Mr. Johnson further testified that Mr. Carlisle and Mr. Kaneko agreed with the conclusion that the document was inadequate, and was not ready for presentation before the NCDB Steering

Committee. TR 147, 149, 214, 217; B25.266. After this meeting, Mr. Carlisle, Mr. Johnson and Mr. Kaneko decided to downsize the project, transferring the responsibility of developing the RML back to Mr. Kaneko and the NCDB group. TR 218; RX 3:2. Thus, the 3,200 man hours and approximate $150,000 expended on the RML project, while under the supervision of Complainant, was discarded and abandoned for budgetary reasons. TR 149, 218-19. As such, the group of engineers assigned to this task were re-assigned to other duties. CX B25.266.

   Mr. Johnson provided testimony regarding the ultimate results of the RML project. Not only was the scoping effort successfully performed after 400 man hours in 1994, but the entire project was produced in a total of 7,500 man hours in 1995. TR 219. This is in sharp contrast to Complainant's originally expended 3,200 man hours on the scoping effort, and his proposed 13,100 man hours to complete the project. TR 220; RX 25.

   2. Complainant's 1993 demotion

   In November of 1993, Complainant's discipline manager, Mr. Carlisle, was forced to leave active employment because of a medical condition. In light of the fact that there would be an ensuing reduction in force, it was Mike Wharton's decision to eliminate Mr. Carlisle's position altogether and consolidate the electrical and control disciplines. TR 221. Mr. Wharton was the manager of the entire NEDO group, and the overall supervisor of all discipline managers. A consolidation of the electrical and control disciplines would eventually enable the consolidated groups to have one discipline manager in charge of 53 employees. TR 221. Although there were 13 supervisors upon consolidation, only 9 were needed. TR 129, 222.

   The process of reducing the number of supervisors in the consolidated group was based on an evaluation of employee performance in certain areas. RX 42. Four discipline managers participated in the evaluation process: Mr. T. Yackle, the nuclear/mechanical discipline manager; Mr. R. St. Onge, the controls discipline manager who ultimately became the project engineer manager and the NCDB project manager; Mr. R. Verbeck, the civil/plant design manager; and Mr. Johnson, the assistant manager of NEDO. TR 224. The results of the evaluations are found at Respondent's exhibit 43. All four managers placed Complainant at the bottom of the rating scheme, effectively ranking his job performance as last out of 13 people. TR 130-31; 225; RX 43. As a result of these evaluations, Complainant, along with the three other supervisors who ranked at the bottom of the list were demoted from their supervisory engineering position. TR 226.

   3. Complainant's 1993 performance evaluation

   Mr. Johnson prepared Complainant's performance evaluation for the 1993 calendar year, as Complainant's previous discipline manager, Mr. Carlisle, was no longer actively working for the company, and his new discipline manager of two weeks did not feel qualified. TR 233-34; see also TR 268. Mr. Johnson testified that his evaluation of 23 was based on Mr. Carlisle's mid-year review and a review of Complainant's performance subsequent to that review. TR 154, 236. Mr. Johnson explained that his process was to validate the four specific

comments that Mr. Carlisle had made in the mid-year review, and "find out how his performance may be either the same, better or worse than described in his four areas." TR 236; RX 10; see RX 3. Mr. Johnson further testified that he believed it was appropriate to include the negative comments with respect to Complainant's work on the RML project on the performance evaluation for the 1993 year, as the "ultimate acceptance and approval of that work was always planned for calendar year 1993." TR 242-42.

   Subsequent to Complainant receiving his 1993 evaluation in May of 1994, Complainant challenged the same in June of 1994. TR 69, 78, 160. Complainant testified that there was a series of informal conversations and memoranda exchanged between himself and Mr. Johnson. TR 69-70, 71-72. At the conclusion of such exchange, Mr. Johnson wrote a formal Request for Review Level One Response, and stated that Complainant's 1993 performance evaluations was "valid as written" CX B20.4. At such time, Complainant then proceeded to engage in the formal corporate procedure, utilizing the Request for Review Level Two with upper management. TR 73; 78-79; CX B22.2. Complainant compiled relevant documentation of his work history as a supervisor and the projects that he performed with his group, and submitted such documentation to Mr. Wharton. TR 78-79, 153; B25.1-B25.3. An independent review was conducted by Mr. Wharton, Doug Stickney, and Julie Hoffman. TR 261. Ultimately, Complainant's performance appraisal was revised upward to a score of 27 in October of 1994, and the negative appraisal was removed from his personnel file. TR 82-83, 154.

   4. Complainant's July 1995 termination

   Brian Katz, currently employed as a manager of business and financial services for SCE, testified on behalf of Respondent. TR 179. In 1993, during the time in which SCE decreased the total number of employees working at SONGS, Mr. Katz was the manager of nuclear oversight, overseeing approximately 130-140 people. TR 179-80. In such position, Mr. Katz was involved in a study to determine proper staffing levels at the SONGS plant, as one of three units at SONGS would no longer be in service. TR 180. Mr. Katz' extensive report, referred to as the "Katz Staffing Study," was a refinement of work based on a study done by a known industry consultant in the area of nuclear power plant staffing, known as Timothy Martin and Associates. TR 180-81; RX 34. Among other significant reductions, Mr. Katz ultimately recommended that the number of electrical engineers in the NEDO group be reduced from 93 people to 53 people. TR 184-85, see also TR 332-33; RX 34:43.

