The ALJ's Recommended Decision and Order (R.D.O.) issued on April 1, 1998, contains a comprehensive factual statement and findings of fact which derive support from the record. R.D.O. at 4-27.

   Overall's Concerns Regarding the Ice Condenser System Screw Failure

report were (i) stresses higher than design limits, specifically at the screw thread roots and (ii) the presence of quench cracks in the screws upon receipt from the manufacturer.

   On June 22 J.W. Irons, the Westinghouse manager for the TVA Watts Bar project, declared the ice condenser operable. Based on a statistical projection, Westinghouse had concluded that the conditions associated with the screws did not affect the function or structural adequacy of ice condenser containment. R.D.O. at 24-25 (finding no. 16). TVA system engineers certified that the condenser was functioning properly on the following day.

   On July 7 Overall met with TVA nuclear engineers in an attempt to develop a method to avoid recurrence of the screw failure (i.e., "recurrence control"). TVA removed Overall from PER 246 on July 10 and transferred the PER from Technical Support to Nuclear Engineering on July 12. R.D.O. at 25 (finding no. 17). Any contact by Overall with PER 246 ended on July 10. Overall testified that he maintained at least a liaison status through closure on all other PERs that he initiated.

   Nuclear Engineering closed out PER 246 expeditiously (August 10) without conducting recommended testing and inspections and without reporting the circumstances to the NRC. R.D.O. at 25 (finding no. 18). PER closure was attributable primarily to engineering managers Tom McCollum, James Adair and Larry Katchum.

   Overall testified that PER 246 contained misrepresentations. Complainant's Exhibit (CX) 23 is the closure package for tracking PER 246. It includes a nuclear assurance statement and a corrective action verification. This information was subject to review in determining that the PER "is ready for closure as all of the corrective actions are complete." CX 23 at 24. The third corrective action specified that TVA Nuclear Engineering would request Westinghouse to evaluate the data collected from the first and second corrective actions, namely (1) the performance of metallurgical testing and evaluation of the failed ice basket screws in determining the mode of failure, and (2) the performance of comparison testing and analysis of installed screws and unused (new) screws from warehoused stock. Id. at 22. The corrective action verification represented (incorrectly) that the Westinghouse evaluation of items 1 and 2 had been completed and documented. Id.

   The corrective action verification also represented (incorrectly) that no field inspection was performed for closure of the PER because the ice baskets were inaccessible. Id. Overall testified rather that the baskets in fact were accessible for purposes of camera inspection. R.D.O. at 25 (finding no. 18) (TVA closed out "PER 246 without taking any corrective action and inaccurately concluding that the ice baskets in question were inaccessible whereas the credible testimony of Overall showed that the ice baskets were accessible"). Finally, the corrective action verification stated that "[a]s the result of Westinghouse's evaluation and the fact that all ice condenser screws are in place and the task is complete . . . no implementing procedures need to be revised." CX 23 at 23. Again, Westinghouse had conducted no responsive evaluation and absent inspection could have reached no determination about screw placement.

   The NRC approved the Watts Bar ice condenser system on November 3, 1995, without reference to the screw failure.

   Overall's Employment from 1995 through 1997

   Overall issued PER 246 in late April 1995. On June 1 Rich Miller, a supervisor with TVA's Technical Services Organization (Services) based in Chattanooga, Tennessee, telephoned Overall about creating a permanent, i.e., "secure," position for him as project administrator and advised him that he (Miller) would contact him about an interview. Miller stated that he considered Overall to be highly marketable. Prior to the call, Overall had never heard of Miller. R.D.O. at 14. Services was a relatively new organization at TVA which competed with outside contractors for project work at TVA as well as retrained displaced TVA employees. Respondent's Exhibit (RX) 14 at 33. Although most TVA employees passed through Services in an "at-risk" status, Services maintained a core of managers who "sold" their expertise and that of at-risk employees to TVA or to external organizations. These managers held "permanent" positions, i.e., they retained the same status as every other TVA employee who had not received notification of at-risk reclassification. T. 196-197, 299, 306, 562-570. The funding for Services was limited. Koehl, who had prevailed on Miller to create the position for Overall, was aware of the funding limitation; Overall was not. T. 308-310, 658-659.

   TVA continued to need persons with ice condenser expertise during plant outages, but in May and June 1997 TVA refused to re-employ Overall. Ulysses White, task manager for the TVA modifications group, contacted Overall by telephone on May 7, 1997, about the prospect of working on the ice condenser system at Watts Bar during a pre-outage and scheduled outage, which would guarantee Overall nearly full forty-hour workweeks during the entire summer. White suggested that Overall also might provide support services following the outage. T. 626-628. However, after several weeks White advised Overall that TVA would not be requiring his services. Instead, TVA engaged a contractor, Stone and Webster Engineering Corporation (Stone and Webster), to work the outage despite its use of engineers who had no experience with the ice condenser system. R.D.O. at 26 (finding no. 27).

   These findings underwent further NRC review. See Respondent's Exhibits (RXX) 18, 20, 21 and 22; Complainant's Exhibits (CXX) 53, 54 and 57. The upshot appears to have been twofold:

[A] first violation involved . . . a condition adverse to quality [that] was not promptly identified and corrected. Specifically . . . a crack in an ice condenser screw was identified and documented in a June 2, 1995 [TVA] Central Laboratory and Field Testing Services (CLS) report, and in a second CLS report of June 19, 1995. However, TVA did not pursue this issue in a timely manner. The NRC has concluded that this violation was not willful . . . .

RX 21 at 2. The NRC found a second violation to be willful, however:

TVA did not request Westinghouse Electric Corporation to evaluate the data collected from the metallurgical testing and evaluation performed by the CLS as documented in [Step 3 of PER 246]. The NRC has concluded that this violation was willful. Specifically, TVA closed [PER 246] as evidenced by the signature of [its] lead civil engineer [James Adair] on July 28, 1995. However, at the time this individual signed the PER as completed, he knew, or should have known, that Step 3 of the PER was a part of the corrective action plan, and that this action had not been performed as stated in the PER.

Id.

   General disposition

   In his April 1, 1998 R.D.O., the ALJ identified the substantive issues as whether "TVA engaged in a concerted attempt to conceal significant safety deficits in its Watts Bar ice condenser system" and whether as part of its concealment TVA unlawfully "transferred, laid off, and thereafter refused to recall Overall because of his attempt at exposing and correcting safety deficits in the Watts Bar ice condenser system." R.D.O. at 3.

   The ALJ found that Overall had succeeded in making a prima facie showing of unlawful discrimination, that TVA had rebutted the consequent discriminatory inference by articulating legitimate reasons for taking adverse action, but that Overall prevailed ultimately by proving intentional discrimination. The ALJ found the complaint timely ? a preliminary issue ? under a "continuing violation" theory, that is, the complaint was filed within the statutory limitations period following discovery of the most recent of a series of discriminatory actions taken pursuant to an invalid underlying policy or practice. The ALJ accordingly issued a preliminary order granting relief as provided under the ERA. 42 U.S.C. §5851(b)(2)(A).

   Particular findings on liability

   Citing the elements necessary for an ERA complainant to establish a prima facie showing of discrimination, R.D.O. at 30, the ALJ noted that there was no dispute as to TVA's status as an employer; that Overall engaged in protected activity of which TVA was aware (activities in furtherance of PER 246); and that TVA took action adverse to Overall (at-risk transfer, layoff and refusal to re-employ). Id. Thus, the ALJ turned to the issue of causation.

   The ALJ first found that Overall had established a prima facie case of discrimination based in part on temporal proximity between protected activity and adverse action, specifically that "Overall was notified of his involuntary transfer [from Watts Bar to Services as an at-risk employee] by Koehl on June 16, 1995, at which time Overall was intimately involved in the processing of PER 246 and only two days after [TVA metallurgical supervisor Terry Woods] announced that PER 246 was not a safety issue." R.D.O. at 32.

   The ALJ additionally cited evidence contravening TVA's defense. TVA argued that Overall's position was "targeted for surplus" as early as September 1994 rather than in mid-1995, that Overall was not singled out for disparate treatment in the June 1995 at-risk transfer decision, that Overall applied voluntarily for a permanent position in Services and that managers at Services were not aware of Overall's protected activity when they laid him off in September 1996. In rejecting TVA's defense, the ALJ found that the 1994 action was tentative the decision to transfer Overall in an at-risk status "became definite only when Overall engaged in protected activity by initiating PER 246." R.D.O. at 31. The ALJ pointed to evidence that TVA treated Overall disparately in 1995 "by retaining and overnight upgrading" a comparably qualified employee and permitting less qualified employees "to transfer to other positions within Watts Bar while retaining full time employment." Id. As to the "so called voluntary [1995] transfer to [a permanent position in] TVA Services," the ALJ recognized that Overall "chose the lesser to two evils" when also "[f]aced with being treated as an at-risk employee with little hope of retention . . . ." Id. at 30.

   With regard to the 1996 layoff from TVA Services, the ALJ discredited testimony by TVA Services manager James Swindell denying knowledge of Overall's 1995 protected activity on the basis of "widespread" knowledge within the TVA organization, the potential import of the protected activity on Watts Bar fuel load, start up and operation and Koehl's extensive contacts with Swindell and Services generally. R.D.O. at 31. The ALJ noted that the issue of Swindell's knowledge was not dispositive "because in large part Overall's failure to secure ice condenser work [a purported rationale for laying him off] stemmed from Watts Bar officials' refusal to accept Overall's services while instead employing inexperienced contract personnel to perform ice condenser work." Id.

   Having found that Overall satisfied the threshold showing, the ALJ considered TVA's rebuttal which he found adequate to shift the burden back to Overall. TVA's showing of legitimate, non-discriminatory reasons in this regard included "lack of a need for a full time ice condenser specialist, lack of flexibility in work assignments, and lack of funding caused by an inability of Overall to secure work." R.D.O. at 32.

