Thus, the issue to be resolved is narrowed: did GSU retaliate against Complainant by not selecting him for the SRO upgrade program for February, 1992?

Joseph A. Venable. Jr.

   Mr. Venable has been the operation supervisor for GSU for two years, in the operations department for four years, and with GSU for twelve years, and is an SRO. He stated that Complainant is an honest operator and good worker.

   On June 28, 1991, he authored a warning letter to for impeding an investigation and secretly taping specifically chastising him for that taping, and urging Complainant to "not become distracted by personal objectives." (CX 10).

   On October 25, 1991, Mr. Venable authored a memorandum, later included in Complainant's file, disciplining him for failing to complete an inspection as required and failing to following imminent danger guidelines or immediately inform his supervisor of the circumstances. (CX 4).

   Mr. Venable testified that

Mr. Kettle has demonstrated that he is distracted by his failure to continue in the upgrade program. I think if you were to start interviewing or examining or questioning many, many individuals in here, you will find that Mr. Kettl will freely talk to everyone or anyone that he possibly can about his displeasure with Gulf States, their methods, his failure to go in the upgrade program.

(Tr. pp. 51, 52).

   While Mr. Venable was testifying, GSU stipulated that Complainant has made numerous in-house condition reports detailing safety concerns, both valid and invalid. (Tr. pp. 90-91). Mr. Venable also testified that nearly all of the other operators have made such condition reports, and that he knows of no adverse employment actions resulting from such condition reports. (Tr. pp. 134-135).

   Mr. Venable explained that although at one point Complainant had been passed by the NRC for the SRO upgrade, as a result of GSU's high licensure failure rate, GSU's examination is more stringent than that of the NRC. He stated that although Complainant is fully qualified as a reactor operator, an SRO requires more than technical expertise. (Tr.

pp. 138-143). Mr. Venable actually observed the reason that Complainant failed his examination, that is, he needed to improve in the area of "command and control," the failure of which had led to the incident at Three Mile Island. Claimant could not be upgraded sufficiently to put him into the next class in February. (Tr. pp. 144-160). By the date of the requalification examination (the date in question), he was not aware of any contact between Complainant and the NRC. (Tr. p. 161).

   Mr. Venable stated

[Complainant] does have to change his ways to be a licensed SRO. A licensed SRO has to be open minded; cannot take autocratic positions. He has demonstrated good [command and] control, and we felt that Mr. Kettl, based on his evaluation from training, had to improve his abilities in the command and control function. He did have to change his characteristics to be able to pass that portion of the evaluation for an SRO upgrade. That's exactly what we're talking about.

(Tr. p. 143).

   He stated that Complainant has become distracted by things irrelevant to the workplace. For example,

What I consider to be irrelevant is Mr. Kettl talking to, say, a GE contractor that he's going to be suing Gulf States for 1.3 million dollars while he's in the fuel building supposedly overseeing them moving the radiated nuclear fuel. To me that is irrelevant, it's not germane to the issue and the job at the time, and in fact that could be a distraction that could cause an incident to occur. That's the things I'm referring to.

(Tr. p. 52).

James Edward Boyle

   Mr. Boyle was Complainant's former shift supervisor, and considers himself a friend of Complainant. He had previously recommended Complainant for SRO upgrade, but did not do so recently because Complainant does not have "good rapport" with upper management. (Tr. p. 165). He characterized Complainant as resentful because he was under the impression that the upgrade was a certainty. (Tr. p. 168). He stated that no one ever told him that Complainant was writing too many condition reports. (Tr. p. 180). He does not know of any incident of retaliation arising from any employee making a complaint to the NRC. (Tr. p. 183).

   He stated: "I just really suggested he

might be better off trying something else, and that I felt if he could get along with his superiors better, which I know he can, then he would be allowed to go back to [upgrade] training. There's no doubt in my mind." (Tr. p. 173).

Terry Wymore

   Mr. Wymore was a member of the same crew as Complainant and is also a control room operator. He stated that Complainant got along well with his fellow shift workers, but Mr. Wymore had no knowledge of Complainant's relationship with his superiors. (Tr. pp. 183185).

   On October 15, 1991, Mr. Wymore refused an inspection due to an improper shoe heel. Mr. Wymore and the shift foreman signed off on the log. (Tr. pp. 188-189). He was not disciplined. (Tr. p. 189). He also testified that he has seen two of his superiors with unauthorized (photographic) materials in the control room, and at the time brought this to their attention. (Tr. p. 90).

   Mr. Wymore stated that he has written safety reports and has never been retaliated against by upper management for doing so, and that he is encouraged to identify a problem with a condition report. (Tr. pp. 1989-199). He also testified that he has gone to the NRC, on company time, to report situations not addressed by GSU, and that he has never been retaliated against for doing so. (Tr. pp. 201-202).

