the Office of Administrative Law Judges (ALJX 2).

1. Whether the Complainant's resignation was voluntary;

2. Whether TVA demonstrated legitimate, non-pretextual reasons for seeking the Complainant's resignation; and

3. Whether TVA discriminated against the Complainant as a result of his reporting of safety concerns relating to TVA's chemistry program, in violation of the Act.

The stipulations are incorporated into the Factual Background Section and the Findings of Fact Section. They are contained in ALJX 39.

A. Jocher's Work History and Educational Background

The Complainant, William Jocher, began his career in the utility industry in the mid-1960's as an equipment operator at a Public Service Electric & Gas fossil fuel plant. Jocher was later transferred to the test department, where he learned how to repair, maintain and calibrate instruments, as well as conduct laboratory analyses (CX 2, Tr. 27-29). Public Service Electric & Gas announced the building of its Salem Nuclear Generating Station, and in October of 1972 Jocher began working at the Station as an instrument technician, health physics (radiation protection) technician and chemistry technician (CX 2, Tr. 28). Beginning in 1979, Jocher began working for the Seabrook Nuclear Power Plant as a plant chemist (CX 2, Tr. 29). A year later, Jocher took a job as a senior engineering assistant at the Three Mile Island Nuclear Power Plant, responsible for restructuring and developing the chemistry department in the wake of the Plant's accident (CX 2, Tr. 32). Jocher returned to the Salem Nuclear Generating Station in 1981, serving as senior supervisor

and acting head of the department of health, physics and chemistry - a position analogous to chemistry manager at other nuclear facilities. Id. Beginning in 1983, Jocher worked for the Pennsylvania Power & Light Company Susquehanna Steam Electric Station as a senior chemist (CX 2, Tr. 36). In 1986, Jocher took a job at Georgia Power Company Vogtle Electric Generating Plant as a radiochemistry supervisor (CX 2, Tr. 41). From 1987 to 1990, Jocher worked at Houston Lighting 7 Power Company South Texas Project as a chemistry support general supervisor. Id.

Jocher's work history familiarized him with the two types of nuclear reactors in the United States - pressurized water reactors and boiling water reactors. His work history also gave him experience in the technical chemistry issues specific to nuclear power plants as well as an overall understanding of the workings of a nuclear power plant. Jocher co-authored a number of papers addressing issues facing the nuclear power industry and presented them at industry meetings (CX 5, 6, 7). These factors, along with Jocher's extensive work experience, led TVA to hire him in November of 1990 for the position of Manager, Chemistry and Environmental Protection, in its corporate nuclear office.

Jocher received his degree in Professional Studies from Elizabethtown College in January of 1990 (CX 1). In his TVA employment application, Jocher represented that he attended Elizabethtown for four years, earning a 3.0 grade point average. In fact, Jocher attended Elizabethtown over a period of eight years and also attended six other colleges and universities over twenty-eight years (RX 45, Tr. 343-44). Elizabethtown awarded Jocher his degree based upon academic credits accumulated at Elizabethtown, previously earned academic credits from other colleges and universities, and credits awarded for on-the-job experience (Tr. 361). Jocher's transcripts, which included all of the colleges and universities he attended, do not support a 3.0 grade point average (RX 45). In an employment application filled out in 1994, Jocher represented that he majored (32 credits) in nuclear chemistry (RX 43). Jocher's transcripts do not show 32 hours/credits of chemistry classes (RX 45).

B. Jocher's Tenure at TVA Corporate - November 1990 to March 1992

While at TVA corporate Jocher interacted with numerous people from both the corporate office and the sites. Donald Matthews, the chemistry program manager at Watts Bar, testified that Jocher got along well with other team members and behaved professionally during staff meetings (Tr. 541, 546). Dr. E.S. Chandrasekaran, a senior chemistry and environmental specialist at TVA who worked with Jocher prior to joining TVA and was brought to TVA by Jocher, testified that Jocher behaved professionally during staff meetings (Tr. 768-771, 778). Charles Hudson, manager of TVA's corporate radiological control group, testified that he had a good relationship with Jocher but had little knowledge of Jocher's dealings with others (Tr. 506, 511, 531). James Barker testified that he got along well with Jocher and was happy with the progress made at TVA corporate during Jocher's tenure (Tr. 475). Barker acknowledged that he did not have much opportunity to observe Jocher interacting with other managers and said that tension between corporate and site staffs had always been common (Tr. 488, 494).

The two crossed paths again after Jocher's assignment to Sequoyah. Jocher did not support Sabados' nomination as permanent chemistry manager at Browns Ferry (Tr. 1524, 1534-35, ALJX 39). And during a meeting in which Sabados offered Jocher constructive criticism, Jocher responded that he hoped to be able to "repay the favor." (TR. 1527-28, ALJX 39). Sabados felt that the remark could be taken two ways and chose not to take any affront to Jocher's remark (ALJX 39). In May 1992, McArthur talked to Sabados and McArthur understood that Sabados was not happy with Jocher about some issue. Jocher recalls that the issue may have involved his proposal to combine site chemistry and health physics into a single radcon organization. McArthur told Jocher what Sabados had said. McArthur recorded that Jocher intended to develop better rapport with Sabados and be a team player (ALJX 39, RX 12).

