If any of the acts that
are alleged to constitute
discrimination occurred within thirty days of the filing of the
complaint the filing is timely. § 24.3(b). As described below, I
find that the withdrawal of LLRT certifications on September 29,
1988 constituted discrimination. The complaint was therefore
timely. Another document (ALJ 2) on DOL Form WH-3 was dated 12/2/88
and apparently was the basis of the investigation undertaken by the
Wage and Hour Division (ALJ 1). It does not serve to time-bar the
earlier complaint.
Substantive issues
It has been said that six items establish a prima facie case of
discrimination under the whistleblower statutes:
1) that the party charged with discrimination is an employer
subject to the Act;
2) that the complainant was an employee under the Act;
3) that the complaining employee was discriminated against
with respect to a condition of employment;
[Page 3]
4) that the employee engaged in protected activity;
5) that the employer knew or had knowledge that the employee
engaged in protected activity; and
6) that the discrimination was retaliation, motivated, at least
in part, by the employee's engaging in protected activity.
Stephen Kohn, Protecting Environmental & Nuclear
Whistleblowers: A Litigation Manual , Nuclear Information
and Resource Service - Government Accountability Project
(1985), p. 17.
In this case there is no question that the respondent, Arizona
Public Service (APS) operates the Palo Verde Nuclear Generating
Station, and is an employer under the Act and that the complainant
is an employee and was such at all relevant times. The other
elements are the ones litigated here.
Background
Sarah Thomas testified that she is 41 years old, has been
married for 19 years, and has two children aged 15 and 12. (TR 47.)
She moved to Phoenix when her husband was transferred there in
1981. (TR 52.) She worked for a time for a contractor at the Palo
Verde Nuclear Power Plant and in 1983 was hired directly by the
respondent as a radiation waste aide. (TR 54-55.) She bid for and
got the job of "Engineering Technician - Nuclear" on June 6, 1984.
(TR 55.) One of the reasons she wanted the job in Engineering was
that it very rarely required night shift work, in contrast to the
radiation waste work which called for night shift work regularly.
(TR 56.) She disliked night shift work because of her family
responsibilities.
As an engineering technician she worked with an engineer by the
name of Gary Irick ("Irick") and under the supervision of Ronald
Kropp ("Kropp"). The three summaries of employee performance
appraisal filled out by Kropp (EX 6, 7, 8) for each of the first
two-and-a-half years of her employment in engineering rated her as
"superior" on a scale that went down from "exceptional" to
"superior" to "competent" to "acceptable" to
"marginal." There was
testimony from another supervisor that he only rated one out of
seven employees "exceptional." (TR 624.)
[Page 4]
In addition to the overall rating of "superior," the appraisals
included highly complimentary comments such as "Her files proved to
be invaluable." "She acted independently with the Licensing dept. to
close out items ... two months ahead of schedule." "Overall, Sarah
is hardworking, intelligent, and a fast learner. She requires
minimum supervision. Her strong point is that she stick [sic] with
a job until its done." (CX 6.)
"Very helpful during the program development ... She became
very knowledgable of the computer programs on TSO and independently
scheduled and monitored unit 2's valve test program. ... She is able
to disposition many of the control room concerns without engineering
assistance. ... She interfaces well with all engineering personnel
and other depts. She is currently training the Engineering Aide to
take over this responsibility. ... Sarah has trained the Aide
sufficiently to permit the Aide to independently work on the IBM-PC
to enter data and assist the engineers as needed ... her performance
is always superior ... Sarah operated with considerable independence
of action as a data taker, or lead technician of a procedure.
readily accepts responsibility and performs in a superior manner.
She excells [sic] at testing and data management and likes to get
out in the field and test. She works well with all the engineers
and interfaces well with other departments." In the space entitled
"career development plan" Kropp noted: "Sarah needs training on ASME
XI, Snubbers and LLRT testing to fully diversify and needs to work
with engineers and learn more of the technical basis for the testing
programs" (CX 7.)
In requesting a salary increase for Thomas in 1985, Kropp
wrote: "She gives 150% to her job." (CX 5; TR 63.)
In short, until the Fall of 1986, the middle of her third
appraisal period, complainant's performance was really superior.
There was evidence that performance appraisals are truthful and
taken seriously by supervisory personnel. (TR 625.)
