Date: June 3, 1994
...............................
:
In the matter of :
:
TERRY DYSERT, :
:
Complainant :
: Case No. 93-ERA-21
v. :
:
FLORIDA POWER CORPORATION, :
:
Respondent. :
:
...............................
APPEARANCES:
Stephen Kohn, Esq.
David Colapinto, Esq.
For Complainant
Lewis Sapp, Esq.
Ronald E. Gaddy, Esq.
Gerald A. Williams, Esq.
For Respondent
BEFORE: EDITH BARNETT
Administrative Law Judge
RECOMMENDED DECISION AND ORDER
I. INTRODUCTION
This proceeding arises under the employee protection provi-
sions of the Energy Reorganization Act of 1974, as amended, 42
U.S.C. §5851 (the ERA). The issues for resolution are:
1. Is complainant a covered employee under the ERA?
2. Do the 1992 ERA amendments apply retroactively to
render timely complainant's otherwise untimely
[PAGE 2]
complaint?
3. Has complainant established a violation of the
ERA?
The complainant is Terry Dysert, a nuclear engineer. He was
born on February 26, 1949. He has a B.S. degree in general
engineering from the University of Illinois in 1972, a Master's
degree in industrial management from Xavier University in Cincin-
nati, Ohio, in 1975, and 50 or 60 hours towards a Master of
Science Degree in nuclear engineering from the University of
Cincinnati. Prior to his employment with FPC, he had worked in
the field of nuclear engineering for 15 years. (T. 22, 124; RX-14
pp. 9-10; RX 20).[1]
The respondent in this case is Florida Power Corporation
(FPC). FPC operates a nuclear power plant in Crystal River,
Florida, Crystal River Unit 3 (CR-3), where complainant was
employed through Energy Services Group of Williamsburg, Virginia
(ESG) on a one-year contract beginning January 6, 1992. He was
terminated approximately six months later on July 3, 1992. He
contends that his termination constitutes unlawful retaliation
for protected whistleblower activities.
FPC argues that Dysert's complaint is untimely, that his
activities at issue were not protected, and that his discharge
was not retaliatory, but was part of a general layoff of supple-
mental temporary personnel in response to budgetary overruns
associated with an outage at the plant. An outage is a planned
shutdown of a nuclear power plant, usually for seven to eight
weeks, for refueling and maintenance. CR-3 started an outage
("Refuel 8") on April 30, 1992, which began winding down in mid-
June, 1992. (T. 161-63, 208-209, 393-5; RX-15, pp. 2, 4, 6, 8;
RX-23).
Dysert filed his ERA complaint against FPC on December 11,
1992, asserting that his termination was retaliation for making
internal complaints to FPC management about procurement of safety
related equipment and for his activities as a whistleblower
against other companies. Dysert's complaint was received by the
Department of Labor (DOL) on December 14, 1992. On January 22,
1993, the Assistant District Director of the Tampa District
Office of DOL's Wage and Hour Division notified complainant that
its fact finding investigation had not substantiated his allega-
tions because:
Your termination was found to be a decision by Florida
[PAGE 3]
Power Corporation to extend the services of Mr. Varner [another
contract engineer] an additional six months, and to terminate
your contract six months early.
Dysert timely appealed these findings and requested a hearing.
After due notice, I held a hearing in this matter at
Wilmington, Delaware, on February 18-19, 1993. All parties were
represented by counsel and had a full opportunity to offer oral
testimony and documentary evidence. On May 10, 1993, after the
hearing, complainant took a telephone deposition of Oscar De
Miranda, senior allegations coordinator at Region II of the
Nuclear Regulatory Commission (NRC). It is received in evidence
as Complainant's Exhibit 27. The parties' post hearing briefs
and proposed findings of fact and conclusions of law have also
been considered. The record consists of the transcript of the
proceedings ("T."); Administrative Law Judge's Exhibit ("ALJX")
1; Respondent's Exhibits ("RX") 3-10, 12-18, 20, 22-23, 25, 27,
29; and Complainant's Exhibits ("CX") 1-7, 12-17, 19-24, 27. CX-
25 for identification was rejected and has not been considered,
but is included in the record as complainant's offer of proof.
(See T. 421).
II. FINDINGS OF FACT AND CONCLUSIONS OF LAW
A. Factual Background
1. Complainant's Hire by FPC
FPC uses ESG and several other employment agencies to supply
supplemental personnel in a number of job classifications,
including senior nuclear engineer, to accommodate substantial
fluctuations in its staff needs due to outages. (See RX-
14, pp. 12-15; RX-15, pp. 4,6, 33-36; T. 334). FPC executed the
contract with ESG which led to Dysert's employment on February 6,
1991, and added several written amendments thereafter. The con-
tract provided for ESG to supply FPC with 19 job classifications
of supplemental personnel, including 9 separate nuclear engineer
classifications. Personnel provided to FPC were stated to be
ESG's employees. FPC reserved the right to set their hours of
work, to terminate them during their first five days for unac-
ceptable performance without pay, and thereafter to terminate
them with pay at any time for cause or due to early completion of
the work. (RX-25 pp. 3, 6, 8, 12-16, 18, 131-132 (pars. III,
VIII), 146-150, 153).
On October 30, 1991, FPC sent ESG, as well as its other
employment agencies, a "request for resumes for staff augmenta
[PAGE 4]
tion" for a senior Nuclear Engineer position in the electri-
cal/Instrument & Controls (I&C) section of the Nuclear Procure-
ment Engineering Services department (NPES) of CR-3. In addition
to the electrical/I&C section, NPES also has a mechani-
cal/structural section. NPES is part of the Site Nuclear Engi-
neering Services Organization (SNES) of the Nuclear Operations
Engineering and Projects Division of CR-3. Resumes for the posi-
tion were to be submitted to D.E. Porter, FPC's contract manager,
and to Jim Colby, the manager of NPES. (RX-14, pp. 11, 18; ALJX-
1, pp. 1,2,4; T. 204-6, 328-30, 333).
On November 14, 1991, ESG submitted Dysert's resume to FPC.
(RX-14, pp. 8A[2] , 9, 10). On December 9, 1991, FPC sent ESG a
request to hire him, and, on December 10, 1991, ESG responded
with a proposal for providing his services. (RX-14, pp. 3,4,6-8).
On December 30, 1991, FPC prepared a work authorization for
Dysert. It states that he was hired as "staff augmentation" in
"an approved peak position." (RX-14, pp. 1-2; T. 334-5). Dysert
then signed a contract with ESG. (CX-1; T. 25-28).
The contract between Dysert and ESG provided that it was
"the sole and entire agreement between [Dysert] and ESG in
connection with [his employment at FPC] and supersede[d] all
prior and contemporaneous understandings or agreements, written
or oral." (CX-1, par. 12). The term of Dysert's employment could
be extended and the agreement modified only by written agreement
with ESG. (CX-1, pars. 5,7). ESG could terminate his employment
for cause at any time, and either he or ESG could elect to termi-
nate his employment with or without cause on thirty days written
notice. (CX-1, par. 5; T. 25-26). These provisions did not apply
to FPC, which, as discussed above, could terminate Dysert without
regard to ESG's actions.
During his employment at FPC, Dysert recorded his hours
worked on ESG time sheets. He submitted them for approval to
John Sipos, who signed them on behalf of Jim Colby. ESG then
submitted bills for Dysert's services to FPC's contract adminis-
trator. (RX-14, pp. 24-53).