Jocher received an overall favorable performance review for his work at TVA corporate. The report read that Jocher "has met all his goals in a timely, professional manner. He and his staff have technical credibility with corporate and site organizations and have worked to establish a good team relationship." (CX 12). It was also noted that Jocher's "rapport with the site managers is established" and that "Mr. Jocher has provided leadership and solid technical direction to corporate and site chemistry." Id. The report noted that Jocher needed to place additional emphasis on delegation and meeting administrative commitments. Id. Jocher received a $3,800.00 performance based bonus that year (Tr. 279-280, CX 108).

C. Jocher's Assignment to Sequoyah

technician and supervisor levels; improper labeling of chemicals; and unfulfilled work requests (CX 162, 163, 164, 166, 167, 168, 170, 171). Most of these problems, while for years known to exist, still prevailed (Tr. 122, 134, 139, 147). Jocher summarized the problems in a report titled the "Chemistry Improvement Plan" and presented his findings to TVA management (Tr. 101, CX 38).

polite manner (Tr. 727). As part of Jocher's personnel changes, he attempted to transfer certain instrument maintenance work from the instrument mechanics to the chemistry technicians, to get higher priority for maintenance of the instruments. Jocher did not use proper channels and upset the personnel effected by his proposal (Tr. 717-721, 728, 1263-64, 1365-68, 1389-1390).

In February of 1993, Jocher called Sam Harvey, a manager Jocher had brought onto TVA's corporate chemistry staff in 1991, from Jocher's former place of work, the South Texas Nuclear Project. Jocher was angry because he felt that Harvey had improperly disagreed with him in discussions with a Quality Assurance auditor. That evening Harvey had a meeting with Dan Keuter and told him about the incident, that he was disturbed to be attacked, and that he did not know if he could work with Jocher. Keuter considered that Harvey had been a strong supporter of Jocher and told Harvey not to worry, that his job was secure. The next day, Harvey told McArthur, who told Jocher about Harvey's fear. Jocher promptly called Harvey to his office and attempted to reestablish their working relationship (ALJX 39).

1. Post-Accident Sampling System

The Post-Accident Sampling System (PASS) came about as a result of the accident at the Three Mile Island nuclear plant (Tr. 591). After the accident, it was necessary to obtain a sample of the reactor coolant system (Tr. 142). This posed a great risk of radiation exposure to the persons taking the sample (Tr. 591). Manufacturers devised a safer means of obtaining the sample by using a heavily shielded panel apparatus (Tr. 142-43). Federal regulations set forth the requirements that a licensee must meet in order to satisfy post-accident sampling conditions (Tr. 143). TVA did not have an effective PASS in place, and this was noted in a 1988 visit by INPO, which wrote that "the post-accident sampling system is not reliable due to equipment and procedure deficiencies." (CX 168). McArthur acknowledged that while TVA knew of the PASS problem, formal corrective action was never initiated (Tr. 1216-17).

quality remain open for extended periods of time." (CX 163). INPO's review found that approximately 35% of the on-line monitors were out of service that approximately 86% of these out of service monitors (30% of the total monitors) had been inoperable for over three months, with some dating back to 1990 (CX 65). INPO also noted that "some of the monitors that have been out of service for an extended period of time are significant in controlling plant chemistry." Id.

Unlabeled containers pose a problem for nuclear power plants because their contents (i.e., chemicals) may have a corrosive effect if it interacts with metal, heat or other chemicals inside the plant (Tr. 602). Consequently, all containers inside a power plant must be properly labeled. This process is known as chemical traffic control. A 1992 assessment of Sequoyah's chemistry program identified a problem with the Plant's chemical traffic control procedures; this finding resulted in a NRC Notice of Violation against TVA (ALJX 39).

In response to the Notice of Violation, TVA assured NRC that the problem would be rectified (CX 81). The nuclear consulting firm NUS conducted a chemical traffic control audit of Sequoyah and developed a list of approved and unapproved chemicals (Tr. 690). Subsequently, TVA's training department put together a 30 minute video explaining the proper chemical traffic control procedures (Tr. 604-05). TVA assured the NRC that designated departments would view the training film (CX 81). Patrick Lydon (TVA's Corporate Operations Manager) testified that TVA's goal was to have all on-site personnel view the film by a certain date (Tr. 604-05). On November 3, 1992, TVA sent the NRC a letter stating that they were in full compliance, meaning that all designated personnel had viewed the chemical traffic control training film (CX 82).

management would devote more financial resources to the program, thereby allowing Jocher to meet his goals (Tr. 1308-09, CX 125).

