This production process is governed by numerous health and safety regulations including those of the Nuclear Regulatory Commission (NRC) and the Occupational Health and Safety Commission (OSHA). Mr. Jones held various environmental, air monitoring and other positions at the PGDP of USEC until February 1985, when he was promoted to Support Services Department Manager in the Safety and Health Department, where they conducted environmental audits and internal audits in the plant to insure compliance with environmental safety and health rules and regulations.

   When Jones was transferred, despite the fact that there may have been procedures available that were used in the non-SAT areas such as operating MIEs, I credit his testimony that there was no specific non-SAT training procedure or course available to train the trainers teaching non-SAT job training.

   However, there is something that I do not understand: The USEC original Safety Analysis Report (SAR) was explained by Mr. Jones to be what USEC provided to the NRC on how it was going to insure public health and safety, and to comply with NRC rules and regulations. Section 6, page 6.6-1 through 14 of the SAR-PGDP was offered and admitted into evidence, requiring training programs and setting the standards for organization, supervision and review of programs governing the actions of USEC management officials first and foremost, and then Mr. Jones, who worked under their supervision. ( JX 5) Section 6.6.3.1. thereof lists job positions/worker classifications that require certain training programs, and states: "On site transportation of UF 6 is covered by SAT-based training for tasks assigned to selected personnel within the programs listed in Section 6.6.3.1." However, not included in the list are workers who would be specifically classified as MIE/PIT operators. In spite of the fact that this was not explained at the hearing, I would have believed that any workers routinely assigned the task of on-site transportation of UF 6 would also be subject to the requirement that they would be covered by SAT based training. Since both parties in this case appear to have accepted the fact that MIE/PIT training was not governed by SAT-based training, I must accept that as fact, even though I do not understand it, and will act accordingly.

   Also, since the UF6 cylinders are moved by a class of MIE/PIT vehicles known as cylinder haulers, without stating what other such vehicles might have had the capability of handling such containers, or what other vehicles might have handled other radioactive materials, I would also have thought that all such operators should at least be prepared for the eventuality of such on site transportation, and would have been trained accordingly, using SAT procedures.

   Again, these were not explained at the hearing, by either party, so I must make my own conclusions on the matter, but only to the extent that it may affect the outcome of the case. It does not but it lends strength to Jones' position that the MIE/PIT's should have been governed by the SAT procedures and the TRG.

   Starkey testified that he said no to Mr. Jones' transfer request, since he did not have a place to put him, and he had been brought explicitly into the training department to do what he had been assigned to do. Jones testified that he remained in the program at that time; that he was essentially forcibly removed from the program later on, and that he had said that the forcible removal would not do his career any good.

   On February 3, 2000, Mr. Starkey met with Messrs. Bucy, Fowler and Jones, and told Jones his progress was inadequate since he did not have an action plan in two months; that he had not met the schedules, and that he was moving the leadership from Fowler to Bucy "to change one of the variables that he was trying to assess," to get Jones adequate direction and leadership, and to get the MIE program more closely aligned with maintenance activities than it was. Starkey pointed out that he had rated both Jones and Fowler below expectations in the MIE program area, in his "midcycle review," since it was not clear to him that Fowler was giving Jones "adequate direction." However, he attributed 80% to Jones and 20% to Fowler for the failure to complete a module. Starkey testified that while Jones had raised his lack of training and experience to him, Jones did not assume personal responsibility for them, so he remained unhappy with him. I discredit Starkey on this allocation of blame, since he acknowledges knowledge of Jones' lack of experience and training; gives him the higher percentage for the problem, with 20 % to Fowler, and allots none of the cause/effect percentage to himself.

   Mr. Starkey's testimony regarding his unhappiness with Jones ultimately begged the question of the extent to which his lack of training and experience involved severe safety matters that were being legitimately raised by Jones, and not resolved by either Fowler, Bucy or even Starkey himself, which I find substantially contributed to the real cause of the lack of success of the program. Starkey's allocation of blame turns the managerial obligation on its head, when both the selection of Jones and the failure to get him safely and adequately trained lay squarely on the shoulders of management.

    On that same day, Mr. Jones addressed an e-mail to Messrs. Bucy, Starkey and Fowler over confusion about his supervision by Fowler being transferred to Bucy. (CX 27) Later that day, a handwritten note by Department Manager Ron Wetherell appears on the February 3rd e-mail from Mr. Jones addressing continuation with Fowler on all issues except MIE, for which he would report to Bucy; that this would be for a few weeks until another person could be transferred into the MIE position; that thereafter, Jones would continue to work for Fowler; that Jones was not happy about this; that Jones had requested the reassignment and that it was denied and that Wetherell had not been able to act upon it then. (CX 27) It also confirms a meeting with Jones, Bucy and Fowler, with Starkey not mentioned.

   Mr. Wetherell's note then characterized Jones' responses at the meeting as having offered a lot of excuses about problems in the program and not being able to generate a training module for the mobile industrial equipment program for over two months, without stating what they were, or examining or evaluating them. Wetherell stated that he had seen no attempt by Jones to learn what he needed to learn to do so; that there was no excuse for not being able to write a training module with literally thousands of modules available to model one on; that, again, he had seen "no movement" on it, and that Jones had said that he agreed with what was being said. (CX 27) He then directed Fowler and Jones to develop a performance plan for Jones, together, and told them that he wanted it, "very detailed." At the end of the meeting, when asked for comments, Wetherell wrote that Jones stated, "I have nothing constructive to offer." Wetherell confirmed that when Jones stated a concern that this would hurt his career, Wetherall told him that it already had. (CX 27, p. 3)

   At this point, I find it hard to reconcile the fact that Jones, by Wetherell's own wording, had "offered a lot of excuses," yet that there was no evaluation of the points that Jones had raised, and he simply concluded that there was no excuse for Jones not being able to write a training module in two months. Of course, Jones had nothing further of a constructive nature to offer. What he said about his own lack of experience and training in doing so, and the points that he had raised about getting the job done, had been rejected as mere "excuses." Wetherell totally failed to perceive the managerial/ supervision problem in all of this.

   Reasons set forth by Mr. Jones as a basis for his request to reassign him as stated in his January 10, 2000, letter were then repeated by him in his own January 12, 2000, Employee Mid-Year Progress Assessment form (CX 9), and were then used negatively by Fowler in his February 7, 2000 evaluation. On the January 12th form, Jones noted that his request to have the MIE program transferred was denied, and that he had remained performing the duties previously described, without the necessary training and expertise that he had raised. Mr. Starkey testified that Jones never requested training on MIE modules. In the Progress Assessment form Jones specifically stated: "[N]eed training as instructor/developer to effectively correct problems in mobile industrial equipment program." (CX 9) I find that Jones did request training.

   Mr. Jones did not agree with the "B" rating in relation to what had been previously stated and told that to Fowler. A "post-it" note from Fowler attached to the evaluation, confirms what Jones said at the bottom of the evaluation, where Jones drew a line through his signature, added the date: "2/8/00" and wrote, "I don't agree with assessment & am going to meet with Employee Concerns to resolve this issue." He then signed "Douglas Jones 2-8-00" (CX 10) At the hearing, I acknowledged that the inconsistency within the "B" description, in which Fowler appears to recognize the blame for the problem as a company problem, which Jones "inherited."

   When the February 7th evaluation was received by Mr. Jones, he was told by Ron Fowler in an e-mail that he was to submit to him "a plan for his new non-mobile duties." In forwarding Fowler's e-mail to Ron Wetherell, Jones stated that it was not a plan required whenever a "B" has been received but was merely to establish his new duties, and repeating his responses and objections to the evaluation, after which it "would be reevaluated by all those involved." (CX 16)

   Following the transfer of the program to Mr. Bucy from Mr. Fowler, Mr. Jones testified that Bucy was not pleased about it. Jones told Bucy that he had found an OSHA website "guidance" on how to devise a compliant PIT module. Bucy went to the website, printed the guidance and told Jones to print the front five or six pages and use them for the PIT modules. Jones had seen the OSHA guidance and stated that he could not use it as a substitute for a PIT module because it must be specific to his own plant, "as the one I eventually created was." Jones resisted this, and felt that Bucy took it as an act of insubordination. Bucy, "became very angry" for not doing it, which resulted in a "loud argument" right outside his office, which was witnessed by several others. Mr. Jones stated that he then broke off the argument, and went to Instructional Technologist Gregory, since Bucy was his supervisor, and told him that he did not think that Bucy knew what he was talking about. There is no evidence of any other such argument or explosion between Jones and any of the supervisors involved in this matter, and I saw no evidence that it had been reduced to writing as any sort of a personnel action.

   Mr. Bucy, however, was angry, both at Jones and at having been given another task to do. He hung a sarcastic note on his door, stating: "Danny Bucy in charge of maintenance training, mobile industrial equipment, training equipment ..." and then a blank to fill in. Bucy, Jones testified, then became "aloof" toward him, and gave him the impression that he did not want him "in or around his office..." After that, Jones saw no benefit in asking questions or for guidance from him. Thereafter, Bucy appeared "cool" (not "cruel" as incorrectly reported in the transcript. T 234 - 235) toward Jones, rating him lower for the layoff, even though there had been no reprimand or other adverse action at the time of the incident. Bucy testified in his deposition that he did not like the fact that a program that was operating normally was given to Fowler and Jones, and then went into PITs; that no one was getting trained, and that it was then turned over to him to "fix." Notwithstanding Bucy's reaction, Jones stated that he proceeded at that time to finish what he was doing the lawful way.

   Mr. Jones filed an employee concern over the evaluation on February 9, 2000, repeating his objections to the "B," and restating his MIE assignment and lack of MIE training. (CX 11) He testified that it was Mr. Bucy who advised him to do so, and verified that on the Employee Concern Intake Statement, he also wrote: "If we don't put an adequate mobile industrial equipment training program in place, our employees' safety is at risk." (T 101-102) The document shows that he did so, checking "Yes" where it asked whether a safety issue was involved. (CX 11) This was clearly protected activity.