   The ALJ then turned to the question whether TVA's stated reasons for transferring, discharging and refusing to rehire Overall were pretextual, finding in summary: "My review of the credible testimony convinces me all the reasons cited by TVA, including its denials of discriminatory motive, are false and clearly associated with that degree of mendacity to establish a strong circumstantial case of intentional discrimination." R.D.O. at 33. Key to this finding were inconsistent reasons proffered by TVA for the at-risk transfer decision, disparate treatment accorded Overall vis-a-vis treatment of employees who were comparably qualified or even less qualified, and a number of additional facts which suggested false motive, including:

(1) TVA's attempt to attribute the decision to transfer Overall to McCormick rather than to Koehl; (2) TVA's assertion that lack of funds resulted in laying off Overall when in fact his position had been budgeted for; and (3) TVA's refusal to re-employ Overall to work on the ice condenser choosing instead inexperienced . . . personnel for such work.

Id. Considered in conjunction with TVA's "concerted effort to conceal" the screw failure and Overall's expertise in the system, the above-referenced factors persuaded the ALJ "that the only plausible and credible reason for adverse employment actions, i.e., transfer, layoff and refusal to recall . . . was a desire to retaliate against and prevent Overall from engaging in protected activities." Id. at 34.

   Particular findings on timeliness

   Apart from the merits, TVA argued that Overall filed his January 15, 1997 discrimination complaint after the expiration of the 180-day ERA limitations period. According to TVA the June 16, 1995 notification of Overall's at-risk transfer to Services, which formed the gravamen of the complaint, triggered the limitations period.

   The ALJ found to the contrary that the complaint was timely filed within the limitations period arising as the result of adverse action (notification of layoff (July 1996)) taken to further a continuing policy of discrimination which rendered the complaint with respect to the other, earlier adverse action (notification of at-risk transfer (June 1995)) timely. R.D.O. at 28-30. The ALJ found specifically that TVA had engaged in "a broad coverup of significant safety hazzards caused by the use of defective ice basket condenser screws" which included actions directed at Overall, namely TVA's transfer of "PER 246 to nuclear engineering so as to remove it from Overall's control and responsibility," Koehl's transfer of "Overall to TVA Services under the pretext of lack of need for a full time ice condenser specialist," TVA's "attempt to lure Overall away from Watts Bar by creating a position in TVA Services at the urging of Koehl," "Swindell's layoff of Overall for pretextual reasons stating an alleged lack of funds when in truth funds had been set aside for Overall's position" and "TVA's refusal to re-employ Overall at any of its ice condenser facilities including Watts Bar using instead inexperienced outside contractors to do ice condenser work." Id. at 29.

I. Standard of Review

   Under the Administrative Procedure Act this Board, as the designee of the Secretary of Labor, acts with all the powers the Secretary would possess in rendering a decision under 42 U.S.C. §5851(b)(2). The Board engages in de novo review of the recommended decision of the ALJ. See 5 U.S.C. §557(b) (1994); 29 C.F.R. §24.8; Stone & Webster Eng'g Corp. v. Herman, 115 F.3d 1568, 1571-1572 (11th Cir. 1997). The Board is not bound by an ALJ's findings of fact and conclusions of law because the recommended decision is advisory in nature. See Att'y Gen. Manual on the Administrative Procedure Act, Chapter VII, §8 pp. 83-84 (1947) ("the agency is [not] bound by a [recommended] decision of its subordinate officer; it retains complete freedom of decision as though it had heard the evidence itself"). See generally Starrett v. Special Counsel, 792 F.2d 1246, 1252 (4th Cir. 1986) (under principles of administrative law, agency or board may adopt or reject ALJ's findings and conclusions); Mattes v. United States Dep't of Agriculture, 721 F.2d 1125, 1128-1130 (7th Cir. 1983) (relying on Universal Camera Corp. v. NLRB, 340 U.S. 474, 496 (1951) in rejecting argument that higher level administrative official was bound by ALJ's decision). Unlike the Board, however, the ALJ is accorded the opportunity to observe witness demeanor during the hearing, and the Board ordinarily defers to an ALJ's credibility determinations based on demeanor. OFCCP v. Goodyear Tire & Rubber Co., ARB Case No. 97-039, Aug. 30, 1999, slip op. at 16 n.13.

II. The Complaint is Meritorious.

   A. Legal Standard

   ERA section 5851 prohibits an employer from discharging or otherwise discriminating against an employee with respect to his compensation, terms, conditions or privileges of employment because the employee has notified his employer of an alleged violation of the Act, refused to engage in any practice made unlawful under the Act, testified regarding any provision of the Act, commenced any proceeding under the Act, testified in any such proceeding or assisted or participated in any such proceeding. 42 U.S.C. §5851(a)(1). To prevail on a complaint of unlawful discrimination, a complainant must establish by a preponderance of the evidence that the respondent took adverse employment action against the complainant because of protected activity. Carrol v. United States Dep't of Labor, 78 F.3d 352 (8th Cir. 1996); Ellis Fischel State Cancer Hosp. v. Marshall, 629 F.2d 563, 566 (8th Cir. 1980), cert. denied, 450 U.S. 1040 (1981). We may determine that a violation has occurred if the complainant demonstrates that any protected behavior "was a contributing factor in the unfavorable personnel action alleged in the complaint." 42 U.S.C. §5851(b)(3)(C); Trimmer v. U.S. Dep't of Labor, 174 F.3d 1098 (10th Cir. 1999); Dysert v. U.S. Sec'y of Labor, 105 F.3d 607 (11th Cir. 1997). Relief nevertheless may not be ordered "if the employer demonstrates by clear and convincing evidence that it would have taken the same unfavorable employment action in the absence of [protected] behavior." 42 U.S.C. §5851(b)(3)(D).

   TVA does not contest the presence of protected activity or adverse action. Only the issue of causation is contested. TVA argues that the record is devoid of any direct evidence attributing illicit motivation to any of TVA's management. Discrimination complaints legitimately may be grounded on circumstantial (indirect) evidence of retaliatory intent, however. See, e.g., Ellis Fischel State Cancer Hosp. v. Marshall, 629 F.2d at 566 ("[t]he presence or absence of retaliatory motive is a legal conclusion and is provable by circumstantial evidence even if there is testimony to the contrary by witnesses who perceived lack of such improper motive"); United States Postal Service Board of Governors v. Aikens, 460 U.S. 711, 716 (1983) ("the question facing triers of fact in discrimination cases is both sensitive and difficult;" "[t]here will seldom be eyewitness' testimony as to the employer's mental processes" for use in establishing intentional discrimination).

   In such "inferential" cases arising under the 29 C.F.R. Part 24 employee protection provisions, this Board and reviewing courts routinely apply the framework of burdens developed for pretext analysis under Title VII of the Civil Rights Act of 1964 and other employment discrimination laws. See, e.g., Kahn v. U. S. Sec'y of Labor, 64 F.3d 271, 277 (7th Cir. 1995); Couty v. Dole, 886 F.2d 147 (8th Cir. 1989). Central to this precedent are McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248 (1981); St. Mary's Honor Center v. Hicks, 450 U.S. 502 (1993), and more recently Reeves v. Sanderson Plumbing Products, Inc., 120 S.Ct. 2097 (2000) (rejecting so-called "pretext plus" rule under Age Discrimination in Employment Act), rev'g 197 F.3d 688 (5th Cir. 1999). For application see, e.g., Ross v. Campbell Soup Co., 237 F.3d 701, 708-709 (6th Cir. 2001); Dammen v. Unimed Medical Center, 236 F.3d 978, 980-981 (8th Cir. 2001); Blow v. City of San Antonio, Texas, 236 F.3d 293, 297-298 (5th Cir. 2001). A complainant may prevail under the pretext model when the complaint consists exclusively of a prima facie case of discrimination and evidence sufficient for a reasonable adjudicator to disbelieve or reject the respondent's legitimate nondiscriminatory reason for its adverse action. This combination of evidence thus may sustain a finding of liability for intentional discrimination.

   Under the McDonnell Douglas line of precedent as adapted to Part 24 complaints, a complainant first must create an inference of unlawful discrimination by establishing a prima facie case of discrimination. Overall satisfied this burden by showing that TVA is subject to the ERA; that he (Overall) engaged in protected activity (processing PER 246); that he suffered adverse employment action (e.g., notification of transfer and layoff, refusal to re-employ); and that a nexus existed between the protected activity and adverse action. See Bechtel Constr. Co. v. Sec'y of Labor, 50 F.3d 926, 933-934 (11th Cir. 1995); Simon v. Simmons Foods, Inc., 49 F.3d 386, 389 (8th Cir. 1995) (citing Couty v. Dole, 886 F.2d at 148 ("[proximity in time is sufficient to raise an inference of causation")). The burden then shifted to TVA to produce evidence that it took adverse action for a legitimate, nondiscriminatory reason. This (TVA's) burden of "production" entails no credibility assessment. Reeves v. Sanderson Plumbing Products, Inc., 120 S.Ct. at 2106, citing St. Mary's Honor Center v. Hicks, 509 U.S. at 509. TVA met this burden by producing evidence sufficient for the trier of fact to conclude that it had surplused Overall's position(s) as the result of reorganization and had elected to

engage a contractor for purposes of the outage. The inference of discrimination accordingly disappeared, leaving the single issue of discrimination vel non. Overall then assumed the burden of proving by a preponderance of the evidence that TVA's proffered reasons were incredible and constituted pretext for discrimination. While the presumption of discrimination arising from the prima facie case evaporates at this juncture, an adjudicator legitimately may consider the evidence which established the prima facie case and inferences properly drawn from that evidence in determining whether an employer's explanation is pretextual. Reeves v. Sanderson Plumbing Products, Inc., 120 S.Ct. at 2106.

