ML20205N600
| ML20205N600 | |
| Person / Time | |
|---|---|
| Site: | Braidwood  |
| Issue date: | 04/28/1986 |
| From: | Mark Miller ISHAM, LINCOLN & BEALE |
| To: | Callihan A, Cole R, Grossman H Atomic Safety and Licensing Board Panel |
| References | |
| CON-#286-973 OL, NUDOCS 8605020204 | |
| Download: ML20205N600 (19) | |
Text
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- h ISHAM, LINCOLN & BEALE MDW!M9$s, COUNSELORS AT LAW 00CKETE0 USHRC TEREE FIRST NATONa4 PLAZA CHICAGO ILUNOIS40002 . .
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It20 NECT Av E.N W WItuAM G. SEALE. 1885-1923 SulTE 840
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April 28, 1986 Herbert Grossman, Esq.
Chairman Administrative Law Judge Atomic Safety and Licensing Board United States Nuclear Regulatory Commission Washington, D.C. 20555 Dr. A. Dixon Callihan Administrative Law Judge 102 Oak Lane Oak Ridge, Tennessee 37830 Dr. Richard F. Cole Administrative Law Judge Atomic Safety and Licensing Board United States Nuclear Regulatory Commission Washington, D.C. 20555 Re: In the Matter of Commonwealth Edison Company (Braidwood Station, Units 1 and 2)
Docket Numbers 50-456 and 50-457 p/
Dear Administrative Judges:
Pursuant'to the duty of full disclosure as articu-lated by the Appeal Board in Duke Power Company (William B.
McGuire Nuclear Station, Units 1 and 2),-ALAB-143, 6 AEC 623 (1973), I am informing the Board and the parties of the following developments which pertain to subcontention item 2.C, the alleged harassment and intimidation of Comstock Quality Control inspectors:
- l. On April 7, 1986 an Administrative Law '
Judge, assigned to the Department of Labor, found that a violation of Section 210 of the Energy Reorganization Act had taken place in connection with the layoff of Ms. Bonnie Parkhurst, a clerk / typist employed by Comstock.
Ms. Parkhurst had been assigned by Comstock to Sargent
& Lundy and it was in the course of that assignment that she raised what the Judge characterized as " safety problems". A copy of the Administrative Law Judge's decision is enclosed. Comstcck is considering whether or not to seek further review of the decision.
~~
8605020204 860428 #~
PDR ADOCK 05000456 sj -3
~j)
G PDR s
u Administrative Law Judges
. April 2.8, 1986 Page 2
- 2. On March 25, 1986 two QC inspectors employed by Comstock, Mr. R. D. Hunter and Mr. R. Arndt, were terminated by Comstock for substandard performance of their inspection duties and violation of Comstock inspection procedures. After his termination, Mr.
Hunter sent counsel for Applicant and Intervenors a two page document regarding his termination. A copy of that document is enclosed. The concerns expressed by Mr. Hunter are being investigated by Applicant.
Yours truly,
//li d ,a N- (Di' MIM:es Michael I. Miller enc.
cc Service List w/ enclosures
\
S U.S. Department of Labor Sce et Admestrative Law Judges 111120m Street, N W ,.
, e Wasmngton. O C 20036 '
In the Matter of : W yyp yvp.). 1f ',9 A fl en 1[ i,,-)
BONNIE J. PARKHURST, : Case No . 85-ERA-41 Claimant :
V.
- L. K. COMSTOCK & COMPANY, INC., N Employer :
k,_
Thomas E. McClure, Esq. 4 0 c.
I 188 For the Claimant ~'
k [CO 88$
Bruce E. Heary, Esq.
Glenn Smith, Esq. cQ For the Employer 4d Before: GLENN ROBERT LAWRENCE Administrative Law Judge DECISION AND ORD Q f-Statement of 'he t Case Claimant, Bonnie Parkhurst, init-iated the above entitled proceedings by filing a letter complaint with the Wage and Hour Division o.f the United States Department of Labor alleging discriminatory employment practices against L. K. Comstock, Inc.
in violation of the Energy Reorganization S5851(a). Act 42 U.S.C.
Claimant contended that her June 14, 1985 layoff by charges against unlawful Comstock was the retaliation for making safety and security project engineers, Sargent & Lundy for whom she had worked.
