U.S. Department of Labor Administrative Review Board
200 Constitution Avenue, N.W.
Washington, D.C. 20210
ARB CASE NO. 98-006
ALJ CASE NO. 97-ERA-2
DATE: September 29, 1998
In the Matter of:
GLENDA K. MILLER,
COMPLAINANT,
v.
TENNESSEE VALLEY AUTHORITY,
RESPONDENT.
BEFORE: THE ADMINISTRATIVE REVIEW BOARD
FINAL DECISION AND ORDER OF DISMISSAL
This case arises under the employee protection provision of the Energy
[Page 2]
Reorganization Act (ERA), as amended, 42 U.S.C. §5851 (1994). Complainant,
Glenda K. Miller (Miller), alleged that Respondent, Tennessee Valley Authority (TVA),
unlawfully terminated her employment because she refused "to accept and sign off on
untried and untested [computer-generated] security systems at the Browns Ferry Nuclear Plant
. . . ." ALJX1 1 at
1.
1 The following abbreviations are
used in this decision: Administrative Law Judge Exhibit (ALJX); Complainant's Exhibit (CX);
Respondent's Exhibit (RX); Hearing Transcript (T.).
2 29 C.F.R. Part 24 recently was
revised at 63 Fed. Reg. 6,614, Feb. 9, 1998.
3 The Integrated Security System
was a local area network of several computer systems linked together to work as a unit to secure the
plant. T. 36.
4 These matters were subsequently
discussed at a January 4, 1995 design organization meeting and were eventually resolved. POS was
represented at the meeting by Henrich and Barbara McKenna, Miller's new supervisor. Although
Miller was expected to attend and was sent a meeting notice, she did not attend because she was on
annual leave. T. 220-22, 288-90; RX 5.
When Ms. Miller returned to work on Monday, February 6, 1995, she made a remark
to Laura Snyder, a cooperative student, that she could understand why someone would
go into an office and blow everybody away. Ms. Snyder reported the remark to her
supervisor, who reported the remark to Mr. Henrich.
R. D. and O. at 4.
6 Miller presented no evidence
indicating that TVA managers intended to exclude her from the meeting, held while she was on annual
leave. See n.4.
7 The ALJ also concluded that, even
if Miller had established that retaliatory motives played a part in TVA's decision to terminate her, TVA
proved by clear and convincing evidence that it would have terminated Miller because of her fitness for
duty and security problems alone. R. D. and O. at 12-13. We agree with this alternative holding as
well.
8 TVA contends that the merits of
its decision to revoke Miller's security clearance are not subject to review by the Board under
Department of Navy v. Egan, 484 U.S. 518 (1988) (Merit Systems Protection Board does
not have statutory authority under Civil Service Reform Act to examine merits of a security clearance
denial). Respondent's Brief at 3 n.3, 11 n.7, and 16 n.9. TVA notes that Egan has been applied under
the Rehabilitation Act to TVA decisions to revoke the security clearance necessary for unescorted
nuclear plant access. Mitchell v. Crowell, 966 F. Supp. 1071 (N.D. Ala. 1996),
recons. denied, 975 F. Supp. 1440 (1997); Humm v. Crowell, No. 1:96-CV-436
(E.D. Tenn. June 25, 1997). It is unnecessary to consider the applicability of Egan to this
proceeding, and we decline to do so.