Date: Oct. 29, 1993
Case No.: 92-ERA-10
In the Matter of
REGINO R. DIAZ-ROBAINAS
Complainant,
v.
FLORIDA POWER & LIGHT COMPANY
Respondent.
Appearances:
Robert E. Weisberg, Esq.
For the Claimant
James S. Bramnick, Esq.
Paul C. Heidmann, Esq.
For the Respondent
Before:
ROBERT G. MAHONY
Administrative Law Judge
RECOMMENDED DECISION AND ORDER
This case arises under section 210 of the Energy
Reorganization Act of 1974 (ERA), 42 U.S.C. § 5851 (1982),
(hereinafter called the Act), which prohibits a Nuclear
Regulatory Commission (NRC) licensee from discharging or
otherwise discriminating against an employee who has engaged in
activity protected under the Act.
STATEMENT OF THE CASE
On August 11, 1991, Complainant, Richard Robainas, filed a
complaint with the Secretary of Labor, which was subsequently
[PAGE 2]
amended by two letters dated August 28, 1991 and September 12,
1991, respectively. The complaint, as amended, alleges that he
was discharged and harassed by Respondent, Florida Power and
Light (FPL), for advocating certain projects that he believed
were critical to nuclear safety, for filing an internal safety
complaint with Respondent's internal employee concerns program,
SPEAKOUT, on May 2, 1991, and for filing a complaint with the
Nuclear Regulatory Commissioner (NRC) in August, 1991.
Complainant contends that the retaliation included the
following actions: (1) poor performance evaluations, (2) more
frequent performance evaluations, (3) a requirement that he
submit to a fitness-for-duty psychological evaluation, and (4)
discharge on August 19, 1991, for refusing to see the
psychologist.
Respondent denies Complainant's allegations and argues that
Complainant has not met his burden of establishing a primafacie
case. Respondent asserts that its actions toward Complainant
were not motivated, even in part, by any allegedly protected
activity of the Complainant, that it has articulated legitimate,
nondiscriminatory reasons for evaluating Complainant on July 30,
1991 giving him a 90% rating, and that it has given valid reasons
for directing Complainant to present himself for a fitness-for-
duty evaluation.
On October 31, 1991, following an investigation, the
Department of Labor (DOL), Employment Standards Administration,
Wage and Hour Division concluded that no violation of the Act
had occurred. (RX 32).1/ On November 4, 1991, Complainant
filed a timely telegraphic request for a hearing pursuant to 29
C.F.R. § 24.4 (d)(2).2/ A formal hearing was held in Miami,
Florida on June 9, 10, 11, and 12, 1992. At the conclusion of
the hearing the parties were granted leave to submit proposed
findings of fact and conclusions of law which were filed on
November 3, 1992 for the Respondent and November 9, 1992 for the
Complainant.
SUMMARY OF THE EVIDENCE[PAGE 3]
Employment History and Early Performance Evaluations
Complainant, who has a Bachelor's of Science degree in
Electrical Engineering from the University of Miami and a Master
of Science in Electrical Engineering from Florida Atlantic
University, began working for FPL in July, 1980. Upon being
hired, Complainant initially worked at the Company's power plant
in Fort Lauderdale, Florida, in order to become familiar with its
generating facilities. TR 43. Three months later, Complainant
began working on projects related to the St. Lucie and Turkey
Point Nuclear Power Plants. TR 43-44. From that point on
Complainant was primarily engaged in work related to FPL's
nuclear generating facilities. TR 44.
_________________________
1/ The following abbreviations will be used as citations to
the record: CX-Complainant's exhibit; RX-Respondent's exhibit;
TR-Transcript of the hearing.
2/ The parties effectively waived the requirement in 29 C.F.R.
§ 24.6(b)(1) that specifies the Secretary of Labor shall issue a
final order within 90 days of the complaint by agreeing to have
the hearing in June so that each side had adequate time to
prepare.
_________________________
Complainant worked at FPL's General Office in Miami until
June of 1982 when the Engineering Department was moved to Juno
Beach, Florida. TR 43-44. The Company's Juno Beach offices then
became the central location for nuclear engineering. TR 44.
In 1982, Complainant was promoted to Associate Engineer.
TR 44. Thereafter, he was promoted to Engineer II and Engineer
I. TR 44-45. Complainant became Lead Instrument and Control
(I&C) Engineer for the St. Lucie plant in 1985.3 TR 44-45.
His office, however, remained in Juno Beach. TR 45.
Complainant worked as the Lead I&C Engineer at the St.
Lucie Plant until May of 1987. TR 46. In 1987, Complainant had
colon surgery and back surgery, and he could not continue as Lead
[PAGE 4]
Engineer. TR 46-47. After a lengthy hospitalization and
recovery period, Complainant returned to work and was assigned to
the Turkey Point group to work as an engineer. TR 46-47. He
remained at the Juno Beach offices. TR 47.
Complainant received written performance evaluations
annually while employed by FPL. TR 47; RX 1, 15. The
performance appraisal form used by the company is divided into a
number of categories in which employees are evaluated, including
job knowledge, organization and planning, cooperation, and
dependability. TR 47; RX 1. Employees are rated in each
category and also in overall performance on a range of 70% to
120% which is the highest performance rating. TR 150; RX 1 at p.
2.
The performance appraisal form was revised in 1982. RX 1
at p. 9. Beginning in 1982, the performance level of employees
was evaluated on a scale of 80% to 120%. TR 48; RX 1 at p. 10.
An 80% rating means that the employee frequently falls short on
assignments and immediate improvement is necessary. A 90% rating
indicates that the employee occasionally falls short on
assignments and a need for specific improvement exists. A 100%
rating equates to solid overall performance. A 110% rating
indicates that the employee's performance level is above the
requirements for the position. On the performance appraisal, a
100% rating is a good or normal rating; and a 110% rating is
above average. TR 48. RX 1 at p. 10
______________________
3/ I&C determines how equipment is to behave under different
circumstances. TR 45.
----------------------------------
Complainant received his first performance appraisal in
October of 1980, which covered his three month training period at
the Fort Lauderdale power plant TR 143, 145; RX 1(A). He
received an overall performance rating of 110% which is above
average. TR 143; RX 1 at p. 4. In the individual categories,
Complainant received his highest rating, 120%, in the job
knowledge category. TR 143; RX 1 at p. 2. Throughout his
employment with FPL, Complainant typically received his highest
[PAGE 5]
ratings in the technical/job knowledge category. RX 1, 13, 15,
18, 21. Complainant received 90% ratings in two categories:
judgment, and organization and planning. TR 143; RX 1 at p. 2.
The comments on the review with respect to those categories
indicated that Complainant sometimes reached hasty and unsound
conclusions and occasionally failed to fully plan his actions
before doing a task. TR 143-144; RX 1 at p. 2. The review also
indicated that Complainant needed to listen to instructions more
carefully before starting an assignment. TR 144; RX 1 at p. 4.
At the review session, Complainant agreed that he was
disorganized at times. TR 144; RX 1 at p. 4. Complainant's 1980
review was completed by his supervisor at the time, Jim Coakley.
TR 143; RX 1 at p. 1.
Complainant's first annual review was completed in June of
1981 by his then supervisor, Jim Osborne. TR 144-145; RX 1(B).
Complainant received an overall rating of 100% on that review.
TR 145; RX 1 at p. 8. With respect to the individual categories
on the review, Complainant received a 100% rating in job
knowledge and 90% ratings in both judgment and cooperation. TR
146; RX 1 at p. 6. In the section of the review dealing with
areas for improvement Mr. Osborne stated, among other things,
that Complainant needed to take time to assure himself that he
had all the facts on a particular situation before proceeding.
TR 146; RX 1 at p. 8.
Complainant received his next review in January of 1983.
RX 1(C). Mr. Osborne completed the review. TR 147-148; RX 1 at
p. 9. Complainant received an overall performance rating of
100%. TR 148; RX 1 at p. 12. In the section of the appraisal
form dealing with areas for improvement Mr. Osborne noted that
Complainant's weakest area was his reluctance to accept
responsibility for larger projects in the department, but he was
to be given the opportunity to take on more responsibility and
complex projects. TR 148; RX 1 at p. 12. On the 1983 review,
Complainant was commended for his technical knowledge which
helped him in analyzing several control problems. TR 148; RX 1
at p. 12. Although Complainant received a 100% overall rating
and no 90% ratings in any individual category, he did not agree
with the appraisal. RX 1 at p. 12. Complainant felt that
[PAGE 6]
he had worked harder than was indicated on the review. TR 148-
149; RX 1 at p. 12. At that point in time, Complainant had not
raised any nuclear safety concerns. TR 149.
Complainant's next evaluation was completed by Mr. Osborne
in 1984. TR 149; RX 1(D). Complainant received an overall
performance rating of 100%. TR 149; RX 1 at p. 16. On the
review, Complainant was complemented for his technical ability.
TR 149; RX 1 at p. 16. In the section of the review dealing with
areas for improvement Complainant was advised that he needed to
improve his acceptance of projects requiring more responsibility
and additional travel. TR 149; RX 1 at p. 16.
Complainant's next review was completed by Mr. Osborne in
January of 1985. TR 150; RX 1(E). Complainant received an
overall performance rating of a 110% which is an above average
rating. TR 150; RX 1 at p. 20. In the section of the appraisal
dealing with areas for improvement Complainant was advised that
he could improve in problem analysis. RX 1 at p. 20. Mr.
Osborne stated that Complainant was sometimes too quick to draw a
conclusion before the problem was completely analyzed. TR 150-
151; RX 1 at p. 20.
Osborne again completed an annual review on Complainant in
February of 1986. TR 151; RX 1(F). The reviewing supervisor on
the appraisal was Dave Smith. TR 151; RX 1 at p. 21. Mr. Smith
had also been the reviewing supervisor on Complainant's 1981 and
1982 reviews. TR 984-985. On the 1986 review, Complainant
received an overall performance rating of 110%. TR 151; RX 1 at
p. 24. Mr. Smith was a managerial employee and the technical
expert in the department, and he had the final say on technical
issues and differences of opinion which arose in the electrical
and I&C disciplines. TR 52, 84, 563, 629, 953, 971, 983, 984,
991.
Complainant's next review was completed by Mr. Osborne in
February of 1987. Tr 151-152; RX 1(G). Mr. Smith was one of the
reviewing supervisors who signed the appraisal. TR 151-152; RX 1
at p. 25. Complainant's overall performance rating decreased to
100%. TR 152; RX 1 at p. 28. With respect to the individual
categories assessed, Complainant received a 90% rating in
cooperation. TR 152; RX 1 at p. 27. Mr. Osborne commented in
that category that Complainant "sometimes resists specific
administrative or technical work direction." TR 152; RX 1 at p.
27.
[PAGE 7]
In the section of the review dealing with areas for
improvement, Mr. Osborne wrote that Complainant needed to improve
his negotiating skills so that he would be able to influence
others to proper courses of action. TR 152; RX 1 at p. 28.
While pointing out that his single strongest qualification was
his awareness of technical requirements and anticipating plant
needs, the section dealing with improvement also indicated that
when a course of action was determined Complainant needed to
improve his ability to support the course of action to a
successful conclusion. TR 153; RX 1 at p. 28. Although
Complainant received a 100% overall rating, he was dissatisfied
with the appraisal, feeling that he had performed better than it
indicated. TR 152; RX 1 at p. 28. At that point in time,
Complainant had not raised any nuclear safety concerns. TR 153.
Complainant's next performance review was in February of
1988, and it was again completed by Mr. Osborne. TR 153; RX
1(H). Complainant received a 100% overall performance rating, a
100% rating in the category of technical/job knowledge, and a 90%
rating in organization and planning. TR 153-154; RX 1 at pp. 30-
32. The comment in that category stated that Complainant needed
to develop the customer need before making his work plans. TR
153-154; RX 1 at p. 30. Complainant also received a 90% rating
in the dependability category. TR 154; RX 1 at p. 31. In the
comment section of that category, Mr. Osborne indicated that
although Complainant completed most of his
projects on time, he did not exhibit a dependable attitude in
other aspects of the job. TR 154; RX 1 at p. 31.
Cooperation was another category in which Complainant
received a 90% rating on his 1988 review. RX 1 at p. 31. The
comment in that category indicated that Complainant needed
improvement in working with management and the customer. TR 154;
RX 1 at p. 31. Complainant also received a 90% rating in the
quality category. RX 1 at p. 31. With respect to that category,
Mr. Osborne stated that Complainant did not use the quality
improvement process techniques in his daily work. RX 1 at p. 31.
In the section of the review dealing with areas for improvement,
Mr. Osborne noted that Complainant had a negative attitude about
[PAGE 8]
various aspects of his job which often affected his work. TR
154; RX 1 at p. Complainant believed that his 1988 review was
unfair. TR 154-155; RX 1 at p. 32. At that point in time,
Complainant had not raised any nuclear safety concerns. TR 154.
Complainant was again evaluated by Mr. Osborne in February
of 1989. TR 155; RX 1(I). Once again, Mr. Smith was one of the
reviewing supervisors. TR 155; RX 1 at p. 33. Carl Bible also
signed the review as a reviewing supervisor. TR 155; RX 1 at p.
33. Mr. Bible has performed nuclear engineering work for the
Company since 1981. TR 946. On the 1989 appraisal Complainant
received a below average 90% overall performance rating. TR 48-
49, 155; RX 1 at p. 36. At that point in time Complainant had
not raised any nuclear safety concerns. TR 155-156.
With respect to the individual categories assessed,
Complainant received 100% ratings in technical/job knowledge and
also in dependability, but received below average 90% ratings in
the other four categories, namely initiative, judgement/problem
analysis, organization and planning, and cooperation. TR 156; RX
1 at pp. 34-35. In the initiative category, Mr. Osborne
commented that Complainant was confronted on several occasions
for using his work time to do homework related to outside classes
he was taking. RX 1 at p. 34. In the judgment/problem analysis
category, Mr. Osborne commented that Complainant's lack of
judgment was shown by the fact that he stopped working on an
important power supply analysis to begin unimportant work without
approval. RX 1 at p. 34. In the organization and planning
category, Mr. Osborne commented that Complainant exhibited a lack
of interest in meeting department objectives. RX 156; RX 1 at p.
34. In the comment section of the cooperation category, Mr.
Osborne noted that Complainant's lack of teamwork had been
observed in various areas. TR 156-157; RX 1 at p. 35.