Pursuant to 29 CFR Part 24, the Secretary of Labor con-ducted an investigation into the violation alleged. ,.
On September 18, 1985 the Department of Labor (DOL) notified /
Mrs. Parkhurst in writing that a fact-finding investigaticM had barn conducted in accordance with 29 CFR Part 24 (ALJ Exhibit 1, in evidence) and in substance that the claim was without merit.
Mr. Parkhurst telegram timely to this Office initiated an24, on September appeal from this ruling by 1985 (ALJ-1).
1 On October 4, 1985 the United State 9 Nuclear Regulatory Commission issued a report essentially i
(ALJ-2, in evidence). agreeing with DOL. 1 l
l l
l
s
. 2 1986 A in~
hearing was held Chicago, before Illinois, with theespect under signed on January 28, against L. K.
to the Claimant's charge (
consent of Comstock counsel of unlawful and leave retaliation. Pursuant to of this officc, the parties proposed findings of fact and conclusions of law were filed on March 11, 1986 with the time to issue the decision extended to April 17, 1986.
The decision to follow is based on my observa-tion of the witnesses; review of the entira record as well as the applicab'e law and regulations.
STIPULATED FACTS The following facts were stipulated by both counsel or by counse) referencefor to the respective party, as indicated by the specific the transcript: ,
- 1. The following es.libits appended to the transcript were admitted into evidence:
a.
Employer Comstock's Exhibits A-1 through A-39 (TR 12, lines 21-25 );
- b. Employer Comstock's Exhibitt C-1 through C-5 (TR 13, lines 9-13);
- c. Employer Comstock's Exhibit B (TR 14, line 6);
f.
Claimant's exhibit 1 (TR 77) g.
Claimant's exhibit 2 (TR 86)
- 3. For her own reasons, Claimant did not work from March 7, 1985 until June 3, 1985 (TR 19, lines 18-22);
i 4. Claimant worked for Comstock from June 3, 1985 to June 14, 1985 at which time she was laid off (TR 19, lines 7-16);
- 5. Claimant was rehired by Comstock on September (TR 19, line 10). ~~
4, 1985 w ,
- 6. Clainant's hourly rates of pay were as fellows:
- a. January through March, 1985 -- $5.65 hr.
- b. June 3, 1985 through June 14, 1985 -- $5.65 hre I c. September 4, 1985 through December 31, 1985 -- SS.50 hr.
i
(
l
- d. Janouri 1, 1986 to date -- S6.00 hr. (TR 20. lines
?-25)
L
3
- 7. Claimant was a Comstock empicyee (TR 22, line 1) 8.
The deductions taken from Claimant's June '4, 1985 .
paycheck for unearned vacation, personal and sIek days were proper and Claimant does not claim that these dedections are related in any way to her charge of discrimination or retalia-tion. (TR 153, lines 5-21; TR 153, lines 1-7).
Finding __of Fact f
- 1. Claimant Bonnie Parkhurst was hired by L. K. Comstock (the employer) exercised by Sargent & Lundy 1984 Supervisory controls Nere on August 15, (S & L), a sutscontrachMf Commonwealth Edison, the project owner, at the Braidwo0d Center a nuclear power site.
1). (TR 21, lines 6-10; 21-25; TR 22, line
- 2. Claimant was June out of2,the service of Employer during the period March 7 through 1985. (TP. 19.)
- 3. On June 3, 1985, Claimant returned to work and continued to work through June 14, 1985. (TR 19).
4.
Claimant was laid of) effective immediately following June 14, 1985. (TR 19). (
x
- 5. Claimant returned to work for Employer on Sepuember 4, 1985 and continues to work for Employer. (TR 19, 20).
- 6. During the periods January 1 through March 7, June 3 through June 14, 1985 claimant earned S5.65 1985 and per hour.
(TP 20.)
- 7. During the period September 4, 1985 through December 21, 1985 Claimant earned $5.50 per hour. (TR 20).
- 8. From January 1, 1986 until the dace of the hearing, January 28, 1986, Claimant earned $6.00 per hour. (TR 20).
9.
, Claimant's When Claimant worked for S & L, it largely supervised day-to-day activities and controlled her work activities while the Employer paid Claimant'7 wages and viewed her as the Empicyer 's empicyee. (TR 21-22).
