Date: March 30, 1995
Case No. 95-ERA-16
In the Matter of
RICHARD F. UDOVICH
Complainant
v.
HOUSTON LIGHTING AND POWER CO.
Respondent
Appearances:
Edward A. Slavin, Jr., Attorney
2829 Timmons Lane, #128
Houston, TX 77027
For Complainant
Roy Q. Minton, Attorney
Randy T. Leavitt, Attorney
Jennifer L. Breidenbach, Attorney
Baker & Botts
One Shell Plaza
910 Louisiana
Houston, TX 77002
For Respondent
Before: ALFRED LINDEMAN
Administrative Law Judge
RECOMMENDED DECISION AND ORD ER
This case arises under the Federal employee protection
provisions of the Energy Reorganization Act of 1974 ("ERA"), 42
U.S.C. §5851, the Water Pollution Control Act ("WPCA"), 33
U.S.C. §1367, and the applicable regulations at 29 C.F.R.
Parts 18 and 24. Complainant having filed a complaint in the
Department of Labor's Wage & Hour Division on November 1, 1994, a
duly noticed hearing having been held in Houston, Texas, on
February 28-March 2, 1995, and the parties having filed their
respective post-hearing briefs,
[PAGE 2]
the issues presented for determination are: whether complainant
engaged in "protected activity" cognizable under ERA and/or WPCA;
whether his employer, Houston Lighting & Power Co. ("HL&P"), with
knowledge of and as a result of such activity, discriminated
against him by demoting him to a lower paying position; and, if so,
what remedy is appropriate.
Complainant contends that from 1992 to 1994 he expressed
concerns for safety to his superiors in the course of his work as
a Facilities Management Division supervisor, responsible for
maintenance of the spillway and discharge channel that extends for
a 1.3 mile distance from the Main Cooling Reservoir at the South
Texas Nuclear Power Project; that as a result of such "protected
activity" he was demoted in October of 1994 to a lower-paying, non-
supervisory position. He also contends he has suffered stress
headaches and depression as a result and seeks various compensatory
relief. Respondent asserts that complainant's expression of
concerns for possible flooding of an area well removed from and
outside the nuclear containment area was not protected activity
under either ERA or WPCA; that his superiors responded to his
expression of concerns by investigating them, determining they were
not safety-related and deciding the maintenance recommended by
complainant would be deferred until some later time; that
complainant was instructed by three levels of supervisors that he
was not to authorize any work in the discharge channel area south
of the "low water crossing"; that he failed to follow such
instructions and authorized a "mucking out" operation that resulted
in a heavy piece of equipment getting stuck in the mud in the
subject area of the spillway discharge channel on August 29-30,
1994; and that his demotion was not retaliation for his having
engaged in protected activity but was a proper disciplinary action
for complainant's insubordination. As a consequence, respondent
asserts there was no violation of either ERA or WPCA and neither
damages nor compensatory relief is appropriate.
Preliminary Evidentiary Rulings
Having taken under submission respondent's objections on
grounds of hearsay and/or relevance to various complainant's
exhibits offered at the hearing, my rulings are as follows pursuant
to 29 C.F.R. §24.5(e):
CX 3 - Admitted: the September 21, 1992, memorandum is deemed
relevant to the issue of whether complainant's concerns were a
protected activity. CX 4 - Admitted: complainant's work journal is
deemed admissible, but with low probative value as self-serving
recollections undertaken after the incident of August 29-30, 1994,
[PAGE 3]
and after he had retained counsel. CX 6A, 6C, 6E, 6F - Rejected:
the Department of Labor Wage & Hour Division investigator's
handwritten notes of statements taken from company witnesses who
did not sign their statements and were not called to testify about
the contents of those statements are deemed non-probative hearsay
(it is noted that the investigator's notations to the effect that
the individuals were "asked not to sign" their statements were
refuted by others who were called to testify). CX 6I - Admitted:
the signed statement of Garland Steinman, who was listed as a
witness by both parties, but who was not called to testify, is
deemed reliable. CX 19, 20, 21, 23, 24, 27, 29, 30, 31 - Admitted:
these company documents are all deemed relevant to the
"retaliation" issue. CX 34 through 41, 51 through 54 - Admitted:
complainant's contemporaneous notes of meetings and impressions are
deemed probative and relevant to the protected activity and
retaliation issues. CX 56 - Admitted: the document is deemed a
company records/admission hearsay exception. CX 57 through 59, 61
and 62 - Admitted: more of complainant's contemporaneous notes,
deemed relevant and probative, as those referred to above. CX 68 -
Admitted: the document is deemed relevant to the "nuclear
safety/protected activity" issue. CX 84 through 86 - Rejected:
three newpaper articles are deemed unreliable, non-probative
hearsay and irrelevant to the issues in this case.
