Petition for Writ of Certiorari — English v. General Elec. Co.

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0, | i> Supreme Court, U.S,

89-152 '\Y FILED

SUL 27 198s

No. JOSEPH F. SPANIOn. Je

CLERK

IN THE

Supreme Court of the United States

OCTOBER TERM, 1989

VERA M. ENGLISH,

Petitioner,

Vv.

GENERAL ELECTRIC COMPANY,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

Of Counsel: ' ARTHUR M. SCHILLER

M. TRAVIS PAYNE Attorney at Law

EDELSTEIN, PAYNE & NELSON 21 DuPont Circle, N.W.

P.O. Box 12607 Suite 401

Raleigh, N.C. 27605 Washington, D.C. 20036

(919) 828-1456 (202) 857-5658

Counsel for Petitioner

EEE TE

WILSON - Eres PRINTING Co., INC. - 789-0096 - WASHINGTON, D.C. 20001

‘Som.

QUESTION PRESENTED FOR REVIEW

Should an employee’s well-recognized and well-founded

state tort action that does not in any way address issues

of nuclear regulation or safety, »e nreempted by Section

210 of the Energy Reorganization Act, 42 USC Section

5851, the so-called nuclear “whistleblowers” statute?

LIST OF PARTIES

The parties to the proceedings below are the petitioner

Vera English ani the respondent General Electric Com-

pany.

(i)

TABLE OF CONTENTS

QUESTION PRESENTED FOR REVIEW ................

LIST OF PARTIES .000----.cccccssses-- a

TABLE OF AUTHORITIES .0000..00.00-00-0cc--cossssssssssssees-o

REPORT OF OPINIONS .20--0-----cc-cccssssssssvsssveesseeeeseeeeeee

a scneeeeeeeee

STATUTES INVOLVED 00o0oo.----ccccccccesessccceccessoneseee

STATEMENT OF THE CASE o.0...0...--cccccceccsssssssseseeeeee

REASONS WHY THE WRIT SHOULD BE

a aeliaeaicitbeneanercencgueecenenmrennccemeeeessen

A. The Decision Below Conflicts With The Respect

For The Rights Of States As Reflected In

Farmer v. United Brotherhood of Carpenters,

430 U.S. 290 (1977), Lingle v. Norge Division

of Magic Chef, 486 U.S. ——- (1988), and San

Diego Building Trades Council v. Garmon, 359

EEE Ae

B. The Decision Below Conflicts With The Holding

Of This Court In California Coastal Commission

v. Granite Rock Co., 480 U.S. 572 (1987) ..........

C. The Decision Below Conflicts With The Holding

Of This Court In Decanas v. Bica, 424 U.S. 351

LESS ELIS

D. The Decision Below Conflicts With This Court’s

Decisions In Pacific Gas and Electric Co. v.

Energy Resources Commission, 461 U.S. 190

(1983), and Silkwood v. Kerr McGee Corp., 464

a ncotunemnaennncenens

E. There Is Conflict Among The Courts Concerning

The Preemption Of State Claims By Federal

ar = =

TABLE OF AUTHORITIES

SUPREME COURT CASES Page

Automobile Workers v. Russell, 356 U.S. 634

(19GB) ..2......--<2-0--aseccecens-nceesennscseensnssneswsccssmnecseneeneenes 13

Belknap v. Hale, 463 U.S. 491 (1983).............----- 13

California Coastal Commission v. Granite Rock Co.,

480 U.S. 572 (1987) ei alittle 14, 15, 16

Decanas v. Bica, 424 U.S. 351 (1976) ..........-......--. 17, 18

Farmer v. United Brotherhood of Carpenters, 430

U.S. 290 (1977) ....... Ea aoe Sei ne sewer ort t 10, 11, 12

Fort Halifax Packing Company v. Coyne, 482 U.S.

— (1987), 96 L.Ed.2d 1 ...........---22------2-se----00+- 13

Lingle v. Norge Division of Magic Chef, 486 US.

(1988), 100 L.Ed.2d 410 .....................-..-- 10, 13, 15

Linn v. Plant Guard Workers, 383 U.S. 53 (1966) .. 13

Pacific Gas and Electric Co. v. Energy Resources

Commission, 461 U.S. 190 (1981) .............---.--- 18, 19, 20

San Diego Building Trades Council v. Garmon,

859 U.S. 276 (1959) ...........----..--ccccsoe---eeeceoesseccssees 10, 13

Silkwood v. Kerr McGee Corp., 464 U.S. 238

| ee 18, 19, 20 |

OTHER FEDERAL CASES

Baldracchi v. Pratt & Whitney, 814 F.2d 102 (2nd

CB, ROTI acineceeececcervenscccnsincncrrasesectntasecntnnssenncassonesoess 22

English v. Whitfield, 858 F.2d 957 (4th Cir. 1988) .. 8

Keehr v. Consolidated Freightways, 825 F.2d 133

‘OO Se | adel ieaiddiatass 22

Local No. 57 ». Bechtel Power Corp., 834 F.2d 884

(10th Cir. 1987) .............-..-.20--.--c-ceccessneseveccenensesenss 22

Merchant v. American Steamship Co., 860 F.2d

204 (6th Cir. 1988) .............--..-------cseeseeseeeseereerenees 22

Miller v. AT&T Network Systems, 850 F.2d 543

(9th Cir. 1988) .......... sec ai i cllietaciiaieapititldeladaiitadahinaad 22

Norris v. Lumberman’s Mutual, 687 F.Supp. 699

(Mass. 1988) .................--.-.--0--0--se-c-ecsecceseeessnseneenenees 21

Paige v. Henry J. Kaiser Co., 826 F.2d 857 (9th

CB, TITY oaceccaaesnnececcesecceessccesceceernacsctnsosonsnstonssnamienes 22

Smolarek v. Chrysler Corp., 858 F.2d 1165 (6th

Che, BID cneencecneccenecccsoccnsecsesssstliasanscncsnsecttsotacnseatenses 22

TABLE OF AUTHORITIES—Continued

, Page

now v. Bechtel Construction, 647 F.S

aan... joni 21

Stokes v. Bechtel North American Power Corp.,

614 F.Supp. 782 (N.C. Cal. 1985)... ts«QY

OTHER CASES

Chrisman v. Phillips Industries, Inc., 242 K

pjibl Pita 140 (1988)... scanned nce 21

rews v. Provident Finance Co., 271 N.C. 6 84. 157

S.E.2d 881 (1967) — wt 10

Dison ». Stuart 85 N.C. App. 338, 354 S.E.2d 757

A tel ere wei teiie 11,18

Kirby v. Jules Chain Stores Co ; :

rp., 210 N.C.

88 S.E. 625 (1936)... he 10

tanback v. Stanback, 297 N.C. 181. 254 SE od

611 (1979)... Sep Sieve 10

Wheeler v. Caterpillar Tractor Co., 108 ‘TlL.2d 502.

™ Tll.2d 502,

a 372 (1985), cert. den., 475 U.S. 1122

Woodruff v. Miller, 64 N.C. App. 364, 307 SE2d ”

SPU sci _.. 11,20

STATUTES |

Section 210 of the Energy Reorganizati

ganization A

42 USC Section 5851 0. ” passim

N.C.Gen.Stat. Section 95-2520... 16

N.C.Gen.Stat. Section 95-130 ( SaaS: 16

N.C.Gen.Stat. Section 96-15.1&15.2 ss 16

N.C.Gen.Stat. Section97-6.1....si(‘z;é;~S:S 15

N.C.Gen.Stat.Chapter168A... i (‘ié;COC~™; 16

N.C.Gen.Stat. Section 143-4222. —<—~—sSS

RULES

Federal! Rules of Civil Procedure

i a 9

i “és TT

OTHER AUTHORITIES

Kohn, Protecting Ex:vironinental

- e and N

Whistleblowers (1985)... CL vs 20

IN THE

Supreme Court of the United States

OCTOBER TERM, 1989

No.

VERA M. ENGLISH,

- Petitioner,

GENERAL ELECTRIC COMPANY,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

REPORT OF OPINIONS

The Order of the District Court is reported at 683

F.Supp. 1006 (E.D.N.C. 1988). (Appendix, p. 6a) The

Opinion of the Court of Appeals is reported at 871 F.2d

22 (4th Cir. 1989). (Appendix, p. la)

JURISDICTION

The Opinion of the Court of Appeals was decided and

entered on April 3, 1989. A Petition for Rehearing and

Suggestion for Rehearing en banc was denied and entered

on April 28, 1989. (Appendix, p. 4a) Jurisdiction of this

Honorable Court is invoked pursuant to 28 USC Section

1254(1).

STATUTE INVOLVED

Section 210 of the Energy Reorganization Act,

42 U.S.C. § 5851. Employee protection

(a) Discrimination against employee

No employer, including a Commission licensee, an

applicant for a Commission license, or a contractor

or a subcontractor of a Commission licensee or appli-

cant, may discharge any employee or otherwise dis-

criminate against any employee with respect to his

compensation, terms, conditions, or privileges of em-

ployment because the employee (or any person acting

pursuant to a request of the employee) —

(1) commenced, caused to be commenced, or

is about to commence or cause to be commenced

a proceeding under this chapter or the Atomic

Energy Act of 1954, as amended [42 U.S.C.A.

§ 2011 et seq.], or a proceeding for the adminis-

tration or enforcement of any requirement im-

under this chapter or the Atomic Energy

Act of 1954, as amended;

(2) testified or is about to testify in any such

proceeding or;

(3) assisted or participated or is about to

assist or participate in any manner in such a

proceeding or in any other manner in such a pro-

veeding or in any other action to carry out the

purposes of this chapter or the Atomic Energy

Act of 1954, as amended [42 U.S.C.A. § 2011

et seq. ].

(b) Complaint, filing and notification

(1) Any employee who believes that he has been

discharged or otherwise discriminated against by any

person in violation of subsection (a) of this section

may, within thirty days after such violation occurs,

file (or have any person file on his behalf) a com-

plaint with the Secretary of Labor (hereinafter in

this subsection referred to as the “Secretary”) al-

leging such discharge or discrimination. Upon re-

ceipt of such a complaint, the Secretary shall notify

the person named in the complaint of the filing of

the complaint and the Commission.

(2)(A) Upon receipt of a complaint filed under

paragraph (1), the Secretary shall conduct an in-

vestigation of the violation alleged in the complaint.

Within thirty days of the receipt of such complaint,

the Secretary shall complete such investigati

shall notify in writing the complaint ( yr =

son acting in his behalf) and the person alleged to

have committed such violation of ihe results of the

Investigation conducted pursuant to this subpara-

graph. Within ninety days of the receipt of such

complaint the Secretary shall, unless the proceedin

on the complaint is terminated by the Secreta *

the basis of a settlement entered into by the peatesy

and the person alleged to have committed such vio-

lation, issue an order either providing the relief pre-

scribed by subparagraph (B) or denying the com-

age An order of the Secretary shall be made on

: e record after notice and opportunity for public

earing. The Secretary may not enter into a settle-

ment terminating a proceeding on a complaint with-

out the participation and consent of the complainant.

(B) If, in response to a complain

paragraph (1), the Secretary poems wal ro —s

lation of subsection (a) of this section has occurred

the Secretary shall order the person who committed

such violation to (i) take affirmative action to abate

the violation, and (ii) reinstate the complainant to his

pre position together with the compensation (in-

cluding back pay), terms, conditions, and privileges

of his employment, and the Secretary may order such

person to proviae compensatory damages to the com-

plainant. If an order is issued under this paragraph

the Secretary, at the request of the complainant shall

assess against the person against whom the order is

issued a sum equal to the aggregate amount of all

costs and expenses (including attorneys’ and expert

witness fees) reasonably incurred, as determined by

the Secretary, by the complainant for, or in connec-

tion with, the bringing of the :

the order was issued. “ compat upon which

(1) Any person adversely affected i

sel} or aggrieved b

an order issued under subsection (b) of this peor

may obtain review of the order in the United States

court of appeals for the circuit in which the violation,

with respect to which the order was issued, allegedly

occurred. The petition for review must be filed with-

in sixty days from the issuance of the Secretary’s

order. Review shali conform to chapter 7 of Title 5.

The commencement of proceedings under this sub-

paragraph shall not, unless ordered by the court, op-

erate as a stay of the Secretary’s order.

(2) An order of the Secretary with respect to

which review could have been obtained under para-

graph (1) shall not be subject to judicial review in

any criminal or other civil proceeding.

(d) Jurisdiction

Whenever a person has failed to comply with an

order issued under subsection (b) (2) of this section,

the Secretary may file a civil action in the United

State: district court for the district in which the vio-

lation was found to occur to enforce such order. In

actions brought under this subsection, the district

courts shall have jurisdiction to grant all appropri-

ate relief including, but nut limited to, injunctive re-

lief, compensatory, and exemplary damages.

(e) Commencement of action

(1) Any person on whose behalf an order was is-

sued under paragraph (2) of subsection (b) of this

section may commence a civil action against the per-

son to whom such order was issued to require com-

pliance with such order. The appropriate United

States district court shall have jurisdiction, without

regard to the amount in controversy or the citizen-

ship of the parties, to enforce such order.

(2) The court, in issuing any final order under

this subsection, may award costs of litigation (in-

cluding reasonable attorney and expert witness fees)

to any party whenever the court determines such

award is appropriate.

(f) Enforcement

Any nondiscretionary duty imposed by this section

shall be enforceable in a mandamus proceeding

brought under section 1361 of Title 28.

(g) Deliberate violations

Subsection (a) of this section shall not apply with

respect to any employee who, acting without direction

from his or her employer (or the employer’s agent),

deliberately causes a violation of any requirement of

this chapter or of the Atomic Energy Act of 1954,

as amended [42 U.S.C.A. § 2011 et seq.].

STATEMENT OF THE CASE

Vera English was born in the state of Maine in 1925.

She grew up in that state, received training in the medi-

cal field, was certified as a licensed practical nurse, and

worked there in the medical field for a number of years.

She also received training ir clinical medical laboratory

technique and was certified as a medical technologist.

In 1960 Ms. English moved with her husband to Wil-

mington, North Carolina. From 1960 to 1972 she worked

in a variety of laboratory positions in hospital and medi.

eal research facilities, as well as in the area of quality

control for an aerospace firm making components for the

Apollo project. During this period she received additional

training and education in the field of chemistry and ia .

oratory procedures. In November, 1972, she was hired

by respondent General Electric to work in the Chemet

Lab at its Wilmington Nuclear Fuels Manufacturing fa-

cility, performing chemical analyses to assure the quality

of the materials in nuclear fuel rods.

Ms. English took her duties at General Electric very

seriously. The radioactive materials that she was work-

ing with not only presented a substantial safety hazard

to her and her co-workers, but also presented substantial

potential hazards to the general public once it was incor-

porated into nuclear fuel rods. Being ever conscious and

concerned about these hazards, Ms. English took seriously

her legal obligations to report potential safety and quality

problems to management and government authorities.

Prior to 1984 Ms. English had reported a number of

safety and quality concerns both to respondent’s manage-

ment personnel as well as to government officials. Those

complaints had been largely ignored and Ms. English had

been disparaged and derided as paranoid for making such

complaints. (Complaint paragraph 9) In February, 1984,

Ms. English again reported safety hazards and illegal

practices to representatives of the Nuclear Regulatory

Commission as well as to management personnel. (Com-

plaint paragraphs 10 & 12) Following these complaints

Ms. English contined to observe lax safety procedures and

substantial radiation contamination which other workers

had repeatedly left about her workplace. (Complaint para-

graphs 12, 14 & 15) As her complaints about worker

contamination had been largely ignored by management,

on March 10, 1984, Ms. English decided that the only way

she could convince management personnel of the legiti-

macy of her concerns was to not clean up some of the con-

tamination that other employees had left at her work sta-

tion so that she could show it to her supervisor. As her

supervisor would not be on duty with her until March 12,

1984, she marked off a portion of the contamination with

red tape and left it, cleaning up the remainder of the

contamination she had found. (Complaint paragraphs 16

& 17) As a result of Ms. English’s complaints and her

persistence, many of the safety concerns were ultimately

addressed and contamination in the Chemet Lab was re-

moved.

From the time that Ms. English marked the contamina-

tion on March 10, until she was able to show it to her

supervisor on March 12th, several other shifts worked in

the Chemet Lab. None of the employees on any of the

other shifts cleaned up the contamination or brought it to

the attention of their supervisors. (Complaint paragraph

17) In spite of the fact that employees on at least two

other shifts had observed the contamination and failed to

clean it up, no action of any kind was undertaken by re-

spondent with respect to any workers on those shifts.

