The parties have stipulated that at all times material hereto, Respondent Ebasco Constructors, Inc. ("EBASCO") was an "employer" and Complainant Ronald J. Goldstein ("Goldstein") was an "employee" as such terms are used under the Act. (42 U.S.C. § 5851(a).)

Issues

    1. Whether Goldstein made a timely request for a formal hearing before an Administrative Law Judge.

    2. Whether Goldstein established a prima facie case of discrimination in violation of the Act.

    3. Whether EBASCO established any defenses to Complainant's case in chief.

Statement of the Case

    The following is a summary of the voluminous exhibits and lengthy testimony in this matter. I have carefully considered all exhibits, including those not mentioned below, and all testimony.

Goldstein's Request for Formal Hearing:

    On June 16, 1986, Daniel K. Brown, a Department of Labor ("DOL") Area Director, issued a letter informing Goldstein that his investigation had revealed no violation of the Act by EBASCO. (C-13) The letter also informed Goldstein that he

could appeal Mr. Brown's findings by filing a request for formal hearing by telegram to the Chief Administrative Law Judge within five days of receipt of the letter. At the hearing in this matter, Goldstein testified that he received Mr. Brown's letter on June 21, 1986. On June 24, he sent a telegram requesting a formal hearing to the Chief Administrative Law Judge. (C-12) Goldstein testified that his only knowledge of the regulations regarding requests for formal hearings was the explanation of those regulations contained in Mr. Brown's letter, and he did all that he could to comply with them.

Prima Facie Case and Defense:

Testimony of Goldstein:

    In February 1984 EBASCO hired Goldstein as a Craft Supervisor in the Instrumentation and Controls Department ("I&C") at its South Texas Project. He initially supervised about fifty employees, with the assistance of a general foreman and three regular foremen, in the Reactor Containment ("RCB") and Fuel Handling ("FHB") Buildings in Unit 1 of the Project. Until May 1985 his own supervisor was a Mr. Forrest Smith.

    Goldstein testified that he had friendly and cooperative relations with Smith. He thought Smith's written evaluation of him (R-3) was fair, although he did protest certain remarks. Melvin R. Strawbridge, one of Smith's supervisors, worked out an arrangement whereby Goldstein withdrew his protest and Smith changed certain parts of the evaluation. Neither party called Smith to testify at the hearing, and I accept Goldstein's view of this incident.

    In May 1985 Mr. Rick Greenwell took over as Goldstein's supervisor. According to Goldstein, personality conflicts arose almost immediately. Greenwell did not react well to suggestions, and he took offense to the questioning of his decisions. Goldstein objected to Greenwell's evaluation of his work in June 1985, and he attached a

written response to the evaluation. (R-4)

    Goldstein's testimony did not flow easily, and he had a tendency to ramble about petty disputes between himself and Greenwell. However, he identified the following main "quality control" or safety concerns, which arose during the course of his work from June to August 1985.

    1. Greenwell did not follow a requirement that all EBASCO field personnel were to submit "control" documents at the end of each work shift.

    2. Due to lack of desk space in Goldstein's work area, it was difficult to keep records and write reports.

    3. The interchange between Goldstein's "A" shift and a second "B" shift that had been set up in his work area did not work well because Goldstein felt EBASCO management wanted to replace him with Kenneth Parent, the supervisor of the "B" shift.

    4. Due in part to a shortage of trained safety related personnel on the "B" shift, the "B" shift skipped a "hold point" on a phase of work related to a component cooling thermo well installation. According to Goldstein, the "B" shift altered a pipe without following the correct safety inspection procedure. When Goldstein brought this matter to the attention of management, he was met with hostility, obstruction, and eventual "cover-up" of the incident through falsified documents.

    5. Goldstein believed the "B" shift damaged a piece of equipment called a "flux mapping skid" by failing to follow the proper construction sequence. Then a long delay occurred which he blamed on management. The employees in the "B" shift claimed they could not find required process sheets, but Goldstein claimed the sheets were readily available. (C-4)

    In summary, Goldstein claimed that the above mistakes in construction work, plus the falsification of documents, other employees' reluctance to issue "Non-Conformance Reports" ("NCRs") on safety problems, and a general undue urgency to produce quantity rather than quality in work at EBASCO, were "serious" and possibly "critical"

with regard to safety issues. I find Goldstein was consistent in his views on quality concerns, as shown by various documents he submitted to EBASCO's Quality Assurance Department and SAFETEAM, an independent safety organization. Goldstein stated that his poor work evaluations and eventual layoff were a consequence of his voicing quality concerns. However, he also admitted to pushing his own personal concerns with reference to his evaluations. He testified that he filed an internal religious discrimination complaint in August 1985 because he thought "discriminatory" acts by EBASCO management might have been motivated by religious bias, but at the time of hearing he appeared no longer to believe that might have been so. Testimony by other witnesses showed that the religious discrimination complaint had little or no basis in fact.