- 10. Claimant was originally hired by Employer as. a _ clerk-typist. (TR 49).
- 11. On September 3, 1985, after Claimant returned to employ- '
ment from a layoff, her po,sition changed to clerk. (TR 49, 85).
- 12. When Claimant was originally hired by Employer to work '
for S & L, she helped the leads at S & L with some of their Cdtch up work and back work. (TR 49, 50).
4 i
e
- . 13. In Satember, 1984, Claimant began working in S & L's
- mylar room. 'ta 49, 50). In this capacity, Claimant was held (
\,
responsible f r the control mylar prints ent to the Braidwood site af ter bring filmed and and filing of approximatley 16,000 ;
1
, processed in Chicago. (TR 50, 51).
- 14. ThemylarprintsforwhichClaimantwasheldrekponsible 4
were drawings used by engitteers in the field Braidwood nuclear power plant. to build the (TA 51).
- 15. In September, 1984 when Claimant was assigned to S & L's mylars books. along with a number of ersgineering change notice (ECN)
(TR 52).
p 16. In September 1984, the two mylar vaults in S & L's mylar room werb so full that another vault was needed (TR 52) and the ECN books in the mylar room had an execssive ar.ount of papers in them in light of the size of the books. (R. 52).
x
- 17. In September 1984, the S & L mylar room was approximate-
-.ly twenty fice feet long and ten to twelve feet wide. (R. 53).
'~' 18. In September 1984, there was no fire extinguisher in the S& L mylar room. (TR 53).
- 19. Claimant was advised of her assignment in the mylar room by two S & L supervisors: James Stewart, her immediate supervi-sor in document control, and Chuck Reese, the supervisor of the '
document control departmeat. (TR 54).
- 20. Although others worked with Claimant _in the. S &J mylar room, no one wan supervised by Claimant. ( Tr . 5 4-55) .
- 21. In September 1584, the mylar roori was easily _agcessible to__the. engineers despite efforts to keep the room secure. (TR 553
- 22. In September 1984, there were no locks _on_the._mylarJ s vaul& 4, and thus, anyone in the mylar room would have access to f&e ~ mylar s by merely opening the drawers to the vaults. (TR 55).
- 23. In September 1984 through January 31, 1985 the standard
' operating the engineers.
pro 7;edure was for mylars to be signed in and out by (TR 55-56, 57). ~~ ~ ~ ~ -
- 24. Because the sign-in procedure was not ef fective r claimant used the engineers.
a " computer kickout . sheet" to record mylars requested by (TR 56).
25.
together Inwith the fall of 1984, Claimant the revised mylars.
discovered outdated mylar.,s (TR 57, 58). The o u td .ited mylars were inconsistent with t.se revised mylars. (TR 59).
, .- ,- - _ . -- - - - , _ - . . - - n. .- -, .
_ - - . - ,, -p.
5
- 26. During the fall of 1984, the mylar room was so tiny and aisle space was so narrow that Claimant and co-workers had to (~
wait for one another even to move from one corner of the room to
(
the other. (TR 59). Claimant and her co-workers wer surrounded by desks, mylar vault.s, and a number of rows of book shelves.
(TR 59). -
- 27. In December 1984 or January 1985, Claimant reported problems in the mylar room to James Stewart, her floor lead Marlene Metzen, and Chuck Reese. (TR 60). Both Stewart and Reese responded that they could not do anything about the mylar room problems at the time. (TR 60, 65, 67).
- 28. In December 1984 or January 1985, Claimant reported these problems to Ken Fuss, assistant field coordinator for S &
L, (TR 65) and George Koladazzak (TR 66) (TR 67). She showed these men how the computer _. sheet she was using to inventory _t_h_e mylars was not updated to reflect new revisions.
_ (TR 66).
- 29. Ken Fuss . told Claimant that she "has really shaken everyone up."
(TR 66).
- 30. No immediate changes took place in the mylar room after Claimant waged these complaints. (TR 66-67).
- 31. On January 14, 1985, as part of a plant-wide program, Claimant met with Bill Gagnon, manager of .. Quality - First, the Quality Control division of Commonwealth Edison.
interview took approximately two to two and one-half(TR 68). The hours.
(
(TR 69).