(Complaint paragraph 27)

On March 15, 1984, Ms. English was falsely charged by

respondent with five violations of company or NRC re-

quirements. (Complaint paragraph 19) At that time she

was removed from the Chemet Lab under guard as if she

were a criminal. (Complaint paragraph 24(a)) After

an internal company appeal, all charges against Ms

English were dropped except the claim that she failed to

clean up radiation contamination. (Complaint paragraph

21) On the strength of that one allegation, and without

taking disciplinary action against other workers who had

failed to clean up the same contamination, Ms. English

was permanantly removed from her quality-control posi-

tion in the Chemet Lab, barred from any controlled area,

and given a menial “make-work” position in another build-

ing on site. (Complaint paragraph 21)

The respondent further advised Ms. English that she

would have to bid for any suitable position in the plant

that became available in a non-controlled area, and that

if she did not obtain such a position within 90 days, she

would be discharged. As no such position became avail-

able within the time limits set by respondent, Ms. English

was discharged on July 30, 1984. (Complaint paragraphs

25 & 26) During a period of at least three and a half

months leading up to her discharge, Ms. English was

never given any meaningful work, subjected to require-

ments and “rules” that were not applied to other em-

ployees, placed under constant surveillance by manage-

ment, and completely isolated from her fellow employees

to the point of not even being allowed to eat her lunch in

the compary lunch room with fellow workers. (Complaint

paragraphs 5, 21(c), 24(b), 24(c) & 26)

As a esult of respondent’s treatment of Plaintiff be-

fore her discharge, Ms. English suffered and continues to

suffer from a severely depressed and emotional condition.

(Complaint paragraphs 36, 37 & 38) Although she has

made diligent efforts to find other comp ble employ-

ment, her efforts have been unsuccessfi ‘ausing her

substantial financial difficulties. (Compla..c paragraph

35)

This action was filed on March 13, 1987, in the United

States District Court for the Eastern District of North

Carolina. It is a diversity action in which Ms. English

asserted tort claims under North Carolina law for wrong-

ful discharge and intentional infliction of emotional dis-

tress. Ms. English also asserted claims for punitive dam-

ages associated with each of the two tort claims.’

Prior to the filing of an answer, Ms. English amended

her complaint to slightly modify paragraphs 7 and 42.

1The complainé in this case was filed following an administra-

tive proceeding in which an Administrative Law Judge issued a

decision favorable to Ms. English on August 1, 1985. A copy of

that decision is included in the Appendix to this Petition. The

Secretary of Labor subsequently reversed that decision on the

grounds that Ms. English’s complaint was untimely. That deci-

sion was appealed to the Fourth Circiut, which affirmed the ruling

of “untimeliness”, but remanded the case for a ruling by the Secre-

tary on the question of whether Ms. English might be entitled to

establish a claim on the theory of continuing violation. English v.

Whitfield, 858 F.2d 957 (4th Cir. 1988). That issue is currently

before the Secretary and has been briefed by the parties.

Essentially concurrent with the DOL proceeding, Ms. English

filed a petition with the Nuclear Regulatory Commission under 10

CFR Part 2.206, asking that penalties and damages be assessed

against General Electric. The NRC has recently issued an order

in that matter, citing General Electric for penalties, but rejecting

any compensation for Ms. English. That decision is also contained

in the Appendix to this Petition.

On or about May 5, 1987, without filing an answer,

respondent moved to dismiss the Complaint pursuant to

Federal Rules 12(b) (1) and 12(b) (6). On May 7, 1987,

respondent similarly moved to dismiss the Amended Com-

plaint.

On February 12, 1988, the Honorable F.T. Dupree, Jr.,

entered an Order ruling on respondent’s motion. In that

Order Judge Dupree concluded that Ms. English had not

stated a good cause of action for wrongful discharge,

and granted petitioner’s motion pursuant to Rule 12(b)

(6) with respect to that claim (Appendix, p. 25a) ; how-

ever, Judge Dupree concluded that Ms. Fnuglish had

stated a good cause of action for intentional infliction of

emotional distress, and denied respondent’s Rule 12(b)

(6) motion with respect to that claim. (Appendix, p.

27a) Judge Dupree also analyzed the impact of Section

210 of the Energy Reorganization Act, 42 USC Section

5851, and concluded that that provision was an exclusive

remedy for Ms. English, preempting all of her state tort

claims. He therefore granted respondent’s motion pursu-

ant to Rule 12(b) (1) with respect to both tort claims.

(Appendix, p. 29a)

From this Order and Judgment Ms. English filed a

timely notice of appeal to the Fourth Circuit Court of

Appeals, pursuing an appeal solely with respect to her

claim for intentiona! infliction of emotional distress; re-

spondent cross-appealed.

On April 3, 1989, the Fourth Circuit issued its decision

in this matter. It rejected respondent’s cross-appeal and

affirmed the ruling that Ms. English had stated a good

cause of action for intentional infliction of emotional dis-

tress. However, the Court also affirmed the ruling that

Ms. English’s state tort claim was preempted by the

“whistleblower” provisions of the Energy Reorganization

Act, 42 USC Section 5851.

On April 14, 1989, Ms. English filed a timely Petition

for Re-Hearing with the Fourth Circuit. By order of

April 28, 1989, that Petition was denied. (Appendix, pp.

4a-5a)

REASONS WHY THE WRIT SHOULD BE GRANTED

A. The Decision Below Conflicts With The Respect For

The Rights Of States As Reflected In Farmer v. United

Brotherhood of Carpenters, 430 U.S. 290. (1977), Lingle

v. Norge Division of Magic Chef, 486 U.S. —— (1988)

and San Diego Building Trades Council v. Garmon,

359 U.S. 276 (1959).

A cause of action for intentional infliction of emotional

distress was first expressly recognized by North Carolina

courts in Stanback v. Stanback, 297 N.C. 181, 254 S.E.2d

611, 623 (1979), a case involving the breach of a separa-

tion agreement. While Stanback may have been the first

case that express!y recognized the claim, the court dis-

cussed in detail earlier cases that clearly were grounded

in such a theory (254 S.E.2d at 622). In Kirby v. Jules

Chain Stores Corp., 210 N.C. 808, 188 S.E. 625 (1936),

the defendant’s collection agent verbally abused plaintiff

in a “profane and malicious manner” on at most two oc-

casions. These actions were found sufficient to create a

claim. Similarly, in Crews v. Provident Finance Co., 271

N.C. 684, 157 S.E.2d 381 (1967), the plaintiff alleged

that she was verbally abused on one occasion by a collec-

tion agent, and she became angry and upset as a result

of this single instance of abuse. Again, these facts were

sufficient to support her claims.* Thus claims like those

2 At least part of these holdings seem to rely on the particular

condition or susceptibility of the plaintiff. In Kirby the plaintiff

was seven months pregnant at the time she was verbally abused.

In Crews the plaintiff was apparently susceptible to angina at-

tacks and did suffer such an attack as a result of the abuse. The

condition or “susceptibility” of Ms. English supports her claim

that Defendant’s actions towards her were highly outrageous.

In the hearing before the Administrative Law Judge, General Elec-

tric contended “. . . that Ms. English was a high strung, nervous

made by Ms. English have been recognized by North

Carolina courts for more than 50 years.

The concern of North Carolina addressed through a

tort action for intentional infliction of emotional distress

is to prevent maliciously destructive and disruptive con-

duct towards North Carolina’s citizens. As stated by

Judge Phillips in Woodruff v. Miller, 64 N.C.App. 364,

307 S.E.2d 176, 178 (1983) :

Fortunate it is for our people and society that such

maliciously destructive and disruptive conduct is re-

garded as extreme and outrageous—rather than nor-

mal and acceptable—and that our law provides an

orderly way for the community to disapprove of it

and compensate those victimized by it.

As recognized by Judge Dupree and affirmed by the

Fourth Circuit, this same type of claim, addressing the

same state concern about conduct towards its citizens,

has been recognized by the North Carolina courts in the

employment situation. Dixon v. Stuart, 85 N.C.App. 338.

354 S.E.2d 757 (1987). It is such outrageous conduct of

respondent . wards Ms. English that violates North Caro-

lina’s strong state interest in providing Ms. English with

the remedy she is attempting to address in the present

action.*

The decision below conflicts with this Court’s unani-

mous decision in Farmer v. United Brotherhood of Car-

penters, 430 U.S. 290 (1977), that a tort action for in-

woman with marked and emotional! reactions . . .” (Appendix, p.

41a), and “. . . that Complainant was wn unusually excitable in-

dividual. . .”. (Appendix, p. 42a) Thus respondent certainly had

knowledge that Ms. English would be susceptible to the harassment,

surveillance and ridicule that it directed towards her, thereby mak-

ing its actions even more outrageous. Hence, Ms. English’s claim

for punitive damages—which even the district court acknowledged

was not a form of remedial relief available under the whistleblower

provisions of section 210 (Appendix, at p. 18a)—was well stated in

her tort complaiut.

3 As found by the Administrative Law Judge, Ms. English was

subjected to an “inquisition”. (Appendix, p. 43a)

tentional infliction of emotional distress is not pre-

empted by the National Labor Relations Act. Farmer

indicates that a court should examine the state’s interest

in regulating the conduct in question, when considering a

question of preemption. 430 U.S. 297. In addition, the

decision recognizes the importance of regulating out-

rageous conduct, as North Carolina does in the tort of

infliction of emotional distress.

Regardless of whether the operation of the hiring

hall was lawful or unlawful under federal statutes,

there is no federal protection for conduct . . . which

is so outrageous that “no reasonable man in 2 civ-

ilized society should be expected to endure it.” Thus

... permitting the exercise of state jurisdiction over

such complaints does not result in state regulation of

federally protected conduct.

430 U.S. at 302 (citations omitted). The same concerns

expressed by this Court in Farmer apply in the present

case.

Judge Dupree concluded that Section 210 of the ERA,

by itself, constitutes a scheme so pervasive and compre-

hensive with respect to nuclear workers’ protection that

it preempts state tort actions of whatever sort. Appendix,

p. 22a) Plaintiff does not agree with this conclusion,

and asserts that the legislative history does not support

it. But even if Judge Dupree is correct, Farmer clearly

allews a state to supplement the! federal remedies, given

a compelling state interest, and as long as such “supple-

mentation” does not conflict with the federal statute.

Judge Dupree recognized that such an exception to pre-

emption existed under Farmer, but rationalized that

Farmer did not apply primarily because there was an

overlapping of state and federal remedies:

In this action, plaintiff has a federal remedy in Sec-

tion 210. That Section specifically addresses “other

discrimination” and provides for compensatory dam-

ages in the case of a violation.”

(Appendix, p. 28a)

However, Judge Dupree’s rationale has been speci-

cally rejected by this Court’s recent decision in Lingle

v. Norge Division of Magic Chef, 486 U.S. ——, 100

L.Ed.2d 410 (1988) (Decided after Judge Dupree’s

decision in this case). The issue in Lingle was whether

a state action for wrongful discharge was preempted by

the National Labor Relations Act. There was almost

total overlap of the damages available to the plaintiff

in Lingle; and in fact, at the time the case was heard

by this Court, plaintiff had filed a grievance under the

collective bargaining agreement and had already re-

ceived full back pay and reinstatement through that pro-

ceeding. 486 U.S. at , 100 L.Ed.2d at 416. Those

factors notwithstanding, this Court concluded that the

state action constituted a “separate font” of substantive

rights that were not preempted by federal law. 486

U.S. at ——, 100 L.Ed.2d at 422. For similar reasons,

Lingle would require reversal of the decision below to

afford Ms. English the right to pursue her separate, non-

federal claims.

This Court has consistently expressed deference to the

concerns and enactments of the states, finding pre-

emption only where Congress has clearly and expressly

occupied the entire field, or where there is an actual

conflict with federal law. This respect for the rights

of the states has been especially evident in the employ-

ment area.* As this Court has stated in San Diego

Building Trades Council v. Garmon, 359 U.S. 236, 243

(1959) :

4 See, e.g., Automobile Workers v. Russell, 356 U.S. 634 (1958)

(State action for assault not preempted.); Linn v. Plant Guard

Workers, 383 U.S. 53 (1966) (State action for malcious libel not

preempted.) ; Sears Roebuck Co. v. Carpenters, 436 U.S. 180 (1978)

(State action for trespass not preempted.); Belknap v. Hale, 463

U.S. 491 (1983) (Common law action for fraud and breach of an

employment contract not preempted.) ; Fort Halifax Packing Com-

pany v. Coyne, 482 U.S. , 96 L.Ed.2d 1 (1987) (State statute

requiring employers to provide severance pay to employees in the

event of a plant closing, not preempted by ERISA or NLRA.).

Due regard for the presuppositions of our embracing

federal system, including the principle of the diffusion

of power not as a matter of doctrinaire localism but

as a matter of democracy, has required us not to find

withdrawal from the States of power to regulate

where the activity regulated was a merely peripheral

concern of the federal regulation.

Outrageous conduct inflicting severe emotional distress

was, at best, a peripheral concern of Section 210 of the

ERA. Under the decisions of this Court, North Carolina

should not be precluded by Section 210 from protecting

its citizens from such conduct, and Ms. English should

be allowed to proceed to trial on her state tort claims.

B. The Decision Below Conflicts With The Holding Of

This Court In California Coastal Commission ov.

Granite Rock Co., 480 U.S. 572 (1987).

The lower court preempted state tort law on the ground

that there was an “irreconcilable conflict between the

federal and state standards” concerning employee rela-

tions at commercial nuclear facilities, and that this con-

flict would “frustrate the objectives of federal law.”

(Appendix, p. 19a) In making these findings the lower

court turned the law of federal preemption on its head.

The lower court essentially looked at the language of

Section 210 of the Energy Reorganization Act, and par-

ticularly at 42 USC Section 5851(g), and articulated

three hypothetical circumstances in which Section 210

and state law might possibly conflict. But nothing in

the record supported a finding that such conflicts actually

existed-—particularly since this matter was before the

court on a Rule 12(b) (6) motion. Hence, the holding

below that Ms. English’s claims were preempted was

based solely on the hypothetical possibility that state-

federal conflicts may exist; end that approach was con-

trary to the legal standard which should have been

applied.

— at lea

In California Coastal Commission v. Granite Rock Co.,

480 U.S. 572 (1987) this Court articulated the correct

standard for applying such hypothetical reasoning to pre-

emption cases:

“To defeat Granite Rock’s facial challenge [that the

Coastal Commission’s actions were preempted], the

Coastal Commission needed mereiy to identify a

possible set of permit conditions not in conflict with

federal law.” ,

480 U.S., at 593 (Emphasis added).

Hence, the party attempting to find preemption may

not rely on hypothetical circumstances to justify pre-

emption; rather, to defeat a preemption challenge a party

need only “identify a possible” set of “conditions not in

conflict with federal law.” The s.andard enunciated in

California Coastal Commission provides the only logical

rationale. Since hypothetically virtually every state law

could be arguably found to conflict with federal law, the

decision below invites imaginative preemption advocates

to rg bases for totally engulfing and abolishing states’

rights.

Thus, under the rationale and ruling of the lower

court that Section 210 is the exclusive remedy for em-

ployees at Gereral Electric’s fuel processing plants, those

employees ar, now presumably denied any of the pro-

tections of the following North Carolina statutes:

N.C.Gen.Stat. Section 143-422.2

prohibition against discrimination in employment on

the basis of race, religion, color, national origin, age

or sex.

N.C.Gen.Stat. Section 97-6.1

protection from retaliation for filing a worker’s com-

pensation claim.°®

5In Lingle, supra, this Court expressly disallowed a company’s

preemption defense, and authorized a worker’s state compensatory

and punitive damage action to proceod, whcre the claimed basis for

the worker’s tort damages were bottomed on a comparable provision

N.C.Gen.Stat. Section 95-130 (8)

protection from retaliation for filing a complaint un-

der the North Carolina Occupational Safety and

Health Act.

N.C.Gen.Stat. Section 95-25.20

protection from retaliation for filing a complaint ur-

der the North Carolina Wage and Hour Act.

N.C.Gen.Stat. Sections 96-15.1 and 15.2

protection from retaliation for being a witness in an

unemployment compensation hearing.

N.C.Gen.Stat. Chapter 168A

protection from discrimination in employment on the

basis of being handicapped.

While the lower court’s decision does not expressly

preempt the state laws cited above, the rationale of that

decision certainly compels such a conclusion. As noted,

it is an easy task to construct hypothetical situations

involving each of these state statutes that might possibly

conflict with the provisions of Section 210 of the ERA,

and thus support preemption under the lower court’s rul-

ing. Indeed, there is certainly nothing to clearly distin-

guish the preemption of Petitioner’s state tort claim for

intentional infliction of emotional distress, from each of

these state statutes affecting the employer-employee re-

lationship.

We stress that there are no facts on the record in this

ease which actually show that Ms. English’s claims con-

flict with, or would in any way frustrate, the purposes

of any federal law. As this Court stated in California

Coastal Commission:

. . . we hold only that the barren record of this

facial challenge has not demonstrated any conflict.

We do not, of course, approve any future application

of the Coastal Commission permit requirement that

in fact conflicts with federal law.

