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USDOL/OALJ Reporter Office of Administrative Law Judges 800 K Street, N.W. Washington D.C 20001-8002 DATE ISSUED: NOVEMBER 8, 1991 Case No.: 90-ERA-30 In the Matter of
MARVIN B. HOBBY,
v.
GEORGIA POWER COMPANY,
Michael D. Kohn, Esquire
James Joiner, Esquire
Before: JOEL R. WILLIAMS
This case arises under the employee protection provision of [Page 2] Section 210 of the Energy Reorganization Act of 1974 (ERA), 42 U.S.C. § 5851, and the regulations promulgated thereunder, 29 C.F.R. Part 24. The Complainant filed his initial complaint under the Act on or about February 6, 1990. This was supplemented on February 28, 1990. On March 26, 1990, the Acting Regional Director determined that the Complainant had been discriminated against for engaging in activity protected under the ERA and called for his restoration to his former position. The Respondent filed a timely request for a hearing. They also filed a complaint with the Secretary of Labor contending that the March 26, 1990 determination was made without their having been afforded a reasonable opportunity to participate in the investigation. Thereafter, the case was reconsidered by the District Director, Wage and Hour Division, based on additional information furnished by both parties. On May 25, 1990, the District Director amended the prior findings to the effect that the elimination of Complainant's job was not based on his having engaged in any protected activity. The Complainant then filed a timely request for a hearing. Following several continuances, requested and/or agreed to by the parties in order to allow time for protracted pretrial discovery, for resolution of discovery disputes, and for the disposition of various pretrial motions, the hearing was commenced in Decatur, Georgia, on October 23, 1990. It was recessed on October 26, 1990, and resumed and concluded in Washington, D.C. on November 13, 1990. The record was held open thereafter to permit the parties the opportunity to submit post- hearing briefs. Based on the testimony adduced at the hearing and the documentary evidence admitted into the record, I consider what follows to be a fair representation of the pertinent evidence in this case. Upon graduation from high school, the Complainant was given a full scholarship by a Dr. and Mrs. Claude Shingler to Mercer University where he received a Bachelor of Science degree in natural science concentration with a major in physics. Upon graduation, he went to work for Oak Ridge Associated Universities [Page 3] where he received additional training in nuclear physics, radiobiology, and radiochemistry. He first went to work for the Respondent in 1971 as the director of the visitors center at the Edwin J. Hatch nuclear plant in Baxley, Georgia. He was hired by George Head. He was transferred to Atlanta in 1973 or 1974 and became a member of the staff of an ad hoc executive committee which had been established in order to focus on some of the financial problems which the company was then experiencing. He was involved subsequently in assisting Mr. H. Grady Baker in negotiating the sale of approximately 50 percent of the company's interest in its two nuclear power plants to Oglethorpe Power Corporation and others. The Complainant left Georgia Power in 1979 to assist Mrs. Shingler operate an alternative energy company. At the end of that year he heard of an opening at the Institute of Nuclear Power Operations (INPO), an industry group which had been established in Atlanta to assist the nuclear utility industry in achieving excellence in all aspects of the operation of nuclear power plants. He applied for the position of communications manager and was interviewed by Admiral Dennis Wilkinson, a retired naval nuclear expert, who had been selected as president of INPO after a nationwide search. The Complainant was hired by Admiral Wilkinson and eventually became his assistant and secretary of the corporation. In 1984, he was loaned by INPO to a group called the Nuclear Utilities Management and Human Resources Committee (NUMARC), which had been established in order to offer viable solutions to the Nuclear Regulatory Commissioner's (NRC) concerns in lieu of additional regulations. While there he worked with J.H. Miller, the then president of Georgia Power Company and the first chairman of NUMARC. As advised by Admiral Wilkinson, the Complainant had planned at some point in time to leave INPO and get back into the nuclear power industry. He discussed these plans with Mr. Miller, who offered him a position as his assistant at Georgia Power Company. His starting salary upon his return to Georgia Power was $76,000 per year. He was subsequently assigned a company car and included in a bonus program for senior people in the company. In addition to Mr. Miller, the Complainant reported also to Mr. Baker, who was then senior executive vice-president. Georgia Power Company is owned by the Southern Company, an electric utility holding company which also owns Alabama Power [Page 4] and other companies. Both Georgia Power and Alabama Power had separately operated nuclear plants. While working for Mr. Miller, the Complainant suggested to him that the company again look into an earlier, unsuccessful plan to establish an operating company to operate all of the nuclear units. A task force was established to look into such a possibility. The Complainant served on Phase I of the task force. The task force recommended in July 1987 that a nuclear operating company be developed. The recommendation was accepted by the chief executive officers of the Southern system who decided to proceed with Phase II. The Complainant declined to serve on Phase II of the task force. Instead, he rotated jobs with a Tom McHenry, and became manager of nuclear support of Georgia Power about September 1, 1987. The Complainant's performance evaluation for 1987 was executed by Mr. Baker as Mr. Miller had retired in November of that year. Mr. Baker commented at the time that there was "no known limit" to the Complainant's future growth possibilities. In early 1988, Mr. Head, who was then senior vice president of fossil and hydro power, temporarily took on the additional responsibility of nuclear operations. During this time, the Complainant was assigned additional responsibilities which included nuclear security. Mr. Head began to implement a new management philosophy which placed more accountability for operation of the power plants in the plant managers with less corporate oversight. The Complainant supported this philosophy. In April 1988, R.P. McDonald, who was a senior vice president of Alabama Power, was named to the additional position of executive vice president of Georgia Power with responsibility for nuclear operations. The Complainant had known Mr. McDonald since about 1981 and had a favorable working experience with him. Mr. McDonald believed that there should be no corporate oversight of nuclear operations. The implementation of this philosophy resulted in the Complainant's having insufficient work for his security staff, which included John Fuchko and Gary Yunker. He recommended to Mr. McDonald in April or early May 1988 that they either find something else for Mr. Fuchko and Mr. Yunker to do in the company or look at the possibility of outplacement. Mr. McDonald would not allow such actions. On June 1, 1988, due to one of several reorganizations which occurred that year, the Complainant no longer was responsible for supervising Mr. Fuchko [Page 5] or Mr. Yunker. During the same month, Alfred W. Dahlberg became president of Georgia Power. On June 22, 1988, the Southern Company, Alabama Power Company