese WASMHctoN. O C, 300DH7e1 (304 33 4 433
-.__ ~ ~. _ _
- 23 1 d cicion.
. 2 It doesn't suggest that there might be, at 3 scme point, a poter.tial conflict between the two.
4 MR. GOLDBERG: It did acknowledge the appeal 5 and defer the licensae's response.
6 MR. BISHOP: But forgive me. That struck me 7 as being more administrative because it's not over until 8 it's over. And it's not over yet.
9 MS. GINSBERG: If you expended the resources 10 to review this, it appears that that was an effort that 11 just ended with absolutely no effect. The ALJ goes into 12 some detail about what the NRC did in its investigation, 13 the kind of things you looked at. And they go right to 14 the heart of the case by and large.
15 MR. LIEBERMAN: When you say investigation, 16 you're referring co what?
17 MS. GINSBERG: I was referring to pages 37 and 18 38 of the ALJ's decision'.
19 MR. BISHOP: The 1991 investigation by the 20 NRC.
21 MR. LIEBERMAN: Investigation and inspection.
22 MS. GINSBERG: They refer to it as an 23 investigation. And the issues that were evaluated, were 24 investigated, include the employees' concerns regarding 25 psychological evaluation, some of the technical concerns NEAL R. GRCSS coum Meromes AND TRWGCR0 SRB 1333 MHoOE ISLAPO AW N.W.
(314 3644N WAS&eNGTON, D.C. 3000H791 (302) 2344 333
~ " 24 1 regarding the calculatien.
\
. 2 I think it was the VCT. And actuall.' whether I 3 or not there was hsracament, threats, coercion, and 4 negative evaluations to limit the pursuit of safety l 5 issues.
6 MR. BISHOP: But the most critical finding was 7 no correlation between -- These are the words of the ALJ j 8 quoting f rom the 1:,vestigation report, "The inspection 9 indicated no correlation between disciplinary action and 10 going to speak out at their employee concern program or 11 being psychologically tested."
12 MR. LIEBEPRAN: I think at page 37 of the ALJ 13 decision they talk about the NRC investigated allegations.
It And then the next sentene says the NRC issued an 15 inspection report.
16 But this was an inspection report where we 17 looked into the technical allegatiers, and we also looked 18 into some of these harassment, intimidation issues. We 19 reviewed that inspection report before we n.ade this 20 decision.
21 We had a comprehensive enforcement conference 22 where we explored the various issues. We studied the ALJ 23 decision. We studied the various motions for 24 reconsideration, the secretary's reconsideration decision.
l 25 And we concluded that the Secretary's decision NEAL R. GROSS coum upomtRs AND TMMSCROERB 1328 MHoOE ISLAND AVE., N.W.
(300) 3964438 WA86eNOToN, OA 6 (302) 2S4 4433 1
l 25 1 did not present a problem for interpreting NRC
. 2 requirements, and we had no compelling evidence to 3 ccnclude that the Secretary's decision was not correct.
4 And thus, we accepted that decision. We noted 5 that the --
6 MR. BISHOP: Is that the test, Jim?
7 MR. LIEBERMAN: Essentially.
8 MR. BISHOP: That it's not incorrect?
9 MR. LIEBERMANr That's true.
I 10 MS. GINSBERG: This does directly conflict 11 with the Secretary's decision. I mean, the finding in the 12 NRC's inspection report certainly does conflict with the 13 DOL's decision.
. 14 MR. BISHOP: Was this inspector wrong?
15 MR. LIEBERMAN: No, I'm not saying that 16 inspector was wrong. And I don't want to get into the 17 details of the case because you have to go to the details 18 of what was in the inspection report.
1 19 But I for one am concerned witn relying on 20 inspectors necessarily to reach some of these conclusions.
21 Just like when we have inspections to try to measure the 22 c$1111ngeffectoftheclimateforraisingconcerns, it's 23 a difficult thing to do.
24 And the fact that based on interviewing 25 25 people or 50 people or whatever, and we conclude there may NEAL R. GROSS coum upomen Ano mNSCNSEPS taas MMo0E ISLAND AVL PtW.
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86 1 not be a -- or employees may not be chilled or hesitant in
. 2 raising concerns, that doesn't mean employees aren't 3 chilled or hesitant to raise concerns. -
4 They just haven't told our inspectors that.
5 And we're struggling with a way to get a better handle 6 just like licensees are struggling with a way to get a 7 better handle on how to measure climate.
8 And these are difficult questions. But the 9 statute, I think, gives some deference to the Secretary of 10 Labor in making decisions concerning whether 11 discrimination occurred.
12 Anc when we have waited for the whole process 13 to be completed, in some cases, some egregious cases, by 14 the time it's done, the statute of limitations bas 15 expired.
16 And the colicy of the Agency is the first time 17 an adjudication concludes discrimination occurs tant we is should act on that, be it the ALJ or in this case the 19 Secretary of that case, leave the decision open until the 20 process is completed.
21 MR. GRAY: You really are quibbling the facts 22 o'f this casa despite your disclaimer to start. You have a 23 problem with the way, not the baric ruling, legally.
24 MR. LIEBERMAN: Yes, I do with that too.
25 MR. GRAY: But you have a problem with the way NEAL R. GROSS coum manomens AND TMMeCats:
1333 FHoOE ISLAND AVIL MW,
. (ace 394 4438 WAspeNGioN, D C. 3F0H701 (som M
,
- 27 1 th3 S crocory of Labor ecme out cn tho fcets of this case.
. 2 MR. LIEBERMAN: That too.
3 MR. GRAY: So, that I think is your primary 4 quibble. You started here saying that you, in principle, 5 agree with the proposition that an employer ordering a 6 psychological evaluation for an employee solely because 7 the employee engaged in protected activities is 8 discrimination.
9 And you can agree with.that. I think that's 10 what you said. Basically, we agree with that. And we 11 believe, based on the ruling of the Secretary of Labor, 12 that that's all that has occurred.
13 As I say, you really ah .ar to be disagreeing 14 basically with the Secretary of Labor's assessment of the 15 facts in the case and his conclusion that, indeed, this 16 case did involve a situation where an employer ordered a 17 psychological evaluation solely because the individual 18 engaged in protected activities.
19 MR. GOLDBERG: We don't vant to argue those 20 facts.
21 MR. BISHOP: But this case does establish 22 principles. And that's what we're trying to understand.
23 And that's what troubles us. We're not going to be able 24 to defend this case.
25 MR. LIEBERMAN: But the principle, I think, it NEAL R. GROSS coum namomens ou MNBC40sps 13s3 fHoOE LSLAND AVE., KW, (304 39 M 488 WAsHINGTOM D.C, 3D00M701 (202) 236 4433
i 25 1 establishes is what fee said.
. 2 MR. BISHOP: But there are other principles 3 here too. One principle is the NRC disavowed its own 4 investigation it seems. On the record, as I know it from 5 the Notice of violation, there is no indication that the 6 NR'C --
7 If this inspector did wrong, then one. would 8 presume that that inspector is going to be disciplined or 9 retrained or something clsa. -
10 MR. GOLDBERG: There's no basis to believe 11 there's any wrongdoing by the inspector. He may ve y well p 12 disagree with his finding. We may very well disagree in 13 various cases, and we have, with OI conclusions after
. 14 comprehensive investigations.
15 Those are the normal course of work of agency 16 employees who have a responsibility to carry out their job 17 function, and then the process continues, howevar, with 18 further review and evaluatien and deteminations and 19 exercise of judgment and so forth.
20 And our normal practice is i:o initiate an
, 21 enforcement action based upon a Department of Labor, 22 whether it's A14 or Secretary of Labor, decision which 23 finds discrimination even if we may have some inspection 24 results or some investigation results that reached a 25 diftarent conclusion.
. NEAL R. GROSS coum arrens ANo tweceses 1333 MMo0E tsLAND Avt NW.
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. ~
- p 1 They're based upon different sets of evidence.
. 2 The DOJ process involves an adjudication before an ALJ 3 where both parties have the opportunity to present 4 evidence and cross-examine witnesses and things like that 5 which is not the case within OI investigations or 6 certainly inspection.
7 MR. GRAY: There wasn't an OI investigation 8 here. It was, as we understand it, an inspection that 9 looked into the allegations, the technical allegations.
10 MR. BISHOP: Right.
11 MR. GRAY: And at the same time, involved some 12 assessment by the inspector as to whether he saw the 13 chilling effect. It's worth what it's worth, but it 14 certainly is not in the same --
15 In terms of determining whether there was 16 discrimination, it doesn't take on anywhere near the same 17 sort of status as a focused OI investigation into an 18 allegation of discrimination or an MJ or Secretary of 19 Labor adjudication.
20 MR. LIEBERMAN: I don't think it's even 2..
21 retsvant to the actual finding. I don't think Mr. Haasmer 22 was interviewed. It didn't focus on those type issue.s.
23 And I don't think we should even pursue it.
24 Unless you're suggesting from now on when OI concludes 25 some wrongdoing occurred, we should just always adopt NEAL R. GROSS COUM WOMUs MC MNSCNept 1325 MHo0E SLMC AVE., KW, (Elm 39 4 488 WASHINGTOR D.C. MIMHMH (202) 2M l
. ~
30 1 thoir finding and just get on with it.
. 2 I don't think you're suggesting that. Are you 3 suggesting that the Secretary of Labor should punish the 4 ALJ for not agreeing with the Secretary of Labor?
5 MR. BISHOP: No.
6 MR. LIEBERMAN: These things are difficult cases. Reasonable people differ on these issues.
8 Sometimes area offices find discrimination. ALJ's don't 9 find discrimination. The Secretary finds discrimination.
10 courts switch their views.
11 And every year a possible combination could 12 proba.bly occur in these cases. No one said this was 13 simple.
. 14 MR. BISHOP: No.
15 MR. LIEBERMAN: Buc I think the basiv 16 principle and what lawyers should be advising their 17 clients is that you can't refer someone for psychological le counselling for a urinalysis test, pull their access just 19 because they engaged in protected activities.
20 You have to have an underlying basis of 21 concern. And I don't think you should take this Robainas 22 case as anything more than that. The rest of it is fact 23 dependent.
24 MR. GRAY: If there is a lesson to come out of 25 this case for a licensee, it is to be very sure that when NEAL R. GROSS coum nanomDS AND MMDCASERS 1885 240ot ISLMC AVE.,64 W.
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Y 1 it has o question about an employee's stability or an n
. 2 employee's fitness for duty, that it follows its 3 established process and is clearly taking actio: on the 4 basis of the concern about the employee's fitness for 5 duty.