- 32. Claimant told Gagnon of til the problems she was experiencing with the mylars, her concern of having the updated mylars, her concern of having more mylars, as well as the potential fire hazard of the mylar room which had no fire i
extinguisher. (TR 69). Claimant also mentioned to Gagnon that she had no cooperation from her superiors at S & L. (TR 69).
Gagnon advised Claimant that there would be an investigation and
,that he would advise her of the outcome. (TR 70).
- 33. On February 1, 1985, S & L supervivors, Chuck Reese and Ann Muzzarelli, gave Claimant a reprimand and ch~anged her job assignment from the mylar department to documentat~ibn. (TR~70, 71). '
- 34. The size and condition of the mylar room as well the standard operating procedures therein remained substantially the same between September 1984 until February 3, 1985. (TR 70, 71).
- 35. On February 3, 1985, the walls of the mylar room had been extended- to enlarge the room (TR 73); the nu mbe r ' ~oCd e s k t decreased from three to two (TR 74); another usable mylar vault was in the room (TR 74); a fire extinguisher was in the room (TR'
l .
. 6 74); the door to the mylar room was changed with the addition of a piece of glass, thereby preventing someone outside of the room from reaching inside the room to open the door (TR 74-76).
/ 36. On February 17, 1985, Claimant wrote a letter to the
, Nuclear Regulatory Commission and to the Wage and Hour Division
'of the U.S. Department of Labor. (TR 76-78; Claimant's Exhibit No. 1).
- 37. Beginning on March 7, 1985, Claimant took time off from
' work due to her husband's illness after receiving permission f rom Ann Muzzarelli, Claimant's supervisor from S & L. (TR 79, 80).
- 38. In April, Frank Rowland, project manager of Employe r ,
wrote Claimant and advised her that she had exhausted her vacation days and informed her that she could not take off work for her husband's illness only for her own. (TR 81, 82).
- 39. Claimant then obtained cian. (TR 82).
medical leave from her physi-
- 40. On Approximately May 31, 1985, Claimant contacted Rowland and advised him that she would be returning to work. (TR 82).
Rowland advised Claimant to report to Joe Klena, project engineer , with Employer . (TR 82).
r
- 41. While she was working for S & L, Claimant was paid time and one-half for overtime. (TR 83).
- 42. On June 3, 1995, when Claime.nt returned to work, she was assigned to the xerox room running copies working directly for Employer. (TR 83). She then started working a 40 hour4.62963e-4 days <br />0.0111 hours <br />6.613757e-5 weeks <br />1.522e-5 months <br /> work
' week.
(TR 83).
- 43. On June 10, 1985, Joe Klena told Claimant and another employee that she was being laid off due to lack of work. (TR 83-84).
- 44. On August 22, 1985, Frank Rowland wrote Claimant and offered her a position as a clerk at S5.50 an hour (TR 156, TR 84, lines 17-22) in the xerox room.
(Joint Exhibit A-17).
- 45. Although Claimant's job responsibilities were essen-tially the same or es she performed in June 1985, her job, title was " clerk" rather than " clerk / typist". (TR 84-85).
46.
with Mr. Chuck Gagnon Reese with and Ann First.
Quality Muzzarelli knew that Claimant spoke (TR 04, 95).
- 47. When claimant was hired at S & L through Employer she was told to take orders from supervivors at S & L. (TR 100). ~
48.
(TR 100). Claim snt always received her paycheck 9 from Employer.
7
- 49. When Claimant was originally hired by Employer she was given 100). policies and practices documentation from Employer. (TR
- 50. Claimant was docked by Employer for day 9 of personal and vacation days she took which had been authorized by Ann Muzzarelli. (TR 107).
- 51. Claimant received $1,360.00 in unemployment compensation during the summer of 1985. (TR 109).
- 52. During the period of June 17 through September 2, 1985, Claimant lor 56 eight hour non-overtime days.
non-overtime wage loss for this period is S2,531.20. (TR 115). Her
- 53. During the period September 3 through December 31, 1985, when Employer was paying Claimant 15 cent per hcur less than what she was previously making. Claimant worked 86 eight hour days. (TR 116). The difference in non-cvertime pay Claimant would have earned had she continued to earn SS.65 per hour and what she actually earned during this period was $103.20. (TR 116).