Testimony of Alfred Kutowy:

    Kutowy, a witness for EBASCO, supported the point of view that Goldstein's quality concerns, set out above, were not serious quality problems. In fact, the impression given by this witness was that Goldstein did not care about quality; he complained about an enormous variety of actions by management, including those set out above, primarily in order to advance his own career. His opinion was that any quality concerns brought up by Goldstein were trivia.

    Kutowy, an engineer employed by EBASCO, worked with Goldstein during 1984 and 1985. He testified that Goldstein did good work initially, but his performance deteriorated after Greenwell's evaluation in June 1985. Kutowy also testified that Parent, the supervisor of the "B" shift, was well qualified for his job and a cooperative type of person. The difficulty with the interchange between the "A" and "B" shifts was caused by Goldstein's opposition to the setting up of the "B" shift, not by any action of Parent's.

    Kutowy believed the incident involving the flux mapping skid was a "miniscule" matter with

regard to safety. However, he corroborated Goldstein's testimony that the "B" shift bypassed hold points and installed thermo wells without the required safety inspections. On cross-examination, Kutowy admitted that Goldstein acted properly in raising concerns about these two incidents and that Goldstein's concerns were honest and sincere. He also admitted that the violation of hold points on a nuclear project is not a minor matter.

Testimony of Kirk Weyant:

    Like Kutowy, Weyant was an EBASCO engineer who worked with Goldstein. A witness for EBASCO, Weyant testified that Goldstein opposed the institution of the "B" shift, and that Goldstein complained about a variety of subjects during June and July 1985. Weyant considered most of Goldstein's complaints inconsequential, but he did recall the incidents involving the thermo wells and the flux mapping skid. Weyant also corroborated that Goldstein was upset by Smith's and Greenwell's evaluations of his work.

Testimony of Melvin Strawbridge:

    Strawbridge, called by EBASCO, stated that after December 1984 he was the Assistant Unit Manager for Unit 1 at EBASCO's South Texas Project. As a supervisor over Smith and then Greenwell, he reviewed personnel evaluations prepared by those two men. Strawbridge testified that he resolved the dispute over Smith's January 1985 evaluation of Goldstein; Goldstein withdrew his response to the evaluation, and Smith upgraded it, giving Goldstein a better than average rating with laudatory comments. (R-3)

    Strawbridge also reviewed Greenwell's June 1985 evaluation of Goldstein. As with Smith's evaluation, Goldstein submitted a rebuttal to the evaluation, and Strawbridge believed this action suggested a pattern of response to any supervisor's evaluation. Unlike his action on Smith's evaluation, Strawbridge did not intervene in the dispute

between Greenwell and Goldstein, but simply attached a letter of support to Greenwell's evaluation. He testified that his decision not seriously to consider or investigate Goldstein's comments was influenced by an incident in February 1985, when Goldstein was asked to research the answer to a question from the parent company on the South Texas Project, Houston Light and Power Company. Strawbridge objected to the sarcastic tone of Goldstein's response to the research question and began to consider Goldstein a chronic troublemaker and less than a "team" player.

Testimony of Rick Greenwell:

    Greenwell testified that when he came to the South Texas Project in November 1984, Smith was his supervisor. However, after about three and one-half months he took over Smith's position and became Goldstein's supervisor. Before his work at the South Texas Project, Greenwell had worked at EBASCO's "Waterford" project, where he had supervised Parent for about ten months. He was instrumental in getting Parent his job as supervisor of the "B" shift in April 1985.

    Greenwell appeared confused about the chronology of various events involving Goldstein. However, he testified that in July 1985, Goldstein complained to him about the thermo well problem and the quality of Parent's work. On June 10, 1985, Goldstein complained about the security of an area at the bottom of a reactor. On June 11, a fire occurred in that area, and on June 17 Greenwell issued a written warning to Goldstein about poor housekeeping. (C-54) Goldstein prepared a written response (C-54) to the warning, pointing out that employees other than those in his "A" shift could have left debris in the area. Under questioning as an adverse witness by Goldstein's counsel, Greenwell did not adequately explain why he singled out Goldstein for a serious reprimand (C-54) of a type he had never before issued. He also admitted that he had not brought up the subject of "poor housekeeping" by Goldstein's shift prior to the fire.