480 U.S. 594 (emphasis added).

of Illinois law protecting workers against retaliatory discharge for

filing worker’s compensation claims.

ee ae

SOR ne, ee Oe omen oR od el ae ma oe

The important power of the states to articulate their

own body of law should not be discarded on the mere pos-

sibility that a facial challenge could be made, or that a

court might interpret state law in such a manner as to

conflict with federal law. The courts of North Carolina

must be free to develop their own tort law in cases such

as this. Federal courts, sitting in diversity, can reason-

ably predict the rules of law that the courts of North

Carolina will adopt. And given the strong recognition

that North Carolina’s courts have afforded to claims of

infliction of emotional distress in fashioning the state’s

tort remedies, the court below should have given cogni-

zance, as well as equal accommodation, to both the Su-

premacy Clause of the U.S. Constitution and the law of

the State of North Carolina, and found that Ms. English’s

tort claims do not irreconcilably conflict with 42 USC

section 5851(g).

C. The Decision Below Conflicts With The Holding Of

This Court In Decanas v. Bica, 424 U.S. 351 (1976).

Decanas was an action to enforce a California statute

prohibiting the employment of undocumented alien farm-

workers. The issue before the Court was whether the

state statute was preempted by the Immigration Act.

The argument for preemption was especially strong in

this situation as the “Power to regulate immigration is

unquestionably exclusively a federal power.” 424 U.S.

at 354.

In upholding the California statute, this Court recog-

nized that “States possess broad authority . . . to regu-

late the employment relationship to protect workers

within the State.” 424 U.S. at 356. Thus this Court

concluded that the statute was valid, even in the face of

the unequivocally exclusive federal power in the area

of immigration, and “. . . even if such local regulation

has some purely speculative and indirect impact on

immigration....” 424 U.S. at 355.

As set forth above, North Carolina has recognized the

tort of infliction of emotional distress in the eniploy-

ment situation. Dixon, supra. North Carolina has done

so to protect its citizens and workers from outrageous

conduct by employers. The protection of North Carolina’s

workers from such outrageous conduct is surely of suf-

ficient concern to bring it within the “broad authority”

of the State recognized by this Court in Decanas; and

certainly beyond an assault based solely on some purely

speculative and indirect impact on Section 210 of the

ERA.

The court in Decanas also indicated that in the con-

text of the employment relationship, considerable def-

erence should be given to the power and rights of states,

and that preemption is required in only the most clear

and extreme cases:

Only a demonstration that complete ouster of state

power—including state power to promulgate laws not

in conflict with federal laws—was “the clear and

manifest purpose of congress” would justify that con-

clusion.

424 U.S. at 357 (citation omitted). Hence, as there is

nothing to show such a “clear and manifest purpose”

to oust state power in the area of state damage actions

based on state tort laws, the decision below should be

reversed and Ms. English’s claim for emotional distress

should be allowed to proceed to trial.

D. The Decision Below Conflicts With This Court’s De-

cision In Pacific Gas and Electric Co. v. Energy Re-

sources Commission, 461 U.S. 190 (1981), And Silkwood

v. Kerr McGee Corp., 464 U.S. 238 (1984).

The two cases decided by this Court in the field of

atomic energy confirm that Ms. English’s claim for in-

fliction of emotional distress is not preempted.

Pacific Gas and Electric v. Energy Resources Com-

mission, 461 U.S. 190 (1983), required this Court to

<del er Sh om kere

ieee

determine whether the Atomic Energy Act preempted

state law prohibiting the certification of new nuclear

plants until a technology for the disposal of nuclear

wastes existed. In analyzing that question, this Court

concluded that the federal government has preempted

the entire field of nuclear safety, preventing any state

regulation or “supplementation” of that field. 461 U.S.

at 212. it the same time, the Court found that where

state (California) legislation relating to the nuclear in-

dustry had an economic, rather than nuclear safety

purpose, such state law was not preempted. 461 U.S.

at 216. Tne argument that the state statute conflicted

with the federal statutes and regulations was also re-

jected, because compliance with both the state and fed-

eral statutes was possible. 461 U.S. at 219.

Likewise in Silkwood v. Kerr McGee, 464 U.S. 238

(1984), this Court upheld a state tort action for dam-

ages arising out of exposure to radiation as a result of

inadequaie nuclear safety procedures. In spite of the

implication of nuclear safety issues in Silkwood, and the

complete federal preemption of that field recognized in

Pacific Gas and Electric, supra, this Court concluded

that a state claim for compensatory or punitive damages

was not preempted. The conclusion was that preemp-

tion would exist only if a very stringent test were met:

. . « preemption should not be judged on the basis

that the Federal Government has so completely oc-

enpied the field of safety that state remedies are

foreclosed but on whether there is an irreconcilable

conflict between the federal and state standards or

whether the imposition of a state standard in a dam-

age action would frustrate the objectives of the

federal law.

464 U.S. at 256.

Judge Dupree correctly concluded in the decision below

that Section 210 is not a statute regulating nuclear

safety concerns, and thus absolutely “preempting” under

Pacific Gas and Electric, but one primarily focused on

employee protection and employee-employer relations.

(Appendix, p. 19a) Yet he found preemption based on

inference: that Section 210 itself is a scheme of regula-

tion “so pervasive as to make reasonable the inference

that Congress left no room for the States to supplement

it.” (Appendix, pp. 22-23a) And Judge Dupree then built

upon this inferential conclusion by hypothesizing “con-

flicts” between Section 210 and the state action, to meet

the Silkwood requirement of an “irreconcilable conflict”

between state and federal standards. (Appendix, pp.

19-22a)

The conflicts hypothesized by Judge Dupree cannot

support a claim of preemption under this Court’s deci-

sions. Given that North Carolina’s action for infliction

of emotional distress is concerned with regulating out-

rageous conduct toward its citizens (Woodruff, supra),

and has nothing whatsoever to do with regulating nu-

clear power or nuclear safety, it is clear that, under

Pacific Gas and Electric and Silkwood, a case for pre-

emption does not exist.

E. There Is Conflict Among The Courts Concerning The

Preemption Of State Claims By Federal Employment

Statutes.

This Court should grant this Petition and take juris-

diction of this case to provide guidance to state and

federal courts on the issue of preemption of state claims

by federal “whistle-blowers” and in the employment re-

lations contexts.

Section 219 is not the only federal “whistleblower”

statute. There are at least seven such statutes, having

similar and often identical provisions. Kohn, Protecting

Environmental and Nuclear Whistleblowers (1985). De-

~ dd

ake ee

a 2 eR a lS ee

cisions on the issue of preemption under these various

acts are conflicting, requiring guidance from this Court

to bring some order and uniformity in this area. Like-

wise, decisions on the issue of preemption under the

NLRA suggest a conflict with the decision below, also

requiring this Court’s guidance.

With respect to Section 210, two federal district courts

and two state supreme courts addressed the issue of

preemption in reported decisions prior to the publication

of the decision in this case. In Stokes v. Bechtel North

American Power Corp., 614 F.Supp. 732 (N.D.Cal.

1985), the court concluded that a state wrongful dis-

charge claim was not preempted by Section 210. How-

ever, in Snow v. Bechtel Construction, 647 F.Supp. 1514

(C.D.Cal. 1986), the court concluded that a state claim

for wrongful discharge was preempted.

In Wheeler v. Caterpillar Tractor Co., 108 Ill.2d 502,

485 N.E.2d 372 (1985), cert. den., 475 U.S. 1122 (1986),

the Illinois Supreme Court concluded that a state wrong-

ful discharge claim was not preempted by Section 210.

The Kansas Supreme Court has recently reached a con-

trary conclusion. Chrisman v. Phillips Industries, Inc.,

242 Kan. 772, 751 P.2d 140 (1988).

The four decisions just cited all involved claims for

wrongful discharge, not other common law torts. The

present case is the only case of which Petitioner is aware

where essentially all forms of state torts were deemed

preempted by Section 210. In contrast, Norris v. Lum-

berman’s Mutual, 687 F.Supp. 699 (Mass. 1988), con-

cluded that while retaliatory discharge claims were pre-

empted by Section 210, a claim for tortious interference

with contract could proceed.

The decision below also conflicts with the rationale and

general trend in cases arising in the employer-employee,

labor relations context. Thus a number of courts have

held, in contrast to Judge Dupree’s and the Fourth Cir-

cuit’s decision in this matter, that claims based on state

statutes or torts are not preempted. See, ¢.g., Baldrac-

chi v. Pratt & Whitney, 814 F.2d 102 (2nd Cir. 1987)

(Retaliation claim under Connecticut workers’ compen-

sation law not preempted.); Keehr v. Consolidated

Freightways, 825 F.2d 133 (7th Cir. 1987) (Claims for

invasion of privacy and infliction of emotional distress

not preempted.) ; Paige v. Henry J. Kaiser Co., 826 F.2d

857 (9th Cir. 1987) (Action for wrongful discharge

founded on state occupational safety and health law not

preempted.) ; Local No. 57 v. Bechtel Power Corp., 834

F.2d 884 (10th Cir. 1987) (Blacklisting claims under

state law not preempted.); Miller v. AT&T Network

Systems, 850 F.2d 543 (9th Cir. 1988) (Claim for dis-

crimination under state handicapped law not pre-

empted.); Smolarek v. Chrysler Corp., 858 F.2d 1165

(6th Cir. 1988) (Claims for handicapped discrimination

under state law and retaliatory discharge not pre

empted.); and Merchant v. American Steamship Co., 860

F.2d 204 (6th Cir. 1988) (Wrongful discharge claim

not preempted. ).

CONCLUSION

Two different federal administrative agencies have

concluded that Ms. English was treated outrageously and

unfairly by General Electric, yet she has received no

compensation for the very serious wrongs she has suf-

fered. As set forth above, the decisions below are incon-

sistent with this Court’s decisions on preemption gen-

erally, and more specifically with its decisions in the area

of employment relations. For the reasons set forth

above, Petitioner respectfully requests that the Court

grant this Petition and issue its writ of certiorari to the

United States Court of Appeals for the Fourth Circuit

to review the opinion of that court in Petitioner’s case.

Respectfully submitted this the 27th day of July, 1989.

Of Counsel:

M. TRAVIS PAYNE

EDELSTEIN, PAYNE & NELSON

P.O. Box 12607

Raleigh, N.C. 27605

(919) 828-1456

ARTHUR M. SCHILLER

Attorney at Law

21 DuPont Circle, N.W.

Suite 401

Washington, D.C. 20036

(202) 857-5658

Counsel for Petitioner

APPENDIX

a -» a

: + ae :

APPENDIX TABLE OF CONTENTS

Page

Opinion of the Court of Appeals ‘ 1-3a

Order of the Court of Appeals Denying Petition for

EET APE RIE Ei SS Ft SER oe a 4-5a

Opinion and Order of the District Court —................. 6-29a

Decision of the Administrative Law Judge in English

v. General Electric, 85-ERA-0002 (August 1, 1985) .. 30-56a

Order of the Nuclear Regulatory Commission in

Docket No. 70-1113 (March 13, 1989) ....00.. oo... 57-58a

APPENDIX

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

} No. 88-3976

VERA M. ENGLISH,

Plaintiff-A ppellant

versus

GENERAL ELECTRIC COMPANY,

Defendant-A ppellee

GOVERNMENT ACCOUNTABILITY PROJECT,

Amicus Curiae

No. 88-3982

VERA M. ENGLISH,

Plaintiff-A ppellee

versus

GENERAL ELECTRIC COMPANY,

Defendant-A ppellant

GOVERNMENT ACCOUNTABILITY PROJECT,

Amicus Curiae

Appeal from the United States District Court

for the Eastern District of North Carolina, at Wilmington

Franklin T. Dupree, Jr,

Senior District Judge— (CA-87-31-7-CIV)

Argued: December 5, 1988 Decided: April 3,1989

Before RUSSELL, WIDENER, and HALL, Circuit

Judges.

M. Travis Payne (EDELSTEIN AND PAYNE; Mozart

G. Ratner, on br’-f) for Appellant/Cross-Appellee. Peter

G. Nash (Di-ue L. Atwater, OGLETREE, DEAKINS,

NASH, SMOAK AND STEWART; William W. Sturges,

WEINSTEIN & STURGES, on brief) for Appellee/

Cross-Appellant. (Stephen M. Kohn, Michael D. Kohn,

GOVERNMENT ACCOUNTABILITY PROJECT, on

brief) for Amicus Curiae.

PER CURIAM:

In this diversity action, Vera M. English appeals the

district court’s order dismissing her complaint on the

ground that her state tort claim was preempted by fed-

eral law. The defendant, General Electric Company

(“G.E.”), eross-appeals from the district court denial of

its motion to dismiss English’s claim on the alternative

ground that such claim failed to state a cause of action

under North Carolina law. Finding no error, we affirm.

English was «ployed by G.E. as a laboratory tech-

nician at a nuc.** fuel production facility in North

Carolina. In Februs y, 1984, she complained to both the

Nuclear Regulatory Commission (“NRC”) and her super-

visors at the G.E. facility regarding what she believed to

be serious violations of NRC safety standards. When no

corrective action was taken, she deliberately failed to

clean up radiation contamination at her work station in

an effort to prove to her supervisor that such contamina-

tion was not being detected by the facility’s safety in-

spectors. Although her efforts led to corrective action,

she was disciplined by the company for her failure to

clean up contamination of which she was aware. It is

the measures allegedly taken by G.E. t« discipline her

that formed the basis fur her tort claim of intentional

infliction of emotional distress.’

1 English’s complaint also included a state tort claim for wrong-

ful discharge; she has not, however, appealed the district ccurt’s

dismissal of this claim.

The district court held that English had, under North

Carolina law, stated a good cause of action for the tort

of intentional infliction of emotional distress. However,

the court further determined that the “whistleblower”

provisions of the Energy Reorganization Act (“ERA”),

42 U.S.C. § 5851, were intended by Congress to constitute

the sole remedy for nuclear facility employees who allege

discrimination resulting from safety complaints and,

therefore, English’s state claim was preempted by the

federal statute. On appeal, English cortends that the

lower court erred in ruling that Congress intended to

foreclose whistleblowers from state tort remedies. In its

cross-appeal, G.E. contends that English’s allegations did

not amount to the tort of istentional infliction of emo-

tional distress and therefore, that the court erred in

denying G.E.’s motion to dismiss on the alternative Fed.

R. Civ. P. 12(b) (6) ground.

Upon ful! consideration of the record, briefs, and oral

argument, we conclude that the lower court correctly

determined that English stated a claim but that the

claim was preempted by the ERA’s “whistleblower” pro-

visions. The district court’s opinion has correctly iden-

tified and applied the relevant federal and state law.

We therefore affirm the order dismissing the complaint

for the reasons expressed by the district court. English

v. General Electric Co., 683 F. Supp. 1006 (E.D. N.C.

1988) .?

Affirmed

2 We have also had occasion to examine English’s claim in the

context of a complaint filed with the United States Department of

Labor pursuant to the ERA’s whistleblower provisions. On appeal

to this court from the agency’s dismissal of her claim as being

time-barred, we held that a claim for “retaliatory harassment” is

cognizable under the ERA and that compensatory damages are

available. The case was remanded to the Secretary of Labor for

consideration of Enylish’s retaliatory harassment claim. English

v. Whitfield, 858 F.2d 957 (4th Cir. 1988).

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 88-3976

VERA M. ENGLISH,

Plaintiff-Appellant

GENERAL ELECTRIC COMPANY,

Defendant-A ppellee

GOVERNMENT ACCOUNTABILITY PROJECT,

Amicus Curiae

No. 88-3982

VERA M. ENGLISH,

Plaintiff-A ppellee

Vv.

GENERAL ELECTRIC COMPANY,

Defendant-A ppellant

GOVERNMENT ACCOUNTABILITY PROJECT,

Amicus Curiae

On Petition for Rehearing with Suggestion

for Rehearing In Banc

ORDER

[Filed April 28, 1989]

The appellant/cross-appellee’s petition for rehearing

and suggestion for rehearing in banc were submitted to

chis Court. As no member of this Court or the panel

requested a poll on the suggestion for rehearing in banc,

and as the panel considered the petition for rehearing

and is of the opinion that it should be denied, IT IS

ORDERED that the petition for rehearing and sugges-

tion for rehearing in bane are denied.

Entered at the direction of Judge Hall, with the con-

currence of Judge Russell and Judge Widener.

For the Court,

/s/ John M. Greacen

Clerk

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF

NORTH CAROLINA

WILMINGTON DIVISION

No. 87-31-CIV-7

VERA M. ENGLISH,

Plaintiff

vs.

GENERAL ELECTRIC COMPANY,

Defendant

ORDER

[Filed Feb. 12, 1988]

Plaintiff, Vera M. English, filed this diversity action

against defendant, General Electric Company (GE), al-

leging common law causes of action for wrongfu! dis-

charge in violation of public policy and intentional :n-

fliction of emotional distress. As relief plaintiff seeks

$1,328,645 in compensatory damages and punitive dam-

ages in the amount of five percent of the net worth of

defendant GE (or approximately $2.3 billion). The ac-

tion is before the court on defendant’s motion pu~suant

to Rule 12 of the Federal Rules of Civil Procedure to

dismiss the instant complaint on the grounds that the

alleged causes of action are preempted by federal law

such that the court lacks jurisdiction over the subject

matter and the plaintiff has failed to state causes of

action under North Carolina law upon which relief can

be granted. F.R.Civ.P. 12(b) (1) and (6). For the rea-

sons which follow, defendarit’s motion pursuant te Rule

12(b)(1) as to the entire complaint will be granted.