   Mr. Katz testified about a number of letters written by Harold Ray, Senior Vice President of Nuclear Generation, regarding the reduction in force process. TR 180. On June 9, 1994, Mr. Ray wrote a memo notifying the Nuclear Organization personnel that there was to be a planned severance of 45 management and administrative employees and 16

bargaining unit employees during the week of June 13, 1994. TR 187, RX 27. On January 13, 1995, Mr. Ray wrote a second memo detailing the second severance period to begin the week of January 16, 1995 for 15 management positions. TR 187; RX 30. Finally, a third memo was written on July 5, 1995, indicating that a further reduction of 53 management positions would be made the week of July 10, 1995. TR 188; RX 28.

   Mr. Katz was greatly involved in the process of reducing employees at SONGS. Not only did Mr. Katz perform the staffing study which the reduction in force is based on, but Mr. Katz also participated in the presentation to SCE's corporate headquarter to obtain approval for such actions. TR 189. The presentation consisted of providing corporate SCE with the business justification for the reduction in force, the number of people that would be terminated, and the procedure for the selection of individuals for termination. TR 190-93. The stated criteria for the selection of such individuals was three-fold: the employee's job performance in the past 3 years, the employee's required skill mix, and the employee's job knowledge and special expertise. RX 29:11; TR 193.

   As Complainant's discipline manager at the time, Mr. Johnson testified about the reasons for Complainant's termination,

Mr. Khandelwal as well as the other six individuals from my department were released because capital funded projects were being dramatically reduced during calendar year 1995, and in the immediate following year. The need for the type of expertise for capital projects within NEDO had been reduced such that the responsibility the other responsibilities of these incumbents would be assumed by other staff engineers thus eliminated the need for these seven permanent Edison positions within my department. TR 335.

During trial, Complainant testified that he was advised that NEDO would be experiencing a reduction in the amount of employees, wherein 53 management positions would be terminated the week of July 10, 1995. TR 167. He testified that the management stated his termination was necessary because his position had been abolished. TR 86, 88-89. At such time, Complainant was presented with a severance agreement, which he ultimately signed on July 26, 1995.

B. Complainant's Protected Activity

   Complainant contends that he engaged in protected activity on several occasions in 1993 and 1994, and that SCE subsequently discriminated against him in retaliation for this activity. Complainant's protected activity involved the qualification of two types of electrical relays used at SONGS, the Agastat E7000 relay and the MDR relay. Complainant testified that he first became aware of an issue involving the Agastat relay in March of 1992. TR 109; CX B6.1. In a letter from the manufacturer, Complainant learned that although the Agastat E7000 series relays had a qualified life of ten years in a de-energized state, there was no information about the useful life of the relay in an energized state. CX B6.1.

   It was approximately 14 months later when Complainant first raised the issue of the Agastat relay's qualified life to management. TR 109-10. During the dry-run presentation on May 28, 1993, Complainant provided the attendees with a hand-out detailing his scoping efforts. In the text of the document, Complainant included a general discussion about the Agastat relay and its qualified life. RX 24:5. There is substantial testimony, however, that there was no verbal discussion of such issue during the dry-run presentation. TR 119, 216, 276.

   Complainant states that he next engaged in protected activity on June 30, 1993, when he sent an E-mail message to his discipline manager, Mr. Carlisle, regarding MDR relays and their qualification of life. TR 75-75; CX B3.1. Although there is no evidence that Complainant ever discussed the contents of this E-mail with Mr. Carlisle, in a September 8, 1993 E-mail, Complainant did attempt to arrange a meeting with Mr. Carlisle regarding such issue. TR 75-76; CX B5.1.

   At the time of the January 1994 meeting, Mr. Johnson had recently become the discipline manager for the combined electrical/controls group. TR 228-29. Based on the fact that Complainant's E-mail was dated in June of 1993, Mr. Johnson testified that he was concerned that such issue had not been resolved between Complainant and his then discipline manager in more than a six month period. TR 229. Mr. Johnson testified that he was upset, not about the particular issue of MDR relays which Complainant had raised and which could easily be solved, but rather, at the possibility that there were similar issues that were languishing in "somebody's file drawer or in somebody's computer." TR 229. Ultimately, Mr. Johnson did not make a specific assignment to either supervisor to resolve the issue, as he believed that it had been made clear to both of them that "either one or both would handle it." TR 230.

   Complainant contends he next raised the relay issues with his new supervisor, Mr. Stickney at the end of January or the beginning of February 1994. TR 77. At such time, Complainant submitted a large amount of material to Mr. Stickney. This material related either to various open assignments that Complainant had previously done as a supervisor or work that he had performed under the supervision of Mr. Grande; this material allegedly contained references to the relay compliance issues. TR 77-78, 258. Complainant made no verbal reference to the compliance issues at the time he turned over the materials, but rather Mr. Stickney understood Complainant was providing him with the materials merely to bring him "up to speed" on open assignments. TR 259. Shortly thereafter, Mr. Stickney was transferred to another supervisory position, and gave the materials to Mr. Ambrose Mationg, Complainant's new supervisor. TR 260.

