Dated: March 14, 1995
Case No.: 94-ERA-32
In the Matter of
CHARLES J. BOYTIN
Complainant
v.
PENNSYLVANIA POWER AND LIGHT
COMPANY
Respondent
David P. Tomaszewski, Esq.
Wilkes-Barre, PA
For the Complainant
Susan E. Spangler, Esq.
Allentown, PA
For the Respondent
Before: JEFFREY TURECK
Administrative Law Judge
RECOMMENDED DECISION AND ORDER
This is a case arising under the Energy Reorganization Act
of 1974 ("the Act"), 42 U.S.C. 5851, and the applicable
regulations codified at 29 C.F.R. Part 24. A complaint was filed
with the Department of Labor by Charles J. Boytin ("complainant")
who claimed that he received an unfavorable appraisal review for
the year 1992 from his supervisor at Pennsylvania Power and Light
Co. ("respondent") after speaking with the Nuclear Regulatory
Commission ("NRC") regarding alleged safety violations occurring
at respondent's Susquehanna nuclear power plant. Complainant
supplemented this charge when he received his 1993 evaluation
which he likewise characterized as adverse and retaliatory. The
complaint was investigated by the District Director of the
Employment Standards Administration, Wage and Hour Division, who
concluded that discrimination was a factor in the action taken by
the respondent in respect to the complainant. Respondent
[PAGE 2]
appealed this determination and requested a hearing. The hearing
was originally set for September 19, 1994 in Philadelphia,
Pennsylvania but was rescheduled for October 27-28, 1994 and
relocated to Wilkes-Barre, Pennsylvania. The record was closed
with the filing of post-hearing briefs on January 27, 1995.
Complainant's annual evaluation was less favorable in 1992
and 1993 than it had been in previous years. His appraisal
rating dropped from a two to a three which, according to
complainant, has adversely affected his salary. Complainant
alleges that this action was taken in response to a report he
made to the NRC which contained serious allegations about his
supervisor, Darryl Zdanavage, and an assistant security shift
supervisor, Ronald Kishbaugh, and triggered an on-going
investigation by the NRC.
Respondent contends that complainant's 1992 and 1993
appraisal ratings were fair evaluations of complainant's job
performance in those years based on criteria articulated by
Zdanavage when he became supervisor of complainant's shift, not
retaliation for charges he made to the NRC.
Findings of Fact and Conclusions of Law[1]
a. Background
Respondent operates the Susquehanna steam electric station,
a nuclear power plant, located north of Berwick, Pennsylvania (TR
24). As mandated by the NRC, respondent's Susquehanna plant
maintains a security force to protect the site (TR 126). This
security force is organized into four sections, security
operations, training, support, and site access, which report to
the manager of nuclear security, Richard Stolter (TR 127-28).
Security operations, specifically, is divided into five shifts
designated A-E (TR 128; EX 1). Each shift is headed by a
supervisor; beneath him or her, in order of rank, are the
assistant shift supervisor, controllers or senior security
officers, and finally, level 2 and level 1 security officers (TR
129).
Complainant lives in Hunlock Creek, Pennsylvania (TR 15).
He was hired by respondent on September 4, 1982 as a temporary
security officer at its Susquehanna plant and was made a
permanent employee, assigned to the "B" shift, shortly thereafter
(id.). He remained in this position until November of
1984 when he was promoted to senior security officer (TR 16). As
a senior security officer, complainant receives reports from
level 1 and 2
[PAGE 3]
security officers, ensures that the computer system is fully
functioning, and dispatches security officers in response to
emergencies (TR 22-24).
A security officer's performance is evaluated annually,
usually in March,[2] by his or her immediate supervisor; thus,
as a controller, complainant is evaluated by his security shift
supervisor (TR 135). Performance evaluations document an
employee's achievements and shortcomings during a given year and
are also taken into account when considering an employee for
promotion and determining an individual's merit increase in
salary (TR 135). A poor evaluation may also cause a
person to be laid off if there are personnel cut-backs at the
plant (TR 220). Employees are rated on a scale of one to six,
one being the best under the current system (TR 17); employees
actually receive fractional results which are rounded to the
nearest whole number rating (EX 2, at 4). For example,
complainant received a fractional score of 3.23 which was rounded
to three. Had his fractional score been 3.5 he would have
received a rating of four. Previously, the scale had been
reversed, and six was considered outstanding (TR 135).