The events leading up to the activity that complainant contends
is protected activity began in the Fall of 1986.
Complainant's job was part of so-called Section XI testing.
Section XI refers to a section of the regulations that governs
testing of valve stroke times. Valve stroke times indicate the
speed with which valves open and close. Valves are essential to the
safe operation of the plant and their proper functioning is
[Page 5]
critical. Valves are tested every 90 days and their stroke times
recorded. When a valve's stroke times show a certain degradation
the valve must then be tested every 30 days. It is obvious that
such testing has significant safety implications.
ALLEGED PROTECTED ACTIVITY
In discussing the two controversies that are the focus of the
alleged protected activities, it must be remembered that it is not
my function to determine whether complainant's position on a
technical matter is correct. An activity is protected if done as
part of "particip[ation] in any manner ... in any action to carry
out the purposes [of the Act] . " § 24.2(b)(3). A good faith or
reasonable belief that a problem related to the Act exists is
sufficient. "The merits of a charge made against an employer is
irrelevant to its protected status." Womack v. Munson , 619 F.2d
1292, 1298 (8th Cir. 1980.) Respondent does not question Thomas'
good faith. (TR 37.)
TSO-PC Controversy
The first cluster of events involves the TSO-PC controversy.
Until the fall of 1986 the valve data was tracked on a mainframe
computer, referred to as TSO (Time Sharing Option). At that time
Supervisor Kropp had installed an IBM PC computer. He wrote a
program for the PC to track the data (TR 78, 434, 559). Thomas and
engineer Irick complained thai the PC did not work well. It would
sometimes lose data; it did not easily display previous valve stroke
times; input was slow; and it failed to disclose defects that it
should have caught. (TR 78-80, 272.) Kropp testified that the PC
worked well, but that Thomas and Irick refused to learn the
program. (TR 366.) Tom Weber, the lead engineer, shared that
opinion. (TR 500-501, 618.) Irick testified that Kropp had pride of
authorship in the PC program and did not want to believe it didn't
work. (TR 274.) Thomas insisted that she did her best and knew
perfectly well how to operate the PC. (TR 684.)
In any event, Irick and Thomas met with Kropp on October 8,
1986 to discuss the problem and again on November 25. On December 2
Kropp instructed them no longer to use the old TSO system and to use
the PC exclusively, although Thomas and Irick reiterated their
objections. (TR 77, 82, 271, 368; CX 9.)
On February 18, 1987 Irick, Thomas and an engineer from another
[Page 6]
group were discussing problems with "S.T." (surveillance tracking)
packages produced with the PC computer. Kropp came in during this
discussion and, according to credible testimony, became very angry
and told Thomas and Irick "to throw S.T. packages in the garbage" if
they were not properly completed. As complainant understood this
remark, it would violate regulations, in that it called for
destroying documents that were required to be kept (TR 175), that
were not blank. (TR 646.) According to Kropp, all he meant was to
destroy blank documents. (TR 373.) But he was "upset" when Thomas
failed "to clear the control room out." (TR 372.) Six months later,
in a meeting with Thomas and Mr. Rodriguez from Personnel, Kropp
apologized to Thomas for having raised his voice at her in
February. (TR 375.)
In any event, Irick and Thomas were disturbed by Kropp's remark
and immediately went to see Gerald Sowers, Kropp's supervisor.
Sowers told them to resume use of the TSO and to feed it the data
that had only been fed into the PC. (TR 86, 276; CX 9.) Complainant
contends that this appeal to Sowers was one instance of protected
activity. Kropp referred to this appeal to Sowers as "going behind
my back." (TR 369.) He testified he was "hurt" rather than angry.
(TR 371, 374.)
Sowers did not testify, but there was evidence that the primary
reason for ordering the use of the TSO was that its data were
accessible to more people in the facility than the PC's data. (TR
619, 685.)
