Booker v. Exelon Generation Company, LLC (agency decision, July 31, 2019)

Plain-English summary

Exelon employee Patricia Booker reported backdating of safety-related records at the Peach Bottom nuclear plant, then alleged harassment, loss of duties, revocation of unescorted access, and eventual termination. The ALJ granted summary decision to Exelon after weighing competing evidence and finding that Booker's behavior raised fitness-for-duty concerns. The Board held that this improperly resolved factual disputes without a hearing. Booker's emails and other evidence could support findings of retaliatory harassment and that her supervisor initiated the access-review process with retaliatory intent. The Board vacated dismissal and remanded for an evidentiary hearing on the merits without deciding whether retaliation occurred.

Decision snapshot

• Cited authorities: 42 U.S.C. § 5851; 29 C.F.R. §§ 24.102 and 18.72(a)
• Outcome: Summary dismissal vacated and the ERA complaint remanded for an evidentiary hearing.
• Key point: At summary decision, an ALJ must identify genuine factual disputes rather than weigh competing evidence about retaliatory intent.

Full text (DOL official public release)

U.S. Department of Labor Administrative Review Board
200 Constitution Avenue, N.W.
Washington, D.C. 20210

  In the Matter of:

  PATRICIA A. BOOKER,                                    ARB CASE NO. 2017-0038

                  COMPLAINANT,                           ALJ CASE NO. 2016-ERA-00012

         v.                                              DATE: July 31, 2019

  EXELON GENERATION COMPANY, LLC,

                  RESPONDENT.



  Appearances:

  For the Complainant:
        Patricia A. Booker; pro se; Delta, Pennsylvania

  For the Respondent:
        Talib N. Ellison, Esq.; Exelon Business Services Company;
        Philadelphia, Pennsylvania

  BEFORE: William T. Barto, Chief Administrative Appeals Judge; James A.
  Haynes and Daniel T. Gresh, Administrative Appeals Judges


                        DECISION AND ORDER OF REMAND

        PER CURIAM. This case arises under the whistleblower protection provision of
  the Energy Reorganization Act (ERA), as amended, and its implementing
  regulations. 1 On June 25, 2014, Patricia A. Booker filed a complaint with the
  Occupational Safety and Health Administration (OSHA) alleging that Exelon


  1      42 U.S.C. § 5851 (2005); 29 C.F.R. Part 24 (2018).



  Generation Company, LLC retaliated against her by harassing her and revoking
  her Unescorted Access Authorization (UAA) after she engaged in protected activity,
  in violation of the ERA. OSHA found that, although Complainant had proven she
  engaged in protected activity, employer had knowledge of her protected activity, and
  adverse action (i.e., her UAA revocation), there was no reasonable cause to believe
  that Respondent violated the ERA because the evidence failed to show that 1)
  Respondent harassed Complainant or 2) her protected activity was a contributing
  factor to the decision to revoke her UAA.

         Complainant filed objections and a request for hearing before an
  Administrative Law Judge (ALJ). Respondent filed a motion with the ALJ
  for summary decision. Both parties filed briefs with supporting documentation. 2 On
  April 4, 2017, the ALJ issued an order granting Respondent’s motion
  for summary decision and dismissing the complaint. After making extensive
  findings of fact, 3 the ALJ found that 1) the alleged harassment was not sufficiently
  threatening to constitute a hostile work environment, and 2) the record showed that
  the persons responsible for revoking Complainant’s UAA were required to do so
  because Complainant’s actions called her emotional or mental condition into
  question. 4 Complainant appealed the ALJ’s decision to the ARB. For the following
  reasons, the Board vacates the ALJ’s order and remands the case for the ALJ to
  proceed to an evidentiary hearing on the merits.

                                       BACKGROUND 5

        Respondent hired Complainant as a clerical employee in 1984 at the Peach
  Bottom Atomic Plant in Delta, Pennsylvania. 6 Over the years Complainant was


  2      Order Granting Motion for Summary Disposition (Order) at 2.

  3      Id. at 2-12.

  4      Id. at 7, 12.

  5      The background is meant to summarize the most significant aspects of this matter
  and we derived it from the ALJ’s April 4, 2017 order. Nothing in this background section
  should be considered as constraining any fact findings the ALJ makes on remand after a
  hearing.

  6      The references in this paragraph are to Order at 2.



  promoted to positions of greater responsibility, ultimately obtaining the position of
  Administrative Coordinator.