6 MR. BISHOP: Absolutely.
7 MS. GINSBERG: Aren't we talking about when we 8 talk about early detection, a lower threshold? It seems 9 to me that one of the things you want is to cast a broad 10 net to be sure that people who might not necessarily at 11 this moment be showing egregious behavior or significantly 12 abhorrent behavior, but nonetheless, you have some 13 question about.
14 That's the kind of thing that early detection 15 was specifically included in Part 26 to catch. And it 16 seems to me that one of the things that this decision does 17 is I think it will make licensees or potential licensees 18 wary of taking steps in order to detect early the kinds of 19 things that Part 26 -- fitness for duty kinds of issues.
20 MR. BISHOP: Until it becomes more obvious.
21 And then nobody can quarrel with the decision.
22 MS, GINSBERG: And then what you're left with a
23 is this sort of standard which is c. much higher threshe,1d 24 which is psychological instability or otherwise a threat.
25 You don't want to let people become saboteurs C
NEAL R. GROSS count RepomUs AND TMNBCM854 1333 RMoOf ISLAND AVE, N.W.
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32 1 baforo you sucnd back and oay, okay, we nood ocmo action
. 2 to be tr. ken here. Obviously, that's an egregious, 3 hypothetical example. 3ut that's what the concern is.
4 ME. GOLDBERG: Was this individual's perceived 5 threat to public health and safety so egregious and so 6 imminent thac there wasn't time to talk to the individual
\
7 sucervisor-about his performance and behavior?
MR. BISHOP: No.
3 Again, I can't argue exactly 9 what happened and what might have been done differently.
10 Again, one of the things we're trying to do $s take this 11 case and tzy to counsel the indtstry. What can they do
", 12 now? This is the law as it stands.
13 MR. LIEBERMAN: What is the reference in the 14 decicion that you're concerned with?
[
15 MR. BISHOP: Well, the one that, as Ellen
- . 6 described better than I, seems to su5 gest it has to be 17 more obvious before you can take action and not run afoul 18 of DOL's determinati.ca or be less likely to run afoul of
=
19 an adverse determination.
20 One other thing as we were talking about it K
21 before we came this morning, attempted to say because 22 again, I think that. potentially the responsibility of the t 23 NRC and DOL could be in conflict.
24 Not necessarily G.at tacy are, but they could t
25 be, that maybe the right thing to do is to seek counsel NEAL R. GROSS count merontem we Tw.casens 1323 rho 0E ISt.AMD AVE., N.W.
r (202) 234 4433 WASHINGTON. D.C. 2000H701 gJ02) 234 4433
33 1 from the NRC as part of your process before you take
. 2 action.
3 And t. gain, it's face specific here, but that's 4 why I'm troubled by the fact that the NRC was involved in 5 this,'and if I were to take action based in good faith, I i
6 vi' sit 'the circumstance with my regional administrator.
? Pick whoever you'd like. And they say, "No, 8 based on the facts ac you described them to t.e, that seems
} 9 logical." Or, "I don't think that your action is 10 inappropriate."
11 MR. LIEBERMAN: I don't think that would be a 12 good approach,
}
e
't 13 MR. BISHOP: We're tr9fing to follow the NRC's
..c i . 14 regulations. Why shouldn't we be able to ask the NRC to 15 help us? This shouldn't be a game. I mean, Part 26 says I
\
16 what it says.
17 Section says what it anya. We ought to be 18 able to go to the NRC and get help and understanding in 19 how to implement these regulations because there might be 10 a conflict. Where do I go?
21 MR. LIEBERMAN: Licensees are faced with 22 complying with all sorts of statutes. They have civil 23 rights statutes they have to comply with. There's a lot 24 of requirements in the personnel area.
25 You got union % quirements. And when you're NEAL R. GROSS count eomme AND TMSCNSEMs 1323 FHoOE ISLAND AVE., N.W.
34 l 1 going to make a decision that affects people, you got to
. . 2 have a reasonable degree of information. You just can't 3 do things on shims.
4 You have to have a reasonable basis. And in 5 this decision, the Secretary concluded there wasn't a 6 reasonable basis to have a concern. And ma3 he one lesson s
7 is, if you're not familiar with a person and i u've only 8 met this person once or twice, maybe you should speak to 9 someone else before you take action.
10 This did occur over several days. I think li that's all the case is saying. That based on the set of 12 facts as adjudicated in this case, the actions weren't 13 reasonable.
14 And I dun't think we should make more out of s 15 this case chan is there. If you believe someone is 16 demonstrating aberrant behavior, if you have a cencern aa 17 to the person's trustuorthiness and reliability, then you le bave an obligation to take action.
19 MR. CUNNINGRAM: When you say why shoaldn't 20 che industry be able to come to t'.le NRC with these issues 21 and get a decision, af ter all you' re trying to fcilow NRC 22 rules, the NRC I think is more than willing and has 23 demonstrated in the past their nillingness to provide 24 guidance on the intent and purpose of the ' regulations.
25 But in no why can the NRC be involved in each NEAL R. GROSS coum RoomRB AND MNBCMSUW 1323 44o05 ISLAND AVE kW.
~
l' 35 1 and every assue that comes up to assure that the licensee 2 is in compliance.
We den't have the staff to cover all 3 those issues.
4 I don't think that's the intent of the 5 structure of the agency or the industry that they want NRC 6 to make a decision for the industry in all cases. I guess 7 my point is that I think that NRC very clearly tries to 8 provide the general guidance in explanations to the 9 industry, but in no way can be involved in each and every 10 determination.
11 MR. BUSH: I think also if you're asking 12 questions or soliciting guidance on a specific case, than 13 there are a lot of factors.
, 14 And you have to spend an inordinate amount of 15 time to make sure that the staff person you're contacting 16 fully understood the aspects of the case because depending 17 upon the facts, the guidance could change just a little 18 bit from one case to another.
19 And then you'11 be in a position where you, 20 *ecause not all of the facts have been presented, might 21 not have gotten the proper guidance.
22 MR. BISHOP: Obviously, the responsibility 23 would be on the person describing it. If you described it 24 'inaccurately in hopes of getting the right answer, then 25 shame on you. There should be no justification for that.
Nf6L R. GROSS COUR1 TMFiWit ANDTMNBCMSERS 1sc ?.k.1 JE isuum AVE., N.W.
p 334 4 egg WAbeeNOTON 0.c. JDDOM701 MN
._ 7 36 1 But that*o ano of the things that comes out of ,
2 this. We're trying to figure out what do we do now? And 3 again, on two areas, it's particular troublesome. Forget 4 about thiu case.
5 This case will work its way through the 6 system, and there will be a result. We're looking at the 7 generic implications. We're frankly concerned about what 8 advice do we give.
9 And I'd be interested in your views on the 10 chilling effect that works the other way that the concern 11 of licensee management about how well they can manage I 12 people who, in their view, are trying to gain the system 13 or trying to use the system to protect themselves from an 14 impending layoff, from disciplinary action for poor job 15 performance, etc.
16 These are real world circumstances. And like 17 I say, there are only 80,000 people out ther in the 18 industry at any given moment. The issues are very 19 complex.
20 But one of the things that concerns us is the 21 licensees' ability and responsibility to carry out their 22 assigned task in the environment that is created for them.
23 And that means trying tr deal with individuals who may be 24 difficult individual to deal with period.
25 Jmd the situation becomes more so if they NEAL R. GROSS CouM REPoMEMS AND TMNSCMSERS 1323 IHotE ISLAND AVE., N.W.
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.- ~~ .i p i raise safety question.
. 2 MR. GOLDBERG:- We recognize the difficult 3 decisions that licensees have to make. We recognize the 4 ccmpeting factors that come into play when-an individual 5 has engaged in a protected activity.
6 And still licensees must make decisions about 7 job performance, employment actions, psychological 8 evaluations. It's just one example of the difficult 9 decisions that licensees have to make.
l 10 We are sympathetic with that. But this
'1 Robainas decision, as far as we're concerned, doesn't 12 change any of the Part 26 requirements, any of the 13 guidance that's been promulgated implementing part 26 or 14 any other aspect of the NRC's requirements.
15 What this case says, and it's not unique to 16 referral for psychological evaluation, is that when you as 17 an employer make an adverse action decision in connection 18 with an employee, and he' alleges that it's a result of his 19 protected activity, not for legitimate non-discriminatory 20 reasons, and he files a complaint at Dos and that's I 21 adjudicated, if he establishes a IEimP 1Agia case, the 22 burden is going to shift to you, employer,' licensee, to 23 establish that you had legitimate non-discriminatory 24 reasons.
25 And these are the things that we, dol, are NEAL R. GROSS couRTwomRB AND TMANSCREERB 1333 WCDE ISLAPC AVE., N.W.
(sle)33 M 488 WAsMINGTON. D.C. sEEH791 (305 3364433
38 1 going to look at in determining whether the action was
. 2 selely because of the protected activity or for legitimate Jl ncn-discriminatory reasons.
4 So, that's not any different here with this 5 case as compared with other caces where you make a 6 de' cision involving an employee who's engaged in protected 7 activity. You recognize that you will have to defend that 8 action over at DOL.
9 And that the NRC's normal practice in these 10 discrimination cases, which are similar to the decisions 11 that you have to make on access issues, are very often 12 very complicated cases involving mixed mott'es in many 13 cases, in personalities of supervisors and employees.
. 14 There are a whole host of very complicated i 15 factors. And a lot of times it's not very clear. But you 16 have to make these decisions.
17 And you have to be prepared to defend them and 18 make your case at DOL and recognize that the NRC's normal 19 pr2ctice is tc base its enforcement actions on decisions 20 of the Department of Labor, eksther it's an ALJ or 21 Secretary of Labor.
22 And we do recognize that if the process is not 23 final, we recognize that there's always a possibility that 24 you will succeed in ecnvincing the Department of Labor 25 either through your appeal to the Secretary based on an NEAL R. GROSS count mEpomRB AND MWBCMSEMB 1325 M4oOE ISLAND AVE.. N.W.
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33 1 ALJ, or now the Administrative Review Board there, or in 2 chis case to a Court of Appeals, that they're wrong and 3 that you have established legitimate non-discriminatory 4 reasons.
5 But that's thi process as it works. And we 6 understand the situation you're in. And we do consider 7 that.
8 MS. GINSBERG: Well, what this case seems to 9 take away is the ability of a licensee to say I was 10 complying, I believed I was complying. with Part 26 fer 11 the following reasons because I didn't wait to determine 12 that someone was psychologically unstable.
