Supplemental Appendix — Saporito v. Department of Labor

5

meeting. T. 1793; 2024. Harley found Saporito in the 1&C shop

around 5:00 PM and told him that Odom wanted to meet with him to

discuss Saporito’s safety concerns. Saporito at first replied that he

did not have any safety concerns. T. 1794. Harley told Saporito to be

prepared to holdover (stay at work beyond his regular quitting time)

to attend the meeting with Odom. Saporito then said he would not

holdover because he had to attend to personal family business. /d.

Harley told Kappes that Saporito said he did not have any nuclear

safety concerns and refused to holdover for the meeting . T. 1795;

2024.

When Kappes told Odom about Saporito’s response, Odom

said he still wanted to have the meeting. Kappes then went to the

[&C shop and told Saporito to come tot the meeting with Odom. T.

2025. Saporito at first refused to come to the meeting, reiterating that

he had personal family matters to address. T. 2026. When Kappes

again ordered Saporito to holdover for the meeting, Saporito said he

was sick and would not stay. T. 2027; RT. 119-120. After Saporito

refused several times to holdover, Kappes told Harley that Saporito

was suspended until further notice for defying an order, and that

Harley was to take Saporito to the gate and take his badge. T. 2027-

29. This incident occurred at about 5:15 or 5:20 PM on November 30.

T. 2030.

When Kappes told Odom about this incident, Odom believed

he had to support Kappes in his disciplining of Saporito for his act of

“gross insubordination.” RT. 121. However Odom also felt that it

was necessary for Saporito to return to the plant so that he could

continue talking with the outside investigators. T. 1453. Odom told

Kappes to hold the suspension in abeyance and get Saporito back to

the plant. T. 2034. Kappes called Saporito the next day; however,

Saporito said he would be out sick until] December 12 for medical

disorders related to stress. T. 1254; 2035; RT. 124.

Odom decided to order Saporito to be examined by a

company doctor because Odom wanted to learn whether Saporito’s

claim of being too ill to attend the November 30 meeting was

legitimate and to determine if Saporito was physically fit to perform

the duties of his job. T. 1454; 1456; RT. 124. When Saporito

returned to work on December 12, he refused to see or be examined

6

by a company doctor. T. 2042. The next day, Saporito suggested to

Kappes that the company doctor speak with his doctor as a way of

resolving these issues. Kappes agreed on the condition that the

company doctor found the communication with Saporito’s physician

sufficient to make a determination regarding Saporito’s medical

condition. T. 2048-49.

Kappes learned the next day that the company doctor, Dr.

Richard Dolsey, had concluded that he still needed to examine

Saporito to give his opinion whether Saporito had been too ill to

attend the November 30 meeting with Odom and whether he was

physically fit to perform the duties of his job. T. 2050. When Odom

learned this, he decided it was still necessary to order Saporito to be

examined by Dr. Dolsey. Saporito was directed to be examined by

the doctor on December 16. Saporito said he would go to the

doctor’s office but would not permit the doctor to examine him. T.

2051. On December 16 Kappes and Odom received word that

Saporito had gone to the doctor’s doctor’s office but had refused to

be examined. T. 2053; RT. 127; see also T. 836; RT. 790.°

Odom concluded that Saporito’s refusal to be examined by

the company doctor was another act of insubordination and decided

to discharge Saporito. T. 1482; RT. 127. The discharge notice gave

three reasons for firing Saporito: |) refusal on November 23, 1988,

to comply with Odom’s order to provide information about activities

at the plant that could affect public health and safety, for which

Saporito’s access to vital areas and radiation controlled areas was

restricted; 2) refusal to hold over for a meeting with Odom on

November 30, 1988, for which Saporito was suspended indefinitely;

and 3) refusa! of an order on December 16, 1988, to be examined by

the designated company doctor. R-104.

. Dr. Dolsey wrote a detailed letter to FP&L explaining what

happened when Saporito came to his office on December 16, which

corroborates what Odom was told about the outcome of Saporito’s

visit to the doctor’s office. Dr. Dolsey reported that Saporito “said

very vehemently that he would not allow [Dr. Dolse]” to examine

him. R-115. A union representative, who accompanied Saporito to

the doctor’s office and sat with him in the examining room,

confirmed to Odom that Saporito refused to be examined. T. 1589.

Il. ALJ Decision

The ALJ held, consistent with the Secretary’s Remand Order,

that the only issue to be decided on remand was whether FP&L

proved that it would have taken the same action against Saporito

even if he had not engaged in protected activities. He concluded that

FP&L carried its burden of proof. R. D. and O. at 32. The ALJ found

that “either of the latter two insubordinate acts [i.e., refusal to attend

the November 30 meeting with Odom and refusal to follow the order

to be examined by the company doctor] by itself would have

justified Saporito’s termination,” and that “the evidence

overwhelmingly compels this result when the two instances of

insubordination are considered as a whole.” /d. at 33.