   Mr. Bucy confirmed in his deposition that when called by Employee Concerns over Jones' "B" rating on the evaluation, that he told the investigator that he did not feel that Jones had received the proper instructions because he never knew how to do anything as far as work in the other areas he was working in. (i.e. In other words, the MIE/PITs.) He stated that Jones did not know the forms to use, and that he did not feel that he got the proper instructions for developing PIT modules. This statement did not appear in the results of the Employee Concern investigation as later reported by Mr. Wetherell. (JX 1, Bucy depo. p. 28)

   In a memo of 3/15/00 from Mr. Jones to Mr. Wetherell, which set forth who he would report to (Bucy), Jones testified that Mr. Starkey had said that Ron Fowler "could have provided ... better guidance as a manager to fix the mobile industrial equipment program." (T 107) Jones repeated what he had previously told Wetherell, and had stated in his Progress Assessment (CX 9), that at no time during the period covered by the evaluation was his performance called into question, and there was no documentation to that effect. (CX 23, Item #1) He also repeated that: (2) he had accepted the MIE duties not knowing the complexities of the program or the depth of expertise that would be required to correct them; (3) he had approached management on these and was merely told to "fix the program"; (4) he had been freely admitting his shortcomings with the program, and was told to form a TRG (Training Resource Group); (5) the program owner was not in favor of a TRG, and was not required to do so; (6) he was "waived" for the requirements of instructor/ developer, yet required to do those duties; (7) when he approached an Instructional Technologist (Trainer's trainer) for assistance, he was told that the content of programs should be defined by the TRG; (8) having him develop the MIE program, or anyone presently employed in training, was a violation of a specific OSHA regulation, and (9) summarizing, he was told to "fix" the program without the proper tools and guidance. (CX 23)

   However, in a full responsive memorandum from Mr. Wetherell to Mr. Jones on April 4, 2000 regarding investigation of both his evaluation and related employee concern, (CX 25) Wetherell referred to their February 9, 2000 meeting on the evaluation, the transfer of Jones to the Training Organization in April 1999, and Jones' assumption of the MIE program in July 1999. He repeated that Jones had cited his lack of MIE experience and insufficient guidance and their not sending him to the Training Developer class as resulting in his "B" rating in the "Other" evaluation category involving job knowledge, initiative and interpersonal skills criteria. The concern had been referred to Bill Thompson in Human Relations (HR) to consider the "B" rating, and Messrs. Fowler, Bucy and Starkey were interviewed. It was the opinion of HR that even though he did not attend the writing/developer training module he, "did not demonstrate the initiative expected from an employee" in his labor grade. The report faulted Jones for taking over two months to create an action plan, that resulted in having to obtain an ATR extension. It stated that other procedures and training modules were referred to for his use but not utilized, thus impacting this adverse view of his initiative. Consequently, HR did not recommend any change to his mid year appraisal. Wetherell agreed, after interviewing Starkey and citing Jones' college degree, teaching certificate and availability of training modules to use as models. Of interest is the fact that while Starkey agreed with HR's conclusions, he did feel that Fowler could have provided better management direction. In closing, Wetherell recommended that Jones work "diligently" on his PIPC during the balance of the year to eliminate his "B" rating, and that he utilize the employee concerns program in the future, even though he was not successful in its current use. (CX 25) Wetherell did not mention Bucy's view of the lack of training and preparedness of Jones for the PITs assignment, or the reasons that Jones had raised, branded by him as "excuses" without further evaluation.

   I do not give much weight to the HR report's conclusions as objective. It is my opinion that the HR Committee did not properly evaluate the alerts that were being provided by Mr. Jones on the condition of the MIE training program, and the lack of training and safety and health conditions that were being raised by him. They merely mimicked the opinions of management while overlooking the failure of management to properly assess its role in the failure to have a timely training module, and then blamed their oversights on Jones. The only people that HR talked to were Messrs. Fowler, Bucy and Starkey, and not Jones. The "investigation," if any, involved circular reasoning, relying on the very people who gave the rating in the first place. The result could only have been the same on the "B" rating, which I find to have been unwarranted, and based upon the prior statements in the evaluation.

   With regard to there being hundreds of training modules available to utilize as examples, as stated by Mr. Wetherell in his February 3rd handwritten note on the e-mail from Mr. Jones to Messrs. Bucy, Starkey and Fowler, Jones testified that there were training procedures that showed one how to develop a training module, but they applied to SAT based training (Systematic Approach to Training) and not to non-SAT based training, which is what they were doing with the MIE/PIT training, and which is so stated right in the procedure. As a directive on what to do, Mr. Gregory had simply told Jones to form a TRG, which is an approach of the SAT procedures, not a task or job analysis needed in these particular matters concerning PITs. Using the UF6 cylindar haulers as an example, Jones testified without contradiction, that they hauled cylinders of uranium hexafloride (UF6) with them, and that one could be dropped, broken and cause release of UF6, causing it to be inhaled, with an immense safety concern. He compared the suggestions being given to him on creating a written module by referencing hundreds of modules training available to utilize as examples, to flying a plane, giving the flight manual to the pilot trainee, and telling him to go fly the plane using the documents, and not having been actually trained on the equipment.

   Mr. Jones testified that he followed the program written by Mr. Fowler as agreed to by him on March 15th as a "program" but not a PIPC. This resulted in his being assigned to Mr. Bucy to work on the development of MIE module "full time," meaning six months or longer, spending 100% of his time on it. Jones testified that while this was a satisfactory solution to the problem at the time, since it was around the time that he had received his MIE training, in fact he also continued to provide training in environmental compliance (RCRA ) as there was no one else to provide it.

   Simply because it was questioned by management witnesses, I find that Mr. Jones was subjected to pressure to complete a training module as well as an action plan, and that this did not cure the factors that contributed to the timeliness problem which was created by management.

   One ATR involved powered industrial trucks (PITs). Mr. Jones was responsible for upgrading the module, with first, one deadline, then a subsequent one, and later a compliance deadline. Mr. Starkey asked him to file an additional ATR on it, to get the action plan and corrective process scheduled and resolved. Jones determined that there had been a desire at USEC to upgrade the MIE program and equipment for years, as demonstrated in a prior ATR discussed by Starkey. However, he testified without contradiction that from the time Jones arrived in the department in April 1999 to August 1999, Mr. Henderson advised against finding those problems and fixing them. When Henderson left in August, however, Jones was actually assigned the task of revising the MIE/PIT module. During that same time period, he testified that it was not as though he was sitting idle; he was performing training, and was in contact with Industrial Hygiene and Safety and the internet looking for examples and module packages that he could buy, and, as above stated, he did submit other draft modules.

The Layoff :

   Mr. Jones testified that he first learned that he would be subject to an involuntary reduction in force (IRIF) on July 5, 2000, although the rest of the plant was informed that there would be an IRIF on June 27th or 28th, and he was off from work. He said that Mr. Fowler called and told him to report to Mr. Starkey's office, where he was told by Starkey that he was "being IRIF'd." When Jones asked if it was due to his performance, Starkey said, "No." Jones then went to Fowler's office, told him of the action, gathered his belongings and left in Fowler's truck when he offered a ride to the gate.

   Regarding the cause of the layoff, Mr. Starkey testified that meetings with senior managers resulted in the need for additional, significant reductions in costs. Thirty percent would be in personnel, with a number being allocated to both the Portsmouth and the Paducah plants, including two to the training department at Paducah consisting of one trainer and one non-exempt employee. Either Mr. Starkey's secretary or a records clerk had to be one to go from the non-exempt area, and one in the production support training area, which encompassed MIE. Since they expected the demand for such training would drop in a year or two to one half of a full time employee, that became the choice.

   Respondent had adopted an elaborate procedure for rating candidates for layoff. Some 67 criteria, called "Competencies," were developed for consideration in rating those candidates, (CX 18 - 20) with the advice of an outside consultant. USEC's Candidate Selection Comparative Summary, the IRIF evaluation form, listed as the candidates for RIF with that current description, "Edwin C. Craven" and "Douglas W. Jones," with the job position titles of "Trainer, Technical," as "position 91." It showed that the final ratings for that department were "run" on May 23, 2000. (CX 18) Mr. Starkey testified that they utilized "objective criteria to make a subjective process more objective" to rate the candidates, employing a list of 67 "Competencies" to do so, with the help of a consulting company. In the selection process, direct division level managers from various portions of the plant were assembled on two teams; half from Paducah and half from Portsmouth, who were then assigned to one or the other plant. Each were allocated job classifications to evaluate. Mr. Wetherell was in the group for trainer positions. The Competencies were then utilized to evaluate trainers, among other employees. This resulted in the job profile ratings of the candidate selection summary. (CX 18) Mr. Starkey confirmed in his testimony that he got with the managers, Bucy and Fowler, to discuss Mr. Jones and Mr. Craven, that the consensus rating of the competencies of the two, were made as objective as possible, recognizing that they were, "dealing in a subjective area."

   Further discussing the Competency on "Creativity", Mr. Jones read aloud that it stated: "Comes up with a lot of new and unique ideas. Easily makes connections among previously unrelated notions. Tends to be seen as original and value added and brainstorming sessions – settings." He testified, without contradiction, that he did away with the training course calling safety procedure overview that had been in place as a worthless course, taken every three years for license recertification, but consisting only of forklift and crane as a classroom course. Once the TRG was formed for the MIE/PIT training module, he suggested various ways to comply with OSHA regulations to insure compliance and benefit the plant. The only brainstorming sessions (not "settings" as stated in the transcript - T 201 - 202) that he could recall were ones that he had done in the TRG, while there were none with management. He stated that he asked questions, but there was very little brainstorming going on. Basically, the OSHA regulations did not require retraining, but did require documentation that they were trained, which is how they determined that they were in compliance. For instance, he did the research on that, and reported it to management; he would take the published OSHA interpretations for a piece of equipment A, and then apply those to equipment B to make an analogy so that they could use the same interpretation on both, and management reacted favorably to these.

   Mr. Bucy acknowledged that the PIT module created by Mr. Jones was the first PIT module developed there. Still, he rated him a "2" in the competencies for his creativity, but could not remember the criteria used for that. When asked, he said that there was a negative comment from the maintenance department on the module, but could not remember the source; nor did he make a written record of it. He also confirmed that they had never had the program rewritten, implying that it was still in use. I conclude that this rating was unjustified by Mr. Jones' performance, and not otherwise explained by management witnesses.

   On "Customer focus", Mr. Jones confirmed what appeared to be an ongoing issue between level of training and compliance with the law. For instance, in explaining the necessity for a the level advocated by Mr. Jones, the person running the TRG would take what he said into consideration to determine what was a PIT and what was not. He was never aware of any issues between management and him in the environmental area. As an example he met with the waste management official, and reviewed its training module for compliance, and was favorably received. Again, this testimony was uncontradicted.

