U.S. Department of Labor Office of Administrative Law Judges
Heritage Plaza Bldg, 5th Floor
111 Veteran's Memorial Boulevard
Metairie, LA 70005
CASE NO.: 97-ERA-53
In the Matter of
CURTIS C. OVERALL
Complainant
v.
TENNESSEE VALLEY AUTHORITY
Respondent
APPEARANCES:
Charles W. VanBeke, Esq.
Wagner, Myers, &Sanger
For the Complainant
Thomas F. Fine Esq.
Assistant General Counsel
Angela Tyson Floyd, Esq.
Office of General Counsel
Tennessee Valley Authority
For the Respondent
BEFORE:
CLEMENT J. KENNINGTON
Administrative Law Judge
RECOMMENDED DECISION AND ORDER
This proceeding arises out of a complaint filed by Complainant, Curtis C.
Overall (herein Overall) under the Energy Reorganization Act of 1974 (ERA), 42 U.S.C. Section
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5851, and implementing regulations at 29 C.F.R. Part 24. The ERA affords employees in the nuclear
industry protection against employment discrimination because of their actions in commencing,
testifying at, or participating in proceedings or other actions to carry out the purposes of the ERA or
the Atomic Energy Act of 1954, as amended, 42 U.S.C. 2011, et. seq. including
"whistleblower " activity such as the participation in the identification of nuclear safety
concerns and quality problems. Hill v. U.S. Dept. of Labor, 65 F.3d 1331,1335 (6th Cir.
1995).
Koehl then met individually with these employees telling them that TVA had
funded Services for a two year period and that while in Services they would receive extensive
training. According to Koehl, Overall received the at-risk notice with no apparent emotion or
concern. (Tr. 665,666).
According to Koehl once he gave the section supervisors their respective head
counts, he then let the supervisors determine who was to be kept or let go. McCormick allegedly
made the decision to let Overall go by eliminating all SD positions in the NSSS section where Overall
worked. Koehl in turn supported this decision. (Tr. 612-615, 639-642). Allegedly, McCormick
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chose to let Overall go because McCormick did not need a full time person (2000 man hours per year)
as a ice condenser specialist and Overall lacked a 4 year engineering degree or its equivalency making
him less flexible than an engineer in performing other assignments outside of ice condenser system
due to the engineer's superior educational background, which in turn allowed for quicker training
time on new assignments (Tr. 642-648). Allegedly, Koehl in the past had ordered Human Resources
to do three job equivalency evaluations on Overall and on all three occasions Overall was found not
to possess an engineering equivalency. Overall was moreover encouraged to get additional training
by attending school and did not do so. (Tr. 617-618).
McCormick testified, however, that the alleged decision to transfer Overall to
TVA Services was because of an alleged lack of flexibility as a SD employee in being assigned other
plant systems and not because the position of ice condenser specialist did not justify a full time
position. (Tr. 777-779). McCormick even estimated that Jordan spent at least 80% of his time on
the ice condenser. (Tr. 805, 807). TVA called no witnesses to support McCormick's lack of
flexibility assertion. Koehl, moreover, admitted that Overall had worked back up systems in the past.
(Tr. 737).
Koehl incredibly testified that by June 1995 there had been no change in the
head counts although the number of employees in his section continued to diminish as employees left,
resigned, or bid on other jobs with only 4 out of the original 19 employees, including Overall,
receiving actual "at risk" transfer notices. (Tr. 667, 678). Of these 4, John Ferguson, was
exempted from the transfer because of a last minute engineering equivalency rating. (Tr. 723-726).
Interestingly, both Ferguson and Overall had the same total score but no attempt was made to re-evaluate Overall's status. (Tr. 741). Koehl admitted that Overall's completion of in-house training
since 1991 should have been factored into his equivalency score but was apparently not done. (
Tr.738-743).
Koehl had no recollection of talking to anyone in TVA Services or other
organizations about Overall's skills or abilities. Koehl denied any conversations with Stone and
Webster about Overall and the need for his services during work outages in 1997 and allegedly had
no dealings with TVA Services concerning Overall's attempt to market his services at Watts Bar
although admittedly he had worked with Stone and Webster in the past and had frequent
conversations with personnel in TVA Services and as technical support manager, assistant plant
manager, and operations manager he certainly was in a position to directly influence Overall's work
opportunities at Watts Bar. (Tr. 592, 593, 599, 711, 712).