   St. Mary's Honor Center speaks to the ultimate burden of persuasion. An adjudicator's rejection of an employer's proffered legitimate, nondiscriminatory explanation for adverse action permits rather than compels a finding of intentional discrimination. Specifically, "[it is not enough . . . to disbelieve the employer; the fact finder must believe the plaintiff's explanation of intentional discrimination." 450 U.S. at 519. An adjudicator may, however, infer discrimination from a finding that the employer's rationale is false:

The fact finder's disbelief of the reasons put forward by the defendant (particularly if disbelief is accompanied by a suspicion of mendacity) may, together with the elements of the prima facie case, suffice to show intentional discrimination. Thus, rejection of the defendant's proffered reasons will permit the trier of fact to infer the ultimate fact of intentional discrimination.

St. Mary's Honor Center v. Hicks, 509 U.S. at 511. Indeed, proof that an explanation is incredible constitutes a piece of indirect evidence which "becomes part of (and often considerably assists) the greater enterprise of proving that the real reason was intentional discrimination." Id. at 517.

   In Reeves v. Sanderson Plumbing Products, Inc., the Supreme Court further delineated the burden assumed in proving intentional discrimination by means of indirect evidence as follows:

[T]he trier of fact can reasonably infer from the falsity of the explanation that the employer is dissembling to cover up a discriminatory purpose. Such an inference is consistent with the general principle of evidence law that the fact finder is entitled to consider a party's dishonesty about a material fact as "affirmative evidence of guilt." Moreover, once the employer's justification has been eliminated, discrimination may well be the most likely alternative explanation, especially since the employer is in the best position to put forth the actual reason for its decision. Thus, a plaintiff's prima facie case, combined with sufficient evidence to find that the employer's asserted justification is false, may permit the trier of fact to conclude that the employer unlawfully discriminated.

   B. TVA's Challenges to the ALJ's Findings

   Foremost in TVA's review petition before this Board is "TVA's position that the R.D.O. is fatally flawed by constructing an extensive conspiracy to remove [Overall] from his job, a conspiracy unsupported by the evidence in the record." TVA 7/9/98 Brief at 1 and at 12-13 ("DO finds that there was a widespread conspiracy to cover up the problems raised in the PER, a conspiracy involving Technical Support, Watts Bar Engineering, the Central Labs, and Mr. Woods"; "[w]hile this makes for an interesting story, it lacks any basis in the record"). TVA also reiterates a number of the arguments posited to the ALJ, including that Overall's specialist position at Watts Bar was targeted for surplus in 1994, that Overall elected voluntarily to take the permanent position in Services, that Koehl and McCormick participated in neither the closeout of PER 246 nor the decision to lay off Overall from his Services position and that the layoff emanated from Overall's inability to generate revenue for Services.

   TVA discounts myriad factual findings made by the ALJ as unsupported by the record. According to TVA, for example, Overall's employment in 1994 and early 1995 was "tightly focused" on the ice condenser system at Watts Bar, to the exclusion of all other systems; Overall was not assigned backup duties; Overall declined to obtain equivalency training; the decision to eliminate Overall's position at Watts Bar was reached in 1994 "and was not revisited or changed thereafter;" with regard to TVA's offer of a permanent position in Services, "[t]here was no evidence whatsoever that anyone at Watts Bar had anything to do with Mr. Miller's offer to Mr. Overall;" record evidence cited in the R.D.O. "does not establish that either Mr. McCormick or Mr. Koehl saw [PER 246] as a make-or-break issue for Watts Bar;" and the "NRC was aware of the ice basket screw issue and had no problems with how it was handled." TVA 7/9/98 Brief at 3, 4, 6, 7, 11, 16. TVA faults Overall for his alleged failure to raise screw failure concerns at various junctures, and TVA attempts to distance Koehl and McCormick from TVA's decisions concerning Overall's employment. Id. at 16, 20, 24, 29. TVA criticizes the R.D.O. generally as "based on assumptions and speculation which are not probative and which should not have influenced the decision." Id. at 15.

   C. Analysis

   The ALJ correctly applied the Burdine/St. Mary's Honor Center/Reeves discrimination model in this case. The sequence of events and TVA's proffered, and rejected, rationale for its actions presents a strong circumstantial case that Overall suffered intentional discrimination. In evaluating the record we recognize that the ALJ expressly credited Overall's testimony as "straight forward, detailed, sincere and consistent" and discredited the testimony of the foremost TVA witnesses as "inconsistent, vague or illogical." R.D.O. at 27. See id. at 12, 13, 16, 18, 21-22, 25 (findings nos. 17 and 18), 26 (finding no. 28), 31 and 33 for additional credibility findings.

   The ALJ construed the evidence to support a finding that TVA engaged in a coverup of safety hazards to facilitate fuel load and start up at Watts Bar, an integral facet of which was to remove Overall from the Watts Bar ice condenser system, from employment at Watts Bar, from contact with any TVA ice condenser system and from employment at TVA altogether because of his activities to ensure the safety of the systems. The evidence viewed in its entirety substantiates the ALJ's findings. Under the Burdine/St. Mary's Honor Center/Reeves model we first examine the temporal proximity of protected activity and adverse action. We then turn to the rationale advanced by TVA for its actions and its possible "dissembling."

      1. Overall established a nexus between protected activity and adverse action grounded in the sequence of events.

   Initially striking in our examination of the record is Overall's experience with and expertise in nuclear power plant ice condenser systems measured against TVA's 1995 decision to transfer him at-risk to Services for termination. Overall had worked with ice condensers continually since at least 1982. His performance reviews document his performance as a dedicated and conscientious systems expert. An early review entry stated that Overall's "support of ice condenser maintenance activities has been particularly effective due to his initiative, concern for quality, and ability to work well with plant personnel." Joint Exhibit (JX) 9 at 3; CXX 7, 8. A subsequent entry stated:

Mr. Overall has commendable experience and knowledge of ice condenser operation and maintenance, both inside and outside of TVA. He continually develops innovative changes to improve ice condenser maintenance and performance. He has participated in industry-wide task group conference [sic] dealing with ice condenser problems and improvements. His efforts and determination in this area has [sic] much to do with the above average performance of the Watts Bar Nuclear Plant ice condenser.

JX 9 at 4; CX 10. CX 11 (performance review for 1985-1986) noted: "Mr. Overall's knowledge and experience in ice condenser work has been invaluable to Watts Bar. During this time period, he initiated and developed special automated thermal drilling tools that reduced manpower requirements by at least 70% and at the same time, produced higher quality work." JX 9 at 4-5.

   During 1987 and 1988 Overall demonstrated "exceptional expertise" in the ice condenser system, "recommended and implemented numerous changes to improve the ice condenser performance" and "actively pursued coordination with other utilities on ice condenser activities both by providing information and assistance and by following the results of their implemented changes." CX 13; JX 9 at 5-6.

   Between 1988 and 1989 Overall demonstrated proficiency in "all aspects of the ice condenser system," was "very innovative in developing practices and techniques for preserving the ice inventory," and "assisted in the development of a training module to be used at [Sequoyah] and [Watts Bar] prior to ice bed maintenance." CX 14; JX 9 at 6. Pursuant to NRC inquiry about the ice condenser system, Overall "develop[ed] a presentation for the Plant Manager to utilize during a subsequent meeting with the NRC" during the 1989-1990 review period. CX 15; JX 9 at 6. His compilation of the presentation package was judged "an outstanding job" allowing for site management's thorough preparation. Id.

   Overall contributed to at least three significant projects as Watts Bar approached completion of its construction phase. First, the 1990-1991 review commended Overall for his work on the ice condenser ice melt, which required exacting preparation:

Mr. Overall was very instrumental and creative in determining what preparations had to be made and initiating work requests to get the preparations started. He worked closely with both planning and craft personnel to ensure all preparations were properly implemented. Mr. Overall also spent many hours writing procedures for how the ice condenser should be melted. In order to meet the ice melt schedule, Mr. Overall did a lot of this work on his own time. During the ice melt, he provided technical support to Operations on shift [and contributed to] writing and issuing a lessons learned final report on the ice condenser ice melt effort. Mr. Overall's knowledge and experience with this system was invaluable in ensuring that this project was completed on schedule and without any problems.

CX 16; JX 9 at 7. Second in terms of significant projects, the 1992-1993 performance review commended Overall for "independently pursuing the resolution of issues" at Watts Bar related to ice condenser floor upheaval concerns that were prompted by problems experienced at Sequoyah, which the review identified as "an important activity with a large potential for schedule impact." CX 18; JX 9 at 8. The review continued:

[Overall] drove this issue to ensure that [Watts Bar] problems were identified during plant walkdowns and that appropriate action was being taken to resolve these issues. He did an excellent job of keeping management informed of the status of this work. . . .

Mr. Overall did an excellent job of maintaining a good knowledge of the status of his system. He ensured he was cognizant of modification work, maintenance work, and post modification and maintenance testing in progress. He did a great job of interfacing with modifications to help resolve problems during their implementation.

Mr. Overall's knowledge of the site organization and people all allowed him to get work done quickly and correctly. It was beneficial in helping the Startup Organization meet their testing schedule.

Id. Finally, performance reviews issued in 1994 and 1995 cited Overall for consistent and "creative" efforts to improve the ice condenser system and for efforts "instrumental" in timely completion of the "significant" task of the Watts Bar ice condenser loading. CXX 19, 20; JX 9 at 8-9.

   Vernon Law, Overall's backup on the ice condenser system (who subsequently supervised Overall's replacement), characterized Overall as "very owner-oriented towards his system." T. 418. See T. 430-431. Law testified:

[Overall] tried to look at other ice-condenser plants and see what type of modifications, upgrades that they had done at those plants that might be beneficial to Watts Bar. And, I know that he's spent lots of hours trying to get money allocated to do the modifications at Watts Bar to make the system better. . . . Curtis [Overall] was always working with his system, making sure that everything was the way he thought it ought to be.