   Finally, it appears that Claimant last raised the MDR and Agastat relay issues during a meeting with Mr. Johnson on June 14, 1994. Although the purpose of the meeting was for Complainant to discuss his 1993 performance evaluation with Mr. Johnson, Complainant also advised Mr. Johnson that MDR and Agastat relay compliance and safety issues had existed since the time when Complainant was a supervisor. TR 160. Again, while there was no substantive discussion regarding the compliance and safety issues, Mr. Johnson ultimately requested Complainant to prepare a memorandum by June 24, 1994, describing the particulars of the issue. TR 161, 245-46, 248; RX 17:6. Complainant provided Mr. Johnson with an E-mail dated June 24, 1994, describing what he believed were compliance issues associated with the MDR and Agastat relays. TR 80-81; CX B17.1-17.6. At such time, Mr. Johnson enlisted the help of Mr. Rice Berkshire, the environmental qualification group supervisor, to resolve the issues. TR 81, 164, 249, 319-21. An investigation was performed under the supervision of Mr. Berkshire; the results of such investigation are detailed in two separate reports entitled, "Review of MDR Qualification Issues," and "Review of Normally Energized Agastat E7000 Series Relay Replacement Interval issue." See RX 1, RX 2.

C. Independent Investigations of Complainant's Complaint

   Complainant testified that he contacted the Nuclear Safety Concerns (NSC) group within SCE's Nuclear Oversight Division in June of 1994, regarding the safety and compliance issues that he had raised and the retaliatory behavior that he was being subjected to by his supervisors. TR 81-82. Complainant also sent an E-mail on July 6, 1994 to Mr. Wharton regarding the same. TR 82; CX B19.1. The NSC group performed an investigation into the two

matters which Complainant had raised before them, the technical issue of the electrical relays and the 1993 midterm and annual performance evaluations. Willis Frick, the manager of the NSC group, testified on behalf of Respondent about the results of the independent investigation performed by the NSC.

   Complainant, on the other hand, testified that he was dissatisfied with a number of things relative to the meeting occurring on November 14, 1994. He stated that he was not allowed or authorized to review the technical reports during work hours; that he was concerned that the NSC investigation of his performance evaluation was not "totally independent"; and that the closure letter from Ken Slagle, the manager of the Nuclear Oversight Division, did not accurately record the events and conversations that took place during meeting. TR 82-84. Complainant also testified that he was concerned about the timeliness of NEDO's response to the safety issues that he had raised. TR 85.

   Mr. Frick testified that the December 7, 1994 closure letter addressed to Complainant and written by Mr. Slagle, accurately detailed the discussion and resolution of the issues which Complainant had raised with the NSC group. TR 373; see RX 19. In addition, the letter responded to Complainant's concern regarding the timeliness of NEDO's response, stating that an investigation would be conducted and the results would be communicated to Complainant. RX 19. Regarding this investigation, Mr. Frick stated that,

The conclusion of [this] investigation was that Mr. Khandelwal had not come forward in the [sic] a specific enough way identifying a specific safety issue relative to the subject. The subject had been discussed several times but he had not brought it forward as a specific safety issue nor had he written a nonconformance report which would have resulted in immediate analysis. TR 374.

A subsequent letter dated January 27, 1995 and written by Mr. Slagle, communicated such results to Complainant. RX 18.

   At the request of SCE Vice-President Richard Rosenblaum, Mr. Frick and the NSC group were also involved in an investigation regarding all persons who had raised safety concerns in the preceding five years and were tentatively identified as an employee to be severed during the reduction in force. TR 374-75. The scope of such investigation included three levels of findings: (1) that there was no retaliatory motive in severing an employee who raised safety concerns; (2) that there was a clear business reason for severing that employee; and (3) that there was not even an appearance of discrimination in selecting that employee, so as to avoid any "chilling effect on the rest of the organization." TR 375. The NSC group examined the entire selection process, beginning with an analysis of the Katz Staffing Study and then interviewing various people in managerial positions, to assess the validity of which individuals would be retained and which would be identified for severance. TR 375-76, 378. Ultimately, the investigation conducted by the NSC group concluded that there was nothing improper about Complainant's termination, as his severance was not related to his protected activity. TR 376; RX 23.

   To establish a continuing Section 211 violation beginning in May of 1993 and lasting through July of 1995, Complainant must prove that a series of alleged discriminatory actions were somehow connected, rather than mere isolated decisions involving disparate facts; and that at least one of the discriminatory actions occurred within the limitations period. Varnadore v. Oak Ridge National Laboratory and Lockheed Martin Energy Systems, Inc., 92-CAA-2, 92-CAA-5, 93-CAA-1, slip op. at 73 (Sec'y Jan. 26, 1996); Bonanno v. Northeast Nuclear Energy Company, 92-ERA-40, 92-ERA-41 (Sec'y Aug. 25, 1993). Thus, Complainant must prove that he was subject to a single continuing violation, as opposed to separate and sufficiently permanent acts which should trigger the Complainant's awareness of and duty to assert his rights. Eisner v. United States Environmental Protection Agency, 90-SDW-2 (Sec'y Dec. 8, 1992); McCuistion v. Tennessee Valley Author., 89-ERA-6 (Sec'y Nov. 13, 1991).