James W. Mott. Jr.

room when it was operational. (Tr. pp 224-225). He was not aware that the NRC is involved in the SRO requalification examination. (Tr. p. 226).

Complainant

   Complainant testified that he has worked for GSU for 19 years, and has been a licensed control room operator for six years. (Tr. pp. 236-237). Presently, his license has been restricted due to a medical condition. (Tr. p. 237). He also testified that his past complaints (prior to February 3, 1992) to the NRC occurred three to three and one-half years ago, and that he brought about 12 more concerns to the NRC "recently." (Tr. pp. 238, 248-249).

   Claimant testified that he reminded a Mr. Loveless, the NRC resident inspector, on some unspecified date, that he should not wear tennis shoes in the control room. He stated that later, Mr. Bill Trudell, plant assistant operations supervisor, asked him what he discussed with Mr. Loveless. Complainant said he replied that he had ordered Mr. Loveless to leave the control room, due to improper footwear. He said he felt that Mr. Trudell disapproved, based solely on "facial expression." (Tr. pp. 253-254).

   Claimant stated that he felt he unjustly received the reprimand of October 25, 1991, for failure to inspect, because others without proper footwear had not been reprimanded. (Tr. pp. 255-260).

   Claimant admitted that he tape recorded a conversation with his supervisors, under circumstances that were not made entirely clear at the hearing. (See Tr. pp. 256-257, 261).

   Claimant testified that he reported health and safety concerns to the NRC, and it was they who suggested he contact the U.S. Department of Labor, Wage and Hour Division. (Tr. p. 260). He believes his being bypassed for SRO upgrade on February 3, 1992, is related to his internal complaint (condition report 920065). There is no evidence that he complained to the NRC before the SRO upgrade selection was made. In fact, he admitted that he complained to the NRC subsequent to his finding out he had not been placed in the SRO upgrade program. (See Tr. pp. 260-261, 268-269). He stated that he had no evidence that anyone knew at any time that he had gone to the NRC. (Tr. p. 269).

   Claimant stated that he believed that GSU had an open-door policy of reporting problems to management, and that on one occasion (date not given) he complained of problems to one of GSU's vice presidents during a casual chance meeting, specifically, that he was bypassed for the upgrade.

   Claimant also admitted that regarding his "internal" complaints to GSU about safety violations, he was aware that GSU was already aware of and trying to correct some of the problems. (Tr. pp. 270-272). He stated that he was aware that other individuals, including Messrs. Wymore, Venable, and Trudell, write condition reports (internal reporting of health or safety concerns), and that he is not aware of any retaliation against them of any other employee for doing so. (Tr. pp. 273-274). Complainant believes that he has been retaliated against because some of his condition reports deal "problems I've had directly with my manager." (Tr. p. 278).

Phil Graham

   Mr. Graham is the plant manager at River Bend, and has been with GSU for 12 years. He was an SRO from 1986 to 1990. (Tr. pp. 283-285). He directly oversees the operations group. (Tr. p. 285).

   He stated that an individual has the option of identifying himself on a condition report. He also testified that GSU has an "open door policy" for reporting concerns to management. (Tr. p. 288). He is not aware of any cases of "true" retaliation at the plant. (Tr. p. 289).

   Mr. Graham testified about the criteria and responsibilities of an SRO, including operating the controls, judgment, decisionmaking ability, and leadership qualities. It is not based solely on past performance, and only if two candidates were equal in all categories would seniority become a factor. (Tr. pp. 290-292).

   He testified that two of Complainants major "internal" complaints were already known to GSU prior to his raising the issues. (Tr. pp. 297-299).

   Mr. Graham explained that the SRO upgrade training program is that of GSU, not the NRC, and that although the NRC may have passed Complainant based on his technical ability, the criteria of the two entities differs. He observed Complainant's errors in judgment on the last testing, which led to his failure by GSU. (Tr. pp. 305-309).

   He stated that he had heard rumors that Complainant had gone to the NRC, but after his non-

selection for the SRO upgrade program on February 3, 1992. (Tr. p. 313).

William Trudell

   Mr. Trudell has been the assistant operations supervisor for about two years. The shift supervisors report to him directly. He described the SRO upgrade program as basically a selection process based on recommendations of seven shift supervisors. Those with the most recommendations are chosen for SRO upgrade training. (Tr. pp. 315-326).