The ALJ found that Saporito’s reasons for not attending the

November 30 meeting were “dubious, if not outright unbelievable.”

R. D. and O. at 35. Saporito’s “shifting excuses” for not attending

the meeting showed that Saporito lied to Kappes. /d. at 37. The ALJ

concluded that, even if the refusal to attend the meeting had some

protected aspect because one purpose of the meeting was to learn

Saporito’s safety concerns, Saporito “exceeded the bounds of

protected conduct [when he] b/atantly lied as to his reason for not

following that order.” R. D. and O. at 37 (emphasis in original). He

also found that Saporito was “insolent” and mocked management by

the manner in which he stated his refusal to attend the meeting. /d. at

36. .

With regard to Saporito’s refusal to be examined, the ALJ

found that FP&L clearly explained to Saporito several times the

reasons for requiring him to be examined by Dr. Dolsey, that they

were valid reasons, and that the order would have been given even if

Saporito had not engaged in protected activity. R. D. and O. at 39-41.

The ALJ also rejected Saporito’s argument that FP&L “orchestrated”

the sequence of events leading to the order that Saporito be

examined as a means of “luring” him into insubordination for which

he could be discharged. R. D. and O. at 42. He found that FP&L

could not have known that -Saporito would refuse to attend the

meeting with Odom on November 30, that Saporito would give as a

reason for not attending that he was sick, that he wouid be on sick

8

leave for almost two weeks, or that Saporito would refuse to be

examined by Dr. Dolsey. /d.

The ALJ concluded that FP&L did not fail to follow its

progressive discipline policy with Saporito because Saporito was

warned about the consequences of failure to attend the meeting with

Odom and was first suspended for his refusal. R. D. and O. at 44.

The ALJ relied on evidence that other employees received

substantial discipline, including discharge in two cases, for

insubordination. The ALJ concluded that Saporito’s “repeated

insubordination,” which went beyond the bounds of protected

activity, was the cause of his termination, and that FP&L proved that

these acts of insubordination “would have led to Saporito’s

termination even if he had not insisted on his right to speak directly

with the NRC.” R. D. and O. at 45.

DISCUSSION

Il. Procedural Issues

A. Timeliness of Respondent’s Reply Brief

Because Saporito’s initial brief did not conform to the type

size and style limitations of the briefing schedule, FP&L was given

an opportunity to file a longer reply brief within 30 days of receipt of

the order granting the right to file such a brief. Saporito argues that

FP&L’s reply brief was untimely filed because he recetved a copy of

the Board’s order on February 24 and FP&L’s brief was filed with

the Board on March 27, that is, 31 days later. However, FP&L stated

in its response to Saporito’s motion that it received the order

granting leave to file a longer reply brief on February 25, and the

return receipt for delivery of the order by certified mail shows a

delivery date of February 25. FP&L’s reply brief was timely filed.

B. Motion to Strike Part of FP&L’s Reply Brief

Saporito also moved to strike a portion of FP&L’s reply brief

that asserted that FP&L was not allowed to introduce evidence about

Saporito’s employment history with FP&L before he arrived at the

Turkey Point nuclear plant in April 1988. That portion of FP&L’s

9

brief was simply a statement of its disagreernent with the ALJ’s

ruling. Saporito’s motion to strike is denied.

C. Motions for Remand and Reconsideration

Saporito moved to remand the entire case to give him an

opportunity to amend his complaint to cover events that occurred at

the St. Lucie nuclear power plant before he arrived at Turkey Point

in April 1988. Those events occurred long before the ERA’s then 30

days statute of limitations, and any action on them is now time

barred. The motion to remand is denied.

Saporito also moved for reconsideration and remand of Case

No. 89-ERA-07, which alleged that FP&L engaged in harassment of

Saporito for his protected activity. That motion and accompanying,

memorandum only repeats arguments raised before the Secretary. In

his June 3, 1994 Decision and Remand Order, the Secretary adopted

the ALJ’s conclusion that the alleged acts of retaliatory discipline

and harassment “were not ‘casually related to . . . [Saporito’s]

protected activity.” Slip op. at 3. The motion for reconsideration and

remand of Case No. 89-ERA-07 is denied.

D. Motion to File Second Rebuttal Brief

Saporito also moved for leave to file a second rebuttal brief

to respond to new arguments raised in FP&L’s second reply brief.

That motion is granted.

Ii. The Merits

The Secretary held in his Remand Order that when FP&L

discharged Saporito, it was motivated, at least in part, by an

illegitimate reason: Saporito’s refusal to reveal his safety concerns to

Odom on November 23. R. O. at 6-7. The issue before us now its

whether, under the dual motive analysis which is applicable under

the circumstances of this case, FP&L has proven that it would have

discharged Saporito even if, on November 23, he had not insisted on

his right to reveal his safety concerns only to the NRC. Pogue. V.