McCormick's testimony concerning Overall's inability to be assigned other
systems was not only contradicted by Koehl it was nonsensical. McCormick testified that Overall
could not work other systems because if he worked on other systems he would seek a reclassification
to the SC schedule which would be unsuccessful. (Tr. 765-767, 779). Overall, moreover, credibly
testified that not only did his position allow him to work on systems other than the ice condenser but
it fact he had worked on such systems including diesel generation. (Tr. 68, 69). Further, the ice
condenser systems incorporated many other systems located throughout the plant. (Tr. 70-72).
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McCormick was unable to recall his conversations with Overall about his
transfer to TVA Services but consistently denied that it had anything to do with the safety concerns
raised by Overall with PER 246. (Tr.786-788, 804). On cross, McCormick admitted that Overall's
job description permitted him to be assigned backup systems. Further, Overall at the time of notice
of involuntary transfer to TVA Services was in the completion of in-house training lacking only the
completion of practical factors which could be completed by home study. (Tr. 843-846).
Swindell's testimony, as discussed previously, was that TVA laid off Overall
because Overall had been unsuccessful in marketing his services. Swindell had no recollection call
of telling anyone that Overall's position had been budgeted for 1997. (Tr. 576). Swindell's testimony
about Watts Bar doing all of their ice condenser work in 1997 was obviously incorrect and conflicted
with White's testimony showing Watts Bar subcontracting ice condenser outage work with Stone and
Webster. Swindell denied having any knowledge of Overall protected safety activity or any
conversations with McCormick or Koehl about Overall. This is highly unlikely since Koehl had
frequent conversations with TVA Service personnel and in fact negotiated directly with Swindell
concerning the price that Technical Support would have to reimburse TVA services from September
18-November 3, 1995 while Overall continued to work in Technical Support performing paperwork
and training his replacement, Jordan. (Tr. 751-753).
In response to the asserted reasons for his transfer and eventual layoff from
TVA Services Overall credibly testified that on August 10, 1994, he had a conversation with
McCormick in which the future elimination of SD positions from his NSSS section was discussed.
McCormick told Overall not to worry because things could easily change since there was always a
need for an ice condenser specialist. (Tr. 253-255). Moreover, there was no company policy of
letting employees go who did not have a 4 year engineering degree as shown by Overall's avoidance
of 3 prior layoffs involving SC 4 year degree engineers and SE personnel. (Tr. 256-262). Indeed
TVA continued to employ Technical Support SD employees Ronnie Schouggins and Doug Williams
at Watts Bar after June 1995. Williams, who has no degree, was assigned from Technical Support
(component engineering) to maintenance prior to the June 1995 transfers and since the June 1995
transfers has performed worked on the ice condenser. Schouggins has no degree and has continued
to work up to the present performing maintenance work on pumps and turbines. (Tr. 738-740).
Furthermore, Overall correctly noted that on June 16, 1995 and June 21, 1995,
both McCormick and Cutshaw indicated that Koehl and not McCormick made the decision to transfer
Overall to Services. (Tr. 192, 195). Once transferred to TVA Services supervisor, Pitzel, told
Overall that Swindell had budgeted his position for the 1997 fiscal year. (Tr. 309, 310).
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V. FINDINGS OF FACT
Based upon my review of the testimony and exhibits as set forth above, I make
the following factual and credibility findings:
1. TVA, an agency and instrumentality of the United States government,
operates pressurized water reactor nuclear power plants in Tennessee at Watts Bar and Sequoyah.
The primary facility involved in this proceeding is Watts Bar. Sequoyah operates two reactor units
while Watts Bar has in operation only one reactor unit. Both the Sequoyah and Watts Bar reactors
utilized the same ice condenser system manufactured by Westinghouse.
2. Overall worked for TVA from 1979 to September 30, 1996 at various
divisions and locations including the fossil and hydro division in Chattanooga and nuclear division
including Sequoyah and Watts Barr facilities and TVA Services.
3. At Watts Bar Overall worked as a power plant maintenance specialist (SD2
and SD3) in the Mechanical Maintenance organization from December 1984 to November 20, 1989
responsible air and heat systems and general mechanical maintenance throughout the plant. In this
position Overall performed a wide range of duties including maintenance and monitoring of the ice
condenser system, identifying design changes, preparing and revising equipment repair instructions;
inspecting, measuring, drawing sketches, photographing and designing special tools and jigs;
reviewing plant equipment and vendor manuals; procuring spare parts for mechanical equipment; and
serving as a TVA representative at industry wide conferences concerning the ice condenser system.