T. 418-419.

   Overall received public recognition for ice condenser activities, JX 9 at 3 (joint stipulations 4 and 5); CX 5, and in March 1995 TVA presented Overall individually with "the Power of Excellence" award for his contribution to safe and timely completion of a "milestone," namely ice loading the Watts Bar ice condenser. CX 3. The award cited particularly "[t]asks such as implementing contracts; purchasing material; training personnel; testing components; setting up computer functions; and operating, troubleshooting, and repairing equipment [which] required a significant amount of coordination and effort among on- and off-site personnel." Id.

   Oddly, about three months after receiving the Power of Excellence award Overall received the June 16, 1995 notification of at-risk transfer to Services. An obvious issue becomes whether anything significant transpired in the interim. Overall's protected activity on PER 246, dating from mid-April 1995, thus invites scrutiny.

   Overall received a first anonymous telephone call on his office recorder and a second anonymous telephone call at his residence (June 14). The first caller stated that Overall had picked a fine time to raise the screw issue, and the second caller stated that the screw issue would not keep Watts Bar from operating. CX 24, p. 28; T. 130, 180-181.

   At a second meeting between managers and employees (June 14), TVA metallurgical supervisor Terry Woods announced that the screw failure was neither a safety problem nor reportable to the NRC. The ALJ noted testimony contradicting Woods's assessment:

McCormick acknowledged the screws were a safety issue directly related to escape[] of radioactive gases and further that a basket inspection was necessary to determine the number of missing screws. Further, McCormick admitted [that] there was a potential for all basket screws to be affected but neither Westinghouse nor [TVA] Nuclear Engineering to whom the PER was transferred. . . ever made any such basket inspection and that during a LOCA [Loss-of-Coolant Accident] ice baskets were capable of penetrating the containing vessel.

   TVA served Overall, the expert ice condenser system specialist and originator of PER 246, with notification of at-risk transfer (June 16) a full week in advance of its apparent scheduled issuance (June 23). Koehl stated that he had ordered Overall transferred because the ice condenser position did not warrant full-time employment, but Koehl refused to reduce the rationale to writing as Overall requested. T. 190-191. Overall received a third anonymous telephone call (June 19) to the effect that the caller was glad that Overall was leaving Watts Bar. CX 24, p. 26; T. 193.

Id. at 13; T. 185, 316-319, 433-434. 809-810. It bears noting that Adair had spearheaded criticism of the June 2 metallurgical report and was instrumental in its withdrawal. Adair personally signed the closing documents for PER 246 in late July 1995 and according to the NRC "knew, or should have known," that a portion of the PER corrective action plan had not been performed as stated. RX 21 at 2. Both Overall and Law testified that in their experience the employee initiating a PER continued as a participant or at least as a liaison until close-out. T. 185-186 (Overall), 434 (Law: "I open, I also close"). TVA deviated from the norm in the advent of fuel loading and start up at Watts Bar. The ALJ discounted McCormick's rationale for transferring the PER from Technical Support to Nuclear Engineering

as unpersuasive:

McCormick, who allegedly made the PER transfer decision, testified that he made the decision to transfer because Technical Support (1) was not resolving the problem, (2) did not have the authority to do the basket inspection because this would involve help from mechanical maintenance, (3) did not have a good plan for basket inspection, (4) lacked the necessary expertise, and (5) there was no agreement from upper level management on what to do. None of these explanations withstand scrutiny, for Overall was making progress in analyzing and suggesting ways to address the problem. Overall had a feasible plan for basket inspection utilizing the help of mechanical maintenance and had already worked successful[ly] with metallurgy in determining possible causes for the screw failure.

R.D.O. at 13. The ALJ thus expressly rejected TVA's rationale, accepting instead Overall's testimony in finding the following: "The only plausible and credible explanation for TVA's refusal to do camera or actual basket inspection was that given by Overall. Overall testified without contradiction that a camera inspection would have delayed fuel loading from 6 months to a year resulting in considerable loss of income." Id. John Rathjen, Overall's counterpart on the ice condenser systems at Sequoyah, offered testimony consistent with this finding, namely that the screw failure "had the potential to be a very large problem." RX 14 at 35-37.

   TVA closed PER 246 (August 10) based on the Westinghouse assessment that the presence of ten out of every 12 screws was acceptable. TVA never verified the assessment, however, because it never performed a camera inspection. R.D.O. at 25 (finding no. 18) (TVA supervisor closed out PER without taking any corrective action; supervisor "inaccurately conclud[ed] that the ice baskets in question were inaccessible whereas the credible testimony of Overall showed that the ice baskets were accessible"). Such an inspection would have affected the fuel load and start up dates significantly had less than the required number of screws been present. R.D.O. at 13; T. 160-172. TVA and Westinghouse accorded PER 246 only perfunctory treatment prior to close out. An object almost certainly was to deflect focus. Daryl Smith, a TVA central laboratory metallurgical engineer responsible for both the initial and modified metallurgical reports testified essentially that such reports are tailored to avoid NRC scrutiny. T. 522-524.

   Overall met with a TVA labor relations specialist and a Union representative to contest his at-risk transfer (August 24), and TVA thereafter issued its "response" essentially denying reconsideration (September 18). CX 26. In early October TVA offered Overall the permanent position of project administrator in Services. In early November the NRC issued a determination that the Watts Bar ice condenser was acceptable without any reference to the sheet metal screw failure raised in PER 246. This confluence of events ? Overall's continued challenge to the at-risk transfer, followed by the offer of an ostensibly secure position and the heightened NRC scrutiny at Watts Bar for operational approval ? suggests a degree of urgency in removing Overall from Watts Bar. An NRC finding of "acceptability" was critical during 1995. The ALJ noted: "Proper operation of the ice condenser was a sine qua non for plant operations for without a functional and approved ice condenser, Watts Bar could not go on line and produce power. In fact, Watts Bar

R.D.O. at 32. We find in addition that TVA persisted in its actions to thwart Overall from engaging in protected activity by removing him from PER 246 on July 10, 1995, and by removing him from Watts Bar in the fall of 1995.

   The ALJ admittedly identified the temporal proximity between protected activity and adverse action as a component of Overall's prima facie showing. The evidence supporting the presumption of discrimination properly may bear on whether TVA's nondiscriminatory explanation for its actions constituted pretext, however. See Reeves v. Sanderson Plumbing Products, Inc., 120 S.Ct. at 2106 ("although the presumption of discrimination drops out of the picture' once the defendant meets its burden of production, the trier of fact may still consider the evidence establishing the plaintiff's prima facie case and inferences properly drawn therefrom . . . on the issue of whether the defendant's explanation is pretextual'") (quoting St. Mary's Honor Center v. Hicks, 509 U.S. at 511; Texas Dep't of Community Affairs v. Burdine, 450 U.S. at 255).

   2. The "legitimate, nondiscriminatory" rationale advanced by TVA for its actions was false.

   The ALJ rejected in toto the reasons proffered by TVA for deciding to transfer and lay off Overall and to refuse him re-employment. We concur with the ALJ that, considered in conjunction with the temporal proximity between protected activity and adverse action evident in the sequence of events, the rejection of TVA's rationale compels a finding of intentional discrimination.

       The At-risk Transfer Decision

   We begin by examining the reasons advanced, predominantly through the testimony of Koehl and McCormick, for transferring Overall to Services in an at-risk status.

   TVA maintains various employment schedules. These schedules include, in order of ascension,

• The SE schedule (Overall's classification from 1981 through 1984) which covers engineering aides and technicians;

• The SD schedule (Overall's classification from 1985 until his layoff in 1996) which covers power plant specialists in a particular system who have obtained expertise beyond that of SE aide/technician but who do not possess an engineering degree or its equivalent;

• The SC schedule which covers degreed engineers and their equivalents.

These schedules are key to TVA's defense that Overall's transfer was for legitimate business reasons, and not retaliatory.

finds support in Overall's job description covering the period 1991 until September 1995. The job description states in relevant part:

Backup systems are assigned to the incumbent [Overall] to resolve problems and initiate required documentation when the primary engineer is in leave status. The incumbent may be assigned other systems after receiving sufficient on the job training and any classroom specialized training such that the individual is knowledgeable enough to perform as a primary engineer on the system.

CX 2 at 3. The job description requires that the incumbent possess knowledge of systems which "interface" with the ice condenser and understand how those systems "effect or are affected" by the ice condenser. Id. at 4; T. 72-73. Undermining TVA's defense in this regard, Koehl and McCormick admitted that Overall's job description permitted, if not required, flexibility and that Overall had received training in systems engineering. T. 652-653, 734, 773-774, 855-845. The ALJ found: "Overall's job description and duties not only required flexibility by working systems other than the ice condenser but in fact Overall had worked other systems including plant wide maintenance and diesel generation. Further, many of the systems within the ice condenser were located throughout the plant." R.D.O. at 26 (finding no. 30).

   Overall's removal left a distinct void in the Watts Bar work force. Overall's replacement (Jordan) had next to no experience with the ice condenser system. Indeed, McCormick testified that he retained Overall beyond the transfer date because of a dearth of SC engineers able readily to "pick up" the ice condenser duties, any experience by any other engineer at Watts Bar being limited to backup responsibilities for the system.

   The ALJ rejected Koehl's and McCormick's testimony of TVA's supposed reasons for transferring Overall to an at-risk position in Services based predominantly on inconsistency and contravention:

TVA advanced inconsistent reasons for the transfer with Koehl stating it was because there was no need for a full time ice condenser specialist while McCormick claimed it was because of a lack of flexibility in work assignments. Both reasons were clearly false as established by Overall's replacement, Jordan, who working as ice condenser specialist has spent at least 95% of his time on the ice condenser and the remaining 5% on flood mode boration, which Overall was qualified to do. The lack of flexibility was contradicted by Overall's work outside of ice condenser systems and the fact that many of the ice condenser systems were located in other plant wide systems. More importantly, TVA chose an inexperienced person, Jordan, to operate it[s] most important safety system when professing to place safety as its number one priority.

