Case No. 82-ERA-5

In the Matter of

T. NORMAN BATTS,
    Complainant

    v.

TENNESSEE VALLEY AUTHORITY,
    Respondent

    This is a proceeding arising under a provision of the Energy Reorganization Act of 1974 [ERA] which prohibits an employer from discriminating against an employee because the employee has engaged in certain protected activity. 42 U.S.C. § 5851.

    There is no dispute in this case that for more than 4 years the functions of the complainant Batts were in procurement, part of the quality assurance program at Respondent TVA's Brown's Ferry Nuclear Power Plant in Decatur, Alabama. His duties were to review procurement documents, or, as Batts described these duties, "to insure that no inferior materials,

no defective materials, no material for which we didn't have proper documentation was even released out of the store room." (Tr. 624). When he found problems, he would file corrective action reports. He was classified as an SE-5, which is a position on TVA's SE series, applicable to aides and technicians. In October, 1981 he was reassigned to duties involving surveillance of completed data. Additionally, he was refused promotion to an engineering position on TVA's SD schedule, applicable to scientific and engineering positions. He remains an SE-5.

    Batts alleges that TVA reassigned him from the procurement activities he had been performing and denied him a promotion in retaliation for his performance of his quality assurance duties, thereby violating the ERA.

    In defense TVA, urges that Batts was not engaged in protected activity, and, alternatively, if Batts's functions were protected activity, that TVA's actions were not in any way discriminatory. TVA argues that the denial of Batts's promotion and the reassignment of his duties were valid personnel actions carried out in order to upgrade the qualifications of quality assurance personnel, part of TVA's overall efforts to upgrade and systematize its quality assurance programs at all its nuclear power plants.

    The case was heard by Administrative Law Judge Charles Rippey on January 19-21, 1982. In his Recommended Decision and Order of May 3, 1982, Judge Rippey recommended the complaint be dismissed. This matter is now before me for decision pursuant to 29 C.F.R. § 24.6(b). After review of the record, I accept the administrative law judge's recommendation that the complaint be dismissed.

    The administrative law judge initially ruled that Batts's duties were protected activity "since they are undertaken pursuant to regulations [10 C.F.R. Part 501 promulgated by the NRC [Nuclear Regulatory Commission] in order to ensure that the Act and the Atomic Energy Act of 1954 are carried out." I need not address whether Batt's duties were protected activity within the coverage of the ERA¹ because I conclude that Batts failed to establish that TVA retaliated against him because of any alleged protected activity.

    On the merits of the complaint, the administrative law judge, "[p]roceeding on the basis that the essence of discriminatory treatment is treating like individuals differently," D&O at 4, initially ruled that Batts failed to show discriminatory treatment.² Alternatively, Judge Rippey ruled that, in any case, Batts failed to show that TVA's actions were motivated by hostility to Batts's work in procurement. Finally, the administrative law judge determined that, even if TVA's actions were partially motivated by hostility to Batts's work in procurement, TVA nevertheless established that its efforts to upgrade its quality assurance program was an independent basis for TVA's actions. I accept the administrative law judge's decision to dismiss on the basis that Batts failed to establish by a preponderance of the evidence that TVA's actions were motivated even in part by hostility to Batts's procurement work. See Dartey v. Zack Company of Chicago, 82-ERA-2 (April 25, 1983).

    The administrative law judge's decision discusses the evidence in detail. Since Judge Rippey's statement of the evidence is in all significant details consistent with my review of the record and I agree with his findings, it suffices that I provide here only an abbreviated discussion of the evidence.

    In response to the Nuclear Regulatory Commission's (NRC) concern about the caliber of quality assurance programs nationwide, TVA determined in 1981 to reorganize its quality assurance program in order to upgrade it. It was decided to remove control of quality assurance from the individual plants and put the entire program under the control of a central office, and to standardize quality assurance functions at all plants. over, in accordance with specific recommendations of the NRC, TVA decided to upgrade the qualifications of quality assurance personnel. In accordance with this policy TVA made it mandatory that an applicant for an engineering position on the SD schedule have an engineering degree or its equivalent. Batts has no college credits and he was denied "equivalency" status in 1980.

    While the reorganization was effective October, 1981, personnel decisions prior to that date were made with its implementation in mind. Accordingly, in June, Batts's application for a position as a Quality Assurance Engineer on the SD schedule was turned down in favor of an applicant with a mechanical engineering degree. The vacancy announcement

¹ The ALJ's ruling is in accord with the decision of the Secretary that the filing of non-conformance reports is protected activity under the ERA, which was accepted in Mackowiak v. University Nuclear Systems, Inc., 735 F.2d 1159 (9th Cir. 1984), and rejected in Brown & Root, Inc. v. Donovan, No. 83-4486 (5th Cir. Dec. 10, 1984).

² The administrative law judge's ruling suggests that he was of the view that, in order to establish a prima facie case, the complainant must establish that he was treated differently from other similarly situated employees. Insofar as Judge Rippey's decision is inconsistent with DeFord v. Secretary of Labor, 700 F.2d 281 (6th Cir. 1983), it is not accepted.