13 In other words, I went on the early detection.
14 And that seems to be a significant problem that this 15 change in what Part 26 will be perceived to require. Do I 16 satisfy the NRC's perception of Part 26?
17 Or do I satisfy DOL's perception of Part 26?
18 And if I do one, I'm probably not satisfying the other. ,
19 MR. GOLDBERG: I think the outcome of the case 20 might very well have been different if you had been able 21 to establish that you didn't have time to consult with 22 supervisors and ombudsman and do further evaluation.
23 Again, you're getting into the facts of this 24 case.
25 MS. GINSBERG: We're stuck with them when we NEAL R. GROSS coum peoman um mMSCftSMS 1325 RHoOE ISLAND AVE., RW.
(202 394 4488 WASHINGTON, D.C 2000Hm1 (202) 2WM
1 go apply it to the next situation.
2 MR. GOLDBERG: This case doesn't stand for the 3 proposition that you may not ever take prompt action to 4 deal with an individual who is a real threat to jeopardize 5 public health and safety and you must first jump through 6 18 different hoops before you can take that action. It 7 doesn't say that.
8 MS. GINSBERG: But without a very black and 9 white fact.ual situation of completely abhorrent behavior, 10 how are you going to make that early detection 11 determination?
12 MR. BISHOP: Let me restate your point and see 13 if I understand it. That as far as the NRC is concerned,
, 14 this case does not stand for the proposition that Part 26 15 should be interpreted any differently, not withstanding 16 the Secretary's, to me, direction that it should as far as 17 early detection, as far as the NRC's concerned with making 18 decisions w3.a. I think the words were, a broad approach 19 because these issues are complex, because there may be a 20 lot of factors and concerns.
21 Your decision or your reading of D. S.
22 Robainas, and again, as I read your interpretation through 23 the NOV, but as you've clarified, you do not see the 24 Secretary as changing licensees' responsibilities under 25 Part 26 for the early detection and their responsibility.
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.J 41 C 1: MR. BUSH: I'v3 not octually read the
. .. 2 Secretary's, but I defer to --
3 MR. LIEBERMAN: That's right. _Because the 4 Secretary does say,-as Ellen says, that co-workers did not I
5 observe any psychological instability and never considered-6 D. S. Robaanas as a-safety threat.
7 The page before it says he never questioned 8 Robainas' fitness for duty and would have if he had 9 suspected that he posed any threat. Suspected is a much 10 lower standard than observed instability.
11 So, this decision is saying different things.
12 It -- commenting about the evidence or the testimony of 13 what different people said. But the bottom line is that s
14 the supervisor ordered the evaluation solely as a measure 15 to discourage his protected activity. It's a factual 16 call.
17 MS. GINSBERG: That's right. But the problem 18 with that factual call, as at least I see it, is that if 19 you go back to the ALJ decision, the Secretary picked and 20 chose his facts. And he did so in a rather surgical
'l manner so that --
22 MR. BISHOP: We can't argue that case here.
23 MS. GINSBERG: Right. Understandably. But 24 that's what you're getting to. So, it seems to me that 25: you've got tw very conflicting factual determinations.
NEAL R. GROSS coum nepomans meinansemeens 1335 nMoOE ISLAND AVE N.W.
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ll 42' 1 MR. LIEBERMAN: So, you go with the bottom
.- 2 line. I think the bottom line, and I've said it before, '
3 is that if you only take action because of protected 4 activity, you may have a problem.
5 And, therefore, make sure you have a valid 6 reasen. It's just I think common sense and good judgment 7 if you know the person engaged in protected activity, you 8 might take the extra care to make sure you have a rational 9 basis. .
10 Not that you shouldn't have a rational basis 11 at all times, but you appreciate, I think it's just human 12 nature, you may be questioned, if the time's available to 13 take that time to give yourself more assurance that what 14 you're doing is working.
15 MR. PISHOP: But as you don't read this case 16 as changing the sweep and the scope and the need for early 17 action by licensees, you also don't read this case to 18 suggest that now there is some obligation that you have to 19 visit with co-workers.
20 MR LIEBERMAN: No.
21 MR. BISHOP: That you have to have a more J3 aggressive threat.
23 MR. GOLDBERG: I don't read any of those as 24 prerequisites or conditions preceding to a legitimate 25 referral for psychological evaluation.
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i 43c
- 1 Thay'ro cimply looking et all tho factors.
,- 2 And when you look at all the factors, did they consult the 3 supervisor? No. Did they talk to the ombudsman? No.
4 Did they talk to co-workers? No.
5 Let's suppose you had done some of those
~
6 things, and the supervisor said, for example, "You know, - -
7 he's been behaving strangely lately. And I was thinking 8 about whether I ought to refer him for psychological 9 evaluation."
lo If you had some facts like that involved in 11 this case, you may very well have had a diffe.snt result.
12 What this opinion is saying I think is, when we look ac
- .3 all the indicia of whether there was a legitimate referral 14 or not, we don't find evidence that supports the 15 licensee's position that there was a legitimate basis for 16 the referral.
17 To the contrary, what we find is that it was 18 based solely on his engaging in protected activity.
19 That's all we see in the case. We don't disagree with the 20 broad principles that were announced in the casc.
21 And we don't see that you ought to do anything 22 differently when it comes to your obligation to satisfy 23 our fitness for duty requirements. But you will be now 24 aware and sensitive to the fact more so than before 25 perhaps.
P NEAL R. GROSS CCUJT REPoMDB AND MNBCRSERS ;
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- ~ -
y 1 But not unlike other areas of lau, that when
. 2 you're dealing with an individual who has engaged in 3 protected activity or you may be dealing with an
- 4. individual that you're not even aware that he's engaged in 5 protected activity.
6 But you always have the possibility that that 7 employee will believe or assert that it wasn't e 8 legitimate action, whether it was a referral or anything 9 else, and they file a complaint over at DOL.
J. 0 And you're going to have to do the best you 11 can over there to persuade them that it wasn't a 12 discriminatory action.
13 MR. CUNNINGHAM: Can we go back I guess to the 14 issue of the Part 26 I think and eliminate the employee 15 who has engaged in protected activity? Because that is a E 16 site issue. That's not part of Part 26, 17 Part 26 is fitness for duty, and 18 implementation of that rule is that it will require 19 different process on various cases. And we would expect 20 much more insnediate, positive action in some cases and 21 more deliberate process evaluation in other cases.
22 I think that is a judgment call that licensees 23 are obligated to make. It does vary. And I think some of 24 the less obvious, we foresee a process by which the 25 individual's rights are protected as well as protection of
'~
/ -
HEAL R. GROSS coum Repomve AND MNStMSGB h (30m IS H 488 1323 RMoOE ISLAND AVE.. N.W.
WASHINGTON. O.C. 200ETF01 (200 2W
4s 1 ocfoty.
, 2 MR. ROSANO: I think that it's also, this all 3 goes to the knowledge of the supervisor who is taking the 4 action. And if that supervisor is aware that the 5 individual engaged in protected activity, and I'll use the 6 word " tainted" very loosely, but in effect his opinion of 7 this individual's behavior may be tainted by his knowledge B of protected activity.
9 I think the licensees may be able to comply 10 with Part 26 and still avoid t finding of discrimination 1A if the decisions to refer someone for psych testing will 12 include the opinions of others who perhaps aren't involved 13 or aren't aware of the protected activity.
14 I'm not suggesting that anyone of us is so 15 angelic. But if I were a superviror who knew my employee 16 had enctaed in protected activity and I suspected his 17 behavior was average, it could be that my wisest move 18 would be to ask the opinion of other co-workers or 19 supervisors who likely didn't know abcut the protected 20 activity and, in fact, avoid bringing that into the 21 conversation in order to get a more objective view before 22 th" person was referred.
23 An action like that might insulate the 24 decision from finding discrimination.
25 MR. BISHOP: I anderstand.
NEAL R. GROSS count eumve ANO WNBCMSEW 1325 PHCOE ISLAND AVE NVf.
(202) 2keet WASHINGTON, D.C. 2000H701 (202) 2 % 4433
- 46 1 MR. L2EBERMAN: Now, this is not, if I have my
-. 2 facts right, I believe we had a previous enforcement
'3 .
action with either Florida Power and Light or Florida 4 Power Corporation, I forgot which, where there was an 5 employee that they were engaged in 210 litigation.
6 And the employee, and it might have been a 7 former employee, mentioned to someone that he's going to 8 get the company. He was referring to when this person is 9 on the witness stand through the cross-examination is not 10 going to be a happy experience for the company.
11 The company's, when that information got back 12 third hand to the plant manager, view was this person is 13 going to sabotage the plant. We're not going to hirm him.
14 And thus, when he came to be hired, they 15 didn't hire him because he was a security risk. We 16 concluded that was discrimination.
17 And the issue again is when someone is engaged 18 in protected activity and there's a competing requirement 19 in this case, security Part 73, you got to make sure you 20 have a basis for the action.
. 21 And they made the access decision purnly en 22 rumor without checking to find out the context of the 23 statement, and there wasn't a reasonable basis for the 24 decision. I think that's what this Robainas case is about 25 too.
NEAL R. GROSS coum nepompe AND TMNSCM895 1323 44cOE ISLAND AVE . N.W.
(EDS 236 4435 WASHIN"3 TON, D.C. 2000H701 (200 W
, . 47'
- 1 MS. CHIDAKEL: I think documentation 10
, 2 important not only in this type of case, but in other 3 discrimination cases that I've seen where you can document 4 specific instances. That weighs heavily on the Secretary 5 of Labor's decision and consequently on ours.
5 MR. BUSH: I think the industry's own guidance 7 that goes back years and years was to the supervisors when 8 they suspect that an employee might be having a problem, 9 to document their observations and.show trends and things 10 of that nature so that they have something to base an 11 action on.
12 MR. BISHOP: No question. I think all of us 13 who have been involved in human relations things always 14 wish there were more documentation done contemporaneously.
15 The point of fact is most of us are so busy 16 doing our job that that seems somehow to be less important 17 than doing our job or taking whatever action we think is 18 important. But there's no question that documentation is 19 always helpful, 20 Frankly, one of the aspects of this decision, 21 and we won't get into this decision any further, was the 22 Secretary's determination of what was in the mind of the 23 supervisor. And that's always troublesome to try to read 24 intent into an action that somebody takes.
