DATE: April 7, 1993
CASE NO. 88-ERA-15
IN THE MATTER OF
ANDREW BARTLIK,
COMPLAINANT,
v.
TENNESSEE VALLEY AUTHORITY,
RESPONDENT.
BEFORE: THE SECRETARY OF LABOR
FINAL DECISION AND ORDER
The Secretary remanded this case to the Administrative Law
Judge (ALJ) on December 6, 1991 "for submission of a revised
recommended decision specifically addressing [certain] questions
and supporting his inferences and conclusions with explicit
references to the record." Bartlik v. Tennessee Valley
Auth., Case No. 88-ERA-15, Remand Order at 17. The ALJ had
submitted a Recommended Decision and Order finding that
Respondent discriminated against Complainant by failing to
approve extensions of his contract, or to provide for him to be
employed by engineering firms holding contracts with Respondent,
because he had raised safety and quality questions about
Respondent's Sequoyah nuclear power plant. The Secretary
directed the ALJ to "make specific credibility findings on the
testimony of the witnesses or describe the weight given to
particular testimony and exhibits which support the ALJ's
inferences and conclusions, compared to other parts of the
record." Remand Order at 5.
In particular, the Secretary held that the ALJ's conclusion
that responsible managers knew who Complainant was or that he had
engaged in protected activity, was not sufficiently supported by
a discussion of the record. Id. at 9; 11. In addition,
inferences of discriminatory motive drawn by the ALJ were not
[PAGE 2]
supported by a discussion of those portions of the record tending
to prove a finding of discrimination. Id. at 12; 13; 14;
16-17. The ALJ also did not address material in the record
lending support to Respondent's articulated legitimate reason for
failing to extend Complainant's services. Id. at 14-16.
In his Revised Recommended Decision (R.R.D.), the ALJ
concluded that "one or more upper level managers deliberately
prevented a renewal of [Complainant's] contract" in retaliation
for his protected activities. Id. at 45. But the ALJ
interpreted the Secretary's Remand Order to require direct
evidence, a "smoking gun," proving that Respondent's managers
with authority to approve extensions of Complainant's contract,
knew who he was and were aware of his protected activity.
Id. at 41; 45. Without such proof, the ALJ concluded that
Complainant did not carry his burden of proof on this element of
his retaliatory discharge claim, and recommended that the
complaint be dismissed.
I agree with the ALJ, for different reasons, that the
complaint in this case should be dismissed because Complainant
did not carry his burden of proof. However, a complainant can
prove knowledge of protected activity by either direct or
circumstancial evidence. To establish a prima facie case of
discrimination under the ERA, Complainant must show that he
engaged in protected activity of which Respondent was aware, that
Respondent took some adverse action against him, and he must
produce evidence sufficient to raise an inference that the
protected activity was the likely motive for the adverse action.
Dartey v. Zack Co. of Chicago, Case No. 82-ERA-2, Sec.
Dec. Apr. 25, 1983, slip op. at 7-8. If Complainant establishes
a prima facie case, Respondent has the burden of producing
evidence that the adverse action was motivated by legitimate,
nondiscriminatory reasons. Id. at 8. Complainant always
bears the burden of proving by a preponderance of the evidence
that retaliation was a motivating factor in Respondent's action,
and may carry that burden by showing that Respondent's
articulated reason was pretextual or that it is more likely than
not that discrimination motivated Respondent's action.
Id;House v. Tennessee Valley Auth., Case No.
91-ERA-42, Sec. Dec. Jan. 13, 1993, slip op. at 4.
Complainant may carry his burden of proof on any element of
a discrimination claim by direct or circumstantial evidence.
"The presence or absence of retaliatory motive is a legal
conclusion and is provable by circumstantial evidence . . . ."
Ellis Fischel State Cancer Hosp. v. Marshall, 629 F.2d
563, 566 (8th Cir. 1980). There is nothing in the Remand Order
requiring direct proof of any element of an ERA claim. [1]
Indeed, the order and allocation of burdens of proof and burdens
of
[PAGE 3]
production in Dartey v. Zack Co. are applicable only where
circumstantial evidence of discrimination is presented. If
direct evidence of discrimination exists, and it is not
effectively rebutted, a respondent can avoid liability only by
showing it would have taken the same action in the absence of
protected activity. Blake v. Hatfield Elec. Co., Case No.