- 54. Wuen Claimant worked for S & L in the mylar room she averaged 15 hours1.736111e-4 days <br />0.00417 hours <br />2.480159e-5 weeks <br />5.7075e-6 months <br /> per werk in overtime, f
x
- 55. During the period June 3 through December 31, 1985, had Claimant been working overtime 15 hours1.736111e-4 days <br />0.00417 hours <br />2.480159e-5 weeks <br />5.7075e-6 months <br /> per week she would have worked 30 weeks of 15 hours1.736111e-4 days <br />0.00417 hours <br />2.480159e-5 weeks <br />5.7075e-6 months <br /> overtime each plus two additional days of two hours of overtime each. (TR 117). Had Claimant been paid at a base rate of S5.65 per hour during that period, her overtime wages would have amounted to S3,779.85. (TR 118).
s / 56. The problems discovered in the mylar room for which
/l Claimant was reprimanded could have been created by others who had access to the mylar vaults. (TR 127).
/ 57. When Claimant was working in the S & L myl ar departmerit approximately one-third of mylars were easier to track due to Claimant's mylars became less easy to track.The remaining two-thirds of the efforts. (TR 128)
(TR 128).
- 58. In July of 1985, four clerk po%itions became available with Employer . (TR 182).
5 9- .
In July of 1985, Joseph Flena gave Claimant no consid-eration 183).
in being hired for one of the clerk positions. (TR
I l
i 1
I 8 i i
61.
As a clerk for Employer Virginia Tharp was a xerox [
operator, the < tame functional position Claimant held in June (
1985 and from September 1985 to the date of hearing.
38). (TR. 31, !
62.
Laid off employees of Employer are ordinarily called back to work when the position they left becomes available.
at 32). (TR
64.
Employer through Frank Rowlan maintained that during Claimant's layoff in the summer of 1985, permanent positions in the xerox were positions roomhired.
were not filled instead only temporary summer ITR 37).
- 65. Claimant too had which had not yet accrued.taken personal days and vacation day *.
Frank Rowlan took the position that when could "she returned balance the tebooks."
work she would earn them so that Employer (TR 40, 151).
- 66. Frank Rowlan acknowledged becoming aware of Claimant's complaint to Quality First in early March 1985. (TR 48, 147).
67.
approximately Of the501100 workemployees for S & L. on the Braidwood project site (TR 143, 161). 7 g
- 68. Employer's responsibility at the Braidwood site is the electrical installatia of the pla'it. (TR 143).
- 69. S & L acts as the architect / engineer at the Braidwood site. (TR 144).
70.
was not The Employer through Frank Rowlan claimed that Claimant
,because Rowlan offered"didn't a position in the figure she xerox room in July 1985 would that demotion." (TR 157). In August 1985, . . . be interested in Rowlan claims that
, he guy.of " fered her a position because "he was going to be a good (TR 158).
- 71. Employer through Frank Rowlan claims that Commonwealth Edison imposes requirements on Employer as to the exact number i of employees it can have in each department. (TR 159).
72.
Although Employer has no formal policy regarding the
. recall of laid off employees, Employer through Frank Rowlan, maintained an informal practice of contacting laid off good employees 160). if they are interested in returning to work. (Th
- 73. Employe r 's l
Employer's personnelemployees who work for S & L must follow '
policy. (TR 164).
S
- 9 Discussion The employer 's counsel presented his case skillfully.
However notwithstanding the employers protestations it seems apparent to this observer that unsafe nuclear conditions the claimant's criticism of triggered the impermissible dis-criminary conduct on the part of the employer. (TR 179).
fClaimant is now relegated to working as a xerox operator though I she appears quite bright an able to perform more challenging (work.
Raised by the employer are a number of points. They will be discussed in turn. Firstly it argues Citing Brown & Rout, Inc.
- v. Donovan, 747 F.2d, 1020 (5th Circuit 1984), that the February 1,
1985 reprimand and assignment were not violations of the whistle blower act as the employee had not gone outside the company to make an official complaint but merely complained to a quality control unit within the company. In the Brown case, the Circuit disagreed with the Labor Department that a discrimina-tory act steming from a quality control complaint was actionable under the statute. However in the 9th circuit case of Mackowiak
- v. University Nuclear System 9, Inc. 739 F.2d 1159, decided the same year, as Brown the Court of Appeals sided with the Labor Department quality to the extent that it held that "every action of control inspectors are "in affect" part of a NRC proceedings and were covered by the act . . . "In other words, contractors regulated by 55851 may not discharge quality control (
inspectors because they do their job too well". The_ teat _imony (~
g of the uployee here establishes that she functioned as a type of 'uali.y inspector and it was this activity that caused the disc.? inatory acts of the employers. From another standpoint, it is concluded that her _very complaints to the quality inspectors is comtemplated..by the act. Without such protection the nuclear whistle blower provisions would be rendered ineffec-tual.