4. From November 20, 1989 to November 3, 1995, Overall worked in the
Watts Bar Technical Support organization as a power maintenance specialist ( SD 4) for a majority
of the time under the immediate supervision of McCormick, NSSS Engineer Supervisor, who in turn
reported to Koehl, Technical Support Manager. As a power maintenance specialist Overall's primary
responsibility was maintenance, operation, construction and design of the ice condenser 61 system
with additional duties as project manager on capital projects and backup systems engineer on
other plant systems in the absence of engineer primarily assigned to these systems.
5. Throughout his tenure with TVA, Overall maintained an impressive work
record receiving numerous and consistent favorable job appraisals.
6. Overall had a 2 year, associate degree in architectural pre-engineering plus
additional in- house engineering training and at the time of his transfer to Services was working on
the completion of practical factors of this training.
7. The last time that Overall was evaluated by Human Resources at Watts Bar
to determine whether he had equivalent training and experience to be rated an engineer was in 1991.
8. Employee John Ferguson, who had no formal engineering education, but
rather a 4 year degree in business and who had the same total score of 1325 points as Overall was
given an engineering equivalency rating in June 1995 and elevated to the SC scale and not transferred
to TVA Services as an at-risk employee.
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9. TVA personnel including McCormick recognized Overall as a dedicated and
conscientious, ice condenser expert requiring no supervision and possessing good forethought
reqarding ice condenser problems and their solutions. (Jt.Ex.9, page 9).
10. The ice condenser was one the primary safety systems at Watts Bar.
Without its proper operation, fuel could not be loaded and nuclear power produced.
11. On April 12, 1995, Overall discovered and reported to TVA management
the presence of 171 ice basket screw heads and 32 complete ice basket screws in the ice melt talk.
Thereafter, on April 21, 1995, Overall filed a Problem Evaluation Report, PER 246 with TVA .
12. On May 11, 1995, at a meeting of Technical Support personnel Koehl told
employees that they were behind schedule in fuel loading and needed to eliminate all necessary
expenditures by reducing overtime and closing out open items such as work requests, design changes,
work requests and PERs.17
1 The exhibits introduced at the hearing
were identified as follows: joint exhibits of the parties (Jt.Ex.); Complainant exhibits (CX.Ex.);
Respondent exhibits (RX.Ex).
2 Like Complainant, witnesses Gary
Thomas Jordan, Vernon Paul Law, Vonda Sisson, Darryl Allan Smith, Terry Ray Woods, James E.
Swindell, Dennis Lee Koehl, Ulysses White, and Landy McCormick are referred to by their last
names.
3 Post hearing briefs were originally
due on February 18, 1998. Overall sought and was granted an extension until March 12, 1998 due
to a late receipt of the transcript. In his brief Mr. Van Beke moved to admit as CX. Ex. 48, a NRC
Web-site document, dated February 14, 1998, which was not available at the time of this hearing.
This document shows the D.C. Cook ice condensers being declared inoperable because of missing
ice condenser screws. Since this is the same issue involved in the present proceeding, i.e, missing
or defective ice condenser screws at a similar Westinghouse ice condenser system, and it is directly
related to Overall's testimony about a generic ice condenser screw problem involving not only Watts
Bar but other nuclear facilities including D.C. Cook, Sequoyah, Duke Power, Catawba as well as
plants in Finland and Japan, I find CX. Ex. 48 relevant to this proceeding. Since it was not available
for admission during the hearing, I admit it pursuant to 29 C.F.R. § 18.54 (c) noting no TVA
objections thereto.
4 References to transcript pages from
the hearing are designated as Tr.
5 Overall last job evaluation at Watts
Bar, which was provided him on November 22, 1995, after his transfer to TVA Services, was a
generally favorable review but for the first time indicated that improvement was needed in the area
of developing and maintaining system file notebook, performing paperwork timely on Sis/MI, and
timely closing PERs (problem evaluation reports). TVA gave Overall several time extensions to
resolve PER 246 relative to the ice condenser screw issue. As discussed in greater detail,
infra, PER 246 was taken away from Overall before his corrective suggestions could be
implemented. Overall did not testify concerning this appraisal. McCormick on the other hand
indicated that the evaluation form utilized in 1995 was different in that it included for the first time
a category of "meets some expectations" and that when evaluating all personnel under
his supervision he had been instructed by Koehl to be less lenient than in the past. Accordingly,
McCormick rated Overall as needing improvement in the above cited areas. (Tr. 794-800). Since there
is no evidence of any discriminatory intent in the issuance of his appraisal, I find that this appraisal
did not constitute part of TVA's discriminatory treatment of Overall.