After a supervisor has evaluated an employee, the appraisal
is sent up the chain of command where it is reviewed, commented
upon and signed by the next most senior individual (id.).
It is returned to the preparer who in turn discusses it with the
employee who is the subject of the evaluation (TR 136). The
employee has an opportunity to ask questions and make written
comments before signing it (id.; TR 141). If negative
comments are made by the employee, the evaluation is again
forwarded up the chain of command for a second review (TR 142).
If an employee's annual evaluation shows a "significant" negative
change in that individual's performance, an interim appraisal or
mid-year review will be made (TR 139). A drop from a level two
to a level three rating is not considered a significant change in
performance by the supervisors who testified (see TR 138,
169, 203-04). To illustrate the type of situation necessitating
interim reviews, respondent produced the evaluations of a
security officer level 2 whose appraisal rating dropped from
level three in 1991 to level five in 1992 (EX 41, 42). Every
several months she was re-evaluated and work plans were
formulated to return her performance to the level of a competent
worker (EX 43, 44, 45).
An employee's appraisal rating is designed to have a two-
fold effect on his or her salary. The rating determines an
employee's target salary range (expressed in terms of percentages
[PAGE 4]
called compa-ratios) and his or her actual salary (CX 15, at 6).
Respondent's salary scale is designed around the midpoint salary
which has been designated as 100% (id., at 7). The
midpoint salary is the salary appropriate for a "fully competent"
worker (id.) Thus, employees who are rated very good or
outstanding have target salary ranges above the midpoint. For
example, the level two target salary range is 104-112% of the
midpoint salary on respondent's salary scale (id., at 7).
Stolter testified that employees would have to receive a level
two rating for four to five years before they would be expected
to attain their salary range (TR 217). Ideally, each year an
employee receives a merit award which brings him or her closer to
the midpoint or their target salary range if it is above the
midpoint. The amount of a merit award is determined by an
employee's immediate supervisor who takes into account both the
employee's target salary range and the fractional score on his or
her evaluation (EX 2, at 4). Recently, though, there has been a
decrease in the size of merit awards because the deregulation of
the utility industry has caused respondent to tighten its budget
(TR 189-90).
After having received what would be an appraisal rating of
three under the current system in 1988, complainant was
consistently rated as a level two performer from 1989 through
1991, first by John Paciotti, a security shift supervisor who at
the time was an assistant security shift supervisor (TR 372, 376-
77), and then Freda Burd, also a security shift supervisor who is
currently on long term disability with the company (TR 52-53).
According to John Paciotti's testimony, complainant warranted a
level two rating in both 1989 and 1990 because he trained two
individuals for senior security officer positions, served on a
task force that addressed personnel substitutions, and
voluntarily distributed overtime in addition to competently
performing his normal duties (TR 374-80). Paciotti believes that
all employees should start out at level three but can earn higher
ratings through their achievement in a given year (see TR
426). Freda Burd, on the other hand, while also rating
complainant at level two, approached performance evaluations with
a different philosophy. She began by reviewing past performance
reports to have a basis from which to judge an employee's work
over the year (TR 71-72). Rather than awarding only those
employees who took on additional responsibilities during a
particular year with level two ratings, she believed that level
two ratings were not unusual and, in fact, expected by management
who looked for high levels of performance (TR 57). Personally,
Burd focused on the amount of sick time used by employees and
their phone etiquette; she referred to these areas as her "pet
peeves" (TR 69-70). About the complainant specifically, Burd
stated that he was an
[PAGE 5]
outstanding employee (TR 56); they got along well together and
shared many of the same opinions (id.). She did state,
though, that co-workers whose viewpoints differed from
complainant's would not characterize him as a team player like
she did (id.).
