Terry W. Keener ("Keener" or "Complainant") initially filed his complaint with the Occupational Safety and Health Administration ("OSHA") on February 27, 2003, alleging violations of Section 211 of the ERA. Specifically, Complainant alleged that Duke Energy Corporation ("Duke" or "Respondent") terminated his employment because he notified a Duke manager of alleged violations of nuclear security regulatory requirements at Duke's McGuire Nuclear Station. OSHA investigated the complaint and on May 12, 2003 determined that "Complainant filed a prima facie complaint but the evidence did not support a merit finding. The Respondent has shown by clear and convincing evidence that the same unfavorable personnel action would have been taken against [Complainant] in the absence of the protected activities." (RX 73). In a letter dated May 21, 2003, Complainant appealed OSHA's finding and requested a formal hearing. The case was referred to the Office of Administrative Law Judges on May 28, 2003.

   At the hearing, Complainant and Respondent stipulated that:

(JX 1).

I. Whether Complainant demonstrated that his protected activity was a contributing factor in Respondent's decision to terminate him.

II. Whether Respondent demonstrated that it would have terminated Complainant in the absence of his protected activity.

   Complainant was born on February 15, 1956. (TR 28). He graduated from high school and then entered the U.S. Army. (TR 46). Complainant served in the U.S. Army for four years and was honorably discharged in July of 1979. (TR 46-47).

(TR 61). Mr. Cash found it interesting that both Complainant and Mr. Cross stated that the position, with some changes, could be performed by one individual. (TR 454, 581).

(RX 10, p. 2; see also TR 469).

   Mr. Cash explained the six accountabilities for the new position. Mr. Cash testified that he was looking for someone who could look at emerging regulatory issues that may affect Duke and make policy recommendations to the decision makers, analyze the potential effects of proposed rules and regulations and develop written and oral responses on behalf of Duke, interact with industry groups, and develop function specification documents for security technology upgrades. In addition, Mr. Cash was looking for someone who would maintain a working knowledge of the security equipment and make recommendations as to upgrading that equipment, provide technical and regulatory security support to the three nuclear power plants, provide customer service to the security managers, and maintain a variety of security-related documents. (TR 470-479; RX 10, pp. 3-4). Mr. Cash was looking for an individual who understood security issues, had engineering skills, and could interact with anyone from the executives to the security guards. (TR 479-480). Mr. Cash felt that he might have to look outside of Duke to find an individual with a background in both engineering and security. (TR 469, 591). Mr. Cash testified that the desired qualifications are a way to distinguish those individuals who meet all of the minimum qualifications. (TR 480). Mr. Cash felt that the pool of candidates for the new position should be: engineers, individuals with technical degrees, individuals with a regulatory background and very good writing skills, and security professionals with an extensive regulatory background and writing skills. He stated that Tina Kuhr's position in emergency planning is comparable to the new position. (TR 490; RX 13, p. 7).

   Thereafter, Complainant found the Job Requisition for the new position on Duke's JOBS bulletin and applied for the position. (TR 110, 113; CX 33, 35). Complainant learned for the first time that a Bachelor of Science in Engineering or Physical Sciences was a desired qualification. (TR 111). Complainant applied for the position even though he did not have an engineering degree because it was not a minimum qualification. (TR 114).

   The interviewers felt that Mr. Boies did very well in his interview. Mr. Cash felt that Mr. Boies was well-spoken, provided concrete examples of his skills, and was able to think on his feet. In his opinion, Mr. Boies was "well above the other candidates." (TR 523-524). Mr. Thomas thought that Mr. Boies did very well because he demonstrated a good knowledge of planning and organization skills and brought several exhibits to the interview. (TR 692). Mr. King testified that Mr. Boies was very organized and prepared for the interview, he brought in examples of his work, and he responded to the interviewers' questions in a concise and knowledgeable manner. (TR 731). Mr. Cash also testified that Mr. Story did well in his interview, but felt that he was not as "polished" as Mr. Boies. (TR 524).

(TR 548-549). Mr. Cash testified that Mr. Boies has attended all of the NEI meetings associated with emerging changes and regulatory requirements and he has analyzed and made recommendations associated with these requirements. (TR 549). Mr. Cash testified that Mr. Boies' work is different from Complainant and Mr. Cross' work because Complainant and Mr. Cross were "primarily maintaining documents, receiving requested changes from the stations and processing changes." (TR 550). Mr. Cash also testified that Complainant needed more instruction than he currently gives to Mr. Boies. (TR 661).