U.S. Dep't of Labor, 940 F.2d 1287, 1289-1290 (9"" Cir. 1991) (Dual

motive test set forth in Mt. Healthy City School District v. Doyle,

10

429 U.S. 274 (1977), applies where it was “undisputed” that

complainant engaged in protected activity and “that this was a

motive for disciplinary action”); Passaic Valley Sewerage

Commissioners v. United States Dep't of Labor, 992 F.2d 474, 481

3" Cir.), cert. denied, 114 S.Ct. 439 (1993). We agree with the ALJ

that FP&L has carried this burden. We turn to an examination of

each incident to determine whether Saporito’s conduct gave FP&L

legitimate grounds for discharge.

A. Refusal to Holdover and Attend Meeting with Odom

Odom decided he wanted to meet with Saporito on

November 30 for three reasons: to discuss the conditions under

which Saporito would be provided the Plant Work orders he had

requested; to determine whether Saporito actually understood what a

nuclear safety concern was; and to ask Saporito what his concerns

were because Odom had learned that Saporito had begun to reveal

those concerns to the outside investigators and thought that Saporito

might be ready to reveal them to Odom. T. 1444; RT. 117-18.

The information Odom received about Saporito’s response

was that Saporito, in front of other employees, had refused to meet

with Odom after being given a direct order by both Harley and

Kappes. T. 1794-95; RT. 120. Odom also learned that Saporito had

given changing reasons for refusing to attend the meeting: first that

he had no safety concerns; then that he had personal family matters

to attend to; and finally that he was sick. In light of Saporito’s

shifting justifications for his refusal to holdover to attend the

meeting with Odom, Saporito’s refusal appeared to Odom to be a

clear act of insubordination. T. 1451. We agree with the ALJ that

FP&L could have discharged Saporito for that reason alone.

In this regard we find it significant that FP&L did not

immediately discharge Saporito after the November 30 incident, but

instead suspended him. Indeed, FP&L proved that Saporito’s

suspension was consistent with discipline (including discharge,

suspension, and demotion) it had meted out to other employees

under similar circumstances. See R-111.

1]

We also reject Saporito’s argument that by refusing to attend

the meeting with Odom, Saporito was insisting on his right to reveal

his safety concerns only to the NRC. First, Saporito never stated as a

reason for not attending the meeting with Odom that he did not want

to be interrogated about his safety concerns.

Second, the mere fact that one of Odom’s objectives in

meeting with Saporito was to ask again about Saporito’s safety

concerns did not insulate Saporito from all directives given by his

employer. “Even when an employee has engaged in protected

activities, employers legitimately may discharge for insubordinate

behavior, work refusal, and disruption.” Abu-Hjeli v. Potomac

Electric Power Co., Case No.89-WPC-1, Sec’y Dec., Sept. 24, 1993,

slip op. at 17, citing Duram v. Brock, 794 F.2d 1037, 1041 (5" Cir.

1986). This is not a situation in which an emloyee’s alleged

insubordination was “the resuJt and manifestation of his proteced

activity.” Dodd v. Polvsar Latex, Case No. 88-SWD-0004, Sec’y.

Dec., Sept. 22, 1994, slip op. at 15-16. Saporito had a duty to comply

with the order to meet with Odom. If Odom again had asked about

Saporito’s safety concerns, Saporito then might have been justified

in refusing to reveal those concerns;’ however, because of Saporito’s

refusal to meet with Odom, this scenario is not before us.

A situation similar to this case arose in Yule v. Burns Int.’1.

Security Service, Case No. 93-ERA-12, Sec’y. Dec., May 24, 1995,

where an employee who had engaged in protected conduct refused to

follow an order to sign a training document indicating she had

’ In his Remand Order, the Secretary held that Saporito’s attempt

to by-pass the employer’s “chain of command” in favor of speaking

directly with the Nuclear Regulatory Commission was protected by

the ERA. Remand Order at |. See also, Sec. Order, Feb. 16, 1995.

However, we note that by the time Saporito refused to meet with

Odom on November 30, 1988, he had already begun meeting with

FP&L’s outside investigator with regard to his safety concerns. The

Secretary did not reach the issue whether an employee, having

initiated discussions with the company or the company’s agents with

regard to environmental or nuclear safety concerns, may then

abruptly refuse to cooperate in reporting safety concerns absent

unusual intervening circumstances.

12

received it and understood its contents. The Secretary held that the

respondent proved it would have discharged the complainant for this

insubordination even if she had not engaged in protected activities.

Yule, slip op. at 13-14. the Secretary in Yu/e found that the employee

did not make a statement that signing the training document was a

“cover-up to the NRC,” and that his analysis would have been very

different if the employee had made such a statement. Yi/e, slip op. at

10 and n.8. Similarly, our analysis in this case would also have been

different if Saporito had gone to the meeting with Odom but refused

to reveal his safety concerns when asked. However, in the

circumstances of this case, the ERA does not protect him from

disciplinary action for refusing to attend the meeting at all.