On the 1989 review, Mr. Osborne noted that Complainant's
strongest single qualification was his technical ability. TR
157; RX 1 at p. 36. With respect to Complainant's principal
areas for improvement, Mr. Osborne commented that Complainant's
negative attitude and lack of dedication to his work was
[PAGE 9]
affecting his technical ability and that management
would discuss that with him. TR 157; RX 1 at p. 36. In the
employee reaction section of the appraisal form, Mr. Osborne
noted that Complainant was not pleased with the appraisal and
that Complainant was not willing to discuss the review although
Mr. Osborne tried to discuss it with him on several occasions.
TR 157-158, 986-987; RX 1 at p. 36.
Complainant was again reviewed by Mr. Osborne in February
of 1990. TR 159; RX 1(J). Mr. Bible signed the 1990 appraisal
as a reviewing supervisor. RX 1 at p. 37. Complainant received
an overall performance rating of 100%. TR 159; RX 1 at p. 40. He
was credited for questioning the Westinghouse setpoint
methodology so FPL would receive a more useful product. His
strongest quality was persistence in understanding the problems
in order to arrive at the best solution. In the section of the
appraisal form dealing with areas for improvement, Mr. Osborne
commented that Complainant needed to work on improving his
dedication to certain work requirements. TR 159; RX 1 at p. 40.
Complainant was satisfied with the appraisal. TR 53, 160; RX 1
at p. 40. Upon the recommendation of Mr. Smith, Complainant was
promoted to a Senior Engineer position. TR 50-51, 160, 987; RX 1
at p. 41.
In September of 1988, the Engineering Department was split
between the fossil and nuclear engineers, and a Nuclear
Engineering Department was created. TR 654, 656. In 1990, the
Nuclear Engineering Department was restructured. TR 655-656.
Prior to the restructuring, approximately 80% of the Company's
nuclear engineering work was done by outside contractors,
including architect/engineering firms such as Bechtel and EBASCO.
TR 162, 656. The Company decided to do more of the engineering
work itself rather than relying on outside firms. TR 162, 656.
Separate Production Engineering Groups (PEG) and Outside Services
Management (OSM) groups were created for both the St. Lucie and
Turkey Point Power Plants. TR 656. The PEG groups were the
groups where the actual design work would be done, and these
groups worked out of the offices of the outside engineering
firms. TR 656-657. Bechtel did most of the design work for the
Turkey Point Plant. TR 657. Therefore, the Turkey Point PEG
[PAGE 10]
group was assigned to work out of Bechtel's offices which were
located in the RCA Building in Palm Beach Gardens (approximately
three miles from the Company's Juno Beach offices). TR 103, 133,
135, 418, 432. 541, 657, 757, 1001-1002; CX 74: In connection
with the 1990 reorganization many engineers in the Nuclear
Engineering Department were assigned to one of three groups:
Staff group, PEG, or OSM. TR 162, 169-170. Complainant was
assigned to the Turkey Point OSM group on approximately September
17, 1990. TR 60, 913. Bob Wade was the Manager for the Turkey
Point OSM group. TR 657; RX 3.
In February of 1991, Complainant was transferred from the
OSM group to the PEG group for the Turkey Point Plant. TR 173-
174, 630, 658, 955; RX 3. Thereafter, Complainant worked out of
the Bechtel offices in the RCA Building. TR 84-85, 432, 757.
Complainant felt that this transfer was premature because his
projects were still in progress. TR. 77. According to Bob Wade,
Complainant was transferred because he was better at the
technical engineering aspects of his job than managing outside
contractors in the OSM Group. He also indicated that Respondent
never intended to assign Complainant to that group permanently.
TR. 912. According to David Smith, chief electrical I & C
engineer for the Nuclear Division, Complainant was transferred to
PEG because his tasks in OSM were essentially complete. He
further stated that Complainant was scheduled to move out of that
area at some point, and "everyone pretty much went through OSM on
their way to PEG." TR 992.
In the Turkey Point PEG group there was an electrical and
I&C group headed by Mr. Bible. TR 658, RX 3. Basil Pagnozzi was
the I&C Lead who reported to Mr. Bible. TR 658; RX 3. Mr.
Pagnozzi was assigned to the PEG group in March of 1990. TR 548.
He became a supervisor in June of 1990. TR 630. This was Mr.
Pagnozzi's first supervisory assignment with the Company. TR
549.
Upon transferring to PEG, Complainant's supervisor was Mr.
Pagnozzi. TR 91, 132, 195-196, 542, 994; RX 3. At that point in
time, Mr. Pagnozzi reported to Mr. Bible. TR 196; RX 3. Mr.
Bible in turn reported to Pat Higgins, who was the manager of the
[PAGE 11]
Turkey Point PEG group. TR 196, 657; RX 3.
Effective June of 1991, a further organizational change
occurred. TR 659; RX 4. The electrical and I&C areas were
split into separate groups. TR 659; RX 4. Mr. Bible headed the
electrical area, and Mr. Pagnozzi headed the I&C area. TR 656,
971; RX 4. After that change, both Mr. Bible and Mr. Pagnozzi
reported directly to Mr. Higgins. RX 4. Complainant continued
to work in Mr. Pagnozzi's group until his termination in August
of 1991. TR 91, 131, 133, 542.
On February 20, 1991, Complainant was given a 1990 annual
performance review by Bob Wade which covered the period from
February, 1990 through February, 1991. Bob Wade had been
Complainant's supervisor since October, 1990. The review gave
Complainant a 90% overall rating. Bob Wade testified that
although he solicited input from both Mr. Osborne, Complainant's
supervisor for most of the period under review, and Mr. Bible,
Complainant's second line supervisor, he only received input from
Mr. Bible. TR. 161, 930-931, 956.
In his input, Mr. Bible gave Complainant a high rating in
technical/job knowledge and a lower rating in cooperation. In
the review, Mr. Wade rated Complainant's technical/job knowledge
skills at 90%, stating that Complainant failed to complete his
assignments on schedule. Under judgement/problem analysis Mr.
Wade commented that "Richard generally reaches a solution for a
given problem but overlooks other options which may have less
impact on the overall project." He also gave Complainant a 90%
rating in cooperation. Under cooperation he stated that "Richard
needs to entertain the opinions of others-particularly his
supervisor." CX 8.
Bob Wade also commented that "Richard is not qualified nor
oriented toward production engineering." CX 8. In his testimony
he explained that Complainant's forte, technical engineering
work, would be strengthened in the production
engineering group. He also stated that ". . . [Complainant] was
not able to manage the other contractors and was too involved in
[PAGE 12]
the technical details." TR 924.
The review was presented to Complainant by Mr. Wade and Mr.
Bible. Carl Bible testified that Complainant's reaction was
negative, and he left the room without signing the review stating
that he would request that higher management review his
evaluation. Complainant brought the matter to his PEG
supervisor, Basil Pagnozzi. Mr. Pagnozzi recommended that
Complainant appeal his review to Mr. Hosmer on the basis that he
did not work for Mr. Wade during the whole year covered by his
review. TR. 552.
On February 23, 1991, Complainant sent a seven-page letter
to Mr. Hosmer complaining about the evaluation he received from
Mr. Wade. In the letter Complainant stated in part:
"My recent annual performance review given
by Mr. Bob Wade in the presence of Mr. Carl Bible
distorted my true performance representing at one
level, retribution for my commitment to projects
that I considered critical for the nuclear safety
of Turkey Point and which Msrs. Wade/Hale, for
budgetary or other reasons, clearly opposed
. . . ." CX 9.
In his letter Complainant cited his accomplishments for the
year to support his contention that the February 1990/1991 review
was inaccurate and unfair. He also asserted that the review
represented a continuation of a pattern by FPL management to
discriminate against him because he is a Cuban American. He
stated that the review violated procedural requirements because
he was not evaluated by all supervisors for whom he had worked
during the year and that the review was in retaliation for his
protest of the random drug/alcohol testing.4/
Prior to receiving Complainant's letter of February 23,
1991, Mr. Hosmer had nothing to do with Complainant's performance
reviews, and he had no knowledge of Wade's appraisal of
Complainant before the appraisal was given to Complainant. TR
670. Upon receiving Complainant's letter, Mr. Hosmer took the
matter very seriously because he felt Complainant was asking him
for help. TR 671.
______________________
4/ Complainant had objected to taking a mandatory drug test in
March, 1990. He wrote: "I am attending this "Fitness for Duty"
session as a result of coercion under threat of losing my
employment. I regard this program as a basic violation of my
human constitutional rights. I intend to seek redress against
the Company and all agencies responsible for this program the day
when we begin to live as a democratic society that respects
individual rights. (C-3)
______________________
[PAGE 13]
When Mr. Hosmer received Complainant's letter, he asked
Harry Paduano, manager of the Juno Staff Engineering Group, to
investigate the fairness of Complainant's review. TR. 672. Mr.
Paduano asked Dave Smith to meet with Mr. Bible and Mr. Wade to
determine if Complainant's review was fair. Smith met with Bible
and Wade who together reevaluated Complainant, assessing his
performance category by category for the entire year. TR 994-
995.
Subsequently, on March 8, 1991, Complainant Robainas was
given a revised annual evaluation by supervisors Dave Smith and
Carl Bible and was again rated 90%. Mr. Bible rated Complainant
100% for the first eight months, and Mr. Wade rated Complainant
80% for the last four months. Mr. Smith testified that when he
gave Complainant the revised review, he stood up, left the room
without discussing the review, and went home sick. TR. 996.
On March 15, 1991, Mr. Hosmer called a meeting with
Complainant at which he advised him that a third performance
review for 1991 would be prepared and that the review would be
based on the 9 month period during which he was under Carl
Bible's supervision. Mr. Hosmer advised Complainant that he
would be given the rating Carl Bible had given him, 100%. Mr.
Hosmer testified that he changed the review because he expected
some engineers would struggle with the transition from technical
engineering work to production engineering, and he would give
Complainant a new start. He also told Complainant that he was
placing him on an accelerated evaluation schedule of monthly
performance reviews. Mr. Hosmer testified that he did not look
at Complainant's personnel file until after his March 15, 1991
meeting with Complainant. TR 676, 709.
Mr. Hosmer testified that during the meeting he and
Complainant discussed the amount of stress that Complainant was
under. According to Mr. Hosmer, Complainant told him that he was
[PAGE 14]
under a tremendous amount of stress because he was taking night
classes for his master's degree, and his in-laws were moving to
Florida. Mr. Hosmer testified that he recommended that
Complainant find some way of handling his stress, either through
exercise or through talking with someone in the Employee
Assistance Program (EAP). TR 675-680.
Complainant denied complaining to Mr. Hosmer about being
under stress, and stated that he told Mr. Hosmer that everything
was going extremely well in his life. Complainant testified that
he mentioned that the outage period5/ had been a very tough
period with a lot of challenges, but he denied telling Mr. Hosmer
that the job was getting to him. According to Complainant, Mr.
Hosmer never mentioned jogging or going to EAP. Complainant's
_________________________
5/ The outage period involves the periodic shut down of
nuclear power units.
__________________________
doctor, Allen Birnbaum, who is board certified in internal
medicine stated that Complainant never mentioned that he was
under stress or any specific stress that he might have in his
life. He did mention that he recommended that Complainant cut
back on smoking and drinking cuban coffee. CX-77.
Mr. Hosmer's notes from the March 15, 1991 meeting, his
third one-on-one with Complainant, stated:
I again counciled [sic] him to find a more
constructive avenue for adjudicating per-
formance or policy issues than letters
(eg no more ltrs). ( John Barrow,
omnsbudsman [sic] will visit him next week
to discuss EAP). He again agreed.6/
(RX 37)
Allegations of Safety Concerns
Complainant alleged that for budgetary reasons FPL
management opposed certain projects which he alleged were safety-
related. RX 12 at p. 1; RX 29 at p. 9. FPL states that, on the
[PAGE 15]
contrary, Mr. Goldberg, Mr. Hosmer, Mr. Smith, and Mr. Wade all
testified that a nuclear safety issue would always take
precedence over budget and schedule. TR 664, 831, 833, 919,
1001. Mr. Goldberg testified that although budget and schedule
are important, the Nuclear Division's "primary and most focused
concern is that of nuclear safety." TR 831. Mr. Homer
testified that nuclear safety is "the most important thing we
deal with." TR 664. Mr. Smith testified that despite budget and
schedule, "[w]e would [make] sure that nuclear safety was not
compromised." TR 1001. Mr. Wade also testified that regardless
of budget and schedule, "[t]here is never any compromise on
[nuclear safety]." TR 919. Similarly, James Hardy, an engineer
in the I&C Department at the Turkey Point Plant, and a friend of
Complainant, testified that he has never felt pressure from
supervision to make decisions based solely on cost and schedule,
and that he has never witnessed any supervisor compromise safety
in the interest of cost and schedule. TR 408-409.
Mr. Goldberg was hired by FPL in the spring of 1990 as
president of the Nuclear Division. TR 825. When Mr. Goldberg
came to FPL, the Turkey Point Plant was considered a "troubled
plant" by the NRC. TR 826. The plant was on the NRC's "watch
list," and was subject to frequent surveillance by the NRC. TR
826. In December of 1991, the NRC issued an inspection report
based on its evaluation of the plant from August 1, 1990 through
September 28, 1991. RX 64. That time period covers much of the
time Complainant was allegedly concerned about plant safety. The
report stated that superior performance had been attained by the
________________
6/ This memo also referenced the prior counselling sessions.
_________________
plant in the following areas: plant operations, emergency
preparedness, security, outage, and safety assessment/quality
verification. RX 64 at p. 1. The report also stated that
performance improvement had been demonstrated in the areas of
radiological controls and maintenance/surveillance. TR 64 at p.
1. The report concluded as follows:
The assessment indicates that overall Turkey Point's
[PAGE 16]
performance continues to improve . . . . Your managers
and staff are to be commended. RX 64 at p. 1.
When the OSM group was formed, there were several on-going
projects being performed by outside contractors. TR 912. To
maintain continuity on those projects, FPL assigned the engineer
with the most involvement on those project to the OSM group. (TR
912) Complainant was selected because he was working primarily
on the Westinghouse set point study for Turkey Point. TR 912.
Set points are operational limits on plant equipment which are
not to be exceeded. TR 63-64. There is equipment in the plant
which performs a function similar to an oil gauge warning light
in a car which only comes on when the oil pressure is low. TR
988. Set points determine the point at which certain equipment
in the plant is activated. TR 988.
Upon completion of the Westinghouse setpoint project, any
new setpoints would be incorporated into the technical
specifications of the plant. TR 64. The new technical
specifications would have to be submitted to the NRC for
approval. TR 64, 190-191. As a project manager in the OSM
group, Complainant was responsible for several I&C projects
including the Westinghouse setpoint project. TR 913.