and Georgia Power Company filed an application with the Securities and Exchange Commission (SEC) to form the Southern Nuclear Operating Company (SONOPCO). Oglethorpe Power Corporation filed a Motion to Intervene with the SEC in September 1988. As this caused a delay in the formation of SONOPCO as a corporate entity, it was decided to implement the SONOPCO idea in three phases. The first phase, which was instituted on or about November 1, 1988, was to begin operating SONOPCO as a division. As a result, all nuclear operations personnel were relocated to Birmingham, Alabama. The formation of SONOPCO was headed by Joe Farley, executive vice-president of the Southern Company. During this phase, Georgia Power continued to maintain the license for its two plants. Mr. McDonald retained his position as vice president of both Alabama Power and Georgia Power. Dr. Dahlberg, Mr. McDonald, Mr. Farley, Mr. Head and Mr. Baker testified to the combined effect that during Phase I, which was still in effect at the time of the hearing, Mr. McDonald reported to Mr. Dahlberg regarding operation of the two Georgia Power nuclear plants. Mr. McDonald considered the Complainant to be "a valuable employee for a position in the new organization." (T 617) Upon being approached about transferring, the Complainant determined that he did not want to move to the SONOPCO project in Birmingham. The Complainant discussed with Mr. Baker the idea of establishing an interface group between Georgia Power and SONOPCO. Mr. Baker testified in this regard:
[Page 6]
(T-686) The Complainant also discussed his idea with Mr. Head and prepared an outline as to how the group would be organized. Mr. Baker and Mr. Head discussed formation of the group with Mr. Dahlberg. At that point in time, Mr. Dahlberg believed that the SEC approval and incorporation of SONOPCO should take only a matter of months and when this occurred there would be a contract to administer between Georgia Power and SONOPCO. He anticipated also that Georgia Power "would need somebody to be involved in gathering information about the performance of the units, about budget, about safety facts." (T-330) On December 27, 1988, Mr. Dahlberg issued to the executive and management staff the following memorandum, which had been prepared by the Complainant:
[Page 7]
(CX-8; RX-2) Fuchko and Yunker filed a complaint under Section 210 of the ERA which was scheduled to be heard commencing January 3, 1989. A meeting was held on January 2, 1990, between members of the firm representing the Respondent in that matter, Troutman, Sanders, Lockerman & Ashmore (TSL&A), and the company employees who were anticipated witnesses on its behalf. The Complainant attended the meeting as did Mr. McDonald. The meeting was conducted by Jesse P. Schaudies, Jr. and Donald W. Janney, partners in TSL&A, assisted by Mark Bose and Chris Miller, associates with the firm. The entire group of 20 to 30 people initially met together in the Respondent's corporation board room. They then broke into two groups with one remaining with Messrs. Schaudies and Miller in the board room and the other meeting with Messrs. Janney and Bose in a room on the next floor. Mr. McDonald was in Mr. Schaudies group and the Complainant was in Mr. Janney's group. At the initial session each potential witness was handed an individual compartmentalized list of areas about which they were expected to testify. The Complainant testified on direct examination in this regard as follows:
[Page 8]
(T 92-93) Mr. Schaudies had the following recollection of the incident:
[Page 9]
[Page 10]
Mr. McDonald testified in substance that although he remembered attending the January 2, 1989 meeting, he did not recall any discussion about any inconsistency between his testimony and Mr. Hobby's testimony. (T-614). Mr. Janney stated that he was out of the room part of the time during the general session and that he did not remember the Complainant speaking up during the session. The Complainant stated further that during the initial, general session, Mr. McDonald outlined his proposed testimony as to how the SONOPCO project was staffed. The Complainant was concerned because he believed "that the information that Mr. McDonald was giving as far as how people were selected, I believed that to be false." (T.-95). No discussion of Mr. McDonald's proposed testimony on this point was held during the general meeting. When asked on direct examination what happened in the smaller meeting, the Complainant responded:
[Page 11]
And when asked for his opinion as to the identity of that attorney, the Complainant replied:
(T-97) Mr. Schaudies testified that he had no conversation with the Complainant following the general meeting. Mr. Janney testified that in the discussions he had with the Complainant subsequent to the general meeting, there was no indication that his testimony was going to be inconsistent with Mr. [Page 12] McDonald's in regard to their Fuchko/Yunker conversations. He testified further that the Complainant never stated to him Mr. McDonald's description of the manner in which the SONOPCO project was staffed was inaccurate or incorrect. Mr. Janney replied in the negative when asked:
(T-771-772) The Complainant went on to testify that as he was concerned about possibly being put in the position on the stand of contradicting Mr. McDonald and as he kenw that Mr. McHenry, who was scheduled to be a witness but did not attend the January 2 meeting, could be placed in the same position, he decided to call Mr. McHenry to alert him of this possibility and for "a sanity check ... to check my facts." The Complainant stated that during the course of this conversation, which occurred on January 3, he related to Mr. McHenry his conversation wherein "the attorney had suggested to me, or had told me that he would listen to Mr. McDonald's testimony on the stand, he would get back to me so that I could change my testimony accordingly." (T-101). Mr. McHenry recalled having a conversation with the Complainant on January 3, 1989 wherein they discussed their meetings with Mr. McDonald concerning Mr. Yunker and Mr. Fuchko and the staffing procedure for the SONOPCO project. Mr. McHenry was not examined at the hearing regarding whether the Claimant had related any conversation with an attorney about changing testimony. In an affidavit concerning the January 3, 1989 conversation, prepared during a meeting with the Complainant on or about July 16, 1990 (T-294) and submitted into evidence at the November 13, 1990 session, Mr. McHenry stated, in part:
[Page 13]
On cross-examination the Complainant admitted that he had no direct evidence that the inconsistences of testimony that he had raised had ever been communicated to Mr. McDonald by the attorneys involved but that he believed that they did based on his experience with the law firm. He acknowledged further that neither Mr. McDonald nor any other company official had said anything to him about the issue of inconsistent testimony. (T-230-232). The Complainant was never called to testify at the Fuchko/Yunker hearing as the matter was settled after the Respondent's had put on two or three witnesses, including Mr. McDonald. (T-762) The Complainant testified also that he next saw Mr. McDonald early in the morning of January 3, 1989 when he was asked to come to his office. He described what transpired at the meeting as follows:
[Page 14]