25 Only the supervisor knows. Part of our NEAL R. GROSS cotmf MEPOMUW AND MNSCAs54 1333 fe4oOE ISt#C AVE., N.W.
(300 3S4-4408 WASHINGTON. 0.C. acc0H701 (20m 2S4-4433
43 1 challGng3, of course, is dealing with people like I
. 2 suspect that supervisor who might believe fervently that ;
3 he did not, he would net, take this action as a matter of 4 discrimination.
5 And he or she may well believe that. And i
6 believe that in their heart. But it didn't matter to the 7 Secretary. The Secretary reached his own decision.
8 MR GOLDBERG: Back to your question before 9 about in light of this decision, what advice should an 10 attorney provide to his licensee client? Obviously, what 11 our primary interest is, if you believe you have a basis 12 to question the individual and you have a concern, act on 13 it.
14 If you believe you must act promptly, act 15 promptly. But it's also true that if you have a concern, 16 but you don't have a reason to believe that you need to 17 act promptly, be smart.
18 Talk to people. Document it. Get a record.
19 Be prepared to defend against what you believe is going to 20 be an unfounded allegation that you toch the action 21 because the individual engaged in protected activity.
22 So, I mean, it's not always done. And you 23 have-to deal with the facts as you have them. But first 24 and foremost, I don't think there's any disagreement, is 25 public health and safety.
NEAL R. GROSS coum meoms ANo wweeneens 1333 PHOOf ISLMC AVE., N.W.
(2 4 3 k d438 WASMNGToN, D.C. 3D00H791 (204 2344433
l
-- - 'e 43
' And second to that, of course, is if you don't 1
-, 2 need to act immediately to protect public health and
- 3 safety, then be duly aware of your other. responsibilities 4 and the other issues that you'll have-to deal with, or you 5' may have to deal witn. .
6 MR. BISHOP: Yes. Absolutely. I agree.
7 Well, thank you for giving us an opportunity to talk this .
8 through and to express our concerns too. We still remain 9 concerned.
lo I doubt there's anything frankly you could say 11 that would alleviate it. But we remain concerned about 12 the difference of the responsibility of the NRC and 13 Department of Labor.
14 And we would encourage you to keep in mind as 15 you go forward in these and any other kinds of issues, the 16 possible conflict and ensure that you're doing what your
- 17 recponsibilities require to enable us to do what ours 18 require.
19 MR. GOLDBERG: Does anybody else have anything 20 before we-close? Okay. Thank you very much, Bob and 21 Ellen.
'~
22 (Whereupon, the proceedings were adjourned at j 4
23 9: 44 a.m.) l l
I 24-25 1
NEAL R. GROSS coum napomen meinancmeans 1333 le10DC mLMC AVE N.W.
(EIS SM45 ' WASMNGTON, D.C. EDDHF01 (304 234 4433
i lo 6
i C3RTIFICATE This is to certify that the attached proceedings before the United. States Nuclear Regulatory comas;sion in the matter oft Name of Proceeding: MEETING TO DISCUSS THE DEPARTMENT OF IABOR DECISION IN THE CASE Or D.S. ROBAINAS V. FI4RIDA POWER AND LIGHT COMPANY Docket Number: N/A Place of Proceeding: ROCKVILLE, MARYIAND were held as herein appears, and that this is the original transcript thereof for the file of the United states Nuclear Regulatory Commission taken by me and, thereafter reduced to typewriting by me or under the direction of the court reporting company, and that the transcript it a true and accurate record of the foregoing proceedings.
A
/K Offi, al Reporter LINS Heal R. Gross and Co., Inc.
NEAL R. GROSS count naposmou me MNsCROWW 1883 FMo0E 18We AVD4JE, MN g gne Esm wAeMNGToN, DA 3D005 90 4 394 4488
9 j
lg,.- U.h. OLPAMTMENT OF LACon SECRETARY OF L.Aeom wasma.e .w. o c.
DATE: January 19,-1995 CASE No. 92-ERA-10 IN THE MATTER OF REGINO 2. DIAZ-ROBAINAS, COMPLAINANT, v.
FLORIDA POWER & LIGHT ColC?ANY, RESPONDENT.
BEFORE: THE SECRETARY OF LABOR DECISION AND REMAND ORDER -
Complainant, Regino R. Dias-Robainas (Robainah), fildd thf2 complaint alleging that itespondent, Florida Dower & Light company ,
(Florida Powar), retaliated against his in violation of the '
employee protection provia.on of the Energy Reorganization Act 1974, as amended (E2A or Act),-42 U.S.C. 5 5851 (1538).1# The Administrative Inw Judge (AIJ) ruled that the complaint shculd be dismissed because Robainas failed to meet his burden of proof, see Recommended Decision and order (R. D. and 0.) dated l' The amenlaants to the EXA contained in the Comprehensive National Energy Policy Act of 1992, Pub. L. No. 102-486, 106 stat. 2776 (oct.-24, 1992), do not apply to this case in which the complaint was filed prior to the effective date of the amendments, the provisionFor simplicity's as codified in 1988. sake, I will continue to refer to 4 9 ATTACHMENT 2
. 1 2
l lC=tober 29, 1993. Upon review, I disagree and remand for the AL7 ~
i l
to_daterfline the remedy. See 29 C.F.R. I 24.6(b) (1995).i' l RAcKCROtJND i I
Robaine.s was amployed by Florida Power'as an engineer from !
1980 until august 19, 1991', when he was fired. Transcript (T,)
at 756; Respon&6..t's Zah121t (RX) 50.3' Throughout his esployment, Robainas-generally received high performance rasings for his technical job knowledge but lower ratings for his
" judgment." see RX 1. He was idealistic but not practical at times. T. at 404. However, he was promoted several times, including in 1985 to the position of Lead Engineer in Instrument
& Control (I&c), a department that determines how equipment is to behave under different accident scenarios, and later to the
' position of Senio: Engineer, which he held at the time he was -
fired. T. at 45, 51.
r In 1988 Florida Power hired John Hosmer as the Director of i
Nuclear Engineering. T. at 652. Nosmer first met Robainas in i' In August 1994, Florida EnerTY consultants, Inc. filed an Amicus Curiae Brief in this case. Both individually and by i
counsel, in e brief dated August 11, 1994, Robainas objects to )
variour legal arguments made in the amicus brief, and he requests that the brief not be considered. Florida Power also ur I I ignore the brief. In view of the parties' consensus, ges that I have not considered the amicus brief.
Florida Power also moved to strike Robainas' letter to the secretary dated August 26, 1994, as containing scandalous or impertinent matter. The specific matter challenged, J.e.,
Robainas' assertion that Florida Power falsified the record, at pages 1-2, is stricken from the letter.
i' The evidence adduced in this case has been summarized by the AIJ at pages 2-38 of the R. D. and C.
1
-m - - ,-w -
3 March 1990, when Robainas complained about the new mandatory drug testing policy. T. at 57, 76s-70. Although Robainas took the test and passed, he threatened to " seek redress" because he believed that it violated his constitutional rights. T. at 771:
RX 5, 6.
Hosmer testified that he resented Robainas' threats to sue the company for implamenting a policy that was imposed by the '
Nuclear Regulatory Commission (NRC). See T. at 642-63.
- In the fall of 1990, after a restructuring of its nuclear engineering department, Florida Power reassigned Robainas to the outuide services Management (osM) group under the supervision of Bob Wade. T. at 60, 913. While working together, Wade and Robainas disagreed about various engineering projectu affecting the Turkey Point Muclear .?lant (TPN). Some of the projects Robainas worked on included the Westinghouse Satpoint Study, the Prsssurized Pressure Transmitter Replacement P t oject, and the Emergency Response Data Acquisition Display System (ERDADS). 7.
at 62.
In his February 1991 annual performanie appraisal, Wade rated-Robainas' performance below average overall. RX 11. By letter dated February 23, 1991, Robainas complained to Hosmer about the rating. RX 12. Robainas believed that he was being retaliated against in violation of the ERA, among other reasons.
RX 12 T. at 670-72. Rosmer decided to give Robainas a fresh start and to provide more frequent performance reviews. T. at 676. According to Hosmer, Robainas explained that he was under stress, that he was going to night school, that he had been ill, and that his in-laws were moving in. T. at 677. Hosmer viewed
_ _ _ - _ _ - _ _ - - - - - - - - - - - - - - - - - ' " ' ~ ~ ~ ~
4 Robainas as complaining not only that his bosses were not grading him fairly, but also that he was overwhelmed and stressed out.
T. at 678.
Meanwhile, Robainas was transferred to the Production Engineering Group (PEG) under the supervision of Basil Pagnozzi.
T. at 76, 201; RX 10. On April 30, Pagnozzi gave Robainas his first interia performance evaluation. T. at 562, RX 18. Again,-
the overall rating was below average and Robainas was ~
dissatisfied. T. at 253; RX 18. In response, on May 2, 1991, Robainas filed concerns with Florida Power's internal Nuclear safety speakout organization (speakout). T. at 101; complainant's Exhibit (CX) 34; Joint Exhibit 1. Speakout personnel did not interview Hosmer, Pagnozzi, or Wade until August 1, 1991.
In July, for disputed reasons, Hosmer began considering Robainas' psychological fitness for duty. On July 30, Hosmer and Pagnozzi met with Robainas to discuss his performance since April.
Pagnozzi read the performance evaluation to Robainas, and Hosmer directed him to undergo a psychological fitness-for-duty evaluation, which already had been scheduled for the next day with Dr. Dennis Johnson. T. at 740-41, 745-46. Robainas objected.
At his request, Hesmer postponed the appointment until August 2, but Robainas failed to attend. T. at 744. Hosmer pulled his access badge and rescheduled the appointment for August 19. T. at 746, 752. on August 9, Hosmer learned that Robainas had contacted the NRC with engineering concerns. T. at
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l 753. On August 19, Robainas refused to go to the psychological l
(
fitness-for-duty evaluatien and Hosmer fired him. T. at 756.
Robainas alleges harassment, falso performance evaluations, an illegal fitness-for-duty directive, and unlawful discharge.
Discussion The AIJ found that Robainas failed to establish a prfma facle case of any retaliation occurring within thirty days of the date his complaint was filed. R. D. and O. at 39-46. Focusing on Robainas' complaints to Speakout and the NRC, the ALJ found that protected activity could not have activated the decision to send Robainas for a psychological evaluation because Florida Power was naware of any protected ac'ivity c at that time. Also, in his view, the directiv3 to see Dr. Johnson was not an "adverde action" because it was non-punitive. R. D. and O. at 41.