In the fall of 1990, an issue arose with respect to the
transmitters. TR 913. Prior to the dual-unit outage, Rosemont,
a manufacturer of pressurizer pressure transmitters, issued an
industry-wide notice advising of a problem with its transmitters.
TR 174, 913-914, 1007. FPL had some of the transmitters at its
Turkey Point Plant. TR 913. Accordingly, the Company had to
determine what to do to correct the reported problem which also
involved setpoints. TR 914. Complainant recommended that the
transmitters be replaced. TR 914, 990. Mr. Wade felt that other
options had to be explored before a recommendation was made to
the plant. TR 914-915. With respect to the transmitters, there
was a meeting held between Mr. Wade, Complainant, and other
engineers. TR 915. At the meeting other potential alternatives
were discussed such as changing the calculations or modifying the
existing transmitters. TR 915. There was also a question of
whether Rosemont's analysis was valid. TR 915. It was possible
[PAGE 17]
that nothing had to be changed. TR 915. The consensus at the
meeting was that other alternatives had to be explored, if only
to rule them out, because any recommendation to replace the
transmitters would have to be explained to the people at the
plant. TR 916, 991. Mr. Smith, the department's technical
expert, agreed that all other options had to be explored before a
decision to replace the transmitters could be made. TR 990-991.
Although professional differences of opinion are a day to
day occurrence in the department, Mr. Wade and Mr. Smith both
felt that Complainant had prematurely reached his conclusion that
the transmitters should be replaced. TR 67, 914, 916, 990.
Ultimately, the transmitters were replaced. TR 941-942, 954,
977, 991.
In the fall of 1990, Complainant was also working on the
emergency response data acquisition and display system (ERDADS)
isolation project. TR 62. That project involved making sure
that the control room operators of the plant received accurate
information on the condition of the plant in the event of an
accident. TR 64-65. Complainant testified that he had a
disagreement with Mr. Wade concerning the ERDADS project. TR 188;
RX 12 at p. 4. The issue was whether to use a phased approach to
complete the project because the Company was having difficulty
obtaining certain equipment from the vendor. The discussion
involved whether FPL could obtain some of the equipment in 1990,
do some of the work at that time, and then complete the project
in July of 1991. The Company decided to proceed with the project
in phases. TR 917.
Mr. Wade testified that he did not recall any particular
discussion or disagreement with Complainant on the issue. TR 917-
918. Mr. Bible and Mr. Smith both testified that there was
nothing unique about the ERDADS issue--that such issues arise all
the time in the department. TR 955, 991.
Complainant called as a witness Mr. Efren Tio who is
employed by FPL as a Senior Engineer. TR 361. Mr. Tio testified
that he attended a number of meetings in 1990 and 1991 which
Complainant also attended. TR 366-367. Complainant testified
that Mr. Tio attended meetings where there were disagreements on
the pressurizer pressure transmitters. TR 180. Tio stated that
there were differing opinions on technical matters at all of the
meetings--that there was nothing unusual about that. TR 367,
371-373. Complainant testified that in the nuclear power
industry there frequently are heated disagreements on technical
[PAGE 18]
issues, and sometimes those disagreements are "very healthy." TR
180.
Approximately every two weeks, Mr. Wade held a meeting of
the OSM group to review the status of projects assigned to the
engineers. TR 920. Representatives from the contracted
engineering firms such as Bechtel, Westinghouse, and EBASCO
attended those meetings as well as the OSM project managers.
Budget and schedule were discussed at those meetings.
Additionally, the status of each project was reviewed as well as
what was being done to solve any problems which may have
occurred. One such biweekly meeting was held in December of
1990. Several of Complainant's projects were behind schedule.
Mr. Wade criticized the projects on which Complainant was working
and raised his voice to Complainant. Mr. Wade had also
criticized the performance of other engineers and raised his
voice to them. Complainant testified, however, that Mr. Wade had
never used obscenities before. With respect to Complainant's
projects being behind schedule, Complainant did not contend that
the delays had anything to do with nuclear safety. TR 181-183,
920-922.
On December 18, 1990, Complainant attended a meeting of the
Company Nuclear Review Board (CNRB). TR 190; RX 8. Mr. Hosmer
who is a member also attended. TR 194, 668, 719. The CNRB is
comprised of high-level executives of the Company's Nuclear
Division. It meets periodically to consider items which impact
on nuclear safety. TR 71, 719. At the December meeting
Complainant made a presentation on the Westinghouse setpoint
methodology and the proposed licensing amendment to be submitted
to the NRC by the Company. The CNRB approved the submittal. TR
190-191, 668; RX 8 at p. 3. At the meeting, Ken Harris, a
Company Vice President, requested that Complainant train
employees of the Nuclear Division in the new setpoint
methodology. TR 70-71, 72, 191, 668-669. Complainant considered
the setpoint training to be important and necessary work. TR
193.
Complainant testified that his presentation to the CNRB and
[PAGE 19]
its approval of the setpoint methodology was a significant
milestone in his work in the OSM group. TR 193-194, 993. From
an engineering standpoint, some of Complainant's other projects
were also coming to a close. TR 923. The design packages being
managed by Complainant were being delivered to the site to be
implemented, which was the responsibility of other departments
such as the Construction Department, but not the Engineering
Department. TR 923. Additionally, OSM's workload in general was
declining. TR 923.
With respect to Complainant's work performance in OSM, his
supervisor was of the opinion that he was not satisfactorily
accomplishing the project engineering aspects of his work, and
was not able to manage other contractors. He was also of the
view that Complainant was too involved in the technical details
of the projects. The Nuclear Engineering Department had a group
that did technical work, i.e., PEG. Mr. Wade believed that if
Complainant's performance was going to return to a satisfactory
level, he needed to return to a production engineering
environment. Mr. Wade also believed that Complainant would
perform better in PEG than he had in OSM because PEG actually did
technical engineering work instead of managing the work of
outside contractors. Accordingly, Mr. Wade recommended to his
superior, Steve Hale, Engineering Project Manager, that
Complainant be transferred to PEG. TR 194, 923-924.
Mr. Hale and Mr. Wade then met with Complainant and told
him that he was going to be transferred to PEG. TR 194, 923. At
the meeting Wade mentioned to Complainant that he had reached a
major milestone in his OSM work--the CNRB presentation and
approval. TR 77-78, 194-195. Wade also advised Complainant that
he would still be used to provide technical support to OSM even
after he was transferred to PEG. TR 195, 928-929; RX 10.
Complainant was transferred to PEG effective February 1, 1991.
TR 76, 78; RX 10.
In mid-April, 1991, Mr. Pagnozzi assigned a project known
as the Volume Control Tank (VCT) setpoint calculation to
Complainant. TR 108, 558. Mr. Pagnozzi told Complainant to do a
[PAGE 20]
calculation to determine if the Company needed to make any
setpoint changes in connection with the replacement of certain
transmitters in the tank. TR 108, 559. Those transmitters
measured the level of borated water in the tank. TR 108, 559.
Mr. Pagnozzi told Complainant to dedicate three days a week to
the VCT calculation. TR 241, 559, 969. Complainant responded
that he was too busy on the setpoint course and answering
questions related to the course. Mr. Pagnozzi told Complainant
that he was not too busy with the course to do the VCT
calculation, and that if employees were asking questions related
to the course, he was not to spend very much time responding to
them. TR 559. Complainant was not working more than two days a
week on the setpoint training course during the last two weeks of
April, 1991. TR 561; RX 17. Nevertheless, Complainant did not
spend three days a week on the VCT calculation as he had been
told by his supervisor, Mr. Pagnozzi. Instead, Complainant spent
about 1 1/2 days a week on the VCT project during the last two
weeks of April. TR 248-249. Mr. Bible testified, as did Mr.
Pagnozzi, that he was there when Mr. Pagnozzi gave Complainant a
directive to work on the VCT project three days a week--that it
was not merely a suggestion. TR 241, 559, 968-969.
Complainant's first monthly performance appraisal following
his meeting with Mr. Hosmer was prepared by Mr. Pagnozzi on April
30, 1991. TR 562; RX 18. Mr. Pagnozzi prepared the review
pursuant to Hosmer's directive that Complainant receive
additional reviews to help provide him with feedback on his
performance. TR 556, 561-562. Mr. Pagnozzi used the Company's
regular performance appraisal form. RX 18. Under the Company's
personnel policies, the appraisal form may be used for interim
reviews and counseling. TR 530-531, 633-634; RX 60 at pp. 2, 4.
Because Complainant had received the revised review prepared by
Mr. Bible on March 25, 1991, this was the first monthly review,
as directed by Hosmer, although it actually covered Complainant's
performance for the three-month period following his transfer to
PEG in February of 1991. TR 250, 563, 966-967; RX 15, 18 at p.
2. No one told Mr. Pagnozzi how to rate Complainant or what to
write in the review. TR 562, 617, 619, 968.
Mr. Pagnozzi gave Complainant a 90% overall performance
[PAGE 21]
rating. TR 563; RX 18 at p. 4. With respect to the individual
categories assessed on the appraisal, Mr. Pagnozzi gave
Complainant a 110% rating in technical/job knowledge. TR 250,
563; RX 18 at p. 2. Pagnozzi commented that Complainant's above
average rating in that category was demonstrated by his
development of the setpoint methodology training course. TR 250,
563; RX 18 at p. 2. However, he gave Complainant below average
ratings in three of the individual categories; organization and
planning, dependability and cooperation. RX 18 at pp. 2-3.
In the organization and planning category, Mr. Pagnozzi
gave Complainant a 90% rating. TR 251, 563-564; RX 18 at p. 2.
In the comment section under that category, Mr. Pagnozzi stated
that Complainant's lack of organizational skills resulted in him
spending more than four hours after each setpoint training class
reorganizing his teaching materials. TR 564; RX 18 at p. 2.
Pagnozzi had observed that Complainant would return from teaching
a class with a full box of overhead laminates in disarray, and
then spend many hours organizing the materials. TR 564. He
suggested that Complainant number the transparencies and keep
them in a binder for easy retrieval. TR 564. Complainant
refused the suggestion even though Mr. Pagnozzi tried to talk to
him about it on more than one occasion. TR 564. On
Complainant's 1980, 1988 and 1989 reviews, he had also received
90% ratings in the organization and planning category, prior to
allegedly raising any nuclear safety concerns. TR 251; RX 1 at
pp. 2, 30, 34.
Mr. Pagnozzi also rated Complainant 90% in the
dependability category. TR 252; RX 18 at p. 3. In the comment
section of that category Pagnozzi noted that Complainant did not
work on the VCT project three days a week as he had been directed
to do. TR 252, 565; RX 18 at p. 3. Complainant had previously
received a 90% rating in dependability on his 1988 review, prior
to allegedly raising any nuclear safety concerns. RX 1 at p. 31.
[PAGE 22]
Mr. Pagnozzi gave Complainant an 80% rating in cooperation. TR
252, 565; RX 18 at p. 3. In that category, Pagnozzi commented
that Complainant refused to accept management feedback on his
previous appraisal and recommendations for improvement. RX 18 at
p. 3. Mr. Pagnozzi also noted that Complainant's lack of
cooperation was beginning to affect his overall performance. RX
18 at p. 3. Complainant had previously received below average
ratings in cooperation on his 1981, 1987, 1988, and 1991 reviews,
most of which took place well before he allegedly raised any
nuclear safety concerns. RX 1 at pp. 6, 27, 31; RX 15 at p. 3.
On page 4 of the appraisal form the overall performance rating
for this period was 90% (+) and Pagnozzi recommended that
Complainant consider seeing the EAP Coordinator "for his stress
related concerns which have affected his health." TR 253; RX 18
at p. 4.7
________________________
7/ Mr. Pagnozzi's comment about having Complainant see the
EAP Coordinator stemmed from the following facts: on certain
days, Complainant spent nearly eight hours teaching the setpoint
class at the Turkey Point Plant. In addition, Complainant had to
drive from his home in Stuart to the Turkey Point Plant and then
drive back home. Whenever Complainant taught the class at Turkey
Point he wanted time off the next day to compensate for it. Mr.
Pagnozzi suggested to Complainant that he travel down to Turkey
Point the day before a class or stay at a hotel near the plant
after teaching the class, and then drive back to the PEG offices
the next morning. Mr. Pagnozzi also advised Complainant that the
Company could pay him overtime if he worked a long day.
Complainant rejected all of those suggestions, saying that he
needed compensatory time off. Complainant stated that teaching
the class at Turkey Point, with the driving, was very stressful
and very difficult. Complainant told Mr. Pagnozzi that he could
not work overtime because of his health. On earlier occasions,
Complainant had told Mr. Pagnozzi that he had been operated on,
was taking medications for his stomach, was under a lot of
stress, and had numerous problems. TR 567-570.
Pagnozzi was concerned that perhaps Complainant had some
limitation because of his health problems. Accordingly, Mr.
Pagnozzi contacted Mr. Davis and told him that he had an employee
who was requesting time off to rest after putting in long days
because of one day assignments at the Turkey Point Plant.
Pagnozzi did not identify Complainant by name. Mr.
Davis said it sounded like something was wrong because many
employees have to travel to Turkey Point and yet report for work
in Juno Beach the next morning. Pagnozzi told Davis that the
employee had told him about having had health problems in the
past and some operations. Pagnozzi asked Davis whether the
Company had to consider the condition some form of handicap and
make special allowance for it. Davis told Pagnozzi that such a
decision could not be made by him. Instead, the employee needed
to see a doctor or be referred to the EAP before the Company
could make any allowance for such problems. TR 528, 568, 618,
619.
__________________________
[PAGE 23]
Also, on the April 30th review Mr. Pagnozzi stated that
Complainant should complete the VCT setpoint calculation by May
10, 1991, but he did not do so. TR 256, 568, 970; RX 18 at p. 4.
Mr. Pagnozzi presented the performance appraisal to
Complainant at a review session held on or about April 30, 1991.
TR 98, 101, 249, 570. Also present at the review session were
Mr. Hosmer, Mr. Higgins and Mr. Bible. Tr 98, 249, 561, 713,
967. Mr. Hosmer attended the session because Complainant had
asked him to get involved by writing the seven page letter to
him, and he wanted to see how Complainant was doing. TR 714.
The other people at the session were those in the chain of
command from Complainant to Hosmer. TR 249, 562, 713-714, 967.
Mr. Hosmer did not contribute to the April 30th evaluation
written by Mr. Pagnozzi. Hosmer hoped that he would find that
Complainant was doing fine, and he (Hosmer) could exit the
process. Hosmer had not established a timetable for how long the
monthly review process would last, but hoped that Complainant's
performance would improve within a month or two so that he could
end the process. He testified that the point of the monthly
reviews was to help Complainant improve his performance. TR 708,
713-714.