Mr. McDonald had no recollection of any such conversation. (T-618). On January 6, 1989, T.G. Boren, a Georgia Power senior vice-president, addressed a memorandum to the Complainant in which he proposed transferring responsibility for nine miscellaneous nuclear activities, including "Nuclear Performance Indicators" to his newly created organization (CX 11; RX 5). The Complainant testified and his phone log (CX 12) indicates that he discussed the memo with Mr. McDonald on January 19 and that he disapproved of it totally. He continued in this regard that Mr. Boren subsequently talked to Mr. McDonald about the memo and repeated that Mr. McDonald expressed great concern over assigning him those responsibilities. Mr. Boren testified that Mr. McDonald never asked that the Complainant be relieved of these responsibilites (T-479). On or about January 27, 1989, Mr. Head decided that the Complainant's new position should be rated at level 20, a two step increase over his previous position. His salary was increased accordingly from $95,000 to $103,104 per year, with a bonus of about 20%. (CX 14). The Complainant testified in detail concerning problems he experienced in March and April 1989 obtaining cooperation from SONOPCO in general and Mr. McDonald in particular. His testimony in this regard is, in effect, summarized in the following confidential memorandum, dated April 27, 1989, addressed to Mr. Fred Williams, a Georgia Power Vice-President, and signed by the Complainant and Mr. George Head: Following is a list of problem areas in Nuclear Operations that you requested. [Page 15]
[Page 16]
[Page 17]
[Page 18]
[Page 19]
[Page 20]
[Page 21]
In regard to the Complainant's not being able to interview Mike Barker, testimony was elicited from Lee Glen, Georgia Power's Manager/Corporate Concerns, and William R. Evans, a Georgia Power Corporate Concerns Coordinator, which was to the combined effect that a complaint had been filed with their department because of the inability to transfer from a SONOPCO position by an employee, other than Mike Barker. (T-509-540) Following an investigation which included an interview with the Complainant about the similar problem he was having, a "white paper" was prepared by Mr. Evans, with the following "Investigation Results":
(CX 20) Mr. Barker was called as a witness and testified that after he became "frustrated" at not having been granted an interview for the NOCA position, he, telephoned Mr. Dahlberg on June 28, 1989, during one of his "Dial Dahlberg" sessions. This was a program where anyone in the company could call Mr. Dahlberg during a specific period and voice any concerns they may have. After Mr. Barker related the difficulty he was experiencing in [Page 22] attempting to transfer to NOCA, he was told by Mr. Dahlberg that "he had put that job on hold." Mr. Dahlberg reportedly stated that his reason for doing so was that if the SONOPCO Project works as they envision it, there would be no need for NOCA and he did not want to transfer Mr. Barker when there might not be a position for him in a couple of months. (T-908-911) In regard to the reporting issue, the record also includes the following memorandum, submitted into evidence by the Respondent, from the Complainant to Mr. Williams under the date of April 26, 1989:
(RX-1) Dan Howard Smith, Program Director of Power Production of Oglethorpe Power Corporation, testified that a question arose in his mind as to whether Georgia Power was really in charge of the nuclear plants. This had to do with Mr. McDonald's and other executives, being "triple headed." He explained this as follows:
[Page 23]
(T-850-851) When asked whether anyone at NRC had ever raised such concern with him, Mr. Smith responded:
(T-853) There was no discussion with Mr. Rogge on the subject. Mr. Smith related the conversation to the Complainant and had raised the reporting issue with him at other times. The Complainant was non-committal. As for his reasons for preparing the April 27, 1989 memo the Complainant testified:
[Page 24]
(T-147-148) The Complainant stated that he took the memo to Mr. Head, who "felt very strongly about the issues" contained therein and stated that he would sign the memo. (T-149). Mr. Head testified that the Complainant had raised the issue on several occasions of lack of cooperation by SONOPCO. He was shown the memorandum early in the morning of April 27, 1989, which was the day prior to his retirement from the company, and he signed it because he "thought it would help Marvin in resolving some of these issues." (T-674). He did not consider that the memorandum raised a regulatory concern because he "was very well aware that [Mr. McDonald] reported to the president of the company." (T-648). The Complainant went on to testify that he hand delivered the memo to Mr. Williams after Mr. Head had signed it. Mr. Williams reportedly took the memo, read it, turned to him, and said he should destroy all copies of it as they could not have the memo in their files. The Complainant responded to Mr. Williams that he "was raising a regulatory concern and he should not tell me to destroy all copies." He continued that he and Mr. Williams talked for a few minutes about the organizational set-up [Page 25] and Mr. William's understanding that the NRC had been briefed on the SONOPCO concept and would be shown the organizational chart if anybody at NRC raised a concern. They discussed also Mr. Williams' views as to why Mr. Dahlberg "didn't just pick up the phone and tell Mr. McDonald what to do." (T-153). The Complainant stated that Mr. Williams then handed me back the original, but kept a copy. He told me that he was going to Birmingham the next day and he was going to discuss some of the problems with the people at SONOPCO, but he assured me that he was not going to give them a copy of the memo that he kept, and he said he would not retain that copy in his files. (T-152). The Complainant testified that he reported his conversation with Mr. Williams to Mr. Head, who told him to destroy copies of the memo but retain the original. Mr. Head did not recall such a conversation. Mr. Williams testified that he did not ask the Complainant to prepare the April 27 memo for use by Mr. Dahlberg in a meeting he was to have with Mr. Farley. What he did request was a memorandum concerning the relationship between Georgia Power and SONOPCO such as who contacted who and which departments interfaced. This was for his use as the primary negotiator with Oglethorpe Power. After quickly reading the memo on April 27, he determined that it was not responsive to what he had asked Complainant to do and that it contained inaccuracies. He continued:
(T-416) Mr. Williams recalled retaining a copy of the memo in order to read it in more detail. He believed that he showed the copy [Page 26] to his assistant, "because a lot of the areas were more as I saw personal concerns of Mr. Hobby, or frustrations or gripes that he wasn't included on some memos and all, or invited to some meetings or wasn't informed or had communications go through him to co-owners." (T-418). He had a routine meeting with Mr. Dahlberg a day or two later to apprise him of what was going on in the negotiations. He did not recall whether he showed a copy of the memo or just talked to him about some concerns the Complainant was raising. He informed Mr. Dahlberg that he thought we could work those things out through negotiations and through the structuring of the company. He did not think "Mr. Dahlberg was concerned with that." (T-418). Mr. Williams returned the copy of the memo to the Complainant within a day or two. (T-455) Mr. Dahlberg testified that he first saw the April 27, 1989 memo when he gave his deposition in regard to the instant matter (T-314). The Complainant testified that he had further conversations with Mr. Williams about the memo on April 28 when he called Mr. Williams at home to find out how his meeting went in Birmingham that day. Mr. Williams reportedly stated that he had apprised Mr. Bob Edwards of the law firm about the memo, that he was going to rewrite the memo, and that the Complainant was to destroy the original. The Complainant's telephone log for that day pertaining to a 1550 call to Mr. Williams includes the notations:
