recommendation and deny the complaint.

inspection disclosed numerous discrepancies in the welds. QC Level 2 inspectors "had taken the liberty to make engineering decisions concerning the installation of piping supports." T. at 337.

    LP&L was advised of the result and a meeting followed at EBASCO. "[A]ttending the meeting were all of the Project Managers of EBASCO and engineers of EBASCO, LP&L officials, the Nuclear Regulatory Commission was there, and [Orsini] explained to these people what had been found." T. at 410- 411. Orsini testified about the reinspection program as follows:

A. I realized that I was in a situation where our credibility on this particular installation was in serious doubt.

Foremost in my mind was that I bad to reestablish the credibility of Tompkins-Beckwith Company and of the installation that we had put into the plant.

At that time, I told these gentlemen at that meeting that I was committing Tompkins-Beckwith Company to a reinspection of all of the pipe supports in that power plant.

Q. Now, this commitment was made on July 6, you testified?

A. Yes.

Q. Did you commit to completion of the reinspection program by a given date?

A. Yes, I did.

Of course the construction of the plant was continuing, and milestones were approaching fast. So we had to get the reinspection behind us in a hurry, and so we had originally run some figures through our heads and anticipated times.

I told them that I thought we could complete

the reinspection program by the first day of November.

Q. Now, what was the scope of this reinspection commitment that you made?

A. There were approximately four thousand five hundred (4,500) pipe supports to be reexamined in the entire plant.

Of those four thousand five hundred, (4,500) there were fifteen hundred (1,500) of these supports, fifteen hundred and four (1,504) to be accurate that were contained in the cold- hydro boundary. Now, the cold-hydro was a milestone event that was approaching, scheduled for around the first of October, and we had to get those supports satisfied before the test could be conducted.

T. at 411-413.

    In testifying as to how the reinspection program was to be accomplished, Orsini said his "plan was to get it done properly, and to get it done in a hurry." T. at 425. He took inspectors from production and established a reinspection team. All of these inspectors were put back into classroom training.

    "[T]hey were retrained on the fundamentals of what is required of the weldments in these pipe supports." T. at 426. After the training program, Orsini "chastised the inspectors for the poor performance which they had exhibited on the first inspection of these hangers." T. at 426. He told them that "from now on we were in a zero defect program and that Tompkins- Beckwith Company was embarassed [sic] about what had happened and that it wasn't going to happen again." T. at 426.

    When questioned as to the meaning of "zero defect", Orsini testified that "[Y]ou are not allowed any mistakes from now on." T. at 426-427. However, when it was discovered that four inspectors on the reinspection team "had done some sloppy inspections," T. at 427, Orsini gave orders that they be fired. These firings occurred on July 14, 1982, and left the reinspection team shorthanded. T. at 428.

RX 2, and credited Atchison with 12 points for having an Associate in Arts (AA) degree in Liberal Arts. T. at 204-207.

    The record shows that Atchison had altered his college transcript which showed "no degree obtained" by whiting out the "no" so that it showed "degree obtained," T. at 114, and that Atchison had lied on his employment applications at Brown & Root by stating that he had an associates degree from Tarrant County Junior College. T. at 115.

    Atchison attributed the alteration in the transcript to a meeting with 'gold hats' (a term he used to refer to supervisors, T. at 58) as follows:

They came in, and my transcript came back that said no degree bad been obtained. They pointed out the fact that my application indicated that I had said, 'Yes', and the resume that I had prepared for Brown and Root said that I had an associates's degree, and the gold hats there said 'Well, all you have to do is have an eighth grade education. Just go ahead and file it, and don't worry about it.'

So, we got the verification filed for anybody who wanted to see it. The words that they said were something like I just told you I don't really recall. There were others there. I wasn't there by myself.

The next time that it came up was in mid-1981. The client that was having the Comanche Peak built, had several openings for an Auditor, and I liked the auditing part of it, and they were taking my resume to the Dallas Corporate Office to put in my application for the auditing position. One of the guys said, "Hey, this doesn't match up. Here it says that you have a degree, and here it says you don't. So, you need to do something to make this match."

So, I just quickly looked back in the office, and I whited it out on the transcripts, the "No" of the "No degree obtained", so when you read it, it said, "degree obtained".

I gave it to him, and he took it in his hand because be was leaving the job site at that moment.