         In September 2013, Complainant reported inappropriate backdating of
  safety-related procedure documents to various persons, including Respondent’s
  Nuclear Oversight (NOS), the Maintenance Planning Manager, the Maintenance
  Director, and the Plant Manager. 7 She informed several of these persons that if the
  issue was not resolved, she would report it to the Nuclear Regulatory Commission
  (NRC). 8 Complainant also initiated an Issue Report (IR) regarding the backdating.
  When she saw no reaction to her reports, Complainant contacted Mathew Miller, an
  NOS employee, to follow up on the status of her IR. Miller looked into the matter
  and found that her IR had been closed with no actions taken to address the concern.
  Because Miller discovered that the IR had been addressed to Thomas Powell,
  Complainant’s supervisor, Miller discussed the matter with Powell, who reopened
  the IR. When Complainant tried to discuss the IR with Powell, he shut down the
  conversation and stated that “‘the person should have brought it to us instead of
  taking to NOS.’” Complainant also discussed the issue with Charles Breidenbaugh,
  the Maintenance Director, in January 2014, and, after the IR was reopened, with
  plant manager Pat Nevin and the Peach Bottom Vice-President in February 2014.

         On February 7, 2014, Complainant reported the back-dating of maintenance
  work orders to the NRC. 9 She also filed a separate complaint with the NRC on the
  same day alleging retaliation from Respondent for her earlier complaints about the
  issue.

                                 Alleged Adverse Actions

      On February 1, 2014, Complainant sent two emails to Laura Rush, a Senior
  Human Resources Generalist, and another to her supervisor complaining of specific




  7      The references in this paragraph are to Order at 3-4.

  8      Respondent’s Brief at 9 (citing Exhibit 10 at Interrogatory Response No. 5).

  9      The references in this paragraph are to Order at 7.




  instances of retaliation for her protected activities, including a loss of access to her
  supervisor’s email account and job responsibilities that were taken from her. 10

          Complainant also later alleged that John Connelly, her supervisor after April
  2014, had yelled at, intimidated and threatened her on September 25, 2014, and on
  October 3, 2014, entered her cubicle in an intimidating manner, came within one
  foot of her chair and put his arm up on a riser behind Complainant.

         On September 2, 2014, Respondent’s Security Access and Access
  Authorization department notified Connelly that the annual Behavior Observation
  Program (BOP) Supervisory Review for his subordinates was due. 11 Connelly’s BOP
  review for Complainant indicated that she spent time talking to herself and went
  out of her way to avoid certain people. Kevin Concannon, the Senior Authorization
  Reviewer of Connelly’s BOP reviews, sent a copy of the BOP review to Susan
  Techau, Manager of Fitness for Duty/Access and In-Processing in the Access
  Authorization Group and contacted Respondent’s Medical Review Officer (MRO),
  Dr. Barbara Pohlman. Dr. Pohlman was responsible to determine whether an
  employee had an impairment that could affect the safe operation of the plant and to
  recommend whether such a person’s UAA should be denied or placed on hold. Based
  on the information in Complainant’s BOP, Dr. Pohlman ordered that Respondent’s
  Employee Assistance Program (EAP) evaluate Complainant by September 25, 2014.
  But Dr. Pohlman did not recommend that Complainant’s UAA be revoked at that
  time.

        Concannon notified EAP and Connelly of the mandatory referral. Connelly
  scheduled a meeting on September 16, 2014, 12 with Complainant and Rush to
  discuss Complainant’s BOP review and notify Complainant about her referral to the
  EAP. Before the meeting was to take place, Complainant notified Connelly that she
  was meeting with the NRC that morning. Thereafter, Connelly and Rush met with

  10     The references in this paragraph are to Order at 4-6.

  11     The references in this paragraph are to Order at 7-9.

  12      The ALJ indicated that this meeting took place on September 26, 2014 (Order at 8-
  9), but it appears that it actually took place on September 16, 2014, as Complainant
  asserted (Complainant’s Brief at 9.) and in the Declaration of Laura M. Rush Respondent’s
  Exhibit (RX) 27.




  Complainant that afternoon. After Connelly told Complainant about her BOP
  review and her referral to the EAP, Complainant stated that she was not surprised
  because she had met with the NRC that morning. Connelly responded that the one
  was not related to the other and that her BOP review and mandatory referral to the
  EAP had both occurred before her meeting with the NRC.