F. Documentation of Jocher's Performance While at Sequoyah

Jocher testified that while he was at Sequoyah he never received any verbal or written counseling or reprimands (Tr. 294, 302). Wilson McArthur testified that Joseph Bynum, Dan Keuter and himself had on occasion talked about Jocher's management problems (Tr. 1135). McArthur had also spoken to Jocher about his behavior. McArthur's work notes show that he spoke to Jocher on February 19, 1992, reminding him "to be less aggressive and to work with others" and that he "may not always be in fact right." (Tr. 1104, 1238, RX 12). On February 25, 1993, before Jocher returned to his corporate position, McArthur and Jocher discussed his need for rapport with the sites (Tr. 1129, RX 12, ALJX 39). On March 10, 1993, McArthur and Jocher agreed that Jocher would work on his management skills. McArthur recorded in his work notes that Jocher was committed to developing a better attitude (Tr. 1239-1240, RX 12, ALJX 39). At the hearing, Jocher acknowledged that McArthur discussed with him the need to "tone it down a little bit." (Tr. 1662). Jocher's work notes dated March 10, 1993, express concern that TVA might "ax" him (Tr. 295-96, CX 15). When questioned on how much he knew of McArthur's counselling of Jocher, Joseph Bynum replied that he took McArthur's word that he (McArthur) had counseled Jocher (Tr. 1419, 1462). Michael Pope, a member of TVA's Human Resources Department who was involved in Jocher's departure, testified that McArthur told him that he (McArthur) counselled Jocher during the previous year; however, Pope said that he was not aware of the existence of warning letters (Tr. 1346).

Jocher's second performance evaluation covered the period from October 1, 1991 to September 20, 1992, which included six of the twelve months he worked at Sequoyah (CX 14). As with his first performance review, Jocher's second review, which was signed by Patrick Lydon and Robert Beecken, was overall favorable. The review stated that Jocher

[H]as made significant progress on the Chemistry Improvement plan. He promptly identifies problems and aggressively works to correct them. . . . [Jocher] approaches all work as a member of [Sequoyah's] plant team while still providing input to the corporate Chemistry group. He has established high standards for himself and the Chemistry department and holds all accountable.

Id.

The review further read: "[Jocher] is very proactive and has established a run-it-like-it-was-our-own business attitude which had been missing in the Chemistry department." Id. The report listed a litany of Jocher's accomplishments during the six months he was stationed at Sequoyah, many of which have been discussed previously (improvement of chemistry instrumentation, defined job assignments, implementation of PASS procedures, implementation of raw cooling water and equipment control plan). Id. The review concluded that Jocher had made significant improvement in Sequoyah's chemistry department. Id.

As part of the performance review, McArthur submitted a letter listing Jocher's strengths and weaknesses. He noted Jocher's technical strength and high motivation as strengths. He also noted that Jocher's "support with others sometimes require[s] some work" and that Jocher did not "desire to work with those he assumes to be unqualified." McArthur concluded that Jocher was "in the category of someone that" he "would want on his team, either at Corporate or at the site." (CX 14, ALJX 39). McArthur acknowledged that his comments did not include observations of management problems, and that if he felt Jocher had problems in that area, he would have initiated progressive discipline procedures (Tr. 1224, CX 129A).

In February 1993, external review of the Sequoyah chemistry program by TVA's NSRB noted in connection with the Chemistry Improvement Program that "significant progress has been made in Site Chemistry." The NSRB also noted that there were still problems with basic housekeeping, data recording and labeling of some materials in the chemistry laboratory. These had been problems at Sequoyah prior to Jocher's arrival (ALJX 39). As Jocher's one-year temporary assignment to Sequoyah drew to a close, Robert Beecken (Sequoyah's Plant Manager) decided

that he did not want to retain Jocher at the Plant beyond the agreed-upon year (Tr. 1256, 1264-66). In Beecken's view, Jocher had failed to take effective action to resolve the problems that had been identified in the Sequoyah chemistry program (Tr. 1264-66). Jocher returned to TVA corporate on or about March 8, 1993, after completing his one year tenure at Sequoyah.

G. The Circumstances Surrounding Jocher's Departure from TVA

1993. His job search has resulted in his starting another job on March 15, 1995, with a different mix of annual compensation and benefits, which could be greater or lesser than his TVA compensation, depending on performance. Id.

Based on my review of the testimony and exhibits, summarized above, I make the following factual and credibility findings:

1. Respondent TVA is an agency and instrumentality of the United States Government. It holds several nuclear plant licenses from the United States Nuclear Regulatory Commission.