T. at 60-61.

    Atchison reported to work at Waterford III, at Taft, Louisiana, on Monday, July 26. On Monday and Tuesday preliminary matters were taken care of including payroll, insurance, assignment of a number and issuance of a hard hat. He also was given a package of required reading. T. at 168-169.

    On Wednesday Atchison returned to Fort Worth, Texas, to testify at a licensing hearing before the Nuclear Regulatory Commission (NRC) entitled "In the Matter of: TEXAS UTILITIES GENERATING COMPANY, et al. (Comanche Peak Steam Electric Station, Units 1 and 2)" Docket Nos. 50-445, 50-446. CX 6. Atchison had worked at the Comanche Peak facility for Brown & Root, the Prime contractor, prior to his being hired at TBI. His testimony at the hearing was reported by the local media.

    Orsini obtained a copy of Atchison's resume over the telecopier from Richardson. He scanned it but, because it was late in the afternoon, he felt nothing much could be done that day. The next day Orsini saw a copy of one of the newspaper articles, CX 7C-7D, which upset him. He testified about his reaction:

A. Well, to say the least, I was pretty upset. This was totally in opposition to the zero defects program that I wanted, or that I had insisted take place out at Waterford III. I had enough problems with the embarassments [sic] over the reinspection program in the first place. It bad been compounded by some further long time inspectors that bad messed up some more, and I was really pounding on my folks up there about their accuracy; their integrity, and then I get this, and I show, you know, I have got an inspector on board that had been fired from his last job.

Q. For what?

A. For inability to perform assigned functions, and his last job was an inspection job.

T. at 434-435.

    On Monday, August 2, Orsini went to the Waterford site. There he met with Atchison. His testimony as to that meeting follows:

Q. What transpired at this interview?

A. Well, I sat down with Mr. Atchison, and I wanted to know why he had left his former employer. And when Mr. Atchison came into the office where I was talking to him, he had brought with him a large expandable file and a lot of papers. He started reaching into the file and was heading off into the direction that there wasn't going to be an answer to my question.

So I stopped him, and I said, "Mr. Atchison, tell me why you left your former employer." And again he seemed to be evading my question. So I asked him a third time, probably a little bit more forcefully, and he told me that he had been terminated by Brown and Root by the QA Manager at Brown and Root for inability to perform his assigned functions.

Q. All right.
What did you then do?

A. I told Mr. Atchison at that time that I was unwilling to accept an inspector on my payroll who had been terminated from his last job for inability to perform his job, since I was looking for him to perform the same job.

T. at 437-438.

    Orsini wrote a memorandum to go into Atchison's personnel file. The memorandum is dated August 3, 1982, although Orsini testified that he wrote it after his meeting with Atchison T. at 439, which was on August 2, 1982. In that memorandum he set forth other considerations that had not been discussed as follows:

The fact that he told our employment agent (Mr. Magner) during initial interview that he had been laid off from Brown & Root due to a reduction in force when in fact he was fired for cause.

Presentation to Tompkins-Beckwith of documents which indicate attendance and graduation from Weatherford Junior College at Weatherford, Texas, for "Special Radiological Monitoring" in 1962. The contact we made with the school, Ms. Alma Chandler, can find no record of Mr. Atchison.

Presentation to Tompkins-Beckwith of Brown & Root documents which show possession of an AS Degree-Liberal Arts from Tarrant County

Junior College when in fact no degree was issued, and the admission of Mr. Atchison that he altered documents from the school to indicate possession of the degree.

Indicating "Field Inspection duties 1981-1982" on his resume' which was assumed to encompass 1 year or more when in fact it was 4 months.

Based upon his termination from Brown & Root and his admission of falsification of documents for employment and the numerous discrepancies in his resume' lead me to the conclusion that Mr. Atchison is neither qualified nor trustworthy to permit him to make inspections for Tompkins- Beckwith at Waterford 3.

RX 13.

    The ALJ concluded that Atchison had established a prima facie case. He said:

The parties are in agreement that the Supreme Court's decision in Texas Department of Community Affairs v. Burdine, 450 U.S. 248 (1981), (Burdine), articulates the respective burdens of proof under the Statute. To establish entitlement under Burdine, the employee must initially present a prima facie case by showing that he engaged in protected conduct, that the employer was aware of that conduct and took some action against the employee which was more likely than not the result of the protected conduct.