         Subsequently, on October 7, 2014, Complainant met with Connelly, Rush,
  Techau, Brian Zukauckas, the Manager of Site Human Resources, Matthew D.
  Smith, Respondent’s Director of Human Resources, Barbara Stevens, Respondent’s
  Director of Occupational Health and Regulatory Medical Services, and corporate
  legal counsel about her BOP review. 13 After the conference, Techau authorized that
  Complainant’s UAA be placed on administrative hold while Complainant continued
  her EAP evaluation sessions. Without a UAA, Complainant was unable to work
  within the protected area of Peach Bottom, where she was ordinarily assigned to
  work.

         Complainant continued attending her EAP evaluation sessions. 14 The EAP
  referred Complainant to Dr. Mary Lou Kunkle, a psychologist, who recommended
  that Complainant remain off work, attend outpatient counseling, and that
  Complainant’s UAA continue to be placed on temporary administrative hold. On
  December 13, 2014, a status report from the EAP to Bob Pilkey, the Peach Bottom
  site nurse, Concannon and Dr. Pohlman recommended that Complainant be
  returned to work with nuclear access starting December 9, 2014, with
  accommodations for a three-month period providing that Complainant be able to
  report to a female manager, her desk be moved near that female manager, and she
  continue with outpatient counseling upon her return to work. Subsequent status
  reports continued to recommend a return to work with the same accommodations.

         Dr. Pohlman rejected the EAP recommendations on February 27, 2015,
  because she considered the recommended accommodation of Complainant reporting
  to a specific female manager unacceptable as it would be impossible to guarantee
  that manager’s presence at all times. 15 Zukauckas then wrote to Complainant on

  13     The references in this paragraph are to Order at 9.

  14     The references in this paragraph are to Order at 9-10.

  15     The references in this paragraph are to Order at 11.



  February 27, 2015, informing her that Dr. Pohlman did not accept the
  recommendation that she return to work because the accommodation of reporting to
  a specific female manager was unacceptable. Thereafter, Complainant went on
  short-term disability followed by long-term disability, and after one year on long-
  term disability, pursuant to Respondent’s employment practice, Respondent
  terminated Complainant’s employment.

                         JURISDICTION AND STANDARD OF REVIEW

        The Secretary of Labor has delegated authority to the ARB to conduct
  appellate review of ALJ decisions in cases arising under the ERA and to issue final
  agency decisions in these matters. 16 The ARB reviews an ALJ’s grant
  of summary decision de novo, applying the same standard that ALJs employ
  under 29 C.F.R. § 18.72 (2018). 17

                                         DISCUSSION

         Pursuant to 29 C.F.R. § 18.72(a), upon a motion for summary decision, an
  ALJ “shall grant summary decision if the movant shows that there is no genuine
  dispute as to any material fact and the movant is entitled to decision as a matter of
  law.” In deciding on such a motion, all evidence is viewed in the light most
  favorable to the nonmoving party. 18 When deciding whether to grant a motion for
  summary decision, the adjudicator does not weigh the evidence to determine the
  truth of the matters asserted. 19 We have held that “a genuine issue exists if a fair-


  16    See Secretary’s Order No. 1-2019 (Delegation of Authority and Assignment of
  Responsibility to the Administrative Review Board), 84 Fed. Reg. 13072 (Apr. 3, 2019).

  17    Franchini v. Argonne Nat’l Lab., ARB No. 13-081, ALJ No. 2009-ERA-014, slip op. at
  10 (ARB Sept. 28, 2015) (citations omitted).

  18     Id. (citations omitted).

  19      Henderson v. Wheeling & Lake Erie Ry., ARB No. 11-013, ALJ No. 2010-FRS-012,
  slip op. at 9 (ARB Oct. 26, 2012); see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249
  (1986) (“it is clear . . . that at the summary judgment stage the judge’s function is not
  himself to weigh the evidence and determine the truth of the matter but to determine
  whether there is a genuine issue for trial.”).




  minded fact-finder [ ] could rule for the nonmoving party after hearing all the
  evidence, recognizing that in hearings, testimony is tested by cross-examination and
  amplified by exhibits and presumably more context.” 20 Denying summary decision
  because there is a genuine dispute as to a material fact simply means that an
  evidentiary hearing is required to resolve those issues; it is not an assessment on
  the merits of any particular claim or defense. 21 Again, the analysis performed is the
  threshold matter “of whether there is the need for a trial—whether . . . there are
  any genuine factual issues that properly can be resolved only by a finder of fact
  because they may reasonably be resolved in favor of either party.” 22