In January 1992, Darryl Zdanavage became supervisor of the
"B" shift (TR 21). Like Paciotti, Zdanavage believed everyone on
his shift who competently performed his or her job rated a level
three; higher ratings were to be awarded to individuals who
exceeded their job requirements and assumed added
responsibilities (TR 477). From competent employees, Zdanavage
expected honesty, open communication, minimal use of sick time
for bona fide medical problems, a proper attitude, neatness and
an appropriate appearance (TR 440). Zdanavage also took note of
the number of overtime hours employees worked (TR 388).
Zdanavage testified that immediately upon assuming this position
he encountered problems with the complainant. He contends that
complainant disagreed with the sick time policy, complained about
his salary in regard to the pay scale's midpoint, acted as the
shift spokesman in regard to security officers' disagreements
with the assistant shift supervisor, Ron Kishbaugh, and reacted
bitterly when his paperwork was cited for grammatical errors (TR
457-60). Yet his relationship with the complainant was amicable
through September of that year (TR 20-21), and the only
deficiency brought to the complainant's attention was
complainant's self-assumed role as a shift spokesman (TR 27-28).
Complainant actually received high praise from Zdanavage for
having admitted to leaving a door unsecured because this mistake
probably would have gone undetected but for complainant's honesty
(TR 26).
On September 20, 1992, complainant reported Zdanavage and
Kishbaugh to Scott Barber, the on-site NRC representative, for
allegedly violating NRC regulations (TR 28, 32-33). Among the
most serious allegations were that Zdanavage had given the
complainant an emergency drill time line two weeks before a drill
exercise, cheated on a recertification exam by instructing the
complainant to change an answer, and by-passed site entry
procedures (TR 28-30). He also reported Kishbaugh for removing
property from the facility (TR 31). Rumors began circulating
around the plant that someone had made a report to the NRC (TR
306).[3] An internal investigation was launched and when
confronted by Brian McBride, a training officer, complainant
admitted to speaking with the NRC (TR 35-36).[4] In the
meantime, complainant had been interviewed by the NRC at his home
and had spoken to another NRC representative numerous times over
the telephone after the NRC launched a full-scale investigation
(TR
[PAGE 6]
33). By the end of October 1992, everyone in the security
section was aware of complainant's report to the NRC (see
TR 104, 116, 306, 522-23).
Despite his knowledge of the allegations made against him by
the complainant, Zdanavage remained complainant's shift
supervisor and evaluated him, for the year 1992, at level three
after rounding down his 3.23 fractional score (EX 56; TR 464).
He noted weaknesses in complainant's interpersonal and
communication skills and under dependability complainant was
faulted for using 100 hours of sick leave (id.). Forty
minutes after signing this appraisal, complainant decided to
exercise his right to make comments (TR 478). He questioned
Zdanavage's statement that he becomes bitter when criticized and
exchanges favors such as volunteering for overtime at Christmas
in order to gain support during confrontations (EX 56; TR 44-49).
These comments were forwarded to Richard Stolter who discussed
them with complainant and agreed with Zdanavage's review (EX 56).
Stolter, moreover, testified that although he is not aware of any
serious deficiencies in complainant's performance, he has had
concerns about complainant's attitude and conduct for several
years (TR 148).[5] Yet, prior to this evaluation there is no
documentation that would indicate that complainant's supervisors
were displeased with his attitude (TR 221).
Meanwhile, complainant contends and other witnesses
testified[6] that Zdanavage's conduct changed after
complainant's report to the NRC (TR 38-41, 104, 116-17). Post
checks--rounds conducted twice during a 12 hour shift by shift
supervisors and assistant shift supervisors--became extremely
brief (TR 38), complainant's work was increasingly criticized (TR
39), and both Zdanavage and Kishbaugh responded slowly if at all
to requests by complainant to use the restroom (TR 40-41).
Kishbaugh admits post checks were shortened but denies any
failure on his behalf to respond to requests by complainant to
use the restroom (TR 346-48).