The burden then shifts to the employer to profer [sic] evidence tending to prove that there were legitimate motives for the adverse employee action. Once this intermediate burden is met, the burden then shifts to the employee to show that the proferred, [sic] legitimate reasons were pretextural. [sic].

In this case, Atchison, has established that he engaged in activities which were protected under the Statute and that almost immediately after the employer, TBI, learned of these activities, he was discharged. Thus, a prima facie case of discrimination for protected conducted has been made out.

R.D. and O. at 3.

    Based on his conclusion that a prima facie case had been established the ALJ considered the reasons proffered by TBI for firing Atchison and rejected them, finding that Orsini's explanation as to his reasons for firing Atchison "to be unworthy of credence." R.D. and O. at 9. Relying on TBI's brief the ALJ discussed the three reasons proffered by TBI for firing Atchison, as follow:

The first of these is that Atchison was determined to be incompetent or incapable of performing inspection functions irrespective of his qualifications for such position. The second reason is that he was determined to be unqualified in the sense that he lacked sufficient education, training and experience to meet TBI's existing standards. The third reason is the same as that expressed in TBI's brief, namely, that Atchison was determined to be lacking in trustworthiness.

The proof establishes beyond doubt that whatever the reason or reasons for discharging Atchison were, they did not include a determination that Atchison was unqualified or untrustworthy.

This is clear from the testimony of the TBI official who discharged Atchison. According to Orsini, he made the decision to discharge Atchison. Orsini, who worked at TBI's headquarters in Florida, testified that he read the newspaper article (CX-7C & D) Friday, July 30th at his office. This article reported on Atchison's testimony at the Commanche [sic] Peak hearing. It also reported that Atchison had been discharged by his former employer, Brown & Root, for "lack of ability in performing assigned tasks."; that Brown & Root had appealed a United States Department of Labor ruling requiring it to reinstate Atchison to his job with back pay; that Atchison had lied on his resume when seeking employment with Brown & Root by falsely representing that he had received a Junior College degree when he did not; that he had altered a verification form so that it read "degree obtained" instead of "no degree obtained"; that shortly before he was fired, two safety supervisors had rated Atchison's performance "good" and "excellent" and that Atchison believed he was fired by Brown & Root for "over-inspecting areas of the plant." (CX-7C & D)

Before coming to the Waterford III jobsite the next Monday, Orsini secured a copy of Atchison's resume. Additionally, it appears that he was informed that Atchison told Manger [sic], TBI's recruiting agent, that the former had been terminated by his last employer (Brown & Root) as a result of a reduction of force whereas the newspaper articles reported that he had been fired for cause.

R.D. and O. at 6.

    The ALJ then reviewed the testimony of the meeting between Orsini and Atchison at the time of Atchison's firing (quoted above at 11-12) and concluded that because Atchison was not "given an opportunity to explain or even comment upon the information orsini had which related to the issues of Atchison's. qualifications and trustworthiness" that "the evidence overwhelmingly

establishes that orsini consciously rejected consideration of Atchison's qualifications and trustworthiness in reaching the decision to discharge him." R.D. and O. at 7.

    The ALJ then rejected the remaining proffered reason for discharging Atchison, namely, that he was incapable or incompetent to perform the Level II inspection duties he was hired to perform. The ALJ evaluated this evidence in part, as follows.

The proof supporting this proferred [sic] reason is the testimony of Orsini and the memorandum he prepared (RX-12) after he fired Atchison. In essence, Orsini maintains that he fired Atchison upon learning that the latter had been fired by his previous employer for inability to perform his assigned functions. Orsini reasoned that since Atchison was performing the same inspection functions for Brown & Root that be was hired to perform for TBI, and since be was found by his previous employer to be unable to perform those functions, he could not be relied upon to perform such functions for TBI either.

The conclusion Orsini claims to have reached concerning Atchison's preceived [sic] lack of ability to perform inspection functions is simply unjustified by the circumstances then confronting Orsini. The newspaper article which was Orsini's primary source of information reported ambiguous if not contradictory evaluations of Atchison's capability. While on the one hand the article reported that Atchison was fired by his previous employer for "lack of ability" it also reported that his supervisor had rated his performance good and excellent shortly before he was fired. The article also presented a possible ulterior motive for Brown & Root's actions, namely Atchison's claim that he had been fired for over-inspecting.

