She interfaced
with the Quality
Assurance Department (hereinafter QA) on numerous occasions and
also with the Compliance Department. QA is in charge of assuring
that the quality of the product is sustained and they also are
responsible for the Employees' Concerns Program. Compliance, on
the other hand, is in charge of issuing Licensing Event Reports
(hereinafter LER's) and they also carry the responsibility of
dealing with all of the governmental regulatory agencies.
Additionally, LEM also had contact with the Nuclear Engineering
Department (hereinafter NED). That was the organization which
did the design work for the nuclear facility. She was involved
in coordinating design changes.
CHRONOLOGY OF EVENTS
The record of this case contains evidence relating to the
activities of LEM from as far back as late 1985 and extending
through October of 1990. However, on brief the Complainant
argues that "The record demonstrates that between September 1989
and September 1990 Mrs. Mitchell was subjected to a series of
escalating incidents, which taken together, constitute pervasive
or severe hostility to her whistleblowing activities."
Therefore, it would appear that the Complainant has conceded that
all incidents occurring prior to September of 1989 are not
actionable either independently or as part of a continuing
violation by APS. However, this evidence may be considered as
relevant background evidence of past practices which might be
[Page 6]
useful in analyzing present patterns of behavior. Malhotra v.
Cotter & Co. , 885 F.2d 1305 (7th Cir. 1989). Thus for purposes of
this decision, I will not make detailed findings of the incidents
which occurred prior to September of 1989. I will, however, make
summary findings of these events for purposes of evaluating that
evidence as being relevant background information.
LEM's initial whistleblowing activity occurred in late 1985
when she reported to the Nuclear Regulatory Commission
(hereinafter NRC) a problem at PV involving the failure of
emergency lights to burn for a required eight hour period. LEM
testified that this was the first occasion in all of her years of
employment in the nuclear industry that she had carried a safety
problem to the NRC. Following testing by APS of the emergency
lights involved, APS prepared a LER to document the incident. An
LER is required by federal regulation to be submitted to the NRC
by nuclear utilities when events of some consequence occur at a
facility. An LER can result in the NRC imposing civil penalties
upon the utility. This record shows that management at APS
scrutinize very seriously both the facts relating to the filing
of the LER and also the consequences from the filing of an LER.
Following the issuance of the LER concerning the emergency
lighting event, LEM testified that she later questioned whether
the content of the LER was entirely accurate. She noted a change
in the attitude of some management personnel following this
sequence of events.
Also in 1985, LEM questioned the EE 580 Computer Program
which maintained the configuration of all electrical equipment
for the entire job site. She previously had experience with the
system as a result of her employment with another company prior
to arriving at PV. LEM had also expressed concern about vendor
manuals not being available at PV and in other instances the
manuals were not currently updated.
In 1987, LEM raised concerns with management regarding the
configuration control of plant drawings and also once again
regarding the EE 580 Computer Program. She authored a letter to
management noting frustration with the manner in which the EE 580
concern was being addressed and threatened to take the problem to
higher levels of management. The letter was directed to a Mr. E.
C. Sterling, Manager of NED. NED is the Nuclear Engineering
Design Department within APS which was responsible for the design
of the entire PV facility. LEM testified concerning a cooling of
[Page 7]
the relationship between her group and also that of NED following
the issuance of this letter. However, approximately one week
later she directed a letter to an APS vice president once again
raising the configuration control and EE 580 concerns to a higher
level. After sending that letter, she attended an early morning
meeting with NED management. She testified to an unfriendly
attitude toward her by management representatives at that
meeting. Following that meeting, APS established a task force to
study the concerns raised and a written report was later issued
by that group. LEM also carried her concern in this area to the
NRC.
On March 31, 1988, LEM wrote a memorandum to NED concerning
control wiring diagrams (hereinafter CWD). She expressed concern
about NED's recommendation for implementing a CWD program at PV.
There was testimony that the NED supervisor involved with
responding to the memorandum of LEM was upset with her comments.
The Sowers Memorandum
On April 11, 1988, a memorandum was issued by Gerald Sowers
(hereinafter Sowers) to the entire Engineering Evaluations
Department (hereinafter EED) concerning the routing of
department-generated correspondence. It required that all
correspondence leaving the department must go out at least under
the discipline supervisor's signature and that the manager and
director were to be copied. (CX 5) This new policy would in
effect prevent employees from corresponding with others without
obtaining a supervisor's signature on the material. The
memorandum itself contains no restrictions as to its applicability.
LEM interpreted this memorandum to mean that management
would no longer tolerate her having written contacts with the NRC
or other groups without first obtaining the approval of her
discipline supervisor.
The Marsh Memorandum
On January 18, 1989, a memorandum was issued by Walter C.
Marsh (hereinafter Marsh) who is an APS manager. The memorandum
contains two ideas. Initially, he makes a statement concerning
his personal management philosophy and secondly, he directs a
method as to:
[Page 8]
[A]n 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 than their own organization can . . . .
(CX 7) This memorandum was issued by Marsh immediately prior to
an INPO appraisal of the facility. INPO stands for the Institute
for Nuclear Operations. INPO is a nuclear industry supported
organization which conducts inspections of nuclear power plants
to assess plant weaknesses. The reports of INPO are issued to
the utility itself and also to the NRC. As a result of the
implementation of policy stated in the Marsh and Sowers
memorandums, LEM was later prevented from bringing to
management's attention a problem concerning the emergency
lighting inverter. (CX 8) LEM later came to believe that
management at APS had not properly addressed the emergency
lighting inverter problem identified in her written memorandum
and she subsequently filed a complaint with the QA Hotline and
also with the NRC.
Unit Shutdowns
In the latter part of February, 1990, William F. Conway
(hereinafter Conway) advised company personnel that Unit 3 may
have to be shut down because of emergency lighting problems.
Daniel W. Smyers (hereinafter Smyers) did not believe that the
company had a very good understanding of the nature of the
emergency lighting problems. (Tr. 1392) The meeting with Conway
followed the AADV event which caused Unit 3 to be closed down.
The concern of management and apparently other employees was that
the unit would be held down. That concern was based, at least in
part, upon emergency lighting problems.
All three units had previously been shut down. On March 3,
1989, Unit 3 was shut down due to an interruption of offsite
power. (Tr. 373; Holiday Tr. 49) The problems included the
steam control bypass system, the atmospheric dump valve
operation, the reactor-power cutback system, the load-shedding
device, the charging-pump, and the lighting. (Tr. 374-75)
Unit 1 tripped two days later on March 5, 1989 because one of
the twelve atmospheric dump valves failed to work. (Tr. 375-76)
[Page 9]
On March 15, 1989, Unit 2 was also taken off line because the
dump valves had not operated in Unit 3 and one had failed in Unit
1. (Tr. 376) APS was not allowed to restart the units until
certain actions were completed to the satisfaction of the NRC.
(Holiday Tr. 54-55)
As of early summer 1989, all three PV generating units were
not running. (Tr. 1091) It was common knowledge that it was
important to APS from a financial standpoint to have PV
operating. (Tr. 1092) So, Conway's announcement in February of
1990 concerning a possible shutdown was considered to be a very
serious matter.
EVENTS OCCURRING BETWEEN SEPTEMBER 1989 and SEPTEMBER 1990
The Blaine Ballard Incident
By way of background, on September 5, 1989, Blaine E. Ballard
(hereinafter Ballard) received from the NRC a Notice of Violation
and Proposed Imposition of Civil Penalty. The asserted penalty
amount was $250,000 of which $100,000 related to emergency
lighting deficiencies. (CX 24)
LEM used the QA Hotline to raise safety concerns on a
relatively regular basis. She had made approximately fifty
complaints by September of 1989 and there is evidence that
Hotline personnel were hostile toward her. Ballard, who was
responsible for ensuring that employees were not harassed or
retaliated against for raising safety concerns, personally met
with LEM in April of 1989 concerning some of her complaints.
That was the first occasion that Ballard had met Ms. Mitchell and
the meeting related to a complaint that someone had removed
material from her desk. They also discussed an LER which LEM did
not believe adequately apprised the NRC of the event. During the
course of that meeting, LEM questioned the competence of the
highest levels of management at APS. Later, Ballard spoke with
the Director of Technical Services concerning questions raised by
LEM at this meeting. There is also evidence that Ballard
telephoned LEM on more than one occasion in 1989 seeking to speak
with her.
Henry Johnson (hereinafter Johnson) was a co-worker of LEM
who shared a cubicle and a phone with her between 1988 and 1989.
On September 14, 1989, Johnson was waiting outside the office of
[Page 10]
James Reilly (hereinafter Reilly) who was the Acting Director of
EED. Credible testimony shows that Sowers, a manager in EED was
in Reilly's office and the door was open. Kerry Johnson, who was
a supervisor in EED, was also waiting in a corridor outside the
Office and he later entered the office to converse with Reilly
and Sowers. Later, Ballard moved down the corridor and stopped,
in front of the door leading to Reilly's office and stated "that
bitch Linda Mitchell is causing me and my people trouble." He
also indicated that LEM was "telling a lot of lies." Ballard
demonstrated an angry demeanor when he spoke about LEM and his
voice was loud. Apparently, Ballard indicated that because APS
was experiencing so many problems with the emergency lighting
system, that the System Engineers in that area "should be fired."
One of the System Engineers was LEM.
Kerry Johnson testified that he was uncomfortable about what
was being said by Ballard and he ushered Ballard into his office
and closed the door so as to make the conversation private.
Prior to this conversation in Reilly's office, Ballard had just
returned from a meeting with senior management officials where
NRC violations for emergency lighting had been discussed. The
formal copy of that notice was mentioned earlier and resulted in
the fines as indicated. Upon learning of this incident, the
record shows that LEM was disturbed by these events.
Following this incident, Keith Davis (hereinafter Davis), who
is the Director of Human Resources at PV, investigated the
incident as one of potential employee harassment. He spoke with
Ballard and Reilly concerning the events surrounding the
discussion in Reilly's office and based upon these two
interviews, he concluded that allegations of harassment against
LEM were unfounded.
Conway first became aware of the Ballard incident by way of
word of mouth from one of his subordinates. Apparently later he
received a handwritten note from LEM together with an attachment
containing her version of the incident which she apparently
referred to the NRC. (RX 3) Upon learning of the incident,
Conway sought out Ballard and had a discussion with him
concerning the incident. He advised Ballard that he did not
consider the conduct to be professional or acceptable, if in fact
it occurred.
He initiated an investigation by a private firm. At the
[Page 11]
same time, he had Davis, the Human Resources Director, conduct a
separate investigation. In his conversation with Ballard,
Ballard denied making the derogatory comments about LEM. Ballard
was not given a reprimand in writing nor was any type of an oral
reprimand given by Conway as a result of this incident. Conway
did not speak to any other individual personally about the events
concerning the Ballard incident. Conway was aware that LEM was
not a party to the conversation at the time it occurred. Davis,
who was the Human Resources Director for the PV facility,
interviewed Ballard and Reilly about the incident but he did not
interview Henry Johnson, Kerry Johnson or Gerald Sowers who were
also witnesses.
Smyer's Warning to Keep a Low Profile
LEM also testified concerning a conversation she had with
Smyers concerning her standing with the management of APS.
Smyers was her, immediate supervisor. She initially testified
that on January 19, 1990, she had a conversation with Smyers in
which he warned her that management was going to get rid of her
and she should therefore keep a low profile. (Holiday Tr. 92; CX
11 p. 73) LEM testified that she made handwritten notes of her
conversation with Smyers at the time the conversation was
transpiring and that she later recorded it in a more readable
fashion at lunch time. Therefore, her testimony was that the
recording was made contemporaneously with the conversation.
However, following the resolution of an evidentiary problem
relating to the admissibility of all of her diary notes, she was
once again questioned on her written memorandum and testified
that the conversation took place on or around July 13, 1990.
Additionally, her handwritten note also carries the date July 13,
1990. (Holiday Tr. 98; CX 11 p. 73) I believe that the
conversation occurred, but the date is uncertain.
Smyers acknowledged advising LEM to "keep a low profile."