   It was the contention of Mr. Jones in his testimony that there is a necessity that one know in advance how they are going to be rated or graded for layoff so that one could work toward those objectives, and that while "Integrity and Trust" was also listed for the scheduled evaluations, and "Interpersonsl skills" in the evaluations could be interpreted as, "Personal savvy," in the Competencies, he was unaware that he would be rated on the rest of the Competencies as he later learned of them. While Jones maintained that the Competencies rated for the layoff (CX 18) should not have been implemented for his job, "unless you've been told beforehand," he conceded that they otherwise might have been appropriate if you were just making up the form, "from scratch", to evaluate people. I agree with this assessment. However, the employees should have been so informed, particularly because there might have been variances in the definitions of the competencies versus the areas covered in the evaluations, and that there might have been other areas to have been evaluated.

    Mr. Jones satisfactorily rejoined queries on the following Competencies: "Comfort around higher management," "Composure," "Customer focus," "Integrity and Trust," "Personal learning," "Presentation skills," "Priority setting," and "Technical learning," and the extent to which he viewed those areas as encompassing various sub-areas of criteria and his agreement or disagreement on both what they encompassed and the respective ratings. (CX 18 & 20)

   I credit and give great weight to Mr. Jones comparison of the "Competencies" to the scheduled evaluation ratings, and otherwise give his testimony great weight. I give little weight to the testimony of Mr. Starkey on these points, based upon my preceding determinations regarding his testimony concerning the treatment of Mr. Jones after his transfer into the training department, in particular with regard to Jones' raising of safety issues in his own inexperience and lack of training, which I conclude were primarily managerial responsibilities, being foisted onto Jones.

   Mr. Starkey testified that when he met with Mr. Jones to tell him of the layoff, Jones asked if it was "performance based." Starkey said that it, "was not;" that it was not "for cause," and that if it was, he would not have needed an RIF to do so. He stated again, that, "It was a business decision based on – as objective an evaluation process as the company could devise to meet the its business needs. He denied that it was quite the contrary, noting the problems with the MIE program brought to attention by him, and his "chagrin" was in not moving fast enough to resolve them, which was his "whole responsibility," which he had just stated was 80% the responsibility of Jones, and 20% Fowler. Again, it is my conclusion that this is reversed, and an attempt to hold Jones responsible for managerial responsibilities, without any attribution to Starkey, himself.

    When Mr. Starkey was asked whether there was a barometer in the trainers' cases such as that for a secretary typing so many words per minute, he stated that the Competency rating process was a "consensus" process; [meaning that when a consensus of the joint management team agreed on a rating, that was what the candidate was given.] When asked what that barometer was for that in Craven's case, Starkey then used anecdotal evidence of Craven's actual performance after his transfer to the MEI/PIT module project as a verification, stating that the module that he used was the cylinder hauler training module. He proceeded to confirm that although the signature on it was Craven's, the module "may well have been" the preparation of Mr. Jones. (CX 17) Despite Craven's signature on the module, Jones testified without contradiction that he also prepared the cylinder hauler training module. The module included identifying the OSHA regulations related to the actual haulers used at USEC. Mr. Starkey's testimony is simply not credible on his explanation of Craven's superior performance. Since this was all Jones' work, it could not credibly stand as a verification of what Craven had done after Jones' IRIF.

   Mr. Starkey testified that while one half a full time employee (Mr. Craven) then did the MIE program after the IRIF, he did not know whether it was a safe practice to have only one half an employee assigned to the MIE training.

   Mr. Starkey confirmed that it was supervision that had to insure that employees performed their duties; that Jones' supervisor from April 1999 to March 15, 2000 was Mr. Fowler, that there was no documentation that Jones was to do only the MIE training; that training was only supposed to be done for new MIE employees; that the RIF of Henderson necessitated assignment of all his work to someone else; that he was aware of an NRC finding that employees were performing in an atmosphere that had affected the use of ATRs; that he did not recall use of the word "chilled" or "chilled environment;" in connection with that investigation, and that the program had to be "improved so that folks would be more comfortable using the employee concerns program." In other words, it was not unreasonable for Jones to conclude that the objection to his use of the employee concerns program compared to his own results was confirmed.

   Mr. Jones confirmed that Mr. Bucy was one of the managers who rated him for layoff; that, just two weeks prior to the layoff; the last correspondence between Mr. Wetherell and Mr. Weber involved Jones' employee concern on the training modules discussing his feeling of that Bucy had set him up in suggesting that he file the employee concern in the first place, and that Bucy then did not back him on it, and that, shortly after that, he was laid off. I can only conclude that this credibly creates a timing issue that must be resolved favorably to the benefit of Jones, and so find.

   When asked whether any shortcoming of his own contributed to his lack of making significant success, Mr. Jones answered, "No," and added that he was given the job and told to do it when he was not adequately trained, and that there was a tremendous safety issue, there, to which Mr. Starkey merely replied, "Fix it." The answers to the questions on the Competencies posed by Respondent, were all the ones previously set forth as the problem areas in the letter of Mr. Jones on January 10, 2002 in which he responsibly requested that the MIE duties be transferred from him. (CX 8) (While I believe that the "No" is an overstatement on the part of Jones, born, perhaps, of the changed atmosphere from that of the MIE/PIT area to the more academic/scientific side of the plant's business, the fact is that he did learn; that this is reflected both in his ultimate completion of the module, and that the scores that he received from the trainees in the program, as well as its continued use, verify its success. In other words, the attempt to pass the responsibility for the timeliness shortcomings of the new program onto the shoulders of Mr. Jones, must fail as a business justification for his layoff.

Remedy:

   Mr. Jones testified that when he was laid off, he was off from work from July 5th to October 9th, 2000, or three months, and that, when he was finally hired by his employer at the time of the hearing, Lan Associates, he still worked on the USEC Gaseous Diffusion Plant grounds doing subcontract work for the Weskem Company, a Department of Energy (DOE) contractor for Bechtel Jacobs. His annual USEC salary was $52,000.00, and $49,500.00 for Lan; while Lan has no pension fund, as did USEC. He received normal severance pay, rather than enhanced severance pay, and received the normal for Kentucky maximum unemployment compensation benefits.

   In addition, he testified that he was, "hurt, disappointed, devestated, especially after seeing ... I had worked there for 12 years and for the first 11 I was a good employee, and then, all of a sudden, I was ... rated as just a really, really bad employee ... that will tend to depress you." (T 177)

Applicable Law:

   As discussed above, the present case has been brought under the employee protection provisions of the Energy Reorganization Act. Its "whistleblower" provisions are designed to protect employees from retaliation for protected activities such as complaining, testifying, or commencing proceedings against an employer for a violation of this Act. Devereux v. Wyoming Association of Rural Water, 93-ERA-18 (Sec'y, October 1, 1993). The employee protection provisions of the Act have been construed broadly to afford protection for participation in activities in furtherance of the statutory objectives. See, Devereux, supra, and Tyndall v. U.S. Environmental Protection Agency, 93-CAA-6, 95-CAA-5 (ARB, June 14, 1998), final order approving settlement and dismissing complaint, 96-ARB-195 (ARB Sept. 25, 1996). For reasons more particularly set forth herein, I find Mr. Jones had either raised particular issues or begun proceedings, or was about to begin, proceedings under the Act, and will proceed accordingly.

    The purposes and employee protections of The Energy Reorganization Act ["ERA"], 42 U.S.C. Section 5851, address "whistleblower" protection against harassment and retaliation by an "employer" for employees involved in the nuclear industry, who: (1) notify their employer of an alleged violation, (2) oppose a practice that would be a violation of the Atomic Energy Act of 1954, (AEC) or (3) testify before Congress or any Federal or State agency regarding a violation of the AEC.

   It states that "[n]o employer" may discharge or otherwise discriminate against any employee with respect to compensation, terms, conditions or privileges of employment because the employee engaged in the above activities, or has assisted or participated or is about to assist or participate in any manner in such proceedings as those listed, "or in any other action to carry out the purposes of this chapter or the Atomic Energy Act of 1954."

   Under the ERA, once the complainant establishes a prima facie case, the employer must establish by clear and convincing evidence that it would have taken the same unfavorable action, i.e. taken its unfavorable action for a legitimate, nondiscriminatory business reason, as it would have taken, in the absence of the employee's protected activity, rather than merely "articulating" or stating the legitimate business reasons for the action. The employer may be directed to "abate" certain effects of the employer's unfavorable personnel action (which means that the discriminatee may be ordered reinstated with back pay) except compensatory damages, pending court review of the final decision of the Secretary of Labor.

   The implementing regulations governing employee complaints, 29 C.F.R. Part 24, provide at 29 C.F.R. §24.1 that "No Employer" may discharge or otherwise discriminate against any employee who has:

(1) Commenced, or caused to be commenced, or is about to commence or cause to be commenced, a proceeding under one of the Federal statues listed in Section 24.1 or a proceeding for the administration or enforcement of any requirement imposed under such Federal statute;

(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 such Federal statute, ... (Emphasis added)

   In addition, as also stated above, 29 C.F.R. §24.7(b) states that a determination of a violation of the ERA may only be made under the statutory provisions that the "protected behavior or conduct was a contributing factor in the unfavorable personnel action ...," and that the respondent has not demonstrated, "by clear and convincing evidence that it would have taken the same personnel action ..." as it would have taken without such protected behavior. The rule provides that, upon finding a violation of the ERA, the determination "shall" contain a recommended order "that the respondent take appropriate affirmative action to abate the violation, including reinstatement to his or her former position, if desired, together with the compensation (back pay) ...[etc.] ... and, when appropriate, compensatory damages," with the compensatory damages not effective until final decision by the Administrative Review Board. 29 C.F.R. §24.7(c)(1)&(2).