Further, defendant’s 12(b) (6) motion will be granted as

an alternative basis for dismissal only as to plaintiff’s

claim for wrongful discharge.

When confronted by a motion to dismiss a complaint

must be construed in the light most favorable to the

plaintiff and its allegations taken as true. Jenkins v.

McKeithen, 395 U.S. 411, 421 (1969). “[A] complaint

should not be dismissed for failure to state a claii unless

it appears beyond doubt that the plaintiff can prove no

set of facts in support of his claim which would entitle

him to relief.” Conley v. Gibson, 355 U.S. 41, 45-46

(1957) (footnote omitted). The factual allegations upon

which defendant GE’s motion to dismiss must be resolved,

as taken from the complaint, are as follows:

I. FACTUAL ALLEGATIONS

Fron ‘uvember 13, 1972 until March 15, 1984, plain-

tiff Engiish was employed as a radiation laboratory

technician in the Chemical Metallurgical Laboratory

(Chemet Lab) of defendant’s GE’s Nuclear fuel Manu-

facturing Department (NFMD) in Wilmington, North

Carolina. At the NFMD nuclear fuel is produced using

radioactive materials, principally uranium. As a source

of quality control the Chemet Lab performs metallurgi-

cal, environmental, chemical and spectrographic analyses

on small uranium samples to assure that standards of

the Nuclear Regulatory Commission (NRC) are met.

Plaintiff’s job consisved of assuring an accurate measure

of uranium in ( 2’s uranium powder fuel pellets.

In February 1984 plaintiff began taking action to cor-

rect what she perceived as serious violations of safety

standards at GE’s NFMD. On February 13, 1984, plain-

tiff reported to the NRC that many safety hazards and

illegal practices were present in the Chemet Lab, and

that corrective action had not been taken even though

GE had been made aware by her of similar hazards and

practices in the Lab. On February 24, 1984, plaintiff for-

warded essentially the same complaints to Mr. E. A. Lees,

the Quality Assurance Manager (later General Manager)

of GE’s NFMD.

During the period of March 5-9, 1984, plaintiff spent

considerable work time cleaning up radiation contamina-

tion at and around her work station, apparently left

there by workers on preceding shifts. On March 5 plain-

tiff asked a “Rad Safety” man (specifically trained

personnel who, using special instruments, detect uranium

contamination) to check out her work area to see whether

he would discover the pile of contaminated nuclear mate-

rials she had collected and swept to the rear of her work

table. The man declared plaintiff’s area free of contami-

nation. At the end of her shift plaintiff cleaned up the

pile of contaminated matter which the Rad Safety man

had not detected. At the conclusion of her work shift

on March 10 plaintiff:

decided that the only way to convince management

of the validity of her concerns about the dangerous

conditions in the Chemet Lab and of other workers’

failure[sj to follow safety procedures, charges she

had raised before without GE properly responding,

was to identify some of the areas of radiation con-

tamination with red tape (used to mark off radiation

hot spots) and have her regular supervisor, Mr. Wil-

liam Lacewell, see the conditions when he and she

were next on duty, which would be on the evening of

March 12.

Complaint {| 16.

Upon beginning her shift on March 12, 1984, English

showed her super’ivor the marked-off areas of contamina-

tion, areas which were undisturbed by interim shift

workers. Plaintiff wlso informed her supervisor of the

Rad Safety man’s failure to detect contamination on her

work bench on March 5. Following plaintiff’s discussion

parts of the Chemet Lab were shut down whereby many

of the safety problems identified by English were fixed

and the contaminated areas were cleaned.’ Jd. {| 18.

In a letter dated March 15, 1984, GE charged plaintiff

with several violations of GE and/or NRC requirements,

including: (1) unauthorized removal of a_ personal

nuclear survey instrument from the entrance to the labo-

ratory for use elsewhere in the plant; (2) deliberate

contamination of a table; (3) failure to clean up con-

tamination, knowing it existed; (4) the continued distrac-

tion of other laboratory employees; and (5) disruption of

normal laboratory activities. Plaintiff alleges that “GE

management conspired to fraudulently charge that Mrs.

English violated GE safety rules and criminal statutory

prohibitions which they knew did not exist or the viola-

tion of which they knew did not occur.” Ju. § 31. Accord-

ing to English, all charges save No. 3 were dropped

“because they were deemed demonstrably false or not

capable of substantiation.” Jd. { 20. As punishment for

charge No. 3, GE removed plaintiff from the Chemet Lab

under guard “as if she were a criminal[,] exposing her

to the contempt and ridicule of fellow employees,” id.

{| 24; barred her entry into the Chemet Lab or from em-

ployment in or entry to any controlled areas in the

NFMD, id. { 21; and indefinitely assigned her to menial

“make work” in Building “J” and the Central Stores

Warehouse, id. According to plaintiff, “[{i]nternal man-

agement documents establish that the purpose of these

measures was to punish Mrs. English for what manage-

ment termed her ‘subversive’ activity and to prevent

Mrs. English from continuing to obtain evidence to prove

that management was failing adequately to police com-

1 On a somewhat contradictory note plaintiff alleges that “[p]rior

to March 15, 1984, Mrs. English’s complaints to management had

been ignored by management and management had disparaged

and derided her as paranoid.” Complaint { 9.

10a

pliance with NRC safety and quality regulations.” Jd.

{ 22. In addition to the punishment imposed upon charge

No. 3, English was watched constantly by a member of

management from a desk overlooking hers in Building J.

isolated from her fellow workers, “and not even per-

mitted to each lunch in the company lunch room with

them. Jd. {| 24.

On April 39, 1984, GE’s management informed

English that she would have to “bid” for a position in the

NFMD, other than in the Chemet Lab or other controlled

area, and if no position was available within ninety days

she would be placed on a ‘lack of available work’ status.”

Eighty-nine days later, on July 29, 1984, plaintiff was

sent home to change into safety shoes “although plant

rules did not require that anyone in the area in which

she was working wear safety shoes.” Id. 26. The next

day, July 30, 1974, having obtained no other position,

GE fired English. Since her discharge plaintiff has been

unable to find acceptable employment and has been

impoverished. Id. {| 35.

Plaintiff alleges GE’s actions were intended to teach

her a lesson and make an example out of her because

she raised safety concerns, “the resolution of which

caused, was causing and would continue to cause delay

in production at the GE plant, embarrass GE with its

principal regulator, the NRC, and encourage other

employees to observe, prove and report GE’s sloppy and

potentially dangerous safety procedures.” Id. { 29.

According to English, GE’s treatment of her was “clearly

discriminatory” because no investigation was undertaken

with respect to any workers on shifts between March 10

and 12 (when plaintiff had marked off contaminated

areas) and because similar failures to clean up con-

tamination by other employees had “never resulted in the

kind and severity of disciplinary treatment meted out

by GE to Mrs. English.” Id. { 27.

Se ee et ee te ee

lla

In Count 1 of the complaint plaintiff alleges her dis-

charge by SE was wrongful and “in violation of the

strong public policies embodied in the laws of the United

States, which encourage and require safe operation of

nuclear facilities and require workers to report potential

violations of NRC regulations.” Jd. 1] 41-42. In Count

2 plaintiff alleges her discharge constituted a “gross,

wanton an’ reckless violation of public policy and dis-

regard of her rights, and was done with actual malice

entitling her to punitive damages against GE.” Id. ff 43-

44. Plaintiff also alleges that as a result of defendant’s

intentional, malicious, extreme and outrageous conduct,

she now suffers a severely depressed and emotional con-

dition which has required professional psychiatric treat-

ment. Jd. I] 36-38. Hence, plaintiff seeks compensatory

damages in Count 3 and punitive damages in Count 4

for intent:onal infliction of emotional distress. Id. {'f 45-

51.

Defendant. GE has moved to dismiss plaintiff’s entire

complaint pursuant to Rule 12(b)(1) and (6) of the

Federal Ruies of Civil Procedure. Defendant argues that

plaintiff’s claims, are preempted by federal law in that

they concern matters of nuclear safety and are spe-

cifically preempted by Section 210 of the Energy Reor-

ganization Act, 42 U.S.C. § 5851, commonly referred to

as “the whistle blower provision.” Defendant further con-

tends ‘that even if plaintiff’s claims are not preempted,

plaintiff has failed to state valid causes of action for

wrongful discharge and intentional infliction of emo-

tional distress under North Carolina law. Specifically,

defendant argues that North Carolina does not recognize

a general public policy exception to the employment at

will doctrine and that defendant’s conduct concerning

plaintiff was not outrageous.

12a

Il. PREEMPTION

A. The Law

Federal preemption generally may occur in either of

two ways. Where Congress evidences an intent, either

expressly or inferentially, to occupy a given field, state

laws falling within the field are preempted. Silkwood

v. Kerr-McGee Corporation, 464 U.S. 238, 284 (1984)

(citations omitted). For instance, matters of nuclear

safety regulation are committed exclusive!y to the federal

government. Pacific Gas & Electric Company v. State

Energy Resources Conservation and Development Commis-

sion, 461 U.S. 190, 212 (1983). On the other hand, if

the federal government does not “occupy the field,” pre-

emption turns on whether the state law conflicts with

the federal law to the extent it is impossible to comply

with both or whether the state law frustrates the purposes

and objectives of Congress. Silkwood, 464 U.S. at 248

(citations omitted).

Section 210 of the Energy Reorganization Act (ERA),

42 U.S.C. § 5851, provides a remedy for employees of

nuclear facilities who believe they have been discharged

or otherwise discriminated against for making safety

complaints concerning the construction or operation of

nuclear facilities. The statute specifically provides that

no NRC licensee, “may discharge . . . or otherwise

discriminate against any employee with respect to his

compensation, terms, conditions, or privileges of employ-

ment” because the employee has testified, given evidence,

or brought suit or engaged in “any other action to carry

out the purposes” of the Atomic Energy Act (AEA) and

the ERA. 42 U.S.C. § 5851(a).?

2A split of authority has developed in the circuit courts as to

whether the provisions of Section 210 protect an employee from

retaliation based on purely internal safety complaints or whether

participation in “a proceeding” is required. Mackowiak v. Uni-

versity Nuclear Systems, Inc., 735 F.2d 1159 (9th Cir. 1984), and

Consolidated Edison Company of New York, Inc. v. Donovan, 673

he, OS el he

13a

If an employee believes he has been discharged or

otherwise discriminated against in violation of the Acts,

he may file a complaint with the Secretary of Labor,

within thirty days after the violation occurs. Id. (b) (2)

(A). Within thirty days of the receipt of the complaint

the Secretary must conduct an investigation and notify

the individuals involved of the results. Jd. Within ninety

days of the receipt of the complaint the Secretary must

either deny it or order the offending employer to “{i)

take affirmative action to abate the violation, and (ii)

reinstate the complainant to his former position together

with the compensation (including back pay), terms, con-

ditions, and privileges of his employment, and the Sec-

retary may order such person to provide compensatory

damages to the complainant.” Jd. (b)(2)(B). The stat-

ute also provides for the payment of all costs and ex-

penses, including attorneys’ and expert witness fees,

reasonably incurred by the complainant in bringing

the complaint upon which an order is issued. Jd. Section

210 expressly provides for judicial review of the Secre-

tary’s order by a United States Court of Appeals. Id.

(ec).

The protection offered by Section 210 is limited. It

does not extend to any employee “who, acting without

direction from his or her employer (or the employer’s

agent), deliberately causes a violation of any requirement

of...” the AEA. Id. (g).

Finally, an order issued pursuant to Section 210 is

subject to civil enforcement. The action to require com-

F.2d 61 (2d Cir. 1982) (Section 210 protects internal safety com-

plaints). Contra Brown & Root v. Donovan, 747 F.2d 1029 (5th

Cir. 1984) (Section 210 is designed to protect only “whistle blow-

ers” who provide information to governmental entities). In this

action plaintiff alleges both internal and external complaints (Com-

plaint {§ 10, 12, 17) and would appear to fall within the section.

l4a

pliance may be brought in the appropriate United States

district court by either the individual on whose behalf the

order was entered to the Secretary. Jd. (d)-(e). If in

an action brought by the individual tie district court

enters a final order directing compliance, the court may

award the individual the costs of litigation. Jd. (e). If

the Secretary obtains judicial enforcement of his own

order, “the district courts shall have jurisdiction to grant

all appropriate relief including, but not limited to, injunc-

tive relief, compensatory, and exemplary damages.”

Id. (d).

Few courts have considered the question of whether or

not Section 210 preempts state causes of action arising

from the retaliatory termination of or discrimination

against an employee for having voiced nuclear safety

concerns. Snow v. Bechtel Construction Inc., 647 F.

Supp. 1514) (C.D. Cal. 1986); Stokes v. Bechtel North

American Power Corporation, 614 F. Supp. 732 (N.D.

Cal. 1985) ; Wheeler v. Caterpillar Tractor Company, 108

Ill. 2d 502, 485 N.E. 2d 372 (1985), cert denied, 475

U.S. 1122 (1986). In support of their holdings each of

these courts either relies on or distinguishes the Supreme

Court’s decision in Silkwood v. Kerr-McGee Corporation,

supra.

In Silkwood the plaintiff, father of the decedent, Karen

Silkwood, sought relief under state tort law for radiation

injuries suffered by his daughter at a nuclear power

plant run by the defendant, Kerr-McGee. The Tenth

Circuit Court of Appeals struck the jury’s award for

punitive damages on the grounds of federal preemption.

Silkwood v. Kerr-McGee Corporation, 677 F. 2d 908,

(10th Cir. 1981). The Supreme Court reversed, holding

that the award of punitive damages based on Oklahoma

law was not preempted by the Atomic Energy Act. Silk-

wood, 464 U.S. at 258.

15a

In allowing punitive damages on a state claim for

radiation injuries the Silkwood court homed in on two

items: (1) express language by Congress recognizing

state tort recoveries and (2) the absence of a federal

remedy. The Price-Anderson Act, 42 U.S.C. § 210, an

amendment to the AEA, established an indemnification

scheme whereby operators of nuclear facilities would have

limited liability in the event of any one nuclear accident.

Id. at 251. “[T]he discussion preceding its enactment

and subsequent amendment indicates that Congress

assumed that persons injured by nuclear accidents were

free to utilize existing state tort law remedies.” Jd. at

251-52 (footnote omitted). Further, the court noted the

absence of a federal remedy and expressed its disbelief

“that Congress would, without comment, remove all

means of judicial recourse for those injured by illegal

conduct.” Jd. at 251 (citation omitted). Clearly, the

focus in Silkwood was on radiation injuries caused by

nuclear accidents and their redress.

Two district courts in California have addressed the

precise issue of the preemptive effect of Section 210 on

state law causes of action but they differed in result.

Snow v. Bechtel Construction, Inc., supra; Stoves v.

Bechtel North American Power Corporation, supra. In

each case the plaintiff had pursued a state law claim for

wrongful discharge.

In Stokes the court was “unable to accept the thesis

that the enactment of Section 210 requires the invalida-

tion of all preexisting state law remedies for aggrieved

employees involved in the field of nuclear power.” Stokes,

614 F.Supp. at 745. The court’s inability stemmed from

the Silkwood decision and the permissive language found

in Section 210 and its legislative history (i.e., may file a

complaint, may apply to the Secretary for review, could

help assure compliance, could seek redress). Id. at 744-

45. In terms other than permissiveness, the Stokes court

l6a

failed to address any specific provisions of Section 210

and its history.

In « similar action the Snow court concluded that

Stokes should not govern and respectfully declined to

follow it. That court was not persuaded that permissive

language was inconsistent with the exclusivity of a fed-

eral remedy. Instead, it relied on the legislative history

of Section 210 and language in Olguin v. Inspiration

Consolidated Copper Company, 740 F.2d 1468, 1475 (9th

Cir. 1984), indicating that the “whistleblower provision”

in the Mine Safety and Health Act was an exclusive

remedy that preempted a state claim of wrongful dis-

charge. Snow, 647 F.Supp. at 1518. Further, the Snow

court found Silkwood “clearly distinguishable,” concluding

that the Supreme Court’s analysis of radiation injuries was

inapposite to a consideration of retaliatory termination.

Id. at 1519. The court held that “[t]o the extent that

Snow claims he was wrongfully terminated . . . because

he complained about safety violations, his action is pre-

empted by [42 U.S.C.] § 5851.” Id.

In the only reported state court opinion on this topic

the Supreme Court of Illinois held, sua sponte, that Sec-

tion 210 did not preempt a valid cause of action for

wrongful discharge. Wheeler v. Caterpillar Tractor Com-

pany, supra. The court found “the situation here anal-

ogous to Sil/kwood and conclude[{d] that it was not the

Congressional intent to preempt the field.” Jd. at ——,

485 N.E.2d at 376. The dissent found the majority’s

reliance on Silkwood “misplaced” and would hold that

“plaintiff’s cause of action is preempted by section 210.”