R.D.O. at 33. See id. at 10 ("[John] Rathjen testified by deposition that as system engineer at Sequoyah, he held a comparable position to Overall, being responsible for operation of the ice condenser system, and that 99% of his time is spent with [that] system.").

   TVA falsely asserted that McCormick had made the decision to transfer Overall at-risk to Services in 1994. The ALJ determined instead that Koehl made the decision in the midst of the 1995 fuel load and start up. The ALJ found:

Koehl denied making the decision to transfer Overall to TVA Services stating the decision was made by McCormick because of Overall's lack of an engineering degree or its equivalent and because the ice condenser specialist position did not require a full time person or 2000 man hours of work. Koehl's denial was incredible and conflicted with the statements of McCormick and [TVA human resources manager] Howard Cutshaw who in conversations with Overall on June 16 and 21, attributed the decision to Koehl.

R.D.O. at 26 (finding no. 28). The record shows that, contrary to Koehl's testimony,

McCormick attributed the at-risk transfer decision solely to Overall's purported lack of flexibility in terms of assignment to plant systems other than the ice condenser not to inadequate man-hours. T. 777-779, 805, 807. No other witness supported McCormick's rationale. Koehl in fact admitted that Overall had worked on other systems in the past. T. 733-735.

   The ALJ rejected as "nonsensical" McCormick's testimony that Overall could not work on other systems because if he did so "he would seek a reclassification to the SC schedule which would be unsuccessful." R.D.O. at 21. The ALJ credited Overall's testimony that his position description permitted him to work on systems other than the ice condenser and that he in fact had worked on other systems including diesel generation. Id. at 21-22. McCormick ultimately confirmed that Overall could work backup systems and that he had completed most of the requisite engineer equivalency training. T. 772, 843-846.

   The ALJ additionally pointed to disparate treatment accorded Overall to refute TVA's purported reasons for the at-risk transfer decision. TVA retained other employees, e.g., John Ferguson, Ronnie Schouggins and Doug Williams, with qualifications equal or inferior to those possessed by Overall. R.D.O. at 17, 21, 22, 24 (finding no. 8), 31, 33.

   The ALJ found: "Ferguson, who had no formal engineering education, but rather a 4 year degree in business and who had the same total score of 1325 [equivalency] points as Overall, was given a [last minute] engineering equivalency rating in June 1995 and elevated to the SC [engineer] scale and not transferred to TVA Services as an at-risk employee." R.D.O. at 24 (finding no. 8). See id. at 21 ("both Ferguson and Overall had the same total score but no attempt was made to re-evaluate Overall's status; Koehl admitted that Overall's completion of in-house training since 1991 should have been factored into his equivalency score but was apparently not done") (citation omitted). See also id. at 31 ("Ferguson was upgraded to a SC engineer position although he had no formal engineering training as did Overall."); T. 218-219, 232, 724-725.

   Unlike Overall, TVA permitted SD "specialist" employees Schouggins and Williams "the opportunity to transfer to other positions within Watts Bar while retaining full time employment." R.D.O. at 31. In particular, "Williams, who has no degree, was assigned from Technical Support (component engineering) to maintenance prior to the June 1995 transfers and since the . . . transfers has performed work on the ice condenser. Schouggins has no degree and has continued to work up to the present performing maintenance work on pumps and turbines." Id. at 22. See 738-740; CX 31.

    Koehl's Participation in the June 1995 Adverse Employment Decisions

   The ALJ found Koehl responsible both for making the decision to transfer Overall to Services in an at-risk status and for creating the "permanent" project administrator position for Overall in Services. R.D.O. at 26 (finding no. 28), 31. Evidence of the decisions appeared nearly contemporaneously in June 1995 directly following Overall's initiation of activity in furtherance of PER 246. We agree with the ALJ that the facts tie Koehl directly to these two actions which adversely affected Overall's employment in that they rendered Overall vulnerable to layoff.

   Koehl's role in creating the position of project administrator was somewhat more nuanced, but no less real. The ALJ found essentially that at the inception of PER 246 Koehl prevailed on Services supervisor Rich Miller to create a seemingly secure position in Services tailored to Overall's qualifications. The ALJ summarized events during June 1995:

Rich Miller, a supervisor with TVA Technical Service Group . . . telephoned and offered [Overall] a permanent position in Services. Miller told Overall that he was aware of Overall's ice condenser experience from previous conversations with Koehl and as such was a highly marketable individual for whom Miller would create or tailor a permanent position within the core group at TVA Services. Prior to the call, Overall never heard of Miller but knew as an at-risk employee his employment with TVA would not last more than a year after his reclassification to that status. As a permanent employee Miller told Overall that he would remain with the core group within Services. Subsequently, TVA Services posted a position as project administrator which fit exactly Overall's qualifications.

R.D.O. at 14 (citations omitted; emphasis added). See T. 196-197, 294-302. This portion of the ALJ's statement forms the basis for his finding that "[i]n June, 1995, TVA Services supervisor, Miller, at the prompting of Koehl, created a permanent position of project administrator at TVA Services and offered such a position to Overall telling Overall because of his experience in ice condensers he was a very marketable individual." Id. at 25 (finding no. 20).

   Our determination that Koehl was involved rests on Overall's testimony and overly convenient coincidence. Overall documented discussions with Miller in two entries in his Franklin Planner daily diary on June 1 and 28, 1995. The first entry states that Rich Miller of the Services Organization telephoned to discuss the possibility of employment and that Miller would be asking for an interview. The entry references the possibility of employment at the SC (engineer or equivalency) level or at Overall's present SD level and notes that Miller feels that Overall is "very marketable." RX 9 at 1. The second entry states that Miller requested Overall to submit an outline detailing what "Services can do for the [power] plants in [the] area of ice condenser, etc." Id. at 2. Overall's testimony is consistent with this documentation.

   On direct examination Overall testified that Rich Miller in the Technical Services Group in Chattanooga, Tennessee, had expressed an interest in employing him in a permanent position because of his marketability and that as a permanent employee he (Overall) would remain at the core of Services. T. 195-197. When questioned about the contact on cross-examination, Overall testified in relevant part:

I never met Mr. Miller before and never knew a Rich Miller in my life. [H]e called and wanted to know the possibilities of employment within Services as a permanent employee, to help market my skills. [S]ince he called me first and he spurred the interest, we discussed what the possibilities would be down there, what work he was aligning me to do. . . . He said I was a very marketable person and he wanted to offer me a position, possibly [S]C-3 [engineer equivalent], maybe a [S]D-4. He felt I was possibly my background and experience could actually propose up to a [S]C-3. [He said] it would be a permanent position. It would not be an at-risk position. . . . [T]hat permanent position goes without saying that that would be a secure position, rather than an at-risk position.

T. 297-299. When asked whether Miller had advised him that the vacancy announcement

would be tailored for him, Overall responded, "Mr. Miller conveyed to me on the telephone that there's a position available, we can make one available for you. . . . He said he had several I believe, several positions down there that I could apply for in his organization, that he needed to market my skills. They were permanent-type positions." T. 300-301.

   The following colloquy ensued in reference to the second entry in Overall's daily diary pertaining to the Services outline request:

    Q. And I believe, sir, that there's a note, again about midway down the page, "Rich wants outline of what Services can do for the plants in area of ice condenser, etc."

    A. Umm-hmm. (Affirmative response.)

    Q. Is that again referring to Mr. Miller and TVA Services?

    A. Yes, sir. He called me and asked me that specific question. He brought up the word "ice condenser." Not myself. He obviously knew my background, so

    Q. Did you ever find out how Mr. Miller had learned about you?

    A. No sir, I understand that he did know Mr. Koehl. I understand he had mentioned that several times. That they had had some conversations.

T. 302. We read Overall's response to the last of the foregoing questions to mean that while Overall did not know for certain how Miller had learned of him, Overall understood that Miller and Koehl had nevertheless discussed Overall's expertise in ice condenser systems. The ALJ construed this testimony to include Koehl in the creation of a position in Services for Overall.

Based upon the record as a whole, including Koehl's role in the at-risk transfer decision, we find the ALJ's construction to be a reasonable one. In sum, the above-referenced testimony suggests that Miller mentioned Koehl's name in conversations between Miller and Overall in the context of Overall's expertise in ice condenser systems. Overall, located at Watts Bar, and Miller, located in Chattanooga, had no reason to know of each other. Overall in fact testified that he never had heard of Miller previously. Koehl, whom Miller claimed to know and who acted as Overall's second-line supervisor, supplies the likely connection.

   Another indicator of an association between Koehl and Miller is the extent to which the vacant position announcement tracked Overall's experience and qualifications, known previously to Koehl but not to Miller. It read:

Summary Description of Duties: Serves as a project administration [sic] (civil) for implementation and completion of civil projects involving design and engineering. Supervises other SD-3's and SE's. Assignments include: Performs and reviews civil design and engineering documents including computerized or hand calculations; writes and reviews walkdown procedures and performs walkdown of the plant configuration; trains other personnel in proper civil techniques and methods; coordinates manpower utilization, reviews customer implementing instructions to ensure compliance with upper tier procedures and standards; provides cost estimates and budgets for projects. Monitors cost and schedules.

RX 10. The announcement described the minimum qualifications as an "associate degree in mechanical or civil engineering technology or at least two years of college level course work in a related engineering field and a minimum of four years of practical experience." Id. A comparison of the project administrator duties with Overall's job description for the period 1991 until he commenced work for Services (CX 2) reveals markedly common functions. Overall more than qualified for the position in Services: He possessed a two-year engineering degree and nineteen years of nuclear power plant experience.

   The ALJ reasonably marshaled these elements Miller's express interest in Overall's ice condenser expertise, Miller's mention of Koehl in conjunction with his knowledge of Overall's expertise and the coincident commonality of job duties to find that Koehl likely prevailed on Miller to create a position in Services in an "attempt to lure Overall away from Watts Bar . . . ." R.D.O. at 29.