Faced with these unresolved charges and counter chargers, [sic] Orsini made a single, unsuccessful

attempt to communicate with Brown & Root officials concerning the circumstance resulting in their discharging Atchison. However, it was reported to Orsini that the Brown & Root people refused to comment because the matter was in litigation. This constituted the only effort Orsini made to secure information going to Atchison's capabilities other than the information he elicited from Atchison. Orsini did not communicate with his own employee, Holstead, who was supervising Atchison during the orientation period nor did he make any effort to communicate with officials of the Department of Labor to secure information about their reported action in ordering Brown & Root to reinstate Atchison to his job.

As is apparent from Orsini's own account of his interview with Atchison, the former would not to [sic] let Atchison present any information other than to confirm Brown & Root's stated reasons for firing him. These actions do not represent a conscientious attempt to evaluate the conflicting claims going to Atchison's capabilities as an employee.

Furthermore, orsini's explanation of why he wouldn't consider or even hear the information which Atchison tried to present to him is beyond comprehension. Orsini claims that he didn't want to consider the information Atchison tried to present to him because he (Orsini) didn't believe himself qualified to evaluate the information proferred. [sic] Yet the effect of not permitting Atchison to offer his explanation was to decide Atchison's fate without adequate information from any source. Given the obvious nature of the controversy that existed between Atchison and his previous employer, as well as the dearth of conflicting facts which Orsini acted on, no dispassionate manager, motivated by legitimate concerns of maintaining a capable work force could be expected to take the action that Orsini did. His actions are far more consistent with that of a person who is predisposed to fire an employee for reasons other than the reasons Orsini ascribed.

For these reasons, Orsini's explanation is found to be unworthy of credence and is therefore rejected as the reason for discharging Atchison. Thus, all three reasons advanced by TBI for discharging Atchison are rejected and the inference of discriminatory motive created by the establishment of a prima facie case obtains.

R.D. and O. at 8-9.

    The ALJ then considered arguments by TBI as to Atchison's misconduct and lack of job qualification which he found to be either affirmative defenses or in mitigation of damages. He stated.

TBI's argument going to Atchison's alleged misconduct or dishonesty is set forth at pp. 45-48 of its brief. While the specific conduct Atchison is claimed to have engaged in that constitutes misconduct or dishonesty is not there specified, it is presumed that TBI is referring to the conduct specified at page 39 of its brief which is cited for the proposition Atchison "has woven a web of deceit and dishonesty in his previous employment and in employment with Tompkins-Beckwith."

With respect to his previous employment, TBI refers to Atchison's misrepresentations while employed by Brown & Root concerning his academic achievements and his alteration of a college record made to perpetuate such misrepresentation. With respect to his employment with TBI it is claimed that Atchison:

- Provided a resume and job certifications from his previous employer listing him as having a college degree he admittedly does not have, thus lying about his job qualifications (Tr. 36);

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- Lied to Jerry Magner concerning the reason for his termination from his previous employer, claiming he had been terminated as part of a reduction in force when he was actually discharged for cause (Tr. 283); and

- Listed coursework in radiological monitoring at Weatherford Junior College. The Company's contact with the College reflected that the College had no record of Mr. Atchison (Tr. 458).

R.D. and O. at 9-10.

    The ALJ then concluded that "the only misrepresentation Atchison has been shown to have made incident to securing employment with TBI is the misrepresentation he made to Magner concerning the former's reason for leaving his previous employment. This misrepresentation was not material and does not, alone, appear to represent the sort of egregious conduct which would warrant punitative [sic] action." R.D. and O. at 14.

    Based upon a thorough review of the record and the applicable law, I reject the ALJ's ultimate conclusion that TBI discharged Atchison or otherwise discriminated against him in retaliation for his having engaged in protected activity.

    The ALJ correctly set forth the requirements for establishing a prima facie case in a retaliatory adverse action as enunciated in Texas Department of Community Affairs v. Burdine, 450 U.S. 248 (1981), and adopted by the Secretary in Dean Dartey v. Zack Company of Chicago, Case No 82-ERA-2, Decision of the Secretary, slip op. at 6-9. As noted in Dartey, in Burdine, the Supreme Court also made clear that the plaintiff always bears the burden of proof or persuasion that intentional discrimination occurred. Dartey at 7.