   Complainant testified that during the time that Mr. Cash was his manager, he changed or suggested changes to Complainant's position in several ways. One part of Complainant's position was to review information from the NRC and the media for articles discussing security and he would send "items of interest" e-mails to the security managers and Mr. Cash. Mr. Cash suggested that Complainant assess the value of this task, as Mr. Cash had reviewed the same articles from other sources and Complainant was not providing a summary of the articles. (TR 143-144, 554-556). Complainant contacted the security managers, who told Complainant that the e-mails were useful, so Complainant just removed Mr. Cash's name from the e-mail distribution list. (TR 145). Also, Mr. Cash told Complainant and Mr. Cross not to regularly attend the security BEST meetings, but that they could attend the meeting if they had a specific issue that needed to be addressed. (TR 146-147). Mr. Fisicaro explained that Complainant was involved with the security BEST group in that the group would define things that they wanted the general office to work on, and the general office would work on those things. (TR 303; see also 686). Mr. Cash asked Complainant and Mr. Cross not to participate in the security BEST group meetings because he wanted to be able to discuss the progress of the selection process for the new position with the security

managers and he felt that it would be inappropriate for Complainant and Mr. Cross to be privy to these conversations. Also, Mr. Cash was attending the meetings and he could bring back relevant information to Complainant and Mr. Cross. (TR 553-554). Finally, Mr. Cash told Complainant and Mr. Cross not to regularly participate in the security managers' weekly telephone conference call, but that they could participate in the call if they had a specific issue to discuss with the security managers. (TR 147-148). Complainant testified that Mr. Cash made these changes to his position in the early part of 2002. (TR 149). Complainant testified that these changes affected his ability to do his job because he was "out of the loop" on the current issues that the security managers were discussing. (TR 148). However, Complainant also testified that his interactions with Mr. Cash were "professional," and he never felt that Mr. Cash was angry with him. (TR 207).

   After he was laid off, Complainant investigated the events surrounding his termination. Complainant accessed the electronic database of reported PIP events and discovered that a PIP report had not been created for the Evans shoe incident. Complainant also searched the safeguard log entries and discovered that there was no entry for the Evans shoe incident. (TR 160-161; CX 43). Complainant contacted Mr. Reid, who told him that no one had asked him about the Evans shoe incident as part of an investigation. (TR 134). Complainant also contacted Roxanne Norcutt and Chad Blackwelder, former security officers at McGuire, about the rumor of Mr. Evans sleeping on compensatory post. Ms. Norcutt and Mr. Blackwelder had heard the rumor, but neither had seen Mr. Evans sleeping on compensatory post. (TR 162-163). During his exit interview, Complainant told the human resources representative that he felt concerns he reported to management had not been adequately resolved, but he did not disclose the specifics of the rumors to her. (TR 193, 244-245). Complainant feels that if Mr. Fisicaro had not actually investigated the rumors that he reported in September of 2001, then perhaps his conversations with Mr. Fisicaro are related to his termination. (TR 133-134). Complainant believes that Mr. Fisicaro did not follow up on the rumors that he reported in order to protect Duke from the potential repercussions. (TR 164).

   As this case has been fully tried on the merits, the relevant inquiry is whether the complainant has prevailed on the ultimate question of liability. Thus, it must be determined whether the complainant has proven, by a preponderance of the evidence, that he engaged in protected activity, that the respondent knew about the protected activity and took adverse action against the complainant, and that the complainant's protected activity was a contributing factor in the adverse action that was taken. 42 U.S.C. § 5851(b)(3)(C); see, e.g., Kester v. Carolina Power & Light Co., 2000-ERA-31 (ARB Sept. 30, 2003); Paynes v. Gulf States Utilities Co., 1993-ERA-47 (ARB Aug. 31, 1999); Carroll v. Bechtel Power Corp., 1991-ERA-46 (Sec'y, Feb. 15, 1995), aff'd Carroll v. U.S. Dep't of Labor, 78 F.3d 352 (8th Cir. 1996). If the complainant meets his burden, then the respondent must demonstrate, by clear and convincing evidence, that it would have taken the same unfavorable personnel action in the absence of the protected activity to avoid liability. § 5851(b)(3)(D); see also Kester, supra.

Protected Activity

   A complainant's acts "must implicate safety definitively and specifically" in order to constitute protected activity. American Nuclear Resources v. U.S. Dep't of Labor, 134 F.3d 1292, 1295 (6th Cir. 1998)(citing Bechtel Constr. Co. v. Sec'y of Labor, 50 F.3d 926, 931 (11th Cir. 1995)). An internal complaint is a complaint lodged with a supervisor of the company itself. An external complaint is a complaint lodged with an outside agency, such as the NRC. Kahn v. Sec'y of Labor, 64 F.3d 271, n.3 (7th Cir. 1995). The 1992 amendments to the ERA specifically provide that internal complaints are protected activity under the Act. § 5851(a)(1)(A); Reynolds v. Northeast Nuclear Energy Co., 1994-ERA-47 (ARB Mar. 31, 1997).

   In September of 2001, Complainant reported rumors of three safety violations to Mr. Fisicaro. Complainant reported a detailed description of the Evans shoe incident to Mr. Fisicaro, which included the name of the security officer involved. (TR 31-32; CX 1). Complainant's account of the Evans shoe incident is consistent with Messrs. Reid and Nichols' accounts of the incident, who were the security officer and security supervisor, respectively, on duty at the time of the Evans shoe incident. (TR 367-369, 390). Complainant testified that the Evans shoe incident violated the NRC requirements to search individuals before they enter the secured area and to report security violations within the prescribed period. (TR 40-41). Messrs. Thomas and Dolan also testified that if the Evans shoe incident occurred, then the NRC's security requirements were violated. (TR 757-758; CX 57, pp. 51-52). I find that Complainant's report of the Evans shoe incident is "definite and specific" enough to implicate safety. In addition, Complainant's conversation with Mr. Fisicaro is an "internal complaint" and is specifically covered under § 5851(a)(1)(A). Therefore, I find that Complainant's reporting of the Evans shoe incident to Mr. Fisicaro constitutes protected activity. In contrast, I find that the other two rumors that Complainant reported to Mr. Fisicaro do not constitute protected activity because they were too general to implicate safety.