    Greenwell acknowledged that the matter of the flux mapping skid in August 1985 was a mistake by the "B" shift about which Goldstein had been concerned. Around the same time, Goldstein informed him that the matter of the thermo wells had not yet been resolved. On August 8, 1985, Greenwell wrote a memo to Strawbridge recommending that Goldstein be transferred to the "B" shift, and he told Goldstein that the transfer would go through on August 12. In the memo, Greenwell stated that he "was spending so much time dealing with [Goldstein] that the rest of the department was beginning to suffer........" (C-57, C-58)

    Greenwell's testimony and other evidence on the chronology of events in August 1985 is not clear, and so there is no definite way to determine whether any of Goldstein's complaints brought about his transfer. Nevertheless, the inference is there that Goldstein was not deterred by threats of transfers nor by admonitory memos from continuing to express hts concerns. (C-55, C-56, C-57, C-58)

    The gist of Greenwell's testimony was that Goldstein was an annoying source of unwelcome, albeit useful quality related concerns, as well as a host of other problems dealing with relations between the "A" and "B" shifts. Greenwell could not explain why he required Goldstein to prepare outlines of work for Parent's "B" shift but did not require other shift supervisors to prepare such outlines. (Tr. 1116, 1117) In addition, it apparently never occurred to Greenwell to reprimand Parent for the thermo well and flux mapping skid incidents, both of which were errors by Parent's "B" shift.

    Greenwell rated Goldstein as the worst qualified of a group of supervisors he evaluated to determine which employees would be laid off in April 1986. (R-38, R-39) At the hearing, Greenwell stood by his ratings as being devoid of bias. However, most of the guidelines for the evaluations was entirely subjective. (R-29, R-38) In addition, during much of the time immediately preceding the April 1986 layoffs, Greenwell was not

Goldstein's direct supervisor and had no direct contact with him. (See J-1-J-33)

    My impression of Greenwell was that he appeared uncertain of his status, defensive of his past actions, and inadequate in his explanations of his motives for actions taken against Goldstein.

Testimony of James Blackwood:

    Blackwood was the Unit Construction Manager for Unit 1 at the South Texas Project and supervised about 2500 employees. He testified that in June 1985 Goldstein complained to him about not getting enough support for his crew and about Greenwell's lack of ability as a supervisor. At a meeting in January 1986, Goldstein stated that he was going to sue EBASCO. Blackwood also recalled that both the Quality Assurance Department and SAFETEAM interviewed him. However, he appeared to have memory problems on many other material matters.

Testimony of Robert Zaist:

    Zaist was the senior manager of the South Texas Project during times material to this case. On August 10 and 12, 1985, Goldstein discussed his concerns with Zaist. (R-41) Goldstein said he came to Zaist because he could not talk with Strawbridge and Blackwood. He complained about various matters, including quality concerns, religious discrimination, and Greenwell's evaluation of June 1985.

    After meetings and conversations with personnel managers (R-4, R-26, R-27, R-28, C-52), Zaist concluded that there had been no religious discrimination, and Goldstein was in reality only concerned about his June 1985 evaluation. Zaist appeared to take the position that Goldstein was simply a disgruntled employee who was not performing well. He concluded that the evaluation was fair and advised Goldstein to improve his performance. The possibility of the evaluation itself being used as a form of discrimination apparently

never entered Zaist's mind.

    In September 1985 Zaist decided to remove Goldstein from a list of potential candidates for a December layoff because he knew Quality Assurance was in the process of investigating Goldstein's quality concerns. Zaist testified that he disagreed with Quality Assurance's later conclusion (C-40) that Goldstein had been discriminated against for bringing up quality concerns. He believed Goldstein was transferred to the "B" shift in August 1985 because of performance problems and a personality conflict between Greenwell and Goldstein, and he concluded that none of EBASCO's actions, including Goldstein's layoff in April 1986, were discriminatory. (R-45; Tr. 1270)

Testimony of William Urell:

    Urell was the personnel manager for the South Texas Project. In many respects, his testimony corroborated details already discussed with reference to other witnesses. He also testified that an EBASCO attorney advised Zaist that Goldstein should be taken off the layoff list in September 1985 because of the ongoing Quality Assurance and SAFETEAM investigations. The implication was that a "safe" time to "move" Goldstein would be after all quality reports were completed because otherwise Goldstein would be likely to "sue the company".