Mr. Williams did not specifically recall discussing the April 27 memo with Mr. Edwards although he may have mentioned to him that the Complainant had written him "something." (T--470). Mr. Edwards testified that Mr. Williams mentioned the memo to him on a trip either to or from Birmingham. He related their discussion as follows:
[Page 27]
(T-780) Mr. Edwards continued that he did not see the memo until his deposition was taken in the instant matter. He did not tell Mr. Williams that he was concerned about the memo or to have it destroyed. Mr. Williams testified further that he did not consider the Complainant's concerns relating to the reporting structure to be a significant regulatory concern or potential license violation regarding Georgia Power's nuclear plants as he was of the opinion that Mr. McDonald received his management direction regarding the Hatch and Vogtle plants from Mr. Dahlberg. Mr. Farley was questioned about a May 5, 1989 meeting he had with Mr. Dahlberg. It was a luncheon meeting held while the witness was in Atlanta for another purpose. The major part of their discussion centered on the progress of the negotiations with the co-owners about the SEC approval process. They also discussed a proposal for adding one or more job authorizations for the NOCA group. Mr. Farley stated that he expressed the following opinion as that time:
[Page 28]
That was in general the opinion that I expressed. (T-570-571) Mr. Farley testified further that he was not shown the April 27 memo at the meeting and was not aware of the same or the Complainant's concern, about to whom Mr. McDonald reported, until the commencement of the instant proceeding. Mr. Dahlberg recalled a luncheon meeting with Mr. Farley on or about May 5. The principal discussion concerned the status of the negotiations with Oglethorpe. Neither the Complainant's April 27 memo nor his concern, as to whom Mr. McDonald reported, was discussed. Although he was not certain it was during this meeting, Mr. Dahlberg did recall briefly discussing NOPC with Mr. Farley on one occasion. Mr. Farley expressed the opinion at that time that the group was "a duplication of effort." (T-320) Mr. Barker testified that Mr. Williams had mentioned the April 27 memorandum to him sometime later but he was unable to show him a copy and the only time he ever saw the memorandum was after the commencement of these proceedings (T-682-683). He testified further that the Complainant had told him a number of times that he couldn't get cooperation from SONOPCO. Mr. Barker's view of such complaints was that its the Complainant's "job was to establish a relationship with SONOPCO." (T-700) On May 15, 1989 Mr. Williams sent the following memorandum to the Complainant:
[Page 29]
(RX 14) Mr. Williams testified that he prepared the memo so that this information could be relayed to Mr. Smith. The Complainant stated that he delivered the same with the accompanying organizational chart at a May subcommittee meeting to Mr. Smith's representative, David Self, who did not consider it to be an adequate response. Mr. Smith testified that he accepted the response in resolution of the question he had raised and he did not bring up the issue again. (T-886-887) When asked whether he sought advice from anyone after he was told to destroy the April 27 memo, the Complainant responded:
[Page 30]
The 6 + page letter of June 8, 1989 to Admiral Wilkinson is of record (CX 22). After generally praising Mr. Miller's and Mr. Head's performance when they were president and a vice-president of Georgia Power, critizing the performance of Messrs. Barker, McDonald and Dahlberg, noting they were "in a heavily political arena here," and relating the problems he was experiencing in managing his department, the Complainant concludes the letter:
A copy of the April 27 memo was enclosed with the letter. Admiral Wilkinson testified that during their subsequent telephone conversation, the Complainant expressed concern as to whether he had a legal obligation to report what he considered to be a licensing violation to the NRC. In response to the question as to whether he had given the Complainant advice in this regard, Admiral Wilkinson testified: [Page 31]
Testimony was adduced regarding the development of alternate "performance standards" for the operation of Georgia Power Company's nuclear power plants. This activity was related to a matter pending before the Georgia Public Service Commission and the belief that the commission was prepared to impose such standards on Georgia Power. Dwight H. Evans, an Executive Vice- President of Georgia Power, testified:
(T-366) Mr. Evans continued that he and Mr. McDonald met with Mr. Dahlberg and attorney Joiner. After they both stated their [Page 32] cases, Mr. Dahlberg concluded that they should submit testimony and instructed Mr. McDonald to do so. Mr. McDonald carried out these wishes and the testimony was submitted. (T-367) Mr. McDonald testified to the same effect (T-607-608) as did Mr. Dahlberg (T-337-338). The Complainant testified that he had been told by Dwight Evans that the conversation at the meeting got quite heated and Mr. Dahlberg "really chewed McDonald out." (T-168). The Complainant and Dan Howard Smith testified to the combined effect that from August to November 1989 they met two to three times per week, with the respective permission of Grady Baker and Tom Kilgore, Vice-President of Oglethorpe Power, for the purpose of attempting to work-out a Nuclear Managing Board agreement. They were instructed to do so confidentially so that no one at SONOPCO was aware of their activities in this regard. They concluded a draft agreement which was subsequently presented by Oglethorpe to Georgia Power. Mr. Boren testified concerning a Management Counsel meeting on November 7, 1989 attended by Mr. Dahlberg, himself, the other three senior vice presidents, and three of the four executive vice-presidents. Mr. McDonald was not included. When asked to explain the purpose of this meeting, Mr. Boren responded:
(T-483) [Page 33] And when asked what the Complainant's performance and potential evaluations were, he answered:
(T-483-484) Messrs. Dahlberg's and Evan's recollections of this meeting were also to the effect that the Complainant was rated as having no potential with the company. The Complainant testified that Mr. Smith called him on November 15, 1989 and requested that they meet for breakfast the next morning. He continued:
[Page 34]