Respondent's Knowledge

   In order to establish that the respondent knew of the complainant's protected activity, the evidence must show that an employee of the respondent with authority to take the complained of action, or an employee with substantial input in that decision, had knowledge of the protected activity. Merriweather v. Tennessee Valley Auth., 1991-ERA-55 (Sec'y, Feb. 4, 1994); Bartlik v. Tennessee Valley Auth., 1988-ERA-15 (Sec'y, Apr. 7, 1993), aff'd 73 F.3d 100 (6th Cir. 1996). If the respondent's employee who terminated the complainant was unaware of the protected activity, but another employee with knowledge of the protected activity "contributed heavily" to the decision to terminate the complainant's employment, then his knowledge of the protected activity can be imputed to the respondent. Thompson v. Tennessee Valley Auth., 1989-ERA-14 (Sec'y, July 19, 1993). The complainant can prove that the respondent had knowledge of the protected activity by either direct or circumstantial evidence. Bartlik, supra.

   Mr. Fisicaro is the only Duke employee who knew about Complainant's protected activity. Messrs. Cash, King, and Thomas and Ms. Rabon, who were involved in the process of creating the new position and selecting Mr. Boies for the new position, credibly testified that they did not know about the alleged safety violations that Complainant reported to Mr. Fisicaro. (TR 535, 697, 737, 761). Messrs. Cash and Fisicaro testified that Mr. Fisicaro's role in reviewing the nuclear security support function position, creating the new position, and selecting Mr. Boies for the new position was limited. Mr. Fisicaro asked Mr. Cash to review the nuclear security support position, he reviewed and approved the list of accountabilities, qualifications, and salary banding for the new position, and he approved the selection of Mr. Boies for the new position. (TR 312, 317-319, 424-426, 510, 587). However, he was not involved in drafting the job accountabilities or interviewing the candidates for the new position. (TR 307, 518, 582). The pivotal question is whether Mr. Fisicaro's involvement in Complainant's termination is of a sufficient degree to impute his knowledge to Duke. While Mr. Fisicaro played a limited role in crafting the job description and selecting Mr. Boies for the new position, he had the ultimate authority, as the division manager of the NAID, to approve or disapprove the job description, salary banding, and the selection of Mr. Boies for the new position. At any point in the process, Mr. Fisicaro could have changed the direction of the new position (e.g., reduced the number of employees from two to one without changing the position's responsibilities, removed the engineering background from the list of accountabilities and qualifications, limited the potential candidates to the incumbents, etc.). Therefore, I find that Mr. Fisicaro's involvement in the process was sufficient enough that his knowledge of Complainant's protected activity can be imputed to Duke.

(RX 11, p. 3). Complainant testified that he told Mr. Cash that he had some problems with Mr. Evans when he began working in the security support function, but in his opinion their relationship had improved. (TR 142-143). Mr. Cash did not testify as to the meaning of the above comment, but he did remove it from Complainant's performance evaluation. (TR 482-483). Mr. Cash's written comment appears to target Complainant's poor communication skills when getting feedback from the security managers (because he did not get written feedback from the security managers on an order review project that Complainant was working on); it does not suggest that Complainant had a personal problem with any of the security managers. Moreover, as stated before, Mr. Cash credibly testified that he did not know of the rumors of the alleged security violations that Complainant reported to Mr. Fisicaro during the process of reviewing the security support function. Therefore, I find that the evidence does not demonstrate that Mr. Cash knew about Complainant's protected activity.

Adverse Action

   An adverse action is "simply something unpleasant, detrimental, even unfortunate, but not necessarily (and not usually) discriminatory." Stone & Webster Engineering Corp. v. Herman, 115 F.3d 1568, 1573 (11th Cir. 1997). A complainant's discharge, or a change in his compensation, terms, conditions, or privileges of employment constitute an adverse action. DeFord v. Secretary of Labor, 700 F.2d 281, 286 (6th Cir. 1983); see also 29 C.F.R. §24.2(b).

   Complainant received his Notice of Layoff on October 7, 2002. (TR 45, 128, 557; JX 1, ¶ 10). I find that Complainant's termination constitutes an adverse action.

Contributory Factor

   The 1992 amendments to the ERA included the adoption of the "‘contributing factor' standard ‘in order to facilitate relief for employees who have been retaliated against for exercising their [whistleblower rights].' Congress may have been recalling that in 1989 it enacted the Whistleblower Protection Act. The WPA requires a complainant to prove that a protected disclosure was a ‘contributing factor in the personnel action…'" Kester, slip op. at 7, n.15 (citations omitted). In Marano v. Department of Justice, 2 F.3d 1137 (Fed. Cir. 1993), interpreting the Whistleblower Protection Act, 5 U.S.C. § 1221(e)(1), the Court observed:

The words "a contributing factor" … mean any factor which, alone or in connection with other factors, tends to affect the outcome of the decision. This test is specifically intended to overrule existing case law, which requires a whistleblower to prove that his protected conduct was a "significant," "motivating," "substantial," or "predominant" factor in a personnel action in order to overturn that action.

