1. Arkansas Power & Light is an electric public utility engaged in the generation, transmission and distribution of electric energy throughout its service territory in the states of Arkansas and Missouri. Among AP&L's generation resources is Arkansas Nuclear One (ANO), a two-unit steam-electric nuclear generating station. ANO's Unit 1 commenced service in 1974; Unit 2 commenced service in 1980.

    2. AP&L holds a license issued by the NRC authorizing operation of the two ANO units. The NRC extensively monitors and regulates AP&L's operation of ANO. This oversight includes the stationing of resident inspectors on site.

    3. AP&L was, during the period that Complainant worked at ANO in 1986, his "employer" within the meaning of Section 110 of the Energy Reorganization Act, 42 U.S.C. § 5851.

    4. Each of the two units at ANO requires periodic refueling. To accomplish this task, AP&L schedules refueling outages, during which the units are shut down. During the outage, AP&L replaces spent fuel rods and also performs necessary maintenance of, and modifications to, the unit. To accomplish these tasks, AP&L schedules refueling outages well in advance so that it may plan for all work to be performed during the outage and contract in advance for necessary services and materials.

    5. Both units at ANO were due for refueling during 1986. AP&L scheduled Unit 2 to be taken out of service on line 13, 1986. When AP&L completed refueling Unit 2, and all outage-related construction was completed, the unit would be

restarted. At that point, AP&L planned to take Unit 1 out of service so that it could be refueled and outage-related construction work performed.

    6. As relevant to this case, construction work at NRC-licensed nuclear plants generally involves two disciplines: craftsmen, who construct, fabricate and install systems and components; and quality control inspectors, who inspect and document the acceptability of the craftsmen's work under pertinent procedures, specifications and code requirements. Because AP&L maintains neither a large construction work force nor a large number of permanent nuclear quality control inspectors, it was necessary for AP&L to contract for craft and quality services for the 1986 outages.

    7. AP&L awarded a contract to S&W Technical Services (hereinafter "S&W") to provide quality control inspectors for AP&L's 1986 refueling outage.

    8. S&K supplied resumes of quality control inspectors to AP&L to be selected for work during the 1986 outage.

    9. Complainant was selected as a result of this process, along with a number of other inspectors, for employment as a quality control inspector during the 1986 outage. This employment was of a temporary nature, based on increased need for inspectors during the duration of the outage.

he was shouting at Novin. (TR 600,652).

    12. Following Complainant's outburst, Novin telephoned Chester Bean, the quality control supervisor, and informed him of the confrontation with Complainant. Novin reported that Complainant had used "very loud and abusive language," while witnesses interviewed by Bean stated that Novin had very calm, even "keeping his hands in his pockets." (Cf. 12, TR 370-372). Bean reported in his memorandum dated September 18, 1986 that Complainant had threatened during the confrontation with Novin to go to the NRC. (CX 12).

    13. Early the next day, Bean consulted with James Taylor-Brown, the quality control superintendent, regarding the Couty-Novin incident. Taylor-Brown concluded that it was an isolated incident requiring no drastic action to be taken, whereupon Bean met with Complainant and advised him that such conduct would,not be tolerated. (TR 373-374; CX 12).

    14. On September 26, 1986, approximately one week following the Couty-Novin incident, there transpired an altercation between Rocky Hayworth, a quality control inspector, and Ed Steiner, a Bechtel quality engineer. On that date Steiner was not satisified with the time it took Hayworth to "scope a package", the term used for the review of paperwork for a particular inspection procedure. During the discussion regarding the package, both Steiner and Hayworth began yelling, with Hayworth at one point making the threatening remark, "I could hurt you." (CX 1, p.3). Steiner later admitted that he, too, lost his temper. Believing that violence between the two was impending, Glenn Parks, a senior inspector in the quality control department, physically placed himself between the two men and convinced Hayworth to go outside and cool down. (CX 2 Several days later, Steiner and Hayworth met and agreed that they both needed to act in a more professional manner toward each other. (CX 1, p. 4).