In fact he did that on several occasions. He was concerned that
other employees would be talking about her activities while not
fully understanding the nature of what she had been doing.
Therefore, he suggested that she keep a low profile in order to
diminish the office conversation concerning her whistleblowing
activities. This record contains evidence establishing that
there existed substantial newspaper accounts together with
radio-talk show appearances by LEM which would have raised her
profile in regard to her whistleblowing activities.
[Page 12]
Ramsey's Testimony and the Yellow Stickies
Charles B. Ramsey (hereinafter Ramsey), a former NRC
Investigator, also testified. He is currently employed by the
U.S. Department of Energy, Office of Nuclear Safety but was with
the NRC from 1982 until July of 1990. His specialty was fire
protection and nuclear safety which included responsibility for
emergency lighting. Before being employed by the NRC he worked
for five years in a position which related to fire protection. I
found Ramsey to be a forthright and honest witness. I will give
substantial weight to his testimony in view of the fact that he
was an outside investigator assigned to an investigatory function
at the PV facility, and I believe that his objective view of
circumstances at PV as they relate to LEM was perceptive.
As previously noted, in March of 1989, APS had experienced a
reactor trip and loss of power, and the unit was unable to
establish natural circulation because the emergency lighting
needed to open atmospheric dump valves had failed. In 1990,
Ramsey was sent to PV to inspect the emergency lighting,
modifications made to the atmospheric dump valves, and the
emergency diesel generator. He was assigned to PV because he had
more background in Appendix R, which relates to an acceptable
fire protection system. The regulation is intended to preclude
the fire and fission process from becoming simultaneous problems
as occurred at Chernobyl.
Ramsey identified the confirmatory action letter, (JX 14),
issued on March 7, 1989 which instructed APS to incorporate
lessons learned from the March 3, 1989 event in Unit 1 before it
was restarted. Ramsey explained that APS must conform to the
points made in the letter in order to operate the facility. It
was his job to see that these things were accomplished.
On February 7, 1990, he conducted an inspection of the
emergency lighting system. Following a period of inspection,
Ramsey voiced some displeasure at both the quality of and the
ability to maintain the emergency lighting system.
He requested LEM to provide documentation pertaining to the
record of failures, the EERS, and the technical manual relating
to the light operation. This material was accumulated in a
folder which she provided to Ramsey. The contents of the file
provided by LEM contained nothing secretive. Some of the
[Page 13]
documents contradicted statements by management concerning the
emergency lighting. The Compliance Section never acknowledged
the existence of those documents. Data concerning the breakdown
or failure rates on the emergency lighting was not a company
document, but that data was generally highlighted by LEM. She
had highlighted one of the documents in the folder by placing a
three-by-five inch yellow sticky on the material so as to call
his attention to it. That document related to the emergency
lights.
Prior to the time that Ramsey left APS following his
inspection tour, someone inquired as to whether he could
photocopy the inspection documents that Ramsey had accumulated
and mail all the material back to him. Ramsey agreed and gave
the file folder to a representative of the Compliance Section.
In all, thirty to forty people provided information to
Ramsey at PV. Many of the documents he was given were not routed
through Compliance which he indicated frequently happens on
inspections. He also,testified that it is not unusual that
Compliance at a nuclear power plant will ask for copies of
documents that the NRC takes following an inspection. The
purpose of this is to allow the company to keep track of what the
NRC had been provided.
Several days after the file folder had been given to Ramsey,
it was returned to Smyers by Duane Kanitz (hereinafter Kanitz) of
APS Compliance. Smyers was asked to review the file contents.
Kanitz expressed concern that the yellow sticky in the folder
contained the editorial comments of LEM. Smyers later removed
the yellow sticky himself in the presence of LEM and indicated to
her that the editorial comments were not necessary. Smyers
testified that he told LEM that she didn't need to make editorial
comments with the material. The sticky was apparently removed in
the presence of LEM by Smyers. A complete copy of the file was
retained by Smyers after he returned the original file to Kanitz.
Later LEM advised Smyers that some document or documents had been
removed from the folder and Smyers advised her to copy those
items and provide Ramsey with the material. (Tr. 1348, 1349)
Later, LEM transmitted the folder once again to Ramsey.
After Ramsey gave the original file provided to him by LEM
to members of management, portions of the file were removed,
including the yellow stickies which contained the handwritten
[Page 14]
notations made by LEM. The data which had been removed from the
file concerned the failure history of the emergency lights. The
substance of Ramsey's testimony was that the information being
provided by LEM concerning the inadequacy of the emergency lights
was valid and would have been helpful in arriving at his
conclusions. He had observed a problem with the lighting system
at PV in hot areas. He thought APS ought to be doing more
frequent preventive maintenance surveillances. APS believed that
they only had a five percent failure rate, but the NRC saw the
failure problem as being more prevalent and also questioned the
suitability of the design limitations on the units. In Ramsey's
opinion, APS would not own up to the emergency light problem.
The results of the walk-down were codified in an April 24, 1990
letter from the NRC to APS in regard to the inspection of the PV
Units 1, 2 and 3.
Following another routine inspection in May and June of 1990,
the NRC issued its findings by way of letter dated July 5, 1990.
(CX 30) The condition of some aspects of the emergency lighting
system is explained in one of the paragraphs included within the
body of that letter. That paragraph reads as follows:
We are concerned about the apparent unreliable
performance of the Palo Verde emergency lighting
system, as evidenced by numerous failures of emergency
lighting system components. Excessive failures and the
adequacy of the emergency lighting system design
implementation were addressed by ANPP in LER 86-059.
Problems have been identified in the emergency lighting
system by the NRC and by your staff since 1984. The
same problems have continued to exist over a six year
period, and were a topic of escalated enforcement
action and a civil penalty documented in our letter to
you dated September 1, 1989 (EA 89-88). Furthermore,
emergency lighting failure data originally provided to
NRC inspectors in March 1990, needed to be revised on
several occasions, with the most recent revision
occurring on June 29, 1990. The need for repeated
revision of this data appears to be another indicator
of the need for greater engineering and quality
oversight involvement with the emergency lighting
system.
Clearly, the problems associated with the emergency lighting
[Page 15]
system were serious and were a longstanding concern to both
management and the NRC.
Ramsey has known LEM since 1984. Between 1984 and 1990, he
only saw LEM about six or eight times and during that time he
spoke to her fewer than six times. He indicated that he had a
good working relationship with LEM and that she had provided him
significant information concerning the matters that he was
charged with investigating. He found her to be an enthusiastic
employee who would inquire about even minor problems. Ramsey had
no personal knowledge of LEM's alleged harassment at PV. He only
observed LEM once or twice a year in the presence of her
co-workers. He was aware of allegations of harassment directed
against her, and although the NRC was investigating those
allegations, he did not pay much attention to them. However, he
believed that there were times when LEM had misconceptions about
the jurisdictional limits of the NRC. Ramsey thought that she
had perceptions of technical issues that were not relevant to his
investigative role at APS.
Ramsey also testified that most of the contacts he had at PV
were favorable. He had found management to be cooperative but
was surprised that despite the overwhelming objective evidence,
they still denied having a problem with the emergency lighting
system. He was suspicious of things that he was being told by
company representatives.
Ramsey also testified concerning tensions which existed
between the NRC and APS. APS management did not believe that the
NRC had given them credit for some of the corrective actions
which they had taken in the area of fire protection. Ramsey
indicated that APS should not have been surprised by the NRC
findings since he briefed management daily on his activities.
APS had indicated that Ramsey was aggressive, reviewed issues in
detail disproportionate to their safety significance, and lacked
interpersonal skills. Obviously, Ramsey disagreed with these
contentions.
Order to Destroy Emergency Lighting Report
On February 26, 1990, LEM and Smyers concluded a report
entitled "PVNGS Lighting System Evaluation." One of Ramsey's
stated purposes for conducting his inspection during this same
month was to inspect the condition of the emergency lighting
system. The report contains a basic introduction, a paragraph
[Page 16]
dealing with an initiating event which refers to the Unit 3 trip
on March 3, 1989, a problems section, an evaluation of corrective
actions taken and recommendations made by the authors. Ramsey
indicated that there was truth in the problems identified in this
report. The report served as a basis for a second NRC inspection
of the emergency lighting and fire protection systems at PV in
March of 1990.
Smyers considered the report as being a "cover your ass" or
"C.Y.A." document. He was concerned with problems associated
with the emergency lighting system identified by the NRC and
feared they would be blamed upon him. The document discussed a
variety of safety issues also related to emergency lighting at
PV. The document also expressed concern that APS may be in
potential violation of its Final Safety Analysis Report
(hereinafter FSAR), which is a licensing document that also
relates to safe shutdown procedures. These are extremely serious
matters in that an FSAR is required to be submitted to the NRC by
a licensee before an NRC license can be issued.
On February 26, 1990, Smyers presented a copy of the report
to management. He was directed to limit the distribution of the
document because there was too much information out on problems
associated with the emergency lighting system already.
Immediately following the meeting with his superiors, Smyers
directed his subordinates to erase the document from the computer
and to get rid of all excess copies. Both Smyers and Mitchell
retained a copy which Smyers suggested was his "C.Y.A."
memorandum.
At the time that this report was submitted to management, APS
was conducting testing on emergency lighting on all three units.
As was evidenced by Ramsey's presence at the facility during this
period, the NRC was interested in these test results. Smyers had
retained a copy because he believed that the subject of emergency
lighting was not concluded and that he probably would have an
opportunity to present the document to management at a later
date.
Peer Pressure Memorandum
For many years, APS had in place at PV a Quality Assurance
Hotline Program which was primarily an employee program for use
when an individual felt he had a concern with safety and that
[Page 17]
concern was not being addressed by either his immediate
supervision or management generally. The program had as many as
twelve investigators and supervisors but when Ballard arrived in
March of 1989, only three employees were involved. The QA
Hotline only took safety concerns from employees. Ballard had
full responsibility for this program.
In late 1989, APS introduced a new Employee Concerns Program
which was a broader version of the QA Hotline Program. The
Employee Concerns Program replaced the QA Hotline. This Program
was implemented in order to incorporate management into the
resolution of questions raised by employees. Concerns raised in
this program were not investigated by an employee's immediate
supervisor but rather a management individual who was a level or
two above. Management was directly involved in resolving
questions raised through this program and that distinguished it
from the old QA Hotline Program. An effort was made by APS to
maintain the confidentiality of employees who called either the
QA Hotline or the Employee Concerns Program. However, there is
evidence that the confidentiality was being compromised.
Conway introduced the Employee Concerns Program by way of a
video which was shown to employees. (RX 1 p. 164) Conway's
comments indicate that any concern involving safety or quality at
PV should be reported, and the employees were advised that they
were protected against harassment, intimidation or retaliation
for identifying safety concerns. Conway suggests that APS be
given the first opportunity to hear and respond to the concerns
of employees but that the employee also has the right to take
those concerns directly to the NRC.
APS also had provided a written statement to employees
captioned "Expectations for All Employees." (RX 1 p. 168) The
document is not dated nor is the author identified. The
preliminary note indicates:
These expectations are fundamental to the way we do
business. How well we meet these expectations will
determine how successful we are in meeting personal,
departmental and company objectives.
The individual paragraphs of the statement deal with the
subjects of ethical and professional conduct, accountability and
continuous improvement in performance, community involvement,
[Page 18]
communication and other employee improvement subjects. In
addition, the statement also contains a section captioned
"Loyalty to APS, to Management and to Each Other - Team Work."
That section suggests that the employee should maintain a
positive attitude and stand up and support the organization. It
also contains a notation to "initiate peer pressure on the
constant complainers." The statement contains another section
captioned "seek out, identify, and solve problems at the lowest
appropriate level." This section suggests that management be
made aware of problems and that the problems be taken to the
individual's boss. It is urged that problems be solved within
the individual's area of responsibility.