John Sipos was Dysert's immediate supervisor. He has been
employed by FPC since 1983, and has served as a senior nuclear
procurement engineer at CR-3 since August, 1990 and as lead
engineer for electrical/I&C since June, 1991. He reported to Jim
Colby, who reported to Hugh Gelston, the acting manager of SNES.
Colby had been with FPC for 23 years. His predecessor as manager
of SNES was Earl Welch, whose signature appears on some of the
exhibits. (T. 202-6, 328; ALJX-1 pp. 2,4).
[PAGE 5]
At the time Dysert began work at FPC in January, 1992, in
addition to lead engineer John Sipos, the electrical/I&C section
of NPES had three permanent FPC senior nuclear procurement engi-
neers, Barry Chastain, Gary Reynolds and Butch Bernaby, and
another contract engineer, Steve Taylor. The next month, Febru-
ary 1992, Tom Varner was also hired through ESG into the Electri-
cal/I & C section as a senior nuclear procurement engineer, but
for a six-month contract only, to expire on July 31, 1992.
Varner's hiring procedures and arrangements with FPC were the
same as Dysert's. (Compare RX-14 and RX-15). In that same month,
Howard Leon was hired from a contractor other than ESG for a six-
month contract as a senior procurement engineer in the mechani-
cal/structural section of NPES, which also had three permanent
senior engineers. (T. 208, 209, 343, 353).
Although Dysert testified that "there were positive indica-
tions" that he might "roll over" to another contract or to a
permanent position as had been done for others in the past (T.
24), he did not elaborate in testimony or provide any additional
details as to who offered these indications. The contract he
signed with ESG does not include any promise of continuing
employment. Jim Colby of FPC testified that he had not discussed
any such possibilities with Dysert, either at the time of hire or
later. (T. 348). He testified that, on the contrary, FPC often
gives early releases to contract employees such as contract engi-
neers. (T. 397).
2. Complainant's Duties at CR-3
Complainant's duties as an engineer in NPES are set forth in
RX-12, which lists the 22 primary functions or tasks of nuclear
procurement engineers at CR-3. They include, inter alia,
resolving supplier deviation requests, developing plant equipment
equivalency replacement evaluations ("PEERES"), and evaluating
and resolving technical problems discovered during the inspection
of items purchased. The types of engineering documents Dysert
was expected to complete on a regular basis are set forth at CX-
23. (See T. 371-3).
The primary function of NPES is to review and process all
purchase requisitions for plant equipment, in order to determine
whether to purchase the item as safety or non-safety related[3]
and to develop a procurement package, including bid requirements,
for prospective vendors. Purchase requisitions are generated in
one of two ways, either manually by FPC personnel, or automati-
cally by FPC's inventory system, whenever inventory for a partic-
ular item declines to a certain point. Usually, NPES handles 500
to
[PAGE 6]
600 purchase requisitions per month. That number increases to
more than 1,000 a month before and during outages. If a pro-
spective vendor's proposal in response to the procurement package
requests a change in any of the bid requirements, the request,
known as a supplier deviation request ("SDR") is also referred to
NPES for evaluation and a recommended disposition. NPES process-
es an average of 20 to 30 SDRs per month. (T. 209, 219, 287, 336-
8).
NPES works together on procurement with Quality Programs,
also called Quality Assurance (QA). QA is, like Nuclear Opera-
tions and Engineering of which NPES is a part, one of the eight
functional divisions of CR-3's nuclear operations. (ALJX 1, pp.
1, 13). NPES determines the technical and documentary require-
ments and generates the necessary paper work for any item to be
purchased. QA inspects the vendor's facility and processes (a
"source inspection") to ensure that the item is manufactured in
accordance with FPC's requirements, and inspects the item upon
delivery (a "receipt inspection") to ensure that it is the part
ordered, and that it generally meets all technical and documen-
tary requirements. (T. 220-221).
NPES manager Jim Colby routes all purchase requisitions
that come into NPES to either the mechanical/structural or elec-
trical/I&C section. In the case of mechanical/structural items,
Colby himself assigns the purchase requisitions to specific pro-
curement engineers and supervises and signs off on the procure-
ment documents generated; in the case of electrical/I&C items, he
routes the requisitions to lead engineer John Sipos, who in turn
assigns the work to other engineers in that section, supervises
their work, and reviews and signs off on any procurement docu-
ments generated. (T. 204-6, 210, 329-30, 333, 363; see also CX-5,
RX-4,6).
3. The JCC relays
In February, 1992, the plant's automatic inventory system
generated a system maintenance requisition for certain relays
manufactured by the Joslyn Clark Controls Company (JCC), a long
time supplier for CR-3. Relays are electro-mechanical instru-
ments which function as isolation devices between safety-related
and non-safety related systems. (T. 40, 218; See CX 20, 21).
Purchase order (P.O.) F740562D for three of the relays was issued
to JCC on March 18, 1992. (T. 85, 224; RX 10). The requisition
for the relays was referred to NPES for technical evaluation and
to the Quality Assurance (QA) division (also known as Quality
Programs) for development of an inspection plan.
[PAGE 7]
The type of inspection required for any item procured
depends upon whether the item is secured from a so-called Appen-
dix B or non-Appendix B supplier. An Appendix B supplier meets
the requirements of the Code of Federal Regulations in the
manufacture of the item and provides full documentation to FPC
upon delivery that the item can be used in a safety-related
application; a non-Appendix B supplier provides "commercial
grade" equipment which FPC itself must qualify as usable for
safety-related applications after delivery. Because JCC was a
non-Appendix B supplier, and the relays were a commercial grade
item, FPC itself had to qualify them as usable for safety related
applications. (T. 102, 212-13, 220, 225, 336-7).
The QA representative assigned to the procurement of the JCC
relays was Ron Smith, a senior nuclear quality assurance special-
ist. He arranged for the source inspection of JCC to be conduct-
ed by EBASCO, a third party company that provides engineering and
inspection services for companies such as FPC. The EBASCO
inspector, Bob Allison, determined that JCC had made changes to
the relays since FPC had initially purchased and qualified them
for use at CR-3 in 1971. He was therefore unsure whether the
company could provide the necessary certification that the re-
placement relays it was to furnish were essentially unchanged
from the originals. Such certification is required by paragraph
3 of Letter 1197, the parts specification form letter which was
part of the procurement package for the relays. (T. 57-61, 221,
318-320; ALJX-1, p. 13; RX-3, pp. 3,8).
Allison's concerns led to considerable correspondence among
JCC, EBASCO, and FPC, and within FPC. On March 24, 1992, Ron
Smith sent a "hot" memo to Earl Welch, Colby's predecessor at
NPES, advising him of Allison's concerns that, because of the
changes, JCC would be unable to meet FPC's technical requirements
for the relays. Smith proposed amending Letter 1197 to tighten
the "no change" requirements substantially. This amended letter
was designated as 1197A. Colby forwarded the memo to Sipos, who
assigned it to complainant. (T. 224-225; RX-3, p. 2; CX 3).