2. Between November 26, 1990, and July 6, 1993, Complainant, William F. Jocher was employed by TVA as a PG-10 nuclear manager (grade PG-10 on TVA's Management and Specialist Pay Schedule), in its corporate nuclear offices in Chattanooga, Tennessee, and at its Sequoyah Nuclear Plant, located near Soddy Daisy, Tennessee. Grade PG-11 is the highest grade on TVA's Management and Specialist pay schedule.

3. Jocher has considerable experience in the nuclear chemistry field and his technical skills are very sound. His managerial skills were lacking.

4. Jocher was effective in his work at TVA corporate. His efforts to promote the adoption of the hydrogen water chemistry plan proved successful and many of his ideas were well received by TVA management.

5. TVA management assigned Jocher to Sequoyah because he was the most qualified person for the job, not because they decided to give him a second chance to prove himself. Jocher had spent considerable time at TVA corporate investigating the problems at Sequoyah, documenting his findings in the "Chemistry Improvement Manual." TVA management impressed upon Jocher the need to revamp Sequoyah's chemistry program. Jocher arrived at Sequoyah knowing that he had only one year to improve the program and made laudable efforts to do so, as evidenced by the various programs he initiated.

6. Jocher was not the most popular person at TVA, nor was he the most disliked. He has an aggressive personality which at times made him difficult to work with. The worst relationship that Jocher had at TVA was with John Sabados, evidenced by the numerous confrontations that the two had. Jocher was sincere in his efforts to get along with Sabados after being told that he had to be more cooperative. The other "run ins" that Jocher had with TVA personnel, including those with Betsy Eiford Lee, K. Jill Wallace, Don Adams, David Sorrelle and Sam Harvey are best described as petty and are not unusual for a high pressured work setting such as TVA.

7. Jocher's comments during the TVA/NRC meeting were inappropriate. The meeting was an isolated incident, however, and did not pertain to his management style. TVA's decision to ask Jocher to leave was not rooted in this incident.

8. Jocher's testing of the technicians revealed a low level of theoretical knowledge in chemistry related matters. The fact that Jocher required the technicians to include their names on the test upset the them and caused morale problems. The language in the NSRB directive for administering the test implied that the test was not to be given anonymously. The results of TPEC's retest were similar to the results of the Jocher-administered test.

9. Jocher was shown to lack credibility in two areas - his educational background and the diesel oil spill incident at Sequoyah. Jocher misrepresented his educational background in both his TVA application for employment and post-TVA applications. Jocher's denial that he issued cleanup instructions for the spill was contradicted by a September 21, 1992 memorandum signed by him, which contained his proposal for cleanup of the spill.

10. Jocher was involved in four incidents of protected activity - the PASS SCAR, two PERS related to the overflow of reactor coolant, the on-line instrumentation SCAR, and his comments during the NSRB meeting concerning Sequoyah's chemical traffic control training. The problems reported by Jocher were programmatic in nature, more serious than isolated incidents. TVA management did nothing to discourage Jocher's actions;

corrective action reports are common at TVA and accepted by TVA management. The on-line instrumentation SCAR resulted in an April 22, 1994 Notice of Violation.

11. McArthur spoke to Jocher four times about his poor behavior - during the Sabados meeting; on February 19, 1992 (for his behavior at corporate); on February 25, 1993 (for the incident with Sam Harvey); and on March 10, 1993 (told of the six month improvement plan). McArthur recorded each of these meetings in his work notes.

12. Combined, Jocher's two performance reviews covered the period when he was at TVA corporate and six of the twelve months he was at Sequoyah. The reviews were favorable and for the most part did not support TVA's claims of poor management performance.

13. Jocher had on two occasions told McArthur that he was willing to resign if things were not working out. Jocher did not expect his comments to be taken seriously. Bynum, Keuter and McArthur met two times concerning Jocher's status at TVA. During the first meeting, all three agreed that Jocher would be given six months to improve his performance. Bynum alone abandoned the six month plan in the second meeting and ordered Jocher terminated. Keuter's and McArthur's answers to the TVA OIG questions concerning the events surrounding Jocher's departure were consistent and credible. Bynum's abandoning of the improvement plan (in early April of 1993) after being told by the NRC on March 22, 1993 that they were going to investigate Jocher's on-line instrumentation SCAR is suspect as I find the timing too coincidental.

14. Jocher did not negotiate his resignation. Either he signed the resignation letter or he was going to be fired. TVA's granting of a three month resignation date and McArthur's letter of recommendation served as accommodations to Jocher. McArthur's comments in the letter, that he would personally hire Jocher if the situation arose, were not meant to be taken literally as they were made only in the context of a letter of recommendation.

