For the Complainant: Lynne Bernabei, Esq., Debra S. Katz, Esq., Michael C. Subit, Esq., Bernabei & Katz, Washington, D.C.
For the Respondent: Thomas F. Fine, Esq., Brent R. Marquand, Esq., Tennessee Valley Authority, Knoxville, Tennessee
FINAL DECISION AND ORDER
This case arises under the employee protection provision of the Energy Reorganization Act of 1974 (ERA), as amended, 42 U.S.C. §5851 (1994), and implementing regulations at 29 C.F.R. Part 24 (2000). The issues are whether Complainant Curtis C. Overall timely filed a complaint of unlawful discrimination and whether he proved that Respondent Tennessee Valley Authority (TVA) intentionally discriminated against him, the specific issue in contention being whether Overall demonstrated causation, i.e., that his protected activity motivated TVA to take adverse employment action against him. The Administrative Law Judge (ALJ) decided each issue in favor of Overall. We adopt the ALJ's findings as modified below.2[Page 2]
Complainant has excepted to a number of the ALJ's findings in this regard, citing the following items:
1. A typographical error concerning amended joint stipulation no. 34 of Joint Exhibit No. 9 which should read $904.22. We hereby order this amount corrected.
2. An attorney fee award for a combination of deposition time and travel time which was incorrectly reduced . Complainant's counsel has substantiated the proposed adjustments based on his records, and the amounts appear reasonable. We accordingly order the award increased by ,540.
3. An award for expenses which should have included a fee to compensate an expert witness for preparation of an affidavit attesting to appropriate attorney fees. Such an award is standard in the preparation of fee petitions, and the amount appears reasonable. We accordingly increase the award for expenses by ,280.
4. An improper reduction of the amount awarded for post hearing attorney fees. The arguments advanced by Complainant for increasing this award the length of the hearing and the transcript of hearing and the non-identity of issues briefed in response to the motion for summary disposition and in post-hearing filings are compelling. We accordingly order the award of attorney fees increased by $19,443.75.
[Page 45]
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.
1 This appeal has been assigned to a panel of two Board members, as authorized by Secretary's Order 2-96. 61 Fed. Reg. 19,978 §5 (May 3, 1996).
2 The parties have moved to supplement the record with new and material evidence which recently became available and which was not readily available prior to the closing of the record before the ALJ. Most of this evidence bears on findings generated by the Nuclear Regulatory Commission (NRC) between 1998 and 2000 which aid in understanding Overall's protected activity. See section captioned "Subsequent NRC Activity," infra. The parties' motions are granted and the evidence is accepted for filing. 29 C.F.R. §18.54(c) (2000); Mosbaugh v. Georgia Power Co., Case Nos. 91-ERA-1/11, Sec. Dec. and Rem. Ord., Nov. 20, 1995.
The parties also have moved to remand the case to the ALJ. Overall subsequently withdrew his motion in which he requested a remand limited to the propriety of ordering reinstatement given the occurrence of certain intervening events. Only TVA's motion remains before us. TVA requests a remand for purposes of developing the record further to address whether evidence generated by TVA during an investigation conducted after the close of the record bears on Overall's credibility. We can divine no basis for ordering such an unusual undertaking, and TVA has provided us none. The ALJ accorded the parties abundant opportunity to pursue discovery in preparation for the hearing and to present their respective cases after which he closed the record. His findings derive from witness demeanor and from the evidence adduced prior to the record's close. The parties, in other words, have been accorded the process due them. The motion is denied.
3 Overall previously had obtained a two-year degree in architectural pre-engineering and had worked between 1973 and 1979 as an engineering draftsman for the Department of Public Works, Roads and Streets for the city of Chattanooga, Tennessee. R.D.O. at 23 (ALJ finding no. 6).
4 Overall had designed the ice melt tank as a means to contain debris ice. As water melted off, any solids present in the ice remained at the bottom of the tank. On two occasions preceding installation of the tank TVA had engaged in ice loading and drainage but had not inspected the ice for foreign objects. Hearing Transcript (T.) 92-98.
5 The ALJ found that "[h]ad a proper ice basket screw inspection been conducted Watts Bar could easily have been shut down for a period of 6 to 12 months." R.D.O. at 26-27 (finding no. 32).
6 The ALJ credited Overall's testimony that he received the notification on June 16 based in part upon contemporaneous notes in Overall's Franklin Planner daily diary and the timing of three events ? an anonymous harassing telephone call, Overall's action in boxing up his possessions and Overall's action in confronting McCormick about the transfer. R.D.O. at 16 (Overall's "specific testimony, exhibits and demeanor" compared with Koehl's "vague" testimony and demeanor; ALJ rejected Koehl's testimony that he served the notification on June 23).