APS Memoranda in February and March, 1990
In late February or early March of 1990, Conway testified
that he had been made aware that LEM had expressed concern for
her personal safety. He could not recall that specific measures
were instituted to have those fears investigated but rather he
relied upon written policy statements of the company indicating
that employees ought to be able to perform their jobs without
being admonished for it. (Tr. 832, 833)
The record also contains a memorandum authored apparently by
T. H. Cogburn and concurred in by Sowers which indicated that
these two individuals had met with LEM to discuss her concerns
relative to her personal safety as a result of problems with the
emergency lighting at PV. (CX 13) These two managers assured
her that the issues she had raised seemed to be accurate and
appropriate but they questioned her need to contact her attorney
rather than approaching management to resolve the problem. LEM
was apparently receiving, on a second-hand basis, derogatory
comments from the staffs of all three units about her "trying to
shut Palo Verde down again." She experienced some problems with
getting work orders in Unit 3 and during a walk-down of the
emergency lighting system in Unit 2. The memorandum also
codifies verbal harassment of LEM in Unit 1. LEM requested that
Sowers and Cogburn issue a memorandum commending all employees on
their recent efforts in the emergency lighting issue. Conway
testified that although this is the type of information he would
like to receive and although the memorandum shows that he was
provided a copy, he did not recall receiving one. The memorandum
requested by LEM to soothe employee animosity toward her was
never issued.
[Page 19]
This incident was investigated by George Weiman, (hereinafter
Weiman) who is a security investigator for APS. Weiman
telephoned LEM who refused to give him any information but rather
referred him to her attorney. LEM advised Weiman that the matter
had been discussed with Cogburn, so Weiman coordinated the
investigation through Cogburn. Cogburn indicated that after
discussing the situation with LEM, he believed that her concerns
never really materialized. (Tr. 1201) Weiman offered a report
of his investigation which was dated March 6, 1990 which was the
day after Cogburn's meeting with LEM. (RX 12) Weiman did not
seek to determine the identity of the person or persons who made
any of the alleged threats.
1989 Memoranda
APS management had issued a variety of memoranda dealing with
management concerns relating to safety, harassment and the
professional treatment of workers. On July 14, 1989, a
memorandum was issued concerning the QA Hotline. The memorandum
indicates that confidentiality of individuals who present
concerns would be maintained. (JX 26) On May 18, 1989, Conway
issued a memorandum dealing with his standards and expectations
of all employees. The memorandum indicates that he expects all
employees to commit to the standards shown. (JX 34) On June 8,
1989, Conway issued a memorandum on employee nuclear safety
concerns. The memorandum indicates that each employee is
responsible to maintain nuclear safety and to report safety
concerns. The cover letter for the policy indicates:
This policy applies to management, supervisory, and
working-level personnel including contract employees.
Harassment, intimidation, discrimination, or any other
form of retaliation against persons who raise safety
concerns will not be tolerated.
The policy statement was attached to this memorandum. The
policy statement indicates that it is APS company policy to
encourage employees with nuclear safety concerns to bring those
concerns forward. (JX 35) On September 21, 1989, Conway issued
another memorandum dealing with the subject of reporting employee
concerns relating to safety issues. The memorandum notes that
employees are protected by law against harassment, intimidation
or retaliation for identifying nuclear safety concerns within the
units. (JX 36) On October 13, 1989, Levine issued a policy
[Page 20]
statement which indicates in part:
[W]e failed to achieve the degree of excellence
necessary in the areas of vigorous self-criticism, of
creating a work environment where criticism is eagerly
sought, analyzed and acted upon, of creating a work
atmosphere that encourages thoughtful, critical
assessment of all phases of plan operation, and one in
which operations are conducted in a formal, conservative
manner. Our failure to do the aforementioned
things acceptably resulted in the problems we had in
the early part of this year. We are now embarked upon
a vigorous effort to improve our performance in these
critical areas.
On October 25, 1989, another memorandum was issued by A.N. Howard
in the Contracts Department which was directed to companies
providing contract labor assistance to Palo Verde. The subject
of the memorandum was the company policy on employee
communications and concerns. A copy of the company policy was attached
to this memorandum and distributed to employees performing
contract labor to APS.
The Tom Berlin Incident
On February 28, 1990, an incident allegedly occurred
involving a Thomas W. Berlin (hereinafter Berlin) in the Unit 3
work control trailer. The incident relates to a conversation
which Berlin had with Patricia Gibbons and which involved LEM.
Ms. Gibbons prepared a written memorandum of this alleged
conversation. (CX 21) As was noted earlier, I did not find the
testimony of Ms. Gibbons to be credible in any way and,
therefore, I will not consider it as it relates to this alleged
incident.
Berlin testified concerning a conversation that he had with
Ms. Gibbons on approximately this date. He denied using the type
of profanity included in the memorandum written by Ms. Gibbons
and indicated that Ms. Gibbons was agitated at the time she
entered the work trailer. He acknowledged kidding her about
certain aspects of her job. The conversation lasted no more than
a couple of minutes and apparently only incidental remarks about
LEM were made. The record does not indicate that any of those
remarks were derogatory.
[Page 21]
The Gerald Sowers Incident
Gregg R. Overbeck (hereinafter Overbeck) testified at some
length concerning the budgetary problems being experienced by APS
during this period. He noted that the PV facility was
experiencing large overtime rates on the order of twenty-five
percent and high absenteeism. It also became necessary to
release some of the large contingency of contract engineers which
had been hired to resolve the numerous problems they had
experienced. He testified that in the early summer of 1990, the
APS operation was moving into a new phase. Following the
shutdowns of the three units, the company was looking forward to
having all three units operating. Unquestionably, based upon the
Overbeck testimony, APS was experiencing a significant financial
drain from this operation. However, he denied that there existed
any linkage between the financial problems experienced by APS and
the whistleblowing activities of LEM.
On July 5, 1990, NRC Region V issued an inspection report for
PV Units 1, 2 and 3. (JX 89) The report notes that the NRC
inspection found that several of the PV activities were not
conducted in full compliance with NRC requirements. The report
notes concern that the PV emergency lighting system was
apparently unreliable based upon numerous failures of components,
and that the problems dated back to 1984.
LEM first saw a copy of this report on July 6, 1990 as a
result of her participation in a conference at APS corporate
headquarters. Also participating were Craig Cooper, Gerald
Sowers and Dan Smyers. The purpose of the conference was to
assist Sowers in preparing for a presentation at the NRC
enforcement conference to be held on July 10, 1990. After
spending some time reading Joint Exhibit 89 in the presence of
LEM and Cooper, Sowers made a comment about "we shot ourselves
again" and at the same time he made his fingers into the shape of
a gun and pointed it at his own head. Sowers conceded that the
content of the inspection report was not favorable to APS.
Lowering of Linda Mitchell's 1990 Employee Performance Appraisal
The record contains LEM's employee performance appraisal
reports for the period extending from January 1985 through August
1990. (JX 49-55) Each of these appraisal reports tends to
confirm my suspicion that LEM was a competent, dedicated,
conscientious and questioning employee who cared about her work
[Page 22]
product as well as her company. The first six of these reports
carry an overall rating of either "superior" or "exceeds most
standards" which appears to be an equivalent rating. These six
appraisals contain numerous superlatives associated with the
manner in which LEM discharged her responsibilities. They
indicate that her work is superior and that her knowledge of her
job is exceptional. There are indications, however, that she
experienced attitude problems giving rise to a depression which
could have negatively impacted herself and also those around her.
(JX 49, 50, 51, 52, 54)
LEM filed a 10 C.F.R. Section 2.206 petition with the NRC
which alleged serious misconduct by APS officials on May 22,
1990. That filing could have resulted in a revocation,
suspension or modification of APS' license to operate PV. In
response to the petition filing, the NRC Office of Inspector
General and the Office of investigations investigated her
allegations of wrongdoing on the part of APS. That matter was
still pending as of the time of the hearing in this case. The
entire matter became one of high visibility at the PV facility.
LEM received a performance appraisal in August of 1990. in
basic content, that appraisal would appear to be no different
from the others in that it contains numerous superlatives related
to her job performance and it also mentions her attitude problem.
However, the appraisal gives her an overall rating of "standards
met consistently." That rating is in contrast with the superior
or exceeds most standards ratings which had been given in prior
years. Therefore, although the content of the individual
sections of the evaluation would appear to be generally the same
as had been given in earlier years, the overall evaluation rating
was reduced by one category.
This last evaluation which was made by Smyers who was her
supervisor at the time, contains the notation in his handwriting
that:
This review reflects a change in the policy in doing
reviews. Linda continues to perform at the same level
as last year.
The rating of "standards met consistently" represents a one-level
downgrade from the ratings which she had earned in earlier years.
Smyers, who was the electrical supervisor in the Site Engineering
[Page 23]
Department, testified that the company implemented a change in
the manner in which employee performance appraisals were to be
performed. The change was addressed in a President's series
meeting and also was later reaffirmed by his immediate supervisor
in a staff meeting. (Tr. 1328) It was his understanding that
management desired to tighten up the appraisals because
throughout the company they were too high and not everybody
should be rated above average. Smyers indicated that he had told
the members of his group about the change in policy which sparked
multiple conversations and critical commentary among the workers
he supervised.
Smyers testified that LEM was not singled out in any way as a
result of her performance appraisal in that all of the employees
in his group received the same treatment. It was his testimony
that of the 13 employees he supervised, 12 of the individuals
were downgraded one performance level and the other individual
retained the same overall performance rating. Smyers himself was
downgraded two levels by his management as a result of the policy
change.
The testimony of Smyers, who authored the appraisal report
over which the complaint was filed, was verified by other members
of management. Conway, testified concerning changes in
management evaluation procedures which took place following his
arrival in May of 1989. He reviewed a large number of the
performance evaluation reports of employees. He discovered that
the evaluations were contradictory to the competency which he
found in the overall operation of the nuclear facility. He
discovered that appraisal reports were generally very high
whereas the overall operation of the nuclear facility was average
at best. Conway, who is responsible for the nuclear operation of
APS at PV, in turn, communicated those concerns to his
subordinates. He requested that the supervisors be advised that
the employees were to be fairly and honestly evaluated based upon
their true job performance.
Conway's testimony was supported by his subordinates.
Although there did not appear to be a defined company policy
requiring ratings to be lowered to conform to a bell shaped
curve, and although there were no written directives implementing
this policy, it was clear from the testimony of the APS managers
that a policy change had, in fact, occurred. James M. Levine,
the Nuclear Production Vice President, Ballard and Smyers, all
[Page 24]
verified the change in management policy. Sowers, who is the
technical assistant to Levine, testified that he was aware of the
Conway change in policy and that he interpreted that change as
requiring the managers to raise the expectations that they had
for their employees and to evaluate employees fairly against
those expectations. He also implemented this policy in
engineering evaluations beginning in 1990.
Conway also testified concerning the status of the PV
operation at the time of his arrival on May 8, 1989. Apparently
all three of the separate nuclear generating power units were
shut down. He identified numerous problems associated with the
operation of the facility including emergency lighting, valves,
maintenance, hardware problems, and overall training programs for
employees. Generally speaking, there were problems related to
ownership's ability to properly manage the facility. In
evaluating Conway's testimony, I am left with the distinct
impression that the operation of the facility was apparently a
mess at the time he assumed control.
The record establishes that although Conway sought to
implement a more objective evaluation process, his new approach
was not implemented uniformly among all groups. Apparently, only
Smyers downgraded the evaluations of employees throughout his
entire group. The other systems engineering groups may not have
been subjected to the same process. In 1990, Site Technical
Support was headed by Overbeck. LEM was in one of the Systems
Engineering Groups which comprised the Site Technical Support
Group. (JX 95) Systems Engineering was headed by Jeffry S.
Summy (hereinafter Summy). Summy had five different groups
reporting to him. One of these groups was the Electrical Systems
Group of which LEM was a member, and that group was supervised by
Smyers. The record shows that insignificant changes were made to
the individual evaluations of the 25 Systems Engineers who worked
in groups other than Complainant's for the year 1990 appraisal
period. (JX 93) The overall changes between 1989 and 1990
indicate that five individuals were actually upgraded but six
individuals were downgraded. Fourteen others retained the same
overall evaluation. (CX 20) The statistical data would seem to
indicate that there were variations in the way in which the
company's evaluation policy was administered within Systems
Engineering.