    Urell explained that EBASCO employees were laid off in December 1985 and April 1986, in part, because of the company's cash-flow problems. Employees were chosen for layoff on the basis of comparative evaluations, the guidelines for which were meant to insure fairness. However, it became clear that most of the guidelines were actually subjective, and the key was the supervisor doing the evaluating. As a result, since Greenwell did the evaluating of Goldstein and other I&C supervisors prior to the April 1986 layoff, and since earlier disputes had occurred between Greenwell and Goldstein, it was a foregone conclusion that Goldstein would receive one of the lowest evaluations. (See R-2, R-6, R-7-R-21)

    Urell also testified about Goldstein's various non-quality complaints, and my impression was that he was sincere in his conclusion that Goldstein had suffered no religious discrimination in August 1985.

Testimony of Kenneth Parent:

    Parent testified that he began work at the South Texas Project at the end of May 1985. He was initially assigned to work with Goldstein to familiarize himself with the job routine, and then on June 19, 1985, he began supervising the "B" shift. After June 19, he saw Goldstein only on shift rollover days, and he had practically no relationship with him. In fact, Goldstein complained to Greenwell about Parent and his crew. On July 13, 1985 Goldstein gave Parent a list of suggestions and criticisms of the "B" shift's work. (R-47) The list appears "picky" though not unfriendly. Nevertheless, Parent interpreted it as unwarranted criticism, and he complained to Greenwell about it.

    Around July 18 or 19, Goldstein brought the thermo well problem to Parent's attention. By his own admission, Parent did not know the proper procedures to follow regarding the thermo wells. Parent also readily admitted that his crew damaged the flux mapping skid, but he termed the skid "non-safety" equipment. He verified the testimony of other witnesses on the point that it seemed to take an inordinate amount of time to get an NCR written so that the skid could be moved and repaired.

Testimony of Charles Jones:

    Jones worked as a foreman under Goldstein from mid-1984 to late 1985, and he considered Goldstein a "good" supervisor. He testified that Goldstein knew the intricacies of his field well and got along well with his men and foremen. He also stated that compared to Goldstein, Parent put more emphasis on the quantity of work done. Jones' assessment of Parent and his "B" shift

was similar to Goldstein's in nearly all particulars. He confirmed the details of the thermo well and flux mapping skid problems, which he believed involved the "B" shift's failure to follow proper site procedures for a safety-related building and equipment. Jones also believed Parent, not Goldstein was the obstructionist in shift rollover communications. He testified that Parent did not really seem interested in his job, but more interested in subjects such as fishing and football.

    Jones was not shaken in cross-examination and testified throughout in a forthright manner, even though he expressed some concerns of possible reprisals by EBASCO.

Testimony of Paul Plociennik:

    Plociennik was an EBASCO supervisor at the same level as Greenwell, and the evidence showed that this supervisor received uniformly good work evaluations. (J-30)

    Despite some knowledge of Goldstein's prior problems with Greenwell, Plociennik actively sought out Goldstein to work for him in December 1985. Goldstein worked under Plociennik from December 1985 through March 1986. During that time, Plociennik prepared an evaluation of Goldstein which rated him satisfactory and considerably higher than evaluations prepared by Greenwell. It is significant that Blackwood, who was Plociennik's supervisor, "insinuated" that he had rated Goldstein too high. Blackwood indicated to Plociennik that "there were other problems in the past" with Goldstein and that "perhaps [Goldstein] was going to sue the company".

    When Goldstein was assigned to his department, Plociennik was instructed not to have Goldstein do any safety-related work. He was also told about Goldstein making records of incidents and otherwise being hard to work with. Even so, in a minor manner, Goldstein did do some safety-related work assigned by Plociennik.

    Plociennik also testified that Greenwell did not contact him for input into Greenwell's evaluation

of Goldstein in preparation for the April 1986 layoff. This was despite the fact that Greenwell had not personally observed Goldstein's work under Plociennik.