Gary DeGraw

   Mr. DeGraw is employed by GSU as a nuclear training representative license [sic]. He was involved in the NRC requalification examinations as an evaluator in the simulator dynamic scenarios, which were created by the River Bend training department. He explained that when Complainant was in the simulator for his requalification examination

They had a requirement, procedural requirement for the EOPs to emergency Repressurize the reactor vessel. And during that evolution, Mr. Kettl had problems establishing feed water flow to the vessel, and he allowed reactor water level to drop down to the level that would cause an automatic protector system actuation, and an engineer safety feature actuation. It wasn't in accordance with the procedural guides to allow that to occur....He also secured some heater drain pumps not according to procedure. He allowed them to trip on their own. Also recirculation pumps were allowed to run for a period of time without cooling water when the natural, or proper action would have been to secure them at the time.

(Tr. pp. 331-332).

requal phase." He was also aware that Complainant was passed by the NRC. (Tr. p. 337).8 He also stated that although Complainant "for the most part meets our...basic requirements as far as performance" he has had "problems with consistency in the last four to five modules for training as far as being able to consistently meet the standards that we put in place on a first-time basis." (Tr. p. 338). He became aware that Complainant had made complaints to the NRC "in the last few weeks" because Complainant had told him, but was not aware of any contact between Complainant and the NRC prior to the requalification procedure. (Tr. p. 339).

   He explained that the GSU program incorporates both the NRC guidelines and the Institute for Nuclear Power Operations (INPO) guidelines. INPO is a self-regulating organization consisting of employees of various utility companies, and which works in concurrence with the NRC "to strive for excellence." (Tr. p. 341).

   In order to establish a prima facie case of retaliation, Complainant must prove each of the following four elements: 1) the employee's engagement in a protected activity; 2) the employer's awareness of the employees' engagement in a protected activity; 3) the employer's subsequent employment action adversely affecting the employee; and 4) that the adverse action followed the protected activity so closely in time as to justify an inference of retaliatory motive. See Couty v. Dole, 886 F.2d 147 (8th Cir. 1989. Under the ERA, the Complainant always bears the burden of proof or persuasion that intentional discrimination has occurred. Darty v. Zack Co., 82-ERA-2 (April 25, 1983), applying Texas Department of Community Affairs v. Burdine, 450 U.S. 248 (1981).

   Protected Activity

   This cases arises within the jurisdiction of the Fifth Circuit U.S. Court of Appeals. In Brown & Root, Inc. v. Donovan, 747 F.2d 1029 (5th Cir. 1984), the Court held that "employee conduct which does not involve the employee's contact or involvement with a competent organ of government is not protected under Section 5851," and does not apply to protect employees from repercussion from the filing of purely internal quality control reports or complaints.

   This Court is well aware, however, that in other jurisdictions, the filing of purely internal quality control reports is considered a covered activity under Section 5851 of the ERA. (See e.g. Mackowiak v. University Nuclear Systems. Inc., 735 F.2d 1159 (9th Cir. 1984).

   In the present case, however, it is not necessary to choose between these standards. Under either view, Complainant has not presented even a prima facie case for retaliation.

   It is clear that Complainant did at some points in his career with GSU engage in a protected activity. That is, threeto three-and-one-half years before the alleged retaliatory act of February 3, 1992, Complainant did make a report to the NRC. The outcome of that complaint is not relevant nor is it part of the present record. All parties are in agreement that Complainant wrote numerous "condition reports," some of which dealt with safety and quality control concerns, and apparently some of which dealt with his alleged unfair treatment by the company or his disagreements with supervisors over non-safety-related matters.

   It is also abundantly clear from the record that Complainant went to the NRC for the second time with his list of safety and other concerns after he found out that he would not be selected for the SRO upgrade program on February 3, 1992. Thus, although this could be considered a "protected activity," this Court holds that Complainant's reports to the NRC after the alleged retaliatory act, or rumors that he "gone to the NRC" (which this Court finds to have been fueled by Complainant himself), and which all witness who stated they had heard rumors testified they had heard after the alleged retaliatory act, are not relevant to the present inquiry.

   Even under the Mackowiak standard, Complainant's condition reports would not likely constitute "protected activity," in light of the fact that Complainant apparently highlighted conditions which were considered either minor infractions or had already been reported by others.

   However, because Complainant did make contact with the NRC some years prior, and did write condition reports identifying safety concerns, Complainant has presented the threshold evidence needed to establish part one of the four-part test for a prima facie case.

    Knowledge of Protected Activity

   There is no evidence of record that anyone at GSU had any knowledge of Complainant's reporting of safety or quality control concerns to the NRC (other than Complainant's vague discussion with Mr. Loveless in full view of others at the plant) at any time prior to the alleged "retaliatory act;" i.e. the February 3, 1992 nonselection for SRO upgrade training. The overwhelming weight of the evidence shows that Complainant went to the NRC on February 3, 1992 after finding out that he had not been selected for the

upgrade training. Under Brown & Root, the case would be dismissed and is hereby recommended for dismissal for failure to meet the second prong of the prima facie case.