Zdanavage's evaluation of the complainant for 1993, though,
remained at level three (EX 57). Zdanavage stated that
complainant's sick time usage still exceeded the company's goal
of 40 hours per employee, and complainant never volunteered for
overtime (id.). Prior to completing this evaluation in
its final form, Zdanavage took the added precaution of having
Stolter and Roland Ferentz, security operations supervisor,
review it in draft form; both agreed with the appraisal (TR 276;
481-82). Complainant again made negative comments. Complainant
contends that Zdanavage lowered his dependability rating despite
the fact
[PAGE 7]
he improved his sick time usage by 29.5 hours because Zdanavage
added the criteria of overtime as one of his considerations when
evaluating an employee (TR 73). Most overtime is voluntary, and
there has never been any problem filling it (TR 199); complainant
prefers not to volunteer for overtime because he has a family (TR
74-75). This time a meeting was held between complainant,
Zdanavage, Bob Byram, senior vice president of the nuclear
department, and Bob Gombos, vice president of human resources and
development, where it was decided that a plan should be developed
for Zdanavage and complainant to improve their working
relationship (TR 177-78).
As supervisor of the "B" shift, Zdanavage also evaluated two
other senior security officers and one assistant shift supervisor
(TR 439). Although in fractional terms, these individuals
received higher scores than the complainant, their appraisal
ratings were all level three (TR 248). In fact, Zdanavage has
never given a level two appraisal rating (TR 477). Even though
complainant's fractional score was 3.23 on both disputed
appraisals, he received a merit increase of 4.4% in 1992 and 3.9%
in 1993 (EX 7). His salary continued to approach the midpoint;
in 1993 it was 99.3% and the following year it was 99.7%
(id.). Only two employees in complainant's salary group
had reached the midpoint by 1993, and they had both received
fractional ratings that year of 2.51 (id.).
Complainant contends that Zdanavage gave him a level three
rating for both the years 1992 and 1993, which affected his
salary, in retaliation for his report to the NRC. Although all
the other senior security officers received level three ratings,
complainant argues that because his fractional score, 3.23, was
the lowest given by Zdanavage his merit increase was less than
that of his co-workers. More importantly, had he received a
level two evaluation both those years, his salary should have
been within the 104-112% salary target range since he would have
held a level two rating for four years. On this basis,
complainant theorizes that he lost $1811.59 in 1992 and $1536.92
in 1993 in actual wages (TR 87). Not only was his actual salary
affected, complainant argues that he also lost approximately
$1500 in company shares and contributions to the savings plan (TR
88). Respondent states that complainant was evaluated fairly and
that he was not harmed by the one level drop in his rating.
There was no guarantee that complainant's salary would have
reached the 104-112% salary range since merit increases have
decreased recently. Moreover, there is no exact correlation
between an employee's fractional rating score and the amount of
his or her merit increase since other factors are taken into
[PAGE 8]
consideration by a supervisor.
b. Burden of Proof
Initially, in cases brought under the Act and other similar
statutes protecting whistleblowers, it is the complainant's
burden to make a prima facie showing that:
1. The complainant engaged in conduct protected by the
applicable statute;
2. The party charged with unlawful discrimination knew of
the employee's protected activity;
3. The complainant was subjected to adverse action; and
4. The adverse employment action was motivated, in whole or
in part, by the employee's protected activity.
See, e.g., Dartey v. Zack Co., 82-ERA-2 (April 25, 1983);
McCuiston v. TVA, 89-ERA-6 (Nov. 13, 1991); see also
Mackowiak v. University Nuclear Systems, Inc., 735 F.2d 1159
(9th Cir. 1984). If the complainant can establish each of these
elements, then the burden shifts to the employer to articulate a
legitimate, non-discriminatory reason for its action. I find
that the complainant has failed to meet his burden of proof.
c. Protected Activity
Complainant claims that his communications with the NRC
while employed by the respondent constitutes protected activity
under the Act.
Protected activity is defined at 29 C.F.R. §24.2(b).
Under the regulations, if an employee:
(1) Commenced, or caused to be commenced, or is about to
commence or cause to be commenced a proceeding under [the
Act];
(2) Testified or is about to testify in any such proceeding;
or
(3) 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 purposes of [the Act],
[PAGE 9]
he has engaged in protected activity.
It is clear that the complainant engaged in activity
protected by the Act. Whistleblower statutes are designed to
protect those who give information to the government in
furtherance of enforcing the acts in question. N.L.R.B. v.