Id. at , 485 N.E.2d at 379 (Moran and Ryan, J.J.,

dissenting).

B. Analysis

Defendant GE argues that federal law provides plain-

tiff with an exclusive remedy for claims of discharge or

discrimination in retaliation for voicing concerns of nu-

17a

clear safety. Specifically, defendant argues that plaintiff's

complaint concerns matters of nuclear safety—matters

that are exclusively regulated by the federal government

—and therefore is expressly preempted. Defendant fur-

ther argues that Section 210 of the ERA provides a de-

tailed procedure for redressing discharge and discrimina-

tion claims and that it is so pervasive that exclusivity of

federal remedy is inferred. Not surprisingly, plaintiff

contends that this action centers on the regulation of the

employer-employee relationship and that matters of nu-

clear safety, if implicated at all, are only peripheral to

her claims. Plaintiff further contends that her claims do

not conflict with Section 210 such that compliance with

both is impossible and that her claims necessarily further

the objective of Congress, i.e., providing nuclear employees

an unfettered opportunity to speak out on matters of

safety.

1. The Complaint

With respect to defendant’s first argument—that plain-

tiff’s complaint concerns matters of nuclear safety—to

some extent defendant is correct. Plaintiff expressly

states that her termination “constitutes a wrongful dis-

charge in violation of the strong public policies embodied

in the laws of the United States, which encourage and

require workers to report potential violations of NRC

regulations.” Complaint {| 42. However, while nuclear

safety is of concern in this action it is only tangential to

the action itself, that being plaintiff’s claims for wrong-

ful discharge and intentional infliction of emotiona! dis-

tress. Hence, the court does not believe plaintiff’s action

is preempted under Pacific Gas & Electric, supra, on the

basis that the complaint concerns matters of nuclear

safety regulation. Consequently, we turn our attention

to defendant’s second argument and Section 210 of the

ERA.

18a

2. Section 210

The court believes Section 210 provides plaintiff with

a remedy for both of her causes of action. Her claim for

wrongful discharge clearly falls within the employer con-

duct defined and prohibited by Section 216. Somewhat

trickier is the question of whether a claim for intentional

infliction of emotional distress falls within the statute’s

prohibition of “other discrimina‘ion.” However, with the

possible exception of her being removed from the labora-

tory under guard, all of plaintiff’s allegations go to her

“compensation, terms, conditions, or privileges of employ-

ment.” 42 U.S.C. § 5851(a). Furthern ore, although un-

able to recover exemplary damages, plaintiff would be

compensated for any emotional damages which she may

have suffered. See DeFord v. Secretary of Labor, 700

F.2d 281 (6th Cir. 1983). Hence, plaintiff’s injuries as

alleged in the complaint would be adequately redressed

under Section 210.

In this action the question of preemption initially turns

on whether Section 210 can be said to regulate nuclear

safety. If it can, plaintiff’s causes of action would be

preempted pursuant to Pacific Gas & Electric, supra. The

court is unconvinced, however, that Congress intended

Section 210 to a be a regulator of nuclear safety and

therefore preemptive under Pacific Gas & Electric, supra.

This section, entitled “Employee protection,” was de-

signed as “an administrative procedure” to “offer[] pro-

tection to employees who believe they have been fired or

discriminated against as a result of the fact that they

have testified, given evidence, or brought suit . . .” under

the AEA or the ERA. S. Rep. No. 848, 95th Cong., 2a

Sess. 29, reprinted in 1978 U.S. Code Cong. & Ad. News

7303, 7304. Such protection was necessary since “[u]nder

this section, employees and union officials could help as-

sure that employers do not violate requi:. ents of the

Atomic Energy Act.” Id. As the legislative history in-

dicates, protecting an employee’s livelihood in the nuclear

19a

industry while at the same time encouraging disclosure

of potential safety hazards and violations are matters

inextricably intertwined. The question, therefore, is

whether by Section 210 Congress put safety or employee

protection first. The court believes employee protection

was the paramount congressional intent. Thus, in this

instance “preemption should not be judged on the basis

that the Federal Government has so completely occupied

the field of safety that state remedies are foreclosed but

on whether there is an irreconcilable conflict between the

federal and state standards or whether the imposition of

a state standard in a damages action would frustrate the

objectives of the federal law.” Silkwood, 464 U.S. at 256.

Preemption, therefore, hinges on the operation of Sec-

tion 210 itself. As part of this operation three aspects

of the statute deserve closer inspection: (1) its applica-

bility only to an employee who has not violated any nu-

clear requirement, (2) the absence of a provision for

exemplary damages on behalf of an aggrieved nuclear

employee, and (3) the speed with which a charge brought

under Section 210 must be resolved.

Subsection (g) of Section 210 expressly states that

“Subsection (a) of this section shall not apply with re-

spect to any employee who, acting without direction from

his or her employer (or the employer’s agent), deliber-

ately causes a violation of any requirement of this chap-

ter or of the Atomic Energy Act... .” 42 U.S.C. § 5851

(g). Defendant argues that failure to observe the limi-

tation imposed by Congress in subsectiun (g) in a state

action for wrongful discharge could result in the rein-

statement and compensation of a potentially dangerous

employee. Plaintiff contends the limitation would be taken

into account because the employee would be fired not

because he voiced safety concerns but because he con-

tributed to or caused a violation of some nuclear re-

quirement.

20a

The limitation imposed by subsection (g) can best be

illustrated with reference to these hypothetical cases:

Employee A “blows the whistle” on his employer concern-

ing a potential safety violation. A has not violated any

nuclear safety requirements. Employee B blows the

whistle on his employer concerning the violation of an

AEA requirement which B himself contributed to or

caused. Employee C similarly blows the whistle; however,

while he neither contributed to nor caused the potential

safety violation which he reported he has violated a

separate and distinct requirement of the AEA. Each

employee may successfully show a violation of subsection

(a) of Section 210.

The violation will be abated as to employee A but

not B and C. A clearly falls within the language of

Section 210, not having caused any violation. B has

committed a safety violation, the very one which caused

him to blow the whistle. Even though B is successful

with respect to subsection (a) he nonetheless is barred

from obtaining relief by subsection (g). This bar most

clearly resembles the equitable doctrine of “clean hands”

whereby relief is denied to those guilty of improper con-

duct in the matter as to which they seek relief. See

generally 30 C.J.S. Equity §93 (1965). In employee

C’s case Congress has seen fit to go even further, denying

relief because he committed a violation not even re-

motely related to that on which he blew the whistle.

The impact of subsection (g) is therefore quite clear:

even if an employer has violated subsection (a)—i.e.,

discharged or discriminated against an employee because

he voiced concerns of nuclear safety—the employee is

absolutely barred from obtaining redress if he has caused

a violation of any iiuclear safety requirement. The court

is aware of no provision requiring application of the

absolute bar in state court actions for wrongful dis-

charge or intentional infliction of emotional distress

arising from an employee’s complaints concerning nuclear

2la

safety. By law the state court would not be required to

determine whether or not the aggrieved employee vio-

lated some requirement of the Atomic Energy Act or its

amendments. Instead, the state court could end its in-

quiry at whether or not the employee was wrongfully

discharged or discriminated against for being a whistle-

blower. As a result of the state action, someone like

employee B or C who has violated one or more nuclear

requirements would be reinstated and compensated. Sub-

section (g) totally eliminates such a possibility. Hence,

the court believes subsection (g) of Section 210 is strong

evidence of Congress’ intent to preempt state actions for

wrongful “‘scharge and other discrimination with re-

spect to nuclear whistleblowers.

Further evidence of Congress’ preemptive intent lies in

the absence of any provision for exemplary damages to

be awarded to an employee in the event of a violation

of subsection (a). The only possibility of exemplary

damages would arise when the Secretary of Labor seeks

civil enforcement of his order requiring the offender to

abate the violation of subsection (a) and to reinstate

and compensate the individual. 42 U.S.C. § 5851(d). In

other similar legislation, such as the Toxic Substances

Control Act and the Safe Drinking Water Act, Congress

expressly provided for an award of exemplary damages

“where appropriate.” 15 U.S.C. § 2622(b)(2)(B); 42

U.S.C. § 300j-9(i) (2) (B) (ii). See also Solid Waste Dis-

posal Act, 42 U.S.C. §6971(b) (where Secretary of

Labor finds employee has been wrongfully discharged or

discriminated against he shall issue a decision “requir-

ing the party committing such violation to take such

affirmative action to abate the volation as ... [he]

deems appropriate, including, but not limited to, the re-

hiring or reinstatement of the employee or represeniative

of employees to his former position with compensation’’)

(emphasis added). In the statutes upon which Section

210 is modeled, see S.Rep., supa, there are no provisions

for an award of exemplary damages to an aggrieved

22a

employee. Water Pollution Control Act, 33 U.S.C. § 1367

(b); Clean Air Act, 42 U.S.C. § 7622(b)(2)(A). Ob-

viously, Congress has reached an informed judgment that

in no circumstances should a nuclear whistler blower

receive punitive damages when fired or discriminated

against because of his or her safety complaints. This

judgment is particularly highlighted by the instant action

wherein plaintiff seeks $2.3 billion in punitive damages.

Finally, th: court is impressed with the speed with

which charges brought pursuant to Section 210 must be

resolved. Employees who believe a violation of Section

210(a) has occurred must file a complaint with the Sec-

retary of Labor within thirty days after such violation

occurs. From the filing of the complaint the Secretary

has ninety days either to dismiss the complaint or order

relief. The reason for such quick action appears to be

twofold. First, if a violation has occurred the employee is

restored to his position without a substantial interrup-

tion in lifestyle or livelihood. Further, he remains active

in his field of expertise within the nuclear industry.

Second, by requiring a speedy complaint the regulatory

authorities may discover potential hazards and violations

that might otherwise have gone undiscov»red for an un-

certain period of time. For instance, consider a nuclear

facility tiiat is able to cover up some hazard or violation

for which an employee voiced internal concerns yet was

fired or discriminated against. The aggrieved employee

waits till the last day under the applicable state statute

of limitations to file suit, normally about three years.

A catastrophe could already have occurred while the em-

ployee contemplated filing an action in state court. The

court does not believe this is what Congress intended

and would permit to occur.

The court’s review of Section 210 and its history leads

it to conclude that the statute is “a scheme of federal

regulation . . . so pervasive as to make reasonable the

inference that Congress left no room for the Stztes to

23a

supplement it’. . . .” Pacific Gas & Electric, 461 USS.

at 204. Indeed, “[a] more comprehensive statute cculd

hardly be imagined.” Wheeler, 108 Ill.2d at ——, 485

N.E.2d at 379 (Moran and Ryan, J.J., dissenting). The

court reaches its conclusions mindfui of the cases dis-

cussed above. In contrast to Silkwood, this court is not

aware of any congressional language recognizing state

tort remedies for wrongful discharge and other discrim-

ination. Furthermore, Congress has provided a federal

remedy for such claims in Section 210. For these reasons

this court concludes that the reliance on Silkwood by

the courts in Stokes and Wheeler was misplaced. The

latter case was decided without even the benefit of brief-

ing or argument. The court simply is unpersuaded by

these decisions.*

Based on the foregoing, the court finds that plaintiff’s

cause of action for wrongful discharge under state law

is preempted by Section 210 of the Energy Reoryaniza-

tion Act, 42 U.S.C. § 5851. Consequently, defendant’s

motion to dismiss Counts 1 and 2 of the complaint pur-

suant to Rule 12(b) (1), F.R.Civ.P., is granted on the

ground that this court lacks jurisdiction over the sub-

ject matter. Although it appears that plaintiff’s claim for

intentional infliction of emotiona! distress also is pre-

empted by Section 210 there remains a question as to

whether the claim, if valid, may nevertheless proceed in

light of the Supreme Court’s holding in Farmer v. United

8 The plaintiff has proffered an administrative decision of the

Secretary of Labor which analyzes wheth.. the voluntary dis-

missal of a complaint brought pursuant to Section 210 should be

dismissed with or without prejudice. Nolder v. Raymond Kaiser

Engineers, Inc., No. 84-ERA-5 (D.O.L., June 28, 1985). The Secre-

tary concludes that such a disiuissal is without prejudice and

reasons that otherwise the dismissal would preclude a piaintiff’s

similar claims in state court. Plaintiff argues by analogy that the

Secretary would not have addressed the issue of res judicata if

Section 210 were preemptive of state claims. Perhaps, but the

issue of preemption was not squarely before the Secretary and

for this reason the court finds Nolder unpersuasive.

24a

Brotherhood of Carpenters & Joiners of America, 430

U.S. 290 (1977). This question will be addressed in sec-

tion III, infra.

Even if the court did not hold that piaintiff’s claim for

wrongful discharge is preempted by Section 210 of the

Energy Reorganization Act, the court would be con-

strained nevertheless to hold that plaintiff has failed to

state a cause of action for wrongful discharge in light of

the Fourth Circuit Court of Appeals’ decision in Guy v.

Travenol Laboratories, Inc., 812 F.2d 911 (4th Cir.

1987). The plaintiff in Guy alleged that he was fired

from his supervisory position at the defendant’s North

Carolina drug manufacturing plant after refusing to fal-

sify certain records pertaining to the quality and quan-

tity of pharmaceuticals that drug manufacturers are ~e-

quired to keep under the Food and Drug Administration’s

regulations, falsification of which would have subjected

him to criminal sanctions. After analyzing the law con-

cerning employment at will in North Carolina the Court

of Appeals concluded that “[an] employer may terminate

any employee for any reason unless the employee has a

specific duration contract, gave some additional consid-

eration for permanent employment, or lost his job for

refusing to give perjured testimony.” Guy, 812 F.2d at

915. The court held that plaintiff Guy’s complaint did

not come within any of the stated exceptions and there-

fore failed to state a cause of action under North Caro-

lina law.

In this instance plaintiff alleges her discharge from

GE was wrongful in that it violated “the strong public

policies embodied in the laws of the United States, which

encourage and require safe operation of nuclear faclities

and require workers to report potential violations of NRC

regulations.” Complaint {§ 42. Plaintiff, however, has not

alleged either the existence of a specific duration contract,

the giving of some additional consideration, or a dis-

charge for refusing to give perjured testimony. Despite

75a

plaintiff’s persistent arguments to the contrary, this court

may not disregard the pronouncements of the Fourth

Circuit when they are not distinguishable. Doe v.

Charleston Area Medical Center, Inc., 529 F.2d $38, 642

(4th Cir. 1975); Spell v. McDaniel, 591 F.Supp. 1090,

1098 (E.D.N.C. 1984).

Furthermore, the court is not convinced that plaintiff

was under any legal duty to report potential safety vio-

lations. Plaintiff relies on 10 C.F.R. Parts 19 and 21

and 42 U.S.C. § 2273 for the proposition that plaintiff

could have been subjected to severe criminal sanctions

for jailure to report potential safety violations. The

court has thoroughly reviewed the regulations and st. ‘-

ute asserted by plaintiff as imposing a legal duty and

is unable to conclude that any such dutv is or was im-

posed. See Radiation Technology, Inc., 8 N.R.C. 655, 658,

668-62 (1978); 42 Fed.Reg. 28891, 28892 (1977); 38

Fed.Reg. 22217 (1973).

Based ou the foregoing the court finds that plaintiff

has also failed to state a cause of action for wrongful

discharge in violation of the laws of North Carolina.

Consequently, the court will grant defendant’s motion

pursuant to Rule 12(b)(6) to dismiss plaintiff’s claim

for wrongful discharge on the alternative ground that

plaintiff has failed to state a claim upon which relief

can be granted.

Ill. INTENTION/L INFLICTION OF EMOTIONAL

DISTRESS

Despite having concluded that plaintiff’s cause of action

f-r intentional infliction of emotional distress should be—

preempted, there remains the possibility that the claim,

if valid, ma,’ proceed in light of Farmer v. United Broth-

erhood of Carpenters & Joiners, supra, which will be

summarized later. First, we examine the validity of the

cause of action as alleged.

26a

In a recent decision the North Carolina Court of Ap-

peals addressed a claim for intentional infliction of emo-

tional distress in an employment context on a motion to

dismiss. Dixon v. Stuart, 85 N.C.App. 338, 354 S.E.2d 757

(1987). In Dixon the plaintiff sued the City of Winston-

Salem, North Carolina and several of its agents and em-

ployees, seeking compensatory and punitive damages for

loss of employment opportunities, injured professional

standing, emotional and physical illness resulting in per-

manent injury, and suffering of humiliation and embar-

rassment. The plaintiff alleged (1) that the individual

defendants unlawfully conspired to hinder, obstruct and

injure his career advancement with the City of Winston-

Salem and to induce the City not to promote plaintiff by,

inter alia, ridiculing and harassing the plaintiff in the

workplace and (2) that the defendant’s acts (a) were

willful and malicious; (b) caused the plaintiff humilia-

tion and embarrassment in the workplace; (c) were ex-

treme and outrageous; (d) caused plaintiff to suffer

humiliation, embarrassment, loss of professional status,

physical illness and severe and extreme mental distress.