87-ERA-4, Sec. Dec. Jan. 22, 1992, slip op. at 5-6.
However, the ALJ based his conviction that "one or more
upper level managers deliberately prevented a renewal of
[Complainant's] contract [in violation of the ERA]," R. R. D.
at 45, on many speculative assumptions or illogical, unsupported
inferences. He reached many of his credibility findings through
an analysis of the logic of the testimony and its consistency
with other evidence which, for the reasons discussed below, the
record does not support. [2] When all these are stripped away,
I find that Complainant has not carried his burden of proving by
a preponderance of the evidence that Respondent refused to extend
his contract because he engaged in protected activities.
The ALJ held that Mr. Hosmer, Sequoyah nuclear plant project
engineer, "obviously would be concerned about any engineer who
created obstacles to restart [of the plant]," R. R. D. at 19,
and "it is reasonable to assume that he could have been
interested in knowing the names of engineers like [Complainant]
who repeatedly initiated safety concerns." Id. at 20.
The ALJ did not cite any evidence or testimony to support these
assumptions, such as statements by Mr. Hosmer's managers or
members of his CAQR review team [3] that Mr. Hosmer asked the
names of employees who made safety complaints. In particular,
there is nothing in the record showing that Mr. Hosmer asked who
Complainant was or whether he had initiated any safety
complaints.
When Mr. Hosmer took over as Sequoyah Project Engineer in
June or July of 1987, he was briefed by Doug Wilson, the outgoing
project engineer, on restart issues. T. 506; 536. The ALJ
implied that Mr. Wilson mentioned Complainant's name when
Mr. Wilson briefed Mr. Hosmer because Mr. Wilson had had several
disagreements with Complainant. Although Mr. Hosmer testified he
was briefed "only in the broadest way," T. 536, the ALJ gave
little weight to this testimony because of "contradictions" in
Mr. Hosmer's testimony on what and when he knew about problems
with Appendix R. [4] R. R. D. at 21-22. Mr. Wilson did not
testify at the hearing.
For example, the ALJ held that Mr. Hosmer testified a
December 8, 1987 meeting with representatives of the Nuclear
Regulatory Commission (NRC) did not involve Appendix R, but other
evidence contradicted Mr. Hosmer's statement. Id. The
transcript reference cited by the ALJ as Mr. Hosmer's testimony
[PAGE 4]
on the NRC meeting does not discuss the meeting at all. Rather,
Mr. Hosmer was responding to questions about whether he knew that
Ed Sheehy was the author of Revision 7 of the functional
requirements for compliance with Appendix R, and what the import
was of Revision 7. T. 582-83.
The ALJ also found that a November 30, 1987 memorandum
from Mr. Hosmer to Mr. Sheehy and Mr. Renfroe conflicts with
Mr. Hosmer's assertion that the NRC meeting did not involve
Appendix R issues. R. R. D. at 21. The ALJ did not identify the
exhibit number of that document, but from the context it appears
to be Complainant's Exhibit (C)-26, which is a November 30, 1987
memo from Mr. Renfroe to Mr. Sheehy, T. 405, not a memo from
Mr. Hosmer to Renfroe and Sheehy. The memo does not mention the
NRC meeting (which took place over a week later on December 8,
1987.) Mr. Hosmer testified he did not know what the memo, C-26,
was and could only assume the initials "JVH" in the body of the
memo were his. T. 586. Mr. Renfroe, the author of the document,
also did not testify.
In addition, the ALJ found Mr. Hosmer's testimony
contradicted on whether the NRC mentioned any Appendix R problems
during a meeting on December 8, 1987, by a memorandum summarizing
that meeting. R. R. D. at 21-22; C-40. I do not find a
contradiction between this testimony and that memorandum.
Mr. Hosmer denied the NRC told him that Respondent did not meet
"licensing requirements in the Appendix R area," T. 576, but he
did not deny that he discussed Appendix R with the NRC that day,
see T. 607-608, or that one result of the meeting was a
commitment by Respondent to submit "revision 8 of the Appendix R
calculations." T. 577; 608; C-40.