I Accepting Florida Power's arguments, the ALJ further found the evidence insufficient to establish the causal inference necessary to establish a prima facie case, R. D. and O. at 44-46, and alternatively, that Florida Powar articulated and estehlished valid reasons for the July 30 performance rating, the directive to see Dr. Johnson, and the discharge. R. D. and C. at 46-49.
In sun, the AL7 concluded that Robainas was discharged solely because he twice refused Hosmer's lawful and reasonable order to see Dr. Johnson. R. D. and C. at 42-43, 45-46.
9
4 l
i 6
A'. The Enrita I accept the AU 's conclusion that Florida Power articulated valid reasons for Robainas' July 30 performance appraisal, and that Robainas did not prove that those reasons were pretextual.
R. D. and O. at 46-48 44. The record supports the AL7's findings that Robainas mishandled several projects during the rating period and that his ratings were not inconsistent with ratings from prior years, well before any protected activity.
RX 1, 21; T. at 155-56, 248-70, 278-79, 728.
The AL7's lega*, analysis of the discharge issue, however, is not supported by the record or the law. First, the finding that Florida Power's order to see Dr. Johnson does not constitute an !
" adverse action" is inappropriate in several respects. Generally
\
speaking, any employment action by an employer that is i unfavorable to the employee's " compensation, terms, conditions, ,
i er privileges of employment" may be considered an " adverse '
action" for purposes of the prima faele case. see oerord v.
secretary of Labor, 700 F.2d 281, 286 (6th Cir. 1983) (Section 5851 1 prohibits discriminatio ' in practically any job-related fashion);
i see also 29 C.F.R. 9 34.2 (b) s Bassett v. Niagara Nohawk Power corp. , '
Case _No.-85-ERA-34, Sec. Dec., Ser*. 28, 1993, slip op. at 3-4; Mecuistion v. WA, Case No. 89-ERA-6, Sec. Dec., Nov. 13, 1991, slip op. at 8 (negative or unsatisfactory performance ratings may constitute adverse actions under the ERA). In finding the order non-punitive, the AL7 focused on the employer's motivation, which is the ultimate issue in disputs.
--g - -~, -,-- --r-- , n
4 7
i The federal courts have treated discretionary orders to submit to psychological evaluations as adverse employment decisions in deciding various claims-of retaliation. see senete
- v. city of claremont, No. 94-268-JD, 1995 U.S. Dist. I.EXIS 16406, at *21-23 (D.- N.H. Nov. 3,1995) ; cooper v. Norfolk and western Aallway co., 870 F. Supp. 1410, 1423 (S.D. W.Va. 1994). The psychological evaluation in this case was not a mandatory pre-4 employment evaluation, 10 C.F.R. 5 73.56(b)(2)(ii) (1995), nor was it otherwise " required" by the NRC as implied by Respondent.
Rather, it was orde' red pursuant to a policy that allows Florida Power to exercise its discretion and independent judgment in assessing whether to order an employee to submit to an evaluation.!' Florida Power's company policy states in pertinent 1 part: "Psychclogical testing . . . may be used to insure the '
fitness for duty of employees." RX 41 at 4. NRC mandates do not prevent Florida Power from abusing the policy or preclude Robainas from alleging that this order weg retaliatory under the ERA.I' Nor does the fact that Robeines could have appealed the 4
.' Thus, it is inaccurate for Florida Power to compare this situation to one in which a company disciplines an employee for failing to wear a hardhat or respirator when aEaEE employee at that workplace is required to wear such equipment.
I' The NRC's regulations provide that a licensee must provide reasonable assurance that its employees will perform their tasks in a reliable manner and are not mentally or physically impaired from any cause which in any way adversely affects their ability t
to safely and competently perform their duties. 10 C.F.R.
' I 26.10(a). The NRC also requires its licensees to address-factors which could affect an employee's fitness-for-duty, such as mental. stress, fatigue, and illness. 10 C.F.R. I 26.20(a),
i
4 results of the evaluation internally with Florida Power preclude Robainas from asserting his rights under the ERA.
l I emphasize that this case is distinct from those cases in which the employee refuses to work. Under the ERA, an employee's
-refusal to work is protected when he has a good faith, reasonable belief that working conditions are unsafe or unhealthful, and the employee may not continue to refuse to work once the employer corrects the condition or adequately explains why the condition '
is safe. see, e.g. , sarcaan v. sechtel conses. corp. , case No. 87-ERA-37, Sec. Dec., Feb. 22, 1991, slip op at 8; Pensyl v.
ca calycae, Inc. ,- care No. 83-ERA-2, Sec. Dec. , Jan. 13, 1984, slip op, at 6. Here, Robainas did not refuse to work. He did not i
l j , refuse to perform a particular job function or activity.
Robainas refused to follow an order to submit to an evaluation l outside the scope of his normal work requirements.
When Robainas refused Florida Power's order to submit to a psychological fitness-for-duty evaluation, he did so at his peril. Florida-Power fired his for his refusal and would have prevailed in this suit if Robainas failed to prove his claim that thQraerwasretaliatoryundertheERA. However, for the reasons discussed below, I find that Robainas met his ultimate burden and proved by a preponderance of the evidence that Ecrida
~
Power's order that he undergo a psychological evaluation was
'~
l l
based solely on retaliatory animus for bis protected activity. _
Therefore, Florida Power violated the ERA in firing Robainas
9 because he refused to submit to the evaluation. Cf. saporJeo v.
Flordda Power a IJght co. , Case No. 89-ERA-7/17, Sec. Dec. , June 3, 1994, slip op. at 1, 7, Sec. order on Recon.,, Feb. 16, 1995, slip op. at 2 (employer violated the ERA when it discharged an employee because that employee refused to reveal safety concerns); see generally carroJJ v. sechtel power corp., Case No. 91-ERA-0046, Sec. Dec., Feb. 15, 1995, slip op. at 11-12, appeal filed, No. 95-1729 (8th Cir. Mar. 27, 1995) (restating and clarifying burdens of proof and production in whistleblower cases)t citing St. Mary's Honor Center t'. Nicks, 113 S. Ct. 2742 (1993) and United States Pcstal Serv. Bd. v. Aikens, 460 U.S. 711 (1983).
- 1. Florida Deu m Awara of nahminna e pretmetad metivity.
when It ordered taa pavehnissieml Evaluatien.
In concluding that Florida Power's order to undergo a psychological evaluation was not activated by protected activity.
the AL7 initially erred by finding that Florida Power was unaware of any protected activity at the time it decided to impose the
. ' ' While it might have been more prudent for Robainas to comply with the order and then file his clain under the ERA, his assumption of the risk that he would be unable to prove discriminatory motivatien in ordering the evaluation does not absolve Florida Power from wrongdoing in imposing the order in violation of the ERA. I note that I am not persuaded otherwise by case law dealing with employees' contractual rights unser ecliective bargaining agreements. see, e.g. , Lewis v. creyhound 11nes-rast, 555 F.2d 1053, 1055 n.4 (D.C. Cir. 1977). The Secretary-of Labor represents the public interest in resolving complainta~under the ERA, the broad, remedial purpose of which is to protect workers from retaliation based on their concerns for satsty and quality. see renckowink v. University Nuclear sys., Inc.,
735 F.2d 1159, 1163-(9th Cir. 1984).
eu - - . . -
10 order on July 26. The record is clear that from February throughout the remainder of Robainas' employments Robainas was engaging in various protected activities of which Hosmer,' Florida Power's decisionmaker, was aware. see, e.g. , T. at 666 RX 12.
In the opening statement of his February 23 letter to Hosmer, Robainas charges that Wade's appraisal distorted his true s performance and was given in " retribution for (his) commitment to projects that (he) considered critical for the nuclear safety of Turkey Point and which Mars. Wade / hale, for budgetary or other reasons, clearly opposed." RX 12; cospare R. D. and C. at 48.
Kobainas also referred to specific examples of the basis for his enarge. Hosmer and Robainas persor. ally discussed the February 23 letter and the performance rating at length. T. at 674.
Robainas' complaint ts management alleging retaliation for protected safety concerns was protected. see McCulation, slip op.
at 7-8. In Meculscion the secretary explained that the ERA requires employers to refrain from unlawfully motivated emple: ment discrimination, and a complaint -that an employer has violated this requirement is protected because it may invoke the 0 commencement of "a proceeding for the administration or enforcement of (the) requirement" or may constitute particip tion "in any other action to carry out the purposes of this chapter. . . ."
42 U.S.C. I Ss51(a) (1) and (3) .
4 4
'Robainas' perception of retaliation for raising protected ,
4 concerns was reasonable.!' During the rating period Robainas and Wade disagreed on issues implicating nuclear safety. For example, Robainas and Wade had a " difference of opinion" on
- whether to replace certain transmitters that the manufacturer believed were subject to malfunctioning. T. at 68, 916. If i
operating properly, these transmitters were supposed to sense a l drop in pressure that would alert the plant in the event of a loss-of-cooling nuclear accident. T. at 65, see T. at 940-41.
Robainas concluded that the transmitters had to be replaced, i
- while Wade pressed Florida Power to 6M lore alternatives, including modifying existing equipment or doing nothing. T. at
I
- 67, 915. Florida Power ultimately agreed with Robainas and I replaced the transmitters. T. at 941-42. I Robainas and Wade also disagreed over whether to fully and promptly complete the setpoint and ERDADS projects. RX 12 at 4 ;
i see T. at 917, 942, 955. The plant eventually agreed with !
Robainas with regard to ERDADS. RX 12 at 4. ERDADS was a l
project initiated _to repair the plant system designed to advise
. Protectior. of an internal complaint is not dependent on :
proving an actual underlying viciation of the ERA. see Pillow v. l Aechtel coast. , Jae. , Case No. 87-ERA-35, Sec. Dec. , Jul. 19, 1993, slip op, at 11 n.6, appeal docketed, No. 94-5061 (11th Cir.
oct.'13. It94); citing rellow treiphe sys., Inc. v. Martin, 954 F.2d 353, 356-57'(6th Cir. 1992) (protection under analogous section of the surface Transportation Assistance Act not dependent on proving actual violation). It is enough that the complainant prove that his internal complaint is based on a reasonably perceived violation. Cf. Minard v. Merco Delamar co., Case No. 92-SWD-1, sec. Dec., Jan. 25, 1995 (complainant's reasonable belief
- that his employer is vio16 ting solid Waste Disposal Act is
- protected).-
Y
..r . . . ,. , _ , . - _ . , , . , , . . . - _ . . . - , - . . . . , , . . ~ , . , , . _ _ _ , , . . -
\
i 12 I
i the control room operator of existing plant conditions. T. at l 64-65. The system was developed following the Three Mile Island i accident. The Westinghouse setpoint project involved setting-operational limits on plant equipment which cannot be exceeded.
