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Kahn v. United States Secretary Of Labor

August 24, 1995

JOHN KAHN, PETITIONER,

v.

UNITED STATES SECRETARY OF LABOR, RESPONDENT, AND COMMONWEALTH EDISON COMPANY, INTERVENING RESPONDENT.



Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 88 C 10205 -- Charles R. Norgle, Sr., Judge.

Before POSNER, Chief Judge, RIPPLE, Circuit Judge, and NORGLE, District Judge. *fn1

NORGLE, District Judge.

On Petition for Review of a Final Order of the Secretary of Labor

ARGUED MAY 31, 1995

DECIDED AUGUST 24, 1995

Commonwealth Edison ("Com-Ed") 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.

I.

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. *fn2 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 *fn3 ("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" *fn4 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 ...


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