Complainant had disagreements with several other engineers
about Respondent's compliance with Appendix R and the ALJ placed
great weight on those incidents, finding that "it is reasonable
to believe that word of these disputes could have reached
Hosmer," R. R. D. at 23, and "it seems likely that Hosmer had
discussions concerning [Complainant]." Id. at 24. For
example, Mr. Sheehy testified that Dave Boyll, the Sequoyah site lead
engineer for fire protection, objected to including Complainant
in a task force to review the Appendix R issues raised in
Mr. Daniels' August 28 memorandum to Mr. Hosmer. Mr. Boyll said
of Complainant "Andy's a good man but he finds more problems than
he solves." T. 395. [5] The ALJ speculated that "Boyll
apparently would have been in a position to advise Hosmer on the
composition of the task force," T. 23, implying Mr. Boyll advised
Mr. Hosmer against including Complainant because he "finds more
problems than he solves," i.e., he is a whistleblower. Mr. Boyll
did not testify and there is nothing in the record to show that
[PAGE 5]
Mr. Hosmer ever met with Mr. Boyll to discuss Appendix R,
revision 7, the composition of the task force, or any other
evidence to support this inference.
Similarly, the ALJ noted that Frank Tanner, an Electrical
Engineering Branch Chief, "stormed out of the [October 19]
meeting because he felt the issues being raised [about Appendix R
and revision 7] would impact the restart schedule." R. R. D. at
16. There is nothing in the record to show that Mr. Hosmer ever
discussed Appendix R or Complainant with Mr. Tanner. The ALJ
noted that John Henry Sullivan, head of the Sequoyah Power
Operations Review Staff, "was Hosmer's technical expert at
Sequoyah on Appendix R, knew [Complainant] and had disagreed with
him on the assessment of the need for rapid coolant system
letdown." R. R. D. at 22. Mr. Sullivan did not testify and
there is nothing in the record to indicate he singled out
Complainant to Mr. Hosmer for raising Appendix R issues. [6]
The ALJ recognized that Complainant's name did not appear on
the August 28 memorandum from Mr. Daniels to Mr. Hosmer. But
because the ALJ believed Mr. Daniels thought Complainant was the
author, the ALJ speculated that Mr. Daniels "most likely would
have discussed the origin of such a potentially significant
document [with Mr. Hosmer]." Id. at 23. There is nothing
else in the record to support such an inference, and I find that
even if Mr. Daniels thought Complainant was the author, this fact
would not justify making such an inference. Indeed, Jimmy
Pierce, the Knoxville Central Staff engineering specialist
responsible for Respondent's Appendix R program at all its
nuclear plants, T. 1040, who was Complainant's immediate
supervisor, T. 1050, testified that he was the author of
the August 28 memorandum. T. 1051-52; 1053.
I agree with the ALJ that "[t]here is . . . evidence that
Mr. Hosmer knew about many . . . of the problems [Complainant]
raised," R. R. D. at 24, but there is little evidence Mr. Hosmer
knew it was Complainant who had raised them. Once again, the ALJ
speculated that responsibility for signing off on final
dispositions of CAQRs "rested" with Mr. Hosmer, even though, as
the ALJ acknowledged, "there was no evidence presented" as to who
had final sign-off authority. Id. at 24.
The ALJ inferred discrimination from what he found was
Respondent's regular practice of arranging for "staff augmentee"
engineers to be hired by "managed task" contractors. [7] For
example, the ALJ found that "[i]t was common practice for TVA
managers to recommend specific individuals to contractors." He
based this finding on Complainant's testimony that he had seen
Respondent recommend a specific person to a contractor, and that
Respondent had arranged for Complainant to be hired by another
contractor when the contractor he had been working for until May
[PAGE 6]
1987 lost its contract. R. R. D. at 25. This is hardly
sufficient to justify a finding that recommending specific
individuals was Respondent's "common practice," [8] or to infer
that because Respondent made such arrangements in a few cases,
failure to do so a second time for Complainant proves Respondent
discriminated against him.