    15. As a result of the aforementioned incident, Hayworth was suspended for one day without pay and was advised that a recurrence in the future of this type of incident will result in immediate discontinuation of his services at [Arkansas Nuclear One]." (CX 9). Steiner was suspended from work for three days since he was in a supervisory position and was expected to conduct himself more professionally. (TR 340).

    16. Due to the seriousness with which management stewed the Hayworth-Steiner incident, and to insure that such an accident would not recur, Sid Wilson was requested to investigate the matter fully by interviewing the participants and witnesses. (CX 11).

    17. Several weeks later, on November 11, 1986, there arose a confrontation between Complainant and Glenn Parks, a senior inspector in the quality control department assigned to the night shift. As David Williams, a quality control inspector, was completing his day shift, he informed Parks he had been unable to sign off a weld inspection because he could not verify the welder's stencil. Parks responded that Complainant would cover the inspection and that Williams was free to go home. To this suggestion Williams was agreeable. For Williams to have completed the inspection himself would have involved Williams using protective clothing and a respirator and having to remain at work for an additional 1 1/2 to 2 hours. (TR 840-841; Deposition of David Williams, pp. 11-12).

    18. Complainant and David Williams both allege that they ran into one another prior to Complainant's arrival at the plant for the night shift. There is, however, a stark discrepancy in their accounts. Williams stated several times in his deposition that he ran into Complainant on the highway while driving home, that he flagged Complainant down," and that the two men were stopped "side-by-side" on the highway. (JX 2, Deposition of David Williams, pp. 12-13, 30-31). Complainant, on the other hand, testified that he spoke with Williams in the driveway of their house after Williams had arrived home and before Complainant left for work. (TR 889). It is the finding of the Court that the fact of their meeting and discussing the inspection prior to Complainant's arrival at work was fabricated. Instead, the evidence indicates that the two had missed each other. Supporting this finding is Glenn Parks' statement. According to Parks, Williams had telephoned him when he arrived home and asked Parks to have Complainant phone him when Complainant arrived at work, since Williams had missed Complainant. Williams asked that Complainant phone him so that he could "fill [Complainant] in on the inspection." (CX 16, p. 3). The Court accepts Parks' account as most credible.

    19. Once Claimant arrived on the shift, Parks requested that Complainant perform the inspection, at which point Complainant became quite angry and vehemently refused to "go behind another

day shift inspector" to inspect his work. Much profanity was used by Complainant in his refusal. See CX 16, p.2. Again Complainant was requested to perform the inspection, to which he replied, "Hell no I'm not gonna do it." (CX 16, pp. 2-3). Parks and Complainant then telephoned Williams, who reiterated what he had told Parks prior to leaving the day shift. (TR 844-845; CX 16, p. 3). Complainant simply hung up his extension rather than verbally responding to Williams' explanation, then left the quality control trailer. Complainant returned several minutes later, clean shaven (except for his moustache), and proceeded to make extremely profane, disparaging remarks to Parks about certain employees and about the Bechtel employees in general. The following excerpt from Parks' statement, though edited, is exemplary of Complainant's insubordination and extreme use of profanity:

[Complainant] walked in and stated: I think this is a bunch of Bullshit [sic] but I'll do the dam [sic] inspection; who's the engineer, [Parks] told [Complainant) it was Stan Maguffee; [Complainant] stated I hate that fagot [sic] queer M.F. why do I have to work with that S.O.B., I don't [sic] any [obscene expletive] use for him or that sorry-ass Bechtel. I can't stand those low life Bechtel scumbags. [Complainant] then said [obscene expletive] all of you [sic] I don't have to put up with this type Bullshit [sic] you go to hell. (CX 16, p. 4).

    20. At this juncture Parks informed a co-worker that there was a "problem" and that he may need him to alert the security guards. (CX 16, p. 4). Approximately forty-five minutes later Complainant phoned Parks, stating that he would proceed with the inspection. Complainant did complete the inspection, then returned to the trailer and informed Parks that he believed it was unfair to allow the day shift workers to leave and then expect the night shift workers to perform the day shift's inspections. At this point Complainant had calmed down. Parks explained that it seemed nonsensical to require Williams to remain at work for an extra two hours when the night shift was capable of performing the inspection. (CX 16, p. 4).