Dixon, 85 N.C.App. at 338-39, 354 $.E.2d at 758. The

trial court granted the defendant’s motion to dismiss the

action pursuant to Rule 12(b) (6) of the North Caroline

Rules of Procedure on the ground that the complaint failed

to state a claim upon which relief could be granted.

The Court of Appeals reversed the lower court’s deci-

sion. In that decision Chief Judge Hedrick focused on

plaintiff’s allegations regarding ridicule and harassment

in the workplace and that the defendant’s acts intended

to cause and actually did cause plaintiff to suffer extreme

emotional distress. The court held:

We cannot say that it appears beyond doubt that

plaintiff can prove no set of facts in support of these

allegations which would entitle him to relief from

these defendants for intentional infliction of emo-

tional distress. Extreme and outrageous ridiculing

St en lS alle

27a

and harassing has been grounds for recovery under

this tort before. See, e.g., Hogan v. Forsyth Country

Club Co., 79 N.C. App. 488, 340 S.E.2d 116, disc. rev.

denied, 317 N.C. 334, 346 S.E.2d 140 (1986) ; Wood-

ruff v. Miller, 64 N.C.App. 364, 307 S.E.2d 176

(1983).

Id. at 341, 354 S.E.2d at 759.

Pursuant to Dixon this court believes plaintiff has stated

a valid cause of action for intentional infliction of emo-

tional distress. Plaintiff alleges that the acts on the part

of GE’s management er intended and did in fact cause

plaintiff to suffer severe emotional distress. With respect

to “extreme and outrageous” conduct plaintiff alleges that

GE’s management (1) removed her from her job in the

Chemet Lab under guard as if she were a criminal, ex-

posing her to contempt and ridicule; (2) assigned her to

a degrading “make work” job; (3) derided her as para-

noid; (4) barred her from employment in controlled

areas; (5) subjected her to constant surveillance in the

workplace; (6) isolated her from fellow workers and did

not even permit her to eat in the company lunchroom

with her fellow workers; and (7) conspired to fraudulently

charge her with violations of safety and criminal statutes.

Although defendant GE vehemently contends and argues

that plaintiff has failed to state a claim, it neglected in

its reply brief to address and attempt to distinguish, if

possible, the Dixon decision. The court, however, believes

that under Dixon plaintiff has stated a valid claim for

intentional infliction of emotional distress. Therefore, de-

fendant’s motion to cismiss Counts 3 and 4 of the com-

plaint pursuant to Rule 12(b()6), F.R.Civ.P., cannot be

granted.

Although plaintiff has stated a valid cause of action four

intentional infliction of emotional distress there remans,

however, the issue of whether the claim may proceed de-

spite the apparent preemptive effect of Section 210, 42

28a

U.S.C. § 5851, in light of the Supreme Court’s decision in

Farmer v. United Brotherhood of Carpenters & Joiners,

supra. In Farmer the plaintiff, a union member, had

brought a state court action against the union alleging

that the union had discriminated against him in hiring

hall referrals and had intentionally inflicted emotional

distress on him through a campaign of public ridicule

and incessant verbal abuse. All of the plaintiff’s claims

were held preempted by the National Labor Relations

Act (NLRA) except a potential emotionai distress claim.

The basis of the Court’s holding was that there was no

federal protection otfered by the NLRA against a union’s

outrageous conduct. Farmer, 430 U.S. at 302. Instead

the focus of a National Labor Relations Board proceeding

would solely concern whether the defendant union dis-

criminated against the plaintiff and whether a cease and

desist order and back pay were proper. It has been held

that Farmer created a “narrow exception to federal pre-

emption.” Magnuson v. Burlington Northern, Inc., 576

F.2d 1367, 1369 (9th Cir.), cert. denied, 489 U.S. 930

(1978).

In this action, plaintiff has a federal remedy in Section

210. That section specifically addresses ‘other discrim-

ination” and provides for compensatory damages in the

case of a violation. With the possible exception of being

removed from the Chemet Lab under guard, all of plain-

tiff’s allegations concern “terms, conditions, or privileges

of employment.” 42 U.S.C. § 5851(a). Being removed

under guard would not in and of itself support a cause

of action for intentional infliction of emotional distress.

Hence, the court, believes plaintiff’s claims regarding emo-

tional distress should be presented to the Secretary of

Labor pursuant to Section 210. See Olguin v. Inspiration

Consolidated Copper Company, 740 F.2d 1468, 1475-76

(9th Cir. 1984).

Based on the foregoing the court finds that plaintiff’s

cause of action for intentional infliction of emotional dis-

29a

tress is preempted by 42 U.S.C. § 5851. Consequently, de-

fendant’s motion to dismiss Counts 3 and 4 of the instant

complaint pursuant to Rule 12(b) (1), F.R.Civ.P., on the

ground that this court lacks jurisdiction over the subject

matter will be granted.

IV. SUMMARY

To summarize, defendant’s motion to dismiss is granted

as to counts 1 and 2 of the complaint pursuant to Rule

12(b) (1) on the ground that the court lacks jurisdiction

over the subject matter and on the alternative ground

pursuant to Rule 12(b) (6), F.R.Civ.P., that plaintiff has

not stated a claim upon which relief can be granted.

While defendant’s motion pursuant to Rule 12(b) (6) to

dismiss Counts 3 and 4 of the complaint, alleging a claim

for intentional infliction of emotional distress and puni-

tive damages is not well taken, these counts are dismissed

pursuant to Rule 12(b) (1) on the ground that the court

lacks subject matter jurisdiction. The action is there-

fore dismissed in its entirety, and the clerk of court is

directed to enter judgment accordingly.

SO ORDERED.

/s/ F. T. Dupree Jr.

F. T. DUPREE, JR.

United States District Judge

February 10, 1988.

80a

U.S. DEPARTMENT ( F LABOR

Office of Administrative Law Judges

211 Main Street

San Francisco, California 94105

Suite 600

(415) 974-0514

FTS 8 454-0514

Case No. 85-ERA-00002

IN THE MATTEP OF VERA M. ENGLISH

Vv.

GENERAL ELECTRIC COMPANY

Mozart G. Ratner, Esq. —

1900 M Street, N.W.

Suite 610

Washington, D.C. 20036

Arthur M. Schiller, Esq.

1000 Connecticut Ave., N.W.

Suite 1205

Washington, D.C. 20036

For the Complainant

William W. Sturges, Esq.

Weinstein, Sturges, Odem, Groves,

Bigger, Jonas & Campball, P.A.

810 Baxter Street

Charlotte, N.C. 28202

Scott A. Klion, Esq.

General Electric Company

175 Curtner Ave. M/C 822

San Jose, CA 95125

For the Respondent

Before: ROBERT J. BRISSENDEN

Administrative Law Judge

[SEAL]

3la

DECISION AND ORDER

This is a proceeding under the Energy and Reorganiza-

tion Act of 1974, as amended, (hereinaftcr referred to as

the “Act’’), 42 U.S.C. § 5851, and its implementing reg-

ulations, 29 C.F.R. Part 24.

The Complainant Vera English filed a complaint with

the United States Department of Labor, under 29 C.F.R.

§ 24.3, on August 24, 1984, and an amended complaint

on August 27, 1984. Her Complaint alleged discrimina-

tion as a result of the initiation of and the participation

in Nuclear Regulatory Commission (hereinafter NRC)

investigations of facilities at the Respondent General Elec-

tric Company (hereinafter GE) plant located in Wil-

mington, North Carolina. On October 2, 1984, following

an investigation, the Administrator of the Wage and

Hour Division, Employment Standards Administration,

Department of Labor, concluded that English had been

discriminated against as defined and prohibited by the

Act and 29 C.F.R. § 24.4. The decision of the said Ad-

ministrator was appealed by both Complainant and the

Respondent.

A formal hearing was held in Wilmington, North

Carolina, trom December 17 to December 19, 1984, and

a second session of the hearing was held on March 19 to

March 28, 1985, at which times the parties were afforded

full opportunity to present evidence and argument. The

findings and conclusions in this decision are based upon

my observation of the witnesses who testified at both

sessions of the hearing, upon an analysis of the entire

record, arguments of the parties (both oral and written),

applicable regulations, statutes, and case law precedent.

By agreement of the parties, time constraints applicable

to this case were waived.’ On April 5, 1985, an Order

1Shortly after the first session of the hearing, the parties had

waived the time constraints of 29 C.F.R. § 24.6, because of the

necessity of having the hearings cor Linued into a second session.

Additionally, in order to allow time for the submission of post-

32a

was issued setting the court’s time limits on the submis-

sion of briefs and proposed findings of fact, Fee and Cost

Petition, and the response by GE to said petition. The

Order also clearly indicated that the record, for the sub-

mission of evidentiary documents or any other documents,

was closed. On June 27, 1985, because said order had

been ignored, as was evidenced by numerous documents

mailed in to the judge’s San Francisco office, another

Order was issued advising the parties that any documents

submitted which were in contravention of the April 5,

1985, Order would not be considered. Accordingly, Re-

spondent’s Motion to Strike a Portion of Complainant’s

Brief is granted and no documents or material submitted

post-Learing is considered part of the evidentiary record.

Statement of the Case

Vera English was an employee of GE from November

13, 1972 to July 30, 1984. During the times relevant to

this case, Mrs. English worked in the Chemet Laboratory.’

On March 5, 1984, Mrs. English was an hourly worker

in said laboratory. At that time, she was working on the

shift known as the “B” shift. In that particular week,

she started working Sunday from 7:00 a.m. to 3:10 p.m.

She worked the same hours on the fifth, sixth and sev-

enth and eighth of March. She then switched to a dif-

ferent shift, on Friday. This was her normal routine dur-

ing that month. Her shift Friday evening, started at

11:00 p.m. and went on to 7:30 a.m., a shift commonly

hearing briefs, the parties have agreed to waive the requirements

of 29 C.F.R. § 24.6(a) and 24.6(b).

2 Many of the allegations and contentions of both parties were

too far removed in time to have any significant relevance to this

ease. Accordingly, although Mrs. English worked in the Chernet

Lab for twelve years, other than for taking cognizance of Com-

plainant being an experienced laboratory worker, under the provi-

sions of 29 C.F.R. § 24.5(e) (1), the time frame was limited by

this judge to 1982 to 1984.

33a

referred to as a “graveyard” shift. She had no imme-

diate supervisor to bring complaints to untii the follow-

ing Sunday evening, when a William Lacewell came on

duty. It was in the week prior to that Sunday, starting

with Monday, March 5, 1984, that events occurred which

had great bearing on her removal by management from

the Chemet Lab aiid the eventual termination of her em-

ployment with GE.

The Chemet Lab included what were known as “con-

trolled areas”. Mrs. English had made complaints to the

NRC and to GE management in years prior to the March

1984 period of time, but the parties were limited to the

time frame above-mentioned (see footnote 2, supra.).

Mrs. English had contacted the NRC on August 29, 1982

and on February 13, 1984. Investigations into her alle-

gations were conducted by the NRC on September 7-10,

1982, and March 26-29, 1984. The same February 13th

8 The Chemet Lab is a part of a large building within the GE

facility in Wilmington, North Carolina. There are various labor.-

tories within the Chemet Lab.

The plant is involved in the production of fuel bundles of uranium

material, and said “bundles” are intended for use at reactor sites

for the production of electric power. Additionally, uranium powder

is produced, primarily for sale to overseas customers. The Chemet

Lab had areas cal'ing for certain precautions, ‘.e., controlled areas.

Persons leaving a controlled area must use a monitor or frisker,

which is a hand held unit used to check for radiation contamina-

tion on any part of the body, including hands, feet, face and

clothing. Another precaution taken, within the lab, are hoods

with fans to pull off airborne contamination away from an indi-

vidual who is working under that hood. Within the controlled

or “semi-controlled” areas the lab workers must wear gloves,

a lab coat and safety glasses These workers work both with

powder and liquid solutions of uranium. There are marble tables

with marble legs for use by the lab workers. The marble ma-

terial is not affected by vibratious and is easier to clean than other

material. Safety rules require that any spillage of uranium powder

or uranium liquid be brushed or cleaned off from time to time

during the work hours, and especially before leaving the work

shift.

34a

allegations were brought to the attention of GE manage-

ment in a written report by Complainant, dated Febru-

ary 21, 1984. An examination and investigation ef con-

ditions, upon which Mrs. English’s complaints were based,

was conducted by GE on March 8-21 and March 26-30,

1984. GE’s Quality Assurance Review report, dated April

26, 1984, revealed that several of Mrs. English’s accusa-

tions of violations of company practice and procedure had

substance. A prior GE Chemet Lab Safety Review report

(dated March 29, 1984), concluded that safety procedures

and conditions in the lab were adequate. With reference

to the same allegations, NRC concluded that they were

unsubstantiated. | HF

Claimant’s work in the Chemet Lab consisted of «#al-

ity control duties, in which samples of uranium powder

are weighed, oxidized, weighed again, dissolved in nitric

acid and finally weighed again. The analyst is then abl:

to determine the concentration of uranium in a giv

sample to ascertain whether the proper “mix” has been

accomplished. On Monday, March 5, 1984, Mrs. English

was in the process of weighing a sample when she found

contamination left by the prior shift. This occurred

again in the following three days. Mrs. English testified

that the nature and amount of contamination required

her to do considerable work to clean it up before she

could start on her own work. She believed that the male

workers, who worked the shift just prior to hers, were

careless and sloppy in their work. She felt that they

depended on her to clean up. According to Mrs. English,

the contamination was quite visible to anvone. It was ca

her work surface and on a nearby microwave oven, ~

piece of equipment used by her and the workers on the

prior shift. Additionally, she found uranyl liquid con-

tamination (producing a yellow stain) on two legs of her

work table. She cleaned all of this up for several days,

then on Thursday or Friday, she again found new stains

and contamination elsewhere. On this ovecasion, knowing

that there was no supervisor present until Sunday, she

35a

stated that she put red tape around the stain on the

table legs so that she would be able to point it out to her

supervisor, Bill Lacewell. Her purpose was also to indi-

cate the areas of contamination as a warning to fellow

workers. She testified that she purposely left the con-

tamination, outlined by red tape, so as to prove to man-

ageinent that her co-workers were extremely lax in their

performance of clean-up duties. Some of her prior com-

plaints, in her view, had received little attention since

she was thought to have insufficient proof of malfeasance

by other employees. She felt that this was because she

always promptly cleaned up visible contamination, there-

fore s!.e had nothing tangible to show management to

back her accusations.

She recalled that the red tape and the contamination

was still there on Saturday and Sunday. Sunday evening,

the first night after Thursday, that a regular super-

visor was on duty, the Complainant promptly discussed

the matter with supervisor Lacewell. Mrs. English was

firm in her contention that she had not deliberately -on-

taminated any part of her work station, and that she

had cleaned the contamination left by others. With the

exception of the portion of contamination outlined by

red tape, all had been cleanea. She admitted she inten-

tionally left said contamination for the purposes heretu-

fore mentioned. She stated that she, at that time, trusted

Mr. Lacewell more than other management personnel.

She had on numerous occasions brought up the problem.

of the defective microwave oven, the workers not using

the “friskers” on leaving controlled areas, and the con-

stant failure to clean up contamination at her work sta-

tion, but management, according to her, did not show

serious concern on these subjects. Mrs. English was of

the opinion that management’s main concern was keep-

ing up production so that safety was sacrificed, and

accordingly her superiors did not appreciate her point-

ing out unsafe practices of fellow workers. She strongly

86a

felt that such practices endangered her health and the

health of others.

In her reporting on her concerns that Sunday evening,

she pointed out the contaminated table legs outlined by

red tape.* She advised Lacewell, at that time, that she

did not intend to keep cleaning up for other people. She

also related her concerns on what had occurred in the

prior week, includiag the microwave defect that allowed

leaks and fumes strong enough to give her a headache.

She asked permission of Lacewell to use the “frisker”

(personal survive device) to check out certain areas of

her work station. Lacewell granted this request.

To some extent, Lacewell, in his testimony corroborated

Complainant’s story with reference to the microwave

oven, her mention of the red tape and expression of her

concern over other employees’ spillage. However, he de-

nied that she pointed out the contamination surrounded

by red tape, or seeing the red tape.

Subsequent to the above events there was a correction

of the microwave defect, and an inspection and cleaning

of the area by GE personnel. All of which necessitated

work stoppage in the affected areas of the laboratory.

Additionally, as a consequence of Mrs. English’s March

1984 complaints (made to NRC and GE), a series of

communications, both written ard oral, between manage-

ment and Mrs. English began. Various meetings were

held, some with Mrs. English present and some without

her presence. Certain charges were set out in a letter

dated March 15, 1984, which included:

1. the unauthorized removal of the personal survey

instrument from the entrance to the laboratory;

* There was a dispute by management as to the use of red tape to

designate a “hot” area. Some of the documents that Claimant

relied on were ambiguous and confusing with reference to the use

of red tape. Management claimed that red tape was to designate

areas of storage of uranium products rather than to designate

areas where spills had occurred.