7 Although classified as a "specialist," Overall was qualified to operate a number of systems in addition to the ice condenser system. R.D.O. at 26 (finding no. 30).
8 TVA promoted one of these employees, John Ferguson, to engineer "equivalency" status by virtue of a point rating derived as the result of his education and experience. Ferguson and Overall had received "the same overall [equivalency] evaluation of 1325 points . . . ." R.D.O. at 17. The ALJ noted, "TVA failed to call [the rating official] to explain either the rating system or how Ferguson, who possessed no formal engineering training, was able to be classified as a system engineer." Id. Overall, in contrast, had received some formal engineering training.
9 The exhibits discussed below document the NRC activity. With the exception of CX 48, the Board accepted all referenced exhibits for filing after the close of the record before the ALJ. See n.1 supra. The ALJ admitted the remaining exhibit, CX 48, which Overall submitted during post-hearing briefing. R.D.O. at 2-3 n.3.
10 The Court distinguished cases where proof of an incredible explanation might not be probative of intentional discrimination, specifically instances where "no rational factfinder could conclude that the action was discriminatory." Reeves v. Sanderson Plumbing Products, Inc. 120 S.Ct. at 2109. An example might be "circumstances show[ing] that the defendant gave the false explanation to conceal something other than discrimination" in which case "the inference of discrimination [would] be weak or nonexistent.'" Id., quoting Fischer v. Vassar College, 114 F. 3d 1332, 1338 (2d Cir. 1997)(en banc), cert. denied, 522 U.S. 1075 (1998).
11 Overall contacted George Newton (a maintenance planner) to arrange for the camera inspection and he contacted Bob Foreston in quality assurance to devise a methodology for determining which ice baskets to inspect. CX 24 at 9-10; T. 114-116, 118-120. Overall also contacted two Westinghouse representatives, Gordon Yetter and Chuck Scrabis, who commented that the screw failure could have an impact upon the fuel load date at Watts Bar and the operation of other nuclear power plants with ice condenser systems since they all used the same screws. T. 100-101, 103; CX 24 at 4/12/95.
12 Of the various counterparts contacted, Alex Smith at Duke Power informed Overall that his unit had discovered hundreds of failed screws during outages; Art Tetzlaff and Brenda Sheares at D.C. Cook attested to the same experience.
13 Safety systems such as the ice condenser must be operable prior to fuel loading. The November 1995 fuel load date required that the ice condenser be operable during the segment of the start up process scheduled for August 1995. T. 828-832, 856-858.
14 McCormick's actions in initiating the PER are telling in this regard. McCormick testified that he believed the screw failure to be safety-related because damaged or missing screws could prevent the ice condenser from working properly. T. 812-813. He accordingly marked the screw failure as "potentially reportable" to the NRC and signed PER Appendix E-1 (10 C.F.R. 50.55(e) screening form) (CX 23 at 86) stating that the failure was safety-related and that he could not confirm that the ice condenser could perform its safety function. T. 814.
15 The report focused only on the screws found by Overall in the ice melt tank, rather than on the possibility that additional screws might fail because of internal anomalies resulting from the manufacturing process. The ALJ's finding no. 16 states in part that the Westinghouse report concluded, "without any inspection of the ice baskets to determine the number of missing or faulty screws, that the statistical probability of ice basket failure was remote." R.D.O. at 25. Moreover,
McCormick, who had a degree in mathematics, was unable to explain the so called statistical analysis. The report . . . inaccurately concluded that the ice baskets were not ejectable whereas the credible testimony of Overall showed that the ice baskets were not only ejectable but when ejected could prevent the proper functioning of ice condenser doors and penetrate the containment vessel allowing for the escape of radioactive gases.
Id.
16 As discussed supra under "Subsequent NRC Activity," the NRC did not have occasion to begin investigating the ice condenser screw failure at Watts Bar until mid-1998.
17 By 1995 the number of employees in Overall's section had diminished significantly through attrition. Of the original 19 employees who had received notification of potential at-risk status in September 1994, only four employees including Overall received notification of actual at-risk transfer in June 1995. The other employees had retired or transferred elsewhere. One of the four employees notified of at-risk transfer in 1995, John Ferguson, received a "last minute" engineering equivalency rating. R.D.O. at 21.
18 As the ALJ noted, TVA neither called Cutshaw to testify nor denied that Cutshaw made the comment as Overall testified. McCormick testified that he did not recall speaking to Overall about the transfer decision. R.D.O. at 16.
19 The ALJ identified Koehl as a likely participant in employment decisions at TVA facilities during Overall's tenure at Services and when, after layoff, Overall applied to TVA for outage work at Watts Bar (May 1977). The ALJ found:
Koehl had direct contacts with Swindell and other TVA Service supervisors on a frequent basis and in fact negotiated Overall's rate of pay with Swindell. Indeed it was Koehl who was responsible for TVA Services creating a position for Overall so as to remove him from processing PER 246. . . . Following Overall's transfer to TVA Services, Koehl assumed even greater authority and control at Watts Bar, and eventually Sequoyah, being promoted to assistant plant manager and operations manager at Watts Bar and in June 1977 assigned to the position of assistant plant manager at Sequoyah.
