Kahn v. U.S. Secretary of Labor
| Decision Date | 07 September 1995 |
| Docket Number | No. 94-3751,94-3751 |
| Parties | 131 Lab.Cas. P 11,490 John KAHN, Petitioner, v. UNITED STATES SECRETARY OF LABOR, Respondent, and Commonwealth Edison Company, Intervening Respondent. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Stephen M. Kohn, Veronica Leon (argued), Kohn, Kohn & Colapinto, Washington, DC, for John Kahn.
Jon I. Fieldman, Sidley & Austin, Chicago, IL, John H. Secaras, Sol. Gen., Dept. of Labor, Chicago, IL, Joan Brenner (argued), Monica Gallagher, William J. Stone, Thomas S. Williamson, Jr., Dept. of Labor, Office of Sol., Washington, DC, for Dept. of Labor.
Glenn D. Newman, Carolyn Kohn Winick (argued), Commonwealth Edison Co., Chicago, IL, for Commonwealth Edison Co.
Before POSNER, Chief Judge, RIPPLE, Circuit Judge, and NORGLE, District Judge. *
Commonwealth Edison ("ComEd") constructively discharged John Kahn ("Kahn"), a Quality Control Auditor assigned to its Zion, Illinois, nuclear station. Kahn claims that this termination violated the Energy Reorganization Act ("ERA" or the "Act"), 42 U.S.C. Sec. 5851, which protects so-called "whistleblowers" from discrimination due to their employment-related activities. After a hearing, an Administrative Law Judge ("ALJ") concluded that the dismissal of Kahn was for lawful reasons not prohibited by the Act. The Secretary of Labor adopted and affirmed the ALJ's decision. Since the Secretary's decision is supported by substantial evidence in the record, we affirm.
ComEd first hired Kahn on July 8, 1991. Kahn worked as a Quality Control Auditor and was assigned to the Zion, Illinois, nuclear power plant. 1 ComEd hired Kahn to perform safety-related audits to determine whether ComEd operated its nuclear plant in accordance with its own safety requirements and those of the Nuclear Regulatory Commission ("NRC"). Kahn was required to report violations of such regulations to his superiors and other coworkers. On Kahn's first day, he conducted himself in a sarcastic, argumentative, and condescending manner towards another employee, Susan White 2 ("White"). White would later complain to her boss of Kahn's conduct. Several days after beginning at the plant, when Kahn inquired about a delay in receiving his first paycheck, Kahn displayed a loud, abusive, and belligerent demeanor. Cheryl Orsini ("Orsini") complained of this behavior to her assistant manager. As a result of Kahn's unruly behavior, David Bump ("Bump"), Kahn's immediate supervisor, counseled him regarding the impropriety of his conduct toward White and Orsini. Kahn reacted to the counselling by shifting the blame to Orsini and stating that he did not appreciate the "kangaroo court."
Later that month, a third coworker, Kathy Wagner ("Wagner"), complained to her superiors that Kahn had, on several occasions, used suggestive and lewd language with her and touched her in an inappropriate manner. Kahn was then advised by the human resources supervisor, Norman Breseman ("Breseman"), that such conduct was in violation of company policy against sexual harassment. Breseman warned Kahn that a subsequent similar occurrence could lead to his discharge. Kahn admitted in his testimony before the ALJ that he had touched Wagner and that Breseman warned him about his conduct toward Wagner.
On October 16, 1991, Kahn received his first performance evaluation. Bump checked the "fully meets expectations" box, but testified that he did so even though he still had lingering concerns about the complaints regarding Kahn. Bump explained that he gave Kahn "the benefit of the doubt" since the three episodes occurred in "a three-week time frame when [Kahn] first started" and because two months had elapsed since the complaints.
In mid-March 1992, Kahn made a total of five "internal" 3 complaints regarding violations of safety procedures and NRC regulations. First, Kahn advised Bump, the Nuclear Quality Program superintendent, of what he perceived to be improper handling of nuclear fuel bundles prior to a "smear test" to determine radiation contamination. Second, Kahn advised Williams, his supervisor, of an alleged storage problem. Kahn complained that certain materials were stored in an uncontrolled environment rather than stored in the required temperature and humidity levels. Third, Kahn made complaints to Bump regarding his disagreement with a ComEd policy. ComEd had a policy of keeping track of all employee violations in each of the violators' personnel files. Kahn believed that this policy discouraged cooperation with safety audits. Fourth, Kahn notified Robert Whittier ("Whittier") of his opinion that the auditors should use more reliable means of reporting audit observations, as opposed to using ComEd's Field Monitoring Reports. Finally, Kahn advised Whittier that he thought the questions used in the audits were outmoded.