    I will first examine whether Atchison has established a prima facie case.

    Atchison has attempted to portray the activities of Magner and the employees of TBI involved in his hiring as some sort of conspiracy to keep him from testifying at the NRC hearing. T. at 158, 225, 287. However, I have no hesitancy in accepting

T. at 411. In addition, to assure that the "zero defects program" went forward properly, Orsini had the reinspection teams followed. He testified as follows:

Q. All right. Were there any further mistakes after you established the zero criteria?

A. Unfortunately yes. It was the following week. I had taken our Lead Inspector and had instructed him that I wanted him to go into the field and to personally follow behind each of the reinspection teams, and I wanted him to take a sampling of what they were doing in their reinspection and to report back to me.

He did report back to me through his immediate supervisors at the site. The following week, Mr. Richardson called me and told me he had some bad news for me. He said, 'Well, we have got a few of the Inspectors that did not listen to you.' And he went on to describe four Inspectors that had done some sloppy inspections.

Q. What did you do?

A. Yes, he said, "What do I do?

And I said, "You fire all four of them, sir."

T. at 427. Thus, less than three weeks before he fired Atchison, Orsini had four inspectors fired because they did not follow his instructions.

    In support of his contention that the reasons given for his termination were pretextual, Atchison, in his brief to the ALJ and in his response to Respondent's exceptions makes several points with references to the hearing transcript. (1) TBI did not give him an opportunity to explain or dispute the reasons for his firing by Brown & Root, but allowed David

NRC hearing, Orsini called Brown & Root and was told Stinson had had personality conflicts with his supervisor and was told nothing about Atchison (Tr. p. 299). Stinson was allowed to explain his termination and given a warning (Tr. p. 199, 303) but Atchison was not. College was not required for the job and "job history" could be used to meet any qualifications for level two QA-QC inspector as well as on-the- job training (Tr. p. 235, 236) Respondent even admitted it would be impossible to determine, unless further investigation was done, whether or not Atchison meet [sic] their job experience/college credit requirements (Tr. p. 390-398). The only difference between Stinson and Atchison is that Atchison testified at the NRC hearing about defects in the Texas Nuclear power plant - protected conduct under the ERA.

As for the shifting reasons given by Respondent for their termination of Charles Atchison. Orsini says it was because Atchison's reason for termination from Brown & Root was unacceptable (Tr. p. 293) and yet Orsini did not know really why Atchison was fired at Brown & Root except possibly from the newspaper articles. (Yet Orsini testified incredibly that he did not remember if he was told Atchison was testifying at a "NRC hearing" (Tr. p. 352). Next Larry Richardson, the on-site QA-QC supervisor says the reason Atchison was fired was because he did not meet the point system requirements which fantastically enough had been worked up just that week that Charles Atchison was appearing at the NRC hearings (Tr. P. 224, 241-244). Earlier Richardson said Atchison was fired because his reason for termination from Brown & Root was unacceptable (Tr. p. 223) but then he testified that he was not fired because of the "college degree" matter in his Brown & Root certification papers (Tr. p. 224). (It must be pointed out here that Orsini himself, the head of all QA-QC for Tompkins

Beckwith only has a high school degree (Tr. P. 406). What was the real reason Charles Atchison, was fired by Respondent? Was it because he told a previous employer he had a junior college degree when he actually had only 27 credit hours, or was it because he did not meet the brand new point requirements which were developed even while Atchison testified before the NRC, or maybe it was because of the reason Brown & Root fired Atchison was unacceptable as reported in the Fort Worth Star Telegram, or just maybe it was the fact that Charles Atchison was testifying at those NRC bearings at all. Pete Foscolo, the Tompkins- Beckwith overall plant manager was upset that the news articles in Fort Worth mentioned Tompkins- Beckwith's name (Tr. p. 184) and remarked when finding out Atchison was testifying "What in the hell is this all about" (Tr.p. 184). Tompkins-Beckwith was in deep trouble with their own QA-QC and the last thing they needed was an inspector who would dare to tell the truth about construction deficiencies.