(T-185) When asked how he reacted to this news, the Complainant replied that he was "very surprised, very shocked." (T-18.51) Mr. Smith testified that he relayed this information to the Complainant mainly because his boss, Tom Kilgore, asked him to let the Complainant know that he thought the Complainant would be terminated following work on the Managing Board agreement. (T-861) Mr. Williams testified that he had not told Mr. Kilgore that he was going to eliminate the Complainant's position. He did express to him during a negotiating session that he did not believe there was a need for expertise in the nuclear operating area on staff at Georgia Power Company. He testified further that since about the Spring of 1989 he had been giving some thought as to the need for the NOCA group and how it would fit in with the new relationship that they were negotiating. At that time he was "still very open-minded because we were still in the very early stages of negotiations at that point as to what we would need..." (T-408) He had conversations with Mr. Baker before his retirement about the need for the organization. He had also talked to the Complainant about the necessity for the group and invited his views as to what its function should be. Mr. Williams reached the conclusion after talking to the Complainant and his people, accounting staffs and SONOPCO people other than Mr. Farley and Mr. McDonald, that there was no need for a separate organization. In early November and in December, he informed Mr. Evans that "he did not see the need for a high level manager nor did he see the need for a separate organization to exist to administer a contract if we ever got a contract." Mr. Dwight Evans testified that he was an employee of Southern Company Services when NOCA group was formed. After joining Georgia Power as a vice-president, he developed the following opinion about the necessity for NOCA: [Page 35]
(T-369) When asked whether he had ever discussed this opinion with Mr. Williams, Mr. Evans replied:
(T-369) Mr. Boren testified that the decision to eliminate the position of general manager of NOCA was discussed with him by Messrs. Williams and Evans. He stated the following reasons for eliminating the position:
[Page 36]
The Claimant went on to testify that in late November, Mr. Williams called him to his office to inquire about the status of the negotiations with Mr. Smith. The following conversation occurred at that time:
[Page 37]
(T-189-190) Mr. Williams testified that he initially inquired as to whether the Complainant would be interested in a job at SONOPCO or another position with Georgia Power Company within one or two levels. It was after the Complainant rejected both of these options that Mr. Williams inquired whether he would be interested in some kind of outplacement. Testimony of the Complainant and Mr. Williams is to the combined effect that they began discussing an outplacement package at lunch in December 1989. Mr. Williams indicated at the beginning of these discussions that there might need to be a non-compete agreement for perhaps 3 to 5 years. The Complainant had desires to attend medical school. He would need to take some additional undergraduate courses in order to meet medical school requirements. He proposed at first that he should be given two years pay with bonus in a lump sum, six years, full salary, his company car and his computer. He later reduced his proposal to one year salary in lump sum and two-thirds of his pay for six years. Dwight Evans testified that he provided information at a Management Council meeting in late December 1989 that he felt the need to eliminate three positions from his organization, two vice-presidents, and the Complainant's. Mr. Dahlberg testified that he believed that the recommendation to eliminate the position of general manager of NOCA come from Mr. Evans or Mr. Williams. When asked whether he knew the reasons for the decision, he responded:
[Page 38]
Mr. Boren testified that Georgia Power had gone through some major restructuring during the last few years which had resulted in a 10 percent reduction in its staff. He stated the following reasons for this restructuring:
(T-488) It was Mr. Boren's understanding that that Mr. Williams was responsible for eliminating the position of general manager of NOCA for the reason that there was no contract to administer and the other miscellaneous requirements for the job were "kind of being handled through the other normal functions of the company. (T-486) He stated that the focus of the December 29, 1989 Management Council meeting was to address a division reorganization although the Complainant's position "was on the list" and briefly discussed by Mr. Evans. Supervision of the Complainant and his group was officially transferred to Mr. Williams as of January 1, 1990. Thereafter, [Page 39] Mr. Williams informed the Complainant that his proposal for an outplacement package was unacceptable. The Company was prepared to offer at that point one week's pay for every year he had worked for the company (14) plus 25 percent of his salary, approximately $25,000, for the next four years. There was a five year no compete clause attached to this offer. The Complainant was "very surprised" at the offer and decided seek advice concerning the same from Messrs. Miller, Head and Wilkinson. Subsequently, he met with Mr. Boren and Mr. Williams. At that time he was offered the opportunity to stay with the company until August 31 and then be paid one week's pay for every year worked and twenty-five percent of his salary and bonus for the next four years. His company insurance would be paid for him during this period of time. There would be no non- compete provision. The Complainant testified that Messrs. Boren and Williams would not commit themselves as to whether he would be required to do any work through the period ending August 31. Mr. Williams stated that he told the Complainant that they would work it out so that he would have time to attend classes for the pre-med school courses he needed. The Complainant testified that the meeting concluded as follows:
[Page 40]
(T-205) Mr. Williams testified that neither the April 27 memo nor any of the subjects discussed therein was a factor in his decision to eliminate the Complainant's position and "[I]n fact, until he raised the issue here with the Department of Labor I had completely forgotten the memo was ever written." (T-417). The Complainant contacted an attorney on January 18, 1990. Thereafter, he, in effect, rejected the latest offered outplacement package. By letter dated February 2, 1990, Mr. Williams informed the Complainant:
The letter goes on to say that the Complainant would not be required to perform any services after April 2, 1990 and would receive benefits consisting of four weeks, pay plus one week's pay for each year of service and insurance coverage for six months. He was requested to respond by March 16, 1990 by signing an agreement containing a release and settlement relating to the elimination of his position (RX-4; CX 30). The initial complaint, filed with the Department of Labor under the date of February 6, 1990, centered on the April 27, 1989, "confidential" memo as the Complainant's alleged protected activity but noted that he had "engaged in other forms of internal and external whistleblowing activity as well." The amended complaint, filed on February 23, 1990, alleges the following: [Page 41]
The Complainant testified that his office had been a Level 20 office of 280 square feet in size while the new office was a poorly furnished Level 12 of 120 square feet. Mr. Williams offered the following explanation for the complained of actions:
[Page 42]
[Page 43]
Mr. Williams admitted on cross-examination that he subsequently ascertained that the Complainant had the authority and responsibility to shred certain nuclear documents. Mr. Boren testified that he had the following role in the decision to change the Complainant's parking privileges and to have him turn in his identification badge:
[Page 44]