As part of his routine duties in connection with all pro-
curement, Dysert prepared a safety related procurement requisi-
tion checklist form and a Functional Analysis/Critical Character-
istic Review Form, with attachment, for the relays. On March 24,
1992, after these documents were signed off by Gary Reynolds, the
verification engineer, and Sipos, they were sent with letters
1197 and 1197a to JCC. (T. 227-230). In response, on April 21,
1992, JCC's quality control manager, Richard Schneider, submitted
a supplier deviation request (SDR) to Ron Smith requesting
[PAGE 8]
changes in the purchase order specifications as follows:
(1) as to the source inspection, reversion to the "no-
change" requirements of Letter 1197; and (2) as to the receipt
inspection, amendment of standard inspection plan type AAZ to
eliminate references to certain tests. (RX-5, pp. 1-2).
On May 21, 1992, Schneider at JCC wrote to Ron Smith to
remind him about the SDR and to request an expedited response.
He said that the relays had been sitting in his office for a
month, and that he would like to have the EBASCO inspector
schedule a return trip so that they could be shipped. He stated
that the SDR was merely a request to revert to the certification
requirements "under which product was built, inspected & shipped
for years." (RX 5, p. 3). Dysert was assigned the SDR for the
JCC relays on the same day. He designated the two changes
requested by JCC as problems (1) and (2). (CX-24; RX-5, pp. 1-2;
T. 70, 231-232, 406).
4. Complainant's work on the JCC SDR.
Dysert prepared a number of draft dispositions of JCC's SDR
before the fourth was finalized and issued on June 15, 1992.
He testified that he had never previously been asked by
FPC to change a rejection of an SDR to an acceptance. According
to Sipos, however, reviewer rejections of proposed SDR disposi-
tions do occur. (T. 288).
In his first draft, dated May 22, 1992, Dysert recommended
accepting the changes requested by JCC, even though the company
wanted to make the "no-change" certification only back to 1982,
instead of 1971 as previously required. On May 28, 1992, Jim
Colby rejected the 1982 date and reinstated the 1971 date. (CX
24; T. 408-10).
On May 29, 1992, EBASCO inspector Allison faxed a memo to
Ron Smith at FPC providing a two-page printout by JCC entitled
"indented bill of material" ("the JCC bill") setting forth a de-
tailed list of all the engineering changes made to the JCC relays
since 1963. Dysert testified that the printout contained so many
changes that it raised safety concerns. A modified JCC relay
"may look the same," but "may not perform the same in a safety
related activity and fail to perform its safety related func-
tion." (CX-4; RX-5, pp. 5-7; T. 60-61, 63, 232, 279, 299-300,
408).
On that same day, Dysert prepared a second disposition of
the JCC SDR recommending rejection. He proposed to ship the
[PAGE 9]
relays to a third company, Farwell & Hendricks (F&H), for testing
to determine if the engineering changes were significant in terms
of seismic qualifications (equipment response to earthquakes) and
if the relays otherwise met QA standards. (T. 69, 71, 237, 411-
12; CX-5). Complainant then issued this disposition of the SDR
to JCC, after it was endorsed by Sipos and initialed by an
unidentified procurement quality assurance representative other
than Ron Smith. (CX-5; T. 81-2, 151).
Ron Smith in FPC QA then sent a fax to Schneider at JCC,
effectively revoking the May 29 SDR disposition by describing it
as "a preliminary copy." He apologized for the delays, and
included source inspection forms for use by EBASCO inspector
Allison, who made the inspection the same day. Allison noted,
however, that, although the relays were acceptable, they could
not be released for shipment to CR-3 until the JCC SDR had been
resolved. (RX-7).
Dysert prepared a third draft disposition of the JCC SDR on
June 4, 1992. He again proposed rejecting the SDR. He also now
recommended cancelling the purchase order for the relays entirely
and issuing new bid requests, but only to vendors with acceptable
QA programs such as Farwell & Hendricks. (CX-7; T. 85).
JCC quality control manager Richard Schneider wrote to Ron
Smith again on June 8, 1992, complaining that he was having
difficulty explaining why they were having "all this trouble" in
getting a revised Source Inspection Plan, and that he would
appreciate the earliest response possible permitting release of
the relays for shipment. He reminded Smith that shipment had
been ready for 6 weeks and that EBASCO inspector Bob Allison had
visited twice, but the relays were still in his office. (RX 8).
Complainant prepared the fourth and final draft disposition
of the JCC SDR on June 11, 1992. (RX-6; T. 290). He made the
following recommendations. As JCC had requested, the "no-change"
requirements of Letter 1197 were to be substituted for those of
Letter 1197a with respect to the source inspection plan. The
relays were to be accepted for shipment, but, on receipt, Quality
Control Receiving was to put them on "quality control hold."
This meant that they would be specially tagged, held separately
in the Quality Control holding cage, and unavailable for use in
safety-related applications until FPC had the opportunity to
evaluate and test them. (T. 236-7, 238, 239, 241, 252, 261-5,
314-315, 317-318, 324-325; RX-9). Dysert signed this disposition
on June 11, 1992, Sipos signed it on June 12, 1992, and Ron Smith
initialed it with minor changes on June 15, 1992.
[PAGE 10]
The evidence on how this fourth and final disposition of the
JCC SDR was reached was sharply conflicting. Complainant testi-
fied that he was unusually closely supervised on the SDR, that
his "judgment was altered by [Colby's] pressures" to change his
proposed disposition from rejection to acceptance, and that the
June 11 SDR disposition "violate[d] [his] judgment." He testi-
fied that he wrote it "as a result of the pressure put on me by
Mr. Colby and Mr. Sipos ...." (T. 157). The testimony of Colby
and Sipos was to the contrary.
Dysert testified that he gave the proposed June 4, 1992
disposition to Sipos, who rejected it and asked him to change the
purchase order designation from "D" to "X", "a lesser way of
procuring [which] didn't have all the requirements." Complainant
testified that, after he expressed his disagreement to Sipos, he
then received a visit from Colby, who told him he wanted the
disposition changed, instructed him not to include any recommen-
dations for third party testing, and wrote out the language he
wanted included in the disposition section. (T. 86-7, 89-93, 234-
5, 237-8, 302, 318). Complainant testified that Colby "pretty
much outlined exactly what was to go in there." (T. 92-3).
Sipos denied having seen the June 4 proposed SDR disposition
prior to the administrative hearing. He denied going to Colby to
discuss Dysert's handling of the relays issue prior to receiving
the fourth draft of the disposition, RX 6. He denied directing
Dysert to change the language or coding in the disposition
section of the SDR. (T. 234; CX-6, 7). He denied asking com-
plainant to change the purchase order designation. (In fact, the
purchase order designation on the final disposition remained a
"D".) Sipos explained that, because the relays were for inven-
tory rather than for immediate use, they were not a pressing
problem. (T. 234-237, 288).
Colby testified that he was aware of the JCC relays issue
but did not consult directly with complainant about the issue.
(T. 338-339). He denied dictating to Dysert what to say in the
disposition section of the SDR form, or putting pressure on him
in any way. (T. 338-340, 349). He denied any knowledge that
Dysert wanted to send the relays to F&H for testing. (T. 380).
Dysert testified that he showed Sipos the list of changes on
the JCC bill and that Sipos suggested that there might be another
way to take care of the problem besides the testing by F&H,
including finding an equivalent item or finding the changes on
the list insignificant. Complainant testified that he objected
[PAGE 11]
to stating that the changes were insignificant, that Sipos seemed
angry that he would not follow his orders and walked away. (T.