The Tim Hall Incident
[Page 25]
On September 18, 1990, Tim Hall (hereinafter Hall), an APS
employee, made a comment to Sarah Thomas during a break in a
training class. Hall motioned for Ms. Thomas to come over to
where he was standing and when she approached, he pointed to a
fire protection dummy/mannequin that was laying on a stack of
fire hoses. (JX 5) The dummy was not in very good condition in
that its arms and legs were twisted and appeared to be burned
from previous training sessions. Hall acknowledged that he said
to Ms. Thomas something to the effect that "[t]his is what will
happen to Linda if she doesn't do her job." (CX 1 p. 35) The
reference to Linda was to LEM. LEM was also attending the same
training session. Hall was aware that Ms. Thomas and LEM were
friends.
In the written statement given shortly after the incident,
Hall indicated that he was not upset with LEM for any reason and
that he did not understand the implications of his comment until
later. He considered the comment to have been a joke and later.
apologized to LEM for the incident.
Hall's deposition was taken on August 16, 1991. (RX 15)
Hall was initially employed by APS in May of 1985 in the Systems
Engineering Group. He knew LEM on a casual basis from his early
years with APS and on occasion, in later years, he did visit with
her in her cubicle. The same was true with Ms. Thomas. The
comment made by Hall to Ms. Thomas was to the effect that "that
could happen to Linda if she doesn't get her act together." (RX
15 p. 11) The day after the incident, Hall attempted to meet
with Smyers who was LEM's supervisor because he apparently
detected that LEM was upset over the incident. Smyers suggested
he not talk to LEM immediately but rather wait until after the
company commenced its investigation. Hall testified that he
believed he knew both LEM and Ms. Thomas well enough that he
could joke around with them. He was unaware that anyone else
might be attempting to harm LEM, and it was not his intent to
hurt or harm her. He did not consider the consequences of the
remark at the time it was made. Following the company
investigation of the incident, Hall sought out LEM and apologized
to her.
As a result of the company's investigation of the incident,
Hall received a written reprimand from the Director of his
division. A written reprimand is a second level of discipline
under the positive discipline program. The written reminder
[Page 26]
indicates that it is management's expectation that no employee
shall discriminate or intimidate any other employee, particularly
one who may have addressed a safety related concern at PV. The
written reminder also expresses confidences that Hall would
immediately correct his conduct deficiency. (JX 84)
Prior to the dummy incident, Hall had voluntarily gone to the
APS Employee Assistance Program for the purpose of seeing a
counselor for job stress. (RX 15 p. 37) He saw a psychologist
or counselor for approximately six months and was apparently
moved to a less stressful job for a period of time.
The day following the incident, LEM went to the office of
Smyers and told him that she was very upset about what Hall had
said to her the previous day. Smyers attempted to contact Hall
immediately. However, he did not speak with Hall until the next
day at which time he told him that he considered what had
happened to be very serious and that the issue would be taken to
management. An internal investigation which was carried out by
Kerry Johnson followed. Overbeck, on September 20, 1990, had
directed him to conduct a fact-finding meeting and if necessary
to get security help to investigate the threat. Overbeck
monitored the development of the investigation. (RX 1 p. 138)
On September 21, 1990, Johnson submitted a written report to
Overbeck concerning the Hall incident. (RX 1 p. 131) The report
indicates that on September 20, he interviewed both Hall and Ms.
Thomas and on September 21, he interviewed LEM and Hall for a
second time. His conclusions and recommendations include the
following:
1. I believe Tim's comment was purely spur of the
moment and was not intended to mean any harm
towards Linda Mitchell in any way. I do not
believe that Tim's comment was based on a fear
(from Tim's perspective) for Linda's well-being.
I don't think Tim was trying to 'warn' her of
impending dangers.
2. I believe Tim's comment was in poor taste and
showed a definite lack of common sense and good
judgment.
3. I believe Linda Mitchell was genuinely concerned
about physical threats because of her situation
[Page 27]
with the I.G. office and APS. I can certainly
understand why she is concerned about threats and
their seriousness since by her admission she has
been on the receiving end of several. I believe
she acted properly in bringing up the situation to
her supervisor as soon as possible.
4. I believe Jim Samuels and Dan Smyers acted
properly when contacted by Linda.
5. I believe that Linda thinks the message from Mr.
Conway with respect to the Linda Mitchell case has
not been implemented throughout APS/ANPP
organization.
Following receipt of the written report, Overbeck called
Levine and Davis to apprise them of the results of Johnson's
fact-finding and also to advise them of Overbeck's recommendation
to issue a written warning to Hall. (RX 1 p. 139) On September
24, 1990, Overbeck, together with Johnson, met with Hall for the
purpose of reviewing the incident and the results of the
fact-finding. Hall was apparently apologetic and-understood that a
written warning to him would be issued. Subsequently, Overbeck
met with LEM and Smyers to discuss the incident. She apparently
was told that management found the incident regretable and
totally unacceptable. Reportedly, LEM recommended that
management go easy on Hall so as not to make the situation worse.
LEM also apparently told Overbeck in conjunction with other
incidents of harassment that some managers and supervisors
counsel their employees to avoid her rather than maintaining a
professional attitude about her activities. During a manager's
meeting held on September 26, 1990, Overbeck mentioned to them
that the message had not gotten across that all employees be
treated as professionals and not be segregated because of their,
beliefs. (RX 1 p. 140) On September 27, 1990, Hall was issued
the written letter of reminder.
The record also contains evidence that APS management did not
believe that it had gotten its message across that all employees
were to be treated as professionals and were not to be harassed
for whistleblowing activities. (Tr. 905, 906, 907) Following
the Hall incident, Overbeck met with approximately 250 of his
management team to convey that message. Kerry Johnson, who
[Page 28]
conducted the Tim Hall investigation, concurred in the belief
that it was necessary to remind management that all employees
must be treated professionally. (Tr. 971) Overbeck believed, as
a result of the Hall incident, that although he had communicated
the company message concerning the no harassment policy, the
workers had not really gotten the message. Both LEM and
management believed that some workers had been trying to avoid
her. Following the Hall incident there was no written statement
issued to all employees at PV. The oral statement was made by
Overbeck in his group meetings with his personnel. Additionally,
top level management was apprised of the incident.
Narrative Psychological Reports
The record also contains a report written by Dr. William F.
Amberg who is a certified psychologist and a Diplomate in
Industrial and Organizational Psychology. (RX 5) His doctorate
is in Counseling Psychology. Dr. Amberg's report is very
narrowly constructed in that it is based upon his evaluation and
conclusions "regarding normal co-worker reactions to Ms. Linda
Mitchell's high profile activities." His report, therefore, does
not constitute a full person psychological profile of LEM. The
report addresses four main points. Initially, the fact that LEM
is a highly visible whistleblower; secondly, on the behavior of a
single group member whose views are in marked contrast to those
of the majority; thirdly, that it is an entirely normal, expected
human reaction that such an individual would generate negative
reactions; and fourthly, based on the material that he reviewed,
APS management supported LEM to the maximum.
The report notes a variety of documents which he considered
in arriving at the conclusions stated. The documents basically
relate to legal proceedings involving LEM and APS. In addition
he considered newspaper clippings and the transcript of a radio
talk show appearance by LEM and a deposition given by LEM. He
also mentions the "document list" of the law firm representing
APS in this matter, but I am not certain to which list he makes
reference. Dr. Amberg also notes that he has reviewed the most
relevant psychological research pertaining to the organizational
dynamics of this case and then lists six published works on which
he apparently consulted.
He concludes that the name Mitchell is virtually synonymous
with conflict when it comes to her relationship with APS. She is
[Page 29]
extremely high profile and enjoys the publicity which results
from that activity. He concludes that LEM is a "group deviant"
which directly leads to her rejection and ostracism by
co-workers. He states that when APS is being attacked
externally, as the media has done for a lengthy period of time,
the tendency of other employees is to fight the critics. Dr.
Amberg concludes that common sense, personal experience, and
research show that deviants are naturally ostracized and excluded
from the group. He also concludes that APS management, in
general, and human resource personnel in particular, responded in
a timely and professional manner to the activities of LEM. He
bases that conclusion on APS' investigation, reports, discipline,
education, and employee communication as evidenced by a report
written by another individual. The specific factual data upon
which that conclusion is based is not stated.
I accept the report of Dr. Amberg as being exactly what it is
stated to be. It represents his conclusions as to normal
co-worker reactions to LEM's high profile activities. In other
words, it is his conclusion that these reactions are negative.
His conclusions in that regard are accepted since they were not
severely tested at the time of his testimony. His report is not
received as a psychological profile of LEM. He testified that he
has never met LEM or spoken to any of her co-workers or to any of
APS management concerning her activities. He knew nothing of
LEM's medical or psychological histories. His conclusion that
she is a "group deviant" is based upon an examination of
documents provided to him by representatives of APS, his
perspective as a consulting industrial/organizational
psychologist to many business organizations, and as an expert on
organization dynamics. Since I do not know what his
"perspective" is as a consulting industrial/organizational
psychologist and his own expertise, whatever that may be, I must
question his opinion in that regard. His data base for arriving
at this conclusion was something considerably less than what I
would hope a disinterested psychologist would require to arrive
at the conclusion stated.
Once again, I give weight to his report for the narrow
purpose of considering normal co-worker reaction to LEM's high
profile activities. He finds that reaction to be negative. I do
not find his report to be overwhelmingly useful in any sense, but
since it has not really been tested, I do give it some weight.
[Page 30]
The record also contains a psychological report of LEM which
was prepared by Dr. C. Brady Wilson. Dr. Wilson is a Clinical
Psychologist who devotes about half of his practice to working
with clients who have experienced some traumatic event at work or
within a group setting. Dr. Wilson holds a Ph.D. in psychology
from Boston University and a Master of Theology, Psychology and
Religion from Boston University School of Theology. His
undergraduate degree was in Psychology. He is a Certified
Psychologist within the state of Arizona. He also holds
membership and offices in a variety of state and national
organizations. He is in private practice in Arizona and that
practice is based upon direct patient referral and professional
referrals from physicians, corporations and attorneys. He
specializes in the employment area, including employee stress,
cumulative workplace trauma, employment correction, counseling,
terminations and adjustment.
Dr. Wilson examined the Complainant in October, 1990. He
prepared his psychological evaluation on March 22, 1991. (CX 17)
Based on symptomatology, a psychological history, a social
history, a work history, a mental status examination, the
Minnesota Multiphasic Personality Inventory-2 (MMPI), a Symptom
Checklist 90 Revised (SCL-90-R), and an Occupational Stress
Inventory (OSI), he diagnosed post traumatic stress disorder
(PTSD) and a somewhat dependent personality style.
He noted that her attitude during his evaluation was of a
person motivated to restore herself professionally and
emotionally. He found her to have good psychological integration
and little global psychological distress. In his opinion, her
reported history of distress and her history do not constitute
sufficient cause for her present symptomatology. He diagnosed
PTSD because her physical and anxiety symptoms were determined to
be a true condition and not under her voluntary control. He
described PTSD as a maladaptive reaction to the psychosocial
stressors she reports. These stressors, he indicated, were the
acts of harassment to which reportedly she had been subjected to
at APS.
He recommended that she pursue a course of therapy including
stress inocculation therapy and supportive group intervention.
He found that a medical referral may be warranted if her sleep
disorder persists. He further recommended a multiplicity of
therapeutic services for all the symptoms due to PTSD. He opined
[Page 31]
that if LEM were unable to pursue therapy and reestablish herself
emotionally and in an appropriate work environment, her prognosis
was guarded. However, he found her long-term prognosis to be
good. He anticipated that she would require one therapy session
a week for six to twelve months.
Dr. Wilson testified that he had personal contact with LEM on
three different occasions. She terminated the therapy. He had
given her written questions to take home to answer because she
was not a continuing client and, therefore, he could not evaluate
her response-consistency. It was his belief that her responses
are reliable.
It was the conclusion of Dr. Wilson that LEM perceived the
Tim Hall incident as a threat to her personal safety. She
interpreted that sequence of events as being a message to back
away from her whistleblowing complaints. Her reaction to that
event would be the same as any other individual who was severely
threatened. He does not consider her to be a group deviant, nor
did he believe that she was faking any of the responses to
questions posed in order to make her condition appear worse than
it actually was.