   To analyze the two actions that occurred outside of the 180 day statutory of limitations period, the 1993 demotion which Complainant received notice of on November 9, 1993 and the 1993 performance evaluation which Complainant received notice of on May 16, 1994, as a "single continuing violation" is completely untenable. As in Bassett v. Niagara Mohawk Power Co., 86-ERA-2 (Sec'y Sept. 28, 1993), the complainant was demoted from a supervisory position in 1981, and attempted to challenge or recover damages for that incident. The claim was ultimately found untimely and could not be resurrected under a continuing violation theory. The Secretary stated that the demotion was a consummated, immediate act which may not be treated as an episode in a continuing violation because its natural effects necessarily carry over on a continuing basis. See also English v. Whitfield, 858 F.2d, 957, 962-63 (4th Cir. 1988). As for the 1993 performance evaluation, the Secretary has also held that a poor performance evaluation is a discrete act which cannot be considered part of a continuing violation. McCuistion v. Tennessee Valley Author., 89- ERA-6, supra. Such an act has the degree of performance which should indicate to the employee that the continued existence of the adverse consequences of the act is to be expected without being dependent on a continuing intent to discriminate. McCuistion v. Tennessee Valley Author., 89-ERA-6, supra.

   The incidents of Complainant's 1993 demotion and his 1993 performance evaluation were clearly separate and distinct, and not acts of a continuing nature. See Green v. Los Angeles County Superintendent of Schools, 883 F.2d 1472, 1480-81 (9th Cir. 1989); London v. Coopers & Lybrand, 644 F.2d 811, 816 (9th Cir. 1981). Rather, such acts were sufficiently permanent to trigger Complainant's awareness of the respondent's alleged discrimination. Berry v. Board of Supervisors of LSU, 715 F.2d 971, 981 (5th Cir. 1983). Consequently, the continuing violation theory does not preserve the timeliness of the 1993 demotion and 1993 performance evaluation as actionable adverse employment actions under the complaint herein. Mr. Khandelwal's termination by Respondent in July of 1995 shall be considered the sole adverse employment action made actionable by the filing of this complaint. However, all events relevant to the relationship between Mr. Khandelwal and SCE, such as the 1993 demotion and 1993 performance evaluation, shall be considered evidence of a possible pattern of discrimination irrespective of the time of their occurrence. See Miller v. Ebasco Services, 88-ERA-4 @ 11 (Sec'y Nov. 24, 1992).

B. The Legal Framework of Complainant's Retaliation Action Under the ERA

   The legal framework to be applied in ERA whistleblowing proceedings has become a jurisprudence recited ad infinitum in such cases. Although Carroll v. Bechtel Power Corp., 91-ERA-46 @ 4-7 (Sec'y Feb. 15, 1995) has become the standard citation for Secretarial decisions, a brief discussion of the general burdens of proof and production is still necessitated in the case herein.

   To prevail in a retaliatory adverse action case arising under 29 C.F.R. Part 24, and the ERA as enumerated therein, the employee must initially present a prima facie case consisting of a showing that he engaged in protected conduct, that the employer was aware of that conduct, and that the employer took some adverse action against him. Dartey v. Zack Company of Chicago, 82-ERA-2 (Sec'y Apr. 25, 1983), slip op. at 7-8. In addition, as part of his prima facie case, the complainant must also present evidence sufficient to raise the inference that the protected activity was the likely reason for the adverse action. McCuistion v. Tennessee Valley Author., 89-ERA-6, slip op. at 5-6; Mackowiak v. University Nuclear Systems, 735 F.2d 1159, 1162 (9th Cir. 1984).

   If the complainant succeeds in establishing the foregoing, the respondent must produce evidence of a legitimate nondiscriminatory reason for the adverse action. Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 249 (1981); Dartey v. Zack Company of Chicago, 82-ERA-2 , supra, slip op. at 6-9. Once this is accomplished, complainant must then prove by a preponderance of evidence that the articulated reason for the adverse employment action was a pretext for discrimination. Texas Dept. of Community Affairs v. Burdine 450 U.S. 248, 257; Thomas v. Arizona Public Service Co., 89-ERA-19 (Sec'y Sept. 17, 1993), slip op. at 20 (citing St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993)). Complainant may demonstrate this burden by showing that the discrimination was more likely the motivating factor or by showing that the proffered explanation was not worthy of credence. This standard is further explained in St. Mary's Honor Center v. Hicks, 509 U.S. 502, 519, "[i]t is not enough . . . to disbelieve the employer; the fact finder must believe the plaintiff's explanation of intentional discrimination." (emphasis in original).