Mr. Pagnozzi handed Complainant the appraisal, and tried to
explain the ratings and comments. Complainant flipped to the
last page of the appraisal, looked at the overall rating, placed
the document down, looked up and quit listening to Mr. Pagnozzi.
When Pagnozzi finished going through the evaluation, comments
were exchanged between Pagnozzi and Complainant which Hosmer felt
had no value. Accordingly, Mr. Hosmer stopped the meeting, sent
everyone out of the room except Complainant, and talked to him
for about five minutes. TR 98-99, 255, 570-571, 714-717.
[PAGE 24]
What was said at the meeting between Hosmer and Complainant
is in dispute. Mr. Hosmer testified that he told Complainant it
was time to start taking the performance issue seriously,
reminding Complainant that four supervisors had rated him a 90%
performer. The four supervisors were Mr. Osborne (who had given
Complainant a 90% rating in 1989), Mr. Wade, Mr. Pagnozzi, and
Mr. Smith (when he had investigated the review by Mr. Wade). It
was not merely one supervisor who was rating Complainant as a
below average performer. Hosmer wanted Complainant to know that
the below average ratings were serious because Complainant could
lose his job if his performance did not improve. Complainant
testified that Mr. Hosmer stated the important thing was not to
do his job right, but to make his immediate boss look good. TR
99, 715.
On May 2, 1991, Complainant went to NSS which is the
Company's internal program for raising nuclear safety and any
other concerns. TR 101, 273, 438, 827; RX 54. On July 29, 1991,
Complainant delivered a document to NSS, supplementing his
original concerns. JX 1 at p. 1. An updated version of the same
concerns was received by NSS on August 9, 1991. JX at p. 1.
Among other things, Complainant alleged that he was receiving
poor evaluations in retaliation for his commitment to projects he
considered critical to nuclear safety. RX 58.8 NSS
investigated Complainant's concerns. JX 1 at p. 1. It concluded
that Complainant's February, 1991 review was not completed in
accordance with FPL guidelines but was subsequently corrected.
CX 37. His other concerns were not substantiated. CX 37. In
the course of its investigation, NSS did not interview Mr.
Hosmer, Mr. Pagnozzi, Mr. Bible, Mr. Wage, or Mr. Barrow until
after August 1, 1991. JX 1 at p. 1-2. Mr. Goldberg was not
interviewed by NSS. JX 1 at p. 2.
Shortly after Complainant filed his concerns with NSS,
[PAGE 25]
James Geiger, Vice President of Nuclear Assurance, brought the
thrust of the Complainant's concerns to Mr. Goldberg's attention.
TR 436-437, 442-444, 842. In the organizational hierarchy, Mr.
Geiger reported directly to Mr. Goldberg any NSS concern which
raised serious questions about the quality of any activity in the
Nuclear Division. TR 442. Mr. Geiger orally briefed Mr.
Goldberg. TR 443. Mr. Geiger testified that he did not believe
that he mentioned Complainant's name to Mr. Goldberg. TR 443.
Mr. Goldberg testified that he did not recall the conversation.
TR 842.
-----------------
8/ Examples are: The reactor protection system, replacement of
pressurizer pressure transmitters, setpoint methodology and
associates tech specs and ERDADS isolation, and volume control
tank transmitter. RX 58.
___________
In the latter part of May, Mr. Pagnozzi had a disagreement
with Complainant about the VCT calculation. TR 267-268, 573.
Mr. Pagnozzi tried on several occasions to point out to
Complainant what he felt were errors in the assumptions and
conclusions of his calculation. Complainant did not agree that
there were errors. Accordingly, Pagnozzi suggested that the
Maintenance Department at the plant be contacted about the issue.
Pagnozzi wrote a memorandum to the plant listing some of the
assumptions which he felt were critical to the calculation. The
plant replied that Mr. Pagnozzi's assumptions were correct. TR
573-574; RX 51-52. Mr. Bible also reviewed Complainant's
calculation and recognized that it was incorrect. TR 970-971.
Mr. Pagnozzi then met again with Complainant and told him that
his assumptions were incorrect. TR 268, 574. Complainant did
not agree. Because the dispute involved a technical issue, Mr.
Bible and Mr. Pagnozzi contacted Mr. Smith to resolve it. TR
574, 630, 971, 999.
Mr. Smith reviewed the calculation and conclusions, and
agreed that Complainant's calculation was incorrect. TR 574-575,
630, 971, 999-1000. Mr. Smith told Mr. Pagnozzi and Mr. Bible
that Complainant's calculation was incorrect because it assumed
that a device failed high and low at the same time. According to
[PAGE 26]
Mr. Smith, that was impossible. The device could fail high or it
could fail low, but it could not fail high and low at the same
time. Therefore, Complainant's calculation was incorrect. TR
999-1000.
Mr. Pagnozzi then talked to Complainant about the
calculation. TR 574, 622. Complainant was upset that Pagnozzi
had contacted plant maintenance and Mr. Smith. TR 574.
Complainant disagreed with Mr. Smith, Mr. Bible and Mr. Pagnozzi.
TR 575, 971. Pagnozzi removed Complainant from the project
because the calculation had to be completed by the end of May,
and Pagnozzi believed complainant was not going to complete it
correctly. TR 269, 575, 621-622, 971. Mr. Pagnozzi did not make
Complainant sign off on the project. TR 576.
With respect to the VCT calculation, Complainant thought
that a certain setpoint should be changed in the interest of
safety. TR 109, 409. Mr. Hardy disagreed. TR 409. He did not
feel that the suggested change was important to safety at all.
TR 409. When Pagnozzi completed the calculation, he showed it to
Complainant and asked him to review it and maybe reconsider his
opposition to it. Complainant refused. TR 576, 622. Pagnozzi's
calculation was later verified by an outside consultant. TR 269.
In addition, the NRC investigated Complainant's allegation
regarding the VCT calculation in the fall of 1991. RX 35 at
p. 18. Complainant's allegation was not substantiated. TR 629;
RX 35 at p. 11. The NRC stated the following:
The inspectors concurred with the FPL
calculation results that indicated a change
in the control setpoint in question was not
necessary. [Complainant's] calculation
contained unnecessary conservatisms for
non-safety related applications.
RX 35 at p. 11.
After Pagnozzi removed Complainant from the VCT project, he
assigned Complainant to the electrical distribution system and
[PAGE 27]
functional inspection (EDSFI) file project. TR 277, 578, 623.
The EDSFI project involved an upcoming inspection by the NRC of
the electrical systems at the Turkey Point Nuclear Plant. TR
277-278, 578-579. FPL had been advised that the NRC would be
doing an inspection of the electrical systems in April of 1992.
TR 579, 623. The NRC was doing such inspections at various
nuclear plants. TR 578-579. The inspections were very rigorous,
detailed assessments of the design, construction, and maintenance
of the electrical systems. TR 579.
Mr. Pagnozzi assigned Complainant the task of reviewing the
audits conducted by the NRC at other nuclear power plants to
determine what kind of problems were uncovered in those
inspections. TR 278, 579, 623. The EDSFI project was very
critical to FPL and Mr. Pagnozzi did not consider it demeaning
work. However, Complainant objected to the work, saying it was
outside his I&C discipline. Mr. Pagnozzi responded that the
inspection reports to be reviewed covered a wide variety of
topics, including I&C and electrical matters, and the information
was used by FPL. TR 579.
The material to be reviewed by Complainant involved
approximately twelve different nuclear plants. Pagnozzi talked
to Complainant about how to organize the project because of the
large amount of material to be reviewed. He wanted Complainant
to enumerate all the violations which had been identified at
other nuclear plants. Pagnozzi told Complainant to review the
documents, write down the violations, and cross reference and
index them because there would be a lot of items. He also told
Complainant that when he finished reviewing everything a group
meeting would be held to go over the various items. The group
would determine relevancy and importance, and prioritize the
items to decide what work would be done at the plant prior to the
audit. TR 278, 579-580.
Instead of documenting the violations identified by the NRC
at other plants and indexing them, Complainant began working on
problems which he felt were directly applicable to the Turkey
Point Plant. Pagnozzi told Complainant that he was getting ahead
of the process. He told Complainant to first list the items so
[PAGE 28]
that the department could work on the upcoming audit as a group.
Instead of doing as he was directed by Mr. Pagnozzi, Complainant
complained to Pagnozzi's supervisor, Mr. Bible. Mr. Bible
reminded Complainant that Mr. Pagnozzi was his supervisor, and
instructed him to do what Mr. Pagnozzi had told him to do. Mr.
Bible and Mr. Pagnozzi talked to Complainant, and eventually he
did the assignment as Mr. Pagnozzi had told him to do it. TR
278-279, 580-581.
A few days after the April 30th review session, Mr. Barrow
told Mr. Hosmer that the monthly evaluation process of
Complainant was not working because it was so stressful for him
that nothing was accomplished. TR 571, 716, 799. Barrow told
Hosmer that Complainant did not listen to a word during the
review session and that the process should be changed. TR 716,
799-800. Barrow also advised Hosmer that he did not feel that
there was adequate time between the reviews for Complainant to
make progress. TR 511. Barrow recommended that the reviews be
quarterly instead of monthly and have fewer people involved. TR
511, 716, 800. Barrow said that if the reviews were changed in
that way, he would encourage Complainant to go to the EAP, or act
as his counselor himself to work on things which were stressful
to Complainant. TR 511-512, 716. Hosmer agreed to the
compromise offered by Barrow. TR 571, 716, 800. There was no
understanding that Mr. Hosmer would not attend the quarterly
review sessions. TR 517, 716. Barrow never asked Hosmer to
remove himself from the review process. TR 799.
Mr. Hosmer contacted Mr. Pagnozzi and told him to switch to
quarterly reviews of Complainant. TR 717. Hosmer asked Pagnozzi
to remind him of when the next review was due. TR 717.
During this period of time, Complainant talked to Mr.
Barrow about stress in his life. TR 230, 510. One thing causing
stress was the performance reviews and Complainant's disagreement
with them. Complainant also related to Barrow that the following
aspects of his private life were causing stress: his or his
wife's parents were working on a house and Complainant had to
spend a lot of time working there too, and Complainant was
working on a graduate degree in electrical engineering. In
addition, Complainant told Barrow that he had to do extensive
work at the Turkey Point Plant, and thus be away from his home.
Barrow got the impression that Complainant was very stressed, and
told Complainant that the EAP would be of great benefit to him.
TR 230, 510-512.
[PAGE 29]
Mr. Pagnozzi often worked in the evening and on weekends
when Complainant was off. TR 428, 572. On one occasion in 1991,
after complainant had left work Pagnozzi looked through
Complainant's file cabinet and his desk drawers for the FPL's
only copy of the Westinghouse setpoint methodology manual. The
document was proprietary information and could not be reproduced.
TR 572. Mr. Pagnozzi needed the document because someone had
called and asked about information contained in the document.
Complainant kept the Westinghouse document in his file cabinet,
and had told Mr. Pagnozzi where it was. TR 426-26, 571-72, 624-
625.
After looking in the cabinet and desk, Pagnozzi was unable
to find it. TR 572, 625. The next day, Pagnozzi asked
Complainant where the Westinghouse document was. Complainant
responded that he had taken it home. Mr. Pagnozzi told
Complainant that the document was not Complainant's property, and
he needed to return it to the office. TR 572, 625.
On another occasion, Mr. Pagnozzi also looked through Mr.
Vazquez's file cabinet, trying to locate a particular file
relating to the cold chemistry laboratory. At the time, Mr.
Vazquez was out of town, and another employee had told Mr.
Pagnozzi that the file was in Mr. Vazquez's cabinet. Mr. Vazquez
had not raised any nuclear safety concerns with NSS or the NRC.
TR 428-29, 572-73.
Complainant testified that he did not tell Mr. Pagnozzi (or
other supervisors) that he was stressed out. TR 202, 219.
However, Complainant conceded that at the March 15th meeting he
and Mr. Hosmer discussed the stress of the dual-unit outage, and
that he stated to Mr. Hosmer that life has stress. TR 87, 223.
Mr. Pagnozzi testified that it was common for Complainant to talk
about stress. TR 585. The goals document prepared by Mr. Bible
approximately one month before Complainant's April 30th review
urged Complainant to attend a stress management course. RX 16 at
p. 2. Similarly, Complainant's letter of August 11, 1991, to the
DOL referred to his "stress and tension." RX 30 at p. 2. Mr.
Bible, Mr. Pagnozzi, Mr. Hosmer and Mr. Barrow all testified that
Complainant discussed his stress and his personal problems with
them. TR 510-511, 585, 677, 973-974.
[PAGE 30]
Mr. Pagnozzi testified that the April 30th review of
Complainant was his true opinion of Complainant's performance and
no one influenced him in his rating of Complainant. TR 569, 901.
Pagnozzi also testified that Complainant told him that he felt
the review was something Mr. Pagnozzi had been forced to do. TR
569; RX 18 at p. 5. Pagnozzi testified that that was not true.
In addition, he further testified that Complainant complained
to him about his prior reviews on several occasions. According
to Pagnozzi, he responded to Complainant on those occasions that
he could not do anything about those reviews because they
involved the period of time before Complainant came to work for
him that they were "out of my hands." TR 569-570.
Senior Management Involvement
Every morning at approximately 7:40 a.m. Mr. Goldberg met
with his key subordinates and had a conference call with other
high-level employees working at the Company's nuclear plants. TR
720. After those telephone calls, policy issues were typically
discussed. At one such meeting in early July, 1991, Mr. Goldberg
stated that he was surprised by a newspaper article dealing with
a certain employee (not Complainant). Goldberg stated that he
did not know a lot about the situation. TR 720. Mr. Goldberg
was not aware of the matter until it had reached a point that the
employee was about to be terminated. Mr. Goldberg asked whether
there were other employees with performance problems who might
have to be terminated if their performance did not improve. Each
person in the room addressed the question, and when Mr. Goldberg
turned to Hosmer, he stated that he had an employee on
accelerated reviews. TR 723. Mr. Goldberg asked to briefed
about the situation. TR 720-24, 835, 851-52.
Mr. Hosmer met with Mr. Goldberg and reviewed Complainant's
history with the Company and discussed his performance
evaluations. TR 723, 937. Hosmer told Goldberg that Complainant
was an engineer who was attending night school. TR. 837.
Hosmer stated that Complainant had made threats in the past about
going to the media and the NRC. TR 723. Hosmer advised Mr.