(T-496-497) In regard to the final performance evaluation, the Complainant testified, in substance, that although Mr. Williams had approved his rating one of his subordinates a "5" in accomplishing an assigned task, he was only rated as a "3" for the same. He stated further that as Mr. Williams was not his supervisor during 1989, he should have relied most heavily on input from his prior supervisor, Mr. Adams. He went on to testify that Mr. Williams had informed him that he had talked to Mr. Adams, Mr. Baker and Mr. Boren before making the performance evaluation. (T-215) The Complainant was advised on February 23 that it would not be necessary for him to report to work anymore. Based on the foregoing evidence, I reach the following factual findings for the reasons stated: The Complainant had experience in the nuclear energy area. Upon the establishment of SONOPCO, Mr. McDonald, believing that the Complainant would be valuable to the project, was desirous of having him transfer to SONOPCO. Whether it was because he had already formed his opinion of Mr. McDonald as expressed in his June 1989 letter to Admiral Wilkinson, or whether it was because he did not want to relocate, he declined to transfer. Instead, he designed a job for himself which he could perform at the Atlanta headquarters of Georgia Power, i.e. manager of a nuclear operations contract administration group. He then sold the idea to Mr. Head, whom he respected and with whom he apparently had a [Page 45] good relationship. Mr. Barker reluctantly went along with the idea because he did not have anything else for the Complainant to do. Mr. Dahlberg's approval was based, in part, on his belief that incorporation of SONOPCO would occur within a matter of months. The meeting in preparation for the Fuchko and Yunker trial occurred six days after the memo establishing NOCA was issued. I find the Complainant's testimony, in regard to his having been told by anybody involved in the proceeding that he would have to change any testimony that he would give in that matter to conform to that of Mr. McDonald, to be totally unbelievable. I fail to see where Respondent's attorneys would even consider having the Complainant testify about the SONOPCO selection process as he was not involved in the same and any testimony he would have given relating thereto would have been nothing more than hearsay. The Complainant is unable to identify the attorney who purportedly approached him with such an incredible request. The two partner attorneys, who conducted the two sessions which the Complainant attended, have denied making such a statement and I consider them to be credible witnesses. There were two other associate attorneys present at the meeting, but the Complainant made no attempt to subpoena them to the hearing. Although he allegedly relayed the purported conversation to Mr. McHenry the next day, Mr. McHenry was not examined at the hearing in regard thereto and I decline to credit his affidavit, prepared with the Complainant's assistance 1 1/2 years after the purported event. I find nothing in this record which establishes that anything the Complainant said at the January 2, 1989 meeting upset Mr. McDonald to the end that he retaliated against the Complainant by making it difficult for him to perform his job or otherwise have an effect on its being eliminated. The Complainant can only speculate that Mr. McDonald was ever told that he had raised the issue of inconsistent testimony. Indeed, if Mr. McDonald was angered at anything the Complainant said at the meeting it would seem that he would have expresses his displeasure when they met the next morning. Instead, their meeting apparently began amicably when Mr. McDonald requested the Complainant to do some task for him. Whatever anger Mr. McDonald did express at their meeting developed after he was shown the memo establishing NOCA. Considering that Mr. McDonald had not been consulted about the establishment of NOCA, and considering his philosophy that there was no need for nuclear oversight at [Page 46] Georgia Power headquarters, any dissatisfaction he expressed at the time is quite understandable. There is nothing in the record that establishes that any of the Respondent's other executives were privy to anything regarding the Complainant that transpired at the January 2, 1989 meeting. Significantly, although his new position was established shortly before this meeting, the decision to set his salary two grades higher was not made until afterwards. Such action would not be compatible with a management which was displeased with the Complainant's conduct at the January 2 meeting. The problems, which the Complainant was experiencing regarding obtaining cooperation from SONOPCO and adding Mr. Barker to his staff, commenced prior to his issuing his April 27, 1989 memo. Therefore, assuming arguendo, that these involved any retaliatory action, the would have to relate to the only incident of protected activity he has alleged to have occurred prior to that time, i.e., his participation in the January 2 meeting. For reasons already stated, nothing that the Complainant did or said at that meeting led to any retaliatory action. Any interference which Mr. McDonald may have caused in the Complainant's obtaining cooperation from SONOPCO and in Mr. Barker's transfer was not an outgrowth of that meeting. Rather, it was in keeping with his management philosophy of no need for nuclear expertise at Georgia Power's Atlanta headquarters. This is clearly borne out by the testimony adduced by the Complainant relating to the corporate concern that others had raised over their inability also to transfer SONOPCO employees to Georgia Power headquarters. Furthermore, the ultimate decision not to permit Mr. Barker's transfer to the Complainant's staff was based on management's uncertainty as to the future need for NOCA and its hesitation to overstaff this department. I turn now to the April 27, 1989, memorandum. If this document stood alone, I would have no hesitation in finding that it expressed no regulatory complaint by the Complainant. Rather, he merely relayed therein a concern that had been expressed to him by Mr. Smith. The Complainant expresses no opinion in the memo as to whether the concern is justified or indicates otherwise that he had adopted Oglethorpe's concern as his own. I have quoted the April 27 memo in toto because I believe [Page 47] that it amply demonstrates why Mr. Williams was unhappy with the document. His objection to having the memorandum go forward, or even being preserved, was based on its obvious complaining style. Significantly, the memorandum which the Complainant wrote to Mr. Williams the previous day, which raised essentially the same reporting question, was retained in the Respondent's files. it appears to me that if Mr. Williams did not want any record of the reporting question in the company's files, he would have destroyed this memo. I believe Mr. Williams when he says that he was just trying to help the Complainant to be a better manager. I recognize that in addition to the memorandum, the Complainant did mention a concern, as to Mr. McDonald's receiving his management direction from Mr. Farley instead of Mr. McDonald, to Mr. Evans and perhaps others. Mr. Evans did acknowledge the Complainant's having mentioned such concern "in passing." Depending on the tone of such conversation, Mr. Evans could have. taken the concern as the Complainant's personal one. Nevertheless, the time frame for the oral complaints is not established in the record. Mr. Smith laid the matter to rest in May 1989 upon receipt of the organizational chart and Mr. Williams' memo. Although the Complainant continued to be concerned about the reporting relationship in June 1989, when he corresponded with Admiral Wilkinson, there is no evidence of record to establish that he continued to raise the subject with anyone beyond that time. Perhaps he had become as convinced as I am that Mr. McDonald did, in fact, take his management direction from Mr. Dahlberg in regard to the two nuclear plants owned, in part, by Georgia Power. Certainly, any doubts in his mind concerning the same should have been