2 F.3d at 1140 (citations omitted). A complainant does not need to have any specific knowledge that the respondent's officials had an intent to discriminate against the complainant; ERA employee protection cases may be based on circumstantial evidence of discriminatory intent. Frady v. Tennessee Valley Authority, 1992-ERA-19 and 34, slip op. at 10, n.7 (Sec'y Oct. 23, 1995); Mackowiak v. University Nuclear Systems, Inc., 735 F.2d 1159 (9th Cir. 1984). When a complainant's allegations of retaliatory intent are founded on circumstantial evidence, the fact finder must carefully evaluate all of the evidence pertaining to the mindset of the employer and its agents regarding the protected activity and the adverse action taken. Timmons v. Mattingly Testing Services, 1995-ERA-40 (ARB June 21, 1996).

   Complainant and Respondent's briefs analyze this case under the burden shifting analysis. As previously stated, once a case has been tried on the merits, the issue becomes whether the complainant has proven by a preponderance of the evidence that the respondent discriminated against him. Therefore, I will consider the parties' arguments of pretext (or lack thereof) in the context of whether Complainant has established that his protected activity was a contributing factor in the adverse action taken by Respondent.

1. Mr. Fisicaro's involvement in the process

   Complainant argues that Mr. Fisicaro's involvement throughout the process of creating the new position coupled with his knowledge of Complainant's protected activity raises an inference that Complainant's termination was due to his reporting of the alleged safety violations. Respondent argues that Mr. Fisicaro had no animosity towards Complainant and there is no evidence that Mr. Fisicaro treated Complainant differently, or sought to have him terminated, after Complainant reported the safety rumors, and thus there is no evidence that Complainant was terminated because of his protected activity. Mr. Fisicaro was involved in the process to review the nuclear security support function (and subsequently to create and hire for the new position) because he was a divisional manager and as such was involved in the reorganization of a section of his division. (TR 324-325). However, Mr. Cash was primarily in charge of the review of the nuclear security support function and the creation of the new position and Mr. Fisicaro's involvement was limited to approving the decisions (i.e., approval of the job description, salary banding, individual selected for the new position, etc.). (TR 317-319, 467, 510, 534). The fact that Mr. Fisicaro had final approval of decisions made within his division does not demonstrate that he affected the outcome of the process. The evidence demonstrates that Messrs. Cash, King, and Thomas made the ultimate (and unanimous) decision to select Mr. Boies for the new position, which was then approved by Mr. Fisicaro. (TR 534, 696, 735-737). Further, there is no evidence that Mr. Fisicaro attempted to influence the individuals involved in the process. Messrs. Cash, King, and Thomas and Ms. Rabon testified that they were unaware of the rumors that Complainant reported to Mr. Fisicaro throughout their involvement in the process. (TR 535, 697, 737, 761). Messrs. Cash and King testified that Mr. Fisicaro never criticized Complainant and he never stated that he wanted Complainant removed from the nuclear security support function. (TR 427, 724-725). Also, Messrs. Cash, King, and Thomas testified that Mr. Fisicaro did not influence their final rankings of the candidates. (TR 532, 694, 734, 736). Finally, Complainant testified that Mr. Fisicaro was professional when he reported the security rumors to him and there is no evidence that Mr. Fisicaro spoke poorly of Complainant after he engaged in protected activity. (TR 186-188, 427, 724-725). Therefore, I find that Mr. Fisicaro's involvement in the process does not demonstrate that Complainant's protected activity was a contributory factor to his termination.

2. New position "virtually the same" as the old position

4. Complainant was better qualified than Mr. Boies for the new position

   Complainant argues that Mr. Boies was not as qualified as him for the new position because Mr. Boies did not have a security background. Complainant also argues that Mr. Boies should not have been selected for the new position because he was on a performance improvement plan. In contrast, Respondent argues that Complainant was less qualified than Mr. Boies for the new position, as demonstrated by his lack of an engineering background and poor performance in the interview, and that Mr. Boies was properly considered for the new position because he was not on a performance improvement plan. First, the evidence demonstrates that Mr. Boies was properly considered for the new position because he was not on a performance improvement plan at the time of the interview or at the time of his selection for the new position. (TR 341, 643-644). Second, Complainant presented lengthy testimony to support his assertion that he was qualified for the new position and Respondent presented lengthy testimony to support its assertion that Complainant was not qualified for the new position. (TR 69-71, 72-75, 77-90, 94-101, 226-228, 423, 494-495, 594, 596-603, 608-610; CX 17-28). Messrs. Cash, King, and Thomas testified that Mr. Boies' interview went "very well" and Complainant did poorly in his interview. (TR 523-524, 692-693, 731-732). Mr. Boies had an engineering background and had nuclear security experience, whereas Complainant only had experience in nuclear security, albeit extensive. (TR 166-167, 221-224, 261-262). Further, Mr. Cash stated that Complainant's experience with industry groups was limited and his writing samples did not demonstrate complex analytical skills. (TR 423, 494-495, 596-603). Messrs. Cash, King, and Thomas unanimously agreed that Mr. Boies was the top candidate for the new position. (RX 41-43, 71). In contrast, Mr. Thomas testified that Complainant "could perform the [new position] with some time." (TR 691)(emphasis added). The evidence demonstrates that Complainant might have been able to perform the new position, but that Mr. Boies was the most qualified of the candidates for the new position. The mere fact that Complainant believes he was qualified for the position does not show that his non-selection for the position was discriminatory. Therefore, I find that Complainant has not presented evidence that the interviewers' selection of Mr. Boies for the new position was not a reasonable business decision.