63-5). Sipos denied telling complainant to treat the changes on
the JCC bill as insignificant or that he had even discussed the
JCC bill with anyone at the plant. He testified that he did not
believe the issue was insignificant. (T. 279-80, 282-83, 299).
Sipos did, in fact, sign off on complainant's May 29, 1992
disposition recommending sending the JCC relays to F&H for
testing. He testified that, at the time, he agreed with the
recommendation. (T. 288).
Dysert also testified that, if the relays could not be
qualified, FPC might have had to change its technical specifica-
tions ("tech specs"), which require approval by NRC, before it
could install JCC replacement relays anywhere in the plant. He
testified that, at some point, he had tried to survey all the
locations in the plant where the JCC relays were installed to
determine whether they were safety-related or not. He claimed
that Sipos told him he was going beyond his scope as a procure-
ment engineer. Sipos denied having a discussion with Dysert
about such a survey, or instructing him not to conduct it. (T.
77-8, 275-6).
Sipos testified that the final disposition of the JCC SDR
was Dysert's decision, worked out by complainant in cooperation
with Ron Smith. After issuance of the May 29, 1992 disposition,
they had determined that a better and more cost effective course
of action than sending the relays to F&H for testing would be to
accept them for shipment, put them on "quality control" hold on
receipt, and evaluate all the JCC relays in the plant later. (T.
236-239).
Dysert testified that there was nothing illegal about this
final disposition of the SDR and that he would not have signed it
otherwise. He also testified that the disposition did not
violate NRC regulations. He did not complain about the safety of
the final disposition through any of FPC's suggested avenues for
raising safety issues. He did not prepare a problem report for
higher FPC management, did not file an internal anonymous and/or
confidential complaint under FPC's nuclear safety concerns
program, did not file a complaint with the NRC or any other
agency, and did not initiate personal contact with the NRC resi-
dent agent at CR-3. When he left FPC less than a month later, he
did not mention the situation on the form provided to report
illegal or unsafe conduct related to plant maintenance and
operation. (T. 145-7, 149, 166-167, 170-171, 176; RX-29; CX-27
pp. 7-8; RX-13, p. 9-11; RX-27).
[PAGE 12]
5. Complainant's termination
In mid-June, 1992, CR-3 was completing work on the outage
that had begun on April 30, 1992. FPC's regular work force had
been supplemented by contractors in preparation for and during
the outage. (T. 164-5; RX-23). Senior Vice President for Nuclear
Operations Pat Beard called a meeting with plant managers and
supervisors at which he advised that the outage was over budget,
in part because of problems with the plant's turbine, and that
costs had to be reduced. (T. 341-342, 394-395).
One of the FPC departmental goals established for SNES for
1992 was to reduce costs by, inter alia, "minimizing the
use of and releasing peak SNES supplemental manpower ahead of
current schedule." SNES acting manager Hugh Gelston was respon-
sible for monitoring the supplemental manpower levels in SNES.
SNES' level of supplemental manpower was prominently featured in
every SNES monthly report for 1992, as well as the SNES second
quarter goals report. (RX-21, p. 4; RX-22; RX 23; T. 385-393).
Following the meeting with Beard, Gelston directed all the
managers who reported to him to release their supplemental
employees as soon as possible. He told Colby to release his two
outage support personnel, Howard Leon and Tom Varner, one month
early. They had been scheduled to leave on July 31, 1992. Colby
obtained Gelston's agreement to keep Leon to complete a project
in progress. He then directed Sipos to release Varner one month
early. Sipos said to Colby that "if we had to let one body go,
[h]e would rather keep Tom Varner and let [Complainant] go. ...
[because] Mr. Varner was a better performer. ..." (T. 266, 268,
342-44, 395-397).
Sipos testified that he preferred Varner to Dysert because
he felt that Varner was "more of a detail person ... , was just
more detailed about his work, seemed to know more about it."
Varner also impressed Sipos with his ability to work indepen-
dently: "you'd give him something, it'd be done and it would be
done correctly." Sipos characterized Varner as a better commu-
nicator than complainant, whom he felt was sometimes difficult to
understand and hard to get a response from. Complainant was not
a performance or disciplinary problem; he did "adequate work" and
"what was required of him." Given the choice, however, Sipos
wanted to keep the better performer. (T. 268-269).
Sipos testified that he would have made the same recommenda-
tion to Colby even if complainant had not been assigned to the
[PAGE 13]
JCC relays problem and that it played no part in his recommenda-
tion to Colby. (T. 269-271). Colby testified that he acceded to
Sipos' request to substitute Dysert for Varner, because, based on
Sipos' ability to directly observe the performance of the pro-
curement engineers in electrical/I&C on a day-to-day basis, he
"had no reason to question [Sipos'] judgment." (T. 344-345).
Colby and Sipos met with complainant on the following day,
June 19, 1992. Colby told complainant that his services were
being terminated for budgetary reasons, that he was giving
complainant two weeks' notice, and that his last day of work
would be July 3, 1992. He also told Dysert that the decision to
terminate him had nothing to do with his work productivity or
quality of work. Prior to this meeting, no one had criticized
complainant's production, counseled him in a disciplinary fashion
to change his work behavior, given him a bad evaluation, repri-
manded or suspended him, or threatened him with termination.
(T. 94-96, 105, 272-273, 286-7, 322, 345, 360-62).
On June 22, 1992, the FPC contract administrator informed
ESG that the company was concluding Dysert's assignment effective
7/3/92 and intended to continue Varner's term of assignment
through December 31, 1992. (RX-14, p. 19). Colby provided com-
plainant with the names of several CR-3 supervisors who might
have a vacancy in a temporary position, as well as a letter of
recommendation at complainant's request. The letter of recommen-
dation, dated July 1, 1992, stated that complainant's quality and
quantity of work output was at an acceptable level and the
company would consider rehiring him for future contractor posi-
tions. (T. 102-105, 346-347, 361-62; RX-18; CX-13).
On July 1, 1992, Colby filled out an internal evaluation
form on Dysert. He checked the "yes" box in response to the
question of whether he would consider using Dysert again. Under
"comments," he stated that Dysert was "a little slow, but quality
and quantity of work output was acceptable." (RX-17). The com-
plainant attempted to refute the assessment that he was "slow" by
offering evidence that, during the one month period from April 21
to May 20, 1992, he completed more engineering documents than
Varner. (T. 366; CX 23). Complainant offered no evidence,
however, as to his performance during the other five months of
his employment, and it is therefore unclear whether his produc-
tion in that month was representative. Finally, his quantity of
production is irrelevant because it is undisputed that Colby, the
management official responsible for Dysert's termination, did not
rely on it in terminating him.
Dysert's last day of work was July 3, 1992. He acknowledged
[PAGE 14]
that, when the CR-3 outage was completed, other employment con-
tracts expired and other people were laid off. (T. 94, 165; RX-
23). The total number of people in SNES declined significantly
between June and July, 1992. (RX-23; T. 394). On July 14, 1992,
SNES acting manager Hugh Gelston reported that the departmental
goal of releasing supplemental manpower ahead of schedule "has
been successfully met." SNES had been authorized 42 supplemental
positions for the outage: two positions were not filled; twenty-
five positions were released early; and the remaining positions
were being released according to schedule. (T. 389, RX-21, p. 4).