Dr. Wilson related LEM's problems to stress but did not know
to what the stress was attributable or how long she had
experienced it. (Tr. 230) He disagreed with the MNPI
computerized results even though it was the only test he used
which was not capable of being subjectively influenced. He
disagreed with the diagnosis but not the personality traits which
it assigned her. He believes that she has exhibitionistic
traits.
I find Dr. Wilson to have been a credible and knowledgeable
witness. He was forthright in his responses. Although his
personal contact with LEM was limited and he did not include her
medical history in his evaluation, I am impressed with his
testing and also the other objective data on which he relied in
arriving at his conclusions. He has good credentials and is
published. I will give significant weight to his opinion.
Finally, the record also contains an opinion submitted by Dr.
Darold L. Shutt. (RX 6) Dr. Shutt holds a B.A. in Pre-Medicine
from the University of Illinois and an M.A. and doctorate in
Education in Counseling/Clinical Psychology also from the
[Page 32]
University of Illinois. He has held a variety of positions in
both the academic and private sectors. He is a Certified
Psychologist within the state of Arizona and is a Diplomate of
the American Board of Professional Psychology. He is a Fellow
and Diplomate of the American Board of Medical Psychotherapists.
He also holds membership in a variety of psychological associations
in both the state of Arizona and nationally. His report is
limited to a discussion of whether LEM was damaged as a result of
the APS work environment and secondly, if she was not damaged,
then what evidence was discovered which led to that conclusion.
He concluded that she was not damaged as a result of the APS work
environment and that the material presented to him did not
support her complaint of work-induced injury.
Dr. Shutt reviewed Dr. Wilson's deposition, case notes, and
test results. (RX 6) Based also on medical records, LEM's
performance appraisals, and current research data, he opined that
LEM was not damaged as a result of the APS work environment.
He criticized Dr. Wilson's notes as skimpy, inadequate, and
evidence of acursory effort.
He feels LEM's answers to questions could be invalid since
she completed the tests at home and could have been coached. He
feels LEM did not complete the self-report under proper
supervision. He criticized Dr. Wilson in that he did not
consider LEM's medical, intellectual, academic, emotional, or
behavioral functioning levels, which could have impacted his
conclusions. He feels the evaluation was not comprehensive or
even minimally adequate. He opined that the data does not
support a diagnosis of PTSD. The only objective test was the
MMPI-2 and Dr. Wilson chose to ignore the computerized findings
of conversion disorder or somatization disorder, and assigned his
own diagnosis, which Dr. Shutt thinks may have differed if Dr.
Wilson had reviewed her medical history. For example, her
medical history may reveal that she was anxious or had chronic
stress due to having survived cancer and the possibility of
facing it again. She had a breast biopsy in June, 1990. A
person with conversion or somatization disorders tend to make up
physical symptoms, and such disorders are not unusual for a
cancer survivor. He believes LEM has a need for secondary gain
as evidenced by her complaints and lawsuits. He also added that
the OSI does not tell much as it has only been used on hundreds
of people, as opposed to the thousands who have taken the MNPI.
[Page 33]
At the hearing, Dr. Shutt testified that he never actually
saw Dr. Wilson's report. He never saw LEM, although he had
wanted to. In drawing his conclusions, he considered that LEM
was a heavy coffee drinker which was information provided by APS'
legal representative. The record does not show what is meant by
"a heavy coffee drinker." He stated that Dr. Wilson's notes were
inadequate for him to ascertain what happened in Dr. Wilson's
meeting with LEM. Dr. Shutt also revealed that an ethics
complaint concerning his use of the MMPI has recently been raised
against him. Otherwise, his report was not discredited on
cross-examination.
Dr. Shutt's criticism of Dr. Wilson for not noting LEM's
medical and other histories is probably valid. His conclusions,
however, are based neither on a personal interview with LEM nor
Dr. Wilson's final report. His criticism of Dr. Wilson's use of
the MMPI-2 results is questionable as he himself has been charged
with misusing the MMPI. I also note in reading his report that
many of the conclusions stated are couched in terms of "could,"
"may have differed," "may suggest" or other terminology which
tends to diminish the conclusions stated. Additionally, his
report was also written strictly from the perspective of
responding to the referral question, that being, as to whether
LEM was damaged as a result of the APS work environment. His
report is not intended to be a psychological profile but rather
strictly a critique of Dr. Wilson's work product. I accept it
for what it is. I also note that many of the conclusions stated
by Dr. Shutt, which are couched in terms of "could," "may
suggest," etc., have not been proven by him based upon any other
objective data or test results. Although his report is entitled
to some weight, I do not consider it to be of sufficient value to
materially dispute the conclusions stated by Dr. Wilson.
In evaluating the psychological evidence included within the
three reports, I conclude that LEM is an exhibitionist who
receives a negative reaction from co-workers in the form of
rejection and ostracism. LEM perceived the Tim Hall incident as
a threat to her personal safety. She suffers from PTSD which was
caused by stresses in her life potentially related at least in
part to the work environment experienced at APS. LEM is not a
group deviant.
CONCLUSIONS OF LAW
Whether Respondents Discriminated Against Linda Mitchell
by Lowering Her 1990 Employee Performance Appraisal in
Retaliation for having Engaged in Protected Activity
[Page 34]
This action arises under the Energy Reorganization Act of
1974, Section 210(a), as amended, 42 U.S.C.A. Section 5851
(hereinafter referred to as ERA), which provides, in pertinent
part, as follows:
(a) Discrimination against employees
No employer, including a Commission licensee, an applicant
for a Commission license, or a contractor or a subcontractor
of a Commission licensee or applicant, may discharge any
employee or otherwise discriminate against any employee with
respect to his compensation, terms, conditions, or privileges
of employment because the employee (or any person acting
pursuant to a request of the employee) --
(1) commenced, caused to be commenced, or is about to
commence or cause to be commenced a proceeding under this
chapter or the Atomic Energy Act of 1954, as amended (42
U.S.C.A. Section 2011 et seq .), or a proceeding for the
administration or enforcement of any requirement imposed
under this chapter or the Atomic Energy Act of 1954, as
amended;
(2) testified or is about to testify in any such
proceeding or;
(3) assisted or participated or is about to assist or
participate in any manner in such a proceeding or in any
other manner in such a proceeding or in any other action to
carry out-the purposes of this chapter or the Atomic Energy
Act of 1954, as amended (42 U.S.C.A. Section 2011 et seq.).
This case arises in the Ninth Judicial Circuit which has yet
to determine the allocation of proof burdens in an Energy
Reorganization Act whistleblower case. The evaluation issue
requires application of the "dual motive theory" in establishing
violations under the Act. In these cases, the evidence provides
two possible motives for the termination of the Complainant, one
being a legitimate management reason, and the other being an
impermissible motive of retaliation for a protected activity.
The applicable burden of proof standards adopted by the Secretary
[Page 35]
in "dual motive" cases are those expressed by the National Labor
Relations Board in Wright Line, a Division of Wright Line, Inc. ,
1980 CCH NLRB #17,356 (1980), affirmed sub. nom. NLRB v. Wright
Line , 662 F.2d 889 (1st Cir. 1981), cert. denied 455 U.S. 989
(1982), and approved by the Supreme Court in NLRB v.
Transportation Management Corp. , 103 S.Ct. 2469 (1983). The
standards set forth in Wright Line have been made applicable to
proceedings arising under Section 5851 of the ERA. Consolidated
Edison Company of New York, Inc. v. Donovan , 673 F.2d 61 (2d Cir.
1982). A variety of other Circuits have also applied these same
standards in disposing of dual motive cases.
In applying Wright Line to this case, it was incumbent
upon the Complainants to initially establish a prima facie
case of discrimination against Respondents by way of proof
of the following:
1. That the party charged with discrimination is an
employer subject to the Act(s);
2. That the complainant was an employee under the
Act(s);
3. That the complaining employee was discharged or
otherwise discriminated against with respect to
his or her compensation, terms, conditions, or
privileges of employment;
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 retaliation against the employee was
motivated, at least in part, by the employee's
engaging in protected activity.
Texas Department of Community Affairs v. Burdine , 450 U.S. 248,
101 S.Ct. 1089, 67 L.Ed. 2d 207 (1981); Dean Dartey v. Zack
Company of Chicago , 82-ERA-2, final Decision and Order of the
Secretary issued April 25, 1983, slip op. at 6-9. Once the
Complainants have established a prima facie case, the burden of
production then shifts to the Employer to show that the discharge
or other adverse action would have occurred in any event
[Page 36]
regardless of the forbidden motivation. If the Employer
satisfies this intermediate proof burden, then the burden shifts
back to the employee to establish that the preferred legitimate
business reasons for the termination were merely pretextual in
explaining the discharge. Although both parties bear proof
burdens under this standard, the burden of proving by a
preponderance of all of the evidence that retaliation for
protected activities was a motivating factor in the employee's
action always remains with the Complainant and never shifts to
the Employer. Dean Dartey v. Zack Company of Chicago, supra .
Wright Line makes it clear that the employee must prove the
employer's guilt by a preponderance of the evidence. NLRB v.
Great Dane Trailers , 388 U.S. 26, 87 S.Ct. 1792 (1967). The
opinion by the circuit Court in Wright Line explained that the
only burden which could acceptably be placed upon the employer is
a "burden of production" which was described as a responsibility
of going forward with credible evidence to rebut or meet the
prima facie case. That responsibility has been characterized as
an obligation upon the employer to "come forward with enough
evidence to convince the trier-of-fact that, under the
circumstances, there is no longer a preponderance of evidence
establishing a violation." NLRB v. Amber Delivery Service , 651
F.2d 57 (1st Cir. 1981) The Court, in Wright Line , concluded
that the "burden" referred to in making reference to the
Employer's obligations is merely a burden of going forward to
meet the prima facie case, not a burden of persuasion on the
ultimate issue of the existence of a violation.
The parties have stipulated that the subject matter of the
complaint confers jurisdiction upon this office. It has also
been stipulated that LEM and the Respondents were in an
employee/employer relationship at the time of the incident. (JX
94, par. 2) The stipulation also contains the employment history
of LEM with APS up to the date of the hearing. (JX 94, par. 3,
4) On brief, Respondents acknowledged that the Complainant
engaged in protected activity in May of 1990 as the result of the
filing of a 10 C.F.R. Section 2.206 petition with the NRC. In
addition, Respondents concede that the fact of that filing was
widely publicized by the news media and also by Complainant, and
therefore, the Employer knew or had knowledge of the protected
activity of LEM. The Employer contends that the Complainant has
failed to establish that she was discriminated against with
respect to her compensation, terms, conditions or privileges of
[Page 37]
employment. It is also contended that LEM has failed to show
that the alleged discrimination was motivated, even in part, by
her engaging in protected activity.
There is no question that the overall appraisal rating of LEM
was downgraded in 1990 from one of either "superior" or "exceeds
most standards" to one of "standards met consistently." The
standards met consistently rating appears to be an average rating
in terms of those offered by the rating form. Therefore, LEM's
overall appraisal rating was clearly downgraded from the one
which she had earned the prior year. I find that action to be
evidence of discrimination against her with respect to the terms,
conditions or privileges of employment. Under whistleblower
laws, unlawful discrimination is given an inclusive definition.
Deford v. Secretary of Labor , 700 F.2d 281 (6th Cir. 1983); Ellis
Fischel State Cancer Hospital v. Marshall , 629 F.2d 563 (8th Cir.
1980).
It is next incumbent upon LEM to prove that the downgrading
in her evaluation was motivated, at least in part, by her having
engaged in protected activity. Improper motive can be
established by circumstantial evidence. Ellis Fischel State
Cancer Hospital v. Marshall , 629 F.2d 563.(8th Cir. 1980), cert.
denied 450 U.S. 1040 (1981). An inference of retaliatory motive
can arise strictly as a result of the proximity of the protected
activity to the date of the discriminatory action. Couty v.
