discussion with Hastings, Thompson, and an NRC inspector, Complainant requested the inspector's determination. The inspector agreed that safeguards information should not be processed on the CEO system.

    At the end of October 1985, the Fermi II Plant experienced a "drywell incident" requiring submission of a "five-day letter" which contained safeguards information. As Hastings dictated the letter, his secretary, Cindy Cody, contemporaneously typed it into the CEO system. It remained in the system for several days as it was edited, printed, and copied. T. 385-389 (Larry), T. 446-447, 453, 456, 459, 466, 503-504 (Cody).

    In November 1985, Complainant privately discussed Hastings' action with an NRC inspector. Following an investigation and finding of violation, the NRC, in early February 1986, provided Complainant with a copy of its report which contained information that Complainant believed was false and misleading. T. 353. By letter of February 24, 1986, Complainant communicated these views to the NRC. During an onsite inspection on or about March 10, and within hearing distance of Mr. Hastings, an NRC inspector referred to Complainant's February 24 letter in a telephone conversation with his supervisor. According to employee witnesses, the inspector, whose announced purpose was to investigate safeguards allegations, identified Complainant as having written the charging letter. T. 554-557, 583-584, 587- 589, 593-595. Hastings and Piana decided to demote Complainant in late March. No reason was provided Complainant for her demotion. T. 361, 375.

    The ALJ found that Complainant engaged in protected activity in "making the NRC aware of a possible safeguards violation" and that Respondent reassigned her to less desirable work in retaliation for her protected activity. R.D. and O. at 6. The ALJ rejected Respondent's stated "legitimate" reason for the reassignment, i.e., job rotation. R.D. and O. at 6-8. The ALJ expressly discredited Mr. Hastings' testimony in which he denied knowledge of Complainant's protected communication with the NRC, and he found animus toward whistleblowers in general and Complainant in particular on the parts of Messrs. Hastings and Piana.

    1. The Merits

    Under the burdens of proof and production in "whistleblower" proceedings, Complainant first must make a prima facie showing that protected activity motivated Respondent's decision to take adverse employment action. Respondent may rebut this showing by producing evidence that the adverse action was motivated by a legitimate, nondiscriminatory reason. Complainant then must establish that the reason proffered by Respondent is not the true reason. Complainant may persuade directly by showing that the unlawful reason more likely motivated Respondent or indirectly by showing that Respondent's proffered explanation is unworthy of credence. Dartey v. Zack Co., Case No. 80-ERA-2, Sec. Dec., Apr. 25, 1983.

    Complainant made a prima facie showing. A complaint or charge concerning an unsafe condition and its investigation communicated to management or to the NRC is protected under the ERA. Kansas Gas & Elec. Co. v. Brock, 780 F.2d 1505, 1510-1513 (10th Cir. 1985), cert. denied, 478 U.S. 1011 (1986); Mackowiak v. University Nuclear Systems, Inc., 735 F.2d 1162. Over an eight-month period, Complainant engaged in the protected activity

of making both internal and external complaints and charges about unsafe usage of the CEO and about the consequent NRC investigation. Transfer to a less desirable job may constitute adverse action. DeFord v. Secretary of Labor, 700 F.2d 281, 287 (6th Cir. 1983). After extended safety activity and immediately following written charges to the NRC, Complainant was demoted.

    Causation also is shown. Between November 1985 and March 1986, as Complainant persisted in seeking a determination regarding the CEO system, her relationship with Hastings became increasingly strained. See Donovan v. Stafford Const.. Co., 732 F.2d 954, 960 (D.C. Cir. 1984). Moreover, the decision to demote Complainant closely followed disclosures regarding Complainant's letter to the NRC. See Couty v. Dole, 886 F.2d 147, 148 (8th Cir. 1989); Mitchell v. Baldrige, 759 F.2d 80, 86 and n.6 (D.C. Cir. 1985); Burrus v. United Telephone Co. of Kansas Inc., 683 F.2d 339, 343 (10th Cir.), cert. denied, 459 U.S. 1071 (1982) (causal connection established by showing that employer was aware of protected activity and that adverse action followed closely thereafter).

    Respondent makes much of Complainant's and Hastings' purported "social relationship," suggesting that its "deterioration" explained Hastings' distanced behavior. Resp. Exceptions at 27-32. The record does not support this theory. on a single occasion -- a Sunday in November 1985 -- Complainant accompanied Mr. Hastings to a company-sponsored Christmas bazaar at one of Respondent's facilities. This occasion constituted the extent of any "social relationship." T. 372-374, 416-417.