The Energy Reorganization Act prohibits employers subject to

its provisions from discriminating "in practically any job-related fashion against an employee because the employee participated in NRC investigatory or enforcement proceedings." DeFord v. Secretary of Labor, 700 F.2d 281, 286 (6th Cir. 1981). The statute has necessarily been interpreted broadly "to prevent employers from inhibiting disclosure of particular facts or types of information." Id. "The statute is aimed at preventing intimidation and whether the scope of such activity happens to be narrow or broad in a particular case is of no import." Id. The Act specifically provides protection to an employee who:

(A) notified his employer of an alleged violation of this chapter . . . ;

(B) refused to engage in any practice made unlawful by this chapter . . . if the employee has identified the alleged illegality of the employer;

(C) testified before Congress or at any Federal or State proceeding regarding any provision (or proposed provision) of this chapter . . . ;

(D) commenced, caused to be commenced, or is about to commence or cause to be commenced, a proceeding under this chapter . . . or a proceeding for the administration or enforcement of any requirement imposed under this chapter;

(E) testified or is about to testify in any such proceeding; or

(F) assisted or participated or is about to assist or participate in any manner in such a proceeding or in any other action to carry out the purpose of this chapter . . .

42 U.S.C. §5851(a)(1)(A)-(F).

Claims brought under the Act are subject to the following burdens of proof and production: (1) the complainant must first lay out a prima facie case of discrimination. DeFord, 700 F.2d at 286; (2) if the complainant satisfies the elements for a prima facie case, then the evidentiary burden shifts to the respondent to prove that the alleged

discriminatory activity was in fact legitimate, non-discriminatory. Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 254-55 (1981); (3) if the respondent meets that burden, then the complainant must demonstrate, by a preponderance of the evidence, that the articulated reason for the adverse employment action was a pretext for discrimination. Burdine, 450 U.S. at 256; Zinn v. University of Missouri, 93-ERA-34 and 36 (Sec'y January 18, 1996); and (4) if the trier of fact determines that the respondent was motivated by both prohibited and legitimate reasons, a "dual motive" analysis is necessary. Mt. Healthy Sch. Dist. v. Doyle, 429 U.S. 274 (1977); Dysert v. Florida Power Corp., 93-ERA-21 (Sec'y August 7, 1995); Dartey v. Zack Co. of Chicago, 82-ERA-2 (Sec'y April 25, 1983).

A. Prima Facie Case of Discrimination

The basic elements of a prima facie case of illegal discrimination under the Act involves a showing through direct or circumstantial evidence that: (1) the respondent is governed by the Act; (2) the complainant engaged in protected activity; (3) the complainant was subjected to adverse employment action by the respondent; and (4) a nexus exists between the protected activity and the discharge. DeFord, 700 F.2d at 286; see also Kahn v. Secretary of Labor, 64 F.3d 271, 277 (7th Cir. 1995); Bechtel Constr. Co. v. Secretary of Labor, 50 F.3d 926, 933-34 (11th Cir. 1995); Simon v. Simmons Foods, Inc., 49 F.3d 386, 389 (8th Cir. 1995). A complainant's burden at the prima facie stage is not onerous; rather, a prima facie showing is "quite easy to meet." Kahn, 64 F.3d at 277, quoting Burdine, 450 U.S. at 253. TVA holds several nuclear plant licenses from the United States Nuclear Regulatory Commission and is, therefore, governed by the Act. 42 U.S.C. §5851(a)(2)(A); see also Order Denying Motion For Summary Decision at 5-9. In their post-hearing brief, TVA conceded that the Complainant engaged in activity protected by the Act. Respondent's Post-Hearing Brief at 22.

Complainant must next demonstrate that he was subjected to adverse employment action by the respondent. As noted in the Findings of Fact, my review of the record showed that if the

Complainant did not sign the letter of recommendation, he was going to be fired. Where an employee is offered the choice between resignation and termination, a resulting resignation will not be considered voluntary where the threatened termination is shown to be based on illegal or improper motivations. Schultz v. United States Navy, 810 F.2d 1133, 1136 (Fed. Cir 1987); Christie v. United States, 518 F.2d 584, 588 (Ct. Cl. 1975).

In their post-hearing brief, TVA argues that the Complainant resigned voluntarily, thereby preventing him from demonstrating an adverse employment action. TVA contends that the Complainant: (1) "repeatedly broached the topic of his resignation, and management relied on his earlier resignation offers in deciding on a course of action" and (2) negotiated both his letter of recommendation and the three month resignation period. (Respondent's Post-Hearing Brief at 29-32) These arguments, however, are without merit. Rather than "repeatedly broach[ing] the topic of his resignation," Jocher had on only two previous occasions alluded to his willingness to resign if he did not fit in. As noted in the Findings of Fact, Jocher did not expect his comments to be taken seriously; he was not prepared to resign when he made those statements. Nor am I willing to accept TVA's contention that management relied on Jocher's earlier resignation offers in deciding on a course of action. The only manager consistently testifying to this proposition was William McArthur, with Dan Keuter and Joseph Bynum offering inconsistent versions, especially in their interviews with TVA OIG. Finally, as stated in the Findings of Fact, both McArthur's letter of recommendation and TVA's offering of a three month resignation period were mere accommodations to Jocher, not negotiated conditions to his resignation. Therefore, I find that the Complainant has demonstrated that the respondent subjected him to adverse employment action.