[PAGE 31]
Goldberg that Complainant's performance had been declining for
the past few years, but that the EAP had been suggested to
Complainant and that Mr. Barrow was counseling him. TR 723, 798-
799. Mr. Hosmer told Mr. Goldberg that he had met with
Complainant, and Complainant had stated he had high blood
pressure. TR 837. Goldberg asked Hosmer whether Complainant was
fit for duty. TR 723, 798-799, 838. Hosmer responded that he
did not know. Goldberg ended the meeting, stating that Mr.
Hosmer needed to think about that. TR 723-724.
Hosmer testified that he had not considered whether
Complainant was fit for duty until Goldberg asked the question.
TR 793, 799. When Mr. Goldberg raised the fitness-for-duty
issue, he had no personal knowledge of Complainant. He did not
know that Complainant had filed a concern with NSS or had any
nuclear safety concerns. TR 841-842, 853.
At that July meeting with his key subordinates, Mr.
Goldberg's question dealt with employees having performance
problems. He testified that his intent was to make sure that the
Company made every effort to counsel such employees on a path to
improved performance so that termination would not be necessary.
TR 851-852.
After his meeting with Goldberg, Hosmer read the NRC's
fitness-for-duty regulations at 10 C.F.R. Part 26. TR 724; RX
42. Mr. Hosmer refreshed his recollection that the regulations
address factors such as stress, fatigue, and illness which can
affect an employee's fitness for duty. TR 724-725; RX 42. In
addition, Hosmer telephoned Mr. West and told him that
Complainant had reported that he was under stress, and also
described his performance problems. TR 725, 736-737, 876. Mr.
Hosmer then asked West whether those facts formed the basis for
challenging an individual's fitness for duty. TR 725, 876. Mr.
West replied that under the fitness-for-duty rules, a
determination had to be made. TR 725, 876. West further stated
that neither he nor Hosmer were qualified to make that
determination and that a professional evaluation would be
necessary. TR 876, 880.
[PAGE 32]
The NRC requires licensees, including FPL, to address
factors which could affect an employee's fitness for duty such as
mental stress, fatigue, and illness. TR 303, 738, 873; RX 35 at
p. 44 (line 4), RX 42. It is the objective of the NRC's fitness-
for-duty regulations that nuclear plant personnel "are not
mentally or physically impaired from any cause which in any way
would adversely affect their ability to safely and competently
perform their duties." RX 35 at p. 44. FPL has a duty to act on
fitness-for-duty concerns. TR 303, 839-840.
On July 12, 1991, Mr. Barrow wrote a letter to his
supervisor, Mr. Davis, to apprise Davis of his counseling efforts
with Complainant. TR 515-516; RX 62 at p. 5. It can be inferred
from the second page of Barrow's letter that he told Hosmer on
July 11, 1991 that Complainant had gone to NSS, and may go to the
EEOC and the NRC. RX 62 at p. 6. Barrow, however, testified that
he did not tell Mr. Hosmer that Complainant had gone to NSS or
had threatened to go the NRC. TR 497, 516. The reference to the
NRC in Mr. Barrow's letter was speculation on his part. TR 497.
Mr. Barrow did tell Mr. Hosmer that he felt Complainant was apt
to go to the NRC if his conflict with supervision continued. TR
498-499. Mr. Barrow suggested that Mr. Hosmer may want to
reassign Complainant to the St. Lucie engineering group under a
different supervisor (i.e., Dave Wolf). TR 498, 515; RX 62 at
pp. 4, 6.
Hosmer also testified that Mr. Barrow did not tell him that
Complainant had been to NSS or had threatened to go to the NRC.
TR 739. However, Smith stated to Hosmer that every time things
do not go Complainant's way, Complainant responds with a canned
set of threats regarding lawsuits, the newspaper, and the NRC.
TR 680. Similarly, Hosmer, in his July meeting with Mr.
Goldberg, stated that Complainant had made threats in the past
about going to the newspaper and the NRC. TR 723. Mr. Pagnozzi
also testified that on several occasions Complainant went through
a canned litany about going to the media, to NSS, and to the NRC.
TR 628-629.
Mr. Davis received the letter from Mr. Barrow in mid-July.
TR 532. Upon receiving it, Davis did not tell anyone in
[PAGE 33]
management that Complainant had gone to NSS or was threatening to
go to the NRC. TR 529. Davis noted Barrow's comment about
Complainant's equal employment opportunity concerns, and told
Hosmer that he would like to have those concerns investigated.
TR 532; RX 62 at p. 6. Hosmer stated that he would welcome such
an investigation. TR 532. Accordingly, Mr. Davis asked Larry
Bossinger, Labor Relations Administrator, to investigate
Complainant's charges of national origin discrimination. TR 531-
532. Mr. Bossinger conducted an investigation, and sent a report
to Mr. Davis on August 14, 1991. TR 532; RX 61. Mr. Bossinger
concluded that there was no basis for a claim of discrimination.
TR 532; RX 61. Complainant never filed a charge of discrimination
with the EEOC. TR 210.
On July 16, 17 and 18, 1991, Basil Pagnozzi assigned
Complainant to three full days of red badge training. TR 288-
289, 585. Red badge training consists of requalification
training which is required of individuals having unescorted
access into the radiation controlled area of a nuclear power
plant. TR 289, 585. Hosmer had directed that all engineers in
the PEG group be badged for unescorted access. TR 585-586.
Pagnozzi told Complainant to make arrangements to take the class.
TR 586. Complainant advised Pagnozzi of the dates he had
scheduled the class, and Pagnozzi approved his attendance. TR
586.
On July 22, 1991, a stress management course was held at
the Company. TR 586; RX 53. Pagnozzi wanted Complainant to
attend the class because Complainant had told him that he was
stressed out. TR 586, 588. Pagnozzi wrote a memorandum to
Patrick Higgins, Manager of the PEG group, recommending that
Complainant be permitted to attend the class. TR 287; RX 53.
Complainant attended the course. TR 116, 588. A psychologist
discussed ways in which conflicts arise, and how best to cope
with them in a corporation. TR 117.
Complainant testified that he had no idea why Mr. Pagnozzi
recommended him for the course--that he never told Mr. Pagnozzi
that he was stressed out. TR 287-288. Complainant, however,
[PAGE 34]
conceded that not everyone who wanted to attend the course was
allowed to go. TR 288. Pagnozzi testified that he took the time
to send a memorandum to Higgins, recommending Complainant for the
course, because he felt that of all his employees Complainant
would benefit the most from the course. TR 588. Pagnozzi wrote
the following in his memorandum of July 7th to Higgins:
This course should help Richard in his dealings
with issues and people problems and hopefully
reduce some of his stress related concerns.9
RX 53.
Prior to his first quarterly review, Complainant asked
Pagnozzi what rating he would receive on the review. TR 344-345,
591-592. Pagnozzi told Complainant it was not appropriate to
discuss the rating prior to the review session, but that the
review session would be held on Tuesday, July 30th with Mr.
Hosmer. TR 592, 626. Complainant stated that Hosmer's
attendance was contrary to the agreement he had with Mr. Barrow.
TR 592. Complainant told Mr. Pagnozzi that he would have to have
his lawyer present if Hosmer attended the review session. TR
118, 345, 592, 626.
Pagnozzi told Complainant that he did not need to have an
attorney present, but that Mr. Hosmer, as the director of the
department, had the right to attend a review session. TR 593.
Complainant insisted that he was going to bring his attorney to
the session. TR 592-593. Accordingly, Pagnozzi told Complainant
that if he intended to bring a lawyer to the review session, he
should put it in writing so that he could advise Hosmer. TR 292,
593, 626.
On or about Friday, July 26, 1991, Complainant handed Mr.
Pagnozzi a memorandum stating that he "must" have his attorney
present at the review session because Mr. Hosmer would be there.
TR 593, 626; RX 20. At that time, Mr. Hosmer was in a meeting,
but was interrupted with a message that Pagnozzi needed to speak
___________________
9/ In Complainant's memorandum of July 26th, he also stated
that under the agreement between Mr. Barrow and Mr. Hosmer, the
reviews would be "low-stress events." TR 294; RX 20 (line 7).
Complainant testified that his choice of the phrase "low-stress
events" did not mean that the reviews caused him stress. TR 294.
Pagnozzi testified, however, that Complainant wanted the reviews
changed to quarterly because monthly reviews were too stressful
for him. TR 571. Moreover, after Complainant's review session
with Mr. Smith concerning the revised annual review signed by
both Mr. Wade and Mr. Bible, Complainant went home sick. TR 996.
to him at once. TR 730. Pagnozzi spoke to Hosmer by telephone
and reported that Complainant had demanded that his lawyer be
permitted to attend the review session, and that if he did not
get permission to bring his attorney by 4:30 p.m. that day he
would go to the Miami Herald. TR 730-731, 816-817. Pagnozzi
told Hosmer that Complainant would not attend the session without
his attorney. TR 816-817. Hosmer stopped his meeting and went
to see Mr. Davis and asked him what to do. TR 525, 731. Davis
stated that it was not appropriate for an employee to bring his
attorney to a review session, but Hosmer felt that they should
let Complainant's attorney attend the review session. TR 525,
731.
___________________
[PAGE 35]
Because Davis and Hosmer had different opinions on the
issue, Davis suggested Hosmer talk to Goldberg. TR. 731 Hosmer
did so and Goldberg said to consult with the Company's in-house
attorney, Mr. Steve Carr, and abide by whatever he suggested. TR
525, 731, 843. Davis and Hosmer met with Carr, and a decision
was made to allow Complainant's attorney to attend and observe
only; Carr would also attend. TR 294, 593-594, 733, 862. FPL had
never allowed an attorney to attend a performance review session
in the past. TR 734.
Mr. Hosmer took the opportunity to ask Pagnozzi if he
thought Complainant was fit for duty. Pagnozzi replied that he
had not thought about it, but that Complainant was still talking
about being under stress. TR 594.10
Mr. Hosmer called Complainant and told him that his
attorney could attend, but only to observe the session. TR 301,
326, 731, 734; RX 39.
Hosmer testified that he made the decision to question
Complainant's fitness for duty when Mr. Pagnozzi called him out
of the meeting and informed him that Complainant had demanded to
bring his attorney to the evaluation session, saying that he was
[PAGE 36]
not coming unless his lawyer was allowed to attend. TR 734-735,
788, 791, 816-817; RX 22. Since his meeting with Mr. Goldberg a
couple of weeks earlier, Hosmer testified that he had been
thinking about the fitness-for-duty issue, but the Complainant's
demand to bring his attorney to the review session was the
trigger mechanism because Mr. Hosmer saw a change in behavior
which he believed made Complainant unpredictable. TR 735, 795.
________________________
10/ In his Complaint to the DOL dated August 11, 1991,
Complainant mentioned his "stress and tension." TR 320; RX 30 at
p. 2.
_________________________
According to Hosmer, Complainant's demand was upsetting
because had and other supervisors had been working with
Complainant to improve his performance and had even changed the
frequency of the reviews at his request. TR 816. Hosmer
interpreted Complainant's unpredictable behavior to mean that it
was not certain if Complainant would report to work in the event
of an accident, would do a calculation assigned to him, or keep
an appointment. TR 817. Hosmer believed that this presented a
very high risk situation in the nuclear power industry. TR 735.
In addition, Complainant had told Mr. Hosmer that he had
been ill, was stressed out, and was not feeling well. TR 736,
791-792. Complainant had discussed his personal stress with Mr.
Hosmer, talking about studying for his graduate degree, his in-
laws moving to Florida, and his having to drive to the Turkey
Point Plant. TR 791-792. Moreover, Hosmer knew that
Complainant's performance had deteriorated. TR 736, 792.
Accordingly, Hosmer decided to question his fitness for duty. TR
791-792.
Hosmer contacted Mr. West; he told him that he was going to
question Complainant's fitness for duty, and asked him to arrange
an appointment for Complainant to see a clinical psychologist,
Dr. Dennis Johnson, Ph.D. TR 683, 876. Dr. Johnson and his staff
work with approximately 20 utilities which operate nuclear power
plants. TR 686. FPL constitutes less than 10% of his business.
TR 685. Dr. Johnson has evaluated other FPL employees in
[PAGE 37]
connection with post-employment fitness-for-duty questions. TR
693. West is the primary FPL contact with Dr. Johnson. TR 688-
689, 875. Mr. West spoke to Dr. Johnson and set up an
appointment for Complainant. TR 877.
In mid-July, 1991, Hosmer had contacted Pagnozzi concerning
Complainant's performance. TR 589, 726. Pagnozzi reported that
Complainant would probably be rated 90% on his upcoming
evaluation. TR 589, 726. Hosmer asked Pagnozzi to write clear
goals for Complainant's improvement so there would be no argument
about what was expected of him. TR 589, 727-729, 790-791. The
initial document written by Mr. Pagnozzi was not acceptable to
Mr. Hosmer. Thereafter, Mr. Pagnozzi rewrote goals for
improvement, and the document was presented to Complainant at the
review session. TR 727-729; RX 21 at p. 5.
Mr. Pagnozzi also prepared a performance appraisal on
Complainant dated July 30, 1991. TR 589; RX 21. He gave
Complainant an overall rating of 90%. TR 300, 345, 595; RX 21 at
p.4. With respect to the individual categories on the review,
Mr. Pagnozzi rated Complainant 100% in technical/job
knowledge and also in initiative. TR 595-596; RX 21 at p. 2.
Complainant received 90% ratings in judgment/problem analysis,
organization and planning, and dependability. RX 21 at pp. 2-3.
Complainant had previously received below average ratings in
judgment/problem analysis on his 1980, 1981, 1989, and 1991
reviews. RX 1 at pp. 2, 6, 34; RX 15 at p. 2. Complainant had
also received below average ratings in organization and planning
on his 1980, 1988, and 1989 reviews, and in the dependability
category on his 1988 review. RX 1 at pp. 2, 30-34.
In the organization and planning category on the July 30th
review, Mr. Pagnozzi commented that Complainant's below average
rating was demonstrated
by his approach to the EDSSi [sic] document
review. He was counseled several times
regarding the expected format and resisted
change. . . .
[PAGE 38]
RX 21 at p. 2
Mr. Pagnozzi included the following comment in the
dependability category:
The most critical of his assignments (VCT level
setpoint calc) during this period was not
completed. This was identified as critical
in his 4/30/91 appraisal. . . .
In the cooperation category, Mr. Pagnozzi gave Complainant
an 80% rating and commented that Complainant was unwilling to
work with other people to constructively solve problems. TR 596;
RX 21 at p. 3. Complainant had previously received below average
ratings in cooperation in his 1981, 1987, 1988, and 1991 reviews.