    Hastings was cordial to Complainant at that time. Between November 1985 and April 1986, Hastings "went [from] friendly to standoffish to I no longer existed." T. 430 (Larry). Complainant testified that after an initial discussion with NRC Inspector Pirtle in late 1985, both she and her work leader

felt that our work was being kind of nit picked . . . . Mr. Hastings was coming around -- some comments were made to me about, we have to protect the safeguards information . . . kind of little digs type things. In the months that followed [Hastings] might say hello to me. Towards the end he would . . . not even acknowledge [me].

Q. How did you know Mr. Hastings was in his office at this time?

A. Because Mr. P[i]rtle had just exited [Hastings'] office. . . . I know Mr. P[i]r[t]le and Mr. Hastings were in the office together. [W]hen I stood up I could see Mr. Hastings in his office. He was by his desk.

T. 580-584. Agge testified that he and Hastings were equidistant from the inspector as he conversed by telephone with his supervisor, each being approximately ten to fifteen feet away, and that the door to Hastings' office was open. T. 558-559, 587- 588. Pirtle used the telephone at Hastings' secretary's desk immediately outside Hastings' office. T. 485-486. I also note that Hastings' testimony, in which he denied knowledge of Pirtle's conversation, is evasive and unresponsive. T. 95. Upon consideration of the record in its entirety, including the ALJ's credibility finding rejecting Hastings' denial, I find that Hastings knew about Complainant's charges to the NRC which precipitated Inspector Pirtle's return.

    In its defense, Respondent proffered the "legitimate" motivation of job rotation, which Complainant successfully rebutted as pretext. R.D. and O. at 6-8. As noted by the ALJ, R.D. and O. at 6, under Respondent's professed system, any "rotation" of Complainant should have occurred in June 1986, at the six-month interval rather than in April, mid-way through that particular assignment term. In addition, Complainant was not apprised that job rotation was the reason for the reassignment. T. 375. Finally, Complainant's reassignment made little sense in the context of Respondent's plant development. Complainant had received "excellent" performance evaluations from Supervisor Thompson and had acquired considerable experience in programs that Respondent was under time constraints to implement. She also had received special training in preparation for the work that she was performing at the time of her abrupt reassignment. See T. 280-283, 308-311 (Thompson); Plaintiff's Exh. 10. In contrast, Complainant's replacement was inexperienced and untrained. Thompson opposed Complainant's reassignment because

be believed that it would jeopardize his ability to meet the program objectives and would raise concerns with the NRC. Plaintiff's Exh. 10, P. 2. Accordingly, Complainant has prevailed on the merits or her complaint.

    2. Timeliness

    Under the ERA, employees who believe that they have been discriminated against must file their complaint "within thirty days after such violation occurs . . . . " 42 U.S.C. § 5851(b). The date of the decision to implement an adverse employment action, rather than the date the consequences are felt, marks the occurrence of the " violation." English v. Whitfield, 858 F.2d 957, 961 (4th Cir. 1988). See Chardon v. Fernandez, 454 U.S. 6 (1981); Delaware State College v. Ricks, 449 U.S. 250, 256-259 (1980); Hamilton v. First Source Bank, 928 F.2d 86 (4th Cir. 1990) (en banc). Thus, the ERA 30-day limitations period runs from the date the employee receives final, definitive, and unequivocal notice of the adverse decision. English v. Whitfield, 858 F.2d at 961-962.

took effect on April 27, and she filed her discrimination complaint on May 19. The ALJ found that the April 9 notification was not "unequivocal." R.D. and O. at 5. As the ALJ pointed out, Complainant received no written notice documenting "the specifics of the transfer." Compare Felty v. Graves-Humphreys Co., 785 F.2d 516, 519 (4th Cir. 1986). No one provided her with any reason for the action. T. 361, 375. She contemporaneously was provided with a copy of Supervisor Thompson's April 7 memorandum to Piana and Hastings in which he strongly objected to any transfer and requested that she remain. T. 410, 415. Compare English v. Whitfield, 858 F.2d 962 (notice was unequivocal absent any intimation that decision was subject to further appeal or reexamination). Thompson had been apprised of the determination to transfer Complainant upon his return from vacation, and management thereafter agreed to receive and consider his memorandum and presentation on the transfer issue. T. 279-280. In his memorandum, Thompson pointed out that the NRC had made clear during a recent inspection "exit meeting" that it expected Respondent to "stabilize"" its security organization by instituting permanent employment positions. He believed that rotation of Complainant back to uniform would

that is "decisive" or "conclusive," i.e., "leaving no further chance for action, discussion, or change." "Unequivocal" notice denotes communication that is "not ambiguous," i.e., free of misleading possibilities. Webster's New World Dictionary (Third College ed. 1988). Here, Supervisor Thompson, alone, notified Complainant of the proposed job action. At the same time, he had initiated a serious challenge to the proposal and held out the possibility of reversal. The notice thus appears ambiguous and inconclusive.