Saporito also argues that the reason he did not want to meet

Odom on November 30 was that he did not want to be questioned

about his safety concerns, and that he feared retaliation and

harassment. But Saporito himself testified that the reasons he gave

Kappes for not attending the meeting were that he had family

business to attend to and that he was sick, not that he did not want to

be questioned about his safety complaints. T. 919-20.

Finally, Saporito cites National Labor Relations Act cases to

support his argument that Odom’s request that Saporito meet with

him violated the ERA because that order tended to coerce Saporito

into refraining from exercising his rights under the Act. The courts

have applied a multi-factor test to determine whether employer

interrogation about protected activities tends to be coercive. One of

the factors to be considered is whether the employer had a valid

purpose in questioning the employee. NLRB v. McCullough

Environmental Services, Inc., 5 F.3d 923, 928 (5" cir. 1993). In

NLRB v. Brookwood Furniture Div. of U.S. Indus. 701 F.2d 452,

460-462 (5" Cir. 1983), the court held that questioning of employees

about union activities is not illegal per se, and noted that in none of

the alleged instances of coercive interrogation did the employer have

a valid purpose for questioning employees about their support for a

union. Here, Odom clearly had a valid purpose in wanting to

question Saporito about his safety concerns: to learn whether any of

those concerns had immediate significance for public health and

safety. Moreover, Odom had other valid reasons to need to speak

with Saporito, most important his need to set up a procedure for

13

Saporito to have access to the PWOs. We hold that Odom’s attempt

on November 30 to question Saporito about his safety concerns and

to meet with him about making the PWOs available did not have the

effect of coercing Saporito into refraining from exercising his right

under the ERA to contact NRC about his safety concerns.

In light of Saporito’s shifting explanations for his refusal to

meet with Odom, and his failure to invoke any legitimate ERA-

related reason for declining to meet. FP&L has established that

Odom was justified in taking disciplinary action against Saporito for

his refusal to meet with Odom.

B. Refusal to be Examined by Designated Doctor

Saporito gave different reasons for refusing to meet with

Odom on November 30, saying first that he had to attend to family

matters and then stating he was sick and could not stay for the

meeting. This inconsistency raised questions in Odom’s mind about

whether Saporito was in fact too ill to meet with him; it impressed

Odom as a “fabrication.” RT. 788. Saporito then told Kappes the

next day that he would be on sick leave until December 12 for

medical disorders related to stress. Odom reasonably became

concerned about Saporito’s physical ability to perform his job and

decided Saporito should be examined by the designated company

doctor.

Later Odom was informed, both by the Human Resources

Department and by a union steward who accompanied Saporito to

the doctors office, that Saporito had refused to be examined by the

doctor.“ RT. 790-91. This appeared to Odom as another act of

insubordination by Saporito, which, taken together with the refusal

x

Saporito argues that he never explicitly refused to be examined.

The record shows that Saporito did not say explicitly that he refused

to be examined, but his actions in repeatedly asking the doctor

questions had the same effect. The doctor told the FP&L

representative who accompanied Saporito to the doctor’s office that

Saporito had refused to be examined and testified to that effect at the

first hearing. T. 628-630. Under the circumstances, FP&L was

justified in concluding that Saporito had refused the examination.

14

to meet with him on November 30, appeared to Odom to be gross

insubordination. Odom believed that Saporito’s behavior of picking

and choosing which orders would be obeyed could not be tolerated.

T. 1483; RT. 797. Although Odom was aware that firing Saporito

might look bad under the circumstances, he felt that the potentially

negative impact of the discharge was outweighed by the gravity of

Saporito’s insubordination, which was common knowledge at the

plant and which would set a bad precedent if not addressed by

management. RT. 769; 797.

This case is distinguishable from Diaz-Robainas v. Florida

Power & Light Co., Case No. 92-ERA-10, Sec’y. Dec., Jan. 19, 1996,

in which an employee was fired for refusing to undergo a

psychological fitness for duty examination. The Secretary held there

that the order to submit to the examination was a pretext to

discourage the employee from engaging in protected activity. Diaz-

Robainas, slip op. at 19. Because the order to undergo the

examination was illegal, the Secretary held that FP&L violated the

ERA when it fired the employee for refusing to submit to the

examination. Diaz-Robaines, slip op. at 20. In this case, | contrast,

FP&L had legitimate grounds to require Saporito to submit to a

medical examination: that he had refused to attend a meeting with

Odom because he claimed to be sick and then took extended sick

leave for medical disorders which he asserted were related to stress.