The ALJ found Respondent's reasons for the failure to extend
Complainant's contract pretextual because "there was no . . .
reduction in number of engineers needed [after the changeover
from staff augmentee contracts to managed task contracts], [so]
under normal circumstances [Complainant's] employment should have
continued." R. R. D. at 35. I find this conclusion completely
illogical and I reject it. [9] There is no reason to assume
that because the total number of engineers working on the
Sequoyah plant remained the same, or even increased, during the
changeover that "'most, if not virtually all of the . . .
engineers employed under the staff augmentee program would
continue employment under the new contracting arrangement.'"
Id.
Robert Bryans, Project Manager for United Engineers and
Constructors, Inc. (UE&C) of a managed task contract with
Respondent, T. 795; 798, gave the only specific testimony about
the fate of former staff augmentee engineers as a group during
the contract changeover. Mr. Bryans testified that UE&C had a
staff augmentee contract with Respondent and when UE&C was
awarded a managed task contract, about 80 per cent of UE&C's own
staff augmentee engineers were "rolled over" to the managed task
contract. T. 840. In addition, UE&C transferred its own
employees from other offices and took on some new hires, a few of
whom might have been former staff augmentees with other
companies. T. 842. Assuming UE&C's experience could be
extrapolated to other contractors, it would not support the ALJ's
conclusion that under normal circumstances Complainant's
employment would have continued, because most of a managed task
contractor's employees were its own former staff augmentees, not
former staff augmentees for other companies.
The ALJ recognized that UE&C's "experience . . . is not
necessarily representative of other firms." R. R. D. at 37. He
concluded that "firms needing to hire engineers on a fast track
basis would naturally pick local engineers who had been
performing the job," because "the record is devoid of evidence to
the contrary." Id. at 38. This reasoning turns the
evidentiary burdens completely upside down. Complainant had the
burden of proving he would have been hired by a managed task
contractor and that Respondent's discriminatory acts prevented
him from being hired. Respondent did not have the burden of
proving how many former staff augmentee engineers were hired or
not hired by managed task contractors, or of disproving the
theory that
[PAGE 7]
engineering firms would naturally pick local engineers who had
worked on the project.
The ALJ also misinterpreted Charles Fox' testimony on how
many staff augmentees continued under managed task contracts.
R. R. D. at 36. Dr. Fox, who was Respondent's Deputy Manager of
Nucler Power, did not admit that many of the staff augmentees
were "rolled off" into managed task contracts; he testified
"[t]hat may be so, but I'm not the expert in that area." T. 683.
The fact that Respondent hired two national experts on Appendix R
to review Respondent's compliance with that NRC requirement,
T. 675-679, and on a few other occasions may have arranged for
specific individuals to be hired, T. 605, does not justify an
inference that Respondent did this in almost all cases so that
its failure to do so for Complainant constituted discrimination.
None of this evidence shows that an engineer such as
Complainant, who worked under a staff augmentee contract for a
company that did not obtain a managed task contract, would "under
normal circumstances" be hired by a managed task contractor.
Even if Complainant had been working for UE&C when it "rolled
over" 80% of its engineers to managed task contracts, and "many"
staff augmentees of other contractors were "rolled over" to
managed task contracts, that would not prove Complainant's
employment would have continued. This is not an Executive Order
No. 11,246 disparate impact case in which discrimination can be
inferred from statistics.
Respondent contracted for some work to be done on Appendix R
matters in February and March 1988, and the ALJ speculated that
this work could actually have been performed between December
1987 and March 1988 because "there was evidence that TVA at times
formally approved contracts after the . . . work had been
completed." R. R. D. at 27. The ALJ implies that Complainant
would have been contracted for to do this work absent
discrimination.
There is nothing in Mr. Hosmer's testimony or the exhibits
cited by the ALJ here to support these conclusions, see T.
591-98; C-27, 36, 37, nor was there any evidence that the
"outside engineers" contracted with to do Appendix R work
performed the same work Complainant was qualified to and would
have performed. When he was asked about a contract with UE&C
entered into in March 1988, Mr. Hosmer did not say the contract
covered work already performed between December and March.
Rather, he said the contract was to review documents, called
Engineering Change Notices, written between December and
March. T. 596.