Scrivener, 405 U.S. 117 (1972). An action does not have to
have been instituted against the employer under the Act to find
that an employee's giving of information to a government agency
is protected activity. Id., at 121-22.
In the present case, complainant reported alleged regulatory
violations at the Susquehanna nuclear power plant to the NRC.
This activity constitutes assistance in an action to carry out
the purposes of the Act, the third definition of protected
activity. Under DeFord v. Department of Labor, 700 F.2d
281, 286 (6th Cir. 1983), the employee does not actually have to
participate through testimony or otherwise in a formal
proceeding. Instigating an investigation by the commission or
participating in one is enough to satisfy the requirements for
protected activity. Therefore, complainant's initial report to
the NRC and subsequent cooperation with their investigation
qualifies as protected activity.
d. Respondent's Knowledge of the Protected Activity
The second element that the complainant must prove is that
the employer knew about the protected activity. Dartey,
supra. The employer cannot retaliate for an employee's
participation in protected activity if it was not aware that the
protected activity occurred.
In this case, complainant, by providing the NRC with
information about alleged violations under their regulations, was
engaged in protected activity. Plant employees including
complainant's superiors were aware of complainant's report. He
first spoke with the on-site NRC representative, Scott Barber,
while at his post on September 20, 1992. Barber had gained
access to the security control center using his access card
which, at the Susquehanna plant, creates a computerized log
detailing who enters the area and when. Thus, a record
containing the date and time although not the contents of this
meeting exists. Rumors also began circulating throughout the
plant after this meeting and Stolter, who allegedly demanded to
know why complainant and Barber met for an hour and 45 minutes,
ordered an in-house investigation. When questioned, complainant
admitted that he made a report to the NRC; complainant personally
[PAGE 10]
related the details of his report to Roland Ferentz and Brian
McBride, and Ferentz, in turn, told Stolter and most likely
Zdanavage by the end of October 1992 (TR 306-311).[7] Zdanavage
claims not to have known the specifics of complainant's report
until 1993 but his observed attitude towards complainant
indicates that he knew at least that complainant's report
contained allegations against him. Moreover, Kishbaugh knew
specifically that he was implicated in complainant's report
making it likely that Zdanavage had similar knowledge (TR 345-6).
Thus, respondent had actual knowledge of complainant's protected
activity.
e. Adverse Action
Since respondent knew of the protected activity, the third
element needed to establish a prima facie case of
retaliatory discrimination is that an adverse employment action
occurred. Complainant alleges that the drop in his appraisal
rating from a two to a three in March 1993 constituted an adverse
employment action. Complainant failed to present evidence to
support this contention.
The word "adverse" is defined as "unfavorable or harmful."
Webster's New World Dictionary 20 (2d ed. 1986). Clear
examples of adverse employment actions include dismissal,
demotion, or an involuntary transfer. See Mandreger v.
Detroit Edison, Co., 88-ERA-17 (Mar. 30, 1994); Nichols v.
Bechtel Construction, Inc., 87-ERA-44 (Oct. 26, 1992);
English v. General Electric Co., 85-ERA-2 (Feb. 13,
1992). A performance evaluation can also constitute an adverse
employment action. For instance, in Bassett v. Niagara Mohawk
Power Corp., 85-ERA-34 (Sept. 28, 1993), complainant's
performance was characterized as borderline between meeting
expectations and not meeting expectations; it was further stated
in the evaluation that if complainant's performance did not
improve he might receive an unsatisfactory rating. The Secretary
held that these negative comments and threats affected the terms
of complainant's employment, and thus the performance evaluation
was considered an adverse employment action. Id.
This case is clearly distinguishable from Bassett.
For receiving a level three performance rating was not
unfavorable; was not harmful to complainant's career or salary;
and did not affect the terms of his employment in any manner.
A level three appraisal rating is considered "good" (EX 2,
at 3). In descriptive terms, a level three employee's
[PAGE 11]
"[a]ccomplishments consistently [meet] position requirements and
performance expectations" (id.). Complainant's
evaluations for the years 1992 and 1993 did not contain negative
comments as described in Bassett. Zdanavage rated
complainant fully competent, and although he noted areas in which
complainant's attitude could improve, the overall evaluation was
clearly positive.[8] Since the purpose of performance
evaluations is to "improve performance by highlighting areas of
strength that can be effectively applied and weaknesses that need
to be corrected" (EX 2, at 1), it is unrealistic to expect to
receive an entirely favorable performance evaluation; there is no
suggestion in complainant's evaluation that he was in danger of
dropping another rating level.