! As discussed in the findings, the attempt to restrict liability to Sargent & Lundy would not appear justified. The indicia of control by L. K. Comstocks and Company was evident in this record and they were in fact Claimant's employer. The cite to Whiteheard v. Safeway Steel Products, Inc. 497 A.2d 803 (May 1985) is of cuurse noncontrolling. In any event that case focuses on a temporary employment situation which is not the case here. Listening to the employers witnesses, persuades _they-could and most likely did assert considerable behind~ the scenes
. control ~over. claimant. ~-"-
The employer is correct in its contention that the claim for personal and vacation day 1 was waived (TR 153). Further the unemplognent compensation, given the particular facts of this case, should be deducted from any award.
10 CONCLUSIONS OF LAW
). A prima facie case of retaliatory discharge violative of the "wnistle zation Act of blower" protection statute of 1974 42 U.S.C.
the Energy Reorgani-substantial evidence. Section 5851 was established by 2.
proof: A discrimination claim under Section 5851 must include (1) that the party charged with discrimination is an employer subject to the Act; that the complaining employee was discharged or otherwise discrininated against with respect to his compensation, and (3) that the terms, conditions or privileges of employment; alleged discrimination arose employee participated in a Nuclear because the Regulatory proceeding. Mackowiak v. University Nuclear Systems,Commission Inc., 735 F.2d 1159, 1162 (9th Cir. 1984). See the aval motive discussed in Mt. Healy City School District v. Doyle 429 test U.S.
274 (1977).
- 3. An employer subject to the Act includes "a contractor or a
subcontractor 5851(a). of a Commission licensee." 42 U.S.C. Section The Claimant was employed by L. K. Comstock and S & L both of which licensee, were contractors Commonwealth Edison. or (TR subcontractors 21, 68).
of a Commission 4.
with respect ThetoClainant terms ofwas discharged or discriminated against employment.
was reprimanded by S & L aupervisors and On February 1, 1985, she her job assignment was
(-
changed. (TR 70, 76). Beginning on March 7, 1985 Claimant took time off of work due to husband's illness after receiving permission from S & L (TR 79, 80), but in April the Employer informed her that she could no longer take the time-off. (TR 81, 82).
When Claimant returned to work on June 3, given a new assignment without overtime (TR 82). 1985 she was On Jane 10, 1985, she was laid off allegedly due to lack of work. (TR 83, 84). In July, 1985 four clerk positions became available.
Virginia Tharp was hired as a permanent employee. (TR 185). The Claimant was given no consideration for one of the new posi-tions, (TR 183), although employees are ordinarily called back to work when the position they left cecomes available. (TR 32).
she wat not recalled to work until September, 1985.
(TR 84).
This courset of conduct was clearly discriminatory and deprived Claimant have enjoyed. o f. wages and other benefits or employment she would
- 5. Claimant was discriminated against because she partici-pated in an NRC related proceeding. Only participation in such a proceeding claimant 19 required to 09tablish a prima facie Ca90; a is not required to show that she disclosed unique evidence or evidence that the employer attempted to hide in order to make out a case of discrimination under the Act.
DeFord Internal
- v. Secretary of Labor, 700 F.2d 231, 286 (6th Cir. 1983).
safety and quality control complaints trigger the protections of the " whistle blower" provision of the Act.
- Mackowiak, 735 F.2d at 1163.
4 11
- 6. The presence or absence of retaliatory motive is provable by circumstantial evidence even if there is testimony to the centrary by witnesses who perceive lack of such improper motive. Mackowiak, 735 F.2d at 1172,
- 7. After relating numerous safety problems to her superiors on two separate occasions (TR 60-67), and seeing no changes take place (TR 66, 67), Claimant met with Quality First, the Quality Control division of Commonwealth Edison concerning the safety
, hazards. (TR 68, 69). Approximately 2 weeks later her'S sL supervisors reprimanded her and changed her job assignment from the cylar department to documentation. (TR 70, 71). Two days later the hazards of which she had complained were corrected.