Leon was terminated on July 31, 1992. (T. 348). Varner's
contract was extended from July 31 to December 31, 1992 to fill
the unexpired term of Dysert's position. Although Colby ini-
tially sought to extend Varner's contract for the following year
(RX-15, p. 32; T. 354), higher management questioned his continu-
ing need for five procurement engineers, including Varner. (RX-
15, pp. 33,36). Colby then obtained another engineer when an FPC
permanent employee transferred from another position within SNES,
and instructed contract manager Porter to cancel Varner's work
authorization for 1993. (RX-15, pp. 28-29). Varner's last day of
work was December 20, 1992. (T. 348, 354, 357; RX-14, p. 19; RX-
15, pp. 18, 22, 28-33, 97-99).
6. Complainant's contacts with Thomas Saporito
The only other live witness presented by Dysert at the
hearing was Thomas Saporito, Jr., a former CR-3 employee and
founder of an organization called the Nuclear Energy Account-
ability Project. (T. 178). He testified that he had experience
communicating with nuclear industry employees as confidential
"allegers" and had acted as a conduit to pass information related
to their safety allegations to the NRC. (T. 182-3). He testified
that, on June 30, 1992, Dysert had made a complaint to him about
the JCC relays in a telephone conversation, that he had prepared
a contemporaneous memo to the file documenting the conversation
(CX-22), and that he had subsequently brought Dysert's complaint
to Oscar DeMiranda, senior allegations coordinator for the NRC in
Region II headquarters in Atlanta, Georgia. (T. 177, 180, 188-
190).
Saporito's testimony was apparently intended to support a
claim that, even if the 1992 amendments to the ERA did not apply
to make Dysert's DOL complaint timely, his contact with Saporito
constituted a timely administrative filing. Dysert initially
characterized his communication with Saporito as a complaint with
the NRC through Saporito as his agent. (T. 149). After acknowl
[PAGE 15]
edging on cross examination that Saporito was a private citizen,
not his attorney, and not employed by FPC, NRC or DOL, Dysert
conceded that the only whistleblower complaint he had filed
against FPC under the ERA was the complaint filed with DOL in
December 1992. (T. 128-131; 148-9).
Because of my disposition of the timeliness issue as dis-
cussed below, I do not need to reach the issue of whether
complainant's contact with Saporito constituted a timely adminis-
trative filing. I find, however, that Saporito's testimony was
not credible.
Saporito described Dysert as being "anxious" about his posi-
tion and concerned that his job was "in jeopardy", in both his
testimony and his supposedly contemporaneous memo to the file
about their June 30, 1992 telephone call. (T. 180-182, 192). By
this date, however, Dysert no longer had any reason for uncer-
tainty, because he had already been notified of his termination
11 days previously, on June 19, 1992. Additionally, Saporito
stated in the memorandum, CX-22, that Dysert "later"
mailed him a copy of a fax (CX-19] he found at CR-3. Since
Dysert found the fax on the same day Saporito supposedly prepared
the June 30, 1992 memorandum, "later" can only mean after June
30, 1992. Because of these discrepancies, I do not find credible
Saporito's assertion that this memorandum was written contempora-
neously with his June 30, 1992 telephone conversation with
Dysert.
Further, Saporito's memorandum did not appear until the day
before the hearing, despite appropriate prior discovery. Counsel
for the complainant acknowledged that Saporito's memorandum was
not listed on his exhibit list, and that he had seen it only one
hour previously over lunch. He stated that Saporito told him
that, although he had previously searched his files, he was
unable to locate the document until the night before the February
18, 1993 hearing. (T. 184, 187). The late appearance of Sapor-
ito's memorandum, in addition to its internal inconsistences,
suggest that it may have been fabricated entirely.
Saporito's testimony was also not supported by NRC senior
allegations coordinator Oscar DeMiranda. On May 10, 1993,
DeMiranda testified by deposition that in a meeting, Thomas
Saporito told him that "Mr. Dysert had relayed safety allegations
to Mr. Saporito" about CR-3. (CX-27, pp. 5-6). The subject of
those "safety allegations" was not explained. The strangely
artful wording of both the questions put to and the answers given
by DeMiranda in the deposition places in doubt whether Saporito
[PAGE 16]
discussed the JCC relays with him at all, or talked only about
the many allegations of Dysert's DOL complaint that did not
survive to the hearing. DeMiranda had no documents, memoranda,
notes, or files relating to the contact or conversations between
Dysert and Saporito. (CX-27, pp. 5-6, 8-9).
B. Discussion
1. Is complainant a covered employee under
the ERA?
Section 5851(a) of the ERA provides in pertinent part that
"[n]o employer ... may discharge any employee or otherwise
discriminate against any employee ... ." Complainant has sued
FPC, not ESG, the employment agency contractor which arranged for
him to work at CR-3. FPC expressly disclaims an employment rela-
tionship with complainant. (RX-25 p. 153). I must therefore
consider the threshold issue of whether Dysert is an employee
under the Act.
In Hill v. TVA, 87-ERA-23 and 24 (Sec. Dec. May 24,
1989), the complainants, like Dysert, were employees of a company
which had a contract with TVA. The contract was to develop and
implement a program to identify, investigate and report the
quality and safety concerns of TVA employees. Complainants
alleged that TVA violated the ERA by significantly restricting
and then refusing to renegotiate the contract with their employ-
er, causing their termination, in retaliation for their inves-
tigation, corroboration and disclosure of safety problems in
TVA's nuclear power program. The Administrative Law Judge recom-
mended that the complaints be dismissed because the complainants
were not employees of TVA.
Secretary Dole reversed, holding that, in order to effectu-
ate the broad remedial purposes of the Act, she interpreted the
term "any employee" to mean that, because the complainants were
"employees" of the company which had contracted with TVA, even
though they were not employees of TVA itself, they were protected
under the Act. In other words, the ERA forbids a covered employ-
er to discriminate against any employee, even one other
than its own. Dysert's employment relationship with ESG,
which contracts with FPC, therefore brings him within the protec-
tion of the Act.
The Secretary also noted in Hill that, if the com-
plainants had been found to be constructive employees of the
respondent under the so-called "right to control" test, there
would be no question of their right to complain. The "right to
control" test has been summarized by the United States Supreme
Court as fol
[PAGE 17]
lows:
In determining whether a hired party is an employee
under the general common law of agency, we consider the
hiring party's right to control the manner and means by
which the product is accomplished. Among the other
factors relevant to this inquiry are the skill re-
quired; the source of the instrumentalities and tools;
the location of the work; the duration of the relation-
ship between the parties; whether the hiring party has
the right to assign additional projects to the hired
party; the extent of the hired party's discretion over
when and how long to work; the method of payment; the
hired party's role in hiring and paying assistants;
whether the work is part of the regular business of the
hiring party; whether the hiring party is in business;
the provision of employee benefits; and the tax treat-
ment of the hired party.
Community for Creative Non-Violence v. Reid, 490 U. S.
730, 751-752 (1989).
The product accomplished by Dysert was highly skilled
professional engineering work. The location of his work was on
FPC premises at CR-3 using the company's instrumentalities and
tools in their regular business of procuring equipment and sup-
plies for the continued operation of their nuclear power plant.