5. Selection process

   Complainant argues that there were several "problems" with the selection process, which includes a change in the job qualifications at the last minute, the use of panel interviews, the rating of Mr. Cross on the interview evaluation form even though he was not interviewed, and the interviewers' rating of the candidates after they had been ranked. Respondent argues that the use of the panel interviews demonstrates that Duke did not discriminate against Complainant because Messrs. King and Thomas, who were on the panel, were not supervised by Mr. Fisicaro. Also, Respondent argues that it presented a reasonable explanation as to why the interview evaluation form was used for Mr. Cross (Ms. Rabon had asked the interviewers to evaluate Mr. Cross), and the use of the interview evaluation form for Mr. Cross did not affect Complainant's ranking because he did not "lose out" to Mr. Cross.

   First, Complainant argues that the job qualifications were changed at the last minute because a Bachelor of Science in Engineering or Physical Sciences was added as a desired qualification in July of 2002. The job description was first approved by Messrs. Cash and Fisicaro on March 21, 2002 and did not list an engineering degree as a desired qualification. (TR 467; RX 10). The job description was subsequently changed in June of 2002 to include an engineering degree as a desired qualification because the position was categorized as a salary band 4. (TR 496, 499). The new position was posted on the JOBS bulletin on July 16, 2002, and the Job Requisition Form included an engineering degree as a desired qualification. (CX 33; RX 51). Complainant credibly testified that he did not learn that an engineering degree was a desired qualification until he applied for the position. (TR 111). Duke has presented a reasonable explanation as to why the job description was changed and Complainant has not presented any evidence as to how the change affected his non-selection for the position. If an engineering degree was a desired qualification when he received a copy of the job description in March of 2002, or if Mr. Cash had given him a copy of the amended job description in June of 2002, Complainant would not have been able to obtain an engineering degree in the months before the interviews for the new position. Moreover, the fact that an engineering degree was a desired qualification did not make Complainant unqualified for the position because it was not a minimum qualification for the position.

   Second, Complainant argues that the use of panel interviews was "unusual" and that he had never heard of panel interviews being used at Duke. Typically the hiring manager is the only person involved in the process. (TR 126). While panel interviews may be atypical at Duke, their use does not raise an inference of discrimination. The panel of interviewers consisted of Messrs. Cash, King, and Thomas. Messrs. King and Thomas were employed outside of the nuclear general office, and were not supervised by Mr. Cash or Mr. Fisicaro. (TR 673, 718). Mr. Thomas had previously supervised Complainant when he worked as the NRIA manager, and thus was familiar with Complainant's work experience. (TR 676). Similarly, Mr. King, as security manager at Oconee Nuclear Station, was considered a "customer" of the nuclear security support function, and thus was familiar with Complainant's work. (TR 745, 747). Moreover, Messrs. King and Thomas rated Complainant higher than Mr. Cash, and Mr. Thomas even rated Complainant on his work experience and interview performance, as he felt that Complainant "could have done better" in the interview. (TR 695-696; RX 41-42). Therefore, the presence of Messrs. King and Thomas on the panel appears to have benefited Complainant because he was ranked higher because of their ratings.

   Third, Complainant contests the interviewers' evaluation of Mr. Cross given the fact that he was not interviewed. Ms. Rabon credibly testified that she asked the panel to evaluate Mr. Cross, even though he was not interviewed, because he was an incumbent and the interviewers were familiar with his work. (TR 349). While Ms. Rabon did not intend for the interviewers to use the Interview Rating Sheet to document their evaluations of Mr. Cross (TR 763), its use did not affect Complainant's evaluation because the interviewers rated Mr. Cross lower than they rated Complainant and Mr. Cross was not selected for the position. (RX 34, 41).

   Finally, Complainant points out that the interviewers "rated" the candidates after they had "ranked" the candidates, implying that the evaluations were manipulated to satisfy an intended result (i.e., the non-selection of Complainant for the new position). After the interviews were complete, Messrs. Cash, King, and Thomas ranked the candidates. See RX 32-34. In his instructions, Mr. Cash asked the interviewers to rank the candidates from one to five (with one being the top candidate) and to "work on" documenting their selections. (RX 32). When the interviewers reported their rankings, there was no consensus as to the top candidate (Messrs. Cash and Thomas ranked Mr. Boies as the top candidate whereas Mr. King ranked Mr. Story as the top candidate), and human resources asked the interviewers to confer and reach a unanimous decision as to the top candidate. (RX 35). The interviewers then completed an interview ranking template for each candidate and they unanimously selected Mr. Boies as the top candidate and Mr. Story as the second candidate. (TR 528, 642, 734-735; RX 36-42, 58-62, 71). The interviewers' use of the interview ranking templates was not the first time that they were evaluating the candidates, but rather was a mechanism to ensure that the interviewers used the same criteria in ranking the candidates. See RX 32, p. 2 (Mr. Cash stated that "I prefer to let you each choose your own format for documenting your opinions to maximize the independence" on September 9, 2002.). Moreover, the interviewers' "ratings" of the candidates (via the interview ranking templates) were consistent with their previous "rankings" of the candidates, with the exception of Mr. Boies being selected as the top candidate by all three interviewers, thus demonstrating that the ratings merely supplemented their prior rankings of the candidates.