Likewise, respondent did not consider a single level
decrease in an employee's rating to be significant when that
employee's performance is still considered good. The appraisal
guidelines state that "changes in performance levels are to be
expected" (id. at 3). Such a change may be caused by
having fewer opportunities to excel in a given year, working
under a new supervisor, or receiving a promotion where job
duties change and an employee must develop new skills
(id.). Complainant's rating had previously dropped from
what is a two on the current scale to a three when he was
promoted from a security officer level 2 to a senior security
officer. In this instance, complainant's rating dropped after
Zdanavage became his supervisor in January 1992. Again,
Zdanavage believes that all employees who competently perform
their jobs merit a level three. As noted above, Zdanavage has
never given a level two rating, and management is aware of his
evaluation philosophy, characterizing him as a "tough grader" (TR
205).
Complainant argues that by receiving a level three rating
rather than a level two rating for the years 1992 and 1993, his
salary was adversely affected. However, the evidence fails to
show that the complainant's salary increased any less than it
would otherwise have increased due to his level three appraisals
in 1992 and 1993. First, there was never a guarantee that
complainant would have attained the target salary range for a
level two employee if he received a level two rating for the
years 1992 and 1993. No written company policy exists mandating
attainment of the target salary range after a specific number of
years at a given rating. There is only testimony that the target
salary range should be reached after four to five years at the
same rating level. Before his 1992 evaluation, complainant's
salary was 98.9% of the midpoint (EX 7). To attain the 104-112%
salary range his salary would have had to increase by at least
[PAGE 12]
5.1%. Since respondent decreased the size of merit awards, it is
unlikely that complainant would have attained this salary range
in one or two years even if he continued to receive level two
appraisals. Only two employees in complainant's salary group
have even reached the midpoint, let alone a salary four percent
above the midpoint.
Second, although an employee's fractional rating is
considered by his or her supervisor when awarding merit
increases, that rating is not the only factor considered in
awarding raises. In 1992, complainant received a merit increase
of 4.4% or $33 per week (EX 7). Yet, in 1990 and 1991 when
complainant received level two ratings and the average merit
increase awarded by respondent was larger, complainant's salary
only increased by $37 and $39, respectively (EX 10). Moreover,
in 1993, complainant received a higher merit increase than the
other two employees who received the same fractional rating;
complainant's increase was 3.9% whereas the other two employees
with fractional ratings of 3.23 only received increases of 3.1%
and 3.8% (EX 7). Further, another employee received a higher
fractional rating, 3.18, than complainant but a lower merit
increase, 3.7% (id.). Similarly, an employee with a
fractional rating of 3.15 was only awarded a merit increase of
3.8% (id.). Thus the evidence fails to prove that
complainant's salary was adversely effected by his performance
appraisals in 1992 and 1993.
Accordingly, there is no evidence that the decrease in
complainant's appraisal rating from level two to level three had
any negative consequences, and complainant has failed to
establish that his 1992 and 1993 appraisals constituted an
adverse action. Therefore, complainant has faled to prove one of
the elements of his prima facie case, and his claim must
be dismissed.
Furthermore, even if the drop in complainant's appraisal
rating can be considered a per se adverse action, the
evidence fails to prove that this action was motivated by
complainant's protected activity. Although it may be difficult
to perceive that Zdanavage rated the complainant fairly,
considering the serious nature of complainant's charges against
Zdanavage, there is absolutely no evidence to the contrary.
Zdanavage clearly articulated his expectations as a supervisor to
the entire shift. Complainant, in both 1992 and 1993, greatly
exceeded the company's goal of 40 hours of sick time usage per
employee per year. Likewise, his volunteer overtime hours were
the next to lowest in 1992 and the lowest in 1993. There is also
no evidence
[PAGE 13]
that complainant performed duties in addition to his normal job
requirements as he had in previous years when he received level
two ratings. More importantly, Zdanavage rated all senior
security officers at level three; he has never given a level two
rating. Thus, his level three ratings for the complainant are
consistent with every other evaluation Zdanavage has given.