Dole , 886 F.2d 147 (8th Cir. 1989); Keys v. Lutheran Family and
Children Services of Missouri , 668 F.2d 356 (8th Cir. 1981);
Womack v. Munson , 619 F.2d 1292 (8th Cir. 1980); cert. denied 450
U.S. 979 (1981); Davis v. State University of New York , 802 F.2d
638 (2d Cir. 1986).
The record shows that LEM, on May 22, 1990, filed a 2.206
petition with the NRC to institute formal proceedings which could
result in a revocation, suspension or modification of APS'
license to operate PV. The employee evaluation of LEM was signed
by Smyers on August 14, 1990 and by LEM on August 23, 1990.
Therefore, the downgrade in her evaluation took place between two
to three months immediately following her filing of the petition
with the NRC. The proximity of these actions, I find, raises an
inference of retaliatory motive on the part of Respondents. In
addition, this record shows a long history of other protected
activity engaged in by LEM over a period of years. That
activity, all of which is fully described in the discussion
[Page 38]
relating to the hostile work environment issue, was also well
known to management employees of APS. Taken together, I conclude
that the Complainant has established a prima facie case of
discrimination by Respondents as a result of their having lowered
her employee performance appraisal.
Since the Complainant has established a prima facie case, the
burden of production now shifts to the Employer to show that the
downgrading in the overall evaluation of LEM in 1990 would have
occurred regardless of any forbidden motivation. It is incumbent
upon the employer to move forward with credible evidence to rebut
or to meet the prima facie case. Following an evaluation of the
Employer's evidence, it is my conclusion that evidence has been
produced, under the circumstances of this case, so that there
would no longer exist a preponderance of evidence establishing a
violation.
In listening to the testimony of Conway, there was no
question in my mind of his sincerity or of his credibility in
elaborating upon his attitude toward the overall evaluation of
employees at APS. I believe that he did, in fact, communicate a
policy change to the APS management employees. The record
demonstrates that the policy as implemented at the employee level
was inequitably applied. It seems fair to say that Smyers
accepted his instruction from his superiors at face value whereas
other managers did not. It seems equally clear to me that with
respect to this question, as I will conclude with respect to
other questions, that communication problems existed within the
management of APS.
This record contains no evidence that management intended to
discriminate against the entire working group of which LEM was a
member. There is no evidence that LEM was singled out in any way
for purposes of her evaluation. In fact, the opposite is true in
that she was treated identically as the other members of her
group including Smyers with the exception of one individual.
LEM's evaluation form contained numerous positive comments as had
been given in prior years. There is no evidence that her
immediate earnings had been impacted by this evaluation
downgrade.
When Conway assumed control in May of 1989, the operation of
the PV facility could charitably be characterized as being a
mess. All three of the reactors were shut down. The facility
[Page 39]
was experiencing problems with certain valves, training programs
were inadequate, there were management problems as well as
maintenance and hardware problems. Consistent with his findings
in that regard, I would consider a new employee evaluation
program as being entirely reasonable. Changes were clearly
warranted. Conway, I believe, attempted to make those changes.
The change in evaluation approach represents one step. I find no
evidence that his policy of evaluation change was made applicable
only to individuals or to groups because they had been
complainers or had approached the NRC. The evaluation policy was
changed because it needed to be changed.
For all of these reasons, I conclude that the Respondents
have demonstrated a legitimate non-discriminatory reason for the
downgrading in the evaluation of LEM. Respondents have demonstrated
that the evaluation downgrade would have occurred in any
event, regardless of any forbidden motivation.
Since the Employer has now established that there is no
longer a preponderance of evidence establishing a violation, it
is now incumbent upon LEM to produce evidence of "disparate
treatment." McDonnell Douglas Corp. v. Green , 411 U.S. 792
(1973); Wright Line, supra; Mt. Healthy City School District v.
Doyle, 429 U.S. 274 (1977). Disparate treatment simply means
that an employee who engages in protected activity was treated
differently, or disciplined more harshly, than an employee who
did not engage in the protected activity. Donovan o.b.o. Chacon
v. Phelps Dodge Corp. , 709 F.2d 86 (D.C. Cir. 1983).
In considering this record as a whole for purposes of the
evaluation issue, I find no evidence that disparate treatment was
afforded any employee. LEM was treated no differently than any
of the other employees within her group including her supervisor.
The impression that I glean from considering the record as a
whole is that Conway initiated a new policy which was to have
been equitably and fully implemented by the managers beneath him.
There is evidence that the policy was not equitably administered
by all managers. LEM appears to have been in the unfortunate
circumstance of being a member of a group which was managed by an
individual who followed the directions that were given to him.
Rather than consider that action to be detrimental to the
company's interest, I suspect that Conway would have hoped that
the rest of his management team were as competent.
[Page 40]
In my judgment, the action initiated by Conway was demanded
by his best business judgment. The mess which he inherited
demanded decisive action to save a sinking ship and perhaps to
avert disaster. The picture was not pretty and the change in
evaluation policy was but one small step in righting an
intolerable situation. I find no evidence of disparate treatment in
this record as it relates to the overall evaluation of LEM for
the period ending in the middle of the year in 1990.
Based upon my findings in this regard, I conclude that
Respondents did not discriminate against LEM by lowering her
evaluation.
Whether All Instances of Harassment Comprising the
Hostile Work Environment Claim, Excepting the
Tim Hall Incident, are Time Barred
and
Whether Respondents Discriminated Against Linda Mitchell
By Subjecting Her to a Hostile Work Environment in
Retaliation for Having Engaged in Protected Activity
The Energy Reorganization Act requires that complaints of
retaliation for protected activities must be filed "within thirty
days after such violation occurs." 42 U.S.C. Section 5851(b)(1).
The record of this case contains evidence relating to events
occurring as early as the latter part of 1985 and extending
through October of 1990. Complainant argues that the facts
alleged support a finding that Respondent has committed a
continuing violation which would support the consideration of
events occurring outside of the 30-day statute of limitations.
This contention is based upon the respondents' having created a
"hostile work environment" which gave rise to discriminatory
conduct against complainant. On brief, Complainant argues that
"all of the incidents alleged here which occurred between
September 1989 and September 1990 are related rather than
separate acts. Taken as a whole, these incidents formed a single
act of a hostile environment. All of the alleged incidents
should be treated as timely filed under the continuing violation
theory given that it is conceded the last act falls within the
limitations period." Therefore, Complainant has conceded that
the evidence in this case relating to events extending from the
latter part of 1985 through August of 1989 are not to be
considered as a part of the continuing violation.
[Page 41]
Evidence of discriminatory actions which pre-date the filing
date of a complaint under this section, but found not to be
continuing in nature, nevertheless may constitute relevant
background evidence suggesting present patterns of behavior.
Malhotra v. Cotter & Co. , 885 F.2d 1305 (7th Cir. 1989).
Therefore, some events relating to potential discriminatory
conduct by APS will be considered only as relevant background
evidence. Thus, evidence relating to events occurring between
the latter part of 1985 and August of 1989 will be considered
only within that context.
Complainant argues that a series of events occurring between
September of 1989 and September of 1990 constitute the basis for
a finding of a continuing violation against Respondent. Any
number of those events occurred outside of the statutory 30-day
period for filing a claim under this Act. Respondent raises the
question as to whether any of those acts should be considered.
Complainant argues that since a continuing violation has been
established that all of those acts should be considered in
weighing the continuing violation theory.
In disposing of the statute of limitations issue, it is
first necessary to consider whether the actions of respondent
might constitute a continuing violation. Egenrieder v.
Metropolitan Edison Company/G.P.U. , 85-ERA-23, (Secretary's Order
of Remand issued April 20, 1987). The Secretary cites with
approval the cases of Erdmann v. Board of Education Union County
Regional High School District No. 1 , 541 F.Supp. 388 (D.C. N.J.
1982) and Tyson v. Sun Refining and Marketing Company , 599
F.Supp. 136 (E.D. Pa. 1984).
Courts have generally recognized an equitable exception to
the statutory limitations period for continuing violations "where
the unlawful employment practice manifests itself over time,
rather than as a series of discrete acts." Waltman v. Int'l
Paper Co. , 875 F.2d 468 (5th Cir. 1989). In order for
Complainant to invoke the exception, she must show that an
ongoing violation, and not just the effects of a previous
violation, extended into the statutory period. Bruno v. Western
Electric Co. , 829 F.2d 957 (10th Cir. 1987); see English v.
Whitfield , 858 F.2d 957 (4th Cir. 1988); see also Held v. Gulf
Oil Co. , 684 F.2d 427 (6th Cir. 1982). the Secretary has also
cited approvingly the case of Van Heest v. McNeilab Inc. , 624
F.Supp. 891 (D. Del. 1985) in which it is indicated that the
[Page 42]
continuing violation theory recognizes that past discriminatory
acts have occurred outside the limitations period and that the
Complainant's awareness of those acts is irrelevant. What is
important is that the plaintiff file her complaint within the
statutory period of the last discriminatory act in a course of
conduct. In that event, Complainant will be allowed to litigate
all claims that are part of that continuing violation, because
she filed within the statutory period of the end of the
violation.
The following three factors have been identified as bearing
on the determination as to whether a continuing violation has
occurred. See Berry v. Board of Supervisors of LSU , 715 F.2d 971
(5th Cir. 1983), cert. denied , 479 U.S. 868 (1986).
(1) Identity of Subject Matter . Do the acts "involve the
same type of discrimination, tending to connect them in a
continuing violation?" See also Graham v. Adams , 640
F.Supp. 535 (D.D.C. 1986) which includes that continuing
violation allegations must connect remote claims to
incidents addressed by claims timely filed.
(2) Frequency of Incidents Alleged . Are the acts "recurring
. . .or more in the nature of an isolated work assignment
or employment decision?"
A complainant can establish a continuing violation either through
a series of discriminatory acts against an individual or a
respondent's policy of discrimination against a group of
individuals. Green v. Los Angeles City Superintendent of
Schools , 883 F.2d 1472 (9th Cir. 1989). The distinction to be
made here is between a sporadic outbreak of discrimination and a
dogged pattern. Bruno , 829 F.2d at 957.
(3) Quality of Permanence . Does the act have the degree of
permanence which should trigger an employee's awareness of
and duty to assert his or her rights, or which should
indicate to the employee that the continuing existence of
the adverse consequences of the act is to be expected
without being dependent on a continuing intent to
discriminate?
In considering this item, the court in Waltman , 875 F.2d at 468,
stated that:
[Page 43]
Acts of harassment that create an offensive or
hostile environment generally do not have the
same degree of permanence as, for example, the
loss of a promotion. If the person harassing a
plaintiff leaves his job, the harassment ends;
the harassment is dependent on a continuing
intent to harass. In contrast, when a person
who denies a plaintiff a promotion leaves, the
plaintiff is still without a promotion even
though there is no longer any intent to
discriminate. In this latter example, there is
an element of permanence to the discriminatory
action, which should, in most cases, alert a
plaintiff that her rights have been violated.
However, before I can determine whether a continuing
violation has occurred, I must first determine whether any
violation has occurred. Complainant contends that she
experienced discrimination in violation of Section 210 of the ERA by
being subjected to a hostile work environment. To establish a
prima facie case of hostile work environment, LEM must establish
the following elements:
1. Membership in a protected category or in a Section
210 case evidence of protected activity;
2. Unwelcome harassment;
3. The harassment resulted from having engaged in
protected activity;
4. That the harassment effected a term, condition or
privilege of employment; and
5. That the Employer knew or should have known of the
harassment and failed to take prompt, effective
remedial action.