    21. Following the aforementioned outburst on the part of

Complainant relative to Parks' request that he perform an inspection, a disciplinary meeting was held with Chester Bean, Glenn Parks, Complainant and James Taylor-Brown in attendance. During this meeting Taylor-Brown instructed Complainant to 'never conduct himself in such a manner again on this site," further advising him that such insubordination to a supervisor would not be tolerated. As an explanation for his actions, Complainant stated that he was only "having a little fun" with Parks and that he was trying to "stir the pot a little" since the night shift is sometimes boring. According to Complainant, he had intended to stir things up" to generate some excitement on the night shift. See CX 16, p. 1. Complainant was explicitly advised that any such future incidents would result in his services no longer being needed. Complainant promised that he would "maintain a clean act henceforth." During the formal hearing, Complainant testified that he understood Taylor-Brown's remarks to mean that he would be terminated from employment if any such outbursts or incidents occurred in the future. (TR 609).

    22. In addition to the reprimand given Complainant hiring the aforementioned disciplinary meeting, Ed Wheat, one of the owners of S & W Technical Services, Inc., personally counseled Complainant on at least two occasions, warning Complainant that he had better improve his behavior on the job. (JX 2, Deposition of Ed Wheat, pp. 74-75).

    23. Only three days following Taylor-Brown's reprimand and warning during the disciplinary meeting, Complainant became involved in an altercation with the health physics (HP) supervisor, Walt Hada. Initially, Complainant requested a respirator from the respiratory issue clerk, who informed Complainant that he would need to shave before a respirator could be properly issued. Because Complainant questioned her authority, the clerk directed him to Hada, the HP supervisor. Upon observing the stubble on Complainant's face, Hada responded that Complainant needed not only to shave, but also to trim his moustache which was extending down into the chin line area. (TR 942-943). Following this exchange Complainant left.

    24. Approximately ten to fifteen minutes later he returned, approached the window area of Hada's office, pointed his finger at Hada and stated, "Why don't you come out here and we will resolve this problem." (TR 944). Once Hada was in the hallway, Complainant suggested they go out on the turbine deck to resolve

the matter. Hada, however, refused, given Complainant's visibly agitated and angry" state. (TR 944-945). Hada again attempted to explain the criteria around which the decision is made to issue respirators to persons with facial hair and reiterated his belief that Complainant's moustache needed trimming. Complainant disagreed with Hada and insisted that he had been issued respirators with his moustache as it was. After repeating that Complainant would not be issued a respirator with the current condition of his facial hair, Hada ended the exchange by returning to work. According to Hada, Complainant appeared quite angry and frustrated. (TR 945-946). Witnesses to the incident included Orville Cypret, David Moore, Gary Conley and Mark Buckallew. Due to Complainant's inappropriate, aggressive behavior, Hada recommended that Complainant be removed from the site. (CX 15, p. 3).

    25. According to orville Cypret, an eyewitness to the confrontation, Complainant's behavior was unprofessional. aggressive, belligerent and somewhat threatening. (CX 15, pp. 6-7). He further characterized the incident as a "potentially explosive situation" which was handled very appropriately by Hada. Crediting the descriptions of the incident by Hada and Cypret as most credible, Complainant's account that he was "polite to the man" is implausible. See CX 15, pp. 4-5.

    26. One day subsequent to the Couty-Hada confrontation, October 17, 1986, a telephone conference was held to discuss the termination of Complainant, the participants including names Taylor-Brown, Chester Bean and Ed Wheat. The parties discussed "the recurring problem with [Complainant] concerning inappropriate behavior with plant supervisory personnel' and concluded that Complainant was undesirable as a quality control inspector. (CX 14, p. 1). Bean and Taylor-Brown requested that Wheat contact Complainant to advise him of the decision and Wheat so agreed. That afternoon Complainant received word if the decision from Wheat and responded with "outrage." ( 2, Deposition of Ed Wheat, p. 76).