The ALJ implied that Respondent refused to arrange for
Complainant to be hired by contractors to work on Appendix R
issues and shortly thereafter contracted with outside engineers
to do the work Complainant would have done. But Complainant had
[PAGE 8]
the burden of proving these portions of his case as part of his
overall burden of proof of discrimination by a preponderance of
the evidence, and the ALJ improperly placed the burden on
Respondent to explain the nature of the Appendix R work that was
contracted out after Complainant left. R. R. D. at 26-27.
Moreover, the ALJ refused to accept Mr. Pierce's explanation that
work proposed for Complainant in a managed task package
eventually was performed by Respondent's employees, not outside
contractors, even though no one contradicted Mr. Pierce's
testimony. R. R. D. at 27; T. 1071. Mr. Pierce and Mr. Fox
testified that several other individuals contracted with to work
on Appendix R issues after Complainant left did not do the work
Complainant had been doing. T. 1072-1078; 672; 675-79.
The ALJ discussed at length a disagreement in the testimony
between Complainant and George P. Cooper [10] over the amount of
work remaining to be done in November 1987 on a safety issue
raised by Complainant, "instrument sense line integrity." R. R.
D. at 28-30. If there was a significant amount of work remaining
to be done on the problem, it could imply Respondent's
explanation for failing to extend Complainant's contract to work
on it was pretextual. Complainant recalled that there was "a
significant quantity of work remaining" on this issue, T. 134,
but Mr. Cooper testified that the work would have taken only one
or two weeks. T. 1005. The ALJ gave greater weight to
Complainant's testimony, R. R. D. at 30, although Mr. Pierce,
Complainant's immediate supervisor, corroborated Mr. Cooper's
testimony on the point. T. 1082. In any event, even if there
was a "significant" amount of work rather than a few weeks' work
to be done on the issue (Complainant was never asked what he
meant by "significant"), I do not accept the implicit inference
that this proves Respondent's decision to do the work in-house
was pretextual.
Douglas Michlink was Assistant Project Engineer of the
Sequoyah plant and was one of three top managers with authority
to approve engineering contracts, T. 717-18, but the ALJ
dismissed him as "a functionary who was not involved in an
analysis of the work, but merely checked to see if the type of
contract met certain criteria." R. R. D. at 30. To the
contrary, Mr. Michlink's role in extensions of staff augmentee
contracts appears to have been that of a manager making an
engineering management judgment about the need for an engineer's
services. Mr. Michlink testified that when he received a request
for an extension of a staff augmentee, he determined whether the
engineer was "involved in anything critical for the restart of
[the Sequoyah plant][.] . . . I would consult with the Lead
Engineer [in] the discipline [making the request] [and] verify what [the staff augmentee was] involved with, and . . . consult
[PAGE 9]
with the Project Engineer." T. 723. [11]
The ALJ apparently found Mr. Michlink's testimony unreliable
because he said he never approved any staff augmentee contracts
after 1987, but the record showed one he had approved in July
1988, and "Counsel represented that there were other such
contracts." R. R. D. at 30. It was improper for the ALJ to rely
on counsel's representations rather than evidence in the record,
and one such contract entered into eight months after
Complainant's last day at TVA does not impeach all Mr. Michlink's
testimony. The ALJ found Mr. Michlink evasive, but the exchange
with Complainant's counsel he referred to appears to be no more
than a misunderstanding about Respondent's budget and expenditure
terminology. T. 845-58. None of this supports an inference that
"[Mr.] Hosmer [and Mr.] Michlink knew [that Complainant was] the
beneficiary of" a request for a contract extension submitted on
Nov. 2, 1987, R. R. D. at 31, if the ALJ's statement implies
Mr. Hosmer and Mr. Michlink knew who Complainant was (beyond
seeing his name on the paperwork) and that he had engaged in
protected activity.