Standards for establishing violations of the ERA:

   Related to the establishment of jurisdiction under the ERA, a complainant in a "whistleblower" case must first establish that the respondent is an "employer" under the provisions alleged to have been violated under the Act, and satisfy the initial burden of establishing a prima facie case of discrimination by showing the following:

(1) The "employer" is subject to the Act; 29 C.F.R. §24.2(a); ERA: 29 C.F.R. §24.5(b)(2)(ii)

(2) The complainant engaged in protected activity; 29 C.F.R. §24.2(b)(1)-(3): ERA: 29 C.F.R. §24.2(c)(1)-(3) and 29 C.F.R. §24.5(b)(2)(iii)

(3) The complainant was subjected to an adverse employment action; 29 C.F.R. §24.2 (a)&(b)

(4) The employer "knew" of the protected activity when it took the adverse action, ERA: 29 C.F.R. §24.5(b)(2)(ii), and

(5) An inference is raised that the protected activity was the likely reason for the adverse employment action. (i.e. ERA: the protected activity was a contributing factor in the unfavorable personnel action. 29 C.F.R. §24.5(b)(2)(iv)

See, Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 101 S.Ct. 1089 (1981); Simon v. Simmons Foods, Inc., 49 F.3d 386, 389 (8th Cir. 1995); Mackowiak v. University Nuclear Systems, Inc., 735 F. 2d 1159 (9th Cir. 1984); Carroll v. Bechtel Power Corp., Case No. 91-ERA-46 , slip op. at 11 n.9 (Sec'y Feb. 15, 1995), aff'd sub nom., Carroll v. United States Dept. of Labor, 78 F.3d 352, 356 (8th Cir. 1996).

   In general, under established case law, once having established the employer/employee status, the employee must establish his prima facie case, and under the ERA, that it was a contributing factor to the unfavorable personnel action. The respondent may rebut the complainant's prima facie showing by producing evidence that the adverse action was motivated by legitimate, nondiscriminatory reasons. Under the ERA, the respondent must produce clear and convincing evidence to establish a legitimate, nondiscriminatory reason for its action, while it may merely articulate the legitimate, nondiscriminatory reason under the other environmental statutes. Complainant, then must counter respondent's evidence by proving that the legitimate reason proffered by the respondent is false or a pretext for the prohibited discriminatory reason. See, Yule v. Burns International Security Service, Case No. 93-ERA-12 (Sec'y May 24, 1994)(Slip op. at 7-8). This burden now includes the entire analysis of the burdens of production, proof and shifting obligations in a Title VII, Civil Rights action under 42 U.S.C. Section 2000e cases to the relevant environmental "whistleblower" cases, as established under McDonnell-Douglas Corp. v. Green, 411 U.S. 792, 802 (1973) and Burdine, supra, through St. Mary's Honor Center v. Hicks, 509 U.S. 502, 113 S.Ct. 2742 (1993).

   From the outset, under Yule, the complainant maintains the burden of proving by a preponderance of the evidence that he was retaliated against in violation of the law. See, St. Mary's Honor Center v. Hicks, supra; Darty v. Zack Company of Chicago, Case No. 82-ERA-2 (Sec'y Apr. 25, 1983) (Slip op. at 5-9) (citing Texas Department of Community Affairs v. Burdine, supra. Additionally, with specific relationship to the ERA, the Secretary stated in Thompson v. TVA, 89 ERA 14, (Sec'y July 19, 1993) that, under Hicks and Burdine, after the employer establishes its legitimate non-discriminatory rebuttal, the first determination that must be made is whether the evidence shows that the discriminatory reason is more likely the motivation for the adverse reason. The rules clarify this obligation by adding in parenthesis, as set forth above, that the Complainant must prove that the protected activity was a "contributing factor in the unfavorable personnel action." Simply stated, the complainant continues to bear the burden of proving allegations of discrimination by a preponderance of the evidence.

   This view is no different than what has recently been clearly restated by the United States Supreme Court in its review of Hicks in, Reeves v. Sanderson Plumbing Products, Inc. 530 U.S. 133, (2000), wherein the Court assumed (without deciding) application of the McDonnell-Douglas/ Hicks standards to court analysis of alleged violations under the Age Discrimination in Employment Act (ADEA). Indeed, the Court in Hicks, adopted its prior 1981 standard as set forth in Burdine, supra, that "the ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against the plaintiff remains at all times with the plaintiff," 450 U.S. 253, as now reinforced in Reeves, supra.

   In the present case, weighing the impact of settled case law and the rules set forth at 29 C.F.R. Part 24, which codifies the above case law rules, Complainant has established that he was engaged in protected activity; that an adverse action has taken place against him (his layoff or IRIF) and that an inference has been established that his protected activity was a contributing factor to his layoff. USEC has articulated what is facially a "legitimate non-discriminatory" business reason for the unfavorable personnel, or adverse, action (layoff), in that it would have taken the same personnel action against Mr. Jones as it would have taken without his protected behavior. It is my opinion, however, that it has not established that position by clear and convincing evidence.

   While the "legitimacy" and "non-discriminatory" basis for the action is called into question by Mr. Jones' challenge to it, as either lacking credence or constituting a pretext for the action under the ERA burden shifting/ production standards, the result is the same: once the hearing has taken place, and the prima facie case presented with the business reason for the action established by the employer , the burden shifting analysis drops away, and Mr. Jones continues to have the burden of establishing whether the evidence shows that the discriminatory reason is more likely the motivation (the contributing factor) for the adverse action. In other words, he still must establish that his protected conduct remained a contributing factor in his unfavorable personnel or adverse action, and he was discriminated against in violation of the applicable statutes by a preponderance of the evidence.

   For the reasons set forth herein, I find that Mr. Jones has met his burden of establishing a substantial, reasonable basis for his belief that his raising of safety considerations in his lack of training to be a trainer of operators of mobile industrial equipment (MIE) for powered industrial trucks (PITs ) at USEC was subject to the "whistleblower" protections of the ERA; that his actions were a contributing factor to the adverse action (layoff), and that he has established a violation of the ERA by a preponderance of the evidence. As part of this, I find that the employer has not established by clear and convincing evidence that the layoff of Mr. Jones was for a legitimate business reason, or that it would have taken the same unfavorable personnel action in the absence of his behavior.

   Title 42 U.S.C. § 5851(a) states that the term "employer' includes:

A licensee of the Commission [NRC] ... under ... the Atomic Energy Act of 1954 (42 U.S.C. 2021);

(B) an applicant for a license from the Commission or such an agreement State;

(C) a contractor or subcontractor of such a licensee or applicant . . . .

(D) a contractor or subcontractor of the Department of Energy that is indemnified by the Department under section 710 d. of the Atomic Energy Act of 1954 (42 U.S.C. § 2210(d)) .." but not contractors under E.O. 12344.

   By the 1992 amendments to the ERA, Congress clarified the coverage of existing "whistleblower" protection provisions to include as "employers," those employers of employees involved in any activity under the ERA or AEC, and established a separate paragraph to include the Nuclear Regulatory Commission, and (NRC)licensees, contractors, subcontractors of licensees, or applicants therefore. (H,R. No. 101-474(VIII), reprinted in 1992 U.S. Code Cong. & Admin. News 1953, 2296-2297).

   Reflecting the legislative history is Appendix A to Part 24 (FR #98-2922, filed Feb. 6, 1998). It reinforces that history by stating:

The ERA makes it illegal for an employer covered by the act – including a licensee of the NRC . . . , an applicant for a licensee, a contractor or subcontractor of a licensee or applicant . . . – to discharge or otherwise discriminate against an employee in terms of compensation, conditions or privileges of employment because the employee or any person acting at an employee's request performs a protected activity. (Emphasis added.)

   Using all three documents, 42 U.S.C. § 5851, the legislative history to HR #102-474 and Appendix A of Part 24, it may be concluded that Congress meant to cover the actions of all employers and employees who would be involved in any phase of any "proceeding" involving the training of employees who deal with the in plant transportation of nuclear materials covered by the ERA and Atomic Energy Act of 1954. I find that this includes reasonably based training and safety recommendations for the training of employees by the trainers of such employees such as Mr. Jones, regardless of whether it ultimately resulted in the transportation of nuclear materials covered by the NRC and the Atomic Energy Act of 1954 or not, since the continuing objective in this training would have involved the safety and health of the employees who do transport and move those materials.

   An additional consideration is that, if the ERA "whistleblower" provisions provide protection only to those employees of commission licensees, applicants, contractors or subcontractors who pursue quality and safety investigations and complaints, but denies Mr. Jones, a trainer of those employees, that same protection, it would be contrary to the intent of Congress in bringing safety and quality problems to light and resolving them before accidents or injuries occur. Hill v. TVA, 87-ERA-23 (Sec'y May 24, 1989) at 6.

   The second prong permits ERA jurisdiction if there is some "nexus between the activity for which protection is claimed and a goal, objective or purpose of the Atomic Energy Act of the chapter of which Section 5851 is a part." McNeal v. The Foley Co., 98-ERA-5 (ALJ Jul.7, 1998) at 10. See, Van Beck v. Daniel Construction Co., 86-ERA-26 (Sec'y Aug. 3, 1993) at 3 ("in order for jurisdiction to attach under §5851, a nexus must be established between the alleged protected activity and the objective or purpose of the ERA"), final order approving settlement (Sec'y, Feb. 10, 1994). As stated above, training employees to transport or move covered materials under the Atomic Energy Act of 1954, is covered, whether he actually moves them or not, or whether his safety and health recommendations regarding such materials are adopted or not.

   Generally, there is a nexus if "the complainant's concern implicates a nuclear safety hazard or the complainant . . . reasonably believe[s] there is a nuclear-related safety hazard." McNeal v. The Foley Co, 98-ERA-5 (ALJ Jul. 7, 1998) at 11. The Sixth Circuit has proclaimed that the ERA statute is designed to "protect workers who report safety concerns and to encourage nuclear safety generally." American Nuclear Resources v. U.S. Dept of Labor, 134 F.3d 1292, 1295 (6th Cir. 1998). "[C]ourts have held that the ERA protects many types of acts that implicate safety. For example, the ERA protects an employee who files internal reports concerning regulatory violations." Id. @ 1295, citing, Jones v. TVA, 948 F.2d 258, 264 (6th Cir. 1991).

   I find that Mr. Jones' health and safety complaints and recommendations regarding training and the failure to have properly trained trainers of mobile equipment that moves or transports UF6 and/or other related products have invoked both OSHA and NRC regulatory considerations. In so doing, they have necessarily implicated the broad public health and safety considerations meant to be included within the scope of the ERA, and the broad remedial purposes of the ERA. USEC is an "employer" under the ERA, and that there is a sufficient nexus of his conduct to the purposes of the ERA to extend coverage to Mr. Jones' activities thereunder.