Testimony of Kenneth Gilkerson:

    Gilkerson, a Quality Assurance investigator for EBASCO, led the investigation of Goldstein's quality concerns. At the hearing, he confirmed the Conclusions in his November 1985 investigation report. (C-4, C-25, C-40) Gilkerson believed that even though the thermo well and flux mapping incidents were not "earth shattering", they were important. Further, he thought it significant that the problems were ignored or "not identified". Gilkerson also concluded that Goldstein may have suffered adverse consequences for having brought up quality concerns. He testified that Greenwell refused to sign a summary of a meeting between himself and Quality Assurance interviewers. (C-38)

    I note that SAFETEAM also conducted an invention of the thermo well incident at Goldstein's request. The SAFETEAM investigator concluded that EBASCO had not attempted to "cover up" the incident and that EBASCO had not discriminated against Goldstein for voicing quality concerns. (C-10, C-72-C-76, C-87) I further note that no SAFETEAM investigator was called as a witness.

    Mr. Gilkerson's impression as a witness was very good. He came across as an able investigator who searched for the truth regardless of possible adverse consequences to management.

Discussion and Findings

Goldstein's Request for Formal Hearing

    As required under the Act and regulations, Goldstein filed a complaint against EBASCO, and DOL conducted a timely investigation of the complaint. As stated above, Director Daniel Brown of

DOL gave Goldstein notice of the results of the investigation by letter dated June 16, 1986. (29 C.F.R. §§ 24.3, 24.4) To prevent Brown's denial of the complaint from becoming a final order, Goldstein was required "within five calendar days of its receipt [to file] with the Chief Administrative Law Judge a request by telegram for a hearing on the complaint." He was required to send copies of his request to EBASCO and to Brown. (29 C.F.R. § 24.4(d)(2))

    EBASCO argues that Goldstein's request for formal hearing was not timely because the Chief Administrative Law Judge did not receive Goldstein's telegram of June 24, 1986. EBASCO asserts that the Chief Administrative Law Judge did not receive notice of Goldstein's request for formal hearing until August 5, 1986, when he received a letter from Goldstein dated July 28, 1986, stating that Goldstein had sent the telegram on June 24. In addition, EBASCO did not receive a copy of Goldstein's request for hearing until after October 21, 1986.

    As stated above, however, Goldstein testified that he sent the telegram on June 24. In addition, the copy of the telegram in evidence (C-12), which was properly addressed, is stamped with the date June 24, 1986. As a result, I find that Goldstein substantially complied with § 24.4(d)(2). (See Wayner Tractor, Inc. v. Shields, 381 F.2d 4411 (9th Cir. 1967)) I find the failure to send a copy of the request for hearing to EBASCO of little importance because such copy was later supplied, and EBASCO suffered no detriment due to the brief delay. I response to Goldstein's testimony and Exhibit C-12, EBASCO has not shown by a preponderance of the evidence that the Chief Administrative Law Judge failed to receive the June 24 telegram. Therefore, I do not dismiss Goldstein's appeal on the basis of § 24.4(d)(2).

Prime Facie Case:

Goldstein must establish the following:

    1. He engaged in "protected activity" under the Act;

    2. EBASCO had knowledge of his protected activity;

    3. EBASCO discriminated against him; and

    4. EBASCO's discrimination was due, at least in part, to Goldstein's protected activity. (Mackowiak v. University Nuclear Systems, Inc., 735 F.2d 1159 (9th Cir. 1984))

    I will analyse the issue of whether Goldstein engaged in protected activity under each of two opposing views. First, under Brown & Root, Inc. v. Donovan, 747 F.2d 1029 (5th Cir.1984), internal quality control complaints are not considered protected activity. However, in addition to filing a complaint with EBASCO's Quality Assurance Department, Goldstein also filed a complaint with SAFETEAM. Goldstein's testimony and documentary evidence adequately support the view that Goldstein could well have believed SAFETEAM to be a group independent of EBASCO that would begin the process of bringing quality concerns to the Nuclear Regulatory Commission ("NRC"). Postings about SAFETEAM were quite visible throughout Goldstein's work area, and very little was advised as to the means of notifying NRC about quality concerns. (C-122-C-124) In addition, the Act defines protected activity as the "commencing" or "causing to be commenced" of a complaint to the NRC. (42 U.S.C. § 5851(a)) I find Goldstein did engage in protected activity under the Fifth Circuit view.

    Under Willy v. Coastal Corp., 85-CAA-1 (June 4, 1987), and Mackowiak, supra, internal complaints are considered protected activity. Under this view, I find there is no doubt that Goldstein's complaint to Quality Assurance constituted protected activity.