Complainant immediately began to feed the data into TSO as
instructed by Sowers. By March 31, 1987 this task was completed for
Unit 1. (The Palo Verde facility has 3 units.) In completing this
task, complainant found that three valves which had been cleared by
the PC program actually required being put on a 30 day testing
schedule. (TR 80, 90.) In other words, by using the TSO complainant
had discovered defects, which reflected violations of regulations,
that she had not discovered by using the PC. Irick and Thomas
reported this problem to Kropp. (TR 91.) Kropp told them to
"engineer it away." (CX 9; TR 92.) Irick and complainant understood
this order to mean that they should go over the work carefully to
see if they had made any mistakes. (TR 92, 178. ) Finding no
mistakes, they again met with Sowers. He told them to write a PRO
(Potentially Reportable Occurrence) immediately, which they did.
(CX 9, CX 10.) A PRO is a document that must be filed if a problem
comes up that may indicate a violation of a regulation, whether or
[Page 7]
not further investigation shows an actual problem. The significance
of complainant's testimony is that Kropp should have told her to
write a PRO, but that he did not want a PRO filed, and that Sowers
again overruled his subordinate, Kropp. (TR 93-94, 255.)
Thomas testified that Kropp was "very livid" and upset
when he
found out that Irick and Thomas had again gone to Sowers. (TR 94.)
Irick described it as Kropp's "just incredible outward show of
anger." (TR 281.)
After the PRO was filed the matter was further investigated and
a so-called LER (Licensee Event Report) (CX 11) was filed with the
NRC on April 27, 1987. It was prepared on the basis of the PRO
written by Thomas and Irick and with input from Kropp and others,
but the final version was not seen by complainant or Irick before it
was filed. (TR 100.) In their view the LER did not accurately state
who and what was responsible for the incident. It blamed "a
cognitive personnel error by the test engineer," (that would be
Irick) rather than Kropp's failure to heed Thomas' and Irick's
complaints (TR 101), and three other similar statements (TR 101-103)
which counsel referred to as "massaging the language" (TR 379) to
deflect the blame. Complainant called this to the attention of
Kropp's supervisor in a memo dated May 6, 1987. (CX 9).
Complainant and Irick decided that they need not call this LER
incident to the attention of the NRC (TR 330), but had performed
their duty by calling it to the attention of management. (TR 171,
340.)
Date of valve review
The second cluster of events alleged to be protected activity
revolves around the date of valve review. As mentioned, valves have
to be tested regularly, at 90 day or 30 day intervals, with a 25%
leeway. If valves are tested individually it is clear when the
period begins to run. However, in 1986 valves were scheduled for
testing in groups, and the testing period could extend for as long
as six weeks. All valves in the group that passed the test were
then accepted on the same day. In this way it was possible for a
valve that was "exercised" (tested) at the beginning of a six week
schedule, to be accepted six weeks later, and to then be scheduled
for retesting 30 or 90 days from the date of acceptance, which would
be more than 30 or 90 days from the date it was exercised. (TR
268-269.) Since the APS procedure was to calculate the next
[Page 8]
scheduled test on the basis of the date of acceptance, complainant
was concerned that some valves would be tested less frequently than
required by regulation. (TR 72-75.)
Complainant testified that she discussed this matter with Kropp
in October 1986, and was instructed to use the acceptance review
date. (TR 75.) She also testified that she raised this concern with
an on-site inspector from the NRC (Nuclear Regulatory Commission.)
(TR 76, 96-97. ) The NRC did investigate this concern, and Kropp was
aware of the investigation. (TR 356, 361; RX 4, p. 1; CX 12.)
Although Kropp denied knowledge that Thomas had complained to the
NRC (TR 405) he admitted that Thomas and Irick had discussed the
valve review date question with him. (TR 431.) And he knew that
Jay Ball of the NRC was also concerned about this question. (RX 4.)
He further testified that the question had never been raised before
Thomas and Irick raised it. (TR 352.) I therefore infer that Kropp
believed that Thomas had raised the question with the NRC.
Thomas and Irick also discussed this concern with Sowers at the
same meeting in which they discussed the TSO-PC problem, on February
18, 1987. Sowers instructed them to use the exercise date of the
valve. (TR 86.)
Other alleged protected activity
Complainant also reported to the NRC that her engineer, Jim
Cantrell, her lead engineer, Tom Weber and her supervisor, Kropp,
may not be qualified to supervise LLRT technicians because they
allegedly have less than the required four years of experience in
the discipline of LLRT. (CX 13, TR 647.) She also complained to NRC
about being asked to use acceptance procedure that had not been
approved. (TR 135-138; CX 13.) Since these activities apparently
took place after the last incident of alleged discrimination, or
after the complaint was filed with the Department of Labor, I do not
consider them further here.