2. Complainant's Protected activity:

   a. General Rules:

   The environmental statutes all protect an individual's participation in activity which furthers the respective statutory objectives. See, Devereux v. Wyoming Association of Rural Water, 93-ERA-18 (Sec'y, October 1, 1993), supra, and Jenkins v. U.S. Environmental Protection Agency, 92-CAA-6 (Sec'y, May 18, 1994). In other words, the Acts protect the reporting of environmental or safety violations. See, Johnson v. Old Dominion Security, 86-CAA-3,4-5 (Sec'y May 29, 1991). Protected activity is broadly construed under the environmental whistleblower protection acts. See also, Guttman v. Passaic Valley Sewerage Commission, 85-WPC-2 (Sec'y March 13, 1992). Concerns that "touch on" the environment can be considered as "protected activity." See, Dodd v. Polysar Latex, 88-SWD-4 (Sec'y 22, 1994).

   Internal complaints are also considered, pursuant to the environmental acts, as "protected activity." In Hermanson v. Morrison Knudsen Corp., 94-CER-2 (ARB June 28, 1996) the Board held that "[i]nternal safety complaints are covered under the environmental whistleblower statues in the Eighth Circuit, the Fifth Circuit and every other circuit. See, Amendments to the ERA in the Comprehensive National Energy Policy Act of 1992 (CNEPA), Pub. L. NO. 102-486, 106 Stat. 2776," and Dodd, supra (CERCLA & SWDA); Reynolds v. Northeast Nuclear Energy Co., 94-ERA-47 (ARB Mar. 31, 1997) (ERA); Passaic Valley Sewerage Commissioner's v. United States Department of Labor, 992 F.2d 474 (3d Cir. 1993) (CWA); Wagoner v. Technical Products, Inc., 87-TSC-4 (Sec'y Nov. 20, 1990) (TSCA); Guttman v. Passaic Valley Sewerage Commissioners, 85-WPC-2 (Sec'y Mar. 13, 1992). The Board further noted in Hermanson that the only exception to this rule at that time prior to the 1988 amendments, had been "for cases filed in the Fifth Circuit under the Energy Reorganization Act of 1974 (ERA), as amended, 42 U.S.C. Section 5851 (1988), prior to October 24, 1992." Brown & Root, Inc. v. Donovan, 747 F.2d 1029 (5th Cir. 1984)

   In addition, an informal complaint, such as verbal communication, constitutes "protected activity." See, Nichols v. Bechtel Construction, Inc., 87-ERA-44 (Sec'y Oct. 26, 1992) (employee's verbal questioning of foreman about safety procedures constituted protected activity), aff'd in Bechtel Construction, Inc. v. Secretary of Labor, 50 F. 3d 926, 931 (11th Cir. 1995) stating that "general inquiries regarding safety do not constitute protected activity," but a pattern of inquiries regarding how to handle contaminated material can add up to protected activities." See, also, Dysert v. Westinghouse Electric Corp., 86-ERA-39 (Sec'y Oct. 30, 1991) (employee's complaints to team leader protected); Crosier v. Portland General Electric Co., 91-ERA-2 (Sec'y Jan. 5, 1994) (complainant's questioning his supervisor about an issue related to safety constituted protected activity). The environmental "regulations make it clear that a formal proceeding is not required in order to invoke protection of the Act." Kansas Gas & Electric Company, v. Brock , 780 F.2d 1505, 1512 (10th Cir. 1985), cert. denied, 478 U.S. 1011, 92 L.Ed.2d 724, 106 S.Ct. 3311 (1986).

   To constitute protected activity, however, the substance of the complaint must be "grounded in conditions reasonably perceived to be violations of the environmental acts." Minard v. Nerco Delamar Co., 92-SWD-1 @ 5 (Sec'y Jan. 25, 1994). It is insufficient to show that the environment may be negatively impacted by the employer's conduct. Decresci v. Lukens Steel Co., 87-ERA-13 (Sec'y Dec. 16, 1993) (the environmental whistleblower provisions are intended to apply to environmental and not other types of concerns.)

   b. Specific Protected Activies:

   Mr. Jones' specific protected activities in the present matter consisted of, but were not limited to, the following actions: Repeatedly addressing the OSHA and NRC regulation violations implicit in not having properly trained and licensed trainers on MIE/PIT equipment; in not being properly trained and licensed himself; in never having anyone fail the prior program; in the filing of eleven ATRs and employee concerns involving the various violations, as otherwise more specifically set forth herein.

3. Adverse Action:

   An "adverse action is simply something unpleasant, detrimental, even unfortunate, but not necessarily (and not usually) discriminatory." Stone & Webster Engineering Corp. v. Herman, 1997 115 F.3d 1573 (11th Cir. 1997). "Adverse action" encompasses any discrimination with respect to an employee's compensation, terms, conditions or privileges of employment. DeFord v. Secretary of Labor, 700 F.2d 281 (6th Cir. 1983).

   I find that, in addition to the individual adverse actions discussed above in response to individual acts of protected conduct and activity, the present layoff or IRIF constituted a specific adverse action, much more than something unpleasant in Mr. Jones' case which warrants a specific remedy or remedies. It resulted in not only loss of income or benefits, but loss of reputation and prestige, as well as a lower paying job.

   In addition to the above specific findings of adverse actions set forth in the discussion of protected activity, I would add the following as a type of conduct that is recounted throughout the findings of fact which constituted discriminatory adverse conduct and/or evidence of discriminatory conduct, as the background for the specific violations as alleged:

   1. The unjustified, low, "1" and "2" ratings of Mr. Jones' "Competencies" for the IRIF Candidate Selection Summary, concerning, but not limited to, his "Integrity and trust," his "Creativity" and his "Knowledge of rules and regulations", all of which had previously been high ratings on his scheduled evaluations, just three months before the IRIF evaluation, and which could affect his entire career.

   2. The active "shunning" of Mr. Jones by Mr. Bucy following Mr. Jones' questioning him on the requirements of the regulations, which I find to have taken place.

   3. The insertion of Mr. Craven into the trainer position and permitting him to pass as the originator of training modules that were, in fact, the work of Mr. Jones.

4. Knowledge of Protected Activity:

   Respondent's knowledge of a protected activity at the time of its adverse action is an essential element of the complainant's prima facie case. See, Morris v. The American Inspection Co., 92-ERA-5 (Sec'y Dec. 15, 1992), slip op. At 6-7. Complainant has easily sustained this burden. It was the ATRs, reports and e-mails from Mr. Jones to Messrs. Fowler, Bucy, Starkey and Wetherell concerning the safety and health of employees being trained by someone without adequate training, and not in conformance with OSHA regulations, that led to the delays in designing and implementing the training modules, his low ratings by management for them and his resultant IRIF, as otherwise more specifically set forth herein.

5. Motivation and Timing:

   A complainant must produce sufficient evidence to raise an inference that the motivation for the adverse action was his protected activity. Temporal proximity between the whistleblowing activities and the adverse actions is sufficient to establish a prima facie case. Tyndall v. U.S. Environmental Protection Agency, 1993-CAA-6, 1995-CAA-5 (Administrative Review Board, June 14, 1996), final order approving settlement and dismissing complaint, 96-ARB-195 (ARB Sept. 25, 1996), citing County v. Dole, 886 F.2d 147 (8th Cir. 1989); Bartlik v. United States Department of Labor, 73 F.3d 100 (6th Cir. 1996). However, in Hadley v. Quality Equipment Co., 91-TSC-5 (Sec'y Oct. 6, 1992), the Secretary indicated that although a sequence of events occurring in a short period of time may invoke an inference of causation, it is still necessary to examine the events as a whole in determining whether the ultimate question of whether a complainant has proved by a preponderance of the evidence that the retaliation was a motivating factor in the adverse action. In other words, an administrative law judge may decline to find retaliation, notwithstanding the short proximity of events, if other facts show that complainant would have been fired had he not engaged in the protected activity. Hadley, supra, (employee engaged in a stream of obscene behavior immediately prior to adverse actions by employer) ; Jackson v. Ketchikan Pulp Co., 93-WPC-7 (Sec'y Mar. 4, 1996) (complainant was fired for being out of his work area rather than his protected activity even though there was temporal proximity between the protected activity and discharge).

   In the present case, motivation may be inferred from the timely sequence of events related to the raising of OSHA and NRC regulatory health and safety issues that were delaying the implementation of the MIE/PIT training program; the failure to properly address Mr. Jones' plea for OSHA compliant training; the shunning of Jones by Mr. Bucy; the transfer of MIE/PIT training duties to Mr. Craven so that there could be a comparative analysis to lay someone off, when the conditions would have militated against the layoff of the trainer in that area, namely, Jones, and the deliberate manipulation of the lay off ratings to accomplish that end.

   The timing of the IRIF in relation to the initiation of the layoff review process to other matters has been considered and discussed in reaching my conclusions. The layoff occurred on July 3, 2001. The IRIF review process began in May 2000. Mr. Craven was transferred in to Mr. Jones' department shortly before the IRIF review process began, with its undisclosed rating of 67 competencies, just 3 months after the mid-year evaluations. As indicated above, the rating process, which actually began with the one unsatisfactorily explained "B" on the mid-year evaluation, tracked several of Mr. Jones complaints about the overall situation arising from his lack of experience and training, his raising of OSHA and NRC issues on these matters, and his filing of ATRs and employee concerns about them.

6. The "legitimate and non-discriminatory" business reasons:

   The respondent has the burden of producing evidence to rebut the presumption of disparate treatment established by complainant's prima facie case, by presenting evidence that the alleged disparate treatment was motivated by legitimate, nondiscriminatory reasons for the adverse action. See, Texas Dept. of Community Affairs v. Burdine, supra, 450 U.S. 248 (1981) (Title VII case). This must be established by clear and convincing evidence under the ERA. The complainant, however, retains the ultimate burden of proof. He must establish by a preponderance of the evidence that respondent's adverse actions constituted discrimination for his protected activity. Here, I have concluded that it was Mr. Jones' protected activity that was the motivating factor in Respondent's decision to lay him off, or to IRIF him, and the other actions of rating him so low in certain unwarranted, designated areas of performance and in shunning him. Dysert v. Westinghouse Electric Corp., supra and Texas Dept. of Community Affairs, supra.