We join the ALJ in finding that FP&L has proven by a

preponderance of the evidence that it would have discharged

Saporito for his insubordination in refusing to attend a meeting with

Site Vice President Odom and refusing to comply with the order to

be examined by the designated company doctor, even if he had not

engaged in protected activity on November 23. Accordingly, the

complaint in this case 1s DISMISSED.

SO ORDERED.

SEs =

PAUL GREENBERG

Member ee

os Oo

CYNTHIA L. ATTWOOD

Acting Member

16

ADMINISTRATIVE REVIEW BOARD

CERTIFICATE OF SERVICE

CASE NAME : Thomas J. Saporito, Jr., v. Florida Power &

Light Company

ARB CASE NO.: 98-008

ALJ CASE NOS.: 89-ERA-7, 89-ERA-17

DOCUMENT : Final Decision and Order

A copy of the above-referenced document was sent to the following

persons on

we | | 998

CERTIFIED MAIL:

Thomas J. Saporito, Jr.

6230 W. Indiantown Road

#7-355

Jupiter, FL 33458

James S. Bramnick, Esq.

Paul C. Heidmann, Esq.

Muller, Mintz, Kornreich, Caldwell,

Casey, Crosland & Bramnick, P.A.

First Union Financial Center

200 S. Biscayne Blvd.

Suite 3600

Miami, FL 33131-2338

Philip H. Forbes, Esq.

Miller and Forbes

11382 Prosperity Farms Road

Suite 227

Palm Beach Gardens, FL 33410

Billie Pirner Garde, Esq.

Garde Law Office

One Massachusetts Ave., N.W.

Suite 800

Washington, DC 20001

David K. Colapinto

Kohn, Kohn & Colapinto

3233 P Street, NW

Washington, DC 20007

REGULAR MAIL:

John R. Fraser

Acting Administrator

Wage and Hour Division, ESA

U.S. Department of Labor

200 Constitution Ave., N.W.

Room S-3502, FPB

Washington, DC 20210

Steve J. Mandel, Esq.

Associate Solicitor

Division of Fair Labor Standards

U.S. Department of Labor

200 constitution Avenue, NW

Room N-2716, FPB

Washington, DC 20210

Employment Standards

Administration

Wage and Hour Division

1150 S.W. First Street

Room 202

Miami, FL 33130

Thomas Buckley

Directorate of Compliance Programs

U.S. Department of Labor/OSHA

200 Constitution Avenue, NW

Room N-3468

Washington, DC 20210

Director, EICS

U.S. Nuclear Regulatory Commission

Region II ~ Suite 2900

101 Marietta Street, N.W.

Atlanta GA 30323

Director, Office of Enforcement

U.S. Nuclear Regulatory Commission

Washington, D.C. 20555

NRC Enforcement Coordinator

101 Marietta Street, N.W.

Suite 2900

Atlanta, GA 30323-0199

Hon. John M. Vittone

Chief Administrative Law Judge

Office of Administrative Law Judges

800 K Street, NW, Suite 400

Washington, DC 20001-8002

Hon. David W. DiNardi

Administrative Law Judge

Office of Administrative Law Judges

John W. McCormack Post Office

and Courhouse, Room 507

Boston, MA 02109

Fa) gst at oer

No.0S-717) yr rey renner

In The

SUPREME COURT of the UNITED STATES

THOMAS SAPORITO,

Petitioner,

. &

U.S. DEPARTMENT OF LABOR, ET AL.,

Respondenis.

On Petition For A Writ Of Certiorari To The

United States Court Of Appeals For The Eleventh Circuit

BRIEF IN OPPOSITION

Ellen S. Malasky

Counsel of Record

Mitchell Ross

Kelly Cheary Sulzberger

Florida Power & Light Company

Attorneys for Intervenor

700 Universe Boulevard

Juno Beach, Florida 33408

561-691-7126

RESTATEMENT OF QUESTIONS PRESENTED

(1)

(2)

WHETHER THE ELEVENTH CIRCUIT COUT

OF APPEALS CORRECTLY HELD THAT RES

JUDICATA BARRED ANY ~~ FURTHER

REVIEW OF THE MERITS OF THIS CASE

WHERE:

(A) FINAL JUDGMENT WAS ENTERED BY

THE ELEVENTH CIRCUIT SIX YEARS PRIOR

TO THE FILING OF THE INSTANT PETITION

FOR A WRIT OF CERTIORARI BASED UPON

THE SAME FACTS AND CLAIMS AND

WHERE PETITIONER HAD A FULL AND

FAIR OPPORTUNITY TO LITIGATE ALL HIS

CLAIMS;

(B) NO NEW AND SUBSTANTIALLY

DIFFERENT EVIDENCE HAS EMERGED IN

THE INTERIM;

(C) THERE HAS BEEN NO CONTRARY

CONTROLLING AUTHORITY ISSUED IN

THE INTERIM; AND

(D) THE EARLIER RULING WAS NOT

CLEARLY ERRONEOUS AND HAS NOT

WORKED ANY. MANIFEST INJUSTICE IN

THIS CASE.