When exceeded, the reactor would have to " trip" to prevent'or mitigate the consequences of a nuclear accident. T. at 64.
Even if the disagreements betweari Wade and Robainas involved i
" technical" issues, as Florida Power alleges, they also plainly involved safety concerns and were protected. Raising safety j
issues and questioning safety proceduru internally constitute 1 protected activity.I' l see sechtel const. co. v. secretary of I. abor, 50
{
F.3d 926, 931 (11th Cir.1995) ; Mackowiak v. Universley Nuclear sys. ,
Inc., 735 T.2d 1159, 1162 (9th Cir.1984); sprague v. American '
Nuclear Resources o Inc. , Case No. 92-ERA-37, Sec. Dec. , Dec. j 1,
- 1994, slip op. at 6.
It is clear that Wade was agitated with Robainas because of l
his firm stance on these projects. see RX 11, 12 ; T. at 669, 673, 176-77.
In the performance, evaluation Wade cited Robainas' urwrillingness to " entertain the opinions of others - particularly his supervision." RX 11. He added:
i f The fact that other Florida Power workers may have raised similar internal safety concerns during the course of performing their jobs does not render Robainas' concerns unprotected. See cibson v. Arizona ruklic serv. ca. , Case No. 90-ERA-29, Sec. Dec. , '
Sept. 18, 1995', slip op. at 4; cf. Jopson v. coega Nuclear Diagnos op. at 6 tles, case No. 93-ERA-0054, Sec. Dec. , Aug. 21, 1995, slip (reporting safety violations even in the course of one's regular duties is protected).
NRC substantiating the charges. Nor is protection dependent on the McDonalet v. University of Missouri, Case
- 12. No. 90-ERA-0059, Sec. Dec., Mar. 21, 1995, slip op. at 11-
t 13 Richard is not qualified nor oriented toward project engineering. As such, effective February 1, he will'be reassigned to the TPN - Production Engineering Group to be more directly involved in Iac design development and problem solving at PTN. '
RX 11. Wada explained that Robainas was too involved in the "techni' cal details." T. at 924. Robainas was new to the OSM department which asphasized cost and schedule and expected its engineers simply to oversee a " proven technical performer like a Bechtel or ERAsco." T. at 919, 664-65; see also CX 54d.
considering all the evidence, Robainas' belief that his l performance rating was retaliatory is understandable. He was not disingenuous. Hosmer testified that Robainas "really had sincere, honest concerns" about whether the rating was fair.
T. at 675-76.
Shortly after he was transferred to PEG, Robainas told Pagnozzi that he believed that he was being punished for pushing the setpoint and transmitter projects. T. at 551. N' again accused Florida Power of retaliation when he received his April appraisal. RX 18; T. at 100.
By July, Hosmer suspected that Robainas was about to expose his retaliation claim to the press or the NRC. During a high-level ma2 ting early that month, Jerry Goldberg, the President of the nuclear division, stated that he was surprised by a newspaper article about a Florida Power employee who claimed that he was being retaliated against because of whistleblowing. T. at 653, 720-21. Goldberg asked his managers if there were other employees who were in either performance counseling or other s
, ~ _ , _ _. .. - , _ .- _
4 14 situations that might bring in "advarse newspaper or NRC r
reactions." T. at 721. Hosmer told Goldberg about Robainas. He also stated that Robainas had made threats in the past about going to the newspaper and the NRC. Later, on July 26, Pagnozzi telephoned Hosmer and reported that Robainas was demanding that unless his lawyer was allowed to attend the upcoming interia performance evaluation scheduled for July 30, he would "go to the Miami Herald." T. at 730-31.
Section 5851(a) (1) and (3) of the ERA explicitly protects an employee who is "about to commence or cause to be commenced" or "about to assist or participate in any manner" in a proceeding under the ERA or the Atomic Energy Act. 42 U.S.C. 5 5851(a) (1),
(3); trancis v. sopan, Case No. 86-ERA-8, Sec. Dec. , Apr. 1, 1988, slip op, at 2. Thus, and in line with prior secretarial decisions, the ERA protects an employee who is about to reveal nuclear safety concerns to either the NRC or the press, see TJoyd
- v. Arlzona public serv. Co. , Case No. 90-ERA-39, Sec. Dec. ,
Sept. 23, 1994, slip op. at 6, and cases cited therein (communicating with media about safety concerns protected); .
Tranels, slip op. at 2 (employee who is about to go to NRC i
protected). Robainas' explicit threat on July 26 demonstrates i
that he was about to take his retaliation complaint to the press, and Hosmer's discussion with Goldberg proves that even weeks l
15 a
j earlier _Hosmer believed Robainas was about to go to the press or
[ the NRC."
- 2. Rrahminam' Motivan ne wee meneva protection. '
The AIJ stated that Robainas minused the ERA by raising 7
safety issues only to intimidate management into increasing his performance rating. R'. D.-and D. at 49-50. The Secretary has
. held, however, that where the complainant has a reasonable belief eat the respondent in violating the law, other motives he may have for engaging in protected activity are irrelevant. ollver
- v. nydro-vae serv. , Inc. , Case No. 91-SWD-00001, Sec. Dec.,
Nov. 1, 1995, slip op. at 14; career v. Kloctrical Dist. No. 2, Case No. 92-TSC-11, Sec. Dec., Jul. 26, 1995, slip op. at 19; cf.
+
Derube v. GtA, 30 N.S.F.R. 581, 598 (1986), vacated en other grounds, 820 F.2d 396 (Fed. Cir. 1987) (regardless of a whistleblower's alleged personal motivations, the law's protections extend to employees who reasonably believe in their charges).
- 3. M Dever's Twelanatian far the orday in a Drstavt.
Acccrding to Rosmer, when be told Goldberg about Robainas in 4
early July, he also mentioned that Robainas' performance had l l
declined and that Robainas was under stress. Goldberg suggested that Hosmer consider Lether Robainas was fit for duty. T. at 723. Hosmer reviewed _the regulations governing fitness-for-$uty, I and discussed the situation with another manager, but did nothing
! I' Robainas' threat is protected even if he also intended to
- l. expose-matters other than his protected concerns. see scerbo v.
i consoJJdated rolson co., Case No. 89-CAA-2, Sec. Dec., Nov. 13, 1992,_ slip op. at 5 n.4 (ERA violation need not comprise the only l or even the predominant subject of the complaint).
a
3 16 more until July 26. T. at 724-25. When Robainas demanded that his lawyer be allowed to attend the performance evaluation
- scheduled for July 30 cr else he would "go to the Miami Herald,"
Hosmer decided "on-the spot" to question Robainas' fitness for duty. T. at 731, 734-35.
He claims that Robainas- r0 action was i
so " unpredictable" that he feared the consequences of not questioning his fitness. T. at 735-36.
Hosmer's explanation is a pretext. Considering the ongoing i
dispute and Robainas' increasingly adamant concerns that a pattern of retaliation was unraveling, his request for counsel during the next performance evaluation was not " unpredictable" at all. In fact, Robainas referred to "my attorney" in his February 23 letter to Hosmer. RX 12 at 1.
I agree with the ALJ that Hosmer had the duty and responsibility to insure that the people working for him were fit for duty. I also agrea with the ALJ that Robainas had told Hosmer and others that he was under stress. His strear, however, was not the reason for Hosmer's decision but was seized upon as an excuse. Although Goldberg mentioned the fitness-for-duty !
regulations in early July, Hosmer did not view his comments as a directive and took no action until July 26 when Robainas threatened to reveal his concerns to the Miami Herald. Hosmer did not mention stress or ill health when D.obainas' attorney asked for an explanation for the-order on July 30. Inntead, Hosmer claimed that he feared sabotage by Robainas. See T. at 742-43. There is no evidence that Robainas had been violent or
I l
i 17 given Florida Power cause to fear destruction or sabotage, and even Florida Power now has retreated from that explanation. see i Post-Hearing Brief at 132, Reply 3rief at 18-19.
Florida Power's expert, Dr.-Johnson, testified in general terms that it was reasonable for-Florida Power to have referred Robainas for a psychological evaluation given his declining performance, apparent stress, and negative reaction to counseling. T. at 696-97. I question the reliability of Dr. Johnson's opinion since he never saw Robainas or spoke to any of his supervisors substantively about the referral, T. at 698-700, and I am not required to accept it. Interestingly, only partial documentation was provided to Dr. Johnson in connection l with the anticipated evaluation and all he could recall was a lengthyletterindicatin}gRobainas'concernewith
" discrimination" and one meno of protest to the Crug testing. T.
at 702. Cf. NeJJs v. Kansas Gas a KJsetric co. , Case No. 85-ERA-0022, Sec. Dec., Mar. 21, 1991, slip op. at 15-16 (psychological i
evaluation invalid when based on background report that Secretary 1
previously found was proof of discrimination) .
l 4
on the other hand, Pagnosti testified that as Robainas' first-line supervisor, he observed Robainas virtually daily from '
February through July. T. at 545. He was trained to identify I problems suggesting the need for a psychological fitness-for-duty i evaluation. T. at 546. He never questioned Robainas' psychological fitness for duty and would have if he had suspected that Robainas posed any threat to nuclear safety. Pagnozzi was p
4
_.____ _ _ . _ _ _ _ _ _ _ _ _ _ - _ _ _ __ _ _ _ - - - - - - - - -- - - - - - - - - - - - ~ - ~
' ~ ~~ ~ ^
. is not consulted by Hosmer about Robainas' fitness for duty prior to July 26,-when Hosmer unilaterally decided to impose the order.
T. at 547, 593-95.
Dr. Johnson testified that first-line ,
supervisors may not respond as objectively or-dispassionately in these situations as others, T. at 495-96, but Mosmer had observed Robainas personally only twice during 1991. T. at 789.
Pagnosti's testimony, especially when considered with the s
evidence as a whole, is highly probative.
A number of co-workers, also currently employed by Florida Powtr, corroborated that they did not observe any psychological instability and never considered Robainas a safety threat. T. at 367-68, 3s2, 397, 420, 433; Klein Deposition at 10. Nor did John Barrow, the ombudsman who met with Robainas several times at Hosmer's request, ever observe any type of behavior that t
presented a psychological or safety problem that he believed should have been reported to management. fr. at 502-503. Hosmer also did not consult with Barrow on the question of Robainas' .
fitness for duty prior to imposing the order. T. at 501.