A "managed task package" for Complainant's employment by one
of the managed task contractors was submitted to Mr. Michlink
around Nov. 18, 1987. R. R. D. at 26. Mr. Michlink sent the
package to Mr. Daniels with a note listing additional information
required "before it can go out." C-17. After Mr. Daniels asked
William Estes, an engineer who worked for Mr. Daniels, whether
the package was for Complainant and learned it was, Deposition of
Mr. Daniels, C-56, pp. 18, 20, 26-27, the package was not
processed further. R. R. D. at 26. The ALJ inferred that "the
next approval authority would have been Mr. Hosmer," id.,
implying that Mr. Hosmer discriminatorily refused to process the
package. But there was no evidence Mr. Hosmer ever saw that
package. Mr. Michlink testified he never got a reply from
Mr. Daniels about the task package, T. 743, and Mr. Daniels said
in his deposition that to his knowledge he never reported to
Mr. Hosmer on the status of this package. C-56, p. 37.
Charles Fox was one of two Deputy Managers of Nuclear Power
for Respondent in 1987, with responsibility for ensuring that
Respondent received high "productivity" from its engineering
contractors, T. 626-27, and authority to approve all requests for
extensions of staff augmentee contracts. T. 658. The ALJ's
findings on Dr. Fox' testimony are enigmatic. On one hand, the
ALJ commented that Dr. Fox "could well have not known about
[Complainant] until after [Complainant's] departure," R. R. D.
at 32, but he also speculated "it seems highly unlikely [Fox and
Michlink] would have disapproved [requests to extend
Complainant's contract] without at least some discussion with the
managers who were more directly involved in the work."
Id. at
[PAGE 10]
33. The ALJ's discussion of the rejection of a proposal for
Complainant to work on the Bellefonte plant, and the pagination
of Rebecca Hansen's notebook, [12] add little toward a
resolution of the issue of discrimination. The ALJ's comment
that "[i]f Ms. Hansen had heard of the Bartlik situation before
December 15th [1987], it is likely that she would have reported
this information to Dr. Fox[,] [and] [i]nformation about a
troublemaker obviously might have prompted him to disapprove the
proposal," R. R. D. at 34, is the most rank speculation.
Only one part of the record might justify an inference that
Mr. Hosmer knew who Complainant was and discriminatorily refused
to approve a contract extension for him. Mr. Sheehy testified
that on the evening of Dec. 7, 1987, he and several others met
with Mr. Hosmer to prepare him for a meeting with the NRC the
next day, and to explain Respondent's problems with Appendix R at
Sequoyah. T. 405-406. Mr. Sheehy and the others recommended
setting up a task force to review Respondent's compliance with
Appendix R, and when Mr. Sheehy recommended assigning Complainant
to the task force, Mr. Hosmer said "I don't want contractors
working on problems they discovered." Mr. Sheehy testified he
had the impression Mr. Hosmer knew who Complainant was, and
Mr. Hosmer approved all the other recommended task force members.
T. 409.
I cannot find, however, that this testimony is sufficient to
prove by a preponderance of the evidence that Respondent
discriminated against Complainant. The ALJ's suppositions and
speculations, for the reasons discussed above, do not aid
Complainant, and I find he has not carried his burden of proof.
Accordingly, the complaint in this case is DISMISSED.
SO ORDERED.
ROBERT B. REICH
Secretary of Labor
Washington, D.C.
[ENDNOTES]
[1] Although it is not necessary for me to address each of
Complainant's arguments in his briefs before me where they go
beyond the ALJ's R. R. D., I note that I do not agree with
Complainant's theory of constructive knowledge of the protected
activity by the alleged discriminating official. Although
knowledge of the protected activity can be shown by
circumstantial evidence, that evidence must show that an employee
of Respondent with authority to take the complained of action, or
an employee with substantial input in that decision, had
knowledge of the protected activity. Neither Atchison v.
Brown & Root, Inc., Case No. 82-ERA-9, Sec. Dec. Jun. 10,
1983, nor Frazier v. Merit Systems Protection Bd., 672
F.2d 150 (D.C. Cir. 1982), relied on by Complainant, hold that
knowledge can be imputed to a deciding official who has not
delegated decision making authority or is not simply adopting the
recommendation of a subordinate who did have knowledge. Those
cases hold that, in contrast to the facts here, where managerial
or supervisory authority is delegated, the official with ultimate
responsibility who merely ratifies his subordinates' decisions
cannot insulate a respondent from liability by claiming
"bureaucratic 'ignorance'." 672 F.2d at 166.
