Kansas Gas & Elec. Co. v. Brock, s. 84-2114
| Citation | 780 F.2d 1505 |
| Decision Date | 26 December 1985 |
| Docket Number | 84-2735,Nos. 84-2114,s. 84-2114 |
| Parties | 121 L.R.R.M. (BNA) 3133, 79 A.L.R.Fed. 615, 1 Indiv.Empl.Rts.Cas. 1767 KANSAS GAS & ELECTRIC COMPANY, Petitioner/Appellant, v. William E. BROCK, Secretary of Labor, Respondent/Appellee, and James E. Wells, Jr., Intervenor-Respondent, United States Nuclear Regulatory Commission, Government Accountability Project, Nuclear Utilities, Amicus-Curiae, and James E. WELLS, Jr., Plaintiff-Appellee, v. KANSAS GAS & ELECTRIC COMPANY and its Wolf Creek Generating Plant, Defendants-Appellants. |
| Court | United States Courts of Appeals. United States Court of Appeals (10th Circuit) |
Stanley E. Craven, of Spencer, Fane, Britt & Browne (David L. Wing, Kansas City, Mo., and Mark A. Vining and Ralph B. Foster, Kansas Gas and Elec. Co., Wichita, Kan., with him on the briefs), Kansas City, Mo., for petitioner/appellant.
Allen H. Feldman, (Francis X. Lilly, Sol. of Labor, Karen I. Ward, Associate Sol., and Edward D. Sieger, with him on the brief), U.S. Dept. of Labor, Washington, D.C., for respondent/appellee, Secretary of Labor.
Dale W. Bell, Guy, Helbert, Bell & Smith (Michael C. Helbert, with him on the brief) Emporia, Kan., for intervenor-respondent/plaintiff-appellee, James E. Wells, Jr.
William H. Briggs, Jr., Sol., E. Leo Slaggie, Deputy Solicitor, Martin G. Malsch, Deputy General Counsel, and C. Sebastian Aloot, U.S. Nuclear Regulatory Com'n, Washington, D.C., for the amicus Nuclear Regulatory Com'n.
Nicholas S. Reynolds, Joseph B. Knotts, Jr., Richard K. Walker, and David A. Repka, of Bishop, Liberman, Cook, Purcell & Reynolds, Washington, D.C., for amicus Nuclear Utilities.
George A. Shohet, Stephen M. Kohn, and Thomas M. Devine, Government Accountability Project, Washington, D.C., on the brief for amicus Government Accountability Project.
Before BARRETT and MOORE, Circuit Judges, and CHILSON *, District Judge.
Two related matters, Nos. 84-2114 and 84-2735, are presented on appeal. The first, No. 84-2114, is a petition for review of an order by the Secretary of Labor concerning the discharge of a Kansas Gas & Electric (KG & E) employee, James Wells. The second matter, No. 84-2735, is KG & E's appeal from the district court's enforcement of the Secretary's remedial order on behalf of James Wells.
KG & E is the managing partner and owner of a 47% interest in the Wolf Creek Generating Station, a nuclear power plant. James E. Wells was hired by KG & E as a quality assurance inspector. Wells' duties consisted primarily of inspecting equipment and lines that had been manufactured by a sub-contractor of KG & E before these items were integrated into the plant. If inspections uncovered discrepancies or inferior work, Wells was to submit written reports of these deficiencies to his superiors. Although run by the licensee (KG & E), this quality assurance program is required by Nuclear Regulatory Commission (NRC) regulations. 10 C.F.R. Sec. 50 App. B (II) (1985). The program serves as an adjunct inspection program during the construction and operating phases of a nuclear facility.
A properly functioning licensee quality assurance program is an integral part of the NRC's regulatory program. Mackowiak v. University Nuclear Systems, 735 F.2d 1159, 1163 (9th Cir.1984). In effect, such a program serves as the eyes and ears of the NRC because the inspectors are always on site and take over much of the inspection burden from federal personnel. In the Matter of Consumer's Power Co., 7 AEC 7, 11 (1974). The observations and judgments of quality assurance personnel on potential construction deficiencies are documented and that documentation is preserved and facilitates NRC audits. The inspection team of which Wells was a part was established to comply with these regulations. The team was also established in response to a previous NRC investigation in which KG & E was cited for a violation and fined. (Tr. 366, 572-73.)