        Applying this standard to the instant case, we vacate the ALJ’s order and
  remand the case because the ALJ committed reversible error. Namely, he
  improperly weighed the evidence and made findings of fact as if he was resolving
  the case on its merits based on the record before him in the absence of a hearing. 23


                                          Harassment

         The ERA prohibits employers from “discharg[ing] any employee or otherwise
  discriminat[ing] against any employee with respect to his compensation, terms,
  conditions, or privileges of employment.” 24 The regulations specify that employer
  actions that constitute violations if done because of an employee’s protected activity
  include actions “to intimidate, threaten, restrain, coerce, blacklist, discharge,



  20     Henderson, ARB No. 11-013, slip op. at 7-8; see Anderson, 477 U.S. at 248 (summary
  decision cannot be granted if there is a genuine dispute about a material fact, “genuine”
  meaning “if the evidence is such that a reasonable [fact finder] could [decide in favor of] the
  nonmoving party.”).

  21     Henderson, ARB No. 11-013, slip op. at 9.

  22     Anderson, 477 U.S. at 250.

  23    Franchini v. Argonne Nat’l Lab., ARB No. 11-006, ALJ No. 2009-ERA-014, slip op. at
  7 (ARB Sept. 26, 2012) (“In ruling on a motion for summary decision, neither the ALJ nor
  the Board weighs the evidence or determines the truth of the matters asserted.”).

  24     42 U.S.C. § 5851(a)(1).




  discipline, or in any other manner retaliate against any employee.” 25 Here,
  Complainant alleged that Respondent threatened, intimidated, and harassed her in
  various ways, including removing her access to emails, reassigning her duties to
  other employees and sending her harassing emails requiring work that was no
  longer her responsibility to perform. 26 If supported by admissible evidence, these
  allegations would qualify as discrete acts of discrimination under the ERA and its
  implementing regulations. 27

         Turning to the evidentiary submissions supporting Complainant’s
  allegations, there is Complainant’s emails to her employer’s agents in which she
  complained about her loss of access to emails, the reassignment of her job duties,
  and retaliation after she had engaged in protected activity. 28 On summary decision,
  viewing the evidence in the light most favorable to Complainant, the emails alone
  raise genuine issues of material fact as to whether Respondent harassed her by
  intimidating, threatening, or otherwise retaliating against her in violation of the
  ERA and its implementing regulations because she engaged in protected activity.
  The ALJ erred by weighing the additional evidence Respondent proffered on these
  issues and then determining which party he believed. While such fact-finding may
  be necessary and appropriate when adjudicating other types of motions or the
  merits of a complaint, it is not appropriate when resolving a motion for summary
  decision. For this reason, we reverse the ALJ’s order with respect to the allegations
  of harassment and remand the case for reconsideration of this issue after an
  evidentiary hearing on the merits.



  25     29 C.F.R. § 24.102(a) and (b).

  26     This list is not intended to be exhaustive but merely states instances of harassment
  alleged that survive summary decision. Complainant’s other allegations, including that
  Connelly intimidated or threatened her, may also be considered on remand and determined
  to be adverse actions under the ERA. See Order at 4-6.

  27     It is not necessary that employer actions constitute a prima facie case of hostile work
  environment to be considered as adverse personnel actions under the ERA. All that need be
  alleged and proven is that employer has intimidated, threatened, coerced, blacklisted,
  discharged, disciplined, or in any other manner retaliated against an employee because the
  employee has engaged in protected activity. 29 C.F.R. § 24.102(b) (emphasis added).

  28     Order at 4 (citing RX 15-16); see Respondent’s Reply Brief at 10-11.




                         Loss of UAA Badge/Status/Employment

        The ALJ made a similar error in his conclusions concerning the suspension of
  Complainant’s UAA and ultimate termination. After analyzing and weighing the
  evidence the parties proffered, the ALJ reached the following conclusion:

         Complainant’s argument that her protected activity caused or
         contributed to Respondent’s withdrawal of her UAA is not supported
         by the record. Rather, the record shows that the UAA was placed on
         temporary hold by Dr. Barbara Pohlman, Respondent’s MRO, the
         person responsible for reviewing information on Respondent’s
         employees with regard to their fitness for duty and their eligibility for
         UAA, and the person responsible under the BOP program for
         determining if the BOP review reveals an impairment that could affect
         safe operation of the plant. The record shows that the persons
         responsible for withdrawal of Complainant’s UAA were not only
         authorized but were required by regulation to do so as her actions
         called into question her emotional or mental condition.