   In a nutshell, respondent presents the following as its justification for the "adverse action," in the decision to layoff Mr. Jones: The layoff was part of a large reduction in force; was not performance based; was because his quality of work was "mixed" in the training department; was not because he was an effective trainer, which he was, but he had problems revising training modules, refusing to accept responsibility for shortcomings and blaming management, and his own lack of experience and training; was not due to protected activity because he did not object to any protected activity; was a result of management concern that Jones was slow and ineffective in correcting problems that he discovered. Respondent contends that Jones has presented no evidence that his layoff was motivated by an improper intent of management. For this, respondent relies upon the steps of the evaluation and rating of "Competencies" in the layoff process, and the relatively "objective" conclusion that was reached in comparing trainer Craven with trainer Jones to reach the final decision to lay Jones off.

   Recognizing that Mr. Jones was part of a general layoff, I reject Respondent's position that it was not on a performance basis, and find that despite protestations that the layoff was not "for cause," the record is replete with Respondent's attempts to provide evidence of Mr. Jones' lack of performance as justification for the layoff, as if it was a discharge for cause. Secondly, if the basis for the IRIF of Mr. Jones fails as a legitimate business reason for his layoff, the more stringent standards proof for a just cause discharge also fail for the same reasons that those reasons fail. If the layoff reasons are not justified, and no other reasons are posited by the Respondent to justify a discharge, then there was no just cause discharge and a severe "adverse action" has been established.

   On this, I have made the following findings of fact:

   I find that Respondent did not establish by clear and convincing evidence that it had a legitimate, nondiscriminatory reason for Mr. Jones layoff or IRIF, or for the low ratings given him on his Competencies for IRIF, and for shunning him, within the meaning of the ERA. While I find that business reasons were articulated in which it contended they were legitimate and nondiscriminatory, respondent did not establish that Mr. Jones was wrong in his assessment and attribution of blame to management in the timely formation of an OSHA compliant MIE/PIT training program and module, in which his own inexperience and lack of training did play a pivotal role that was correctly assessed by him, despite any shortcomings of his own; that he did object to protected health and safety concerns related to that condition; that he has presented substantial, credible, circumstantial evidence that his layoff was motivated by an improper management intent, and that he would not have been laid off anyway. Respondent has failed to establish by clear and convincing evidence that the reasons for the layoff were either legitimate or nondiscriminatory, so the analysis could end right there. However, to the extent that they might have been so considered I find that those assertions were incredible and also constituted a pretext for the real discriminatory reasons, a termination for his protected activity, as set forth below.

7. Layoff reasons as a pretext:

   Once the respondent articulates a legitimate, nondiscriminatory basis for its action, or establishes it under the ERA, the focus shifts to the issue of whether such basis is merely pretextual and that the respondent's action was based on a discriminatory motive. The complainant,

may demonstrate that the reasons given were a pretext for discriminatory treatment by showing that discrimination was more likely the motivating factor or by showing that the proffered explanation is not worthy of credence. . . In order to determine that [the complainant] has established discriminatory intent in regard to this adverse action by the [respondent], however, "[i]t is not enough . . . to disbelieve the employer; the fact finder must believe the plaintiff's explanation of intentional discrimination."

St. Mary's Honor Center, supra, 113 S.Ct. at 2749, 2754, 125 L.Ed. 2d at 424.

   The main USEC management figures behind the alleged "adverse action" tell different and conflicting stories. The primary people who supervised Mr. Jones and were involved with the decision to IRIF him, were: Ron Fowler, Dannie Bucy, Russ Starkey and Ron Wetherell. Fowler's recount of the lack of training and knowledge of the MIE/PIT area, as well as that of Bucy, at least at the outset of his new transfer duties are substantially different from that of Starkey. So too was the failure of Starkey to assume the blame for those delays, due to that condition, even when raised by Jones to his own detriment. Wetherell's supervisory deficit was in failing to adequately investigate the condition and relying upon an incomplete HR investigation and report on Jones' employee concerns memo. He should have recognized from the outset that he was dealing with a very essential management problem in the structure and operation of the training department where the MIE/PITs were concerned - and a very dangerous one.

   As stated in the conclusions of fact, Mr. Starkey's testimony regarding his unhappiness with Jones ultimately begged the question of the extent to which his lack of training and experience involved severe safety matters that were being legitimately raised by Jones, and not resolved by either Fowler, Bucy or even Starkey himself, which I find substantially contributed to the real cause of the lack of success of the program. Starkey's allocation of blame turns the managerial obligation on its head, when both the selection of Jones and the failure to get him safely and adequately trained lay squarely on the shoulders of management.

   On its face, Mr. Starkey's explanation of the use of the layoff criteria to justify Mr. Jones' layoff, appears to present a legitimate business explanation for the action. However, under scrutiny, the attempt fails. It is based upon a false premise: that, since the criteria utilized to rate the candidates appear to be objective criteria, those criteria are, therefore, objective as a matter of fact! In the application of the process, here is what happens: calling the procedure "as objective as possible," managers who know the candidates, meet, confer and form a subjective "consensus" about selected criteria in the 67 Competencies, and apply them to individual IRIF candidates, actually forming a joint subjective conclusion. Thus, in branding the process "as objective as possible," the joint subjective results becomes objective. The action against Mr. Jones proves the case. An employee whose integrity and trust had never been in question as of three months earlier, is now not only in question, but used as a linchpin in his termination, without cause. Link that with a few other evaluation redefinitions, and he is beyond recall - both figuratively and literally.

   I find that the rating of Mr. Jones, of "1" in "Integrity and trust," to have been totally at odds with his prior evaluations, in particular that of his mid-year evaluation three months earlier by Supervisor Fowler stating in handwriting that his "integrity and trust were never in question." Wondering what had prompted management to give him such a new low rating, not only in this category, but in others, I found management witness explanations (i.e., that he failed to recognize and disclose certain shortcomings as a matter of integrity and trust,) not only did not meet my expectations on it, they did not fit within any concept of integrity and trust rating with which I was familiar over thirty five years of labor and employment law experience. When considered as a personal characteristic, Webster's II Dictionary defines "integrity" as: "Firm adherence to a code or standard of values: Probity." It defines "trust" primarily as: "Total confidence in the integrity, ability and good character of another." Mr. Fowler obviously made his handwritten observation on this kind of a combined definition of "integrity and trust." Management witnesses failed to adequately explain the departure, and why the definition used to rate the same person for layoff should be different. I reject that notion, and give the new interpretation no credence.

   As indicated above, I find that the application of the "Competencies" criteria here, to Jones, was far from objective. It was indeed subjective, with the overriding factor being the thoroughly subjective disregard of the evidence of OSHA safety violations that Mr. Jones had pursued through his having obtained a thorough knowledge of the rules and regulations governing the safety and health factors that would regulate the MIE/PIT training program. On this, there is a total absence of Respondent evidence that Jones was wrong in his interpretation and application of the rules, save one where it turned out that the rule had been withdrawn. He recognized those factors and had the integrity and trust to bring them to their attention.

    So too was management's assessment of Mr. Jones' "knowledge of rules and regulations" and his "creativity." These were not, in my opinion, objective or accurate ratings, and also contradicted prior ratings, without notice of any change. His knowledge of rules and regulations was, indeed, his "strong point," and his creativity" was demonstrated well above the "2" that he was given. It was precisely because he was raising very legitimate, specific, OSHA regulation safety matters, that delays in accomplishing the training modules occurred, and I so stated in the hearing. Management witnesses did not change my mind on the matter.

   Despite management attempts to contradict the "creativity" rating, management did not contradict the facts testified to by Mr. Jones in the creation of the training module(s) that continues to be used at USEC. I find that this was certainly "creative" within the meaning of the Competencies, and facially should have been rated a higher level than a two, especially when measured against his prior evaluations.

   With regard to Mr. Craven's place in the process, whatever his ratings were based upon, they could not have been based upon any of his own work with the MIE/PIT program that was virtually the entire rating basis for that of Jones. It was defective reasoning from the outset, comparing "apples to oranges"and verifying the failure of the entire system! It emphasizes the contrast between the scheduled evaluation procedure and the layoff evaluation procedure, with the former requiring employee participation at both the initial and the final rating levels, and the latter devoid of such participation.

   No one denies the past training credentials of Craven, but Mr. Starkey's response on the matter simply proves too much. The question arises, why did he transfer him to the MIE training position just before the layoff evaluations, and not do it sooner? Claimant's argument, that if they had not done so, there still would have been a severe need there for a trainer, and that Jones would likely not have been laid off, has merit. The managerial action is not logically explained, and it certainly does not provide a rational business explanation for what they failed to do with Jones before that, when they otherwise admit that he was a good trainer.

   Returning to the transfer and his initial evaluation, Mr. Jones did the only responsible thing that he could do at that time: When he realized after his transfer to the training department that his credentials were insufficient for the MIE/PIT program, he fully and courageously, informed management of his predicament and its safety implications. He requested training before being required to complete the training modules, and clearly raised the safety implications of not doing so. Yet, all management could do was to say, "Fix it." I now agree with Mr. Jones that the "Fix it." answer of Mr. Starkey was an inappropriate answer since, as the supervisor of Jones, it was definitely his responsibility to "fix" the problem being presented by Jones, and that he and he alone had the responsibility to see to it that Jones received the proper training before Jones had the full responsibility for completing the MIE training modules. This was neither Mr. Fowler's nor Mr. Bucy's responsibility, it was that of Mr. Starkey.

   This sequence has a long history arising out of National Labor Relations Board (NLRB) experience in developing evidence of discrimination and motivation as set forth in its Wright Line cases under the National Labor Relations Act, as amended. (NLRA). Wright Line, Wright Line Div., 251 NLRB 1083 (1980) enf'd 662 F.2d 899 (6th Cir. 1981) cert. denied 455 U.S. 989 (1982). See discussion and citations at The Developing Labor Law, 3d Ed. Pp. 216 - 219, Bureau of National Affairs, Washington, D.C. (1992). In Wright Line, the NLRB adopted a two part "mixed motive" theory in which an employer may prevail if it is able to prove that the termination would have occurred even in presence of protected conduct, and also if between the time of the decision for the termination and the termination itself, a legitimate reason for discharging the employee occurs. (Ibid.) This was later adopted by Congress in the ERA when it stated under Title 42 U.S.C. Section 5903d(D), relief may not be ordered under the Act, "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." This will be addressed in the conclusion.