RX 1 at pp. 6, 27, 31, and RX 15 at p. 3.
In the review, Mr. Pagnozzi noted that Complainant's
strongest qualification was his technical capabilities in the I&C
area. TR 596-597; RX 21 at p. 4. In the area of the appraisal
form dealing with principal areas for improvement, Mr. Pagnozzi
referred to the document he prepared at Mr. Hosmer's direction.
TR 597; RX 21 at p. 4. The document gave Complainant
recommendations for improvement in four categories:
Judgment/problem analysis; organization and planning;
dependability; and cooperation. RX 21 at p. 5. In the goals
section of the appraisal form, Mr. Pagnozzi told Complainant that
he needed to improve his performance to at least a 100% overall
rating within the next three months. TR 597; RX 21 at p. 4. Mr.
Pagnozzi himself prepared the appraisal. TR 596. No one told
Mr. Pagnozzi what to write on the review. TR 596. Mr. Hosmer
did not tell Mr. Pagnozzi how to rate Complainant. TR 728.
Mr. Pagnozzi presented the appraisal to Complainant at the
review session on July 30, 1991, which was also attended by
Oliver Harris, Complainant's attorney, Mr. Hosmer and Attorney
Carr. TR 122, 295, 298, 595, 598, 740.
After Mr. Pagnozzi reviewed the appraisal with Complainant,
[PAGE 39]
Mr. Hosmer handed Complainant a written memorandum, stating that
he was questioning Complainant's fitness for duty and directing
him to be evaluated by Dr. Johnson. TR 123, 300-301, 598, 863-
864; RX 22. Mr. Hosmer's memorandum was dated July 26, 1991. RX
22. The memorandum stated, in part:
I question your fitness-for-duty for unescorted
access. For that reason, I direct you to consult
with Dr. Johnson, a psychologist. An appointment
has been set up for 11:00 a.m. on July 31, 1991,
in Stuart, Florida. The purpose of this visit is
to determine your fitness for unescorted access.
Failure to consult with Dr. Johnson will result in
disciplinary action, including removal of your
unescorted access privilege. RX 22.
Under FPL's fitness-for-duty policy, psychological testing
may be used to ensure fitness for duty when an employee
demonstrates a lack of reliability, stability or trustworthiness.
EX 41 at p. 4. The NRC's fitness-for-duty regulations require
licensees to assure that power plant personnel perform their
tasks in a reliable and trustworthy manner. TR 738; RX 42. To
Mr. Hosmer that meant that employees must act in a predictable
manner. TR 738.
The memorandum which Mr. Hosmer handed Complainant at the
July 30th review session also discussed Complainant's
performance. TR 300, 745; RX 22. The memorandum stated the
following:
This is the second 90[%] performance evaluation
in your PEG assignment. No substantial performance
improvement has been noted. Significant improvement
is needed in judgment/problem analysis, organization
and planning, dependability and cooperation. If
significant improvement is not achieved within 90
days, you will face termination. RX 22.
Mr. Hosmer included that warning because he wanted
Complainant to know that his below average performance was a
major concern. That was the same message Mr. Hosmer delivered to
Complainant when he stopped the April 30th review session, and
told Complainant that it was a serious matter that four different
supervisors had evaluated him at 90%. TR 745.
[PAGE 40]
Complainant then read a statement about his nuclear safety
concerns and said he was going to NSS as soon as the review
session was over. TR 740-741. 864. Complainant signed Mr.
Hosmer's memorandum, acknowledging that he received it on July
30th in the presence of his attorney. RX 22.
Mr. Harris then asked to go outside the meeting room to
speak with Complainant. TR 599, 743, 865. Complainant had
requested the break to talk to Attorney Harris about taking the
psychological test the very next day. TR 126, 304.
After the break Harris came into the room without
Complainant. TR 599, 743-744. An off-the-record discussion
ensued. TR 599-600, 865-866. Thereafter, Harris requested that
the appointment with Dr. Johnson be postponed. TR 124, 304, 600,
744. Mr. Hosmer agreed to a postponement, and directed Mr.
Pagnozzi to have the appointment rescheduled for August 2, 1991.
TR 304-305, 600, 744.
Later, Pagnozzi called Complainant at home and told him
that he did not have to see Dr. Johnson the following morning
because the appointment had been changed to Friday, August 2nd.
TR 305, 600-601. Pagnozzi suggested that Complainant take
Wednesday and Thursday as vacation days so that he could rest and
be prepared for the appointment on Friday. Complainant agreed to
take the two days off. TR 305-306, 601.
On Friday, August 2nd, Complainant reported to work as
usual instead of keeping his appointment with Dr. Johnson. TR
306, 601. Pagnozzi asked Complainant if he was going to keep the
appointment with Dr. Johnson, and he replied that he was not.
Pagnozzi telephoned Hosmer to report that Complainant was not
going to keep the appointment. TR 601.
Mr. Hosmer called Complainant and asked him whether he was
going to keep the appointment with Dr. Johnson, and he again
replied that he was not. Hosmer told Complainant that he was
disappointed and asked him to reconsider. TR 306, 746-747; RX 43
at pp. 1, 4. Complainant stated that he did not attend the
appointment on advice of his attorney. TR 307, 747. Hosmer told
Complainant that he would have to pull his unescorted access
badge. Hosmer called Mr. West and had Complainant's red badge
[PAGE 41]
pulled. TR 746; RX 43 at pp. 1, 4.
During the off-the-record conversation at the July 30th
review session, Harris implied that Complainant had other safety
related concerns which he was not disclosing at that time. TR
747-748, 845. In addition, there was a subsequent telephone
conversation between Mr. Carr and Mr. Harris in which Mr. Harris
made a similar statement. TR 748, 867. Accordingly,
Hosmer and Carr met with Goldberg to advise him of what had
happened. TR 748, 867. Thereafter, Goldberg wrote a letter to
the NRC dated August 2, 1991, reporting that Complainant may have
potential safety concerns. TR 747, 844; RX 44. Carr also sent a
letter to Harris, encouraging Complainant to promptly report all
of his safety concerns to either FPL or the NRC. TR 748; RX 24.
Hosmer sent a similar letter directly to Complainant. TR 749; RX
25.
On August 2nd, Harris sent a letter to Carr stating that
Complainant would meet with Dr. Johnson if Attorney Harris was
present and a tape recording was made of the interview. TR 131,
748-751, 866; RX 23. Hosmer contacted West and asked him to see
if the conditions would be accepted by Dr. Johnson. West asked
Dr. Johnson, who advised that that was not how interviews and
evaluations are done. TR 609, 690, 877, 878. Dr. Johnson,
however, told West that he would consult with his attorney, who
was also a licensed psychologist, and report back to Mr. West.
Dr. Johnson told Mr. West that his company had conducted over
15,000 interviews nationally, and no such request had ever been
made. Later, Dr. Johnson advised West that the conditions were
not acceptable because they would invalidate the results of the
testing. TR 691, 878.
Hosmer met with Complainant on Monday, August 5th, and
advised him that the Company was considering the two conditions
that Attorney Harris included in his letter. TR 751; RX 45.
Hosmer discussed Complainant's obligation to disclose all of his
safety concerns to FPL, the NRC or NSS. RX 43 at pp. 1, 5; RX
45. Complainant testified that he told Mr. Hosmer that part of
the second condition was that he would not answer any questions
[PAGE 42]
which he felt violated his sense of dignity. TR 310.
Complainant also stated that he was not aware of any employee who
was permitted to bring an attorney to or tape record a session
with Dr. Johnson. TR 311.
On August 8, 1991, Carr sent Harris a letter advising that
Dr. Johnson had rejected the two conditions suggested in his
letter. Carr stated that "Dr. Johnson advised that conducting an
interview on these terms would be inappropriate and could
compromise the validity of the evaluation process." RX 28 at p.
1. Carr also advised Harris that if Dr. Johnson opined that
Complainant was unfit for duty, that determination could be
appealed. TR 313-314, 752-753, 875. Carr went on to state:
FPL will provide you and [Complainant] with a
copy of any written report Dr. Johnson prepares
for FPL after the evaluation. If Dr. Johnson
finds that [Complainant] is fit for duty, the
matter will be concluded. If Dr. Johnson finds
otherwise, FPL will make a fitness determination
and take appropriate action based on Dr. Johnson's
evaluation. In such event, if [Complainant] is
not satisfied or disagrees in any way with the
report or with FPL's determination and follow-up
action, he may appeal. If he appeals, he may
submit a report from a psychologist of his own
choosing for FPL's consideration and an impartial
internal management review.
RX 28 at pp. 1, 2.
On August 8, 1991, Hosmer was advised that Dr. Johnson
could not conduct the evaluation under the conditions requested
by Attorney Harris. TR 749, 752. Hosmer went to Complainant's
work area, advised him that the conditions were not acceptable to
Dr. Johnson, informed him that the appointment with Dr. Johnson
had been reset for August 19th at 9:00 a.m., and told him that he
would face termination if he failed to keep the appointment. TR
749, 752; RX 46, 47. Hosmer again directed Complainant in
[PAGE 43]
writing to meet with Dr. Johnson. TR 312, 602; RX 47. Mr.
Hosmer advised Complainant that there was a simple path to
success: Improve his performance and see Dr. Johnson. TR 752.
On Friday, August 9, 1991, Complainant gave Mr. Pagnozzi a
letter and, as an attachment, a copy of a letter from Complainant
to the NRC, raising alleged safety concerns. TR 315-316, 602; RX
29. That was Pagnozzi's first knowledge that Complainant had
gone to the NRC. TR 602. On or about August 9th, Pagnozzi in
turn gave the letter to Hosmer. Prior to that time, Mr. Hosmer
was not aware that Complainant had contacted the NRC. TR 753.
Upon receipt of the letter, Hosmer decided that he needed
to investigate the issues which Complainant was raising with the
NRC. Hosmer told Mr. Paduano to hire a consultant from Tenera,
an independent consulting firm, to review the Setpoint Project.
Hosmer believed that Mr. Geiger would also need to hire a
consultant to investigate Complainant's allegations.
Accordingly, Hosmer talked to Geiger on or about August 9th
about Complainant in order to be sure that if Mr. Geiger hired a
consultant he did not hire the same person from Tenera. TR 436-
437; 753-754.
Complainant did not keep his appointment with Dr. Johnson
on August 19, 1991. TR 131-132, 322, 605, 756. Mr. Hosmer
learned that Complainant was at work, and went to his work site
to meet with him. TR 756. Mr. Hosmer took a security guard and
a person from Human Resources with him. TR 132, 756. Mr. Hosmer
asked Complainant if he was physically able to attend the
appointment with Dr. Johnson. TR 132, 322, 756; Rx 49.
Complainant stated that he was but did not keep the appointment
because his attorney advised him not to. TR 132, 322, 756; RX
49.
Mr. Hosmer brought Complainant away from his work area and
met with him, Mr. Pagnozzi, and a representative from Human
Resources in the private office and discharged Complainant for
insubordination. TR 131-132, 605; RX 31, 49, 50.
[PAGE 44]
Complainant's three stated reasons for not keeping the
appointment with Dr. Johnson were as follows: (1) he had
allegedly observed a pattern of retaliation for advocating
nuclear safety modifications and for going to NSS; (2) he would
have been doing a disservice to his profession and the community
by participating in something which was allegedly distorting the
fitness-for-duty regulation; and (3) he feared damage to his
reputation, career and life if Dr. Johnson found him to be unfit
for duty. TR. 128-129. Complainant included the third reason
for not seeing Dr. Johnson even though he testified that he knew
he could appeal any adverse finding by Dr. Johnson and see a
psychologist of his own choosing. TR 313-314; RX 28 at p. 2.
Complainant also testified that he had no evidence that Dr.
Johnson would render a biased report or had predetermined what
his conclusion would be. TR 329.
At FPL, according to Mr. Goldberg, insubordination on a
single occasion is a dischargeable offense. If Complainant had
kept the appointment with Dr. Johnson, he would not have been
discharged regardless of the results of the psychological
evaluation. If Dr. Johnson had found Complainant to be fit for
duty, that would have ended the matter. TR 845, 858-859; RX 28
at p. 1. If Dr. Johnson had found otherwise, he would have
recommended a plan of treatment. TR 693-694, 858.
Hosmer and Davis testified that other employees in the
Nuclear Engineering Department have had accelerated performance
reviews and others have received 90% reviews. TR 526-531, 710.
To Hosmer's knowledge, none of those employees had gone to NSS,
the NRC, or raised any nuclear safety concerns. TR 710.
Mr. West testified that from 1986 through 1991, ten other
employees had been directed to see Dr. Johnson for post-
employment psychological, fitness-for-duty evaluations. Those
employees were not summarily dismissed after being evaluated by
Dr. Johnson, and five of the ten employees still work for FPL.
After treatment programs, Dr. Johnson has reevaluated employees
and found them to be fit for duty. TR 694, 874-875. No other
employee ever refused to be evaluated by Dr. Johnson. RX 35 at
p. 36.
[PAGE 45]
Investigation by the NRC
From October 28, 1991 until November 8, 1991, the NRC
investigated allegations contained in Complainant's complaint to
the NRC. TR 335-336, 468; RX 35 at p. 1. The NRC issued its
inspection report with respect thereto in January of 1991. RX 35
at p. 1. Thirteen allegations were raised by Complainant. RX 35
at p. 7. One allegation involved ethnic discrimination against
Cuban Americans. RX 35 at p. 41. That allegation was not
investigated by the NRC because it was within the jurisdiction of
the EEOC. RX 35 at p. 41. Of the remaining 12 allegations, one
was partially substantiated. RX 35 at p. 8. That allegation
related to technical plant modifications such as the power
mismatch circuits. RX 35 at p. 8. With respect to those
modifications, the NRC concluded that "[e]ach modification that
was postponed during the dual-unit outage at [the Turkey Point
Nuclear Plant] was determined to have no impact on plant safety."
RX 35 at p. 8.
The report stated that NRC inspectors had open and candid
discussions with over 60 engineers, 43 of whom were in non-
supervisory positions. RX 35 at p. 42. The NRC concluded that
NSS was not being used to discriminate against employees. TR
468-469; RX 35 at p. 46.11/
The NRC also investigated Complainant's allegation that
FPL was using psychological testing to discriminate against
employees who had taken safety concerns to NSS. RX 35 at p. 33.