dispelled by the August 1989 meeting in reference to the Public Service Commission case. The evidence referable to what transpired at this meeting clearly established that Mr. Dahlberg exercised control over Mr. McDonald regarding Georgia Power's nuclear operations. It was not until some six months after the April 27 memo that the Management Council determined that the Complainant had no potential with the Respondent. The witnesses who participated at this meeting have denied knowing of the memo at that time and have denied that anything stated therein influenced their evaluation. I have no reason to doubt their testimony in this regard. That their evaluation of the Complainant's abilities may have differed from earlier performance evaluations comes as no great surprise. Mr. Miller and Mr. Head, for, whom he had [Page 48] earlier worked, had retired from the company. The Complainant did not hold Mr. Miller's successor, Mr. Dahlberg, in high regard and the feeling may well have been mutual. Furthermore, the evaluation was based on his performance in a different position. Mr. Baker was concerned that the Complainant had not fulfilled his responsibility in this job of gaining cooperation from SONOPCO. Neither Mr. McDonald, who is the only company executive to have been identified as having attended the January 2, 1989 meeting, nor Mr. Williams, who is the only executive to have acknowledged seeing the April 27, 1989 memo, participated in this management council meeting. The decision to terminate the position of manager of NOCA, which Messrs. Evans and Williams had considered for some time, was finalized in the November/December 1989 time frame. The exact date is unimportant. The Complainant knew that the decision had been made or was in the making when he met with Mr. Williams in late November. This should not have come to any "great surprise" to him in light of the predictions he had made to Admiral Wilkinson in his June letter. Considering (1) that Mr. Head, who had sponsored the formation of NOCA, had retired; (2) that Mr. Baker, was not totally convinced as to the necessity for NOCA from its origination but went along with it in order to give the Complainant something to do; (3) Mr. Farley expressed an opinion to Mr. Dahlberg in May 1989 that NOCA was a needless expense and at odds with the purpose for which SONOPCO was formed (4) that the following month, Mr. Dahlberg expressed doubts to Mr. Barker as to the continued need for NOCA; (5) that Dwight Evans, who had not been involved in the decision to form the NOCA group, felt that they did not need a high-level position to interface with SONOPCO but should interface with them at multiple points in a manner similar to what is done in other areas; (6) that after several months of considering the matter, Mr. Williams, who also had no input into NOCA's formation, decided that there was no need for a high level manager or separate organization to administer a contract if it ever came to fruition; (7) that the incorporation of SONOPCO had been delayed beyond expectations; and (8) that there was a general reorganization of the company at the time with other executive and/or managerial positions being eliminated as cost-saving measures, I find that the decision to eliminate the position of manager of NOCA was in no way related to the Complainant's participation in the January 2, 1989 meeting or the concern raised in his April 27, 1989 memorandum as to from whom Mr. [Page 49] McDonald receives his management direction for operation of the Georgia Power nuclear plants. I find that, instead, the decision to eliminate the position was fully justified as a measure to operate the Respondent's nuclear program more economically and efficiently. I find further that the change of the Complainant's office, the revocation of his executive parking privileges and badge and his restriction to certain floors of the headquarters building was not in retaliation for his having filed the instant complaint but was a justified security measure. As his position had been officially terminated and as he had rejected the possibility of a transfer to another position at SONOPCO or Georgia Power's headquarters, his ultimate departure from the company was a forgone conclusion at the time. He had been notified by Mr. Williams on February 2, 1989, four days before his complaint was filed, that his office would be moved. He had been transferred to Mr. Williams' supervision and his new office was on the same floor as his new supervisor. He had been observed with unidentified and apparently unauthorized persons in the executive parking area. That Mr. Williams' concern over the Complainant's shredding of documents may have later been proven to him to be unjustified does not mean that it was not a genuine concern when he first learned of the same. The February 6, 1989 initial complaint indicated that the Complainant had a copy of the April 27 "confidential" memo in his possession which demonstrates to me that concern over his possibly compromising other confidential company documents was well founded. As a preliminary matter, I note that the Respondent raised an issue as to the timeliness of the filing of the complaint in this case for the first time in its post-hearing brief. Pursuant to 29 C.F.R. § 18.1, in the absence of any contrary provisions in the ERA, its implementing regulations and the Rules of Practice and Procedure for Administrative Hearings Before the Office of Administrative Law Judges, the Federal Rules of Civil Procedure are applicable to the instant proceedings. Cf. Cooper v. Bechtel Power Corporation, 88-ERA-2, (Decision and Order of the Secretary, October 3, 1989). Rule 8(c) provides that statutes of limitations are affirmative defenses. Failure to assert such a defense in a Respondent's pleadings is considered a waiver of the same. Paety v. U.S., 795 F.2d, 1533, 1536 (11th Cir., 1986). [Page 50] The defense must be asserted at the earliest possible moment. Davis v. Bregan, 810 F.2d 42 (2nd Cir., 1987). Consequently, irrespective of whether the Respondent's contentions regarding timeliness of the claim have merit, I conclude that they are too late in raising the issue. I note also that Respondents, citing Brown & Root, Inc. v. Donovan, 747 F.2d 1029 (5th Cir. 1984), contend that as this matter involves strictly an internal complaint, it does not come within the purview of the ERA. While Respondent acknowledges that there have been holdings contrary to Brown & Root, in other circuits, i.e., the Tenth Circuit in Wells v. Kansas, Gas & Electric Co., 780 F.2d 1505 (1985) cert. denied 106 S. Ct. 3311 (1986) and the Ninth Circuit in Mackowiak v. University Nuclear Systems, 735 F.2d 1159 (1984), it argues that the fact; in these two cases are distinguishable as the facts in the instant case do not involve quality or safety problems. However, as noted by the Complainant, in Willy v. The Coastal Corporation and Coastal States Management Corporation, 85-CAA-1 (Decision and Order of the Secretary of Labor, June 4, 1987), a case arising in the Fifth Circuit, the Secretary stated:
The Secretary went on to respectfully note that as the Supreme Court had denied a writ of certiorai in Kansas Gas & Electric the Fifth Circuit should be given the opportunity to consider the issue in light of the Tenth Circuits more recent decision. I interpret the Secretary's holding as being broad enough to encompass internal reporting of any violation of the ERA and consider myself to be bound by the same. In any event, I consider the two foregoing issues to be [Page 51] mooted by the findings I have made and the conclusions I am prepared to reach on other issues.