   Having associated Koehl directly with both actions (i.e., (1) the decision to transfer Overall at-risk to Services and (2) the creation of a permanent position for Overall in Services), we turn to the issue of retaliatory adverse action under the ERA. Section 5851 provides that "[n]o employer may discharge any employee or otherwise discriminate against any employee with respect to his compensation, terms, conditions, or privileges of employment because the employee [has engaged in protected activity]." 42 U.S.C. §5851(a). Viewed in their entirety, we consider the above-referenced actions to constitute adverse action under the ERA in that they placed Overall in a considerably more tenuous employment situation than he had occupied before he engaged in protected activity by reporting the ice condenser screw failure and initiating and processing PER 246. As an at-risk employee transferred to Services, Overall likely would have been terminated in 12 months. And as a project administrator, it turns out that Overall would be affected by a subsequent major reorganization of Services which resulted in substantial layoffs, including his own. Overall reasonably believed that in moving to Services in a permanent capacity he would succeed in marketing his expertise at least to TVA due to continued operation of the condenser-protected units at Sequoyah and Watts Bar. Employment in Services instead ended in separation from TVA, in part because of TVA's reluctance to retrieve employees from Services. Law testified:

[O]ur section supervisor at the time, when they were looking at bringing people back up to do some work, there was some talk about trying to get people back up specifically to work on the ice condenser. And, I guess the comment was made more in general by the section supervisor at that time that they [would] most likely not be bringing people back from Services because they felt like it would be not look good to upper management because if they had let them go and then had to bring them back, you know, it would look like they'd made a bad decision to let them go.

T. 427. Koehl's action in removing Overall from the Watts Bar ice condenser and shunting him, one way or another, to the neophyte and apparently short-lived Services organization accordingly constituted adverse action under the ERA because, as reasonably could be expected, it adversely affected Overall's compensation, terms, conditions or privileges of employment by ensuring his termination.

       Additional Retaliatory Action

   The ALJ found that retaliation continued beyond Overall's removal as an ice condenser specialist at Watts Bar and his tenure with Services inasmuch as TVA organizations refused to contract for his assistance as a project administrator. We agree. The ALJ noted:

[T]he mission of TVA Services was to assist employees whose jobs were being eliminated to find new opportunities within TVA including the acquisition of new training and skills. TVA Services was designed to be financially self-supporting by generating revenues from the sale of their services through contracts within and outside of the TVA organization. As of July 1996, Overall had not been able to acquire any contracts for his services for fiscal year 1997.

R.D.O. at 17. The ALJ found in particular that during his tenure in Services Overall

"unsuccessfully attempted to market his services both to the Watts Bar and Sequoyah plants and other plants outside of the TVA organization." Id. at 25-26 (finding no. 25). Overall's failure in this regard was not for lack of trying. "Overall drafted business plans, set up meetings with plant personnel, put together brochures, visited both Watts Bar and Sequoyah plants but received no work." Id. at 17. He was equally unsuccessful in applying for "announced vacant, non-ice condenser positions" at Watts Bar and Sequoyah and in seeking work outside of TVA organizations. Id.

   The ALJ viewed the inability of the competent and motivated Overall to secure contracts as suspect. Testimony by Ulysses White, task manager for the TVA modifications group at Watts Bar, as to his reasons for declining Overall's services during a mid-cycle outage bordered on the inane:

After listening to Overall's presentation which included his ice condenser expertise, White recommended against using Overall. When asked why White replied: "the money value that probably Service would be charging for us, we only had a certain amount of dollar values to do this project and the short time that we had to do it in, we just felt that, you know, we didn't need their services at this particular time."

R.D.O. at 18; T. 628-629. The record contains no explanation of the "value that probably Service would be charging" or what the "short" length of time available for completion signified. White denied any knowledge of safety concerns raised by Overall about the ice condenser. The ALJ correctly identified this testimony as the single attempt by TVA at the hearing to explain its reasons for refusing Overall's services. Id. at 18. The ALJ accorded the testimony little credence: "White's explanation was vague and never supported by any documentation. His denial of knowledge of safety issues was refuted by White's presence at the June 14, 1995 meeting wherein ice condenser safety was discussed." Id. At bottom, TVA offered tantamount to "no reason" for declining Overall's services.

   The ALJ focused on discrepancies in statements by TVA managers about employment expectations in Services. TVA assertedly conditioned continued employment in Services on generating revenue from the sale of employee services, an objective that TVA itself prevented Overall from achieving. Despite TVA Services director Gary Pitzel's representation to Overall that his (Overall's) permanent position in Services had been budgeted for fiscal 1997, R.D.O. at 26 (finding no. 26), manager of plant services James Swindell attested that "Overall was let go because there were no work opportunities to sustain and cover [Overall's] cost for the 1997 fiscal year." Id. at 18. Overall testified that Pitzel, whom TVA did not call as a witness, stated that "Overall did not have to worry about

layoffs because Swindell had informed him, Pitzel, that Overall's services and skills were still in demand." Id. at 18. The ALJ considered significant TVA's failure to produce Pitzel "to refute his conversation with Overall in which he clearly indicated, contrary to Swindell's assertions, that funds had been set aside for Overall's position." The ALJ noted: "It is well established that when a party has relevant evidence within its control which it fails to produce, that failure gives rise to an inference that the evidence is unfavorable to said party." Id. at 33-34 (citing cases). In sum, Pitzel's statements flatly contravened the explanation advanced by Swindell for Overall's layoff. A fact finder reasonably may "infer from the falsity of the explanation that the employer is dissembling to cover up a discriminatory purpose." Reeves v. Sanderson Plumbing Products, Inc., 120 S.Ct. at 2108.

motivation remained. See Reeves v. Sanderson Plumbling Products, Inc., 120 S.Ct. at 2108-2109 (fact finder may construe "a party's dishonesty about a material fact as affirmative evidence of guilt'" ; "once the employer's justification has been eliminated, discrimination may well be the most likely alternative explanation, especially since the employer is in the best position to put forth the actual reason for its decision"). We adopt the ALJ's finding of intentional discrimination.

   We otherwise agree with the ALJ that assuming the existence of dual motives (both legitimate and discriminatory reasons for adverse action) TVA failed to meet the "clear and convincing" evidence standard under 42 U.S.C. §5851(b)(3)(D) for being relieved of liability under the ERA in a dual motive case ("[r]elief may not be ordered . . . if the employer demonstrates by clear and convincing evidence that it would have taken the same unfavorable personnel action in the absence of [protected activity]"). See Mount Healthy City Sch. Dist. v. Doyle, 429 U.S. 274 (1977); Stone & Webster Engineering Co. v. Herman, 115 F.3d at 1572. The evidence, considered in its entirety, fell short of substantiating TVA's defenses, i.e., "lack of need for a full time ice condenser specialist," "lack of . . . flexibility" on the part of Overall to perform duties pertaining to a number of systems and "shortage of funds" necessary to retain Overall's permanent position in Services. R.D.O. at 34.

III. The Complaint was Timely.

   The ERA provides that any employee who believes he has been discriminated against in violation of the Act may file a complaint with the Secretary of Labor within 180 days of the violation. 42 U.S.C. §5851(b)(1). TVA asserts that the discrimination complaint in the instant case is barred as untimely because Overall filed the complaint more than 180 days after the adverse employment action. Overall counters that the limitations period is subject to equitable modification and that modification is appropriate here. Overall argues alternatively that he filed a timely complaint within 180 days of one of a series of "continuing" violations which effectively "shelters claims for all other actions taken pursuant to the same policy from the limitations period." Connecticut Light & Power Co. v. Sec'y of U.S. Dep't of Labor, 85 F.3d 89, 96 (2d Cir. 1996). The ALJ agreed with Overall's continuing violation theory but declined to apply principles of equitable modification in holding Overall's complaint timely filed. We find Overall's complaint timely under both approaches.

   We focus on three time periods in addressing the timeliness issue, the first of which is September 1994, when TVA initially advised Overall of a possible change in his employment conditions. Overall was one of 19 employees whom Koehl served at this time with a document captioned "Written Notification of Potential At-risk Status." RX 2 (emphasis added).

   The second period of focus is mid-April through November 1995, when Overall/TVA processed PER 246 and the NRC scrutinized pre-operation activities at Watts Bar. Overall's activities associated with PER 246 commenced in mid-April 1995 and culminated in his removal by TVA from work on the PER in mid-July 1995. About a month before TVA removed Overall from the PER process, in early June 1995, TVA approached Overall with the offer of the position of project administrator in Services. Overall applied for the position on June 16, 1995, spurred by TVA's issuance of a second written notification of an employment action on the same date. This time TVA notified Overall of an imminent transfer to Services as an at-risk employee subject to termination within 12 months. TVA formally offered Overall the position of project administrator on October 2, 1995, he accepted, and he commenced work on November 3. Koehl was aware that Services had been funded for a two-year period ending at the conclusion of fiscal 1996, but Overall was not similarly aware of a funding limitation and was quite surprised when on July 24, 1996 he received a notification of layoff effective September 30. At this juncture Overall understood that his job was in jeopardy, contrary to earlier belief. On January 15, 1997 175 days after being notified of layoff from TVA Services Overall filed a complaint of unlawful discrimination.

   Finally, we focus on May and June 1997 when TVA refused to re-employ Overall after having laid him off. As discussed under Part II supra, TVA modifications task manager White initially approached Overall about performing work on the Watts Bar ice condenser during an outage and guaranteed him a specific work schedule. TVA then chose to engage a contractor (Stone and Webster) whose engineers lacked any ice condenser experience whatever.

   Statutes of limitation run from the date an employee receives final, definitive and unequivocal notice of an adverse employment decision. The date that an employer communicates a decision to implement such a decision, rather than the date the consequences of the decision are felt, marks the occurrence of a violation. See generally Chardon v. Fernandez, 454 U.S. 6 (1981) (proper focus contemplates the time the employee receives notification of the discriminatory act, not the point at which the consequences of the act become painful); Delaware State College v. Ricks, 449 U.S. 250 (1980) (limitations period began to run when the employee was denied tenure rather than on the date his employment terminated).