   Whether right or wrong in the analysis by Mr. Wetherell, it is my opinion that his actions and those of Weber from HR initially appeared to have presented a legitimate business explanation for USEC conduct in denying the objections of Mr. Jones to the "B" received on his mid-year evaluation, which, at that time was not fatal to his employment. However, they both chose to rely upon Fowler, Bucy and Starkey, who, collectively or individually, were doing an extremely poor management job, as is clearly asserted by them about Fowler, and accepted their explanations about Jones' progress on the training progrma in the MIE/PITs. This set up the scenario for the IRIF competency evaluations, including that of Jones.

   The activity of the latter three in particular with regard to Mr. Starkey, whether planned, retaliatory or not, created a box around Jones over the mobile industrial equipment/powered industrial truck (MIE/PIT) training issue. At the outset, this was, at least in part, a result of the inability of Jones to work his own way out of the MIE/PIT box, due to his own lack of training and experience with that equipment. However, that was a fact, of which Starkey, Bucy and Fowler all had knowledge. Their failure to, (1) determine the MIE qualifications of Jones before placing him into the MIE training position; (2) train Jones before so doing, and (3) listen to him when he raised the safety considerations of his own limitations in that training position, helped to create the box, and justified the position that Jones took on it.

   The question then becomes, what if any role, either in the overall condition of his inability to handle the MIE, or specifically, his raising of the safety issues, this situation played in his selection for layoff. If it was, indeed, the overall condition, which left management with an unqualified trainer in the position, his selection for layoff might be justified. If it was the fact that he raised the safety issues that called the competency of his immediate superiors into question, as well as his own, and that was the reason for the layoff, then the motivation was in retaliation for his protected activity, and a violation of the Act.

   If, however, pretext was established and there was a "mixed motive" for the layoff, consisting of both the unprotected incompetence motivation together with the protected activity in the raising of the safety issues, and the Respondent can establish by clear and convincing evidence that Jones would have been laid off anyway, then there is no violation of the Act. As stated above, relief may not be ordered under the Act, "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."

   I find, as a secondary matter, assuming that pretext has been established, and there would otherwise be a violation of the act because of that determination: (1) that this is a "mixed motive" case; (2) that one significant reason for the layoff of Mr. Jones was his inability to handle the mobile industrial equipment, powered industrial truck training modules, which was an essential part of the remaining trainer position duties; (3) that his raising of safety issues related to his lack of experience and training in the operation of MIE/PITs were taken as an adverse reflection on his immediate supervisors for which they wanted him to be laid off, at that time; (4) that Respondent's manipulation of the layoff rating system to create a lower score on what would have otherwise been higher ones that might not have resulted in a score lower than another employee's scores was a deliberate, intentional act of retaliation for his raising of safety and health issues; (5) that Respondent has not established by clear and convincing evidence that Jones would have been laid off, for his inability to handle the MIE training portion of the remaining training position, anyway, and (6) that Respondent's violation of the Act was intentional, as demonstrated by the layoff rating manipulation.

Conclusion:

   Here, I find that Mr. Jones was an employee of an employer covered by the provisions of the ERA; that he was a member of the class of employees protected by the "whistleblower" protective provisions of the ERA; that he was engaged in protected activity as the employee who managed to call attention to the safety implications of his proceeding in the training position without the trainer training necessary to create an MIE/PIT training module; that he was laid off in retaliation for the issues that he raised about these matters. In response to the business justification of Respondent USEC for the layoff and other actions taken against Mr. Jones by USEC, I find that the reasons were not established by clear and convincing evidence; that he would not have otherwise received the low rating and consequent layoff , and, therefore, his layoff; that the reasons stated constituted a pretext for the real reason that he was terminated, his protected activity, and that Respondent has, failed to "demonstrate by clear and convincing evidence that it would have taken the same unfavorable personnel action in the absence of such behavior."

   As a consequence, Complainant has established, by a preponderance of the evidence that his layoff was directly and intentionally motivated, at least in part, by his health and safety complaints; that they legitimately involved the safety and health of USEC in handling and moving nuclear products, by-products, with mobile industrial equipment, including powered industrial trucks, cranes, forklifts, cylinder haulers, and the like and that this directly involved practices made unlawful by the Energy Reorganization Act, and that they contributed to his termination by layoff, and other adverse actions more particularly set forth herein.

   Having found that the complaint of Mr. Jones has merit in that USEC has violated the employee protective provisions of the ERA through his layoff, I must consider the remedies that must be ordered to rectify the violations, and make Mr. Jones whole for them. This "make whole" remedy must include appropriate reinstatement and back pay, benefits. Compensatory damages and orders to restore his reputation may also be considered as a recommended order. 29 C.F.R. §§24.7(c)(1). Back pay and benefit considerations may include lost vacation and other chargeable pay remedies such as compensation time, sick time, and other time benefits, as well as lost pension and health benefit losses and contributions to those plans for hours that would otherwise have been worked.

   The purpose of reinstatement and a back pay award is to make the employee whole, that is, to restore the employee to the same position he would have been in, if he had not been discriminated against. Back pay awards should, therefore, be based on all of the earnings the employee would have received but for the discrimination. Blackburn v. Metric Constructors, Inc., 86-ERA-4 (Sec'y Oct. 30, 1991). The Sixth Circuit has held that §§5851 (b)(2)(B) of the ERA allows compensatory damages in addition to abatement of discrimination, reinstatement with back pay, and restoration of all job related entitlements such as retirement benefits. Deford v. Secretary of Labor, 700 F.2d 281 (6th Cir. 1983), on remand at Deford v. Tennessee Valley Authority, 81-ERA1 (Sec'y Aug. 16, 1984). Medical expenses and damages for injury to reputation may also be awarded. Ibid.

   Prejudgment interest on back wages recovered in litigation before the DOL is calculated, in accordance with 29 C.F.R. §§ 20.58(a), at the rate specified in the Internal Revenue Code, 26 U.S.C. §§ 6621. The employer is not to be relieved of interest on a back pay award because of time elapsed during adjudication of the complaint. Blackburn v. Metric Constructors, Inc., 86-ERA-4 (Sec'y Oct. 30, 1991); citing Palmer v. Western Truck Manpower, Inc., 85-STA-16 (Sec'y Jan. 26, 1990).

   As part of the "make whole" remedy, respondent may also be ordered to post notices containing the following order, and to submit such notices as are ordered by the undersigned to affected third parties. In McMahan v. California Water Quality Control Board, San Diego Region, 90-WPC-1 (Sec'y July 16, 1993), the respondent was ordered to expunge from its records all memoranda or reference to a reprimand which had been found to be in violation of the FWPCA's whistleblower provision, to post written notice for 30 days advising its employees that the reprimand had been expunged and that he has been reinstated to his former position, and to pay complainant's costs and expenses. See also Doyle v. Hydro Nuclear Services, ARB Nos. 99-041, 99-042, and 00-012, ALJ No. 1989-ERA-22 (ARB May 17, 2000) In addition, ARB affirmed the ALJ's order requiring respondent to post the decision at its own facilities in Doyle.

   In Smith v. Esicorp, Inc., 1993-ERA-16 (ARB Aug. 27, 1998), respondent was ordered to post the ARB's decision for a period of 90 days, as well as an earlier Secretary of Labor remand decision. It was to be posted in a lunchroom and another prominent place accessible to employees at the nuclear facility where complainant was subjected to harassment. The ARB stated that "[t]he purpose of posting is to provide notice that whistleblowers will be protected if they are discriminated against. If [respondent] is unable to secure posting . . . at the . . . nuclear plant, notification may be accomplished by publishing the two documents in a local general circulation newspaper."

    According to the Administrative Review Board, where a violation of the ERA is found, compensatory damages may be awarded in addition to back pay, for emotional pain and suffering, mental anguish, embarrassment, and humiliation. 42 U.S.C. §§ 5851(b)(2)(B); 29 C.F.R. §§ 24.6(b)(2). A complainant is not required to include an explanation of the damages sought in his whistleblower complaint. See, Sawyers v. Baldwin Union Free School District, 85-TSC-1 (Sec'y Oct. 5, 1988), slip op. at 3-4. Blackburn v. Metric Constructors, Inc., 86-ERA-4 (Sec'y Aug. 16, 1993). The award may be supported by the circumstances and testimony about physical or mental consequences of retaliatory action, but the testimony of medical experts is not necessary;. Thomas v. Arizona Public Service Co., 89-ERA-19 (Sec'y Sept. 17, 1993). The Sixth Circuit has enforced the concept of damages for injury to reputation. Deford v. Secretary of Labor, 700 F.2d 281 (6th Cir. 1983), on remand at Deford v. Tennessee Valley Authority, 81-ERA1 (Sec'y Aug. 16, 1984), stating that medical expenses as well as damages for injury to reputation may also be awarded. However, DeFord also stands for the proposition tha sufficient substantial evidence must be presented to justify the award. In the present case, there is some evidence to support compensatory damages, but the lack of supporting evidence, either by documentation or other testimony tends to limit the amount that may be awarded in this case.

   In McCuistion v. TVA, 89-ERA-6 (Sec'y Nov. 13, 1991), the Secretary Of Labor cited favorably a series of decisions which upheld compensatory damages for the following types of harm: symptoms such as insomnia, nightmares, fatigue and appetite loss, an employee's wife suffering from tremendous emotional strain, other marital problems, deterioration in health, an exacerbation of pre-existing hypertension, and feelings of remorse that the education of the employee's daughter was disrupted. In Mitchell v. APS/ANPP, the Administrative Law Judge awarded $50,000, in part, because respondent's hostile work environment caused the complainant to become upset and nervous, and suffer from post- traumatic stress disorder. 91-ERA-9 (ALJ July 2, 1992).