Dysert's relationship with FPC was expected to be ongoing,
according to his contract with ESG. In accomplishing the prod-
uct, he was directly supervised by, and received all assignments
from two FPC employees, Jim Colby and John Sipos, so the hiring
party clearly had the right to assign additional projects to him.
His discretion over when and how long to work was limited to his
right to terminate the employment relationship on 30 days notice
to ESG; his hours were otherwise fixed by FPC management. He was
paid by the hour, not by the job. He was not in business for
himself. These factors demonstrate that FPC had the right to
control the manner and means by which Dysert accomplished the
product. Therefore, I find that, notwithstanding FPC's disclaim-
er, complainant had an employment relationship with FPC as well
as ESG.
I conclude that complainant Dysert is a covered employee
under the ERA.
2. Did the 1992 ERA amendments, by lengthening the limita-
tions period for filing whistleblower complaints, apply
[PAGE 18]
retroactively to render timely complainant's otherwise untime-
ly complaint?
At the time Dysert was notified of his termination, an ERA
complainant had 30 days from the date of an adverse employment
action to file a complaint with the Secretary of Labor.
See former 42 U.S.C. §5851(b)(1)(1983). The Energy
Policy Act of 1992, Pub. L. No. 102-486, amended the
whistleblower provisions of the ERA, inter alia, to extend
the limitations period for filing a whistleblower complaint to
180 days. Dysert filed his complaint on December 11, 1992, after
the October 24, 1992 effective date of the amendments, within 180
days but after 30 days from the date he was notified of his
termination on June 19, 1992.
Dysert argues that his complaint is timely. FPC argues that
claimant had to file his complaint with the Secretary within the
30-day time limit then in effect, and, because he failed to do
so, his claim expired and could not be revived. It is undisputed
that Dysert missed the 30-day deadline under the ERA before it
was amended; the timeliness of his complaint and my jurisdiction
therefore depend on whether the 1992 amendments extending the
limitations period from 30 to 180 days apply to his claim. This
appears to be a case of first impression before the Secretary
with respect to the retroactivity of the lengthened limitations
period of the 1992 ERA amendments.
The United States Supreme Court has recently considered the
issue of statutory retroactivity in the case of Landgraf v.
USI Film Products, 62 U.S.L.W. 4255, No. 92-757 (April 26,
1994), involving the 1991 amendments to Title VII of the Civil
Rights Act of 1964. In Landgraf, the Court reviewed the
basic principles for determining which law applies when a new
federal statute has been enacted after the events leading to a
lawsuit -- the law in effect when the events occurred or the law
in effect when a court decides the matter.
Under Landgraf, a court must initially determine
whether the express language of the statute demonstrates Congres-
sional intent to give retroactive effect to the amendments. If
so, there is no need to resort to canons of judicial interpreta-
tion. Id. at 4263, 4265. Even without specific legisla-
tive authorization, however, application of new statutes to prior
conduct is proper if the intervening statute authorizes or
affects the propriety of prospective relief, applies a new
jurisdictional or procedural rule such as a right to jury trial,
or is otherwise collateral to the main cause of action.
Id. at 4264-4266. If, however, a new statute (1) impairs
rights a party possessed when
[PAGE 19]
he acted, (2) increases a party's liability for past conduct, or
(3) imposes new duties with respect to transactions already
completed, the presumption against statutory retroactivity is
invoked, and the new statute cannot apply to prior conduct
"absent clear congressional intent favoring such a result."
Id. at 4266.
The 1991 Title VII amendments created, for
certain violations, a new right to compensatory and punitive
damages, and to a jury trial when such damages were sought. The
Court held that their application would therefore impermissibly
increase a party's liability for past conduct, because prior
Title VII law afforded no relief at all for some types of con-
duct, and only backpay for others. Further, the retroactive
imposition of punitive damages would raise a serious consti-
tutional question of a forbidden ex post facto enactment.
Id. at 4266. The 1991 amendments therefore required a
clear expression of Congressional intent to apply to prior con-
duct.
The Court could not find such an expression in the language
of the 1991 amendments. The relevant language stated only that,
"(e)xcept as otherwise specifically provided, this Act and the
amendments made by this Act shall take effect upon enactment."
In contrast, the 1990 version of the Act, vetoed by the President
in part because of its retroactivity provisions, had stated that
the amendments "shall apply to all proceedings pending on or com-
menced after the date of enactment of this Act." Id. at
4258-4261. Similarly, the 1972 Title VII amendments applied
"with respect to charges pending with the Commission on the date
of enactment of this Act and all charges filed thereafter."
(Slip op. at 12, n. 10).
The 1972 amendments to Title VII, like the ERA amendments at
issue here, extended the limitations period for filing an admin-
istrative complaint, from 90 to 180 days. The Supreme Court held
in International U. of Elec. Wkrs. v. Robbins & Myers, 422
U.S. 229 (1976) that the longer limitations period was applicable
to an EEOC complaint which, as here, was untimely when filed but
timely under the new amendments. Relying on its earlier decision
in Chase Securities Corp. v. Donaldson, 325 U.S. 304
(1945), the Court rejected the argument (also made by the
employer here) that Congress was without constitutional power to
revive an action which, when filed, is barred by the running of a
limitations period. "Statutes of limitations go to matters of
remedy, not to destruction of fundamental rights. ... [C]ertainly
it cannot be said that lifting the bar of a statute of limitation
so as to restore a remedy lost through mere lapse of time is
per se an
[PAGE 20]
offense against the Fourteenth Amendment." Chase, 325 U.S.
at 314-316.
The 1992 ERA amendments state that they "shall apply to
claims filed ... on or after the date of the enactment of this
Act." Energy Policy Act §2902(i). As counsel for the com-
plainant points out, there is very similar language in the 1984
amendments to the Longshore and Harbor Workers' Compensation Act
(LHCA). It provides that the LHCA amendments "shall apply ...
with respect to claims filed after such date ... ." Id. at
1563. This language has been interpreted by the United States
Court of Appeals for the Eleventh Circuit to apply LHCA to
previously time-barred claims. Alabama Dry Dock and Shipbuild-
ing Corp. v. Sowell, 933 F.2d 1561-65, reh. den. 945
F.2d 415 (11th Cir. 1991).
In reaching its decision in Sowell, the Eleventh
Circuit reasoned that, if Congress had intended to apply the new
amendments only to claims arising after the effec-
tive date, language applying the amendments to claims
filed after a statute's enactment would not be necessary.
The court also observed, quoting Chase, supra, that
"statutes of limitation go to matters of remedy, not to destruc-
tion of fundamental rights." Sowell at 1565. See
alsoDavis v. Valley Distributing Co., 522 F.2d 827,
831 (9th Cir. 1975) cert. denied 429 U.S. 1090
(1977)(words of the 1972 amendment affirmatively suggested an
intention to encompass discriminatory conduct that occurred
before the Act was passed, because "'charges pending ... on the
date of enactment of this Act' could only involve conduct occur-
ring prior to that date," and, since the amendment applied to
"all charges filed thereafter," and the employee's claim was not
formally filed until after the amendment was enacted, "it fell
within the literal words of the statute").
The Sowell court concluded that "[t]he only sensible
reading of the provision, then, is that Congress was addressing
claims that arose before the effective date of the statute
but were filed after the effective date." Id. at
1564. I find that this is also the only sensible reading of the
language of Energy Policy Act Section 2902(i) -- that Congress
intended the amendments to apply to claims that arose before, but
were filed on or after, the effective date of the statute.