   Complainant presented several arguments as to how the selection process for the new position was different than the normal selection process at Duke. However, the alleged "problems" with the selection process do not demonstrate that Complainant's protected activity was a contributing factor to his termination. Mr. Cash did add an engineering degree as a desired qualification to the job description, but it was added before the position was posted on the JOBS bulletin and Complainant had knowledge of the qualification when he applied for the position. The use of panel interviews actually helped Complainant because Messrs. King and Thomas ranked Complainant higher than Mr. Cash did, highlighting that Mr. Cash would not have selected Complainant had the "typical" interview process been used. The interviewers' evaluations of Mr. Cross on the Interview Rating Sheet did not impact Complainant's ratings or his non-selection because Mr. Cross was rated lower than Complainant. Finally, the fact that the interviewers "rated" the candidates after they "ranked" the candidates did not affect Complainant's standing as a candidate or the interviewers' opinions that Messrs. Boies and Story were more qualified than Complainant for the new position. Based on the foregoing, I find that the alleged problems with the selection process did not affect the outcome of the decision to select Mr. Boies for the new position and to terminate Complainant.

6. Respondent did not consider Complainant for another position at Duke

   Complainant argues that Respondent did not make an effort to retain him in another position at Duke, even though he informed Mr. Cash that he would consider any security-related position to remain a Duke employee. Respondent argues that it was under no duty to retain Complainant in another position and that this claim cannot be considered a failure to hire claim because Complainant did not apply for another position with Duke. After the notice of layoff, Complainant mentioned to Mr. Cash that someone in security was retiring at Catawba Nuclear Station and to let Complainant know if he heard anything about that position. Mr. Cash did not know the individual and never heard about someone retiring at Catawba. (TR 130, 558-559). Mr. Byers testified that he hired approximately eleven security officers at the end of 2002, and that Complainant would have been qualified to work as a security officer at Catawba. (CX 56, pp. 36-38). In fact, Complainant had previously worked as a security officer for Duke . (TR 50; CX 8). However, Complainant did not apply for a specific security officer position at Duke. (TR 234). Complainant has not presented any evidence that he applied and was qualified for a specific position within Duke, and thus he cannot assert that Duke's failure to retain him in another position was discriminatory. See Acord v. Alyseska Pipeline Service Co., 1995-TSC-4, slip op. at 5-6 (ARB June 30, 1997), aff'd 166 F.3d 1217 (9th Cir. 1999).

7. Respondent's perception of Complainant's skills and qualifications declined after he engaged in protected activity

   Complainant argues that after he reported the alleged security violations to Mr. Fisicaro, Messrs. Cash and Fisicaro's perceptions of him declined. Respondent argues that Messrs. Cash and Fisicaro's perceptions of Complainant did not decline, as demonstrated by the rating of "meets expectations" on the 2001 performance evaluation. First, Complainant argues that after his protected activity, Mr. Fisicaro questioned the "value" of the nuclear security support function when he requested Mr. Cash review the position. (TR 568). Mr. Fisicaro asked Mr. Cash and the security BEST group to review the nuclear security support function in October of 2001 because he had heard conflicting information about Complainant and Mr. Cross' workload and the security and safety assurance BEST groups were questioning the value of the function. (TR 313). Also, in 2000, Mr. Thomas had suggested changing the number of employees and the workload of that position, but had made little progress during his time as NRIA manager. (TR 313-314). As the nuclear security support function was being questioned prior to Complainant's protected activity, I find that Mr. Fisicaro's opinion of Complainant's work did not substantially change after he reported the rumors of security violations to Mr. Fisicaro in September of 2001.

   Second, Complainant argues that Mr. Cash's perception of his work declined after his protected activity. Complainant points out that Mr. Cash rated Complainant as unsatisfactory in thirty-four of fifty-three skill areas on the Skills Assessment Matrix (CX 54) and he commented that "it might be hard to find the ideal candidate" within the company. (TR 766; CX 59). Initially it should be noted that Mr. Cash became Complainant's supervisor in October of 2001, one month after Complainant engaged in protected activity. Mr. Cash did not supervise Complainant before he became the NRIA manager, and thus his opinions of Complainant were based on his current work performance. (TR 418). Mr. Cash testified that he did not evaluate Complainant in February of 2002 with the Skills Assessment Matrix (CX 54), but rather he was testing the weights and scales of the draft Skills Assessment Matrix. (TR 350, 752-753). In fact, when Mr. Cash evaluated Complainant in June of 2002, the Skills Assessment Matrix was not used; instead, Complainant was evaluated based on the minimum and desired qualifications of the new position. Mr. Cash testified that his ratings of Complainant were based on his perception of whether Complainant could meet those qualifications. (TR 509; RX 17-18). I find that Mr. Cash's evaluation in June of 2002 does not demonstrate that his opinion of Complainant's work declined because this evaluation was based on Complainant's ability to perform the new position, not the old position. Further, Mr. Cash wanted to look outside of Duke for an individual for the new position because he did not think that anyone within Duke would have the type of nuclear security and engineering experience that he envisioned for the new position. (TR 469). While Mr. Cash's comment does suggest that he had a lowered opinion of Complainant, it was in the context of the new position, and was not a comment on Complainant's performance as a nuclear security specialist. In fact, Mr. Cash's overall rating of Complainant on the 2001 performance evaluation was "meets expectations," which was comparable to Complainant's 1999 and 2000 performance evaluations. (TR 481; CX 30-31; RX 67-68). Also, Mr. Cash's rating of "meets expectations" qualified Complainant for a lump sum raise, which he had also received in previous years. (TR 152-154, 457-458; RX 7).