(TR 73-76). Shortly after Claimant registered her internal complaint she was reprimanded and discriminated against based on the terms and conditions of employment.
- 8. Under Title..VII interrelated operations will be held jointly liable for discriminatory treatment of an employee. In the context of Title VII liberal construction is to be given to the definition of " Employer" so as to carry out the purposes of Congress to eliminate diqcrimintation. Baker v. Stuart Broad-casting Co., 560 F.2d 389, 391 (8th Cir. 1977).
important requirement under 42 U.S.C. Section 2000e(b)
The most in
(
a defining the term employer is that there is sufficient indicia of an interrelationhip between the immediate corporate employer and the affiliated corporation to justify the belief en the part of the aggrieved employee that the affiliated corporation is jointly responsible for the actions of the immediate employer.
Armbruster v. Quinn, 711 F.2d 1332, 1337 (6th Cir. 1983). When such a degree of interrelatedness is present the departure from the normal separate existence between entities is adequate
' reason to view the conduct of one party as that of both.
Armbruster, 711 F.2d at 1337.
l
- 9. For guidance in testing the degree of interralationship, the courts will apply a four part test ' formulated by the NLRB:
l The degree of (1) interrelatedness of operations (2) common management (3) centralized control of labor relations and (4) e common ownership. Armbruster, 711 F.2d at 1337; Baker 560 F.2d at 392. While each factor is indicative of interrelatednes9 and while control over the elements of labor relations is a central 4 concern, the presence of any single factor in the Title VII context is not conclusive. Armbruster, 711 F.2d at 1337. All four criteria need not be present in all cases and even when no evidence of common control of labor relations policy is pre-sented the circumstances may be such that the Title VII single employer doctrine is applicable. Armbruster, 711 F.2d at 1338. C For example, in EEOC v. McLemore Food Stores, Inc., 25 F.E.P. k 1356 (W.D. Tenn. 1977) three corporations were held to be a single enterprise where there was cooperative hiring of new employees and a practice of loaning and transferring employees.
i 12
- 10. The same rationale should be applied in the context of (
the Energy Reorganization Act.
A
- 11. The Employer and S & L should be viewed as a single _
Employer. 'Tlaimant was hired by the Employer but worked for S &
~
L. (TR 21). S& L supervised Claimant's day-to-day activities and controlled her work scheduled while the Employer paid Claimant's wages. (TR 21, 22). S & L supervisors advised her of her assignment to the mylar room (TR 54), and reprimanded her and changed her job assignment from the mylar department to documentation.1 (TR 70, 71). S& L initially approved a leave of abserig_e_ ( TR 79, 80), although the Employer subsequently informed the Claimant that she could not take the time off. (TR
. 81, 82). On June 3, 1985, when Claimant returned to work she worked directly for the Employer anf one week later was laid off by the Employer. (TR 83, 84).
- 12. There was obviously joint control of personnel and a
" loaning and transferring" of the employee by S & L and Comstock, In addition, both parties retaliated against the employee after her meeting with the quality control division.
Accordingly, Claimant has establishec a prima facie case against the Employer.
('~ 13. The reasons offered by Employer explaining why the claimant was disciplined, transferred, laid off and not recalled at the first opportunity and otherwise discriminated against in her employment are merely pretexts for the discrimination. (
- 14. Claimant was allegedly reprimanded and reassigned because of the quality of her work. (Exhibits A-1, A-2, A-3).,
However, the problems complained of in tlie7ritten warniiig were the result of ~ 1ack of space and unlimited access by other employees -
pr'oblem s which the Claimant had repeatedly com-plained of and which were corrected after she was transferred f~rbit ~ the ~ department. '(TR 73-75). In addition, there were two fellow employees assigned to the mylar department who also would h~ ave been responsible for the existing problems yet they were not disciplined or reassigned (TR 128) even though the efforts l of the Claimant improved the department while those of the others worsened the situation. (TR 127, 128). The ' imposition or lesser punishment was pretextual. See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 804 (1973); Worthy v. United Steel Corp., 616 F.2d 698, 702 (3d Cir. 1980).