The ERA's prohibition against whistleblower retaliation
dates from 1974. The 1992 Energy Policy Act amendments merely
extend the time for complaining about such retaliation. Applica-
tion of the extended ERA limitations period to this case in no
way impairs rights FPC had at the time it terminated complainant,
[PAGE 21]
increases its liability for past conduct, or imposes new duties
with respect to completed transactions. The longer limitations
period is therefore the type of collateral procedural rule that,
even absent express legislative authorization, may properly be
applied to pre-amendment conduct. (See Landgraf,
Id. at 4264, 4266 (jury trial right "is plainly a proce-
dural change of the sort that would ordinarily govern in trials
conducted after its effective date.")) I therefore find that
Dysert's complaint to the Department of Labor was timely because
it was filed within 180 days of his notice of termination by FPC.
3. Has complainant established a violation of the employee
protection provisions of the ERA?
In analyzing this case, I apply the rules for allocating the
burdens of proof set forth in the 1992 amendments to ERA. These
rules are procedural, and make only minor changes to prior case
law on the issue. Their application here therefore poses no
retroactivity problems under Landgraf. I note that
counsel for both parties have also applied these rules in brief-
ing the case.
To prevail under the ERA, Dysert must first demonstrate that
the respondent's protected activity "was a contributing factor in
the unfavorable personnel action alleged in the complaint." ERA
Sec. 211(b)(3)(C). Even if such a demonstration is made, no
relief is available "if the employer demonstrates by clear and
convincing evidence that it would have taken the same unfavorable
personnel action in the absence of such behavior." ERA Sec.
211(b)(3)(D). As discussed below, I find that complainant Dysert
engaged in a protected activity and was subject to an unfavorable
personnel action, but there was no causal relationship between
the two events. Accordingly, complainant has failed to meet his
burden to prove an ERA violation.
a. Protected activity.
Under the pre-1992 ERA, an employee was protected against
discrimination if the employee:
(1) Commenced, caused to be commenced, or was
about to commence or cause to be commenced a
proceeding under the ERA or the Atomic Energy
Act of 1954 (AEA);
(2) Testified or was about to testify in any such
proceeding; or
[PAGE 22]
(3) Assisted or participated or was about to
assist or participate in any manner in such a
proceeding ... or in any other action to
carry out the purposes of [the ERA or the
AEA]. (emphasis added).
ERA Section 210(a)(1) - (3). (now designated as Section
211(a)(1)(D) - (F)).
The 1992 amendments added three additional categories of
protected activity. An employee is now also protected against
discrimination if the employee:
(4) Notified his employer of an alleged violation
of [the ERA or the AEA];
(5) Refused to engage in any practice made unlaw-
ful by [the ERA or the AEA], if the employee
has identified the alleged illegality to the
employer; or
(6) Testified before Congress or at any Federal
or State proceeding regarding any provision
(or proposed provision) of [the ERA or the
AEA].
ERA Section 211(a)(1)(A) - (C).
Despite the broad scope of the complaint Dysert originally
filed with DOL, he concedes now that the only allegedly protected
activity at issue here relates to his work in connection with the
JCC relays. (T. 12, 13, 158, 175). As counsel for Dysert stated
in opening argument:
It is our contention that the protected activity in
this case and really the only protected activity we are
going to focus on was his right to place a reject
notation on the supplier deviation request form. (T.
12).
Complainant asserts that his "involvement in a QA function and
raising of safety concerns about the reliability of safety
related parts at a nuclear power plant were exactly the kind of
activities Congress sought to protect when it enacted the nuclear
whistleblower protection act." (C. post-hearing proposed findings
of fact and conclusions of law at 35).
[PAGE 23]
Dysert presented no evidence at the hearing that, at the
time of his termination, he was about to commence or had com-
menced a proceeding under ERA or AEA, or was about to testify or
had testified in such a proceeding or before Congress or at any
federal or state proceeding with respect to the JCC relays. (1),
(2), and (6) therefore do not apply.
Dysert did not include in his proposed written rejection of
the SDR any allegation that the condition of the three JCC relays
constituted a violation of the ERA or the AEA or that acceptance
of them would constitute such a violation. He did not present
such an allegation verbally to either Sipos or Colby. He conced-
ed that there was nothing illegal about the respondent's final
disposition of the SDR with respect to the three JCC relays nor
did it violate NRC regulations. His proposed initial rejection
therefore does not constitute a notification to his employer
within the meaning of (4). There was also no work refusal within
the meaning of (5), because Dysert failed to identify any
alleged illegality and, of course, he ultimately signed off on
the SDR as amended. Accordingly, only the "any other action"
provision of (3) is conceivably applicable.
Although he failed to file a formal complaint with FPC
management or the NRC at the time he signed off on the final
disposition of the JCC relays, Dysert gave credible testimony
that he believed the relays might be unsafe because of the
numerous changes to them indicated by the supplier's printout.
His attempts to reject the JCC relays for shipment on the SDR
forms represented a communication to the employer. Accordingly,
I find that his initial proposed rejections of the JCC relays
constituted other action to carry out the purposes of the ERA or
AEA, and were therefore protected activity. Seee.g.Larry v. Detroit Edison Co., Case No. 86-ERA-
2, Sec. Dec. September 28, 1993(slip op. at 6) (a communication
to a manager about an unsafe condition is protected activity);
Shusterman v. Ebasco Services, Inc., Case No. 87-ERA-27,
Sec. Dec. January 6, 1992 (slip op. at 8)(aff'd mem.Shusterman v. Secretary of Labor, No. 92-4029 (2d Cir.
Sept. 24, 1992))(disqualification of prospective vendors is pro-
tected activity); Bassett v. Niagara Mohawk Power Corp.,
Case No. 85-ERA-34, Sec. Dec. September 28, 1993 (slip op. at 5)
(filing of internal quality control reports is protected activi-
ty).
b. Unfavorable Personnel Action
Complainant asserts that respondent's failure to retain him
as a permanent employee at CR-3 is an actionable unfavorable
[PAGE 24]
personnel action. I find, however, that he did not have a
reasonable expectation of permanent employment.
Dysert was not a CR-3 staff employee like engineers John
Sipos and Jim Colby, but rather, one of a large group of tempo-
rary contract employees. Dysert (like Varner), was brought in as
"staff augmentation." The only express terms of Dysert's employ-
ment at FPC are found in his contract with ESG. Under this
contract, he could be let go immediately for cause, or on 30 days
notice without cause. The year term of his contract was not a
guarantee, because the contract terms make clear that his employ-
ment could be terminated long before a year had expired, as long
as he received 30 days written notice from ESG. These short
termination provisions are evidently intended to accommodate the
fact that, as Jim Colby credibly testified, CR-3 often releases
contract employees early. In its contract with ESG, FPC specifi-
cally reserved the right to early release of its contract employ-
ees.
Nothing in Dysert's contract gave him any rights to counsel-
ing, suspension or reprimand prior to termination, either by ESG
or FPC. Nor was there any evidence of record that even permanent
FPC employees could expect such treatment prior to termination.