   Finally, Complainant argues that Mr. Cash changed his position in 2002 because Mr. Cash instructed him not to attend the security BEST meetings and to review the "value" of the "items of interest" e-mails. Mr. Cash testified that he asked Complainant to review the value of the "items of interest" e-mails because he reviewed the same articles from other sources and Complainant was not providing a summary of the articles. (TR 143-144, 554-556). Also, Mr. Cash instructed Complainant and Mr. Cross not to attend the security BEST meetings because he wanted to be able to discuss the new position with the security managers and he did not think it was appropriate for Complainant and Mr. Cross to be privy to those conversations. (TR 553-554). However, Complainant and Mr. Cross were allowed to attend the meetings if they had a specific issue to address with the security managers and Mr. Cash would bring information back for Complainant and Mr. Cross. (TR 146-147, 554). It is questionable whether Complainant's ability to do his job was limited by his exclusion from the security BEST meetings, as he asserts, because the NRIA task list indicates that Mr. Cross was responsible for attending the security BEST meetings. (CX 10-11).

   Complainant has failed to present evidence that demonstrates that Respondent's perception of his work declined after he engaged in protected activity. Mr. Fisicaro wanted the nuclear security specialist position reviewed before Complainant's protected activity (and in fact Mr. Thomas recommended changing the position in 2000) and Complainant's 2001 performance evaluation was consistent with his performance evaluations in previous years. Moreover, Mr. Cash made minor changes to Complainant's position which did not substantially affect his ability to perform his job. I find that Respondent's perception of Complainant did not decline after his protected activity and thus was not a contributing factor in his termination.

8. Human resources' involvement in the process does not remove bias

   Complainant argues that human resources' involvement in the process does not demonstrate a lack of bias because Respondent did not have written procedures for reviewing job functions and Ms. Rabon was not aware of Complainant's job duties during the crafting of the new position. Ms. Rabon testified that her role in the process was to assist Mr. Cash in clearly defining the duties of the nuclear security support function and to help him understand the process of creating a new position. (TR 337-339, 749, 751-752). Ms. Rabon explained that it was a "judgment call" as to whether an existing position was modified or a new position was created. (TR 327-328). Ms. Rabon knew Complainant's general duties, but she was not aware of his day-to-day tasks. (TR 328-329). She testified that none of Duke's practices were violated during this process. (TR 765). Ms. Rabon's role in this process was to guide Mr. Cash in creating the new position. Ms. Rabon did not actively participate in the drafting of the new job description, and thus it is irrelevant that she did not know the day-to-day duties of Complainant. While Complainant argues that human resources' involvement was "insignificant" to the outcome, Ms. Rabon's actions, such as instructing Mr. Cash to look for internal candidates and recommending panel interviews, did keep Complainant as a viable candidate for the position. Moreover, I find Ms. Rabon's testimony that none of Duke's practices were violated during the process to be credible. I find that human resources' involvement did add a level of objectivity to the process and thus Complainant has failed to show that its involvement contributed to his termination.

9. Temporal proximity

   Complainant argues that Complainant's job was in jeopardy less than six weeks after his protected activity because that is when the review of the nuclear security support function began. In contrast, Respondent argues that Complainant was terminated one year after he engaged in protected activity, which is too remote to infer that the protected activity was a contributory factor in his termination. A retaliatory motive may be inferred when the adverse action closely follows protected activity. Kester, slip op. at 10 (citing Couty v. Dole, 886 F.2d 147, 148 (8th Cir. 1989); Keys v. Lutheran Family and Children's Services of Mo., 668 F.2d 356, 358 (8th Cir. 1981)). The lack of temporal proximity should be considered in determining whether the complainant has established causation, especially if a legitimate intervening basis for the adverse action exists. Tracanna v. Arctic Slope Inspection Service, 1997-WPC-1 (ARB July 31, 2001); Evans v. Washington Public Power Supply System, 1995-ERA-54 (ARB July 30, 1996).