Accordingly, complainant has not met his prima facie
burden in regard to the elements which form the basis of his
complaint. The theory of complainant's case is that respondent
gave complainant poor evaluations in 1992 and 1993 in retaliation
for his report to the NRC. In fact, complainant's evaluations
for those years were not adverse, and were not motivated by the
protected activity in any event. Since respondent did not
discriminate against the complainant, the complaint must be
dismissed.
RECOMMENDEDORDER
It is recommended that the complaint of Charles J. Boytin
for discrimination under the Energy Reorganization Act be
dismissed.
_____________________________
JEFFREY TURECK
Administrative Law Judge
SERVICE SHEET
Case Name: Charles J. Boytin
Case No.: 94-ERA-53
Title of Document: Recommended Decision and
Order
A copy of the above-titled document was mailed to the following
individuals on March 14, 1994.
___________________________
Brenda D. Smith
Legal Technical
[PAGE 14]
Michael J. Corcoran
District Director
U.S. Department of Labor
Employment Standards Admin.
Wage & Hour Division
Penn Place, Room 3329
20 N Pennsylvania Ave.
Wilkes-Barrier, PA 18701-3594
Monica Gallagher
Associate Solicitor for
Fair Labor Standards
U.S. Department of Labor
Room N-2716
200 Constitution Ave., N.W.
Washington, D.C. 20210
Director, Office of
Enforcement
Nuclear Regulatory Commission
Washington, D.C. 20555
Susan E. Spangler, Counsel
Pennsylvania Power and Light
2 North 9th Street
Allentown, PA 18101
H.S. Stanley
VP-Nuclear Operations
Pennsylvania Power and Light
Allentown, PA 18102
Charles A. Boytin
RR #1, Box 258A
Hunlock Creek, PA 18621
David P. Tomaszewski, Esq.
Borland & Borland
1100 PNC Bank Bldg.
Wilkies-Barre, PA 18701-2597
Don Holody
Enforcement Officer NRC
475 Allendale Road
King of Prussia, PA 19406
[ENDNOTES]
[1] Citations to the record of this proceedings will be
abbreviated as follows: EX--Respondent's Exhibit; CX--
Complainant's Exhibit; TR--Hearing Transcript.
[2] Although respondent evaluates its employees' performance
annually, appraisal ratings do not commence at the beginning of a
year, but rather generally cover the period from March of one
year to March of the following year. For purposes of this
decision, an appraisal will be referred to by the year in which
the rating period began. Thus, complainant's 1992 evaluation
covered the period March 1992 to March 1993.
[3] Complainant's meeting with Scott Barber was never secret.
Barber gained access to complainant's post by key carding through
a door (TR 32-33). This action created a computerized record
that placed Barber and the complainant together at the plant for
almost two hours (id.). Barber was later questioned by
Stolter regarding the nature of their conversation (TR 33).
[4] This internal investigation was discontinued by Stolter when
he discovered that the NRC was conducting its own investigation
(TR 163).
[5] For example, complainant proposed that training days be
Monday through Thursday, but Stolter opted to conduct training
Tuesday through Friday because many holidays and hunting days
fall on Mondays. Complainant was upset with this decision and
voiced his displeasure directly to the vice president.
Apparently complainant had been so confident that his proposed
schedule would be adopted that he told his wife accept a similar
shift work schedule (TR 151-52).
[6] Erika Oswald worked at the Susquehanna plant as a security
officer from 1989 to 1994 (TR 99). She testified that Zdanavage
and Kishbaugh's attitude towards the complainant changed after
complainant's report to the NRC became common knowledge (TR 104).
Donald Houseknecht, a level 2 security officer, corroborated her
testimony (TR 116-17).
[7] Ferentz testified that he "may have" discussed with Zdanavage
the specifics of complainant's report to the NRC (TR 311).
[8] For example, in both 1992 and 1993, Zdanavage stated that
complainant was above his peers in job performance. See
EX 56, at 10; EX 57, at 10.