  Order at 12. Even if the ALJ is correct about the mandatory nature of the
  withdrawal of Complainant’s UAA, 29 his analysis overlooks a key fact:
  Complainant’s supervisor, John Connelly, set in motion the process for the
  withdrawal of Complainant’s UAA. Notwithstanding the apparent objectivity of the
  individuals who executed the suspension of Complainant’s UAA and ultimately
  terminated Complainant’s employment, summary decision is not appropriate if
  there is any evidence of record that tends to establish that Connelly made his
  submissions concerning Complainant’s BOP review with retaliatory animus and the
  adverse actions ultimately taken as a result of his observations were foreseeable.
  See Staub v. Proctor Hospital, 562 U.S. 411, 422 (2011).




  29     Respondent asserts on appeal that the decision to revoke Complainant’s UAA is
  unreviewable because such a decision relates to national security clearances. We need not
  resolve this issue in light of our disposition of the instant appeal, but we note that even if
  the Department of Labor cannot review the substance of the decision to revoke a UAA, the
  Department may lawfully examine the reasons that the action was taken in the context of
  whistleblower retaliation allegations.



        On this point, we note the following evidence of record in a light most
  favorable to Complainant:

            •     Complainant asserts the actions Connelly reported in her BOP review
                  did not indicate changed behavior and were not different than those of
                  her peers (Complainant’s Response to the Motion for Summary
                  Decision at 20v, 21x, 35, Order at 8);
            •     Connelly did not discuss his putative observations with Complainant
                  before submitting them under the BOP (RX 27, Order at 8-9 (implicit));
            •     Connelly was aware of Complainant’s previous protected activity and
                  troubled interactions with Powell, her previous supervisor, but did not
                  restore her previous email access nor reinstate her previous job
                  responsibilities, which actions were taken, Complainant asserts,
                  because of her protected activity (RX 5; Complainant’s Brief on Appeal
                  at 8);
            •     Connelly’s action took place no more than seven months after
                  Complainant’s protected activity of complaining to the NRC (Order at
                  7);
            •     Connelly’s action took place at the first regularly-scheduled BOP
                  reporting cycle after Complainant’s protected activity (Order at 7
                  (implicit));
            •     Complainant asserts that Connelly engaged in harassing behavior
                  toward her after he learned of her meeting with the NRC on
                  September 16, 2014 (Order at 5-6, Complainant’s Exhibits 3, 4, 15, 35,
                  56 at 5).

        Even assuming that Respondent disputes each of these points, it is
  nevertheless incontrovertible that there is some evidence—when viewed in a light
  most favorable to Complainant—that Connelly was acting with retaliatory intent
  when he complained of Complainant’s talking to herself and her actions toward her
  former supervisor, Powell. 30 As such, there remains a genuine dispute as to


  30      Order at 8-9; see Brucker v. BNSF Ry. Co., ARB No. 14-071, ALJ No. 2013-FRS-070,
  slip op. at 9 (ARB July 29, 2016) (in which the ALJ overlooked the complainant’s evidence
  that created a material issue of fact as to whether the respondent would have fired the
  complainant if the complainant had not engaged in protected activities).




  material facts concerning the role, if any, Complainant’s protected activity had in
  causing the adverse actions she subsequently endured. 31

                                        CONCLUSION

         Complainant, the nonmoving party below, has submitted enough evidence to
  raise questions of material fact on the issue of whether Respondent harassed
  Complainant and revoked her UAA status because she engaged in protected
  activity. Therefore, the ALJ’s Order Granting Motion for Summary Disposition is
  VACATED and this matter is REMANDED for an evidentiary hearing on the
  merits.

         SO ORDERED.




  31      We take this opportunity to recall that adjudicating the issue of whether there is
  contributing-factor causation is a fact-intensive determination, often involving complex and
  subtle questions of intent and motivation, which is usually challenging to resolve by
  summary decision. Henderson, ARB No. 11-013, slip op. at 14. And even if the ALJ
  determines that summary decision is appropriate, one must still take care not to conflate
  the decisional standards appropriate for summary decision, 29 C.F.R. § 18.72(a), with those
  for a decision on the record. Id. § 18.70(d). The former does not allow for weighing the
  evidence, while the latter does.