    The basis of Complainant's claim is that in discharging him, Respondent violated 42 U.S.C. § 5851(a) which provides as follows:

No employer, including a Commission licensee, an applicant for a Commission license, or a contractor or a subcontractor of a Commission licensee or applicant, may discharge any employee or otherwise discriminate against any employee with respect to his compensation, terms, condition, or privileges of employment because the employee (or any person acting pursuant to a request of the employee)-

(1) commenced, caused to be commenced, or is about to commence or cause to be commenced a proceeding under this chapter of the Atomic Energy Act of 1954, as amended [42 U.S.C.A. § 2011 et seq.], or a proceeding for the administration or enforcement of any requirement imposed under this chapter of the Atomic Energy Act of 1954, as amended;

(2) testified or is about to testify in any such proceeding or;

(3) assisted or participated or is about to assist or participate in any manner in such a proceeding or in any other manner in such a proceeding or in any other action to carry out the purposes of this chapter or the Atomic Energy Act of 1954, as amended [42 U.S.C.A. § 2011 et seq.].

42 U.S.C. § 5851(a)(1987) (emphasis provided).

    The elements of proof in a discrimination claim under Section 5851 are clear. 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 that employer took some action against the employee which was more likely than not the result of the protected activity. The burden then shifts to the employer to proffer 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 proffered legitimate reasons were

pretextual.

    In this case Complainant has established that he engaged in activities which were protected under the Act; specifically, Complainant threatened to "go to the NRC." See DX 12. Chester Bean documented on September 18, 1986 that Complainant had threatened (to Novin) that he would go to the NRC. (CX 12). This threat on Complainant's part falls within the "is about to commence or cause to be commenced a proceeding" phrase of the statute. Furthermore, that such threat was documented by Bean on September 17, 1986 makes clear that the Respondent was aware of the threats. Also, Complainant's "internal safety and quality control complaints" to his supervisors regarding several inspections constitute "protected activity." See Mackowiak v. University Nuclear Systems, Inc., 735 F.2d 1159, 1162-1163 (9th Cir. 1984). Such internal complaints were directed toward supervisory personnel and were, thus, within Respondent's knowledge.

    More troublesome is a determination whether this protected activity prompted the termination of Complainant's employment. "The presence or absence of retaliatory motive is a legal conclusion and is provable by circumstantial evidence even if there is testimony to the contrary by witnesses who perceived lack of such improper motive." Ellis Fischel State Cancer Hospital v. Marshall, 629 F.2d 563, 566 (8th Cir. 1980). If there is adequate evidence in the record to support an inference that the employer was motivated in part by the employee's protected conduct, then a prima facie case is established. Mackowiak v. University Nuclear Systems, Inc., supra at 1162.

    In support of his allegation of illegal discharge, Complainant primarily relies on a theory of "disparate treatment," meaning that an employee who "engaged in protected activity was disciplined more harshly and/or according to a less favorable process" than an employee who did not engage in a protected activity. See Complainant's Post-Trial Brief, pp. 63-64. Specifically, Complainant points to the "far more lenient" treatment afforded Hayworth and Steiner following their "far more serious" confrontation as opposed to Respondent's termination of Complainant following the Couty-Hada incident. See Complainant's Post-Trial Brief, pp. 63-64. This argument is not persuasive. Notwithstanding the seriousness with which the

Hayworth-Steiner incident was viewed by Respondent, it was the first example of misconduct for each of the participants. Moreover, it was an isolated incident. It was believed that a one day suspension for Hayworth and a three day suspension for Steiner were reprimands appropriate to the isolated episode of unprofessional conduct. Also, Complainant fails to take note of the fact that Hayworth, who occupied the same quality control inspector position with Respondent as Complainant, was advised that a "recurrence in the future of this type of incident" would result in his immediate termination. (CX 9).