R.D.O. 31. White testified that Stone and Webster maintained close contact with plant management when contracted to work outages. T. 635-636. Koehl had worked for Stone and Webster for a six-year period during the 1980's. T. 589-592. In June 1997 Koehl left his position as operations manager at Watts Bar to become assistant plant manager at Sequoyah. Although acknowledging that Koehl had denied contact with Services and Stone and Webster about Overall, the ALJ observed that Koehl "admittedly . . . had worked with Stone and Webster in the past and had frequent conversations with personnel in TVA Services and as technical support manager, assistant plant manager, and operations manager he certainly was in a position to directly influence Overall's work opportunities at Watts Bar." R.D.O. at 31. See R.D.O. at 21 (citing T. 592, 593, 599, 711 and 712).
20 Overall requested that Koehl provide him with a written statement that, as Koehl had professed, the reason for the transfer was insufficient work afforded by the position of ice condenser system specialist. T. 187-188, 190-191. Overall subsequently appealed to numerous individuals for reconsideration including the TVA human resources manager, a TVA labor relations specialist and a union representative. T. 195; CX 24, p. 27; CX 26.
21 The Oshiver court for example explained that in that circuit the term "equitable tolling" denotes what the Cada court has designated "equitable estoppel" inasmuch as the Oshiver circuit's equitable tolling "excuses a late filing where such tardiness results from active deception on the part of the defendant." Oshiver, 38 F.3d at 1389 n.7. According to a panel of yet another circuit employer deceit constitutes an element triggering both equitable tolling and equitable estoppel. English v. Pabst Brewing Co., 828 F.2d 1047, 1049 (4th Cir. 1987), cert. denied, 486 U.S. 1044 (1988) (equitable tolling applies where the employer wrongfully deceives or misleads a plaintiff in order to conceal the existence of a cause of action; whereas equitable estoppel applies where, despite a plaintiff's knowledge of the facts, an employer engages in intentional misconduct in order to cause the plaintiff to miss the filing deadline). Under the Cada formulation, employer deceit does not necessarily constitute an element of equitable tolling.
22 The court in Cada noted that because fraudulent concealment is not a factor, equitable tolling serves to adjust the rights of two parties who are blameless as to the necessity for modification. No automatic extension of a statute of limitations for a definite term thus is defensible. The court emphasized that tolling comprised "an equitable doctrine." It stated:
[The doctrine] gives the plaintiff extra time if he needs it. If he doesn't need it there is no basis for depriving the defendant of the protection of the statute of limitations [which] protect[s] important social interests in certainty, accuracy, and repose. . . . When we are speaking not of equitable estoppel but of equitable tolling, we are dealing with two innocent parties and in these circumstances the negligence of the party invoking the doctrine can tip the balance against its application . . . . We hold that a plaintiff who invokes equitable tolling to suspend the statute of limitations must bring suit within a reasonable time after he has obtained, or by due diligence could have obtained, the necessary information.
Cada v. Baxter Healthcare Corp., 920 F.2d at 452-453. See Oshiver v. Levin, Fishbein, Sedran & Berman, 38 F.3d at 1390.
23 The interest rate is that charged on the underpayment of Federal income taxes, i.e., the Federal short-term rate under 26 U.S.C. §6621(b)(3) plus three percentage points. See 26 U.S.C. §6621(a)(2). The referenced Federal short term rate is the "applicable federal rate" (AFR) for a quarterly period of compounding. E.g., Rev. Rule 2000-23, Table 1. Doyle sets out the following methodology:
To determine the interest for the first quarter of back pay owed, the parties shall multiply the back pay principal owed for that quarter by the sum of the quarterly average AFR plus three percentage points. To determine the quarterly average interest rate, the parties shall calculate the arithmetic average of the AFR for each of three months of the calendar quarter, rounded to the nearest whole percentage point. . . .
To determine the interest for the second quarter of back pay owed, the parties shall add the first quarter principal, the first quarter interest, and the second quarter principal. The resulting sum is multiplied by the second quarter's interest rate as calculated according to the preceding paragraph. This multiplication yields the second quarter interest.
Slip op. at 19-20.
24 Because this decision resolves all issues with the exception of the collateral issue of supplemental attorney fees and costs, it is final and appealable. See Fluor Constructors, Inc. v. Reich, 111 F.3d 979 (11th Cir. 1997) (under the Energy Reorganization Act, a decision that resolves all issues except attorney fees is final).