SUPERVISOR RON KROPP'S MOTIVATION AND
KNOWLEDGE
I find that Thomas embarrassed Kropp repeatedly. She
complained to Sowers about Kropp insisting on the exclusive use of
the PC, about his order to destroy S.T. packages, and about the
practice of using acceptance review dates in scheduling tests.
Sowers apparently was generally diplomatic and tried to "keep the
[Page 9]
family happy" (TR 592), but he unquestionably countermanded Kropp's
order about using the PC, and apparently implicitly supported
Thomas' other points. Sowers further ordered a PRO to be written
about an event that Kropp hoped could be "engineered away," which
was followed by an LER, which is a report that something went wrong
in Kropp's department. The fact that the LER was worded to minimize
blame suggests that it is an embarrassing document.
As explained, Kropp also knew that Thomas discussed her
concerns about valve review dates with the NRC, and this question
remained an active concern for Kropp as late as March 15, 1988. (RX
4, p. 2.)
One of the reasons I believe Kropp had a retaliatory motive is
because that is very understandable and human. Thomas was a mere
technician with a high school education, attempting to get an
associate degree in her spare time. Kropp was an engineer with two
masters' degrees and at least 11 years engineering experience. (RX
2). In these circumstances it was embarrassing and annoying to have
her report what she considered his mistakes to his supervisor and to
the NRC, and then to have those people give them serious
consideration and make more work for him.
The discriminatory treatment here was not as egregious as that
in many of the reported cases. Thomas was not fired or suspended,
or overtly disciplined. In fact, it is to respondent's credit that
management, as personified by Sowers, responded quickly and
decisively to her complaints, and, except for Kropp, appears not to
have discriminated against her. But, of course, Kropp is part of
management, and his conduct taken as a whole, evidences conduct that
would chill the freedom to bring complaints either to management
(see Mackowiak v. University Nuclear Systems, Inc. , 735 F2d 1159
(9th Cir. 1984) or to the NRC. This conduct is what Section 210 of
the Act is designed to prevent.
ALLEGED DISCRIMINATORY
TREATMENT
Complainant felt that Kropp's attitude towards her changed
after she complained to Sowers. (TR 87.) Before, Kropp had been
friendly and communicative. (TR 57-58.) Afterwards he became
unfriendly and would avoid any unnecessary conversation. (TR 88,
95, 108.) Thomas felt she could not talk to him at all. (TR 238.)
Irick corroborated this change in attitude. (TR 277.)
[Page 10]
This basic change of attitude permeated all subsequent
relations between Thomas and Kropp and manifested itself in several
specific instances of discrimination, as well as being generally
unpleasant. That attitude continued until after the filing of the
complaint and is the basis for a claim of continuing
discrimination. (TR 669.)
Each of the following items, by itself, would not support a
finding of discrimination or disparate treatment. Only when viewed
together, when each item is viewed in light of all other items and
in light of Kropp's understandable hostility to Thomas does each
item appear as an item of discrimination.
The specific instances of discrimination alleged are these: (1)
Complainant was reassigned to LLRT (Local Leak Rate Testing) without
a specific limitation in terms of time or achieving a certain level
of competence; (2) she was not promoted to Senior Technician; (3)
although the claim of discrimination respecting Thomas' lack of
promotion to associate engineer was dropped, the evidence showed
that Thomas' absenteeism was considered disqualifying for her, but
not disqualifying for the person who was appointed to the position;
(4) Complainant was assigned to be retrained on the PC for several
weeks, which was demeaning since she did not need the training and
had herself trained the aide who was then assigned to train her;
and (5) on September 29, 1988 all her certifications for doing
certain tests were suspended, even though she had trouble with only
one test.
Complainant alleged that she was discriminated against after
that as well. For example, she was denied a day off to go to the
doctor in December 1988. However, I shall not consider events after
the complaint was filed with the Department of Labor on October 21,
1988. (CX 32.)
Cross-training in LLRT
On October 1, 1987 Kropp issued a memo reassigning Thomas from
Section XI testing to LLRT and reassigning an LLRT technician, Larry
Trouy, to Section XI testing, effective January 1, 1988. (CX 14.)