   The finding that a respondent's asserted reasons are pretextual, however, does not compel a finding in favor of complainant. Complainant still retains the ultimate burden of proving by a preponderance of evidence, that the adverse action was in retaliation for the protected activity in which he was engaged. St. Mary's Honor Center v. Hicks, 509 U.S. 502, 511. If there is evidence that respondent was motivated by both legitimate and

prohibited reason, then a dual analysis is necessary. Mt. Healthy Sch. Dist. v. Doyle, 429 U.S. 274 (1977); Dysert v. Florida Power Corp., 93-ERA-21 (Sec'y Aug. 7, 1995). In a dual motive case, the respondent must establish by clear and convincing evidence that it would have reached the same decision, even in the absence of protected contact. Yule v. Burns Int'l Security Services, 93-ERA-12 (Sec'y May 24, 1995).

C. Complainant's Prima Facie Case

   To establish a prima facie case, the complainant need only present evidence sufficient to prevail until contradicted and overcome by other evidence. Jackson v. The Comfort Inn, Downtown, 93-CAA-7 (Sec'y Mar. 16, 1995) (citing Carroll v. Bechtel Power Corp., 91-ERA-46 (Sec'y Feb. 15, 1995), slip op. at 11. Having considered the evidence as set forth in Complainant's case-in-chief and construing such evidence in a light most favorable to Complainant, I find the requisite minimal showing of a prima facie case has been satisfied herein.

   1. Whether Complainant engaged in protected conduct.

   Under the ERA, protected conduct engaged in by a complainant can be in the form of filing internal quality control reports or making internal complaints regarding safety or quality problems. Bassett v. Niagra Mohawk Power Corp., 85-ERA-34, supra. In addition, any informal safety complaint to a supervisor is sufficient to establish protected activity. Corroborating evidence is not required to establish a prima facie showing of protecting activity; the complainant's testimony may be sufficient. Samodurov v. General Physics Corp., 89-ERA-20 (Sec'y Nov. 16, 1993); see also Nichols v. Bechtel Construction, Inc., 87-ERA-44 (Sec'y Oct. 26, 1992 (employee's verbal questioning of foreman about safety procedures constituted protected activity), appeal dismissed No. 92-5176 (11th Cir. 1992); Dysert v. Westinghouse Electric Corp., 86-ERA-39 (Sec'y Oct. 30, 1991) (employee's complaints to team leader protected). Finally, when a complainant alleges a violation, it does not matter whether the allegation is ultimately substantiated; rather, it need only be "grounded in conditions constituting reasonably perceived violations of the environmental acts." Minard v. Nerco Delamar Co., 92-SWD-1 (Sec'y Jan. 25, 1995), slip op. at 8.

   Complainant has provided numerous accounts in which he reported compliance and safety concerns regarding the MDR and Agastat relays to various supervisors. Based upon the Findings of Facts as detailed in Section II.B., supra, I find that Complainant's conduct from the period of May 1993 through June 1994 warrants sufficient evidence to demonstrate that he engaged in protected conduct. The issue of whether an actual compliance violation existed is irrelevant to the matter herein; as coverage under the employee

protection provision extends to any complainant where the conditions constitute a reasonably perceived violation of the underlying act. See Yellow Freight System, Inc. v. Martin, 954 F.2d 353, 357 (6th Cir. 1992). The evidence in the record suggests that Complainant's protected conduct was grounded in conditions constituting a reasonable perception that SCE was violating the ERA.

   2. Whether Respondent was aware of Complainant's protected conduct.

   It is undisputed that Complainant engaged in various activities wherein he attempted to detail the compliance and safety issues associated with the MDR and Agastat relays. It appears, however, a dispute arises upon whether and when Respondent became aware of Complainant's protected conduct. To establish this element, the evidence must show that Respondent's managers responsible for taking the adverse actions had knowledge of the protected activities. Floyd v. Arizona Public Service Co., 90-ERA-39 (Sec'y Sept. 23, 1994). I find that upon consideration of the interactions between Complainant and his various supervisors, Respondent was made aware of Complainant's protected activities prior to the occurrence of any adverse employment actions against Complainant.

   Complainant states that he first raised the issue of the Agastat relay's qualified life to management in the scoping document which he presented during the May 28, 1993 dry-run presentation. However, such issue was confined to a short excerpt of text, containing a general discussion of compliance issues, and using the Agastat relay as an example. RX 24. As was noted in the earlier discussion, there was testimony by Complainant, Mr. Johnson, and Mr. Kaneko attesting to the fact that there was no verbal discussion of such issue.

   Despite the foregoing fact, however, Complainant states that during the course of the May 28, 1993 meeting, Mr. Johnson made a statement to the effect that Complainant "better hide [the Agastat 7000 compliance issue], otherwise [Complainant's] supervisor w[ould] go to jail." TR 75. Although Complainant felt such statement was "quite shocking", Complainant made no remarks about the statement during the meeting, or at anytime thereafter. Complainant also testified that no remarks regarding Mr. Johnson's comment were made by the other attendees of the meeting. When Mr. Johnson was asked about the comment on cross-examination, he repeatedly testified that he did not specifically recall making such comment at the May 28, 1993 meeting, but did admit that he has made similar comments on occasion to impress upon other employees the seriousness of working at a nuclear power plant.