   In addressing the instant scenario, we distinguish between the accrual of Overall's claim and the tolling of the limitations period by means of either of two modifications doctrines ? equitable estoppel and equitable tolling. See Cada v. Baxter Healthcare Corp., 920 F.2d 446, 450-453 (7th Cir. 1990), cert. denied, 501 U.S. 1261 (1991). We find contrary to the ALJ that the limitations period with regard to the adverse employment action taken against Overall in 1995 (at-risk transfer) was tolled. We then turn to the continuing violation theory under which the ALJ found Overall's complaint timely a finding which we adopt.

   Claim accrual is the date a statute of limitations begins to run, i.e., the date a complainant discovers he has been injured. Accrual may differ from the date the respondent decides to inflict injury which may pre-date a complainant's discovery of the injury. This "discovery rule" may operate to postpone the beginning of a limitations period which, as the Cada court notes, is consistent with Delaware State College v. Ricks, 449 U.S. at 258 (statute of limitations begins to run at the time the adverse decision is made and communicated to an employee). Cada v. Baxter Healthcare Corp., 920 F.2d at 450. This Board essentially has applied the discovery rule in holding that statutes of

limitation in whistleblower cases begin to run on the date when facts which would support a discrimination complaint were apparent or should have been apparent to a person similarly situated to the complainant with a reasonably prudent regard for his rights. Whitaker v. CTI-Alaska, Inc., ARB Case No. 98-036, ALJ Case No. 97-CAA-15, ARB Dec. & Rem. Ord., May 28, 1999, slip op. at 7-8; Ross v. Florida Power & Light Co., ARB Case No. 98-044, ALJ Case No. 96-ERA-36, ARB Fin. Dec. & Ord., Mar. 31, 1999, slip op. at 4; McGough v. U.S. Navy, Case Nos. 86-ERA-18/19/20, Sec. Dec., June 30, 1988, slip op. at 9-10.

   ERA time limitations are not jurisdictional. They instead are analogous to statutes of limitation which are subject to equitable modification, i.e., they "may be extended when fairness requires." Hill v. U.S. Dep't of Labor, 65 F.3d 1331, 1335 (6th Cir. 1995). Both of the above-referenced doctrines of equitable modification are, as is the discovery rule, "grafted on to" federal statutes of limitation including limitations under laws prohibiting employment discrimination. Cada v. Baxter Healthcare Corp., 920 F.2d at 451-452. See Oshiver v. Levin, Fishbein, Sedran & Berman, 39 F.3d 1380, 1386 and n.5 (3d Cir. 1994). The doctrines of equitable modification may apply to stop a limitations period from running once a claim has accrued.

   TVA's threshold argument is that the limitations period began to run as early as September 15, 1994, when TVA issued Overall a written notification which stated in relevant part:

Based on workforce planning projections, we have identified occupations and positions within our organization which will not be required to support our future business needs. Your current position of Power Maintenance Specialist SD-04 has been identified as potentially at-risk and is targeted for surplus as of July 3, 1995. As a result, we may assign you to the Services organization effective July 3, 1995 . . . .

During your temporary assignment to the Services organization, you will remain at your current schedule and grade and in the same competitive area and level as your current position until other job opportunities become available. . . .

RX 2 (emphasis added). We find that TVA's threshold argument fails on its face since the above-referenced communication by its terms constituted less than a final, definitive and unequivocal notice of adverse action. The notification nowhere stated that Overall would be subject to termination within a specified period. Rather, it suggested temporary assignment to Services pending reassignment to another position. At no time following issuance of the notification did TVA advise Overall that an assignment to Services would occur on the date indicated, and such an assignment in fact did not materialize on that date.

   The context in which Overall received the 1994 notification reinforces our finding. Overall testified that in an August 1994 meeting TVA presented the reorganization as a preliminary proposal, and that McCormick advised Overall: "Not to worry. Things could change." T. 255. Overall's contemporaneous notes substantiate this testimony and document McCormick as commenting additionally that "some [S]D's [Overall's classification] maybe SE's [a less qualified classification] will be needed depending on need." CX 44. Overall noted the continuing necessity for an ice condenser specialist. Id. Overall's testimony went unrebutted. In finding the 1994 notification to be "no more than a potential notice of future transfers" the ALJ noted that "[w]hen questioned about the . . . 1994 at-risk notices and whether he told Overall that he would be definitely transferred as opposed to just possibly being transferred, McCormick was unable to recall what he told Overall or to explain the meaning of potentially at-risk.'" R.D.O. at 26 and n.18 (finding no. 31). See T. 782. Based on these considerations, we adopt the ALJ's finding of non-finality.

   Assuming Overall's claims arise out of separate adverse actions (and not as part of a continuing violation), as such they are separately actionable. Thus the decision to transfer Overall to Services in an at-risk status gave rise to one complaint; the decision to terminate Overall's permanent employment with Services gave rise to another. Each claim, in turn, carried a separate accrual date, i.e., June 16, 1995 (notification of at-risk transfer); July 24, 1996 (notification of termination from Services).

   Because of TVA's actions in the instant case the applicable doctrine for assessing whether the limitations period was tolled is equitable estoppel (fraudulent concealment), as opposed to equitable tolling. Rich Miller, the TVA Technical Services supervisor who contacted Overall about the permanent project administrator position, represented that he "was aware of Overall's ice condenser experience from previous conversations with Koehl and as such [Overall] was a highly marketable individual for whom Miller would create or tailor a permanent position within the core group at TVA services." R.D.O. at 14. The position thus appeared particularly attractive to Overall especially when faced with imminent at-risk transfer, and Overall reasonably could depend upon being selected in that TVA reportedly had created the position especially for him. The position in Services carried the same pay and benefits as the ice condenser specialist position at Watts Bar, and it purportedly would afford Overall the opportunity to service not only the Watts Bar ice condenser system but TVA's Sequoyah systems and systems outside of TVA. We find TVA's assurances sufficient reasonably to have lulled Overall into refraining from filing a discrimination complaint arising from the notification of at-risk transfer pending completion of job selection for the position of project administrator. While somewhat concerned about the prospect of an at-risk transfer, Overall practically had been guaranteed a permanent position in Services. Overall reasonably would have filed a complaint in the event that TVA denied him the permanent position and he retained at-risk status. TVA instead offered him the position.

   In holding that equitable estoppel did not toll the limitations period, the ALJ reasoned as follows:

In the instant case I find that on June 16, 1995, Overall knew that he was going to be transferred to TVA Services. He also knew by that date that management . . . was attempting to cover up the issue of screw safety and that the reasons advanced by Koehl for his transfer, i.e., not enough work for one full time ice condenser specialist, was false. Overall was also aware that he had the right to file a complaint with DOL because of adverse employment actions by TVA. Accordingly, I find that although TVA concealed its true motive in transferring him, Overall had enough information to realize that he had a cause of action under ERA.

R.D.O. at 28. We agree with the ALJ to the following extent: On June 16 Overall, having engaged in protected activity in furtherance of PER 246, was aware that TVA had subjected him to adverse employment action ? by notifying him of impending at-risk transfer. The record suggests that he suspected that his protected activity had motivated TVA to take this adverse action. Accordingly the "claim" arising as the result of the June 16 notification of at-risk transfer "accrued" at this juncture.

   Beyond this finding we part company with the ALJ's analysis, because it was not TVA's concealment of its "true motive" with respect to the at-risk transfer that is of import, but rather TVA's subsequent concealment of operative facts which form the basis of a cause of action. Specifically, TVA masked the true nature of Overall's employment status by fraudulently offering Overall what he reasonably believed to be a secure position in Services. Indeed, TVA presented the opportunity to be more desirable than that afforded by his previous position at Watts Bar. In these circumstances equitable estoppel applies because TVA actively misled Overall about the desirability of the permanent position by concealing the fact that the funding limitation for Services would ensure, or at least serve to rationalize, his layoff. TVA's actions prevented Overall from realizing critical information about an operative component of a cause of action, i.e., continuing adverse action. While discerning TVA's intent with respect to the at-risk transfer notification, Overall foresaw no animus with respect to the offer of a secure position. We find that TVA's concealment (1) prevented Overall from discovering that he in fact had been wronged in applying for and taking the permanent position in Services and (2) deterred him from filing a complaint arising from TVA's at-risk transfer decision because he believed that whatever wrong may have been committed as the result of that decision had been corrected by TVA's offering him what in all respects appeared to be an enhanced employment opportunity.

   The ALJ relied on Hill v. U. S. Dep't of Labor, 65 F.3d 1331 (6th Cir. 1995). There, complainants argued that the limitations period should be tolled because respondent concealed the existence of discriminatory motivation in that respondent led complainants to believe that it discharged them for legitimate reasons when the reasons actually were unlawful. All predicates to a discrimination complaint protected activity, adverse action and an inference of causation were extant. Here, TVA notified Overall of a seemingly secure (permanent) position (June 1) which in reality would be subject to ready elimination upon expiration of the unit's funding. When Overall neglected to apply for the position immediately TVA notified him of imminent at-risk transfer (June 16). Overall then applied for and was awarded the permanent position. By engaging in this ruse TVA concealed its ongoing resolution to injure Overall, a fact essential to a claim arising from the totality of its actions. The Hill court formulated the distinction between these circumstances:

A deception regarding motive supports application of equitable [estoppel] only where the deception conceals the very fact of discrimination. Equitable [estoppel] through fraudulent concealment is not warranted where a petitioner is aware of all the essential facts constituting discriminatory treatment but lacks direct knowledge or evidence of the defendant's subjective discriminatory motive. The critical question is not whether concealment of motives alone constitutes fraudulent concealment, but whether the defendant's alleged fraudulent conduct concealed from the plaintiff facts respecting the accrual or merits of the plaintiff's claim.