According to its report, the NRC's investigation of that
allegation revealed that ten individuals (other than Complainant)
had been directed by FPL management to be psychologically
evaluated since January of 1986. RX 35 at p. 36. The NRC's
report noted that Complainant "was the only individual who
refused a management directed psychological evaluation." RX 35
at p. 36. The NRC's report stated that the NRC inspector "found
no inappropriate or discriminatory use of psychological
evaluation requirements." RX 35 at p. 36.
The NRC's report concluded by stating the following:
Based on the results of the engineering staff interviews
and the inspection of documented employee concerns, this
allegation was not substantiated. The inspection did
______________________
11/ In June of 1990, the NRC conducted an inspection of FPL's
NSS Program. TR 466, 830. The inspection was conducted to
evaluate the effectiveness of the NSS Program. RX 57 at p. 4.
The NRC's report concluded that NSS was an effective program for
identifying and resolving employee concerns, that the identity of
concerned individuals was appropriately protected, and that
coordination with the NRC Residents' Office was excellent. TR
466, RX 57 at p. 4 and 5.
_______________________
[PAGE 46]
not substantiate that the Speakout program is being
used to discriminate against employees who raised
safety concerns ... [N]o correlation could be found
between the ... psychological evaluation, and the
identification of employee concerns to FPL manage-
ment, Speakout, or the NRC.... The inspection
indicated no correlation between disciplinary action
and going to Speakout or being psychologically
tested ...
RX 35 at p. 36.
The NRC also made the following findings in its inspection
report:
There was no evidence found to substantiate the
allegations of an overall atmosphere of intimi-
dation, threats, coercion, harassment, or
negative evaluations to limit the pursuit of
safety issues. RX 35 at 8 (emphasis added).
In 1991, FPL also conducted a study to determine if there
was any pattern of employees of the Nuclear Engineering
Department bringing a concern to NSS and, thereafter, receiving
an adverse personnel action. TR 467; CX 41. The study covered
the period of time from approximately May, 1990 through May,
1991, and included Complainant. TR 477, 480-481. The study
concluded that no adverse personnel actions had been taken
against anyone as a result of a concern having been brought to
NSS. TR 468.
Complainant also stated that FPL had retaliated against him
for going to NSS, and that FPL asked him to falsify documents.
[PAGE 47]
TR 333-334. Complainant's statement about the alleged
falsification of documents referred to Complainant's work on the
VCT calculation. RX 29 at p. 9 (line 4). As noted above, the
NRC investigated that allegation. RX 35 at pp. 18-21.
Complainant's allegation was not substantiated. TR 358; RX 35 at
p. 21. The NRC stated that following:
The issued calculation was correct and the assumptions
were accurate. Evidence was not found to substantiate
that any portion of the final calculation had been
falsified. Therefore, it could not be substantiated
that the supervisor was attempting to intimidate
[Complainant] to change or falsify the VCT setpoint
calculation. RX 35 at p. 20.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
FPL is an employer within the meaning of Section 210 of the
ERA.
Complainant is an employee within the meaning of Section
210 of the ERA.
In this case, Complainant initially has the burden of
proving a primafacie case by a preponderance of the
evidence.
To prove a primafacie case, an employee must establish
each of the following elements:
(a) That the employee engaged in protected activity;
(b) That the employer knew that the employee engaged
in protected activity;
(c) That the employer took some adverse action against
the employee; and
(d) The employee must present evidence sufficient to
at least raise an inference that the protected
activity was the likely reason for the adverse
action.
[PAGE 48]
Sellers v. Tennessee Valley Authority, 90-ERA-14 (Secretary of
Labor's Final Decision and Order, April 18, 1991), Decisions of
the OALJ and OAA, Vol. 5, No. 2, March-April, 1991, p. 165, at
166, citing Dartey v. Zack Company of Chicago, Case No. 82-ERA-2,
(Secretary of Labor's Decision and Final Order, April 25, 1983)
slip opinion at pp. 5-9.
If the employee establishes a primafacie case, the
employer has the burden of presenting evidence that the alleged
adverse action was motivated by legitimate, nondiscriminatory
reasons. Id. The employer's burden is one of production and not
persuasion.
If the employer articulates a legitimate, nondiscriminatory
reason for its action, the employee, to prevail, must establish
that the employer's proffered reason was not its true reason,
but, instead, a pretext to mask illegal discrimination. Id.
If the employee proves that the adverse action was
motivated, in part, by prohibited reasons (i.e., that the
employer had "dual motives" for its action) then the employer
must show that it would have taken the same action even if the
protected activity had not occurred. Dartey, supra, at pp. 8-9;
Mackowiak v. University Nuclear Systems, Inc., 735 F.2d 1159,
1163-1164 (9th Cir. 1984).
Where an employer has a legitimate reason for disciplining
an employee, it need not forego such action simply because the
employee engaged in protected activity. Dunham v. Brock, 794
F.2d 1037, 1041 (5th Cir. 1986); Dartey, supra, at p. 12.
In this regard, the NRC's regulations under Section 210 of
the ERA provide, in pertinent part, as follows:
An employee's engagement in protected activities
does not automatically render him or her immune
from discharge or discipline for legitimate reasons
or from adverse action dictated by nonprohibited
considerations.
[PAGE 49]
10 C.F.R. §50.7(d).
Insubordination is a valid reason for discipline. Dunham,
supra, 794 F.2d at 1041.
Section 210 of the ERA contains a thirty-day statute of
limitations. An employee who believes that his employer took
adverse action against him because he engaged in protected
activity must file a complaint with the DOL within thirty days
after the alleged adverse action occurred. 42 U.S.C.
§5851(b)(1). See also 29 C.F.R. §24.3(b); and 10 C.F.R.
§50.7(b).
I find that Complainant's first Complaint to the DOL was
dated August 11, 1991. RX 30. Accordingly, any adverse action
allegedly taken against Complainant before July 12, 1991 is time
barred. Therefore, I find that only the following alleged,
adverse actions occurred within the actionable period: (1)
Complainant's July 30th performance appraisal, (2) Mr. Hosmer's
directive that Complainant submit to a fitness-for-duty
psychological evaluation, and (3) Complainant's discharge for
refusing to see the psychologist.
There is a split of authority as to whether a safety
complaint filed with an internal, company-sponsored program such
as NSS constitutes protected activity within the meaning of
Section 210 of the ERA. In Brown & Root, Inc. v. Donovan, 747
F.2d 1029 (5th Cir. 1984), the Fifth Circuit held that internal
safety complaints are not covered by Section 210. The Ninth and
Tenth Circuits have reached the opposite conclusion. SeeMackowiak, supra; Kansas Gas and Electric Co. v.
Brock, 780 F.2d 1505 (10th Cir. 1985). The Secretary of Labor
has held that reporting alleged safety problems internally to one's employer is
protected activity within the meaning of the ERA. Bivens v.Louisiana Power & Light, 89-ERA-30 (Secretary of Labor's Decision
and Order of Remand, June 4, 1991), Decisions of OALJ and OAA,
Vol. 5, No. 3, May-June, 1991, p. 152, at 153.
[PAGE 50]
In the instant case, I find that Mr. Hosmer did not learn
that Complainant had contacted the NRC until August 9, 1991. TR
753. I further find that Mr. Hosmer did not know that
Complainant had gone to NSS until Complainant announced it at the
July 30th review session. TR 740. While the Secretary has
determined that internal complaints are protected activity, I
find that Mr. Hosmer's decision to send Complainant to Dr.
Johnson for a psychological, fitness-for-duty evaluation could
not have been motivated by any protected activity because Hosmer
made that decision on July 26th. TR 734-735. Similarly, I find
that when Goldberg raised the issue of Complainant's fitness for
duty to Hosmer in early July, Goldberg did not know that
Complainant had raised any safety concerns. TR 842. I further
find, therefore, that Goldberg's suggestion that Complainant's
fitness for duty may need to be assessed could not have been in
retaliation for any protected activity.
Assuming, arguendo, that Hosmer knew that Complainant had
engaged in protected activity prior to questioning his fitness
for duty, I find that Complainant also failed to establish a
primafacie case with respect to the directive to see Dr.
Johnson, because I further find that the directive was not an
adverse action, as it was non-punitive.
In this regard, I find that if Dr. Johnson concluded that
Complainant was fit for duty, that would have ended the matter.
If Dr. Johnson concluded otherwise, a course of treatment would
have been prescribed to return Complainant to a fit-for-duty
status. In this context, I find that Complainant was free to
appeal any determination made by Dr. Johnson and submit to the
Company an evaluation by a psychologist of his own choosing.
I find that FPL had a reasonable suspicion that
Complainant's fitness for duty may be questionable because
important aspects of his performance were repeatedly below
average and he had discussed his stress, fatigue and medical
problems with numerous people. Under these circumstances and
because of NRC regulations require an inquiry into an employee's
fitness for duty, I find that FPL acted reasonably and within
their regulatory mandate in requesting a fitness-for-duty
evaluation of Complainant.
[PAGE 51]
In the context by which the directive to take the fitness-
for-duty evaluation was issued, I find that Hosmer did not direct
Complainant to take the test because of his alleged protected
activity. I find that when Hosmer decided to have Complainant
evaluated by Dr. Johnson, he did not know that Complainant had
gone to NSS. I further find that Complainant did not contact the
NRC until after Hosmer made the decision to question his fitness
for duty. Accordingly, I conclude that Complainant failed to
establish a primafacie case with respect to the directive
to see Dr. Johnson.
Complainant also alleged that FPL discriminated against him
by giving him poor performance evaluations and more frequent
performance evaluations. Because of the ERA's thirty-day statute
of limitations applicable to this proceeding, I find that the
only evaluation within the actionable period was Complainant's
July 30th review prepared by Mr. Pagnozzi, wherein Complainant
received an overall rating of 90%. I find that this review was
not Complainant's annual review, but was an interim review being
used as a tool to help Complainant improve his performance by
giving him periodic feedback on his work. I find that the review
included a detailed statement prepared by Pagnozzi at Hosmer's
direction, explaining how Complainant could improve his
performance. RX 21 at p. 5. Because the review was written to
help Complainant improve his performance, I find that it did not
constitute adverse action under the ERA. Therefore, I conclude
that Complainant failed to establish a primafacie case
with respect to that allegation.
Complainant's testimony on direct examination indicates
that he believed that the accelerated review process was a form
of retaliation in that he was not placed on accelerated
performance reviews after receiving a 90% rating from Mr. Wade in
1991, but only after he advocated certain projects allegedly
having safety implications. TR 48-50. I find, however, that
upon receiving the 90% rating in 1991, Complainant was not placed
on accelerated reviews. I further find that it was only after
Complainant initiated an appeal of his rating to Hosmer, and only
after Hosmer decided to increase his rating that Complainant was
placed on accelerated reviews. Complainant did not appeal his
1989 rating to Mr. Hosmer. I find that Hosmer placed Complainant
on accelerated reviews to help him improve his performance
through feedback from supervision. Accordingly, I conclude that
Complainant receiving accelerated reviews in 1991 does not
constitute illegal discrimination or retaliation.
[PAGE 52]
I find that the only adverse action taken by FPL was that
it discharged Complainant. I find that the adverse action was
taken because he twice refused Hosmer's lawful order to see Dr.
Johnson. This order warned Complainant that his "failure to
attend this appointment will result in disciplinary action, up to
and including discharge." RX 47. I find that the failure of
Complainant to comply with was clearly insubordinate. I find
that adverse action about which Complainant now complains would
not have happened if he had kept the appointment with Dr.
Johnson.
I find that the proper course of action was for Complainant
to comply with Hosmer's directive for a psychological evaluation.
Hosmer was acting within the scope of his authority and his
directive was reasonable in light of the mission of the Employer
and the NRC regulations governing such matters as having senior
engineers fit for duty. See 10 CFR §26.20(a).12 Additionally,
I find that Complainant could have appealed any adverse finding
made by Dr. Johnson.
I find that requiring a psychological evaluation is a
legitimate management decision. I note that the NRC's
regulations require that new employees of a licensee undergo
psychological assessments prior to being granted unescorted
access to the radiation controlled areas of a nuclear power
plant. 10 C.F.R. §73.56(b)(2)(ii).
______________________
12/ Section 26.10(a) of the regulation sets forth, in part,
the purpose behind the requirement that licensees establish
fitness-for-duty programs. That section provides that the
objective of a fitness-for-duty program is to [p]rovide
reasonable assurance that nuclear power plant personnel will
perform their tasks in a reliable and trustworthy manner and are
not under the influence of any substance, legal or illegal, ormentally or physically impaired from any cause, which in any way
adversely affects their ability to safely and competently perform
their duties. . . . 10 C.F.R. §26.10(a) (emphasis added).
_______________________
[PAGE 53]
In accordance with the NRC's fitness-for-duty regulation,
FPL has established a fitness-for-duty program. RX 41. FPL's
program addresses not only drugs and alcohol, but also other
factors to ensure that personnel are fit for duty in a nuclear
plant. TR 838-839. The Company's fitness-for-duty policy
provides, in part, as follows:
Psychological testing, observation of per-
formance, drug/alcohol abuse testing and
background checks may be used to ensure
the fitness for duty of employees.
I find that under the NRC's regulations and the Company's
fitness-for-duty policy, Hosmer had the responsibility to see
that the people working for him were fit for duty. I further
find that if company supervision fails to recognize a potentially
unfit employee and a safety-related incident occurs, the Company
is held responsible by the NRC. In such a case, aside from the
potential safety risk, the Company can be fined or even lose its
license to operate its nuclear power plants. TR 725, 735-736,
841.
I find that Complainant worked as a Senior Engineer, and,
in the interest of nuclear safety, it is necessary that such
persons be able to make sound judgments in order that they can
perform their tasks in a competent manner. I further find that
Hosmer ordered the psychological evaluation to have an expert
determine whether Complainant was fit for duty.
In tracing the events that led to Complainant's dismissal,
I find that Complainant did not present evidence sufficient to
raise an inference that he received a 90% rating on his July 30th
review because of any alleged protected activity. On the
contrary, I find that the evidence established that the ratings
in the individual categories were similar to previous reviews
received by Complainant, some of which occurred before any
alleged protected activity. Moreover, the 90% overall rating was
not unique to that review. RX 1(I). I further find that
Complainant conceded that he received that rating before he
[PAGE 54]
raised any nuclear safety concerns. TR 155-156.