   Complainant vehemently argues that Mr. Johnson's statement was made to reflect the seriousness of the issue regarding the Agastat relays. Complainant supports this proposition by presenting a documented interview with Roberto Cruz, another employee present at the May 28, 1993 meeting. Mr. Cruz stated in his interview, "the compliance/safety issues were brought up and Ken Johnson made a comment to the effect 'don't bring up these

issues or the bosses can go to jail.'" RX 4:1. Mr. Cruz, went on to state, however, that he "felt the comment was made in jest and was not meant maliciously and neither was it meant to be taken seriously." RX 4:1.

   Although Complainant vehemently argues that such statement is indicative of the seriousness with which Mr. Johnson understood Complainant's compliance concerns to be, I find that there is no credible evidence on the part of Complainant tending to show that any comment was made with specific reference to the Agastat relay. The emphasis with which Complainant places on Mr. Johnson's alleged comment is misplaced, and does not support a finding that the attendees at the May 28, 1993 meeting were specifically made aware of Complainant's concerns regarding the Agastat relay. Rather, it is Complainant's own testimony that dispels any notion that Respondent was made aware of Complainant's protected conduct on such date, as Complainant acknowledges that there was no verbal discussion about the issue throughout the meeting.

   Complainant's next activity wherein protected conduct was implicated is the June 30, 1993 E-mail addressed to Mr. Carlisle, his then supervisor, regarding the qualified life of MDR relays. Such E-mail notification of Complainant's compliance concern was subsequently confirmed in another E-mail, addressed to Mr. Carlisle and dated September 8, 1993, wherein Complainant requested a meeting to discuss the same. Although these E-mails appear to be informal communications to Mr. Carlisle, such communications are enough to establish that Respondent, by and through Mr. Carlisle, was made aware of Complainant's compliance concerns. Jackson v. The Comfort Inn, Downtown, 93-CAA-7, supra, (stating that a complaint to a supervisor is a complaint to the Respondent's management).

   In addition, based on the testimony of Mr. Grande, Mr. Stickney, and Mr. Johnson, all three witnesses became aware of Complainant's compliance concerns regarding the MDR relay, as of the January 1994 meeting. Mr. Johnson was further advised of Complainant's concerns regarding both the MDR and Agastat relay in the June 14, 1994 meeting. Although there is no evidence to suggest a substantive discussion regarding such issues had occurred at any point in time, it is clear that Respondent was repeatedly put on notice of Complainant's protected activity from the date of Mr. Carlisle's awareness on June 30, 1993.

   3. Whether Respondent took some adverse action against Complainant.

   This factor is undisputed. Generally speaking, any employment action by an employer that is unfavorable to the employee's "compensation, terms, conditions, or privileges of employment" may be considered an "adverse action" for purposes of the prima facie case. See DeFord v. Secretary of Labor, 700 F.2d 281, 286 (6th Cir. 1983) (Section 5851 prohibits discrimination in practically any job-related fashion); see also 29 C.F.R. § 24.2(b). Since the time which Complainant raised

his concerns with the MDR and Agastat relays and Respondent became aware of such protected activity in June of 1993, it is clear and undisputed by the Respondent that Complainant has suffered adverse actions. Such adverse actions came in the form of Complainant's November 1993 demotion, his 1993 performance evaluation which he received in May 1994, and his ultimate termination in July 1995.

   4. Whether Complainant has presented evidence sufficient to raise the inference that the protected activity was the likely reason for the adverse action.

   To establish the foregoing element, a complainant need only produce evidence to raise the inference that the motivation for the adverse action was his protected activity; a complainant need not actually establish motivation. Pillow v. Bechtel Construction, Inc., 87-ERA-35 (Sec'y July 19, 1993). A complainant may carry this burden of proof of causation by a showing of direct or circumstantial evidence. Dillard v. Tennessee Valley Author., 90-ERA-31 (Sec'y July 21, 1994).

   A causal connection between the protected activity and the adverse employment action may be established circumstantially by showing that the employer was aware of the protected activity and that adverse action followed closely thereafter. See Couty v. Dole, 886 F.2d 147, 148 (8th Cir. 1989); Larry v. Detroit Edison Co., 86-ERA-32 (Sec'y June 28, 1991). Thus, proximity in time can be considered solid evidence of causation. White v. The Osage Tribal Council, 95-SDW-1, slip op. at 4 (ARB Aug. 8, 1997). See also Carson v. Tyler Pipe Co., 93-WPC-11 (Sec'y Mar. 24, 1995) (ten months between protected activity and adverse action sufficient to raise inference of causation); Thomas v. Arizona Public Service Co., 89-ERA-19, supra (one year sufficient to raise inference of causation).

Complainant in October of 1993. RX 10. Such evaluation stated that although Complainant generally performed on target, he suffered from a number of specific deficiencies, i.e., he needed improvement in his written skills, he needed to reduce his adversarial approach, and he provided the employees working under him with poor exposure to management. This adverse performance evaluation was ultimately used and served as a factor to be considered upon choosing the supervisors to be retained or demoted. RX 42:2. Although I find that the relationship between Mr. Carlisle's mid-year evaluation and Complainant's demotion somewhat tenuous because there is no evidence to show that the people responsible for consolidating the electrical and controls discipline and choosing the supervisors to be demoted were aware of the compliance concern that Complainant had raised with Mr. Carlisle, it nevertheless suffices to circumstantially demonstrate an inference of retaliation.