The reasons given for this reassignment were: "[1] Reduction in
department exposure if a member of the LLRT or Pump and Valve team
were to depart. There are currently no back-ups within ANPP
[another acronym for respondent] for either Technician position.
[2] Diversification of training and experience for both
[Page 11]
Technicians." (CX 14.) As recently as the time of trial, Kropp
testified: 'The only way I could survive was to have the three
technicians under Tom Weber fully cross trained with LLRT and
Section XI." (TR 410.) Yet that rationale is questionable.
For Thomas this reassignment meant doing heavier work, working
night shifts, being exposed to more radiation, etc. (TR 126-127,
616.) She contends the motives for the reassignment were pretextual
or, at best, mixed. She points out that no other technicians have
been reassigned in this way before or since. (TR 124, 294.) John
Kern, another LLRT technician, has never been cross-trained in
Section XI testing. (TR 448.) On a bid sheet for test
technician/senior test technician that was posted in December 1987
no mention is made of a cross training requirement. (CX 28.) I
infer that Kropp did not intend to require cross-training of all
technicians under his supervision.
Larry Trouy, who was performing well in LLRT has learned
Section XI and has not been reassigned back, even though Thomas is
allegedly not qualified for LLRT, and even though Kern has not been
trained in Section XI. Before 1986, cross-training was done without
reassignment, on an informal basis. (TR 233, 236, 436-437,
642-643.) Sandra Henry, a senior technician in Kropp's department,
has not been trained in either LLRT or Section XI. (TR 111-112.)
An "outage" occurs when a unit is shut down, usually for
refuelling. Much maintenance and testing is done during outages.
For the outage scheduled for April 1989, all the LLRT technicians'
work will be done by outside contractors. (TR 128, 293, 450.) The
implication is, and I find, that the back-ups mentioned in the Kropp
memo are not needed.
Complainant contends that from the viewpoint of overall plant
safety and proper functioning the transfer makes no sense. Before
the transfer Thomas was doing superior work in Section XI testing
and Trouy was apparently happy in LLRT. After the transfer Thomas
was not doing nearly as well. There was some evidence that Trouy
was not doing perfectly in LLRT. (TR 295-297.) Why not move Thomas
back to where she was doing so well, and was happy? If this were an
isolated incident, or if I did not find that Kropp had strong
discriminatory motives (see above, pp. 7-8) I would consider the
reassignement a rational management decision which I should not
second guess. But in the whole context of this case I am persuaded
that Kropp was motivated, at least in part, by a desire to give
[Page 12]
Thomas a dirtier job, or at least, not to have her back in Section
XI where she embarrassed him significantly.
Not only was LLRT more disagreeable work than Section XI, but
Thomas was transferred to it without being told a time when the
transfer might end. She asked whether it was temporary or
permanent, but was not given an answer. (TR 237, 410.)
Failure to promote to Senior Technician
The engineer who worked most closely with Thomas in Section XI
was Gary Irick. He knew her work. In Spring 1987 he thought that
she was a Senior Technician. (TR 120, 287.) Apparently, so did Ms.
Robinson, a woman from Personnel whom complainant consulted. (TR
120, 184.) In fact, Irick had enough confidence in Thomas to have
her be the person for others to consult when he was not available.
(TR 120-121, 266.) Tom Weber, the lead engineer, testified that he
did not know of this arrangement (TR 544), but I credit complainant
when she testified that he must have known. (TR 672-673.) Irick
suggested that she apply for the position of associate engineer,
which would have been the next step up from Senior Technician. (TR
288.) She did apply, and was ranked fifth out of seventeen
applicants. (TR 384.) This fact alone supports the proposition that
she was well qualified to be a Senior Technician, a step below
associate engineer. (TR 640-641.)
Kropp testified that Thomas was not yet qualified to be a
Senior Technician because she lacked initiative, diversification,
competence, willingness to work overtime, and similar intangibles.
(TR 385, 400.) This testimony is suspect because Kropp had
attributed these very qualities to her in 1985 and 1986, before the
protected activities. (CX 5, 6, 7.) Kropp also said Thomas had done
no physical testing before her transfer to LLRT. (TR 401.) This
was not correct. (TR 642-643.) Thomas testified that she had more
education and experience than any other technician on site. (TR
109, 187.)