Hosmer's failure to consult either Pagnossi or Barrow is additional. evidence convincing me of pretext in this case. see Blake V. Netfjeld Elec. co. , - Case No. 87-ERA-4, Sec. Dec. , Jan. 22, 1992, slip op. at 9 n.5 (employer's failure to seek input from immediate supervisor may indicate pretext).
l Similarly, Robdinas' " declining performance" was not a true l l l reason for the order. Rosmer's explanation for his decision --
l that Robainas' request for counsel was so unpredictable -- does ;
,-,wn-., ,.-- , , , . - , . - - - - , . . ... , , . , , , - - . , , . . , - - , - - . . - --
~- - - - - - ----- -- ... .- -._ - . --
It' not implicate his job performance. Further, Robainas' performance ratihgs were fairly consistent throughout his employment. His performance became a " problem" only after he voiced his concerns about possible " recrimination".under the ERA.
He was promoted just one year before these events.
Hosmer feared retaliation by Robainas, but not sabotage. He feared exposure of possible wrongdoing, and he imposed the order to suhait to a psychological evaluation as a tool or tactic to discourage Robainas from going to the press or the NRC. The record proves that Hosmer consistently objected to Robainas' documenting his protected concerns. In notes taken on March 15, following the discussion with Robainas about his February performance rating and letter, Hosmer wrote, "I again ccunseled him to find a acre constructive avenue for adjudicating performance or policy issues than letter (eg no more 1trs.) ." RX
- 37. Hosmer had counseled Robainas previously, when he complained about the drug testing policy, not to display his concerns on to threaten lawsuits, NRC Speakout, or. press involvement in written documents. RX 37. Rosmer admits, in effect, that Florida Power wanted to be the first to tell the news media or the NRC of any problem and disapproved of an employee initiating contact. see T. at 721-22. For all these reasons, I am convinced that Hosmer disapproved of Robainas' threats to expose potential retaliation and ordered the psychological evaluation solely as a measure to discourage his protected activity.
~
20 l
The AIJ viewed various actions by Florida Power as evidence i
i that it was not motivated by retaliation, such ass (1) transferring Robainas; (2) changing his performance review l schedule; (3) suggesting counseling; (4) giving him a second l chance to take the psychological evaluations and (5) not summarily rejecting the conditions reguasted by Robainas. R. D.
- and o. at 50. I disagree. While Florida Power may have appreciated Robainas' intellect and wanted his work performance to improve, most of these a=ts cited by the AIJ could be viewed
- as a. series of actions aimed at monitoring and discouraging protected activity. None proves that Hosmer's stated reason for imposing the order to submit to a psychological evaluation was 1egitimate and nondiscriminatory. The first three actions'were taken by Florida Power well before Robainas' July 26 threat to go to the Miami Nerald. The last two actions do not overcome compelling evidence of retaliation by Hosmer in ordering the
! evaluation.
tven assuming that this is a case of " mixed motives,"
j Florida T!ower failed to prove that it would nave taken the same action apinst Robainas even if he had not engaged in protected
! activity, see Price Mscerhouse v. mopkins, 490 U.S. 228, 244-45 (1989). Nosmer would not have ordered the evaluation and the insubordination would not have occurred but for Robainas' protected activity.
i *
.._ m _ _ _ . . , _ _ _ _ _ . _ _.,_.____,_,,___~.__..._r_
i
)
4 I .
21 l l B. Timalinaan
! l The AIJ found that the complaint was untimely filed with j j respect to Robainas' February and April performance appraisals. )
l I agree that these appraisals were given to Robainas well outside the thirty-day limitations period that applied at the time he
! filed this complaint on August 29, 1991. 42 U.S.C. I 5851(b). I i
have considered Robainas' arguments that a continuing violation l
theory applies, which would render the appraisals subject to a '
remedial 'rder, but I cannot agree. In rejecting similar arguments previously, the secretary has recognized that a poor i
performance rating generally is a discrete act which has the ;
j degree of permanence which should trigger an employee's awareness of and duty to assert his rights, or which thould indicate to the esployee that the continued existence of the adverse consequences of the act is to be expected without being dependent on a continuing intent to discriminate. See mechandel v. m acinghouse Nanford co., case No. 91-sWD-2, sec. Dec., Feb. 1, 1995, slip op.
at 23 n.21, citing sorry v. servivors of Isp, 715 F.2d 971, 981 (5th Cir. 1983) , cert. dealed, 479 U.S. 368 (1986) ; Necu4selon, slip op. at 17-18.
I am not persuaded by this record that de appraisals constituted an ongoing discriminatory practice continuir.g into the charge filing period and expanding the scope of relief. In
.i addition, the decision to place Robainas on an accelerated performance review schedule was made and communicated in March 1
1991, and I do not find modification of its limitation period 4
4 l
a
- 23 p appropriate. Even though the early appraisels and accelerated
. review decision are not actionable,_they.are evidence " considered to shed light on the true character of the matters occurring within the limitations period." sammens v._ Arisona public serv. co. ,
case No. 93-ERA-5, sec. Dec., May 9, 1995, slip op. at 9, quoting Yellow freight sys., Inc. v. Ae4:h, 27 F.3d 1133,1141 (4th cir. .
l l 1994); citing Malhotra v. Cotter a cc., 885 F.2d 1305, 1310 (7th !
l cir. 1989).
- c. The manady The ERA provides that upon finding a violation the secretary shall order the respondent to take affirmative action to abate the violation and reinstate the complainant to his former position together with the compensation (including back pay), ,
terms, conditions, and privileges of his employment.
compensatory damages are also available, and a complainant may l racover all costs and expenses reasonably incurred in bringing the complaint. 42 U.S.C. I 5851(b) (2) (3) .
l QEDER Accordingly, Florida Power is ORDERED to offor Robainas reinstatement to the same or a comparable position to which he is ,
entitled, with comparable pay and benefits, to pay Robainas the i
back pay to which he is entitled, with interest, and to pay his costs and expenses-in bringing this complaint, including a reasonable attorney's fee. This case is hereby REMANDED to the i
1 23 AIJ for such further proceedings as may be necessary to establish Robainas' complete remedy.
50 CRDERED.
M 6. k secretary of Lebor
~
Washington, D.C.
d e
4
, m
crnTiricATr or sravict Case NWnes Regino Coapany R. Diaz-Robalnas v. Florida Power & Light case NJ. t 92-ERA-10 Docut.ent t Decision and Remand Order A copy of the above-referenced document was sent to the following persons on or CERTIFIED M _
Regino E. Diaz-Robainas
$832 S.2. Riverboat Drive Stuart, FL 34997 James S. Brannick, Esq.
Paul C. Heidmann, Esq.
Muller, Mints, Kornreich Suite 3600 i
200 S. Biscayne 31vd.
Miami, FL 33131-2338 i
', Robert E. Weisberg, Esq.
1450 Madruga Avenue Suite 209 -
Coral Gables, FL 33146 Jarome H. Goldberf, President Nuclear Energy Division of Florida Power & Light company 700 Universe Blvd.
Juno Beach, FL 33408 REGUI.AR MAIL i
' Administrator
- Jage and ^.Iour Administration /ESA U.S. Department of Labor Room S-3502 200 Constitution Ave., N.W.
Washington, DC 20210 w ^^' '
l a
i ,,.
s 2
Gail Coleman I Deputy Associate solicitor Division of Fair Iabor standards office of the solicitor U.3. Department of Lacor Roon N-2716 200 Constitution Ave., N.W.
Washington, DC 20210 Lyndel L. Erwin District Director Wage and Hour Division /ESA U.S. Department of Iabor 299 East Broward Blvd.
Suita 407 Ft. Lauderdale, FL 33301 Ron R. McCoy Associate Regional solicitor 299 Broward Blvd.
Federal Building Roca 408 Ft. Lauderdale, FL 33501
. Enforcement Coordinator
, U.S.. Nuclear Regulatory Commission Region II 101 Marietta street, N.W., suite 3100 Atlanta, GA 30303 Assistant General Counsel for Enforcement office of the General Counsel i U.S. Nuclear Regulatory Commission Washington, DC 20555 Director office of Enforcement U.S. Nuclear Regulatory Commission Washington, DC 20585 Hon. John N. Vittone Acting Chief Administrative Law Judge office of Administrative Zaw Judges
.400 K street, N.W., Suite 400 Washington, DC 20001-f002 Hon. Robert G. Mahony Administrative Law Judge office of Administrative Law Judges too K Street, N.W., suite 400 Washington, DC 20001-8002
_ - . - _ - _- __ _ ___ ____ _ __________J
ve, two cu sw.ee se ~*~
t [.
U.S. DEPARTMENT OF LABOR Si:CRtTARY or LADOR :
WASHINGTON. D.C.
DATE: April 15, 1996 CASE NO. 92-ERA-10 IN THE MATTER OF REGINO R. DIAZ-ROBAINAS, COMPIAINANT, V.
FLORIDA POWER & LIGHT COMPANY, RESPONDENT.
BEFORE: THE SECRETARY OF LABOR ORDER DENYING MOTION FOR RECONSIDERATION 4
On January 19, 1996, I remanded this case to the Administrative Law Judge for a determination of damages, after finding that Complainant, Regino R. Diaz-Robainas (Robainas) proved that Respondent, F.brida Power & Light Company (Florida Power) violated the employee protection provision of the Energy Reorganization Act of 1974, as amended (ERA), 42 U.S.C. S 5851 (1988).1' Florida Power ordered Robainas to submit to a psychological fitness-for-duty evaluation as a tool to discourage l Robainas from revealing protected concerns to the press or the I
l' The amendments to the ERA, Pub. L. No. 102-486, 106 Stat. !
2776 (Oct. 24, 1992), do not apply to this case in which the l complaint was filed prior to the effective date of the ;
amendments, i I
ATTACHMENT 3
]
n...... ..... -
f, -
% ]
1
- 2 ^
Nuclear Regulatory Commission (NRC) . _W hen Robainas refused to ccmply,fFlorida Power-fired'him.
Florida Power' requests'that.I-reconsider my. conclusion'that' ,
thenorderlto submit to a psychological evaluation was an " adverse .
l employment action." According to Florida-Power, that conclusion is icontrary to the1 Secretary's decision in -Nandreger v. Detroit -
Edison Co. , Case No. 8 8-ERA-17,1 Sec. Dec. , - Mar. 30, 1994,= slip fj cp. at 14,. and is fundamentally wrong because the order did not -;
constitute an " ultimate" employment decision. Florida Power
- relies on Page v. Aclger, 645 T.2d 227 (4th Cir.1981), cert. ;
denied, 454 U.S. 892 (1981), as additional authority for the propos'ition that only an " ultimate" action taken by an employer ;
may constitute an actionable adverse action.