WHETHER THIS COURT HAS

JURISDICTION TO REVIEW A _ FINAL

ORDER OF THE ELEVENTH CIRCUIT

COURT OF APPEALS ENTERED OVER

SIX YEARS PRIOR TO THE INSTANT

PETITION FOR A WRIT OF CERTIORARI.

11

CORPORATE DISCLOSURE STATEMENT

FPL Group, Inc. 700 Universe Boulevard, Juno Beach, FL

33408

Florida Power and Light Company, a wholly owned

subsidiary of FPL Group, Inc., 700 Universe Boulevard,

Juno Beach, FL 33408

ill

TABLE OF CONTENTS

Restatement of Questions Presented .......................

Corporate Disclosure Statement ......................2000

WR IE dasdedheedcicbicdansaenisddcNencsteccieeceis

ON EE SII dctiedudecccacensoseneacdsseueeeeuen

SENS WEN SI si cickdé crvesesseccsqesvesoiserven

A. Summary of Pertinent Record Facts .............

B. Summary of Procedural History ..................

Reasons for Denying the Writ .................0cc0eeeeseues

A. The Petition For Writ Of Certiorari

Should Be Denied Because It Fails To

Set Forth Any Basis For Certiorari Review......

B. The Petition For Writ Of Certiorari

Should Be Denied Because The Petition Is

Untimely As To The Board’s And The

Eleventh Circuit’s Prior Orders ...................

C. Principles Of Equity And Justice Dictate

That The Petition For Writ Of Certiorari

Be Denied In Order To Bring Finality

Te Pe ITED buntedecabddsicdeeesdévecesetinces

FS TE OL FERS eR Tipe ke

iV

TABLE OF CITED AUTHORITIES

Cases:

Conway v. Chemical Leaman Tank Lines, Inc.,

644 F.2d 1059 (5" Cir. 1981). ......ccccescescsceccsces

Jefferson v. City of Tarrant, 522 U.S. 75 (1997) ..........

Litman v. Mass. Mut. Life Ins. Co., 825 F2d 1506

(11 Cir. 1987), cert. denied,

I Waly Ce CUO AA seceestis undivetceninmaietanabedabineltain

Nevada v. United States, 463 U.S. 110 (1983) ...........

New Haven Inclusion Cases, 399 U.S. 392 (1970) .......

Pub. Utils. Comm’n v. United Fuel Gas Co.,

FEF Weis Ie CCIE: oeena gn senctbdcceveutcarunsacecianes

Thomas J. Saporito v. Florida Power & Light Co.,

ARB Case No. 98-008, 1998 WL 470668

teak: $1; GONE sik ccd sumeearone

Thomas J. Saporito v. Florida Power & Light Co.,

ARB Case No. 04-079, 2004 WL 3038071

8 & Se. RRS Se Reach alee nent

Saporito v. U.S. Dep’t of Labor,

192 F.3d 130 (1999) (per curiam), reh’g en banc

denied, 210 F.3d 395 (11" Cir. 2000)

(unpublished table decision) .................cee eee ee ee

Schiavo ex rel. Schindler v. Schiavo, 403 F.3d

TTT aa EE ree pa on emenesnee

Southern Power Co. v. North Carolina Pub. Serv. Co.,

PF a PE NEE Nidebsns cacciaxinissiteeusesuinioece:

U.S. v. The Ohio Power Co., 353 U.S. 98, 109

ROUTE scecscvabuckasveukeeheustbhinsiecutactisiatanseavents

Page

6,7

3,4

Statutes: Page

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RESTATEMENT OF THE CASE

A summary of the material facts and procedural history in

this case is set forth below.

A. Summary Of Pertinent Record Facts.

Petitioner, Thomas Saporito (“Saporito”), worked for

Florida Power & Light Company (“FPL”) from 1982 until

December 22, 1988, in various positions at several of FPL’s

nuclear and non-nuclear power plants. Saporito’s last position

worked was as an Instrument and Controls Specialist at FPL’s

Turkey Point nuclear plant in south Florida.

In November 1988, FPL’s Site Vice President at Turkey

Point (John Odom) directed, on more than one occasion, that

Saporito appear for a meeting with Mr. Odom to discuss alleged

nuclear safety concerns held by Saporito. Saporito refused to

attend the meeting and was subsequently suspended for gross

insubordination. Mr. Odom held the suspension in abeyance until

an investigation into the alleged safety concerns could be

completed.

When informed that he must report back to work, Saporito

informed FPL that he would be out sick for two weeks for medical

disorders related to stress. Upon Saporito’s return to work after

the two-week period, Mr. Odom ordered a fitness-for-duty exam of

Saporito pursuant to FPL policy. Saporito refused to be examined.