   Complainant engaged in protected activity on September 5, 2001. (TR 29; CX 1). In October of 2001, Mr. Fisicaro asked Mr. Cash and the security BEST group to review the nuclear security support function. (TR 304, 312, 424-425, 567-568, 721). Based on this review, Mr. Cash decided to craft a new position and ultimately Complainant was terminated because he was not selected for the new position. (TR 45, 128, 445, 557). If I were just to consider the timing of Complainant's protected activity and the initiation of the review that ultimately led to Complainant's termination, then an inference of causation could be raised. However, two intervening events occurred that sever the causal connection between Complainant's protected activity and his termination: the entrance of Mr. Cash as the new NRIA manager and the terrorist events of September 11, 2001.

   First, Mr. Cash became the NRIA manager in October of 2001. (TR 418). Mr. Cash testified that when he enters a new position, he reviews the structure of the organization in order to maximize the value it adds to the company. (TR 425). Also, Mr. Fisicaro specifically asked him to review the nuclear security support function and to make recommendations as to how it could function better. (TR 425). Complainant has not presented evidence that rebuts Mr. Cash's testimony regarding the reasons that he reviewed the nuclear security support function. Mr. Cash's stated reasons for reviewing the nuclear security support function demonstrate that he and Mr. Fisicaro wanted this function to be "well-functioning" like emergency planning, not that they were seeking to eliminate Complainant's position. In fact, when Mr. Cash finished his review of the NRIA function in December of 2001, he retained Complainant and Mr. Cross in the Security Regulatory Program function (TR 427-428; RX 3), thus demonstrating that his review of the organization was to make it more efficient, not to eliminate employees. The fact that Complainant's position was subsequently changed, because of the needs of the security and safety assurance managers and the events of September 11, 2001, does not demonstrate that his termination was due to his protected activity.

   Second, Mr. Cash testified that after September 11, 2001, the nuclear industry "immediately started to question the structural integrity of our facilities and all our abilities to deal with terrorist issues. So we knew that that was going to be significant in terms of how the engineering, legislative, [and] regulatory environment would look like for nuclear power." (TR 442). Mr. Cash explained that because of these changes, he felt there was a strong need for the people working in nuclear security to have an engineering background, which was never an issue before September 11, 2001. (TR 443, 449). The job description specifically states that the new position was created because of the events of September 11, 2001. (RX 10, p. 2; see also RX 44). In contrast, Complainant believes that the events of September 11, 2001 were not a motivating factor for the review of the nuclear security support function because "all of the orders that were issued [by the NRC after September 11, 2001] were in areas where I have particular experience and expertise in what they were asking the sites to do, virtually every aspect. There were no orders that focused on activities that would've required a high level of engineering type analytical things." (TR 810). Duke made a legitimate business decision that it needed individuals with engineering experience in the nuclear security function in the aftermath of September 11, 2001. Complainant's opinion that the NRC orders were within the realm of his experience does not undermine Duke's business decision. Complainant has not presented evidence that Respondent's decision to create a new position was due to this protected activity. Therefore, I find that the entrance of Mr. Cash as the NRIA manager and the events of September 11, 2001 are intervening events that sever any causal connection between Complainant's protected activity and his termination.

10. Complainant and Mr. Cross were treated identically throughout the process

   Respondent argues that Complainant and Mr. Cross were treated identically throughout the process, negating any inference of discrimination. The Board has noted that lack of proof that the complainant was treated differently from other employees during a layoff supports a conclusion that the complainant's termination was not discriminatory. Acord, slip op. at 9, n.10. Complainant and Mr. Cross were the two nuclear security specialists in the general office. (TR 56). During the review of the nuclear security support function, Mr. Cash always met with Complainant and Mr. Cross at the same time and provided them with the same information. (TR 58, 62, 109, 317-319, 109, 451-452, 459, 513-514). Complainant and Mr. Cross were both allowed an opportunity to provide feedback on the draft job description, and both did provide feedback to Mr. Cash. (TR 59; CX 13; RX 6). After the new position was created and Messrs. Cash, King, and Thomas completed the incumbent evaluations, Complainant and Mr. Cross were to be considered for the new position, even if they did not apply, based on their status as incumbents. (TR 513-514). In fact, the interviewers evaluated Mr. Cross, even though he withdrew from consideration before the interview, because he was an incumbent. (RX 32-34). Neither Complainant nor Mr. Cross was selected for the new position, and both were laid off. (TR 128, 557). All of the evidence indicates that Complainant and Mr. Cross were treated identically throughout the process. I find that Duke's equal treatment of Complainant and Mr. Cross, given that Complainant was the only one who engaged in protected activity, demonstrates that Complainant's reporting of alleged security violations to Mr. Fisicaro did not contribute to his termination.

   After reviewing all of the evidence, I find that Complainant has failed to demonstrate that his protected activity was a contributory factor to his termination.

   IT IS RECOMMENDED THAT the complaint of Terry W. Keener be DISMISSED.

      DANIEL L. LELAND
      Administrative Law Judge

NOTICE: This Recommended Decision and Order will automatically become the final order of the Secretary unless, pursuant to 29 C.F.R. § 24.8, a petition for review is timely filed with the Administrative Review Board, United States Department of Labor, Room S-4309, Frances Perkins Building, 200 Constitution Avenue, NW, Washington, DC 20210. Such petitions for review must be received by the Administrative Review Board within ten (10) business days of the date of this Recommended Decision and Order, and shall be served on all parties and on the Chief Administrative Law Judge. See 29 C.F.R. §§ 24.7 and 24.8.