I disagree and reaffirm my prior decision.1' While the t court in Page did contrast " ultimate employment decisions," such )
-as premoting and hiring, with
- interlocutory or mediate decisions," Florida Power has misconstrued that decision. In making the contrast between ultimate and mediateismployment decisions, the court was criticizing:Page's attempt to shift the ,
' focus,of the pretext' analysis from the reasons for his failure to
. be. promoted to=the reasons for.the absence of any black; members-on :the promotionL review committee -- a personnel 1 action that l
3' Because I deny Florida-Power's motion substantively, I do'not reach Robainas'1 arguments : that1 the motion shouldibe denied on '
< proceduralLgrounds.
4 -!
- $ .' , , -G. . . .4 - . - , -- , . . . . . . _ . . . - , . -
_.--4
_ ,. --y v.--.4.. , . - -
=r -
e ,-
f . ., . H ta,4w oo - : m ov u- . _. ... .
f! '
3 neither--affected-Fage-directly nor constituted the employment action' initially.or_ ultimately challenged by Page. It i is also ;
significant that=the court in Page was interpreting-the language of Section 717 of Title VII, i.e., " personnel actions affecting (covered) employees." 42-U.S.C. 5 2000e-16(a).
The-ERA forbids discrimination with respect to the employee's " compensation, terms, conditions, or privileges of employment." Robainas v. Florida Power & Light Co., Case No. 92-ERA-10, Sec.-Dec., Jan. 19, 1996, slip op. at 6, quoting 42 U.S.C. S 5851(a) and citing DeFord v. Secretary of Labor, 700 F.2d 281, 286 (6th Cir. 1983) (Section 5851 prohibits ,
discrimination in practica,lly any job-related fashion) .
Actionable discrimination tartainly is not limited to economic harm, as Florida Power implies. Meritor Savings Bank v. Vinson, 477 U.S. 57, 63 (1986), cited by Varnadore v. Oak Ridge Nat'l Lab., Case No. 92-CAA-2, Sec. Dec., Feb. 5, 1996, slip op. at 77 n.93. In this case the psychological evaluation was made a i condition of Robainas' continued employment.
The Secretary previously has recognized that " adverse action" may include conditions and terms of employment that F ve the potential to-adversely affect the employee.
For example, an employee may challenge an adverse work evaluation that has-the potential to harm his chances for job security or advancement; he-is not limited to complaining in the future about the loss of a o
7
- + . -re-- r w e- -
..-i+. . . ~ , - <----,t--,
. ~ ~ . . - - - - - - - - _ . -
4-Ljob or promotion that resulted fro:n the adverse evaluation. "ee
' Boytin v. Pennsylvania Power and Light - Co. , Case No. 94-ERA-32, Sec. Dec., Oct. 20, 1995, slip op. at'G-71 Bassett v. Niagara Mohawk Power Corp., Case D. 85-ERA-34, Sec. Dec., Sept.428, l
-1993, slip op, at 3, citing Yartroff v. Th'omas, - 809 T.2d -1371, 1395-76 (9th Cir. 1987): see also Helmstetter v. Pacific Gas &
Elec. Co., Case No. 86-SWD-2, _Sec.-Dec., Sept. 9, 1992, slip op.
at 5-6. Accordingly, 1 reject Florida Power's position that an employer's order to submit to a psychological evaluation is not actionable unless it results in discharge or further adverse action. See also Benoit v. City of Claremont, No. 94-268-JD, 1995 U.S. Dist. 1.EXIS 16606, at *21-23 (D.-N.H. Nov. 3, 1995)
(entertaining employee's claim of retaliatory order to undergo psychological exam evsn though exam resulted in fit-for-duty conclusien).
In Mandreger I was not faced with the factual pattern presented in Robainas. I was persuaded that Mandreger's referral to employee assistance counseling by his employer was warranted because the testimony and evidence. substantiated Mandreger's
- aberrant behavier in the workplace. Slip op. at 16, 19-22, 25.
In effect, unlike Robainas, Mandreger failed'to meet his ultimate burden to prove that the referral was a retaliatory adverse action.
s
. _ , , . v , . , . _ m , , , _ -
k 5-Citing Paul v.' Tedera l Nat. Mtg. Assn. , 697 T. Supp.; 547 (D.
D.C. 1988) and Smith v. Texas Dep't of Water' Resources, 818 T.2d
.363 (5th Cir. 1987), cert. denied, 484 U.S. 1059 (1988), Florida .
Power.also~ argues that Robainas was required to " obey now/ grieve later." As indicated in my January 19 decision,-RobainsJ is distinguishable from these cases since the refusal at issue did r.ot involve a work assignment!or particular job function or activity.. Slip op. at 8. Further, Robainas' refusal was not disorderly or disruptive of the workplace.
Unlike Paul, in which the court went on to find insufficient evidence to support a causal connection between the protected activity and the termination, the evidence of retaliatory intent
~
4 in Robainas is overwhelming. See slip op at 15-20. Florida Power's explanation for the order was a pretext for silencing Robainas' " increasingly adamant" protected complaints, and his refusal to comply with the order, resulting in termination, was "the culmination of (those] persistent complaints." Armstrong v.
Index Journal Co., 647 F.2d 441, 448 (4th Cir. 1981) (amployer violated Title VII when it fired employee who refused to handle account)I cf. Bourque v. Powell Elec. hWg. Co. , 617 F.2d 61, 66 (5th Cir. '1980)- (distinguishing single act from course of d
retaliatory action).
Florida Power also refers to Yates v. AWnale, 377 T.2d 888 (5th Cir. 1967), cert. denied, 390 U.S. 943 (1968), in'which the
l I! ,
6 court summarily held that an employer was justified in discharging for insubordination an employee who refused to suba).t to a requested examination. .The decision in the Yates case makes it clear that the court believed that the employee actually was mentally incompetent. The issue of retaliatory motive was not raised.
2n Marquart v. McDonnel) Douglas Corp. , 859 F. Supp. 366 (E.
D. Mo. 1994), aff'd, 56 F.3d 69 (8th Cir. 1995), an employer term'nated the plaintif f employee because she f ailed to comply with its order to obtain psychiatric diagnosis and treatment.
However, the facts of that case showed that "[tjime and again, plaintiff displayed abnormal behavior at work." BS9 F. Supp. at 369. Based on her irrational and bizarre behavior, the court found that the amployer's request that she submit herself for evaluation and treatment was reasonable. Her termination for insubordination of such an order was likewise reasonable, legitimate, and non-pretextual, with "no connection whatsoever" with her protected claim under Title VII.
The facts in Marquart, as well as Mandrecer, are in sharp contrast to those in Robalnas. Florida Power's order that Robainas undergo a psychological evaluation was unreasonable, illegitimate, and retaliatory, and culminated in Robainas being fired on pretextual grounds. The record does not substantiate that Florida Power observed, or that Robainas engaged in,
w eu co ss.n u
/
7 abnormal or aberrant behavior suggestive of any risk to public health and safety. See 10 C.F.R. 6 73.56(b) (2) (iii) (1995);
Robainas, slip op. at 17-19.2' Thus, this docjsion does not undermine the amployer's duty to participate in the NRC's behavioral observation program and to refer or remove an employee whose fitness it questions. See 10 C.F.R. 5 26.27 (b) (1) .
SO ORDERED.
,an **
^/l db. -
Secreta'rf o! Labor Washington, D.C.
l l
l' Florida Power explains that the NRC requires:
Behavioral observation, conducted by supervisors and management, designed to detect individual behavioral changes which, if left unattended, could lead to acts detrimental to the public health.and safety.
10 C.F.R. 6 73.56 (b) (2) ilii) .
?
)
e ;
CERTIFICATE OF SERVICE Case Names Regino R. Dias-Robeinas v. Florida Power & Light company case No. t 92-ERA-10 Document t crder nonying Motion for Reconsideratic,n A copy of the above. referenced document was sent to the following persone on APR l 5 EE6 ,
I A H Y)/ .
CERTIFIED MAIL Regino R. Diaz-Robainas Z E&& 186 415 5832 S.E. Riverboat Drive Receipt for staa.: t , FL 34997 CertWied Mall . p,,v e so meo,.n c.,,r JLines C. Brannick, Esq.
- D*'*'***''*******'"'
Paul C. Heidmann, Esq. aan 5" "'" 3 Muller, Mintz, Xornreich . -
suite 3500 ,
l Q [bd - /d b
I w w w' w am , 1 8 y -
Robert E. Weisberg, Esq. v..., ,
1450 Madzuga Avenue '****
Suite 209 [
Coral Gables, FL 33146 5 o.. s Jerome H. Goldberg, President Nuclear Energy Division of .. . ... . s am Florida Power & Light company 700 Universe Blvd. M".'T2.".l.U.L.
Juno Beach, FL 33408 voi :g sa P0stm.4 Of 0.M F. CUT 1R MAIL Maria Echaveste APR I 51996 Administrator ' -
Wage and Hour Administration /ESA U.S. Dapartment of Labor F.pom S-3502
- RIO Constitution Avenue, N.W.
Washington, DC 20210
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Gail Coleman Deputy Associate Solicitor Division of Fair Labor Standards office of the Solicitor U.S. Departasnt of Labor Room N-2716 200 Constitution Avenue, N.W.
Washington, DC 20210 Lyndel L. Erwin District Director Wage and Hour Division /ESA U.S. Department of Labor 299 East Broward Blvd.
Suite 407 Ft. Lauderdalo, FL 33301 Ron R. McCoy ;
Associate Regional Solicitor 299 Broward Blvd.
Federal Building Room 408 Ft. Lauderdale, FL 33501 Enforcement Coordinator U.S. Nuclear Regulatory Commission 101 Marietta Street, N.W.
Region II, Suite 3100 Atlanta, GA 30303 Assistant General Counsel for Enforcement office of the General Counsel U.S. Nuclear Regulatory Commission Washington, DC 20555 Director office of Enforcement U.S. Nuclear Regulatory Commission Washington, DC 20555 Hon. John M. Vittone Acting Chief Administrative Law Judge Office of Administrative Law Judges l 800 K Street, N.W., Suite 400 Washington, DC 20001-8002 .
Hon. Robert G. Mahony Adrinistrative Law Judge Office of Administrative Law Judges 800 K Street N.W., Suite 400 Washington, DC 20001-8002 ,