[2] Substantial weight should be given to credibility findings
that "rest explicitly on an evaluation of the demeanor of the
witnesses," NLRB v. Cutting, Inc., 701 F.2d 659, 663 (7th
Cir. 1983), but credibility findings based on internal
inconsistency, inherent improbability, important discrepancies,
impeachment or witness self-interest are entitled to the weight
which "in reason and in the light of judicial experience they
deserve." Universal Camera Corp. v. N.L.R.B., 340 U.S.
474, 496 (1951); Ertel v. Giroux Brothers Transp., Inc.,
Case No. 88-STA-24, Sec. Dec.
Feb. 16, 1989, slip op. at 12 and n.7.
[3] A "Condition Adverse to Quality Report," CAQR, is used by
Respondent "to document any serious deficiencies in [its]
nuclear program that can impact safety." T. 44. Mr. Hosmer
established "a four man group . . . that did nothing but track
restart CAQRs [those that could affect restart of the Sequoyah
plant]." T. 606.
[4] Appendix R is an appendix to the Nuclear Regulatory
Commission (NRC) regulations on the construction and operation of
nuclear power plants, 10 C.F.R. Part 50 (1992) dealing with fire
protection.
[5] I find that the ALJ misinterpreted Mr. Sheehy's testimony
about the September 1987 meeting to discuss the Appendix R Review
Team. Contrary to the ALJ's finding, Mr. Hosmer did not attend
that meeting. T. 393. I also find that the ALJ misinterpreted
the testimony about the meeting at which Dave Boyll criticized
Complainant as someone who "finds more problems than he solves."
Mr. Boyll made this comment at the September 1987 meeting, which
Complainant did not attend, not at the October 19, 1987 meeting,
which Complainant did attend. See T. 49; 52; 58; 393-95;
397. The ALJ also incorrectly attributed this statement to Mr.
Boyll at both the September and October meetings. See R.
R. D. at
14-15.
[6] I note that at least two other engineers, Mr. Sheehy and
Mr. Daniels, played more of a lead role in raising Appendix R
issues than Complainant (Mr. Sheehy was the author of Revision 7
and Mr. Daniels signed the August 28 memorandum to Mr. Hosmer),
but there has been no suggestion in this record that any action
was taken against either for this activity.
[7] See Remand Order at pp. 2 and 3 for a description of staff
augmentee and managed task contracts.
[8] I note that when Respondent "made arrangements for
[Complainant] to move over to another company" in May 1987, he
had already raised many of the safety complaints which he
continued to pursue through the summer and fall of 1987. For
example, Complainant told Mr. Sullivan in March or April 1987
about the Appendix R problems Complainant had uncovered in
February, and Mr. Sullivan disagreed and said Complainant did not
know what he was talking about. T. 32. Complainant raised
questions about the "power operated relief valve" (PORV) in
January or February 1987, T. 65, many engineers knew about
the problem he raised, T. 67, and Mr. Edlund of the Nuclear
Engineering Branch did not agree it was a problem before
Complainant submitted his design changes to Mr. Daniels in
April. T. 68. In a conference call on the PORV issue in May
1987, Mr. Wilson cut Complainant off and said Complainant did
not know what he was talking about. T. 71-72. Complainant also
raised the "letdown" issue with Mr. Sullivan in May 1987, T. 91,
but Mr. Sullivan disagreed and seemed annoyed with Complainant
for raising the issue. T. 94.
[9] With no basis in the evidence, the ALJ commented in a
footnote that "[n]o doubt the avoidance of personnel problems was
also a major consideration" in the changeover from staff
augmentee to managed task contracts. R. R. D. at 35 n.17. For
that reason, I reject this finding and the implication that
Respondent used the changeover process to rid itself of
troublesome employees.
[10] Mr. Cooper described his position as the "Functional Area
Manager in the Mechanical Engineering discipline over the HVAC
Fire Protection and Service Systems area of the Mechanical
discipline in the Nuclear Engineering part of Nuclear Power."
T. 993. He managed about 150 technical workers, including
Complainant.
[11] This was the only description of Mr. Michlink's role in
the five pages of testimony cited by the ALJ.
[12] Ms. Hansen was a staff assistant to Admiral White, the
Manager of Nuclear Power, and worked on special projects for
Dr. Fox. T. 894-95.