   Here, I find three important factors present: (1) The totality of Mr. Jones training activities after his transfer to that department was such that the provisions of the ERA were invoked from the beginning of his assignment to the end of it, due to his continuous reminders' of the violations of OSHA rules and regulations that were involved in not providing the necessary training on MIE/PITs to construct training modules in that area; and, (2) USEC management had an intent to promote harm to Mr. Jones, in the deliberate use of the IRIF evaluation system to bring about his layoff in response to the health and safety matters that he had raised, and I have specifically rejected USEC management's explanations therefore. (3) As a third consideration, Mr. Jones has testified to the various effects that the employer's unlawful conduct has wrought, which I credit in its entirety, as follows:

   Mr. Jones testified that when he was laid off, he was off from work from July 5th to October 9th, 2000, or three months, and that, when he was finally hired by his employer at the time of the hearing, Lan Associates, he still worked on the USEC Gaseous Diffusion Plant grounds doing subcontract work for the Weskem company, a Department of Energy (DOE) contractor for Bechtel Jacobs. His annual USEC salary was $52,000.00, and was $49,500.00 for Lan. Lan has no pension fund, as did USEC. In addition, Mr. Jones received normal severance pay, rather than enhanced severance pay. He received the normal for Kentucky maximum unemployment compensation benefits. In addition he testified that he was, "hurt, disappointed, devastated, especially after seeing ... I had worked there for 12 years and for the first 11 I was a good employee, and then, all of a sudden, I was ... rated as just a really, really bad employee ... that will tend to depress you."

   In addition, it has been established that:

1. Mr. Jones has lost the honor, prestige and reputation of the training position that he had earned and held before the transfer, and is now entitled to reinstatement, back pay, lost pension contributions and benefits, and other lost pay, as well as a make whole remedy.

2. Mr. Jones was out of work for a total of three months, for which he is entitled to back pay in the amount of $13,000.00 , plus the difference between he regular pay at USEC of $52,000.00, minus that of base pay at Lan, in the amount of $49,500.00, or $2,500.00 per year, or $208.332 per month, through the date of the this recommended decision and order, which is $5,000.00 on or about July 6, 2002, and continuing thereafter on a monthly basis, as more accurately calculated in accordance with actual USEC payroll records, plus interest and lost benefits related thereto, if any, minus severance pay and unemployment compensation benefits, unless otherwise provided by state law, through the date of the final order in this matter.

3. It may also be inferred from his presence at the hearing and his testimony that Mr. Jones has lost at least 2 days plus time devoted to the taking of depositions and preparation for this hearing, and of either vacation pay benefits, leave without pay, compensatory time or other pay for lost time in preparation for the hearing, for which I find that he is entitled to an award of damages, and do so order at the rate at USEC.

4. At the election of Mr. Jones, that USEC pay the lost pension fund contributions and benefits to him in the following manner, either: (1) payment of direct contribution to the pension fund for his time lost at USEC due to his termination at the rates in effect throughout the period from the date of his layoff to the date of this final order; or (2) payments of direct compensation in lieu of those payments as follows: (a) the amount of the periodic contribution as set forth above, plus (b) a prorated calculation of the earnings of the pension fund times the amount that would have been contributed on his behalf to his USEC pension fund, to be paid directly to him for the purpose of investing in the his own retirement fund, if any, or to be utilized at his own discretion, if he has no other such account.

5. Although Mr. Jones did not specifically request compensatory damages, it is my opinion that it may be inferred from this testimony that he was, "hurt, disappointed, devastated, especially after seeing ... I had worked there for 12 years and for the first 11 I was a good employee, and then, all of a sudden, I was ... rated as just a really, really bad employee ... that will tend to depress you", and I so find. I have observed his forthrightness, his consistency, and demeanor throughout the trial, and I credit his testimony on these points, and therefore conclude that this condition has added to stress and depression over and above the loss of pay and benefits, and is, therefore, entitled to compensatory damages under the ERA, for the mental consequences of USEC's retaliatory action, including emotional pain and suffering, mental anguish, embarrassment, and humiliation, which I credit. Since his departure from all work was brief and did have some lasting effects, but he did not offer other supporting or descriptive evidence, either from medical, psychiatric or lay sources, and noting that medical evidence is not absolutely necessary to award compensatory damages, I find that he is entitled to an award of compensatory damages in an amount of not less than $10,000.00.

6. I also direct the USEC to notify all other agencies of the the United States Government and subcontractors for those agencies with whom the USEC has been involved at the Paducah Gaseous Diffusion Plant, and with whom Mr. Jones had business dealings on behalf of USEC, or to whom Mr. Jones submitted applications for employment, by submitting a letter enclosing the attached notice to the departments of such agencies or subcontractors with whom USEC has done business through Mr. Jones.

7. Since Mr. Jones is entitled to his attorneys' fees and costs of litigation, I direct the complainant's attorneys to file an application therefore, postmarked within thirty days of the date of this decision and order and preliminary order. Requests for attorney travel and expenses must be specifically documented and briefed, to which respondent will be permitted a memorandum in response to be postmarked on or before 20 days from receipt of complainant's brief. A reply brief from complainant may be postmarked within 10 days of receipt of that response.

8. In addition to the above, upon finding a violation of the ERA, 29 C.F.R. §§24.7(c)(2) requires that, in the event that I find that the complaint has merit and contains the relief prescribed in 29 C.F.R. §§24.7(c)(1), then I must issue a preliminary order providing all of the relief set forth in that paragraph, with the exception of compensatory damages. This preliminary order shall constitute the preliminary order of the Secretary of Labor, and shall be effective immediately whether or not a petition for review is filed with the Administrative Review Board. The compensatory damage award shall not be effective until the final decision is issued by the Administrative Review Board. The ERA does not permit exemplary damages. Under this preliminary order, the implementation of the "make whole" remedies are mandated. These include the reinstatement of Mr. Jones to his former position as trainer, in particular as trainer for the mechanical industrial equipment and powered industrial trucks (MIE/PITs) for the Paducah Plant together with payment of his lost back pay, and benefits, including pension contributions as set forth above, effective immediately upon issuance of this preliminary order. It also includes posting of the order, and the communication of it together with the cover letter set forth above to all U.S. Government agencies and subcontractors with whom Mr. Jones was involved on at the Plant or in his search for employment.

9. I direct that Respondent, USEC post a the attached notice on all of its employee bulletin boards, or in all of its public places and points of ingress and egress of its employees at its Paducah Gaseous Diffusion Plant for a period of not less than 90 days from the date of posting.

   Therefore, the following recommended order, to be effective immediately if no petition for review is filed, or upon an applicable ruling by the Administrative Review Board if review is sought under the provisions of 29 C.F.R. §§24.1(c)(1), and the additional preliminary order, to be effective immediately whether or not a petition for review is filed with the Board under the provisions of 29 C.F.R. §§24.1(c)(2), are hereby issued:

   Having found that Mr. Jones' complaint has merit in that USEC has violated the employee protective provisions of the the Energy Reorganization Act, 42 U.S.C. Section 5851, and the implementing regulations appearing at 29 C.F.R. Part 24.1, and having considered the remedies and damages that must be ordered to rectify those violations to make Mr. Jones whole and to compensate him for them within the provisions of the seven Acts, therefore,

IT IS ORDERED that,

1. Respondent USEC cease and desist all conduct involving the above determined interference, restraint and coercion, and all discriminatory conduct toward Complainant Douglas Jones for his protected activity under the ERA;

2. Mr. Jones be immediately reinstated to his former position as site coordinator at USEC's Paducah Gaseous Diffusion Plant ;

3. Mr. Jones receive full back pay for all time lost due to his layoff, plus benefits and pension contributions, to include, $13,000.00 in back pay for the three months that he was totally unemployed due to the layoff, plus $5,000.00 difference in pay for 24 month a from the time of his layoff in July 2000 through June 2002, plus monthly payments thereafter at the rate of $208.33 per month as otherwise ordinarily calculated and paid by USEC until it has complied with all of the provisions of this decision and order plus pension fund benefits and other benefits, if any;

4. At the election of Mr. Jones, that USEC pay the lost pension fund contributions and benefits in the following manner, either: (1) payment of direct contribution to the pension fund for his time lost at USEC due to his termination at the rates in effect throughout the period from the date of his layoff to the date of this final order; or (2) payments of direct compensation in lieu of those payments as follows: (a) the amount of the periodic contribution as set forth above, plus (b) a prorated calculation of the earnings of the pension fund times the amount that would have been contributed on his behalf to his USEC pension fund, to be paid directly to him for the purpose of investing in the his own retirement fund, if any, or to be utilized at his own discretion, if he has no other such account.

5. Mr. Jones receive 2 days lost pay, plus any other time lost, due to the various phases of the litigation, including pay for lost time due to such matters as attending depositions and preparation for this hearing;

6. Mr. Jones be paid the amount of $10,000.00 in compensatory damages.

7. Where applicable, that Mr. Jones receive interest on all amounts set forth herein from the dates of his suspension and his transfer through the dates that the suspension and transfer are determined to have ended;

8. Mr. Jones' personnel file be expunged of all adverse personnel actions and comments regarding allegations against him made as a result of his transfer to the training department in 1999 and his layoff therefrom in July of 2000;

9. Respondent, USEC, post a notice consisting of copies of the attached order and preliminary order on all employee bulletin boards in its Paducah Gaseous Diffusion Plant, for a minimum of 90 days;

10. A letter be addressed to the appropriate offices of USEC and all other governmental agencies and subcontractors Mr. Jones has been cleared of all allegations against him made as a result of his transfer to the training department in 1999, and his layoff from USEC in July of 2000, and that the letter include a copy of this order and preliminary order;

11. Mr. Jones is awarded his attorneys fees and costs of litigation, concerning which I direct the complainant's attorneys to file an application therefore, postmarked within thirty days of the date of this decision and order and preliminary order. Requests for attorney travel and expenses must be specifically documented and briefed, to which respondent will be permitted a memorandum in response to be postmarked on or before 20 days from receipt of complainant's brief. A reply brief from complainant may be postmarked within 10 days of receipt of that response.

   All other outstanding motions which have not been directly addressed in this recommended decision and order, are denied.

IT IS SO ORDERED.

      THOMAS F. PHALEN, JR.
      Administrative Law Judge

The Recommended Decision and Order will automatically become the final order of the Secretary unless, pursuant to 29 C.F.R. §§ 24.8, a petition for review is timely filed with the Administrative Review Board, U.S. Department of Labor, Room S-4309, Frances Perkins Building, 200 Constitution Avenue, N.W., Washington, D.C. 20210. Such a petition for review must be received by the Administrative Review Board within ten business days of the date of this Recommended Decision and Order, and shall be served on all parties and on the Chief, Administrative Law Judge. See 29 C.F.R. §§ 24.8 and 24.9, as amended by 63 Fed. Reg. 6614 (1998).