There was uncontradicted testimony that Sandra Henry, a senior
technician under Kropp's supervision, was less qualified than
Thomas. (TR 111-112, 189, 290, 456-457.) Kropp testified that she
was already a Senior Technician when he took over. (TR 348.) The
implication is that since Kropp did not promote Henry he did not
discriminate by not promoting Thomas.
[Page 13]
It is difficult to label a failure to promote as
discriminatory, just as, (in the words of the playwright, Athol
Fugard) it is impossible to name the day a drought began. But, by
the time complainant clearly asked to be promoted, in a meeting in
October 1987 with her, Kropp and Mr. Rodriguez from Personnel (TR
384), Kropp was angry, or hurt, or cold vis-a-vis complainant. It
is a reasonable inference that, absent Thomas' protected activity,
i.e., embarrassing Kropp before his supervisors, she would have been
granted the promotion to Senior Technician by October 1987.
Absenteeism
Thomas applied for the position of Associate Engineer, was
ranked 5 out of 17, and therefore did not get the job. (TR 384.) At
one point she alleged that the failure to give her the job was
discrimination but she withdrew this claim at trial. (TR 180.)
However, in discussing the "matrix" (a form for evaluating
applicants for a position) prepared for Thomas and the one prepared
for Mr. Rafferty, the person who was chosen for the position, Kropp
revealed actual discrimination.
RX 5 is the matrix for Thomas. CX 41 is the matrix for
Rafferty. Both matrixes show a minus sign (-) for the line labeled
"attendance." Kropp, when questioned about the minus sign on
Thomas' matrix, testified that it meant that Thomas was disqualified
on the ground of her absenteeism. (TR 425.) He was then shown
Rafferty's matrix, and he attempted to explain the significance
differently. (TR 428.)
I find that Kropp judged complainant's absenteeism to be
disqualifying, but judged Rafferty's relatively similar absenteeism
record not to be disqualifying.
Training on the PC
On October 7, 1987 Kropp directed that Thomas be trained on the
IBM-PC. He wrote a follow up memo on November 5, 1987, because,
apparently, nothing had happened in response to the first memo. (CX
23.) The program required 2 hours of supervised training per week
for four weeks, with 10 hours of practice and actual data input the
last week. Thomas testified that these requirements were silly for
her and demeaning. She knew how to do all the things required, had
done them for a long time, and was to be trained by the Aide she had
trained on the same equipment. (TR 658-661; CX 7[¶ 6], CX 23.)
Nothing in the record explains this except a retaliatory motive.
[Page 14]
Withdrawal of certifications
On September 29, 1988 Kropp issued a memorandum notifying
complainant that "your certifications for all LLRT procedures are
temporarily suspended. All tests performed in the future will
require the presence of a qualified technician or Engineer until
your certifications are re-validated." (Cx 32.)
This action resulted from an incident on September 26, 1988.
On that day Thomas was assigned by her engineer, Jim Cantrell, to
conduct a certain test, referred to at the hearing as CLO-6.
According to Thomas, she requested Cantrell to assign one of the
other technicians to her as "back up," and this request was "treated
lightly and denied." (CX 32.) She later testified that she made the
request because she felt lightheaded and ill (TR 139, 252), although
she did not mention this feeling in her memo to Kropp of October 4,
1988. (RX 1.) Her lead engineer, Tom Weber, testified that he
thought she wanted back up in case the test failed. (TR 540.) He
also testified that he found out she felt ill on the day of the
incident (TR 623), or the next day. (TR 624.) I find that she
really felt ill on that day, before the test began. Since Cantrell
did not testify, I do not know his reason for not assigning help
from the beginning. His memo (RX 14) does not mention her request.
All witnesses agreed that the mechanics who hooked up the test
did so in a manner that was not the preferred manner (RX 14; TR
529), and one that Thomas asked them to change. An argument ensued,
and Thomas called Cantrell and Weber, who failed to answer their
phones. (TR 650.) She reached John Miller, an experienced
technician. In response, Weber, the lead engineer, contacted
Thomas, and then dispatched engineer Cantrell and technician Kern to
the scene. (TR 523.) Kern instructed the mechanics to connect the
hoses in the standard way (TR 473-474; RX 14 ), and the test was
successfuly completed (TR 524), with Thomas signing off on it. (TR
667.) Apparently, during this controversy, the pressure in one of
the valves went as high as 72 psig or 87 psig, when the proper
pressure is 50 psig. No damage was done.