As a result, Mr. Odom terminated Saporito’s employment with

FPL for continued gross insubordination.

B. Summary Of Procedural History.

This proceeding arises under Section 210 (now 211) of the

Energy Reorganization Act of 1974 ("ERA"), 42 U.S.C. § 5851,

and stems from complaints filed by Saporito with the United States

Department of Labor ("DOL") in 1989. In his DOL complaints,

Saporito alleged that he was subjected to harassment and

discriminatory treatment (Case No. 89-ERA-7) and later

discharged (Case No. 89-ERA-17) because he engaged in certain

activities protected by the ERA.

The two cases were consolidated for the initial hearing,

which was held in February 1989. Following that hearing,

Administrative Law Judge Anthony J. lacobo issued a

Recommended Decision and Order denying Saporito's complaints

(dated June 30, 1989).

Five years later, the Secretary of Labor issued a Decision

and Remand Order (dated June 3, 1994). In that Decision, the

Secretary found in favor of FPL and held that he agreed with Judge

lacobo's Recommended Decision that the allegations of

harassment and retaliatory discipline encompassed in Case No. 89-

ERA-7 were not causally related to any protected activity in which

Saporito may have engaged. In the Decision and Remand Order,

however, the Secretary of Labor disagreed with Judge lacobo's

Recommended Decision with respect to Case No. 89-ERA-17, and

remanded the case to Judge lacobo for a “dual motive”

determination of “whether FPL would have discharged Saporito

for the unprotected aspects of his conduct” which related to his

protected activity. ;

On February 16, 1995, the Secretary of Labor issued an

Order indicating that his June 3, 1994 Decision and Remand Order

should not be interpreted as giving an employee an absolute right

to refuse to report safety concerns to plant management. Instead,

the Secretary stated that an employee's right to bring concerns to

the Nuclear Regulatory Commission (“NRC”) is separate from his

duty to reveal his safety concerns to management. In other words,

the Secretary stated that an employer may discipline an employee

for refusing to reveal his safety concerns to management, even

though it may not discipline an employee for taking information

directly to the NRC.

The hearing on remand was held in January 1997. Because

Judge lacobo had retired, the case was reassigned to

Administrative Law Judge David W. DiNardi.

Following that hearing, Judge DiNardi issued a

Recommended Decision and Order on Remand (dated October 5,

1997). On August 11, 1998, the Administrative Review Board

(the “Board”) issued a Final Decision and Order in which it agreed

with the DiNardi decision and dismissed the Complaint, finding

that FPL would have discharged Saporito for his insubordination,

even if he had not engaged in protected activity. See Thomas J.

Saporito_v. Florida Power & Light Co., ARB Case No. 98-008,

1998 WL 470668 (Aug. I1, 1998) (“ARB-1998"). Saporito

appealed the Board’s decision in that case to the Eleventh Circuit

Court of Appeals in 1999. The Eleventh Circuit affirmed the

Board's decision, and subsequently denied Saporito’s motion for

rehearing en banc. See Saporito v. U.S. Dep't of Labor, 192 F.3d

130 (1999) (per curiam), reh’g en banc denied, 210 F.3d 395 (11"

Cir. 2000) (unpublished table decision). The Eleventh Circuit

found that “[Saporito’s}] complaints in this case presented fact-

intensive issues and substantial evidence in the record supports the

findings that resulted in the dismissal of these complaints. We also

find that Saporito has failed to demonstrate that proper legal

standards were not applied.” Id. Saporito subsequently attempted

to file a petition with this Court, but did not comply with filing

deadlines.

On January 25, 2004, more than five years after the

Board’s final decision in ARB-1998 and four years after the

Eleventh Circuit's affirmance of that decision, Saporito filed with

the Board a Motion for Reconsideration of the Board's decision in

ARB-1998. Then, on May 12, 2004, Saporito filed with the Board

a Motion for New Trial pursuant to Rule 60(b)(6) of the Federal

Rules of Civil Procedure. On or about June 7, 2004, Saporito filed

a Supplemental Motion for Reconsideration. The Board denied

Saporito’s motions and dismissed the case, finding that the

Eleventh Circuit's adjudication was final on the merits and,

therefore, any further proceedings were barred by the doctrine of

res judicata. See Thomas J. Saporito v. Florida Power & Light

Co., ARB Case No. 04-079, 2004 WL 3038071 (Dec. 17,

2004)(“ARB-2004"). Specifically, in its decision in ARB-2004,

the Board denied Saporito’s motions for reconsideration and new

trial, reasoning that:

The Eleventh Circuit decision is the final

adjudication on the merits of Saporito’s 1989

complaint. That decision stands as a complete

bar to further review of the merits of Saporito’s

complaint. “[{T}he doctrine of res judicata

provides that when a final judgment has been

entered on the merits of a case, [ijt is a finality

as to the claim or demand in controversy,

concluding parties and those in privity with

them, not only as to every matter which was

offered and received to sustain or defeat the

claim or demand, but as to any other admissible

matter which might have been offered for that

purpose.” Nevada v. United States, 463 US.