    To compare Respondent's treatment of the Hayworth-Steiner incident to its treatment of the Couty-Hada incident is an invalid comparison. At the time of the Couty-Hada altercation, Complainant had already been a participant in two other confrontational episodes involving insubordination and abusive language, for which he had been reprimanded. Not only had Complainant been reprimanded, he had been warned in no uncertain terms that future incidents of his inappropriate behavior would result in termination of his employment. (CX 16, D. 1; TR 609). Thus, to compare the response of management to the Hayworth-Steiner and Couty-Hada episodes is neither reasonable nor persuasive. "Disparate treatment' has not been shown.

    A valid comparison in determining "'disparate treatment" would entail an analysis of management's response to the Hayworth-Steiner and Couty-Novin confrontations, since the Couty-Novin incident was Complainant's first involving misconduct and insubordination. Upon comparison of treatment of these two episodes, it becomes clear that Complainant was treated more favorably than his counterpart, Rocky Hayworth. While Hayworth was suspended for one day and warned that repeated conduct in the future would result in his termination, Complainant received only a verbal reprimand and was "counseled" by Taylor-Brown that such behavior would not be tolerated. Because the Hayworth-Steiner incident was a potentially explosive one and was quite serious, the reprimands received by Hayworth and Steiner were harsher than those received by Complainant and Novin. Consequently there was no "disparate [harsher] treatment" on the part of Respondent toward Complainant.

    In summary, it has been determined that Complaint has demonstrated no evidence, circumstantial or other, which would support even an inference that the Respondent was motivated in

inappropriate manner using "loud and abusive" language, while Novin remained very calm, (CX 12) Despite a counseling session and warning that such conduct would simply not be tolerated, Complainant again lost control of his temper during the subsequent altercation with Parks. During this incident Complainant became very hostile, repeatedly refused to perform the inspection, and used an extensive series of "obscene expletives" before finally performing the inspection. Using his own jargon, Complainant surely went beyond his pretextual goal of "generating excitement" during what was ordinarily a boring evening shift. See CX 16. This confrontation resulted in the disciplinary meeting during which Complainant was explicity warned that any such future incidents would result in his immediate termination. Approximately one week later, however, Complainant became enraged at Hada, the HP supervisor, for validly refusing to issue him a respirator. That Hada recommended Complainant's security badge be pulled, which would in effect preclude his access to the RCA and his ability to perform future inspections, supports the finding that COmplainant's conduct during the incident led Hada to believe his presence was of a threatening nature. Likewise, the eyewitness account of Orville Cypret indicates that Complainant's aggressive," "belligerent" behavior intimated a "somewhat threatening" and potentially explosive situation." (CX 15, p.6).

    Without doubt, there is ample documentation of Complainant's repeated hostile, inappropriate, belligerent behavior which included numerous instances of profane, crude and abusive language. Additionally, Complainant had been counseled following the initial Couty-Novin incident that such outbursts in the future would not be tolerated, and following the Couty-Parks confrontation that he would immediately be terminated if another such incident occurred. The Respondent has propounded valid, genuine reasons for Complainant's discharge - reasons with which this Court can not disagree. As evidenced by his numerous confrontations, obstinate behavior and extensive use of profane language, Complainant overstepped the "defensible bounds of conduct," thus resulting in his legal termination from employment. See Durham v. Brock, supra at 1041.

    With regard to Complainant's allegation of blacklisting, the Court finds that such allegation is not sustained by the evidence of record. Focusing on the information communicated from Respondent's officials to Louisiana Power and Light (LP&L), there

is evidence of only one such communication. See RX 64. LP&L had telephoned Respondent in an attempt to verify Complainant's employment during the periods from July 1986 through November 1986 and from August 1973 through May 1974. Respondent was able to verify Complainant's employment during the first period, but not the second, since Complainant had been employed during the second period by "X-Ray Eng." and assigned to Arkansas Nuclear One. (RX 54, p.4).

    It is hereby recommended that the complaint of Complainant, Richard Couty, be DISMISSED.

    Entered this 16th day of November, 1987, at Metairie, Louisiana.

       JAMES W. KERR, JR.
       Administrative Law Judge

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