Weber, the lead engineer, believed that Thomas' certification
to do this test (CLO-6) should be withdrawn, but not that her
certificates for all tests should be withdrawn. (TR 533, 541, 594;
RX 15.) (The other tests are designated CLO-1, 3, 5, and 7. (TR
130-134.]) Weber testified that he thought that Thomas confessed a
lack of confidence in her ability to do all tests involving "the
[Page 15]
panel." (TR 536.) Thomas denied this (TR 666, 692); however she had
only done the CLO-6 test twice before. (CX 32.)
Kropp testifed that he suspended all of Thomas' certificates
because of this lack of confidence and because all the tests are
similar in that they all involve the panel. (TR 414-415, 467, 478.)
However, this rationale is discredited because not all the tests
involve the panel (TR 645), and furthermore, Thomas had used the
panel hundreds of times (TR 488, 645) and was very familiar and
comfortable with it. Thus, Weber's thought that Thomas'
certification for CLO-6 should be suspended is reasonable. Kropp's
action in suspending all her certifications is less so, and is best
explained by his hostile attitude.
As a result, Thomas was required to be retrained in all the
tests (TR 419-420), even though she was fully qualified in almost
all of them. (TR 412.) This retraining, like the PC retraining, was
humiliating. (TR 135.)
Furthermore, if Thomas' testimony is believed, and I believe
it, the net effect of this incident is to discourage people from
asking for help if they need it. Thomas had been hoping to complete
her training in LLRT, and to be retransferred to Section XI. By
September 1988, just before this incident, she had been certified in
CLO-3 through 7, with the exception of the door adjustment on
CLO-3. (TR 208.) On the day of the incident she felt ill, asked for
back up in advance, which was denied, and when she had difficulties
she was sent back to square one in her training in LLRT. Her hope
for early transfer back to Section XI was dashed.
FREEDOM TO CONTACT THE NRC
The record contains two memoranda that I do not find were aimed
at Thomas specifically, but which could be interpreted as
discouraging free contact with the NRC.
The first is dated April 11, 1988 and is directed to all
"Engineering Evaluations Department Personnel." (CX 18.) This
memorandum expressly states that all correspondence leaving the
department must have the supervisor's signature, and the Manager and
the Director must receive copies. Obviously, if this directive
includes correspondence to the NRC, it inhibits free contact with
the NRC.
[Page 16]
The second is a three page memo, dated January 18, 1989 to
"Distribution" and is entitled "Setting the Tone." (CX 17.) It
contains the following statements:
The second [enclosure] is a briefing paper I have used
in the past to calibrate personnel on an appropriate
way to interact with outside organizations so that the
results of the outsider's efforts are not unduly biased
by a few vocal individuals venting frustration. It is
unfortunately typical for unsophisticated individuals
to believe that some outsider can do more to resolve
their frustrations that [sic- than] their own
organization can. They are inevitably surprised when
the results turn out to be very different than they had
hoped for and not personally helpful at all!
* * *
Be sure to debrief your supervisor carefully of your
interface activities with an outside group. Be
sensitive to their reactions especially when they seem
to be surprised or question you closely about your
actions or procedural requirements.
Again, it is obvious that if "outside organizations" includes
the NRC, this memorandum discourages personnel from contacting the
NRC freely about perceived problems, and requires personnel to
report contacts with the NRC to a supervisor.
RELIEF
Thomas requests the following relief (TR 30, 725, 745-746):
(1) Promotion to Senior Technician, retroactively with back
pay.
(2) Reassignment to Section XI.
(3) Damages for emotional distress.
(4) That an order issue guaranteeing free access to the NRC.
(5) Modification of her evaluations to eliminate reference to
absenteeism.
[Page 17]
(6) Sealing her 1988 performance review, or having her 1989
performance review include only work she will have done in Section
XI.