See Meritor Savings Bank v. Vinson , 477 U.S. 57, 106 S.Ct. 2399
(1986); Henson v. City of Dundee , 682 F.2d 897 (11 Cir. 1982);
English v. Whitfield , 858 F.2d 957 (4th Cir. 1988). In Meritor ,
the Court recognized under the third element that a complainant
could establish that certain pervasive acts were so severe that
[Page 44]
they created an environment which altered the terms, conditions
and privileges of employment. LEM's case was heard in the Ninth
Federal Judicial Circuit. That circuit has not addressed the
question as to whether a "hostile work environment" is an
independent claim of discrimination under Section 210 of the
Energy Reorganization Act. Only the Fourth Circuit has
considered this type of claim. English v. Whitfield , 858 F.2d
957 (4th Cir. 1988)
The Ninth Circuit has applied the standards enunciated in
Meritor, to claims of sexual harassment. Vasconcelos v. Meese ,
907 F.2d 111 (9th Cir. 1990); Ellison v. Brady , 924 F.2d 872 (9th
Cir. 1991). As Complainant pointed out in her brief, the law in
the hostile work environment area is still evolving and the
Federal Courts have yet to determine a uniform concept of what
constitutes a hostile work environment. Since there are no Ninth
Circuit cases applying Section 210 of the ERA to a hostile work
environment theory, we are left with attempting to glean a theory
for that circuit from cases decided under Title VII. In
considering the arguments of counsel made on brief, clearly
different interpretations were given to the Ninth Circuit's
approach in Ellison . Ellison represents a 1991 pronouncement by
the Ninth Circuit in a hostile work environment case. Therefore,
I feel compelled to follow the principles enunciated in that case
even though it relates to Title VII.
Complainant argues that a subjective approach should be given
to the evidence in this case whereas the Respondent contends that
an objective approach to the evidence should be taken.
Complainant also contends that Section 210 of the ERA requires the
Respondent to encourage employees to raise safety concerns. I
find that argument to be imaginative but not the law. While
employers do carry some legal obligations under the anti-
discrimination statutes, encouraging employees to raise safety
concerns has never been raised to the dignity of a legal duty.
Therefore, I reject Complainant's contentions in that regard.
The Court in Ellison adopted a reasonable victim standard as
observed from the perspective of the victim. I agree with
Respondent that the reasonable victim standard is comparable to a
"reasonable person standard" applied in other areas. I also
believe that the standard should be gender neutral. Respondent
argues that Complainant must show that she encountered a work
atmosphere in which harassing conduct was so severe or pervasive
[Page 45]
that a reasonable nuclear power plant worker would have believed
it stifled her liberty to raise safety concerns to the NRC and
altered the terms, conditions or privileges of her employment. I
agree with that summary of the law. It is not necessary that the
harassers realize that their conduct creates a hostile working
environment.
The Ninth-Circuit in Ellison also made an expression
concerning how it will determine what conduct unreasonably
interferes with working conditions. The Court stated:
The required showing of severity or seriousness of the
harassing conduct varies inversely with the
pervasiveness or frequency of the conduct . . . .
Although a single act can be enough, . . . generally,
repeated incidents create a stronger claim of hostile
environment, with the strength of the claim depending
on the number of incidents and the intensity of each
incident.
William F. Conway, who is the Executive Vice President in
charge of Nuclear at APS arrived at PV in May of 1989. I found
him to be an honest, forthright and impressive witness. He had
excellent experience in the nuclear field prior to his arrival.
The Complainant is alleging that the discrimination is based upon
events occurring between September 1989 and September of 1990.
Thus, Conway had only been employed by APS a short period of time
prior to the first event in September of 1989. By way of
background, the record shows that in September of 1989, all of
the top managers at PV had only short periods of service with the
company. Conway arrived in May of 1989, Levine, who was the Vice
President of Nuclear Production arrived in September of 1989,
Ballard who was the Director of Quality Assurance commenced
employment in March of 1989 and Overbeck the Director of Site
Technical Support was hired in April of 1990. Smyers who was
LEM's immediate supervisor in the Electrical Systems had been
with the company since 1981. Thus, none of these individuals
with the exception of Smyers had any longevity in dealing with
LEM prior to September of 1989.
When Conway arrived, the picture produced by this record as
to circumstances at PV was critical to say the least. In March
of 1989, all three of the reactors had been shut down due to
mechanical problems. Levine indicated that all of the employees
[Page 46]
at PV were aware of a financial strain placed upon the company as
a result of the shutdowns. The units remained inoperable as late
as the early part of summer 1989. The problems were apparently
not being solved. This record contains a substantial amount of
evidence devoted to the question of emergency lights. Conway
characterized the emergency lights as being "garbage" and
considered that problem area to be serious. The NRC notes that
the problems had persisted since 1984. Conway also makes
reference to communication problems and perhaps some of this
difficulty can be directly related to his re-evaluation of the
Employee Evaluation Program. It is always difficult to point
fingers, but obviously the individuals running this operation
were new at this time and thus, top APS management must have
believed when Conway was hired that serious problems existed in
the operation of this facility.
I believe that the record shows that APS had a codified
nondiscrimination policy in effect at the time Conway arrived but
I question whether that policy had been properly implemented.
The QA Hotline, which was to have been used to permit employees
to express their concern with potential safety problems, was
replaced by Ballard with an Employee Concerns Program. The
record shows that some employees believed that the QA Hotline did
not protect the confidentiality of the caller. I suspect that it
was that problem in part which caused the implementation of the
New Employee Concerns Program.
Complicating matters even further for APS, was the extent to
which the PV facility was receiving adverse newspaper publicity.
The record documents negative newspaper publicity and, in
addition on June 5, 1990, Complainant, her husband and her
attorney appeared on a radio talk show in Phoenix which gave
considerable adverse publicity to the PV operation. Suffice it
to say that during the period from March of 1989 through 1990,
that things were not going well for APS at the PV operation.
LEM arrived at the PV facility in January of 1985. Her
performance appraisal reports demonstrate that she was a
competent, dedicated, conscientious and questioning employee.
They also demonstrate that she did experience attitude problems
giving rise to a depression which could have negatively impacted
herself and also those around her. My feeling is that LEM was an
outstanding employee of APS who wanted to do things right but who
could not get the attention of management to properly correct
[Page 47]
problems in her area of jurisdiction. Ballard testified that in
his personal conversation with LEM, that she indicated that it
was her opinion that upper management at APS was incompetent. I
believe that to be a fair appraisal of her feelings.
Since she was unable to correct the problems that she
perceived to be threatening the facility by way of management
action, LEM then turned to the NRC for redress. As a result of
that action, she not only got the attention of the NRC but also
of the management of APS together with the attention of her
co-workers. Unquestionably, and based upon the testimony of
numerous witnesses, a hostility developed at the PV facility
against LEM since the possibility existed that the financial
strain caused by the reactor shutdowns could also cause other
employees to lose their jobs. That possibility gave rise to the
creation of hostile feelings toward LEM by a significant number
of PV employees. LEM's exhibitionist tendencies and high profile
throughout the facility only exacerbated the situation. She was
a small fish in a big pond and it was her intention to close the
place down as evidenced by the filing of the 10 C.F.R. Section
2.206 petition with the NRC. Her profile was enhanced by the
fact that she went on practically every walk-down with the NRC
team throughout this period. Other employees saw that and some
made negative comments concerning her relationship with the NRC
officials. The 2.206 petition alleged serious misconduct by APS
officials and could result in a revocation, suspension or
modification of APS' license to operate PV.
I will now consider whether LEM has established a prima facie
case of hostile work environment. Initially, there is no
question but that she has engaged in protected activity.
Respondents had acknowledged this item. Secondly, there is no
question but that she has been the subject of unwelcome
harassment from both management and co-workers. Ballard's
reference to her as a "bitch" and his suggestion that she be
fired occurred in September of 1989. In January of 1990, Smyers
gave LEM a friendly reminder that APS was interested in getting
rid of her. Therefore she should keep a low profile. I don't
think that Smyers' personal intention was to harass, but rather
to warn. However, the conveyance of the impression that
management was out to get her is intimidation and that
constitutes harassment. The yellow sticky incident involving
Inspector Ramsey occurred in February of 1990. That incident
represents a deprivation by a member of management of a
[Page 48]
disclosure right of LEM to assist the NRC in its inspection
process. A deprivation of that right constitutes harassment.
The Tom Berlin incident I do not find to be meaningful for
purposes of this case. The incident involving Sowers occurred on
July 6, 1990 and I interpret Sowers' mannerism as conveying the
possible impression that LEM was partly responsible for the
negative inspection report. That action constitutes harassment.
The Tim Hall incident occurred on September 18, 1990 and that
clearly represents employee harassment. In summary, this record
contains obvious evidence of unwelcome harassment.
Thirdly, LEM is required to establish that the harassment
resulted from her having engaged in protected activity.
Unquestionably, that is the case here. As was noted earlier, LEM
maintained a very high profile at the APS facility due to her
activity in reporting safety concerns. The record is replete
with comments from management and workers alike to the effect
that LEM was held, at least in part, responsible for a potential
shutdown of the entire PV operation due to her having expressed
safety concerns to the NRC. The Ballard incident evidences a
hostile management attitude toward her. There is evidence that
management was ignoring some safety concerns and LEM and her
group were trying to push things forward as best they could. (CX
3, 4) I recognize that the psychologist has indicated that LEM
is an exhibitionist and enjoys the personal exposure that goes
with that territory. However, that personality characteristic
cannot diminish the fact that the harassment has occurred and it
resulted from LEM's protected activity. Her supervisor, Smyers,
told her to "keep a low profile" and I interpret that comment not
as being harassment by Smyers, but rather as an indication of the
company attitude toward her during this period.
Fourthly, LEM is required to establish that the harassment
effected a term, condition or privilege of employment. An
actionable hostile work environment claim requires a showing by
the Complainant that the harassment was severe enough to
interfere with LEM's ability to work effectively, thus creating
an abusive or hostile working environment. The hostility which
existed during the one year period extending from September of
1989 to September of 1990 had begun to develop prior to that
twelve month period. The record contains evidence as background
relating to LEM's activities concerning the emergency lighting
problems which date back to the latter part of 1985. I find
compelling the testimony of Ramsey that some data provided him by
[Page 49]
APS was not accurate. He felt uncomfortable with this
information because he knew it was wrong. Something is amiss here.
There is a cancer growing which if allowed to continue could
become catastrophic. The Walter Marsh memorandum was issued in
January of 1989 which was critical of complaining employees, and
there is evidence that LEM met with Ballard in April of 1989
concerning safety concerns with respect to the QA Hotline. I
suspect that her reputation as a whistleblower had long preceded
her prior to September of 1989.
The test under this section may be satisfied by a showing
that the harassment was sufficiently severe or persistent to
seriously effect LEM'S psychological well-being. Sparks v. Pilot
Freight Carriers, Inc , 830 F.2d 1554 (11th Cir. 1987). This is a
question to be determined with regard to the totality of the
circumstances. Henson v. City of Dundee , 682 F.2d 897 (11th Cir.
1982). This record does contain evidence that LEM visited a
psychologist in October of 1990. Although that visit came after
the Tim Hall incident, I think it is evidence of her mental frame
as of September 18, 1990. There is evidence in the record that
LEM refrained from going to the separate units by herself after
February of 1990. At that time, she was concerned for her
personal safety. Conway was made aware in late February or early
March of 1990 about LEM having expressed concern for her personal
safety. T. H. Cogburn and Sowers met with her on March 5, 1990
to discuss her concerns relative to her personal safety.
Although many of the comments that she may have received came to
her second hand, none-the-less, her awareness was raised as to
potential safety concerns existing. The Tim Hall incident which
frightened her, and justifiably so, represented the culmination
of a series of events which made the atmosphere in her work place
hostile. In weighing the totality of the evidence under this
standard, I believe that LEM has demonstrated that she
encountered a work atmosphere in which the harassing conduct was
so severe or pervasive that a reasonable nuclear power plant
worker would have believed that it stifled her liberty to raise
safety concerns and thus altered the terms, conditions or
privileges of her employment.