87a

2. the deliberate contamination of a table;

3. failure to clean up contamination, knowing it

existed;

4. the continued distraction of other laboratory em-

ployees; and

5. disruption of normal laboratory activities.

Mrs. English appealed said charges, and during the

company appeal process, it was finally determined that

the “frisker” removal had been authorized. As to charges

No. 2 and No. 3, GE’s witnesses did not seem in total

agreement as to whether said charges had merit or not.

All but No. 3 were dropped or at least it was decided

that no action would be taken in regard to same. Action

was taken on the No. 3 infraction.

The punishment dealt to Mrs. English for “failure to

clean up contamination, knowing it existed” was removal

from the Chemet Lab and assignment to some rather

menial work in the Building “J” Central Stores ware-

house. Complainant testified th *t a man was assigned

to watch her constantly and that she was humiliated in

an incident concerning her shoes. At some time subse-

quent, Complainant was advised that she would have to

“bid” for an open position, that she qualified for within

the GE plant, provided that it was not one within the

Chemet Lab. A time limit was set and, there apparently

existing no such positions, she was. involuntarily placed

on a “lack of suitable work” status. There is nothing in

the record to show that any “suitable” work position was

ever offered to Complainant. Further, the record is de-

void of any rebuttal evidence to Mrs. English’s charge

that she was the oniy person ever removed from the

Chemet Lab for failure to clean up contamination. She

was credible in her testimony that other workers had

caused the contamination and there was no evidence to

the contrary. Further, the evidence clearly shows, with-

out contradiction, that at least one shift and possibly

38a

two (not counting her shift) failed to clean up visible

contamination. The area of contamination was outlined

with red tape, whether such method was considered

proper for dealing with the situation or not, the red tape

added to the visibility of the contamination. Yet, no one

using the same work table, in other shifts, bothered to

report this nor to clean it up.

Testimony by GE management made it quite obvious

that the sheer number of the complaints made by Mrs.

Erglish to NRC (and to management) brought about a

c. ‘sation of work due to the GE’s investigation and

meetings and the concomitant NRC investigations. The

latter investigations resulted in a rather mixed series

of findings.®

The annoyance caused by Mrs. English’s allegations,

whether justified in management’s eyes or not, coupled

by the embarrassment and involvement of much of GE’s

management personnel with the NRC investigations, ap-

5 The severity level of violations for an NRC licensee, such as

the GE Company, are graded from one to five. The larger the

number, the less severe the violation. Severity levels I and II in-

volve very significant violations; level III violations are signifi-

cant; level IV violations are significant if left uncorrected; and

level V violations are of minor concern.

Following the above discussed allegations, which were reported

to and investigated by both GE and the NRC, Mrs. English filed

additional allegations with the NRC in May and June of 1984. The

latter complaints were not reported to GE, though GE learned of

them through NRC investigations. A ::umber of the May and June

allegations were merely reiterations of the previously filed com-

plaints. Of the 35 allegations investigated, five were found to be

Severity level IV violations; one (failure of personnel to use

personal survey devices) was determined to be a corrected prior

violation; seven were partially or wholly substantiated, but were

not deemed violations of NRC regulations or license requirements;

one was unresolved; and two were not addressed. Three level IV

violations and one level V violation were found to exist on the

basis of independent NRC determinations. (See ALJ Exhibits 5-12,

incl.; Employer’s Exh. 11)

39a

pears to have culminated around the March to May 1984

period, although NRC investigations continued during

September, November and December of 1984 and Janu-

ary and March of 1985.

Mrs. English testified as to some rather bizarre series

of break-ins into her home, corroborated in part by police

testimony. Insufficient proof was presented to tie in

GE employees.

Complainant called a psychologist, Dr. Peter Boyle,

who testified that he was of the opinion that the actions

of management, as related by Mrs. F~glish to him,

brought about a depressed and fearful emotional state.

He reached this opinion after lengthy interviews and the

administration of tests that included standard intelli-

gence tests, multiphasic personality inventory and the

Rohrschak ink blot test. He also reviewed her medical

records and discussed with her the impact of the various

actions taken against her by GE, during her final years

of employment. He determined that Mrs. English was

candid in her reports of her symptomology, and that she

was neither paranoid nor suicidal. His diagnosis of her

condition was that she was suffering from a severe

adjustment reaction coupled with mixed emotional fea-

tures, namely depression and “anger” (clinically termed

“agitated depression”), all associated with stress result-

ing from her work situation. Specifically, her emotional

problems are a cumulative effect of various stressful oc-

currences that Mrs. English experienced during her em-

ployment with Respondent. Dr. Boyle’s prognosis was

that the condition is treatable with supportive psycho-

therapy, including medication. He opined that Complain-

ant should continue treatment once a week for at least

six months. A Dr. Bill Knox, M.D., has been treating

her on referral from Dr. Boyle.

Unfortunately, nothing was elicited on the cost of such

treatment from Dr. Boyie.

40a

Discussion of Issues

The ulitmate issue in this case, is whether the Re-

spondent discriminated against Vera English due to her

engaging in “protected activities”. ‘Such activities, in the

instan’. case, being the initiating of and cooperating with

the invest‘gations of NRC.

In order for a Cemplainant to prevail on a discrimina-

tion claim under the Energy Reorganization Act, 42

U.S.C. § 5851 (hereinafter ERA), the Complainant must

prove that: (1) the party charged with discrimination

is an employer subject to the Act; (2) that the complain-

ing employee was discharged or otherw‘se discriminated

against with respect to his compensation, terms, condi-

tions or privileges of employment; and (3) that the

alleged discrimination arose becaure the employee partici-

pated in an NRC proceeding. DeFord v. Secretary of

Labor, 700 F.2d 281, 286 (6th Cir. 1983). Qnce the

employee shows that an illegal motive played sume role

in the discriminatory act(s), the burden shifts to the

employer to prove that he would have discharged or taken

whatever discriminatory action was proven, even if the

protected activity did not occur. Mackowiak v. Univer-

sity Nuclear Systems, Inc., 735 F.2d 1159 (9th Cir.

1984). She also NLRB v. Transportation Management

Corp., 103 S.Ct. 2469 (1983).

It was conceded that GE was an employer subject to

the ERA. The banishment from the Chemet Lab and

the subsequent discharge (for that is what it amounted

to,eregardless cf the euphemism used by Respondent),

clearly affected Mrs. English’s terms, conditions and

privileges of employment; and on her discharge date,

the effect was total on her compensation.

The disciplinary actions of Mrs. English’s employer

coincided, in time, with her strongest worded complaints

in March of 1985, and the meetings and communications,

prior to the banishment from the laboratory, concerned

4la

the subject of her actions in attempting to correct what

she considered violations of NRC requirements.

There is little doubt that this lady was a difficult em-

ployee to handle, that she disrupted work activity at

times, and that some of the time her complaints had only

minor merit. Nevertheless, it also appears true that

many of her complaints had a proper basis in fact, and

that her concern for her own safety and the safety of

fellow employee was a strong factor in her allegations.

The gist of Respondent’s chief defense to the substan-

tive charges was that Mrs. English was a high strung,

nervous woman with marked and emotional reactions to

practices that were not within her perfectionist’s point

of view. To bolster this defense theory, a somewhat selec-

tive chart of charges made to the NRC and the NRC

findings was presented by Respondent. The contention

was that the majority of complaints resulted in findings

of “no merit” or, at most, a minimal violation. A review

of the NRC Findings does not indicate such a innocuous

conclusion with referencc to GE’s record with the NRC.

This “scorecard”, however, has little to do with the cen-

tral issue. Unique or important information is not re-

quired. The need to protect channels of information from

being dried up by Employer intimidation is the purpose

of the Act, not the disclosure of particular types of in-

formation, DeFord v. Secretary of Labor, supra. Never-

theless, Respondent would have a valid defense if it had

proven sufficient justification for the disciplinary actions

taken, apart from Complainant’s participation in pro-

tected activity.

On the last day of the hearing Mrs. English became

overwrought and indulged in an outburst which lasted

several minutes, the subject of which was the frustration

that she felt over her employer’s refusal to give credence

over her concerns on hazardous practices. From the de-

fense point of view such an emotional response to cross-

examination tended to support the contention that Com-

42a

plainant was an unusually excitable individual, therefore

her disruption of the lab and its workers gave Employer

reason to remove her. On the other hand, considering the

unrefuted testiinony of the psychologist, this behavior, at

the end of a long trial, could reasonably be interpreted

as symptomatic of the emotional state which had resulted

from Employer’s discriminatory actions.

Additionally, Respondent urges that the banishment

from the Chemet Lab and the subsequent discharge was

wholiy justified by Mrs. English’s serious infraction of

the “failure to clean up visible contamination” rule. GE’s

management witnesses testified that they considered such

actions as a means of entrapment of Radiation Safety

Inspectors for the company. Management felt a concern

as to the lengths that Complainant would go to in pro-

moting her views on safety practices, and therefore con-

sidered her a threat to other employees’ safety. While

this may be logical, if management’s view of her per-

sonality is accepted, this expressed concern with safety

is belied by Respondent’s inertia in regard repeated vio-

lations of safety rules by other employees. One example

of this being the failvre to investigate why the uranyl

stain was not cleaned up by any other party prior to the

Monday following Complainant’s report to Lacewell.

Employer’s burden requires that it prove an affirma-

tive defense, i.e., it has the burden of persuasion. Mt.

Healthy v. Doyle., 429 U.S. 274, 97 S.Ct. 568, 50 L.Ed.2d

471. In dual motive cases, the employer bears the risk

that the legal and illegal motives cannot be separated.

An effort must be made to sort out these motives. The

presence or absence of retaliatory motive is a legal con-

clusion and is provable by circumstantial evidence.

Mackowiak, supra. at 1162 and 1164.

In* the instant case, Respondent’s witnesses were not

believable in attributing the discipline imposed on: (1)

regards for other employees safety which was ostensibly

endangered by Mrs. English’s actions and complaints and

43a

(2) for the “deliberate” violation of the clean-up rule.

When the whole of the evidence is considered, there ap-

pears no adequate explanation as to why:

(a) no investigation was made concerning other em-

ployees, including management, failing to clean up visible

contamination;

(b) such employees, if known (and logically, at least

some were known) were not punished or admonished in

any way; and

; (c) the infraction of failure to use personal survey de-

vices was so lightly regarded with reference to punish-

ment vis a vis failure to clean up visible contamination.*

Additionally, the coincidence of a series of allegations

by Mrs. English culminating in the March 1984 serious

charges and various meetings directly connected with the

March complaints with the banishment from the Chemet

Lab is a factor that carries considerable weight. Further,

the meetings, as testified through management’s wit-

nesses, came across as inquisitions to find charges that

would “stick”, not a true investigation into the validity

of concerns over general laboratory safety. Mr. Lacewell

was concerned about “entrapment” of Radiation Safety

personnel and Mr. Sheely about “flagrant violation of

work rules”; neither supervisor, as far as can be ascer-

tained from the record, made any great effort to properly

investigate Mrs. English’s complaints on safety. The one

rule that Mrs. English technically violated, it may there-

fore be inferred, was a pretext for getting rid of an em-

ployee who would not stop reporting violations to NRC.

Notices at the plant and other information which Mrs.

English understood as citing her duty to report violations,

were apparently accepted by her at face value. Nothing

in the record, briefs or in my research indicates that the

® Even taking into account the level V vs. level IV NRC designa-

tions, a five day suspension appears to have been the heaviest

punishment dealt to anyone.

44a

number and frequency of reports of violations to NRC

excuses discipline against the employee reporting. Indeed,

all violations are to be reported along with the employer’s

failure to take adequate corrective action.

Defense Motions to Dismiss and/or For Summary

Judgment:

The motions are based on ERA sections 210(g) and

210(b).

The motion on timeliness was previously denied on

November 1, 1984, with permission to bring it again

after the close of the hearing.’

Section 210(g) of the ERA, 42 U.S.C.A. § 58F1(g)

provides:

Subsection (a) of this section shall not apply with

respect to any employee who, acting without direc-

tion from his or her employer (or employer’s agent),

deliberately causes a violation of any requirement of

this chapter or of the Atomic Energy Act of 1954,

as amended (42 U.S.C.A. § 2011, et seq.)

There was no evidence introduced to indicate that the

failure to clean up a spill of uranyl would constitute a

violation of any portion of the Atomic Energy Act. How-

ever, such a failure to act was considered a violation by

NRC, and therefore could be considered a “requirement”

as called for in the above statute. Assuming that such

is the case, I do not consider that Mrs. English deliber-

ately caused a violation under the circumstances of this

case. Respondent contends on one hand, that Mrs. Eng-

lish’s only recourse with regard to discovered violations

was to report them to management, which she did to no

avail, or to the NRC. On the other hand, Respondent

would have Mrs. English continue to abate violations

caused by others—namely, to clean up contamination

7 Said Ruling and Order is incorporated herein by reference.

45a

left by employees on prior shifts in violation of NRC

requirements. GE cannot have it both ways. I find Mrs.

English’s statement credible that she had not caused the

urany! stain on her work table. Her outlining of the re-

sults of some other person’s negligence and failure to

clean up was in effect, at the same time, a notice to man-

agement and a warning to fellow workers of the visible

contamination. Since Mrs. English had many times in

the past cleaned up contamination caused by other per-

sons in their preceding shifts, she was entitled to expect

that someone other than she would clean up or call at-

tention to the uranyl stain. Further, I found her credible

in her testimony that she brought the stain and red tape

to the attention of her immediate supervisor, Mr. Lace-

well, as soon as he was available to observe the same

first hand. Once the matter was brought to attention of

management, an order should have issued to clean the

stain. At least the Radiation Safety men should have

been called in to view the situation. Mrs. English, as

heretofore stated, knew that she could expect no credence

to her complaints without tangible evidence. In demon-

strating the malfeasance of others, she took the only

means available to provide visible proof to support her

past and immediate allegations. Her demonstration of

same was used as a pretext for retaliatory action, and by

way of Respondent’s motion it is also used as a basis to

defeat her claim. To allow the latter would be patently

unfair and defeat ine purpose of the Act. This was not an

act done deliberately to invoke “whistle blower’’ protection,

rather it was a means of reporting violations, albeit un-

orthodox. See S.Rep. No. 848, 95th Cong., 2d Sess. 30,

reprinted in 1978 U.S. Code Cong. & Ad. News 7303,

7204; Hochstadt v. Worcester Foundation For Experi-

mental Biclogy, 545 F.2d 222 (1st Cir. 1976).*

8In determining whether Claimant’s conduct afforded an inde-

pendent, nondiscriminatory basis for discharge, or whether it was

protected activity, the court must determine whether Claimant’s

overall conduct was so generally inimical to Employer’s interests

46a

The motion based on section 210(g) is denied.

With respect to the defense motion under section 210

(b), I find that Mrs. English’s complaint was timely filed.

Section 210(a) provides in pertinent part that “no em-

ployer. . . may discharge any employee or otherwise dis-

criminate against any employee with respect to his. . .

employment. . .” 42 U.S.C. § 5851(a). Section 210(b)

provides that “any employee who believes that he has

been discharged or otherwise discriminated against. . .

may, within thirty days after such violation occurs,

file... a complaint with the Secretary of Labor. . . alleg-

ing such discharge or discrimination.” 42 U.S.C. § 5851

(b).

Mrs. English alleged in her complaint continuing acts

of discrimination by GE, as a result of her protected

activities, from December 15, 1983, culminating in her

transfer out of the Chemet Lab on March 15, 1984, and

her discharge on July 30, 1984. GE contends that the

thirty-day statute of limitations began to run on May 15,

1984. By letter of that date, Mrs. English was notified

that as a result of her intentional failure to clean up con-

tamination she would not be all wed to return to work in

controlled areas, that her temjorary reassignment would

be extended for ninety days beginning May 1, 1984, that

open placement positions would be reviewed in an effort

to find suitable work for her, and that, in the event that

she failed to secure permanent placement by July 30,

1984, she would be “involuntarily placed on lack of suit-

able work” status. Mrs. English alleges that GE’s pur-

ported effort to find suitable work for her was merely

another pretext in its efforts to remove her from the

company.

and so excessive a3 to be beyond the protection of the statute. The

court must balance the setting in which the activity arises and the

interests and motivations of both Employer and Employee. Hock-

stadt, ibid. at pages 229, 230 and 232.

47a

GE’s reliance on the cases of Chardon v. Fernandez,

454 U.S. 6 (1981) and Delaware State College v. Ricks,

448 U.S. 250 (1980) is misplaced. Those cases involved

racial discrimination in the denial of tenure. In each of

these cases, the complainant was denied tenure and given

a one-year “terminal” contract. The court held that the

proper focus is on the time of the discriminatory act, not

the point at which the consequences of the act become

painful. Ricks, 449 U.S. at 258; Chardon, 454 U.S. at 8.