The final requirement for a prima facie case is a showing of a nexus between the protected activity and the discharge. Proximity in time between the protected activity and the adverse employment action is sufficient nexus to satisfy this requirement. Bechtel, 50 F.3d at 934; see also Bartlik v. United States Department of Labor, 73 F.3d 100 (6th Cir. 1996)(Ryan, concurring). Interpretations of this

standard vary to the point where "proximity in time" is non-definable, leaving the trier of fact to make a determination on a case-by-case basis. See Nolan v. AC Express, 92-STA-37 (Sec'y January 17, 1995)(two months between protected activity and adverse employment action sufficient to establish nexus); Zinn v. University of Missouri, 93-ERA-34 and 36 (Sec'y January 18, 1996)(six months sufficient to establish nexus); Thomas v. Arizona Public Serv. Co., 89-ERA-19 (Sec'y September 17, 1993)(twelve months sufficient to establish nexus); but see Cooper v. City of Olmstead, 795 F.2d 1265, 1272-73 (6th Cir. 1986), aff'd 848 F.2d 189 (6th Cir. 1988)(four months between protected activity and personnel action too long to establish nexus); Hughes v. Derwinski, 967 F.2d 1168, 1174 (7th Cir. 1992)(four months too long); Dillard v. TVA, 90-ERA-31 (Sec'y July 21, 1994)(one-and-one-half years too long). In the present case, the date of the adverse employment action, April 5, 1993, falls on the heels of Joseph Bynum's receipt on March 23, 1993 of NRC's letter informing him that the Commission was preparing to investigate the Complainant's on-line instrumentation SCAR. The timing of NRC's notification in relation to the Complainant's forced resignation is close enough in time to raise an inference of causation.

TVA's claim that two years passed between the Complainant's protected activity and his departure from TVA is simply wrong. TVA points out that the Complainant engaged in protected activity as early as November 1990, upon being hired by TVA, and this forms the basis for their two year interval assertion. However, the only documented incidents of protected activity occurred after the Complainant began working at Sequoyah - a period which covers approximately one year before he was forced to resign. Even if I were to credit TVA's assertion that the complainant engaged in protected activity as early as 1990, the fact that TVA may have waited until 1993 to force him out is not dispositive, as the March 22, 1993 letter may have served as the last tolerable incident of protected activity.

I also reject TVA's argument that Bynum had no knowledge of Jocher's protected activity. Bynum, as TVA's Vice President of Nuclear Operations, received copies of all of NRC's Notices of violations, SCARS and LERS (Tr. 1432). All SCARS initiated by Jocher were signed by him as the "initiating

supervisor" (CX 69, 75). I find Bynum's testimony that he did not have time to read the NRC notices non-persuasive, as he himself acknowledged that a SCAR is the most serious level of corrective action and garners the most attention from TVA management and the NRC (Tr. 1435). Furthermore, Bynum had an office at Sequoyah and spent one to two days a week at the Plant. He was in constant communication with Jack Wilson (Sequoyah Vice President), who undoubtedly was aware of the corrective action reports filed by Sequoyah employees, especially the ones filed by Jocher because he occupied a high level position (PG-10). Also persuasive is the fact that Bynum was intimately involved in the discussions surrounding the decision to ask Jocher to leave TVA. Had Bynum been unfamiliar with Jocher's actions at Sequoyah, as TVA claims, he would not have played such a major role in seeking his resignation.

Finally, TVA argued that workers at their plants routinely engage in protective activity, as it is an encouraged practice and considered part of one's job. TVA noted that Jocher was not alone in initiating corrective action reports, as even before Jocher arrived at Sequoyah forty other LER's and 478 other corrective action documents such as SCARS and PERS had been filed by other TVA managers and employers (Tr. 1296-99, RX 23). Dr. Don Adams (Sequoyah's Chemistry Program Manager) testified that "a number of corrective actions [had been] filed and reported on the [Sequoyah chemistry] program to document weaknesses." (Tr. 1047). However, TVA's reliance on these numbers is misguided. Jocher's protected activity exposed long known but neglected problems at Sequoyah and was of a type that generated a higher level of concern with both TVA and the NRC. Jocher's protected activity was programmatic in nature, involving system wide defects rather than isolated incidents (Tr. 216-17, 667-69, 1437). While Jocher may not have been the first person to identify the problems at issue, he was the first person to initiate corrective action proceedings for them. By doing so, he overtly held senior TVA management responsible for neglecting to take corrective action on known problems. As such, Jocher's protective activity, rather than involving routine matters, is distinguishable from other types of protected activity because it drew an inordinate amount of unfavorable attention to TVA management.

Therefore, I find that the Complainant has established a prima facie case of discriminatory intent on behalf of the Respondent.