The applicable burdens and order of presentation of proof in cases arising under Section 210(a) of the ERA were set forth by the Secretary in Darfey v. Zack Company, 80-ERA-2 (April 25, 1983) as follows:
[Page 52]
[Page 53]
Citing Couty v. Dole, 886 F-2d 147, 148 (8th Cir. 1989) Complainant contends that "'as a matter of law' 'temporal proximity, between an employee's engaging in protected activity and a change in management attitude toward the employee is alone sufficient to establish a discriminatory motive." (Emphasis the Complainant's). However, I find nothing in the Court's opinion in Couty which stands for the proposition that a "change in management attitude" sufficient to establish discriminatory motive either standing alone or otherwise. I am aware, however, that in Shaw v. Mast Advertising and Pub. Inc., 715 F.Supp. 1503 (D. Kan 1989) the Court held that evidence of the employee's having been treated differently subsequent to filing a discrimination complaint was one factor to be considered with other evidence in determining whether her discharge was in retaliation. What the Court did say in Couty was that:
[Page 54]
Thus, what the Court held to be a "temporal proximity" as a
"matter of law", was a period of "roughly thirty days." Other
cases cited by the Claimant as showing that "[a]dverse action
closely following protected activity is itself evidence of an
illicit motive" likewise rely on a relatively short interim
between the protected activity and adverse action. In
Newkirk v. Cypress Trucking Lines, Inc., 88-STA-17, Decision and
Order of the Secretary (February 13, 1989) the interval was only
six days and in Priest v. Baldwin Assoc., 84-ERA-30, Decision and
Order of the Secretary (June 11, 1986) the interval was
approximately one month. Further, in the cases relied on by the
Secretary in Newkirk, the time elements ranged from 2 days to six
weeks. See: Jim Causley Pontiac v. NLRB, 620 F.2d 122, 126 (6th
Cir. 1980) (6 weeks); NLRB v. Advanced Business Forms Corp., 474
F.2d 457, 465 (2d Cir. 1973) (17 days); Donovan v. Stafford
Const. Co., 732 F.2d 954, 960 (D.C. Cir. 1984) (2 weeks);
NLRB v. American Geri-Care, Inc., 697 F.2d 56, 60 (2d Cir. 1982)
cert. denied, 461 U.S. 906 (1983) (5 days); NLRB v. Rain-Wall,
Inc., 732 F.2d 1349, 1354 (7th Cir., 1984) (2 days). In other
cases where the temporal relationship between protected activity
and retaliation has been considered significant, the time spreads
have been similarly brief. See e.g.: Donnellon v. Fruehauf Corp.
794 F.2d 598, 601 (11th Cir. 1986) (one month) Devlin v. Federal
Reserve Bank of St. Louis 634 F.Supp. 389 (E.D.Mo., 1986) (2
weeks); Eirvins v. Adventist Health System/Eastern & Middle
America, Inc., 660 F.Supp. 1255 (D. Kan. 1987) (7 days); Saks v.
Amarilla Equity Investors, Inc., 702 F.Supp. 256 (D. Col. 1988)
(16 days). On the other hand, as Respondent has noted, the
inference of a causal link weakens as the length of time
between the protected activity and the alleged adverse action
increase.1 I agree. See, Booth v.
Birmingham News Co., 704
F.Supp. 213, (N.D. Ala. 1988) aff'd mem., 864 F.2d 793 (adverse
action taken some six or seven months after discrimination claim
settled was insufficient standing alone to demonstrate requisite
causal connection between protected activity and alleged
retaliatory discharge); Fitch v. R.J. Reynolds Tobacco Co., 675
F.Supp. 133 (requisite causal link not established between filing
complaint and termination 10 months later); Cooper v. City of
North Olmstead, 795 F.2d 1265 (6th Cir. 1986) (mere fact that
plaintiff was discharged four months after filing a
discrimination claim is insufficient to support an inference of
retaliation); Hollis v. Fleetguard, Inc., 668 F.Supp. 631 (M.D.
Tenn. 1987) aff'd sub nom, 848 F.2d 191 (discharge 3 months after
harassment complaint and 4 months after being warned to improve
performance does not establish a causal connection). In Brown v.
ASD Computing Center, 519 F.Supp 1096, 1116, 1117 (S.D. Ohio
1981) aff'd sub nom Brown v. Mark, 709 F.2d 1499 (6th Cir. 1983)
the Court stated:
Complainant contends further that "[i]t is well settled
that a lowering of an employee performance rating after he or she
engaged in protected activity constitutes sufficient evidence of
discriminatory motive.2 I agree that a
causal connection
element may be established by proof that the employee received
favorable performance evaluation before engaging in protected
activity and negative evaluations after engaging in such
activity. See Sawers v. Kemina Inc., 701 F.Supp. 809 (S.D. GA.
1988). However, this is no hard and fast rule. For example, in
Mitchell v. Baldridge, 759 F.2d 80, 88 (D.C. Cir. 1985) the Court
found that a shift to lower performance rating did not constitute
evidence of discriminatory motive when it coincided with a change
in job responsibilities. The temporal relationship between the
protected activity and lower performance rating is also a factor.
In Fitch v. R.J. Reynolds the Court held:
The same may be said regarding the Complainant's
contention, citing Murphy v. Consolidated Coal Co., 83-ERA-4 Slip
op. ALJ at 18 (August 2, 1983) (Emphasized to show correct
citations), that receipt of pay increases before being terminated
establishes discriminatory motive. I recognize that it has been
held that the manner in which an employee learns of termination
can evidence a discriminatory motive. See e.g. Deford v. T.V.A.,
81-ERA-1, slip op. of ALJ at 6 (January 7, 1981). However, it is
only one factor to be considered and is not sufficient standing
alone to establish a prima facie case of retaliatory action.
In Nesmith v. Martin Marietta Aerospace, 833 F.2d 1489
(11th Cir. 1987) it was held that evidence showing that the
employee's career thrived during the presidency of his mentor and
faltered when the president left the company supported the
district court's conclusion that his discharge was not in
retaliation for his having engaged in protected activity.
In regard to the element of scienter, Respondent, quotes
Delchamps, Inc. v. NLRB, 585 F.2d 91, 94 (5th Cir. 1978) to the
effect that the Complainant "must show that the particular
supervisor responsible for the firing knew about the discharged
employee's [protected] activities." However, the Court in
Delchamps recognized its Circuits earlier holding in N.L.R.B. v.
Neuhaf Bros. Packers, Inc., 375 F.2d 372 (5th Cir. 1967) which
was to the effect that scienter can also be established by
showing that a supervisor with knowledge of the protected
activity "significantly contributed to the accomplishment of the
discharge" while not actually affecting the same.
On the basis of my factual findings and the aforementioned
legal principles, I reach the following ultimate findings and
conclusions:
I. Prima Facie Case
(a) The January 2, 1989 Meeting
(B) The April 27, 1989 Memorandum
(C) Change of Office and Revocation of Executive
Parking Privileges
III. True Reason for Employment Decision
It is recommended to the Secretary of Labor that the
Complaint of Marvin Hobby be dismissed with prejudice.
JOEL R. WILLIAMS
Washington, D.C.
1Respondent relies, in part on
Jennings v. Tinley Park Community Consol. Sch. Dist 146, 796 F.2d 962 (7th Cir. 1986)
as supporting this proposition by holding that a four month lapse is
too long to show causal connection. I find no such holding from
my reading of the case.
2Complainant again cites
Couty v. Dole (supra) as supporting this proposition. However again my reading
of the case fails to reveal any mention of a performance evaluation.
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