6 Yetter was an on-site representative
for Westinghouse while Scrabis was located in Pittsburgh.
7 As indicated in fn. 3, above, the D.C.
Cook plant is currently inoperable due to missing ice condenser screws.
8 A PER is an internal administrative
procedure within TVA wherein safety and other significant problems are identified and hopefully
corrected.
9 I find it highly unlikely that Woods
would involve himself to the extent he did with the screw issue and not be aware, as was his staff,
that the screw issue was directly related to PER 246. Further, I find it highly unlikely that he would
not be aware of revised June 19 report until a month before the hearing when the report was revised
at his insistence.
10 Employee Concerns is an
organization within TVA where employees can voice their complaints on various personnel issues
including safety and problems with supervision. In his brief Mr. Van Beke contends that TVA failed
to investigate or prevent further calls thereby creating a hostile work environment. Considering the
limited number and nature of the calls, I do not agree with Mr. Van Beke's position.
11 As a project manager for TVA
Services, Overall had a permanent job with the same status as every other full-time TVA employee
who had not been classified as "at risk" and subject to termination with 12 months.
12 Overall was a member and
designated union representative of the Engineering Association, a labor organization limited to TVA
employees.
13 Overall stated that his first notice
of the transfer was on June 16, 1995, whereas TVA contended that he was notified on June 23, 1995.
The transfer to TVA Services physically occurred on November 3, 1995.
14 In his brief for TVA, Mr. Fine
asserted at page 12 that the decision to transfer Overall to TVA Services was made in the late summer
of 1994.
15 At page 18 of his brief, Mr. Fine
asserted that Overall's protected activities in initiating and processing PER 246 had little significance
in this proceeding. As stated herein, I find this argument unpersuasive for indeed it was precisely
Overall's protected activities that prompted TVA to transfer, layoff and failure to recall Overall.
16 As noted above, Overall elected
to contest this notice through a class action union grievance asserting transfer rights back to
maintenance.
17 Koehl admitted telling
employees to minimize expenses and that if a problem arose he wanted it put in a PER and resolved
quickly but denying discouraging employees from filing PERs. No other employees including
McCormick testified about this meeting except Law who stated that Koehl emphasized that he wanted
to avoid delays as much as possible. (Tr. 246). `
18 When questioned about the
September, 1994, at-risk notices and whether he told Overall that he would be definitely transferred
as opposed to just possibly being transferred, McCormick was unable to recall what he told Overall
or to explain the meaning of "potentially at- risk". (Tr. 782).
20 Thus I reject Mr. Fine's argument
at pages 25-36 of his brief that the complaint was time barred or that the main claim of the complaint
relative to Overall's 1995 transfer to TVA Services was not timely filed.
21 Indeed as stated in Webb v.
Carolina Power and Light Co., Case No. 93-ERA-42 slip. op. at 7 (ARB August 26, 1997):
"Systematically excluding an individual from consideration for employment, by its very nature,
is a continuing course of conduct and may constitute a continuing violation if it is based upon an
employee's protected activity."
22 At page 40 of his brief, Mr. Fine
conceded that Overall made a diligent attempt to find interim employment but that (1) there was little
demand for a non-degree ice condensor specialist in the open market, (2) Overall had no guarantee
of continued employment at TVA even if he had not been transferred to TVA Services, and (3)
Overall mental condition has not required hospitalization. I am not persuaded by any of these
arguments since there is no need to show hospitalization in order to recover compensatory damages
nor is there any showing that Overall's lack of success in finding ice condenser work had anything
to do with his lack of an engineering degree. Further, Overall's job is currently being performed on
a full time basis by Jordan who replaced Overall after the discriminatory transfer. In like manner I
do not agree with Mr. Van Beke that Overall is entitled to $150,000 in compensatory damage for as
Mr. Fine pointed out Overall was not hospitalized and neither the facts of this case or precedent
supports such a sum.