Also in March 1992, Bump began receiving additional complaints relating to Kahn. Bump learned that Kahn was working overtime without obtaining the necessary approval. Kahn admitted in the hearing before the ALJ that he knew that he was supposed to secure permission for such overtime. Bump also received complaints that Kahn was abrasive and aggressive with workers whose organizations he was auditing. Other complaints questioned the thoroughness of some of his investigations. As a result of the complaints, Bump counseled Kahn on March 11, 1992. In response, Kahn blamed the conduct on the "undue resistance" of the audited organizations. Bump investigated the alleged resistance, but found that other auditors had not encountered the alleged resistance.
Later in March, Kahn was assigned to work on an audit. Whittier was the team leader of the audit. Before the audit, Whittier met with the entire audit team, advised each team member of his individual responsibilities, and then met with each worker separately. In this separate meeting, Whittier authorized Kahn to work up to four hours of overtime, if necessary, to complete a specific activity. Whittier also expressed to Kahn that Kahn must complete the assignment by March 31, 1992. Yet, on March 31, Kahn had not completed the assigned work. Moreover, although Kahn had worked the full four hours of authorized overtime, the overtime had not been spent on the specified activity.
On April 2, 1992, Whittier asked Kahn for an explanation for Kahn's failure to complete the assigned work. Kahn reacted with loud, verbal abuse and two pokes to Whittier's chest. Whittier, in turn, used similar loud and offensive language. Russell Williams ("Williams") testified that, at the same time Whittier confronted Kahn, he was en route to ask Kahn why he had worked the overtime. As he approached Kahn's cubicle, Williams heard Kahn using foul language. Kahn later admitted that he had used "four-letter words," touched Whittier, and had been upset.
The entire incident was reported to Bump, who at the time was out of town. Bump requested Whittier, Williams, and a coworker who had witnessed the confrontation to document what had happened. On his return, Bump reviewed their reports. On April 14, 1992, Bump had a discussion with Whittier, Williams, the coworker, and his supervisors regarding the incident, as well as Kahn's entire work history with ComEd.
Kahn's supervisors, Bump and Ron Roman ("Roman"), and Rick Erwin ("Erwin"), a supervisor of the Industrial Relations Department, then met with Kahn to allow him to tell his version of the incident. Kahn was told at this meeting that ComEd was considering discharging him. After the meeting, the supervisors decided that Kahn should be terminated due to the number of incidents of unacceptable behavior in the ten months Kahn was employed with ComEd. ComEd offered Kahn the choice between resignation or termination. Kahn later resigned. After Kahn's departure, he reported safety concerns to the NRC.
On May 12, 1992, Kahn filed a complaint with the Secretary of Labor alleging that ComEd terminated him in violation of the Energy Reorganization Act ("ERA"). The ALJ conducted a hearing on December 9 and 10, 1992, at which eight of Kahn's former coworkers and supervisors testified. All eight ComEd employees had something negative to say regarding Kahn's ability to interact with other people, an integral part of an auditor's performance. Two coworkers, Darlene Murphy ("Murphy") and Syed Jaffery ("Jaffery"), also testified. Murphy stated that, in her opinion, Kahn could have conducted "certain aspects of his job" without "upsetting everybody," and that, at times, Kahn was not helpful "to [the] auditing mission." Jaffery testified that Kahn had "a very short temper" which effectually hindered both Kahn and Jaffery in the performance of their audit duties. Bump and Erwin, two of the three supervisors involved in the decision to terminate Kahn, testified that the dismissal was triggered solely by Kahn's conduct.
On February 24, 1993, following the two day hearing, the ALJ issued a recommendation order dismissing Kahn's complaint. The ALJ found that although Kahn had made complaints of safety hazards protected by the ERA, it was not because of these complaints that he was fired. To the contrary, the ALJ concluded that the behavior and conduct of Kahn had been the sole reason for his discharge.
On October 3, 1994, the Secretary of Labor ("Secretary") issued his decision and order adopting the ALJ's recommendation. The Secretary found that Kahn had established a prima facie case, but that he failed to prove that ComEd's legitimate, non-discriminatory reason for terminating him was pretextual. Accordingly, the Secretary dismissed the complaint. Kahn appealed. We affirm.
The court has jurisdiction pursuant to 42 U.S.C. Sec. 5851(c). This section states, in pertinent part, that "[a]ny person adversely affected or aggrieved by an order issued [by the Secretary of Labor] ... may obtain review of the order in the United States...
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