During his employment with KG & E, Wells performed inspections and filed reports with his superiors detailing potential quality assurance problems. On June 20, 1983, Wells reported safety problems. That same day, Wells was told that he was terminated because he could not get along with his co-workers. (Tr. 405, 452.) Wells protested, claiming this lack of cooperation was merely a pretext and that the real reason that he was being fired was for voicing safety concerns. After a brief discussion, Wells' superiors decided to give him a second chance and re-instated him. (Tr. 53-57, 402-403.) Wells continued to file reports of safety concerns.
In early August, 1983, Wells again filed a safety report. Again he was called to speak with his supervisor. At this meeting, Wells was told that a routine background investigation had been conducted and several of his qualifications had proved difficult to verify. Wells was told that he had 48 hours to produce documentation of these items or face discharge. Wells was unable to secure the documentation within the allotted time and he was fired. He was, however, able to produce the requested paperwork within two weeks at which time he requested that he be rehired. KG & E refused. It was subsequently learned that KG & E had had difficulty verifying certain background information of other employees who held positions similar to Wells, but they had not been discharged.
Suspecting that he had been a victim of discrimination, Wells contacted the NRC. Wells was told that the Department of Labor (DOL) handled employment discrimination claims. Consequently, he referred his grievance to the Department of Labor.
DOL conducted an investigation and subsequently, a hearing was held before an administrative law judge (ALJ). Wells was found to have been fired for filing internal safety complaints. KG & E was ordered to reinstate Wells and to compensate him with back pay, attorney's fees, and costs. The ALJ's decision was appealed to the Secretary of Labor (Secretary). The Secretary adopted the ALJ's decision and order with minor modifications. KG & E petitions for a review of this decision and order of the Secretary.
Thereafter, Wells filed a complaint in the United States District Court requesting enforcement of the Secretary's order. KG & E also filed a motion to stay proceedings pending administrative action. A motion was also filed with the Secretary to hear evidence on the remedial issues--specifically, the amount of back pay awarded to Wells. The district court denied the stay and also refused to remand. The Secretary of Labor had also denied relief from the amount awarded, finding that he had no jurisdiction because the case was on appeal to this court. The Secretary observed that only this court had authority over the matter.
On appeal, KG & E raises the following issues: (1) whether James Wells engaged in protected activity under 42 U.S.C. Sec. 5851(a) when he filed internal safety reports; (2) whether substantial evidence supports the Secretary's findings that Wells was discharged in retaliation for filing his safety reports, i.e., KG & E's reasons for the discharge were pretextual; (3) whether KG & E waived its right to raise remedial issues; and (4) whether the district court erred by refusing to take jurisdiction over the remedial issues raised by KG & E or, in the alternative, erred by refusing to remand the proceedings for review of such issues to the Secretary of Labor.
Although not addressed in the briefs of the parties, the panel is troubled by a jurisdictional question. At oral argument it appeared that to this panel that the Secretary of Labor should not be involved with matters pertaining to nuclear safety, such matters more appropriately coming within the expertise of the NRC.
Jurisdiction of the Secretary is claimed under 42 U.S.C. Sec. 5851, which is part of the Energy Reorganization Act (ERA). This Act deals with functions of the Nuclear Regulatory Commission. However, section 5851 of the ERA states that exclusive jurisdiction in employment discrimination matters is vested by Congress in the Secretary of Labor:
(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 applicant, may discharge any employee or otherwise discriminate against any employee with respect to his compensation, terms, conditions, or privileges of employment 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. Sec. 2011 et seq.] or a proceeding for the administration or enforcement of any requirement imposed under this chapter or the Atomic Energy Act of 1954, as amended;
(2) testified or is about to testify in any such proceedings 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 proceeding 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. Sec. 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 complaint with the Secretary of Labor (hereinafter in this subsection referred to as the "Secretary") alleging such discharge or discrimination. Upon receipt of such a...
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