I find that on the July 30th review, Complainant received
below average ratings in the following four individual
categories: judgment/problem analysis; organization and
planning; dependability; and cooperation. RX 21 at pp. 2-3. I
further find that Complainant had previously received below
average ratings in those categories on other reviews. He
received a below average rating in judgment/problem analysis in,
inter alia, 1989. RX 1 at p. 34. Similarly, Complainant
received a below average ratings in organization and planning in,
inter alia, 1988 and 1989. RX 1 at pp. 30, 34. Complainant also
received a below average rating in the dependability category on
his 1988 review. RX 1 at p. 31. Finally, Complainant received
below average rating in cooperation in, inter alia, 1987 and
1988. RX 1 at pp. 27, 31. As with previous reviews, Complainant
received a good rating in technical/job knowledge. RX 21 at p.
2. Thus, I find that the ratings Complainant received on his
July 30th review do not create an inference of prohibited
discrimination or retaliation. They are consistent with similar
below average ratings he received prior to allegedly raising any
nuclear safety concerns.
I find that Complainant also failed to present evidence
creating an inference of discrimination with respect to the
requirement that he see Dr. Johnson. FPL, as a licensee of the
NRC, is required to take steps to assure that its employees are
fit for duty. The Company's policy must address factors in
addition to drugs or alcohol which could affect an employee's
fitness for duty such as mental stress, fatigue and illness. I
find that Complainant did make statements to supervisors that he
had health problems, was taking medications, was under stress
both on and off the job, and was fatigued. I credit
uncontroverted testimony of Dr. Johnson, the only expert witness
at the hearing, and find that it was reasonable to refer
Complainant for a psychological evaluation under those
circumstances. TR 696-697. I further find that the requirement
that Complainant be psychologically evaluated did not create an
inference of illegal discrimination or retaliation.
[PAGE 55]
I find that the evidence did not create an inference that
Complainant was singled out for the evaluation because of any
protected activity. I further find that the evidence established
that FPL has sent other employees to Dr. Johnson for post-
employment, fitness-for-duty, psychological evaluations. TR 874.
There was no evidence that any of those persons had engaged in
any "whistleblowing" activities. The evidence is to the
contrary. During an extensive inspection, the NRC investigated
that issue and found that there was no correlation between
psychological evaluations and bringing concerns to FPL
management, NSS, or the NRC. RX 35 at p. 46. The Company's own
study reached the same conclusion. TR 468; CX 41. I find that
Complainant failed to establish even a primafacie
case with respect to his allegation that he was wrongfully directed to see
Dr. Johnson.
I find that the evidence presented by Complainant also
failed to create an inference that he was discharged for engaging
in any protected activity. I find that Complainant was
discharged because he was insubordinate by not keeping the
appointment with Dr. Johnson on August 2nd. I find it
significant that FPL did not seize upon that insubordinate
conduct and immediately discharge Complainant. Instead, Hosmer
personally asked Complainant to reconsider his refusal to see Dr.
Johnson.
In addition, FPL also did not summarily reject the
conditions which Complainant thereafter requested in connection
with the psychological evaluation. On the contrary, FPL
consulted with Dr. Johnson to determine if the conditions would
be acceptable to him. Only after Dr. Johnson rejected the
conditions did FPL tell Complainant that they were unacceptable.
I find that Complainant was again insubordinate on August
19th when he refused, for the second time, to see Dr. Johnson as
directed by Mr. Hosmer. Complainant refused to keep the
appointment even though he knew that he could appeal any adverse
finding by Dr. Johnson. FPL Attorney Carr carefully explained
that in writing to Complainant's attorney. RX 28 Accordingly, I
[PAGE 56]
find that Mr. Hosmer made an appropriate management decision in
discharging Complainant. I further find that FPL acted
reasonably in obtaining Complainant's compliance with what it
reasonably saw as its obligation under the NRC's fitness-for-duty
regulations. Therefore, I find that Complainant failed to
establish a primafacie case with respect to his
termination.
Assuming, arguendo, that Complainant had established a
prima facie case with respect to any of the foregoing
allegations, FPL has articulated legitimate, nondiscriminatory
reasons for its actions. I find that FPL established valid
reasons for evaluating Complainant more frequently than once a
year. Complainant had complained to Mr. Hosmer about the below
average annual review he received in February of 1991 from Mr.
Wade. In connection with that complaint, Hosmer decided to
increase his rating to a 100% even though Mr. Smith had reviewed
the bases for the 90% review and assured Hosmer that it was fair.
I find it reasonable that, having changed the review, Hosmer
decided to give Complainant periodic feedback with clear
performance goals and expectations.
I note that it is not disputed that Complainant agreed with
the idea of receiving periodic feedback. TR 227. Moreover, it is
significant that when Complainant complained after his first
monthly review session, Mr. Hosmer agreed to make the reviews
quarterly with fewer people involved. Complainant was evaluated
on July 30th because his performance had declined the previous
appraisal year and Mr. Hosmer wanted to help Complainant improve
his performance by giving him periodic feedback from supervision.
Therefore, FPL has articulated a legitimate, nondiscriminatory
reason for evaluating Complainant more frequently than annually.
I find that FPL has also articulated valid reasons for
giving Complainant a 90% overall rating on his July 30th review.
The review reflects that Complainant's performance was deficient
in a number of areas. Therefore, below average ratings were
warranted. For example, Mr. Pagnozzi rated Complainant below
average in the judgment/problem analysis category. Mr. Pagnozzi
commented on the review that the below average rating was
demonstrated by, inter alia, Complainant's approach to the VCT
calculation. The evidence clearly established that Complainant's
calculation was incorrect. Complainant, however, refused to
reconsider his calculation even though the error was explained to
him on more than one occasion. Finally, Complainant had to be
removed from the project.
[PAGE 57]
Basil Pagnozzi also rated Complainant below average in the
category of organization and planning. In that category, Mr.
Pagnozzi commented that Complainant's below average performance
was demonstrated by his approach to the EDSFI document review
project. I find that the evidence established that Complainant
did not perform that project as he had been directed to do by Mr.
Pagnozzi. Therefore, the 90% rating in that category was
justified.
In the dependability category, Pagnozzi also gave
Complainant a 90% rating. He noted that Complainant failed to
complete his most critical job assignment (the VCT calculation)
during the period of time covered by the July 30th review. I
find that Complainant did not devote three days a week to the VCT
calculation project as he had been directed to do. Therefore, I
further find that Mr. Pagnozzi's 90% rating in that category was
justified.
The testimony at the hearing also established that other
employees have received 90% overall performance reviews and have
been reviewed more frequently than annually. Therefore, I find
that FPL met its burden of production by articulating legitimate,
nondiscriminatory reasons for evaluating Complainant on July 30th
and giving him a 90% rating.
I further find that FPL established a legitimate,
nondiscriminatory reason for requiring Complainant to see Dr.
Johnson: I find that Complainant had reported that he had
medical problems, was taking medication, was under stress, and
was fatigued. There is no doubt that such factors can adversely
affect an employee's work performance. Here, Complainant's work
performance was, in fact, below average. Therefore, I find that
FPL met its burden to articulate a valid reason for directing
Complainant to see Dr. Johnson.
Finally, FPL has articulated a legitimate,
nondiscriminatory reason for discharging Complainant, which was
insubordination on two occasions. Because insubordination is
grounds for discharge, I find that, FPL has met its burden with
respect to all of the actions it took towards Complainant.
[PAGE 58]
Because FPL articulated legitimate, nondiscriminatory
reasons for its actions, Complainant, to prevail, has to prove
that the reasons proffered by FPL were not its true reasons, but
instead, were pretexts. I find that Complainant did not
establish that the reasons articulated by FPL were pretextual.
Complainant did not establish that the reasons stated by the
Company for giving Complainant more frequent reviews, for giving
Complainant a 90% rating on his July 30th review, for requiring
Complainant to see Dr. Johnson, or for discharging him were
unworthy of credence. In this case, Complainant bears the
ultimate burden of persuasion. I conclude, however, that
Complainant failed to establish even a primafacie case of
discrimination or retaliation, nor did he establish pretext on
the part of the FPL.
Complainant contends that FPL retaliated against him for
raising safety concerns. Based on a review of the record
evidence and an assessment of the witnesses' credibility, it is
clear that Complainant failed to prove his case. I find that the
actions taken by FPL were not motivated, even in part, by any
alleged protected activity of Complainant. Therefore, this is
not a dual-motive case. Accordingly, FPL was not required to
show that it would have taken the same actions even if
Complainant had not engaged in any protected activity.
Although Complainant alleged that FPL retaliated against
him, it would not be unreasonable to infer that Complainant was
trying to put pressure on the Company in order to receive higher
ratings on his performance evaluations.
Complainant alleged, inter alia, that FPL retaliated
against him for pursuing tasks which he felt were critical to
nuclear safety such as replacement of the pressurizer pressure
transmitters and the ERDADS isolation project. Significantly, in
the fall of 1990, Complainant did not complain to FPL management,
NSS, or the NRC about any alleged retaliation in connection with
those projects. Complainant's position at the hearing was that
disagreements over replacement of the transmitters and
disagreements about other projects were major disputes in the
[PAGE 59]
department. However, the evidence established that such
engineering disputes occur frequently in the department, and when
a decision is made, employees simply move on to the next concern.
TR 180, 374, 916, 952-953, 954-955, 990-991. Mr. Tio, who was
called as a witness by Complainant, testified that disagreements
on technical issues were commonplace. TR 367, 371-373.
Complainant complained in February of 1991 when he received
his annual review with a below average overall rating. RX 11.
He then composed a seven page letter to Mr. Hosmer blaming the
low rating on a laundry list of alleged wrongs. He claimed that
the review violated the equal employment opportunity laws and his
civil rights "as a member of the Cuban-American minority." RX 12
at p. 1. He claimed that the review also violated "basic
procedural requirements." RX 12 at p. 1. He referred to his
fitness-for-duty protest and stated that his low rating may be a
violation "of my constitutionally guaranteed right to free speech
and expression." RX 12 at p. 1.
Complainant discussed alleged violations of his rights, and
then pointedly stated that his attorney was aware of his fitness-
for-duty protest. Complainant then stated the following:
At present, sir, I regard this incident of my
evaluation, optimistically as an isolated event
that the Company only endorsed in omission by
failure to prevent it from occurring. This is
with the expectation that an equitable retraction
take place and a fair revised evaluation be
completed. RX 12 at p. 2
Complainant did succeed in having his overall performance
rating increased to 100% Significantly, having then obtained
what he wanted, Complainant did not go to the NRC or NSS with any
supposed nuclear safety concerns, or to the EEOC with any claim
of ethnic discrimination.
At the time of Complainant's April 30th review, Complainant
still had not taken any alleged nuclear safety concern to either
the NRC or NSS. However, on April 30th, Mr. Hosmer attended
[PAGE 60]
Complainant's review session, and Complainant received another
90% rating. Significantly, Complainant admitted on cross
examination that he may not have gone to NSS if he had received a
100% rating. TR 274, 343.
Complainant received another 90% rating on his July 30th
review. At this session, Complainant was directed to submit to a
psychological fitness-for-duty evaluation. Complainant failed to
attend the first scheduled meeting with the psychologist.
Complainant then advised supervision that he was taking his
alleged nuclear safety concerns to the NRC. In addition,
Complainant's attorney intimated to the Company's attorney that
there were other nuclear safety issues which Complainant had not
yet revealed.
Notwithstanding these events, Complainant was discharged
when he again failed to attend the appointment with Dr. Johnson
on August 19, 1991.
Employer contends and I agree that it is ironic that
someone who claims to have safety concerns would balk at the
requirement that he be evaluated in the interest of nuclear
safety. Complainant's attempt to intimidate the Company by
bringing, and threatening to bring, concerns to the attention of
the NRC and to NSS is clearly a misuse of the employee protection
provision of the ERA. The employee protection provision of the
ERA is an important part of that Act. Its aim is to avoid a
catastrophe by encouraging employees in the nuclear power
industry to report perceived safety violations in good faith
without fear of retribution. See, e.g., Rose v. Secretary
of Labor, 800 F.2d 563, 565 (6th Cir. 1986) (concurring opinion of
Senior Circuit Judge Edwards). The real protections provided by
the "whistleblower" provision are made trivial when an employee
whose performance is declining threatens to raise alleged nuclear
safety concerns as a device to have management give him higher
performance ratings.
I find that the actions taken by FPL demonstrate that the
Company was not discriminating or retaliating against
[PAGE 61]
Complainant. Instead, the Company was trying to help an eleven-
year employee in whom it had a lot invested. TR 800.
I agree with Respondent and I find that if the Company was
retaliating against Complainant because he advocated certain
projects or because of his contacts with NSS and later with the
NRC, it is unreasonable to believe the following actions would
have been taken: (1) move Complainant to PEG where his job
assignments would more closely match his principal strength which
was in I&C design development rather than oversight functions;
(2) give Complainant the assignment of drafting a training manual
on the new Westinghouse setpoint methodology for the Turkey Point
Plant and also teaching a course on that methodology; (3)
increase the overall rating on his 1991 annual performance
appraisal; (4) counsel him on several occasions to take advantage
of the Company's EAP; (5) provide him, at his request, a draft of
a written performance improvement plan to help him improve his
performance to a 110% level; (6) provide him with periodic
feedback as to his job performance to help him improve; (7) tell
Mr. Barrow that Complainant was a good employee whom the Company
did not want to loose; (8) encourage Mr. Barrow to meet with him;
(9) afford Complainant time off from work to attend numerous
sessions with Mr. Barrow; (10) switch Complainant's performance
reviews from monthly to quarterly at his request; (11) provide
three full days of red badge training to him just two weeks
before his July 30th review; (12) send Complainant to a stress
management seminar during work time; (13) write goals for
Complainant to improve his performance in four areas on his July
30th review; (14) permit Complainant's attorney to attend the
July 30th review session; (15) postpone the psychological
evaluation (originally set for July 31st) to August 2nd at the
request of Complainant's attorney; (16) suggest to Complainant
that he take two days off from work before the psychological
evaluation so that he would be rested for the session; (17)
explain the appeal process to Complainant in writing; (18) give
him a second chance to take the psychological evaluation even
though the Company could have terminated him for insubordination
after his first failure to see Dr. Johnson; and (19) not reject,
out of hand, the conditions he requested in connection with the
psychological evaluation, but consult with Dr. Johnson regarding
those conditions. Accordingly, it is concluded that the
Complaint, as amended, is without merit.13/
RECOMMENDED ORDER
For the reasons stated above, it is recommended that the
instant Complaint, as amended, be dismissed in its entirety.
_____________________________
ROBERT G. MAHONY
Administrative Law Judge
Dated:
Washington, D.C.
__________________________
13/ Complainant's Supplemental Memorandum of Law dated
September 14, 1993 is received and is part of the record. Motion
to Strike is denied.
__________________________