I therefore cannot agree with complainant's argument that,
because his performance was admittedly satisfactory, the lack of
such pre-termination procedures had some significance. Nor is it
of any consequence that complainant was given only oral notice of
his termination by FPC; there was no evidence that he was enti-
tled to written notice except by ESG. The record contains no
evidence to suggest that ESG did not comply with that term of his
employment. Dysert's contract with ESG was obviously a risky
one. Dysert is an extremely well-educated and highly paid
professional, and must have understood the risks involved.
Because Varner, who in effect took over Dysert's contract,
worked for another six months until the end of the contract
period before his termination, I find that Dysert could have
reasonably expected his employment under this contract to last
for one year. I therefore conclude that Dysert's termination six
months before the end of his one-year contract constituted an
unfavorable personnel action within the meaning of the Act.
Cf.Nichols v. Bechtel Construction, Inc., 87-ERA-
44, Sec. Dec. November 18, 1993, slip op. at 8-9 (back pay, but
not reinstatement, of laid off nuclear power plant employee held
appropriate after transfer from permanent position to outage
crew, where he would have been laid off anyway when crew disband-
ed for lack of work).
[PAGE 25]
c. Causal relationship between the protected activity and
the unfavorable employment action.
Dysert claims that Sipos and Colby pressured him to change
the final disposition of the JCC SDR from rejection to acceptance
of the relays and terminated him because of their displeasure at
his opposition to the change. Sipos and Colby deny pressuring
complainant to change the disposition of the SDR and they deny
that his work on the JCC SDR had anything to do with his termina-
tion. The evidence of record supports their position, not
complainant's.
There was no evidence that professional disagreements on
the best way to insure the safety of equipment procured for the
plant were cause for retaliation at CR-3. On the contrary, it
appears that the company encouraged discussion, by, for example,
requiring verification by another engineer on every project,
which is appropriate given the importance of the safety issues at
stake. The picture presented is not one of supervisors punishing
an employee for whistleblowing, but rather of professionals
conscientiously seeking to resolve legitimate differences of
opinion.
Further, I can find no motive for Sipos and Colby to punish
complainant for suggesting rejection of a single SDR for items
which were not even for current use. They had a large volume of
purchase requisitions and SDRs to process every month. There was
unrebutted evidence that reviewer changes of proposed SDR resolu-
tions were not uncommon. Complainant had not previously been re-
versed on any of his proposed dispositions of SDRs. Both Sipos
and Colby themselves, during the process of evaluating the JCC
SDR, had considered rejecting it: on May 28, 1992, Colby changed
complainant's May 22, 1992 proposed disposition from acceptance
to rejection because JCC offered a certification only back to
1982, rather than to 1971 as required; and Sipos initially ap-
proved complainant's May 29, 1992 proposed rejection of the SDR
in favor of third party testing. I also find it unlikely that,
if Colby had really been intent on retaliating against complain-
ant, he would have given him a letter of recommendation and a
list of other CR-3 supervisors who might have openings for him.
The evidence supports Sipos' testimony that the change in
the final SDR disposition came about not because of pressure by
himself and Colby, but because of complainant's work with Ron
Smith, the senior nuclear quality assurance specialist and QA's
representative on the JCC relays matter. Ron Smith was closely
[PAGE 26]
involved from the beginning with the JCC relays purchase. He
arranged for the original source inspection of JCC with EBASCO,
made the initial contact with NPES to advise of possible problems
with changes to the relays, received the SDR from JCC's quality
control manager Richard Schneider, and subsequently negotiated
with Schneider and EBASCO source inspector Allison about resolu-
tion of the problems and the delays in accepting the relays for
shipment. It was Smith's May 29, 1992 fax to JCC that counter-
manded complainant's original resolution to reject the relays and
ship them to F&H for testing, a resolution that Sipos had origi-
nally approved.
It is much more plausible that, as Colby testified, Smith
convinced complainant that acceptance of delivery of the few
relays involved in the purchase order on "quality control hold"
in inventory was a more cost effective, but still safe, way to
deal with a long time supplier with whom CR-3 needed to continue
an ongoing relationship. There is no evidence that Ron Smith had
any involvement with complainant's termination. Nor would he
have had any motivation for retaliation in view of complainant's
agreement with his wishes on the SDR disposition.
As a long time worker in nuclear plants, Dysert must have
understood that outages and related expansions and contractions
of staff were a common event. As his counsel explained in
opening argument, "an outage situation is when a plant volun-
tarily shuts down for cleaning [and] maintenance. It is done on
regular intervals, and atomic facilities generally need to bring
in a large amount of employees to work on an outage. When the
outage is over, those employees are gone." (T. 11). See also
e.g. Tritt v. Fluor Constructors, Inc., 88-ERA-29, slip. op.
at 2 & n.3 (Sec. Dec. August 25, 1993; Pillow v. Bechtel Con-
struction, Inc., 87-ERA-35, slip op. at 2 & n.1 (Sec. Dec.
July 19, 1993)(outages at nuclear plants are a time during which
workers make repairs and modifications, and employment increas-
es). Dysert was terminated because of a general layoff in
connection with the completion of the Spring 1992 outage at CR-3,
and because Colby reasonably relied on Sipos' opinion that, given
the choice of retaining one of two contract employees in the
layoff, Varner was the better choice. I find that no retaliation
was involved in complainant's termination.
Finally, because of Dysert's sophistication and expertise as
a whistleblower, I do not find credible his claim that, although
he believed he had been discriminated against at the time of his
discharge in violation of his ERA rights, he waited almost six
months to file his complaint because he feared retaliation. (T.
131-2, 172-3). At the time, the ERA required the filing of a
complaint with DOL within 30 days of the adverse employment
action. Complainant concedes that "he knew of his remedy under
the old Section 210 of the ERA" and "that he was aware of those
remedies and rights as of the time that his employment ceased in
July of 1992." (T. 132). He was then being represented by attor-
ney Mark Surick in a pending whistle-blower complaint against a
former employer, Florida Power and Light Company (a company
unrelated to respondent). He had already brought a timely
whistleblower action before the Secretary of Labor against
another former employer, Westinghouse. (SeeDysert v.
Westinghouse Electric Corp., Case No. 86-ERA-39, Sec. Dec.
October 30, 1991). It seems more likely, as counsel for the
employer argues, that Dysert did not file a timely complaint
under the old ERA because he himself did not believe he had a
viable complaint, i.e. that his termination represented retalia-
tion for a protected activity.
In sum, I find no causal relationship between complainant
Dysert's termination by respondent FPC and his proposed rejec-
tions of the JCC SDR.
RECOMMENDED ORDER
IT IS HEREBY RECOMMENDED that the case be DISMISSED.
____________________________
EDITH BARNETT
Administrative Law Judge
DATED:
Washington, D.C.
EB:bdw
[ENDNOTES]
[1] The following abbreviations are used for citations to the
record: C-Complainant; R-Respondent; ALJ-Administrative Law
Judge; X-Exhibit; T.-Transcript.
[2] I have designated as page 8A the unnumbered page between
pages 8 and 9 of RX 14. This page is a cover sheet signed by
Sharon Broaddus at ESG submitting Dysert's resume to Don Porter
and Jim Colby at FPC.
[3] The function that an item performs determines whether FPC
classifies it as safety related or non-safety related. A safety-
related function is any function that meets three criteria: (1)
It is a pressure boundary to radioactivity; (2) it requires the
mitigation of an accident; and (3) it mitigates the release of
radioactivity within the plant or outside the plant to the
general public. (T. 212, 214-15, 235).