   The next adverse employment action which Complainant suffered was the negative 1993 performance evaluation executed in February 1994 by Mr. Johnson, a month subsequent to the discussion which Complainant had with Mr. Grande, Mr. Stickney, and Mr. Johnson. As the evidence indicates, all three witnesses were made aware of Complainant's compliance concerns regarding the MDR relay. Moreover, the testimony of all three witnesses support a finding that although Mr. Johnson may not have been concerned about the substantive technical issue involved, he did express frustration about the fact that such problem had languished and had remained unresolved. Testimony regarding Mr. Johnson's knowledge and consequent reaction to the discussion of Complainant's June 30, 1993 E-mail sufficiently supports an inference that Mr. Johnson's "below standard" performance evaluation was in retaliation for Complainant's protected conduct.

raising protected concerns was reasonable, and that his raising of fairness of the rating was not disingenuous. Similarly, Complainant has continuously expressed concern that the "below standard" evaluation was not indicative of the work that he actually performed during the relevant time period, but rather that the sole reason for the poor performance evaluation was attributable to retaliatory motives. CX B32.2. As such, a sufficient causal nexus is established between Complainant's protected conduct of complaining about his negative performance appraisal and his July 1995 termination.

   Based on the foregoing evidence, I find and conclude that Complainant has met his burden in establishing a prima facie case. Complainant has engaged in protected conduct; Respondent was aware of such conduct; Complainant was subject to various adverse employment actions; and based on the circumstantial evidence provided, Complainant has raised an inference, albeit a modest inference, that the protected activity was the likely reason for the adverse action.

C. Respondent's Legitimate Nondiscriminatory Motives

   Respondent now has the burden of producing evidence to rebut the presumption of disparate treatment by presenting evidence that the alleged disparate treatment was motivated by legitimate, nondiscriminatory motives. Significantly, while Respondent bears only a burden of producing evidence at this point, the ultimate burden of persuasion of the existence of intentional discrimination rests with Complainant. Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 254-55, supra; Dartey v. Zack Company of Chicago, 82-ERA-2, supra, slip op. at 6-9.

   1. Complainant's 1993 demotion

   On November 9, 1993, Complainant's supervisory position was eliminated, and the group of employees that worked under him was abolished. Respondent has properly buttressed any claim that such demotion was due to retaliation for raising safety concerns by demonstrating that during such time, there was a legitimate re-organization of the employment structure so as to necessitate a certain number of demotions. Mr. Johnson, who was the NCDB manager at the time, was asked by the NEDO manager, Mr. Wharton, to assume management of the electrical discipline and combine such discipline with the controls group headed by Mr. St. Onge. This consolidation was undertaken so as to accommodate a substantial reduction in force.

   The supervisory demotions were based on independent evaluations of the supervisor's performance, oral communication skills, interpersonal skills, decision making skills, management skills, and organizational skills. All four discipline managers performing such evaluation, Mr. St. Onge, Mr. Verbeck, Mr. Johnson, and Mr. Yackle gave Complainant the lowest score of the thirteen supervisors reviewed. Mr. St. Onge rated Complainant a 34 while the next lowest rating was 42 and his highest rating was 63. RX 43:4. Mr. Verbeck gave

Complainant a score of 30 while the next lowest score was 39 and the highest score was 60. RX 43:2. Mr. Johnson rated Complainant a 26 while the next lowest score was 43 and the highest score was 74. RX 43:3. Finally, Mr. Yackle gave Complainant a score of 23 while the next lowest score was 27 and the highest score was 60. RX 43:1. Based on these ratings, Complainant and three other supervisors lost their supervisory positions on November 9, 1993.

   Complainant testified that he had never spoken to Mr. St. Onge, Mr. Verbeck, or Mr. Yackle about the relay issues. Moreover, as of November 1993, when these decisions were made, Mr. Johnson was not aware that Complainant had raised any compliance or safety issues. See supra discussion III.C.2. Finally, while it is clear that the specific criteria used to identify the selection of supervisors included Complainant's mid-year performance evaluation, other than the circumstantial link of temporal proximity, there is no evidence to suggest that Mr. Carlisle's evaluation was retaliatory. Rather, it appears Mr. Carlisle's 1993 mid-year evaluation of Complainant's performance was substantially documented with specific reasons and interactions with Complainant, which validated his "below standard" evaluation. RX 3:2.

   It is clear that Complainant's demotion was the result of an independent rating of his performance by managers within NEDO, and that the supervisors who evaluated him had no awareness that he had raised any compliance or safety concerns regarding the Agastat relay. Thus, Respondent has successfully rebutted Complainant's contention that the 1993 demotion was in retaliation for Complainant having engaged in protected activity.

   2. Complainant's 1993 Performance Evaluation

indicated that a substantial personnel reduction was to be made upon the closing of the SONGS unit. The more appropriate number for employee retention was 2549, rather than the 3200 personnel already working at SONGS. As Mr. Katz testified at the hearing, he recommended that the electrical/controls discipline in which Complainant work would be reduced from over 90 employees to 53 employees.