Finally, it is also incumbent upon LEM to establish that the
Employer knew or should have known of the harassment and failed
to take prompt, effective remedial action. This case is
interesting because it presents facts demonstrating harassment by
both co-workers and management. As was noted earlier, the
[Page 50]
atmosphere toward LEM at APS during this twelve month period was
ugly. Management was aware of that atmosphere. Ballard had met
with LEM in April of 1989 because of her safety concerns. She
again met in March of 1990 with Sowers and Cogburn for the same
reason. The remedies effectuated by management should have been
reasonably calculated to end the harassment. Katz v. Dole , 709
F.2d 251 (4th Cir. 1983); Ellison v. Brady , 924 F.2d 872 (9th
Cir. 1991). When harassment pervades the workplace, or is
condoned by supervisory personnel, it becomes illegal and a
discriminatory condition of employment that poisons the work
environment. Katz v. Dole, supra . The Employer's remedy should
have persuade individual harassers to discontinue unlawful
conduct even though dismissal may not have been warranted. The
penalties should have been sufficient to assure a work place
which was free from the harassment. Blaine Ballard was the
Director of Quality Assurance. He was directly involved with the
Employee Concerns Program and the QA Hotline. His example should
have been impeccable. Although the Ballard incident in which he
referred to LEM as a "bitch" was investigated by management, that
action was wholly inadequate and did not serve to set a proper
example for other employees. Conway testified that he gave
Ballard a verbal lashing but that was simply not enough
considering the volatile circumstances that existed.
The record shows that the company and Conway, in particular,
had in place a series of written memoranda which expressed APS'
position with regard to the harassment of whistleblowers. As
compelling as the written memoranda may be, the testimony of the
powers that be at APS indicated to me that there existed a
serious communication problem within the company and I attribute
a part of the harassment attitude to that problem.
Conway issued a memorandum on safety on September 21, 1989
probably as a result of the Ballard incident, but basically that
memorandum was too little too late. With all of the problems
being experienced by the PV facility in regard to each of the
reactors during the twelve month period involved in this case, I
would have expected management to assume a more pronounced
position in regard to protecting those individuals who exercise
their right to express safety concerns. I find no fault with the
way in which the Tim Hall incident was handled and resolved by
management. There is testimony that management was aware that
there existed a feeling among the workers at PV that LEM was
being held responsible for keeping the units shut down as a
[Page 51]
result of emergency lighting problems. If that attitude was
prevalent, management had an obligation to address it in a much
more vocal way. The company investigation of circumstances
which gave rise to LEM meeting with Cogburn and Sowers in March
of 1990 was also wholly inadequate. The investigator did not
seek to determine the identity of the person or persons who made
any of the alleged threats against LEM. Although there is
evidence of a company complaint procedure and a policy against
discrimination, I suspect that due to the communication problems
which existed within APS during this period, that some complaints
were not properly investigated and the overall hostile attitude,
problem was never addressed. The record is clear that APS knew
of the harassment of LEM during this one year period and failed
to take prompt, effective or remedial action to stop it.
In view of the above findings, Complainant has established a
prima facie case of discrimination against her based upon the
presence of a hostile work environment. We must draw a fine line
between the need under the law to foster openness in the
workplace as to the NRC for safety purposes and the need to
follow some internal organizational procedures for voicing
concerns. APS had NED, Compliance, the LER group and memoranda
issued by management to express the safety concerns and to
define the guidelines. But better organization in coordinating
these activities was needed. Conway recognized the severity of
the problems that existed when he arrived in May of 1989. He
acknowledged that APS did not do very well in the areas of
problem resolution and communication. He attempted to implement
an open door policy and positive attitude development. However,
reversing an entrenched policy of inaction or denial of existing
problems could not be accomplished overnight. I do not fault
Conway for the attitudes which have given rise to the violations
here. Respondents have not rebutted Complainants evidence
establishing discrimination in this case.
I must now consider whether a continuing violation has
occurred based upon the law as stated earlier. I find that the
identity of the subject matter is the same with respect to all of
these incidents. Each of the incidents relate to some activity
which was caused by the pervasive negative attitude toward LEM
which was present at PV. The Tim Hall incident was a subtle
reminder that her protected activities were unappreciated. The
Blaine Ballard incident was provoked by the same activity.
Harassment based upon the removal of information which she had
[Page 52]
provided to the NRC also arose as a result of her protected
activity. Her numerous meetings with management concerning
safety concerns were all directly related to her concern for
safety at the plant. I find there exists an identity of subject
matter during this twelve month period.
Also, I do not view these activities as being sporadic in
nature but rather there is a pattern to them. That pattern
developed as a result of the pervasive nature of the atmosphere
at the plant toward LEM. This series of discriminatory acts
coupled with management's inadvertence in dealing with the
problem causes them to be recurring. Finally, the incidents
involved in this case lack the quality of permanence which could
have placed LEM on notice and created a duty on her part to file
her claim at an earlier date. As was noted in the evaluation
discussion, LEM was not denied promotions nor was her pay
interrupted in any way during these periods. The discrimination
involved in this case was subtle and although the incidents are
clearly related due to the pervasiveness of the discriminatory
atmosphere that persisted at PV, I find that none of these
incidents should have alerted LEM that a complaint should have
been filed. The Tim Hall incident basically represents the icing
on the cake. At that point, she was frightened, concerned for
her personal safety and needed to take some action. The acts
involved here were not of a permanent nature but rather served to
perpetuate the scheme of discrimination that preceded her
complaint filing.
In view of the findings in this regard, I conclude that LEM
has established that a continuing violation occurred. Therefore,
each of the events extending from September 14, 1989 through
September 18, 1990 should be considered in determining whether
LEM was discriminated against as the result of the presence of a
hostile work environment at the PV facility. She did file her
complaint within the statutory period of the last discriminatory
act in a course of conduct. Thus, she is allowed to litigate all
claims that form a part of the continuing violation.
DAMAGES
Since LEM has prevailed on the hostile work environment
issue, she is entitled to damages. The law provides the
following remedies:
[Page 53]
1. An abatement of the discrimination;
2. Restoration of an employee to her job with all
attendant benefits, including backpay;
3. An award of compensatory damages; and
4. All reasonable expenses incurred in pursuit of the
claim.
Deford v. Secretary of Labor , 700 F.2d 281 (6th Cir. 1983); 29
C.F.R. Section 24.6(b)(3). Since LEM did not lose her position
at APS, she is not entitled to backpay.
In her petition, LEM requests the following remedies:
a. To have her 1990 EPA ratings restored to those
received in her 1989 EPA and to have her 1990
EPA expunged;
b. One million dollars in compensatory damages;
c. That APS be ordered to inform its employees not to
harass, intimidate, retaliate, or threaten LEM;
d. Reasonable attorney fees and costs;
e. To order the Respondents to take affirmative action
to abate the harassment and threats against LEM; and
f. Any further relief as deemed appropriate.
Concerning these requests, Item (a) can not be granted since
LEM did not prevail on the evaluation issue.
The request for one million dollars in compensatory damages
is totally unreasonable and out-of-line with all precedent in
this area. In non-discharge discrimination cases, an award of
approximately $40,000 to $50,000 appears to be appropriate.
Forty-thousand dollars was awarded for emotional distress in
Fleming v. County of Kane State of Ill. , 898 F.2d 553 (7th Cir.
1990). In Wulf v. City of Wichita , 883 F.2d 842 (10th Cir. 1989)
$50,000 was awarded where the Complainant was under emotional
strain and experienced significant financial difficulties.
Fifty-two thousand dollars was found reasonable for emotional
[Page 54]
distress and suffering in the case of Muldrew v. Anheuser-Busch,
Inc. , 728 F.2d 989 (8th Cir. 1984). However, that was a
discharge case.
LEM offers as evidence of the emotional distress that she has
suffered each of the following items:
Relationships with co-workers have deteriorated;
She became upset and nervous over the warnings that
she keep a low profile;
She has become physically ill and nervous over several
of the incidents involved;
Dr. Wilson has indicated that she responded like
someone who has been severely threatened, and it was
his opinion that she suffers from post traumatic
stress disorder. Complainant contends that she is
less involved in life, that work is a serious
problematic life event for her, that she has less
enjoyment for food and sex, that she has a sleep
disorder and that she has trouble remembering events
and finds it difficult to concentrate. The record
shows that she has suffered emotional pain and
suffering, mental anguish, emotional distress, and
her professional reputation has been damaged as a
direct result of the discrimination established in
this case.
In view of the above, I concluded that LEM is entitled
to $50,000 in compensatory damages. Punitive damages are not
included as a remedy available under the Energy Reorganization
Act. Norris v. Lumbermen's Mutual Casualty Co. , 881 F.2d 1144
(1st Cir. 1989).
ATTORNEY FEES AND COSTS
Attorney fees which are reasonably incurred by Complainant in
connection with bringing the complaint upon which the order was
issued will be awarded. Deford v. Secretary of Labor , 42 U.S.C.
Section 5851(b)(2)(B). A reasonable fee is not necessarily that
agreed to by the Complainant and her counsel. Blanchard v.
Bergeron , 489 U.S. 87 (1989); Blackburn v. Metric Constructors,
Inc. , 86-ERA-4 (Sec'y October 30, 1991.
[Page 55]
Factors to be considered in awarding fees are:
1. Time and labor required;
2. Customary fee;
3. Novelty and difficulty of the questions;
4. The skill requisite to perform the legal service
properly;
5. Preclusion of other employment by the attorney due
to acceptance of the case;
6. Limitations imposed by the client or the legal
circumstances. Priority work that delays the
lawyer's other legal work is entitled to some premium;
7. Amount involved and the results obtained;
8. Experience, reputation, and ability of the attorney;
9. "Undesirability" of the case;
10. Awards in similar cases;
11. Whether the fee is fixed or contingent; and
12. Nature and length of the professional relationship
with the client.
Johnson v. Georgia Highway Express, Inc. , 488 F.2d 714, 718 (5th
Cir. 1974).
In addition, litigation costs and expenses are also
reimburseable including monies reasonably spent in pursuing the
cause of action. Goldstein v. Ebasco Constructors, Inc . No.
86-ERA-36 (May 17, 1988). This includes lodging, paralegal
expenses, and the Complainant's transportation expenses to and
from the hearing.
ORDER
Accordingly, IT IS ORDERED that:
1. Respondents pay to Complainant compensatory
damages in the amount of $50,000 in compensation
for distress suffered as a result of the
harassment and discrimination endured.
2. Take affirmative action to cease and desist from
any discrimination against Complainant including
acts to harass, intimidate, retaliate against, or
threaten her.
[Page 56]
3. Inform all employees that they are to cease and
desist from any discrimination against Complainant
including any acts to harass, intimidate,
retaliate against, or threaten her. This company
statement is to be released only with the full
participation and consent of Complainant.
4. Pay to Complainant, all costs and expenses,
including reasonable attorney fees incurred by her
in connection with this proceeding.
Counsel for Complainant will have thirty days from the date of
this Order in which to submit an application for attorney fees
and expenses reasonably incurred in connection with this
proceeding. A service sheet showing that proper service has been
made upon the Respondents and Complainant must accompany the
application. Each other party will then have fifteen days
following receipt of the application within which to file
objections.
RUDOLPH L. JANSEN
Administrative Law Judge
Nuclear
William F. Conway
Executive VP
|
_______________________________________
| |
Nuclear Production Quality Assurance
James M. Levine Ballard E. Blaine
Vice President Director
|
_________________________
| |
Nuclear Prod OPS Site Tech Support
Walter C. Marsh Gregg R. Overbeck
Director Director
| |
Unit 3-Plant |
Oswald Zeringue |
Manager |
_____________________________________
| |
Technical Support Systems Engineer
Thomas M. Cogburn Jeffrey S. Summy
Deputy Director Manager
|
|
______________________________
| |
Electrical System BOP Mechanical System
Daniel W. Smyers Kerry M. Johnson
Supervisor Supervisor
|
Lead Electrical Eng
James Samuels
|
_________________________
| |
Systems Engineer Systems Engineer
Tim Hall Linda E. Mitchell
APS ORGANIZATIONAL CHART
January, 1989 - July, 1990
(JX 44, 46-48; RX 1, p. 126)
EXHIBIT A
[ENDNOTES]
1 In this decision, "JX"
refers to the Joint Exhibits, "CX"
refers to Complainant Exhibits, "RX" refers to the Respondent
Exhibits, and "Tr." refers to the Transcript of Hearing. The
transcript of testimony heard in the afternoon of July 8, 1991 is
not paginated to conform with the other volumes of the
transcript. The transcript was prepared by Holiday & Associates
and will be referred to as Holiday Tr.
2 Attached as Exhibit A is an
APS Organizational Chart. The
chart lists the positions held by individuals who were involved
in one way or another with the events giving rise to the
complaint being filed by LEM.