Respondent Kansas Gas & Electric Company (KG & E) was
ordered to reinstate Complainant James E. Wells, Jr., by an order
of the Secretary of June 14, 1984, in an earlier case brought by
Complainant under the employee protection provision of the Energy
Reorganization Act of 1974, as amended (ERA or the Act), 42
U.S.C. § 5851 (1982). See Wells v. Kansas Gas and Electric Co.,
Case No. 83-ERA-12, Sec. Decision, June 14, 1984, aff'd, Kansas
Gas & Electric v Brock, 780 F.2d 1505 (10th Cir. 1985), cert.
denied, 478 U.S. 1011 (1986). In this case, also brought under
[Page 2]
the ERA, Complainant alleges that he again was discharged in
retaliation for protected activities under the Act three months
after he was reinstated in October 1984.
In Case No. 83-ERA-12, the Secretary found that KG & E
discriminated against Complainant, when it discharged him for
raising quality and safety questions about electric hardware and
electrical installations at the Wolf Creek Nuclear Generating
Station. The Secretary explicitly adopted the Administrative Law
Judge's (ALJ) finding in that case that KG & E's reasons for
discharging Complainant were pretextual. Sec. Decision, slip
op. at 7. One of the grounds stated by KG & E for discharging
Complainant on August 4, 1983, was KG & E's inability to verify
an item of Complainant's educational background listed on a
personal data history form. Id. at 5. Complainant claimed he
had 20 hours credit in Electrical Systems from John C. Calhoun
State Community College (Calhoun College). He did not actually
attend Calhoun College but had been advised by Calhoun College
that, if he were to attend, Calhoun College would give him 20
hours credit for courses taken during his military service. Id.
at 5. An investigative firm, Equifax, was unable to verify
Complainant's educational credits at Calhoun College. Id.
Complainant told KG & E he would produce documentation of these
credits, but was fired before he did so. Id. at 5-6.
Complainant submitted the documentation to KG & E two weeks
later, but KG & E refused to rehire him. Id. at 6. See ALJ's
Recommended Decision in 83-ERA-12 at 17-18.
1 Respondent also appealed a district
court order entered in an
action brought by Complainant to enforce the Secretary's remedial
order in 83-ERA-12. See 42 U.S.C. § 5851(e). The two appeals
were consolidated. KG & E v. Brock, 780 F.2d at 1507 (10th Cir.
1985), cert. denied, 478 U.S. 1011 (1986).
2 I would note that in neither the
formal complaint of
October 16, 1985 filed with the ALJ nor the initial complaint
filed with the Wage-Hour Administrator did Complainant complain
about the formal reprimand he was given a few days before being
fired in January 1985. Complainant was reprimanded for on-the-
job misconduct. Respondent apparently does not rely on that
document or the events giving rise to it as additional
alternative grounds for discharge. Accordingly, I do not view
that incident as an issue in this case.
3 KG & E represented at the
hearing that this requirement was
imposed by the Nuclear Regulatory Commission (NRC) as a condition
of the plant's license. T. 598-603. The draft Regulatory Guide
and Value Impact Statement (Defendant's Exhibit 3) which contains
specific provisions on Psychological Assessment, has never been
published by the NRC as a final rule and was used by KG & E only
as a guide. T. 596. KG & E was committed by its license (which
is not in the record) to comply with the American National
Standard Industrial Security for Nuclear Power Plants (Exhibit
D-4) (ANSI) which provides for, among other things, psychological
assessments of employees. Cf. discussion in Daniel Construction
Co. v. Local 257, IBEW, 856 F.2d 1174, 1176-77 (8th Cir. 1988).
4 KG & E rejected Dr. Schalon's
recommendation before he had an
opportunity to explain that by "provisional hiring," he meant
that Complainant should be closely supervised, not that he had to
have an escort. T. 476.
5 The ALJ concluded that
Respondent "contrived" the discharge
of Complainant based in part on Respondent's past altering of
test scores "for affirmative action or other reasons," its
manipulating records, and its "manag[ing] the evidence given in
the original trial of this case." R.D. and O. at 12. Mr. Nelson
explained that, with respect to another test -- for selection of
reactor operator trainees -- where choice of a cutoff score is
somewhat arbitrary, he had increased the scores of minorities
and women by half a point for affirmative action purposes.
T. 240-242. There is no evidence indicating that scores on
psychological exams ever were altered, or that scores on any
other examinations ever were altered for "other reasons." It
is not clear what the ALJ meant by "manipulating records" and
"managing the evidence." See ALJ's discussion implicating
collusion between Respondent and Dr. Schalon. R.D. and O. at
12-13.
6 Department of Labor
regulations implementing section 3 of
the Debt Collection Act of 1982, 31 U.S.C. § 3711(f) (1982),
set forth the rate of interest chargeable on debts owed to the
Department. Under 29 C.F.R. § 20.58(a) (1988), "[t]he rate of
interest prescribed in section 6621 of the Internal Revenue Code
shall be sought for backwages recovered in litigation by the
Department." While this regulation, by its terms, is not
controlling on the question of appropriate prejudgment interest
in this case, adopting an approach consistent with the regulation
is reasonable. Additional support for this method derives from
analogous employment discrimination cases. See New Horizons for
the Retarded, Inc., et al., 283 NLRB No. 181, 125 LRRM 1177
(May 28, 1987); EEOC v. FLC & Bros. Rebel, Inc., 663 F. Supp.
864, 869 (W.D. Va. 1987), aff'd, 846 F.2d 70 (4th Cir. 1988).
See also Clinchfield Coal v. Federal Mine Safety & H. Com'n, 895
F.2d 773, 780 (D.C. Cir. 1990) (approving IRS rate in assessing
interest on compensation awards).
7 The then Chairman of the
Nuclear Regulatory Commission and a
member of the NRC each wrote letters to the Secretary concerning
this case, and as required by the Administrative Procedure Act
(APA), 5 U.S.C. § 557(d)(1) (1982), these communications were
placed "on the public record" and copies were provided to the
parties. This decision is based exclusively on the record
submitted by the ALJ with his R.D. and O. and the briefs of the
parties to the Secretary. 29 C.F.R. § 24.6 (1989); 5 U.S.C.
§ 556(e).