Even though it is untenable that Respondent fired Charles Atchison because his "reason for prior termination was unacceptable" for the reasons shown above, to in fact fire him for that reason continues the illegal effect of the Brown & Root termination. When Atchison went to work for Tompkins-Beckwith the labor investigation had already ruled his termination was illegal and pretextual finding that the real reason he was fired was his statement to his supervisor that if Brown & Root continued to refuse to disclose the welding defects he had found that he would report the defects to the NRC. Tompkins-Beckwith certainly is not charged with relitigating the validity of the Brown & Root termination but when they are put on notice that Atchison filed an ERA claim for that termination and expressly refuse to discuss that termination with him or let him explain his version of it or fail to look

at the Labor Department documents Atchison had with him, then even that pretextual excuse given by Respondent becomes a continuing violation of the rights the ERA was enacted to protect. Their total lack of information about the facts surrounding the Brown & Root termination, in fact their intentional and conscious refusal to go past the newspaper article and Brown & Root's 'refusal to discuss Charles Atchison over the telephone' (supra page 6) show overwhelmingly that this reason given by Respondent is pretextual and secondary at best. It was not the primary motive for Atchison's dismissal.

Complainant's First Amended Post Hearing Brief at 6-9. Complainant's Response to Respondent's Exceptions at 5-9.

    The arguments will be considered in order. (1) Atchison argues that TBI did not give him an opportunity to explain his firing by Brown & Root although it allowed David Stenson, another employee, also fired by Brown & Root, to do so. Orsini, who fired Atchison, readily admitted that he refused to look at the papers Atchison offered to show him. His explanation was; "I didn't want to get into it. I didn't first of all, feel that I was qualified to go into documents like that or to make a judgement or to really evaluate what they had said." T. at 295. He testified further that be asked Foscolo "to verify the separation of Mr. Atchison and also of David Stenson." Brown & Root refused to talk about Atchison but told Foscolo that Stenson had been fired because of a personality conflict with a supervisor. Foscolo also was told that Brown & Root had no problem with Stenson's work and that he performed his duties well. T. at 299.

    In light of the difference in the reasons for the terminations of Atchison and Stenson, and considering TBI's need for trustworthy qualified inspectors, it is readily understandable why TBI would allow Stenson to explain his firing by Brown & Root since it had nothing to do with his ability to perform his duties as an inspector On the other hand, any explanation by Atchison would require, as testified to by Orsini, the evaluation of differing views as to his termination. This is supported by Atchison's statement that "[they] would not let me present my case . . . . ", T. at 134, a case which was

A. Knowing that he went home for personal reasons, yes, sir, I sure do.

Q. Knowing that we [sic] went out to testify in a nuclear licensing hearing?

A. I did not know that, not until after it happened.

T. at 173.

    On this point, if Atchison can be believed, it would indicate that Holstead knew that it would be inadvisable to let Richardson and/or Orsini know that Atchison was going to testify at a NRC hearing. However, Atchison's testimony is directly contradicted by that of Holstead. Holstead's testimony was consistent and completely credible. On the other hand, this record demonstrates that Atchison totally lacks veracity. In the earlier hearing before this Department involving Atchison's claim against Brown & Root, Administrative Law Judge Ellin M. O'Shea who presided at the hearing found Atchison to be a totally unreliable witness and that nothing he said could be believed without independent corroboration. CX 4 at 3-4.

    I reject the ALJ's conclusion in this case that Atchison's misrepresentation that he was ROF'd, rather than fired for cause, was not a material misrepresentation or that such "misrepresentation does not constitute the sort of egregious conduct that would, alone warrant denying Atchison the statutory remedy of reinstatement." R.D. and O. at 12. In my view of the evidence, the probability is that if Atchison had initially told the truth as to having been fired by Brown & Root, and as to his educational background, he would not have been hired, considering TBI's search for qualified and trustworthy inspectors.

I infer from the record that Atchison recognized that probability and thus lied about his termination. Additionally I conclude that it is neither the function of the ALJ, nor mine to determine which misrepresentations made to an employer are material or represent egregious conduct. Whistleblower protection provisions are not intended to deprive employers from using their best business judgment as to whom they will employ or retain in employment, so long as that judgment is untainted by unlawful motive. See Dunham v. Brock, 794 F. 2d 1037, 1040- 1041 (5th Cir. 1986).