    However, regardless whether the April 9 notice was adequate, modification of the limitations period is in order as the result of Respondent's Equal Employment Opportunity (EEO) scheme. Respondent maintained a company EEO office in downtown Detroit and employed Denise Gately O'Keefe as the EEO Specialist. T. 395-396. Notices posted at plant work locations and outside the downtown office advised employees that "whistleblower" discrimination complaints should be directed to the EEO office. T. 605-607. See Plaintiff's Exhibit 15 (Respondent's "Position Letter") in which Respondent attests: "The Michigan [Whistleblowers Protection] Statute requires a 'Notice to Employees' poster. Such poster states that whistleblower concerns should be directed to the Company's EEO organization."). See also T. 362-364. Ms. O'Keefe maintained an "open door policy." Upon meeting with complaining employees, she explained that she functioned as a mediator between employees and management for purposes of complaint resolution. T. 609, 640. In reality, Ms. O'Keefe was "responsible for representing the company, preparing the company's position statement, and representing the company at any fact finding or resolution conferences that are conducted." T. 605 (O'Keefe). See T. 617, 637; Plaintiff's Exh. 15, pp. 10-11. Ms. O'Keefe did not disclose her responsibility as company representative to complaining employees. T. 638. She assured the employees, however, that she expected to "give [their complaints] immediate attention." T. 618.

discrimination complaint with Respondent or with any external agency, she (Ms. O'Keefe) immediately would cease her mediation efforts. T. 611.

    Complainant explained her whistleblower complaint in detail. Pursuant to Ms. O'Keefe's request, Complainant tendered documentation, including her performance appraisals, letters of recommendation, memorandum requesting a safeguards determination, and correspondence with the NRC. T. 362-364, 609-617. Ms. O'Keefe represented that she would attempt to conciliate the matter with Messrs. Hastings and Piana. T. 411-412. Ms. O'Keefe never contacted either manager. T. 623. Instead, she met with Respondent's Legal Department to discuss Complainant's whistleblower case, and she "turned over" Complainant's documentation to the Legal Department. T. 623, 628-629.

    Respondent's EEO process clearly distracted Complainant in pursuing other recourse. Complainant testified:

I went to the Detroit Edison Equal Opportunity. I felt that that would be the best place to go for help. . . . I told [Ms. O'Keefe] my story. I turned over all my documents from the N.R.C. [regarding] the CEO. She told me that we had a confidential relationship and she would get back to me as far as ray Complaint. . . . I called Ms. O'Keef[e] after a couple of days. I explained to her . . . that I had a certain amount of days before I had to go to the [W]age and [H]our [D]ivision . . . and I was hoping that Edison's Equal opportunity could take care of it . . . . On two occasions that I called Ms. O'Keef[e], she told [me] she had not yet been able to schedule an appointment with Mr. Piana and she had to talk to . . . her supervisor about the problem . . . . After that, she would not answer my calls at all or return the calls when I would leave messages and it was at that time that my time was running out, that I went to the [W]age and [H]our and filed a Complaint there.

"together with the compensation . . . terms, conditions, and privileges of h[er] employment . . . ." The Secretary also shall award "all costs and expenses (including attorneys' . . . fees) reasonably incurred . . . by the complainant . . . . " 42 U.S.C. § 5851(b)(2)(B). Complainant did not request a back pay award. She did request, and the ALJ found, that she should be reinstated to the NSS position that she had held prior to her return to uniform. R.D. and O. at 8. Similar reinstatement was ordered in DeFord v. Secretary of Labor, 700 F.2d 289, where, as here, "there [was] no sign in the record that [the] previous position ha[d] ceased to exist . . . . " As Supervisor Thompson agreed, after having worked in a Background Investigator/NSS capacity for in excess of two years, Complainant had "satisfied the audition" for the job, T. 331, and Director Leach had promised it to her in late 1985. T. 308-314, 378-379, 422-423. The evidence shows that NSS positions became permanent shortly after Complainant's return to uniform; that Complainant's experience and extensive, specialized training qualified her for the position; and that she would have become a Nuclear Security Specialist but for her unlawful demotion. T. 219/11-219/12, 234, 272-273, 292, 309-322, 331, 422-423, 438, 551-552.

    Accordingly, Respondent is ordered to reinstate Complainant to the position of Nuclear Security Specialist. Although costs and expenses of $9,450.00 were assessed in the ALJ's Order Granting Fee Petition issued April 17, 1987, the parties have not briefed the appropriateness of this assessment. A period of 20 days from receipt of this Decision and Order is granted for any briefing on this issue. Counsel for complainant also is permitted a period of 20 days in which to submit any petition for fees and expenses incurred in review of the ALJ's R.D. and O. before the Secretary. Respondent thereafter may respond to any petition within 20 days of its receipt.

    SO ORDERED.

       LYNN MARTIN
       Secretary of Labor

Washington, D.C.

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