   Under Mackowiack, however, it is hard to imagine the case of an employee at GSU who would not have been found to have engaged in a protected activity and, for those who sign their names to the condition reports, that the company could ever be found not to have knowledge of the condition reports (protected activity). Even Complainant testified about GSU's "open door policy" for reporting complaints and safety concerns. All of the GSU employees testified that they themselves had filed condition reports. Thus, every filed, signed condition report or safety complaint qualifies as a "protected activity." Under this standard, then, Complainant, and probably every GSU employee, can be found to have engaged in a protected activity for which GSU had knowledge.

    GSU Action Adversely Affecting Complainant

   The only action taken by GSU complained of by Complainant, that is not now time-barred, is the non-selection, or bypassing, of Complainant for the February 3, 1992. GSU has conceded that this is employer action which arguable adversely affected Complainant (essentially denying him advancement opportunity), and that this fact was established on the record. See Brief for Respondent at p. 16.

    Temporal Proximity

   Complainant admitted that his only contact with the NRC which preceded his non-selection in February, 1992, was many years prior, and that he had no proof that GSU was in any way aware of this contact. In the interim, Complainant was selected for upgrade training and attended training and testing. This many-year gap cannot be considered temporal proximity, and under Brown & Root, no inference can be drawn from any temporal relation.

   It is clear from the record that Complainant's complaints about procedure and condition reports were steady over time. Complainant's rambling account of an alleged incident in late

January or early February, which he apparently believes led up to his latest non-selection, is thoroughly confusing, unsubstantiated, and simply not credible. Over the years, many condition reports were written, and Complainant was still given many opportunities for advancement. Complainant's condition reports were not proven to be any more numerous than any other employee, nor did he report any serious condition of which GSU

was not already aware. Thus, under the Mackowiack standard, Complainant has not proved the fourth element of his prima facie case.

   Complainant has not succeeded in proving that he was in any way retaliated against or treated any differently than any other GSU employee. Other employees testified that they were not retaliated against for actions similar to those of Complainant. In fact, the testimony of Mr. Wymore, Complainant's own witness, seriously undermined Complainant's "conspiracy" theories.

   Whatever the minimum qualifications the NRC has set for SRO training and testing, GSU has the right to set more stringent standards based on field conditions, and it has done so. Complainant has presented no proof that these standards are not applied uniformly. He is understandably angry that employees equal to or with less seniority are being placed in and passing the SRO upgrade. Some of those employees, however, like Mr. Wymore, have gone to both the NRC and written condition reports--with GSU's knowledge, and still were placed in the upgrade.

   The union also believes that SRo upgrade should be based solely on the basis of seniority. Only 2 of 56 SROs at GSU, however, are contract employees. This is a philosophical difference of opinion between union and management, but is not a matter for resolution by this Court in the case at bar.

   The evidence shows that although there is no real dispute about his past performance as a CRO, supervisory positions require more than just technical skill. They require skill under pressure. In short, through his testimony, and by way of the testimony of others, it is apparent that Complainant's downfall is that he at times shows poor judgment in stressful situations and in dealing with his superiors, and is "autocratic."

   It is clear from the record that his superiors' opinions of him began to become negative after Complainant surreptitiously tape recorded a conversation, and complained to the vice-president of the corporation, without prompting, about his mistreatment by GSU. Neither of those actions, however, is a protected activity which supports a cause of action in the present case.

   The Court also finds that GSU would have had an independent basis for not recommending Complainant for the February, 1992 upgrade training, even if he had not engaged in protected

activity. See Price Waterhouse v. Hopkins, 490 U.S. 228, 258 (1988) (plurality opinion); Mt. Healthy City School District Board of Education v. Doyle, 429 U.S. 274 (1977); Dunham v. Brock, 794 F.2d 1037 (5th Cir. 1986); Mackowiak, supra. That is, in February, he was not recommended by the majority of his supervisors, due to his inability to "get along" with his superiors, as evidenced by the two incidents highlighted in the preceding paragraph. It also seemed apparent to all but Complainant that he would have eventually been allowed back into the upgrade program, but for the poor judgment he showed in reaction to his non-selection in February.

   In sum, Complainant has not met his burden of proof or persuasion in proving a retaliatory employment action.

   As Complainant has failed to prove a retaliatory employment action, it is hereby recommended that the complaint of Lonnie Kettl be DISMISSED with each party to pay its own costs, expenses, and attorney's fee.

   Entered this 30th day of December at Metairie, Louisiana.

      JAMES W. KERR, JR.
      Administrative Law Judge

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