65 F.3d at 1337 (citations omitted; emphasis added). With regard to the notification of at-risk transfer, Overall acknowledges claim accrual, i.e., the existence of all elements of a complaint including suspected unlawful motivation. In concealing from Overall the vulnerable status of the permanent position in Services, TVA withheld the "fact" that Overall continued to suffer adverse action as the result of the position he chose in order to avert adverse action visited by at-risk status.

   The question then becomes the appropriate extent of modification. A complaint would be timely if the statute of limitations was tolled from June 16, 1995 ? the date that Overall received notification of the at-risk transfer to Services and applied for the permanent position of project administrator ? until July 24, 1996, when TVA notified Overall of the layoff from the permanent position. We find this modification appropriate because the doctrine of equitable estoppel applies in the circumstances of this case. That doctrine subtracts from the limitations period the entire period during which the modifying condition is extant. The entire limitations period having been tolled, we find the complaint concerning notification of at-risk transfer to be timely.

   Continuing violation

   The ALJ found the complaint timely as filed within 180 days of notification of one of a series of adverse actions comprising a continuing violation. R.D.O. at 29-30. The court in Connecticut Light & Power Co. v. Sec'y of Labor, (ERA whistleblower case) described the applicable standard as follows:

Under the continuing violation standard, a timely charge with respect to any incident of discrimination in furtherance of a policy of discrimination renders claims against other discriminatory actions taken pursuant to that policy timely, even if they would be untimely if standing alone. A continuing violation exists where there is a relationship between a series of discriminatory actions and an invalid, underlying policy. Thus in cases where the plaintiff proves i) an underlying discriminatory policy or practice, and ii) an action taken pursuant to that policy during the statutory period preceding the filing of the complaint, the continuing violation rule shelters claims for all other actions taken pursuant to the same policy from the limitations period.

85 F. 3d at 96 (citations omitted). Accord Berkman v. United States Coast Guard Academy, ARB Case No. 98-056, ALJ Case Nos. 97-CAA-2/9, Dec. and Rem. Ord., Feb. 29, 2000, slip op. at 14-15; Varnadore v. Oak Ridge National Laboratory, ALJ Case Nos. 92-CAA-2, et al., Sec. Dec. and Ord., Feb. 5, 1996, slip op. at 61, 66, aff'd sub nom. Varnadore v. Sec'y of Labor, 141 F.3d 625 (6th Cir. 1998).

   In finding the existence of a continuing violation, the ALJ found that TVA had engaged in an unlawful coverup of the ice condenser screw failure which, insofar as it related to Overall particularly, resulted in a series of retaliatory actions taken by TVA against him in furtherance of the coverup. The ALJ stated:

In this case the facts clearly show an organized scheme to remove Overall from the Watts Bar facility by transferring him to TVA Services. Once there TVA's plan was to lay him off and never recall him to either TVA Services or more importantly to Watts Bar. The credible evidence in this case indicates a broad coverup of significant safety hazzards caused by the use of defective ice basket condenser screws. Those management officials involved in the coverup were (1) Woods who directed the issuance of a revised and incomplete screw report omitting reference to any possible cause for screw failure so as to avoid questioning by NRC investigators; (2) McCormick who transferred PER 246 to nuclear engineering so as to remove it from Overall's control and responsibility; (3) Koehl who transferred Overall to TVA Services under the pretext of lack of need for a full time ice condenser specialist; (4) J.W. Irons, Westinghouse representative, who at the insistence of TVA officials issued a superficial and misleading report attesting the safety of the ice condenser; (5) James G. Adair's and Larry A. Katchum's recommendation that PER 246 be closed without taking any corrective action to assess or replace the defective ice basket screws; (6) Tom McCollum's subsequent action in closing out or completing the investigation of PER 246 without taking any corrective action and inaccurately concluding that the ice baskets were not accessible; (7) Woods, McCormick, Koehl, Adair, Katchum and McCollum's failure to advise the NRC of the safety issue raised by the defective ice basket screws which in turn led the NRC to subsequently issue an operating license to TVA for the Watts Bar plant; (8) Rich Miller's attempt to lure Overall away from Watts Bar by creating a position in TVA Services at the urging of Koehl; (9) Swindell's layoff of Overall for pretextual reasons stating a lack of funds when in truth funds had been set aside for Overall's position; (10) TVA's refusal to re-employ Overall at any of its ice condenser facilities including Watts Bar using instead inexperienced outside contractors to do ice condenser work.

Thus, Overall's transfer to TVA Services, subsequent layoff and refusal to re-employ or recall were part of an organized scheme to prevent Overall's continued involvement with the Watts Bar or any other TVA ice condenser system so as to permit operation of such condensers without regard for significant operational safety concerns raised by the use of defective Westinghouse ice basket screws.

R.D.O. at 29-30. Specific to the issue of "claim accrual" (i.e., the point

at which Overall discovered the wrong and the limitations period began to run), the ALJ made the following findings:

[T]he permanency of the transfer resulting in no further ice condenser work and eventual layoff did not become apparent until Overall received his notice of layoff on July 24, 1996. Prior to that time Overall had been assured by TVA that his services were not only valuable but marketable as well. In reality Overall found only a consistent pattern of rejection by TVA for no apparent reason other than its desire to eliminate him from its ice condenser workforce. In reality there was no realistic possibility of Overall returning to Watts Bar for as section supervisor Jim Yates told Law, TVA would not bring back employees to work on the ice condenser who had been transferred to TVA Services because to do so would be tantamount to an admission of an improper or bad decision in sending Overall to TVA Services in the first place.

Id. at 30.

   We find ample evidence in the record to support the ALJ's findings of a coverup by TVA in order to facilitate the fuel load and start up at Watts Bar. With regard to Overall in particular the coverup included the following:

• Upon discovering and reporting the ice condenser screw failure in April 1995, Overall set in motion a number of remedial processes, all activities protected under the ERA.

• In May and June 1995, TVA attempted to minimize the import of the ice condenser screw failure during the course of two meetings between management and staff, while at the same time withdrawing and reissuing the June 2, 1995 metallurgical report in order to delete identified causes of failure and thereby deter further scrutiny.

• At virtually the same time TVA dangled the prospect of a custom-made job opportunity before Overall in which Overall supposedly would be able to maximize use of his ice condenser expertise ? but which also would remove him from Watts Bar and relocate him to TVA's Chattanooga corporate offices.

• When Overall initially failed to seize the job opportunity, persisting instead in following up on the ice condenser safety issue (despite receiving three anonymous telephone threats during this same period), TVA notified him on June 16, 1995, of imminent at-risk transfer subject to termination within 12 months. That same day Overall applied for the permanent position of project administrator in TVA Services.

• Notwithstanding his imminent transfer to Services, Overall continued to pursue the ice condenser safety issue. When, in July 1995, Overall met with TVA engineers to develop a "recurrence control" program for the screw failure, TVA finally relieved him of responsibility for PER 246 by taking the unusual step of transferring the PER to another department which promptly closed out the PER without taking any corrective action.

• Overall subsequently took the permanent position with Services. Notwithstanding that he had been informed that the position had been custom-made to fit his expertise with ice condenser systems, and notwithstanding recurrent need for his expertise, TVA thereafter declined to utilize him in any capacity relating to ice condenser systems. "Overall found only a consistent pattern of rejection by TVA for no apparent reason other than its desire to eliminate him from its ice condenser workforce"; TVA "refus[ed] to re-employ Overall at any of its ice condenser facilities including Watts Bar using instead inexperienced outside contractors to do ice condenser work." R.D.O. at 29.

• TVA sought to minimize the potential that the ice condenser safety issue might reemerge by removing Overall from contact not only with the system at Watts Bar but from such systems generally.

• Finally, TVA notified Overall of his termination from employment at Services on July 24, 1996, laying off Overall "for pretextual reasons stating an alleged lack of funds when in truth funds had been set aside for Overall's position . . . ." R.D.O. at 29. On January 15, 1997 175 days thereafter Overall filed his discrimination complaint.

   We agree with the ALJ that Overall timely filed his discrimination complaint within the ERA limitations period following an adverse employment action taken against him. We further agree with the ALJ that Overall's 1996 termination from Services was but the most recent in a series of related adverse actions motivated by discriminatory animus and taken in furtherance of TVA's effort to suppress safety concerns pertaining to the ice condenser system. Accordingly, we find that Overall's complaint was timely filed as to all retaliatory actions alleged.

IV. Remedy

   The ALJ recommended that Complainant Curtis C. Overall be reinstated with back pay and interest, that he be reimbursed for costs incurred for health insurance, medical costs, life insurance and retirement fund, that TVA expunge from Complainant's employment records all derogatory or negative information pertaining to TVA's discriminatory treatment of Complainant, that TVA pay Complainant $50,000 in compensatory damages, and that TVA comply with a posting requirement. R.D.O. at 36-37.

   On May 12, 1998 the ALJ issued a Preliminary Order Granting Relief and Supplemental Order on Attorney's Fees and Costs. The ALJ essentially reissued most of his previous recommendations in the form of a preliminary order with specific award amounts pursuant to 29 C.F.R. §24.7(c)(2). The preliminary order provided for the following specific monetary recovery:

   It is further ORDERED that Complainant may, within twenty (20) days from the date of this Decision and Order, submit to this Board an itemized petition for additional attorney fees and other litigation expenses incurred after the May 12, 1998 issuance of the ALJ's Preliminary Order Granting Relief and Supplemental Order on Attorney's Fees and Costs. Complainant shall serve the petition on Respondent, who shall submit any response within thirty (30) days after the date of this Decision and Order. This Board will issue a supplemental order regarding attorney fees and costs after considering the additional attorney fee petition and any response thereto.

   We adopt the ALJ's preliminary order as modified above. We additionally adopt the ALJ's recommendation that Complainant be awarded $50,000 in compensatory damages.