110, 129-130, 103 S. Ct. 2906, 2918 (1983)

(internal citation omitted).

2004 WL 3038071 at *1.

On or about February 9, 2005, Saporito petitioned the

Eleventh Circuit for review of the Board’s decisions in ARB-2004,

ARB 98-008, Case No. 89-ERA-7 and Case No. 89-ERA-17. On

March 4, 2005, FPL moved to intervene in the pending appeal.

The Eleventh Circuit granted FPL’s motion on March 29, 2005.

FPL then filed a Motion to Dismiss the appeal on the basis of res

judicata. By order dated June 2, 2005, the Eleventh Circuit

granted FPL’s Motion to Dismiss. Saporito moved for

reconsideration of the dismissal, which the Eleventh Circuit denied

on July 21, 2005. Saporito filed the instant Petition for Writ of

Certiorari on or about October 17, 2005, and a Supplemental

Appendix on or about November 6, 2005 (on November 30, 2005,

he filed a second copy of the same Supplemental Appendix).

REASONS FOR DENYING THE WRIT

A. The Petition For Writ Of “ertiorari Should Be Denied

Because It Fails To Set Forth Any Basis For Certiorari

Review.

Pursuant to U.S. Supreme Court Rule 10, this Court has

discretion to grant a petition for writ of certiorari where

compelling circumstances exist, such as where the appellate

court’s decision is in direct conflict with an appellate court in

another circuit or with a prior decision of the Supreme Court, or

where the appellate court “has decided an important question of

federal law that has not been, but should be, settled by this Court.”

Rule 10 clearly states that a “petition for writ of certiorari is rarely

granted when the asserted error consists of erroneous factual

findings or the misapplication of a properly stated rule of law.”

See also Southern Power Co. v. North Carolina Pub. Serv. Co.,

263 U.S. 508 (1924).

In this case, Saporito does not argue that the Eleventh

Circuit's opinion is in direct conflict with the decision of another

Circuit Court of Appeal or with relevant decisions from this Court.

Nor does he argue that this case invoives an important question of

federal law. Rather, Saporito merely asserts, in essence, that the

Eleventh Circuit erred by: (1) not applying a de novo standard of

review; (2) not revisiting it’s order from six years past; (3)

applying the doctrine of res judicata to bar further review of the

merits; and (4) finding that the Board’s decision was supported by

substantial evidence. Saporito then spends 14 pages of his Petition

rehashing the facts presented in the forums below and explaining

how those facts should be interpreted in his favor. Clearly,

Saporito is improperly arguing the merits of his claim rather than

providing this Court with a basis to grant certiorari review.

Accordingly, his Petition should be denied.

B. The Petition For Writ Of Certiorari Should Be Denied

Because The Petition Is Untimely As To The Board’s

And The Eleventh Circuit’s Prior Orders.

In his Petition, Saporito uses the Elevent> Circuit's June 2,

2005 dismissal based on res judicata grounds to resurrect his now

time-barred claim that this Court should grant certiorari review of

the Eleventh Circuit’s August 3, 1999 order upholding the Board’s

August 11, 1998 Final Decision and Order. Rule 13.1 of the

Supreme Court Rules clearly mandates that a petition for writ of

certiorari to review a judgrnent entered by a U.S. Court of Appeals

in a civil case must be filed “within 90 days after entry of the

judgment.” Here, Saporito is attempting to have certiorari review

granted over an appellate judgment entered six years ago. That

judgment became final 90 days after its entry date of August 3,

1999, when Saporito failed to timely move this Court for certiorari

review. Thus, the instant Petition must be denied. See, e.g., New

Haven Inclusion Cases, 399 U.S. 392, 481 (1970) (holding that a

party who “took no appeal” from an adverse order is “foreclosed

by res judicata” from later seeking relief inconsistent with that

order).

Cc. Principles Of Equity And Justice Dictate That The

Petition For Writ Of Certiorari Be Denied In Order To

Bring Finality To This Litigation.

In this case, Saporito is seeking certiorari review of the

Eleventh Circuit’s order declining to revisit, on res judicata

grounds, its own order of six years prior. Specifically, Saporito

believes the Eleventh Circuit erred by not allowing him to re-

litigate the same claims stemming from complaints he originally

filed in 1989, which were brought to final judgment six years ago

when Saporito failed to timely seek certiorari review before this

Court.

“Under the law-of-the-case doctrine, [the resolution of] an

issue decided at one stage of a case is binding at later stages of the

sam case.” Schiavo ex rel. Schindler v. Schiavo, 403 F.3d 1289,