   In deciding which engineers would be retained, NEDO management first determined the appropriate mix of skills among the various types of engineers. Many of the engineers who had previously been involved in capital projects were selected for termination. As a check on the selection process, NEDO ranked all of its engineers based on the average of their evaluations in the previous four years, as well as their last evaluation score taken as a whole

   The record is undisputed that Complainant's skills and experience were in capital projects and that Complainant was released along with a large number of other engineers with similar skills and experiences because employees with such skills were no longer needed. Among his immediate colleagues, Complainant was one of seven engineers released because of the reduction in capital projects. Additionally, Complainant's evaluation scores were substantially lower than those of the engineers retained within NEDO. The four-year average score of those retained during the 1995 downsizing was 34.08 and average 1994 evaluation score was 35.32. In contrast, Complainant had a four-year average of 29 and a 1994 score of 28.

   It was Complainant's understanding that subsequent to his termination, four contract employees who had similar backgrounds to Complainant had been hired on to take over permanent positions. Complainant further explained in his testimony that he attended a meeting wherein the subject of contract employees was raised, and that the upper management's response to said issue was that the company policy would be to retain the Edison employee as much as possible. Complainant argues that the retention of contract employees, rather than a permanent employee such as himself, is evidence of retaliatory behavior. Mr. Katz, however, credibly testified regarding the business justification for retaining contractors while releasing SCE employees. He stated two reasons for such strategy, "[o]ne is typically a project of short duration, that they need to complete that work, and then we don't need their services any more. And that is why we use a contractor. And second, we find sometimes that the expertise we need to be successful on projects doesn't reside within the organization. And therefore we go out and we contract for that expertise." TR 194.

   Based on Mr. Katz' testimony and his staffing study, it is clear to the undersigned that Complainant's termination was unrelated to his protected activity, but rather was a result of a legitimate reduction in force. Respondent established that it conducted its reduction in force in a nondiscriminatory fashion wherein multiple employees of the same skill level and expertise were terminated at the same time; there was no suggestion that the other employees were also targets of retaliation; and the selection for discharge was not in any way

improper, as the low performance rating given to Complainant appears reasonable and valid. Shusterman v. Ebasco Servs. Inc., 87-ERA-27 (Sec'y Jan. 6, 1992). It is clear to the undersigned that Complainant would have been terminated from SCE even in the absence of any protected activity.

D. Complainant's Ultimate Burden

   Where the respondent articulates legitimate nondiscriminatory reasons for the adverse action, the complainant has the ultimate burden of persuading the trier of fact that the reasons articulated by the respondent were pretextual, either by showing that an unlawful reason more likely motivated the respondent or by showing that the proffered explanation is not worthy of credence. Nichols v. Bechtel Constr. Inc., 87-ERA-44, supra. At all times, the complainant has the burden of showing that the real reason for the adverse action was discriminatory. St. Mary's Honor Center v. Hicks, 509 U.S. 502, supra.

   Because Complainant's argument with respect to the identities of the employees is wholly speculative, there are no facts to support the undersigned to rule adversely against Respondent based on non-compliance of a discovery order. The document which Complainant refers to has little substantive relevance based on the fact that the evaluation scores cannot be attributed by name, and thus serve no useful purpose in understanding which employees had higher and lower scores, and which were then ultimately retained or terminated based on such scores. Moreover, I found Mr. Johnson to be a credible witness on this issue and believe his statement that no employees with lower scores than Complainant were retained.

   With respect to four other items relative to Complainant's untimely Request For Production of Documents, Complainant requests that the undersigned to apply the "adverse inference rule" in wholesale fashion. Once again, as I find no underlying facts in the entire record to support the inferences that Complainant requests the undersigned to find, Complainant's request is denied.

   Upon a thorough review of the evidence provided by both parties, I find that the compliance and safety issues which Complainant raised throughout the course of his employment with SCE during the period between May 1993 and his ultimate termination were not at issue when Complainant was demoted, when he received a poor performance evaluation for 1993, or when he was terminated in a legitimate reduction in force. Such adverse employment actions would have occurred in the absence of any protected activity. Complainant has failed to sustain his ultimate burden of proof in showing by a preponderance of evidence that Respondent was motivated, in whole or in part, by Complainant's protected activities. As such, engaging in the balance of the analytical framework is futile.

   It is noted for the record, among the remedies which Complainant seeks in this matter, reinstatement and loss of income from the date of termination to the time of reinstatement, Complainant also seeks an additional ,500.00 to cover miscellaneous expenses. As all remedies in this matter are denied for lack of proof that a Section 211 violation actually occurred, Complainant's request for additional expenses is also denied. Not only did Complainant fail to prevail in his Section 211 complaint, but Complainant failed to provide proof of expenses incurred in the matter herein.

   For the foregoing reasons, Complainant's complaint based on Section 211 of the ERA as amended, is hereby DISMISSED.

       HENRY B. LASKY
       Administrative Law Judge

Dated: August 12, 1998
San Francisco, California

NOTICE: This Recommended Decision and Order will be 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, N.W., Washington, D.C. 20210. Such petition for review must be received by the Administrative Review Board within ten 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. §§ 24.8 and 24.9, as amended by 63 Fed. Reg. 6614 (1998).