B. Rebuttal of the Prima Facie Case

Once a complainant satisfies his prima facie case, the burden shifts to TVA to produce evidence of the existence of a legitimate, non-discriminatory reason for the adverse employment action taken against a complainant. St Mary's Honor Center v. Hicks, 509 U.S. 502 (1993). To carry its burden, TVA must only produce evidence of some legitimate grounds for the April 5, 1993 forced resignation of the Complainant. It does not have to prove at this stage that it was actually motivated to seek Jocher's resignation because of the proffered reason. Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 254-55 (1981).

TVA presented evidence that its decision seek Jocher's resignation was based on Jocher's poor management style. I find that this proffered explanation constitutes a legitimate, non-discriminatory reason for the adverse action taken against him. Therefore, I find that TVA has successfully rebutted the Complainant's prima facie case.

C. Pretext

Once the respondent articulates a legitimate, non-discriminatory reason for seeking the complainant's resignation, the burden shifts back to the complainant to prove that the proffered legitimate reason is a mere pretext rather than the true reason for the challenged employment action. Burdine, 450 U.S. at 236; Carrol v. United States Dept. of Labor, 78 F.3d 352 (8th Cir. March 5, 1996); Zinn, 93-ERA-34 and 36. The complainant may demonstrate pretext by showing that discrimination was more likely the motivating factor or by showing that the proffered explanation is not worthy of credence. The proof must go beyond disbelief of the respondent - the factfinder must believe the complainant's explanation of intentional discrimination. St Mary's Honor Center, 509

U.S. at 509; Frady v. Tennessee Valley Authority, 92-ERA-19 and 34 (Sec'y October 23, 1995).

As evidence that their decision to ask for Jocher's resigna- tion was not pretextual, TVA cites to Jocher's poor management style, arguing that their decision was a business one, not subject to challenge. TVA points to Jocher's inability to get along with co-workers and supervisors, his behavior during meetings, and improper testing of Sequoyah personnel as evidence of Jocher's poor management style.

for administering the test implied that it was not to be given anonymously (Tr. 954-55, RX 20). As well, despite allegations that the Jocher-administered test did not properly test the technicians' knowledge and asked improper follow-up questions, the results of TPEC's retest were similar to the results of the Jocher-administered test (ALJX 39, Tr. 1505).

Nor do Jocher's ill-advised comments during the TVA/NRC meeting mitigate a finding of pretext. The meeting was an isolated incident and did not pertain to Jocher's management style. Besides, TVA's decision to seek Jocher's resignation was not dependent on the incident (Tr. 1468-69). Similarly, Jocher's less than honest portrayal of his educational background and unsupported account of his handling of the oil spill at Sequoyah pertain more to his credibility than his managerial style.

Also significant is the fact that TVA's claim of poor managerial style as a reason for seeking his resignation is not supported by Jocher's two performance evaluations. Jocher's first performance review, which covered most of his tenure at TVA corporate, was favorable. The report read that Jocher met all of his goals in a timely, professional manner and had established credibility and a "good team relationship" with the corporate and site organizations (CX 12). The report also noted that Jocher established a rapport with site managers and provided leadership and technical direction to corporate and site management. The second performance evaluation, covering the remainder of Jocher's term at TVA corporate and half of his term at Sequoyah, was equally favorable. The report stated that Jocher had made significant progress on the Chemistry Improvement plan, that he approached work as a member of Sequoyah's team, and had established high standards for himself and his department. The report commended Jocher for his positive approach, commenting that he has a "run-it-like-it-was-our-own business attitude which had been missing in the chemistry department." (CX 14). The performance evaluations were written prior to any claim being filed in this case and represent unbiased accounts of Jocher's performance at TVA and are accorded substantial weight.

Besides the performance evaluations, the record evidences other accomplishments of Jocher supporting the Complainant's contention that TVA's claim of poor managerial style was a

pretext for discrimination. During his first year at TVA, Jocher received at $3,800.00 bonus. While at TVA corporate, Jocher promoted the adoption of a hydrogen water chemistry plan at Browns Ferry, recommended a treatment plan for Browns Ferry's main surface condenser, and developed a corporate chemistry manual to promote uniformity across the site chemistry programs. (Tr. 61, 71, ALJX 39, CX 173). His efforts to promote the adoption of the hydrogen water chemistry plan proved successful and many of his ideas were well received by TVA management. Upon moving to Sequoyah, Jocher instituted numerous accountability measures to improve the chemistry program; monthly chemistry reports documented a reduction in the amount of reported errors (CX 55D-J). A February 1993 external review of Sequoyah's chemistry program by TVA's NSRB noted significant progress (ALJX 39).