l 15. The Employer also suggested conflicting reasons why the,
) Claimant was not rehired until Sept embe r ,'" 19 8 5. Joseph Klena I testified that he gave the Claimant no consideration in being hired for one of the clerk position openings in July, 1985. (TR l 183). They were.pe_rmanent employee, positions. (TR 185). Frank Rowlan stated that permanent positions in the xerox rooms were "d ia Ju y, 98h nly tempo m y summer positions wue
{-
l E __'_* _____
1/ The employer now seems to admit the validity of the reprimand is in doubt (TR 176, line 9, 177 line 8 & 9).
i 13 filled. (TR 37). (
Claimant a position inRowlan claimed July, 1985 that he because he did did not not think offer she the would be " interested but that he offered her"a position a month later because he was being "a good guy". (TR 157, 158),
( 16. Inconsistencies in an employer's articulation of flegitimate nondiscriminatory reasons for its actions establish
( Kansas that those purported City Power &
reasons are pretextual. See Locke v.
Williams v. ~ Trans World LightAirlines, Co., 660 F.2d 359 366 (8th Cir. 1981);
1981); Herrington 660 F.2d 1267, 1272 (8th Cir.
- v. Abington School District, 19 Fair Empl.
Prac. Cas. 1096, 1098 (E.D. Pa. 1979).
17.
. p[ ' The Employer 's failure to articulate these reasons for J
, failure trial to reinstate demonstrates thatthe the Claimant reasons were earlier until the time of pretextual.
'a.1 Williams
~
- v. Trans World Airlines, Inc.; Locke See, e.g.,
- ' ': Power & v. Kansas City Light Co.; Herrington v.
Abinaton School District; Foster v. Simon, 467 F.
- v. University of Pittsburgh, 359 Supp. 533, 537 (W.D. N.C. 1979); Johnson F. Supp. 1002, 1010 (W.D. Pa.
1973).
- 18. Claimant is entitled to backpay as follows:
(a) A total of 56 eight hour non-over-time days during the period of June 17 through September 2, 1985, (TR 115).
$2,531.20
(
(b) A total of 86 eight hour days during 103.20 the period June 17 through September 2, 1985, (TR 116); when the employer was paying claimant 15 cent making. per hour less than she was previously (c) Overtime pay during the period June 3 through December 31, 1985 totaling S3,779.85 3,779.85 for 15 hours1.736111e-4 days <br />0.00417 hours <br />2.480159e-5 weeks <br />5.7075e-6 months <br /> per week for 30 weeks plus two additional days of two hours of overtime.
(TR. 117, 118). Total 6,414.25
- 19. The Claimant's receipt of $1,360.00 - 1,360.00 in unemployment compensation during the summer from her of 1985 (TR backpay 109) should be deducted award.
Net owing 5,054.25 20.
Section The Claimant is entitled to reasonable attorney's fees.
litigation 5851(e)(2)
(includingauthorizes reasonable ' this office and attorney to " award expert costs witnessof fees) to any party." Therefore, plantiff's counsel should be granted attorney's leave fees.to file a petition for reasonable costs, including
i 14 ORDER
- 1. Them:Amployeh. L. K. Com9tock and Company shall pay forthwitth h ties employee the sum of $5,054.25 together with interest ak.ittebest legal rate dating from December 31, 1985.
- 2. Claimant's attorney shall submit on notice an itemized petition order .
for an attorneys fee within 10 days of receipt of this GL ,ROBER L R
~
Adr 19trative Law Judge Dated: APA 7 R6 Washington, D.C.
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l
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SERVICE SHEET
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Case Name: Bonnie J. Parkhurst Case No.: 85-ERA-41 ,
Thomas E. McClure, E9q.
17 Briarcliff Professional Center Bourbonnais, IL 60914 Bruce G. Hearey, Esq.
Glenn Smith, Esq.
Spieth, Bell, McCurdy & Newell 2000 Huntington Building Cleveland, Ohio 44150 L. K. Com9tock & Company R.R. 1 , P.O. Box 8382 P.O. Box 8382 Braceville, IL 60407 Bonnie J. Parkhurst 335 North Broadway Coal City, IL 60416 Employment Standards Administration Wage and Hour Division (
230 South Dearborn Street (
Room 412 Chicago, IL 60604