    EBASCO argues that Goldstein's concerns about the thermo well and the flux mapping skid were trivial. However, the court in DeFord v. Secretary of Labor, 700 F.2d 281, 286 (6th Cir. 1983), held that "the need to protect an employee who participates in agency investigations clearly exists

even though his contributions might be merely cumulative". Evidence provided by an employee need not be unique. (DeFord, supra) As a result, I find that the subject matter of Goldstein's concerns fits within the protected conduct contemplated by the Act.

    The fact that EBASCO knew Goldstein engaged in the activity which I have found as protected activity was not disputed, and I so find.

would have laid off Goldstein even in the absence of his protected conduct. (Dartey v. Zack Co., 80-ERA-2 (April 25, 1983))

    EBASCO must first produce rebuttal evidence of legitimate, nondiscriminatory reasons for laying off Goldstein. I find EBASCO has met that burden through Greenwell's evaluations of Goldstein and other evidence tending to show that Goldstein was laid off because he was a disruptive employee who ranked low in comparison to other employees. EBASCO presented evidence that disputes over evaluations, desk space, and a "fruit basketful" of other concerns disrupted orderly work progress for Greenwell, Blackwood, and others in the organization. (Note: I give little weight to accounts of an altercation between Goldstein and Greenwell in December 1985. This isolated instance of tempers flaring between two antagonists proves little for either side.)

    I must next consider whether Goldstein has shown either that the above nondiscriminatory reasons for the layoff were pretextual or that EBASCO was more likely motivated by discriminatory reasons. I find Goldstein has not shown that EBASCO's proffered reasons are pretextual. There were too many signs of genuine annoyance at Goldstein's gadfly tactic;, though I do not consider some of the means of attempts to silence him particularly noble. However, Goldstein has shown that EBASCO also was motivated by his filing of the quality complaints, or that EBASCO had dual motives. I find it significant that EBASCO at first considered puffing Goldstein on, then took Goldstein off the list for the December 1985 layoff, because the investigation of his quality concerns was still in progress. I also find it significant that Greenwell was selected to evaluate Goldstein in preparation for the April 1986 layoff, with no input from Plociennik. The evidence, including the above, and the downward spiral of job assignments to non-safety related work strongly suggests that Goldstein's complaints about quality motivated retaliation.

    My final finding is that EBASCO did not, by a

preponderance of the evidence, prove that it would have laid off Goldstein even in the absence of the protected conduct. Goldstein has shown that there was retaliation, by way of the final evaluation and layoff, motivated, at least in part, by his engagement in protected activity.

Damages:

    At the hearing, the parties entered into the following stipulation regarding damages. In the event that I ruled in favor of Goldstein, he was to be entitled to back pay from April 11, 1986, to September 15, 1987, in an amount equal to his wages at EBASCO minus wages he has actually earned since his layoff. He was to be entitled to costs of $4,314.00. If I did not reinstate Goldstein, the parties agreed that front pay was to be calculated in the following manner: Goldstein's salary at EBASCO minus the salary he is now earning. The parties said they would submit more information on damages in their briefs, but they did not do so.

    Under 42 U.S.C. § 5851 (b)(2)(B) and 29 C.F.R. § 24.6(b)(2) and (3), 1 cannot accept the parties' stipulations in their entirety. The Secretary must reinstate Goldstein to the same or a substantially equivalent position at EBASCO, and the Secretary may not provide for compensation such as "front" pay not specifically authorized under the Act. (DeFord, supra)

    IT IS RECOMMENDED THAT:

    1. EBASCO be found liable for violation of the Act.

    2. EBASCO be ordered to reinstate Goldstein to his former position or a substantially equivalent position with the same terms, benefits, conditions, and privileges he would have enjoyed had EBASCO not laid him off on April 11, 1986.

    3. EBASCO be ordered to pay Goldstein back wages (less any interim earnings) plus interest from April 11, 1986, until the date of his reinstatement. Interest shall be paid pursuant to 28 U.S.C.

§ 1961 (1982). The amount of Goldstein's interim wages is to be determined on the basis of his W-2 forms and other tax records, which he shall submit.

    4. EBASCO be ordered to expunge from its records the evaluations of Goldstein, prepared by Greenwell, upon which the April 1986 layoff was decided. (R-38, R-39)

    5. EBASCO be ordered to pay Goldstein compensatory damages of $20,000.00.

    6. EBASCO be ordered to pay costs and attorney fees, the amounts of which are to be determined on the basis of the parties' written agreement and/or an attorney fee petition to be submitted within ten days of this Decision and Order; with Employer's response subsequent to receipt of said petition.

       ROBERT J. BRISSENDEN
       Administrative Law Judge

RJB:scm