In said cases the fact of termination was not in itself

an illegal act. Furthermore, neither complainant alleged

any illegal acts subsequent to the date on which the de-

cisions to terminate were made. In the instant matter,

the statute specifies that discharge is one event upon

which a complaint may be predicated, and is thus an

illegal act in itself. Additionally, Mrs. English has es-

tablished a continuing violation; “a series of related

acts, one or more of which falls within the limitations

period.” Valentino v. U.S. Postal Service, 674 F.2d 56,

65 (D.C. Cir. 1982).

Mrs. English, therefore, did not need to file shortly af-

ter the first of the discriminatory acts, nor at any time

prior to the discharge. If this were not so, an Employer

could easily circumvent the statute by minor acts of dis-

cipline, followed by a discharge timed beyond the requisite

time limit.

GE’s motion, on both grounds, is denied.

Based on the foregoing discussion and the ruling on

the motion, I make the following findings:

1. GE was an employer subject to the ERA (Act).

2. The Respondent employer discriminated against

Complainant, by:

(a) banishing her from the Chemet Lab, and

(b) discharge from employment with GE

48a

3. Said discrimination was motivated by Complainant’s

initiation of and participation in NRC proceedings in-

vestigating Employer’s facility, specifically the Chemet

Laboratory.

4. Respondent did not carry its burden to prove that

the above discriminatory acts would have taken place,

even if the protected activity of this Complainant had not

taken place; i.e., the charge of “failure to clean up visible

contamination” was a pretext.

5. Complainant, through her testimony and that of

her witnesses (including psychologist Boyle) adequately

established causal connection and the basis for compensa-

tory damages and other relief provided by section 5851

of the Act.

6. The evidence of record considered for No. 5 finding

sufficed without the necessity of evidence by an economist.

It is concluded that Complainant established a case of

discrimination against Respondent, and in that regard

the decision of the Administrator of the Wage and Hour

Division is affirmed. With reference to the relief to be

afforded, I have followed the guidelines of DeFord, supre.

Accordingly, I must order the reinstatement of Mrs.

English’s former position since that is what the statute,

as interpreted by the DeFord court, clearly sets fori.

The balance, of the relief provided, also has been kept

strictly to the bounds of the remedies outlined in the

statute. DeFord, supra., at page 289.

Attorneys’ Fees and Costs

The express statutory provision for Complainant’s at-

torney fees is as follows in the ERA:

If an srder is issued under this paragraph, the

Secretary, at the request of the complainant shall

assess against the person against whom the order is

issued a sum equal to the aggregate amount of all

49a

costs and expenses (including attorneys’ aru expert

witness fees) reasonably incurred, as determined by

the Secretary, by the complainant for, or in connec-

tion with, the bringing of the complaint upon which

the order is issued. 42 U.S.C. § 5851 (b) (2) (B).

Complainant’s attorneys have filed petition for fees

and costs along with numerous supporting documents.

The total of attorneys’ fees and expenses claimed is

$543,660.95. Respondent filed a Memorandum in Oppo-

sition to said petition.

The determination on whether the items listed were

“reasonably incurred” requires a logical starting point.

Two cases, frequently cited in attorney fee matters, have

been used to provide the outline for this subject.

In the Lindy Brothers Builders, Inc. v. American Radi-

ator & Standard Sanitary Corp., 487 F.2d 161 (8rd Cir.

1973) the “lodestar” approach was set forth. Under this

analysis the number of hours spent and the manner that

they were spent is first considered; next the reasonable

hourly rate is fixed, considering the attorney’s reputation

and status (contingency aspects and quality may increase

or decrease the “lodestar”, which is the figure for hours

times hourly rate). In Johnson v. Georgia Highway Exr-

press, Inc., 488 F.2d 714 (5th Cir. 1974), a race dis-

crimination case, twelve factors were recited:

(1) the time and labor required; (2) the novelty and

difficulty of the questions involved; (3) the skill nec-

essary to perform the legal services properly; (4)

the preclusion of other employment by the attorney

due to the acceptance of the case; (5) the customary

fee: (6) whether the fee is fixed or contingent; (7)

the time limitations imposed by the client or circum-

stances; (8) the amount involved and the result ob-

tained; (9) the experience, reputation and ability of

the attorney; (10) the undesirability of the case;

(11) the nature and length of the professional rela-

50a

tions with the client; and (12) awards of similar

cases.

Counsel for Respondent, in his memorandum suggested

categories for the items of work to facilitate determining

~whether the hours were reasonably spent. I have kept

this in mind. In Copeland v. Marshall, 641 F.2d 880, the

court was upheld on the use of the “lodestar” approach,

with a reduction of hours which were non-productive. In

deciding which hours to reduce (and in some instances,

the eliminating of total hours for certain items) I have

carefully reviewed the New York Gaslight Club v. Carey,

100 S.Ct. 2024 (1980) and the later Webb v. Board of

Education of Dyer County, 105 S.Ct. 1923 (1985). I

consider the latter case as more pertinent to the case at

hand. I incorporate by reference the reasoning of the

Webb case in the following discussion.

As stated by the Sixth Circuit court in DeFord, supra.,

a section 585l1(a) case is a simple one requiring the

Complainant to prove three elements (see page 8 of this

decision). This case was not one that required hearings

on interlocutory rulings of this administrative law judge

in the U.S. District Court for D.C. or in the Court of

Appeals for the D.C. Circuit. Such hours are deleted

from consideration. Time spent in challenging the NRC

determination was eliminated. Those items which lack

specificity were not considered. It was not important that

NRC find merit in each of Mrs. English’s complaints, nor

was the mode of NRC investigation material to this case

(see Discussion, this Decision). The words “legal re-

search” are assumed to relate to the subjects listed for

the same date. I had the choice of eliminating all such

references for being non-specific or making the above as-

sumption; where there appears no reason to research the

subject of a date in question, the “research hours” will

be eliminated. It is regrettable the Complainant’s attor-

neys spent so n uch time in re-arguing their case-in-chief

in the documents for the attorney fee request without

5la

devoting short specific explanation of matters researched,

subjects of conferences and telephone calls, and subjects

discussed with witnesses.

Mr. Ratner’s hours will be discussed first. His hours

are reduced by 1773 hours. Drastic reductions were made

due to the non-specific quality of many items, the work

on unrelated matters, excessive “legal research” and the

plethora of conference hours. I allowed reasonable air

travel time because the case necessitated travel from Mr.

Ratner’s office to Wilmington, N.C. I do not find merit

to the argument that local counsel coula have handled the

ease since GE is the largest single employer in Wilming-

ton, and finding a local attorney would naturally be dif-

ficult. Respondent’s attorneys were also from out of town.

Reduction was further made on the basis that much of

the time spent was for items of work that were clerical

and administrative in nature. Further, as Respondent,

suggests, the excessive hours per day are just not credi-

ble, considering the consecutive days claiming over 16

hours per day.

Mr. Ratner’s experience and background, while im-

pressive, does not convince this judge that it is worth

$185.00 per hour for this type of case. On the one hand,

Mr. Ratner argues that he should receive credit for all

hours on research because the field of law involving

“whistle blower” cases was unfamiliar to him, but at the

same time he expects the same fee as for his acknowledged

field of expertise. The “lodestar” figure here would be

185. times the hours left, 341, totalling $63,085.00. I have

taken into account, however, the factors set forth in John-

son, supra. and the guidelines of Lindy supra. I found

the most helpful were the factors for adjustment of the

lodestar figure discussed in the Lindy case: (1) com-

plexity and novelty of issues; (2) quality of work ob-

served by the judge; (3) amount of recovery. As was

stated above, in the discussion of DeFord, the case is a

simple one with three basic elements to prove. Actually,

52a

in this case, the only element of the three requiring more

than minimal evidence was the connection between the

discriminatory acts and the “protected activity”. This

could have been accomplished in far less time by the testi-

mony of the Complainant, witness Malpass and one or

two management witnesses. Witness Mossman was needed

on rebuttal of the points made by the defense and the

psychologist expert was needed to establish a portion of

proof of damages. This court repeatedly admonished

counsel to limit adversary hostilities and to avoid exces-

sive direct examination and cross-examination. Addition-

ally, far too much time was wasted on arguing minor

points of evidence as well as service of subpoenas on un-

necessary witnesses. The quality of Mr. Ratner’s trial

work observed by this judge would be rated as below

average for the most part. Associate counsel Schiller

elicited far more pertinent information in his examina-

tion in considerably less time than Mr. Ratner took for

establishment of minor points. The time spent in pro-

ducing material that was newsworthy for newspapers

and television, may have been needed, as Mr. Ratner put

it, to force GE into a position to settle the case, but it had

no place during court-room hours.

The amount recovered, when the value of the back pay

and fringe benefits are considered along with compensa-

tory damages, was adequate in this case. The contin-

gency factor is a plus for Complainant’s attorney, but a

minor one considering the facts of the case.

I find that total trial time for the Complainant’s case,

including rebuttal evidence should have taken three and

one-half days. Time for the defense could not be con-

trolled by Complainant’s counsel, though cross-examina-

tion could have been reduced. Accordingly, I reduce the

hourly rate to $100.00 due to consideration of the three

Lindy adjustment factors. Total fee allotted to Mr. Rat-

ner: $34,100.00.

53a

Following the same format as in the reduction of Mr.

Ratner’s requested hours, I reduce Mr. Schiller’s hours by

456.75, so that his total allowable hours total 366.75. The

“lodestar” for Schiller, using che hourly rate requested

would equal a total fee of $45,843.75. However, in con-

sidering that Mr. Ratner was the lead attorney, along

with the three factors of Lindy, I reduce the hourly rate

to $90.00. I found Mr. Schiller more effective than Mr.

Ratner in examination of witnesses, less of a disruptive

element in court, but much of his work duplicated that of

Mr. Ratner’s and his talents were wasted in clerical or

administrative work. His total fee is therefore adjusted

to $33,007.50.

I find that the use of any other attorneys was unneces-

sary considering that two attorneys handled the defense

of this case in excellent fashion. In many ways, consid-

ering the adverse finding by the Department of Labor

administrator and the fact situation, the defense case was

the more difficult to present. I therefore eliminate Mr.

Nagle’s fees entirely.

I also eliminate the cost of Ms. Jo G. Wilson’s fees and

expenses, as representing the ordinary costs of running

a law office. Two paralegals were not needed. Ms.

Zubrin’s paralegal hours, through no fault of her’s, never-

theless involved much research that had no materiality

to this case. Some of her research pertained to proper

subjects and her work in the courtroom saved time for

the court as well as attorneys. Such work was needed

specifically for this case. However, a good deal of Ms.

Zubrin’s work could be classified as straight secretarial,

and I have deducted accordingly. I allow 60 hours rep-

resenting the total allotted, for Ms. Zubrin’s services

after deductions, or $1,200.00.

Mr. Jeannett’s hours appear to be those of a legal sec-

retary, and nothing is allowed for his time. (See Hens-

ley v. Echerhart, 461 U.S. 424, 103 S.Ct. 1933 (1983).

54a

With reference to costs and expenses, I find that ex-

pert witnesses Mossman and Boyle were necessary but

Respondent’s counsel makes a valid point in stating that

the hours for witness Mossman were excessive in view

of 15 minutes of testimony. Even considering that the

expert assisted Mr. Ratner in devising relevant questions

of Respondent’s witnesses, I find that much of Mr.

Mossman’s time was unnecessary for this case. All of the

time allotted, during brief testimony, to setting out Mr.

Mossman’s standards vis a vis NRC’s or those of GE

appear barely relevant. Keeping in mind that an extra

trip was necessitated due to unforeseen changes in sched-

uling of witnesses and that possibly eight hours were

spent waiting to be called on the first day that his testi-

mony was expected, I will allow a total of $1,850.00 to

include this witness’ fees and expenses.

The other items of “expense” and costs are outrageous

with reference to Mr. Ratner. Expenses listed for Mrs.

English are not of the type allowable under the statute

and regulations, therefore none are allowed. Expenses

for Schiller, though also excessive, appear much more in

line. I will allow the costs of reasonable photocopying,

some subpoena service charges and other normal costs

plus a reasonable amount towards airfare and hotel

charges for the two attorneys and Ms. Zubrin, taking

into account that I consider the length of the trial as

unreasonable, and much of the overhead expense as re-

lating to immaterial matters. The total allowable for

reasonable costs and expenses is $2,850.00 (additional to

attorney, paralegal and Professor Mossman’s expense).

This includes Dr. Boyle’s time, in court only. Anything

over and above that amount, I find to be unnecessary due

to the excessive trial time used, the immaterial motions,

the proceedings in other courts and the excessive docu-

ment production. No other items, whether termed fees,

expenses or costs are allowed, though all documents on

fees, expenses and costs have been considered.

55a

ORDER

1. Respondent General Electric Company is to take

affirmative steps to cease discriminatory acts against

Complainant.

2. Complainant is to be reinstated to her former posi-

tion together with compensation for any back pay loss

calculated from the time of the last pay period plus in-

terest at a rate per annum equivalent to the coupon yield

of the average accepted auction price of the last 52-week

U.S. Treasury bills. Such interest shall be payable from

the date of Complainant’s cessation of employment to the

date that such back pay is actually paid. Any rate in-

erease since the cessation of employment is to be calcu-

lated into the back pay compensation.

3. Complainant is to be reinstated as to terms, condi-

tions and privileges of her employment so as to make her

whole for any such losses suffered by cessation of employ-

ment.

4. Respondent is entitled to set off any contributions

owed to savings plans formerly participated in by Com-

plainant, if such employee contributions ceased during

her time off employment, and in order to bring Complain-

ant up to date on any such plan.

5. Compensatory damages are awarded, and are in-

tended to cover past and future medical expenses (not al-

ready covered under any employee Health and Accident

plan which is to be fully reinstated pursuant to order No.

3 above) and as recompense for the humiliation and men-

tal suffering of the Complainant due to Respondent’s dis-

criminatory acts. Said compensatory award is $70,000.00.

6. Respondent is to pay Complainant’s attorneys fees

and expenses, as follows:

(a) A fee for legal services to Mozart Ratner, Esq.

of $34,100.00.

56a

(b) A fee for legal services to Arthur M. Schiller,

Esq. of $33,007.50.

(d) Expert witness fees and expenses for Professor

Mossman of $1,850.00.

(e) All other costs and expenses not covered above,

including Dr. Boyle’s courtroom appearance fee,

in the amou.ut of $2,850.00.

The aggregate amount of the above costs and expenses

allowed to Complainant is $73,007.50.

/s’ Robert J. Brissenden

ROBERT J. BRISSENDEN

Administrative Law Judge

Dated: Aug. 1, 1985

San Francisco, CA

RJB:sem

57a

NUCLEAR REGULATORY COMMISSION

GENERAL ELECTRIC COMPANY

Wilmington, North Carolina Facility

Docket No. 70-1113

ISSUANCE OF DIRECTOR’S DECISION UNDER

10 CFR 2.206

Noticve is hereby given that the Deputy Executive Di-

rector for Nuclear Materials Safety, Safeguards, and

Operations Support has granted in part and denied in

part a petition under 10 CFR 2.206 filed by Anthony Z.

Roisman and Mozart G. Ratner on behalf of Vera M.

English (Petitioner). In her petition, Mrs. English re-

quested imposition of a civil penalty in the amount of

$40,635,000 upon General Electric (GE), plus $37,500

per day for every day after April 6, 1987, that GE does

not take corrective action, and imposition of a license

condition upon GE requiring the Licensee to fully com-

pensate Mrs. English for her economic losses in the past

and future resulting from GE’s alleged discrimination,

for medical expenses entailed as a result of the alleged

discrimination, for expenses incurred in “fighting GE”,

and for “physical and mental pain she has endured” as

a result of GE’s actions.

The Petitioner’s request that enforcement action be

taken against GE has been granted. As a result of this

decision, a Notice of Violation and Proposed Imposition

of Civil Penalty in the amount of $20,000 is also being

issued. However, the Petitioner’s requests that the NRC

impose a civil penalty in the amount of $40,635,000 plus

$37,500 per day for each day after April 6, 1987 and that

the NRC impose a license condition upon GE requiring

the Licensee to compensate Mrs. English for her expenses

and losses are denied. Furthermore, the Petitioner’s re-

58a

quest as set forth in her December 13, 1984 petition that

the NRC take enforcement action against GE based upon

certain other alleged instances of wrongdoing is also

denied.

The reasons for this decision are fully described in the

“Director’s Decision Under 10 CFR 2.206,” issued on

this date, which is available for public inspection in the

Commission’s Public Document Room, 1717 H Street,

NW, Washington, DC 20555.

FoR THE NUCLEAR REGULATORY COMMISSION

/s/ Hugh L. Thompson Jr.

HuGH L. THOMPSON, JR.

Deputy Executive Director for Nuclear

Materials Safety, Safeguards and

Operations Support

Dated at Rockville, Maryland

this 13th day of March 1989

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.