Documented negative comments of Jocher's performance were few. Jocher's first performance evaluation noted that he needed to place additional emphasis on delegation and meeting administrative commitments (CX 12). McArthur wrote in Jocher's second performance review that Jocher's "support with others sometimes requires work" and that he did not "desire to work with those he assumes to be unqualified." (CX 14, ALJX 39). Finally, NSRB's February 1993 external review also noted that there were still problems with basic housekeeping, data recording and labeling of some materials in the chemistry laboratory - problems that existed prior to Jocher's arrival at Sequoyah (ALJX 39). These comments do not evidence a significant degree of managerial shortcomings, especially when viewed in light of the numerous favorable comments.

Furthermore, if TVA was troubled by Jocher's managerial performance, they failed to adequately notify him of their concerns. TVA contends that they counseled Jocher on numerous occasions about the need to improve his attitude toward his co-workers. However, the record evidences only four instances over a two year period where McArthur spoke to Jocher about the need to improve his relationships with his co-workers. Rather than qualifying as formal counseling, as TVA contends, McArthur's talks with Jocher were informal, better characterized as passing comments. As such, I am unwilling to endorse TVA's argument that

they repeatedly counseled Jocher about the need to improve his managerial skills.

elements of the prima facie case, suffice to show intentional discrimination; no additional proof of discrimination is required. Bechtel, 50 F.3d 926.

D. Dual Motive

The dual motive test requires that when both discriminatory and non-discriminatory reasons for the adverse employment action have been presented, the respondent must demonstrate by clear and convincing evidence that it would have taken the same unfavorable personnel action in the absence of protected activity. Mount Healthy School Dist. v. Doyle, 429 U.S. 274 (1977); Dysert v. Florida Power Corp., 93-ERA-21 (Sec'y August 7, 1995); Dartey v. Zack Co. of Chicago, 82-ERA-2 at 6-9 (Sec'y April 25, 1983). The application of the clear and convincing standard represents a change in the law. The Comprehensive National Energy Policy Act of 1992 raised the burden of proof for the respondent in a dual motives analysis in an ERA whistleblower case from a preponderance of the evidence to clear and convincing evidence. 42 U.S.C. §5851(b)(3)(D); Yule v. Burns Int'l Security Serv., 93-ERA-12 (Sec'y May 24, 1995). The Secretary has noted that while there is no precise definition of "clear and convincing evidence," the courts recognize that it is a higher burden than "preponderance of the evidence" but less than "beyond a reasonable doubt." See Grogan v. Garner, 498 U.S. 279, 282 (1991); Pacific Mutual Life Ins. Co. v. Haslip, 499 U.S. 1, 22 n.11 (1991). The existence of a legitimate reason for the taking of an adverse employment action against a complainant does not, by itself, carry a respondent's burden in a dual motives analysis. Rather, the record must establish that the respondent would have taken the action for the legitimate reason alone. See Martin v. Department of the Army, 93-SDW-1 (Sec'y July 13, 1995).

The Respondent has failed to demonstrate by clear and convincing evidence that Jocher's poor management style was the sole reason for seeking his resignation. As discussed supra, Jocher possessed advanced technical skills and was a valuable employee to TVA. The problems he had with some of his co-workers were not disruptive to the point where it was necessary to ask him to leave. Simply put, had Jocher not engaged in protected activity TVA management undoubtedly would have overlooked his managerial inadequacies, probably working with him to improve those skills. Indeed, TVA was prepared to do

this until Joseph Bynum abruptly abandoned the six month improvement plan after learning of the NRC's intention to investigate Jocher's on-line instrumentation SCAR. Therefore, I find that the respondent failed to satisfy the dual motives burden.

The Respondent, Tennessee Valley Authority, violated Section 210 of the Energy Reorganization Act.

In order to determine the amount of backpay, attorney fees and other costs, the Complainant, through counsel, shall file, within thirty (30) days of this Recommended Decision and Order, the following information with this Office with proof of service on the Respondent: (1) A documented list of all claimed backpay, damages and other costs which he is claiming by virtue of his termination of employment from TVA; (2) A documented fee petition and bill of costs; and (3) A list of any income which would constitute offsets to the above.

Respondent will then have twenty (20) days thereafter to file any comments and/or objections with this Office. Thereafter, a supplemental Order for fees and costs will issue.

Accordingly, it is hereby recommended that an ORDER be issued by the Secretary of Labor providing that the Tennessee Valley Authority is to pay to Complainant all damages plus costs and expenses, including attorney fees, reasonably incurred in connection with the bringing of the complaint upon which this recommended order is issued, such as may be approved by the Secretary upon issuance of the Supplemental Recommended Decision and Order.

ROBERT L. HILLYARD

Administrative Law Judge

NOTICE: This Recommended Decision and Order and the administrative file in this matter will be forwarded for final decision to the Administrative Review Board, United States Department of Labor, Room S-4309, Francis Perkins Building, 200 Constitution Ave., N.W., Washington, DC 20210. See 61 Fed. Reg. 19978 and 19982 (1996).