Section 201 of the Act provides that the Secretary shall give
the following relief for violations of the section:
"order the person who committed such violation to (i)
take affirmative action to abate the violation, and
(ii) reinstate the complainant to his former position
together with the compensation (including back pay),
terms, conditions, and privileges of his employment,
and the Secretary may order such person to provide
compensatory damages to the complainant." (42 USC
§ 5851(b)(2)(B).]
Requests for relief (1) [Promotion] and (2) [Reassignment] seem
to be contemplated by the statute, inasmuch as I have found both the
transfer to LLRT and the failure to promote to be discrimination
based on Kropp's desire not to have Thomas work in Section XI where
she embarrassed him.
Although the Secretary may order compensatory damages, I find
the evidence insufficient in this case to recommend such an award.
Therefore, request for relief (3) is denied.
Request for relief (4) [order re contact with NSC] is
contemplated by the "affirmative action" clause in the Act.
Requests for relief (5) and (6) [modification of evaluations]
is denied. Thomas' 1988 evaluation (CX 16) contains her explanation
of all negative items, including the reference to absenteeism,
which, together with this recommended decision and order, should
suffice to set the record straight.
Promotion and back pay
I have found that absent her protected activity Thomas would
have been promoted to Senior Technician no later than October 1987.
She should now be promoted retroactively to October 1, 1987.
Thomas calculated that she would have earned $6,500 more by the time
of trial had she been promoted. (TR 111ff, 211ff.) This calculation
was based on the assumption she would have been promoted in May of
1987. The parties should confer immediately and attempt to arrive
[Page 18]
at the appropriate pay level within that job classification and at a
figure for the amount Thomas would have earned had she been
promoted to Senior Technician on October 1, 1987. If they cannot
agree within 15 days, they should separately state their respective
positions on this point to the undersigned or to the Secretary,
whoever shall have jurisdiction, within 20 days.
Reassignment
I have found that Kropp was motivated, at least in part, to
transfer Thomas to LLRT because of Thomas' protected activity.
She can continue to be fully trained in LLRT by temporary
assignments in that section, but she should be reassigned back to
Section XI as a Senior Technician.
Freedom to contact the NRC
CX 17 and CX 18 were the only documents introduced to indicate
that anyone higher than Kropp had discouraged complainant, or anyone
else, from freely contacting the NRC. To remedy this "chilling" the
following should be done:
(1) A memorandum written and distributed to the same
"distribution" as the memorandum of January 18, 1989 (CX 17) from an
official occupying a position at least at the level of W.C. Marsh,
referring to the memorandum of January 18, 1989, and stating:
"Nothing in that memorandum or in the 'Guidelines for
Conduct of Plant Personnel During Visits by Outside
Agencies' that were attached to the memorandum should
be construed to discourage any personnel from freely
discussing their concerns with representatives of the
NRC; nor is there any requirement that a supervisor be
informed of any contact you may have with the NRC or
its representatives."
(2) A memorandum written and distributed to the same
distribution as the memorandum of April 11, 1988 (CX 18) from an
official occupying a position at least at the level of G.W. Sowers,
referring to the memorandum of April 11, 1988 and stating:
"Regardless of anything contained in that memorandum,
all personnel are free to correspond with
representatives of the NRC without knowledge or
approval of anyone in management."
[Page 19]
RECOMMENDED ORDER
1. Respondent is ordered to promote complainant to the
position of Senior Technician, retroactively to October 1, 1987.
The parties are ordered immediately to confer and attempt to arrive
at the appropriate pay level within that job classification and at a
figure for the amount Thomas would have earned had she been promoted
to Senior Technician on October 1, 1987, and to implement such
agreement. If they cannot agree within 15 days, they should
separately state their respective positions on this point to the
administrative law judge or to the Secretary, whoever shall have
jurisdiction, within 20 days.
2. Respondent is ordered to transfer complainant to Section XI
testing.
3. Respondent is ordered to issue memoranda as described in
the recommended decision of the administrative law judge at page 16
under the heading "Freedom to contact the NRC."
Thomas Schneider
Administrative Law
Judge
[ENDNOTES]
1 Complainant's exhibits are designated
CX; respondent's, RX;
Administrative Law Judge's, ALJ. TR refers to the transcript by
page.
2 Section references are to 29 CFR.