In addition, after the hearing complainant submitted several
exhibits, marked for identification as CX 98, 100, 102, 103 A-F,
and 104,[1] and a motion to admit them dated March 20, 1995, the
date set for the simultaneous filing of post-hearing briefs. CX 98
(a 1993 annual report) is rejected as having been offered late and
without good cause. CX 100 (a March 6, 1995, printout) and CX 104
(a March 13, 1995, letter to complainant) are admitted for the
limited purpose of completing the record concerning pending matters
raised in testimony at the hearing. CX 102 (a March 3, 1995, news
release relating to witness Garris) is rejected as irrelevant. CX
103 A-F (copies of newspaper articles dating from 1979
regarding a "dam disaster" in Florida) are rejected as irrelevant
to the instant proceeding, as well as having been offered after the
close of the hearing and without a showing of good cause).
Next, complainant's counsel has twice moved for a default
judgment based on respondent's alleged "spoliation of evidence."
First, in a pre-hearing motion, complainant's counsel asserted
"spoliation" as the result of the fact that several HL&P employees
who were interviewed while the matter was before the Wage & Hour
Division did not sign the statements prepared by the interviewing
official. See CX 6 A-J. As noted above, each of those
individuals who did testify at the hearing controverted the
notation on their
[PAGE 4]
statements to the effect that they had been directed by their
attorney not to sign. In any event, considering that there is no
requirement that such statements be signed and since all the
individuals were subject to being called to testify at the de
novo hearing, the first motion for default judgment was denied.
Second, in his post-trial "Complainant's Brief," complainant moves
for default judgment based on the asserted "evidence destruction"
of CX 79 and an off-hand remark by respondent's counsel at the
hearing that "we deep sixed it."[2] The exhibit in question, a
so-called "first Kerry Whelan memorandum," was fully described by
witness Andrew Woods, who explained to my satisfaction that there
was only one "Whelan memorandum," see RX 54, which had a
notation stating "original being mailed," and this resulted in two
copies of the same document, dated September 16, 1994. See
RX 66. Further, an earlier memo, dated September 7, 1994,
see CX 97-A, was not destroyed or "removed from the file by
an agent of HL&P" but rather it was not recognized by witness Woods
as responsive to requests made of him.[3] Thus I find there was
no "perjury" by witness Woods and no spoliation of evidence.[4]
Therefore, the second motion for default judgment based on the
alleged destruction of evidence is also denied.
Findings of Fact and Conclusions of Law
Based on the credible testimony adduced from the fourteen
witnesses who were called to testify at the hearing and the
probative documentary evidence of record, the following salient
findings are made:
Complainant was employed at the South Texas Project ("STP"),
the site of a jointly owned nuclear powered generating plant
providing electricity to several cities including Houston, Texas.
After a stint at another assignment he returned in 1992 to the
position as Supervisor of Reservoir Maintenance within the
Facilities Management Division. His immediate supervisor was Gary
Ralston. As Supervisor of Reservoir Maintenance complainant's job
duties involved authorizing and overseeing maintenance in and
around the main cooling reservoir and other areas outside and
removed from the nuclear reactor containment buildings after such
work was requested by E. J. Thormaehlen, a Senior Engineer within
the Design & Engineering Division. Thormaehlen's immediate
supervisor was Kenneth Cope. The manager of the Facilities
Management Division, as well as Human Resources and Access, was
Roger Garris. The Chief Executive Officer over the whole project
was Group Vice President/Nuclear, William Cottle.
As relevant to this proceeding, the STP consists of two
[PAGE 5]
nuclear containment buildings, a steam generator, turbine-generator
building, a 7,000 acre main cooling reservoir and a 1.3 mile long,
200 ft. wide channel leading from the reservoir's dam and spillway
to the Colorado River, which is at a lower elevation. The
reservoir, described as a giant, above-ground bathtub, is filled by
rainwater and by pumping water from the Colorado River below. The
reservoir water is the third part of a three-loop system:
i.e., one loop surrounds the nuclear fuel assemblies inside
the reactors; a separate second loop supplies water to the steam
generator; and the separate third loop provides water from the main
cooling reservoir to a condenser to cool the spent steam back to
water to be pumped back to the steam generator to be heated to
steam again. Thus, I find that the main cooling reservoir's water
is not used in the separate loop of water flowing around the fuel
assemblies inside the reactors. See CX 2. The spillway end
of the reservoir is about three miles away from the nuclear
containment buildings. The spillway discharge channel has a three
ft. wide ditch down the middle to facilitate the flow of any water
in it to the Colorado River. See CX 1. The spillway
discharge channel has a concrete "low water crossing" at a point
approximately two-thirds of the distance away from the reservoir's
spillway end toward the river below.
As complainant testified, when he returned to his position as
supervisor of reservoir maintenance, he found that extensive rains
of 1991 and 1992 had caused so much silt and vegetation build up in
the spillway channel that it was impossible to mow all the way down
to the ditch and he considered the condition "deplorable." While
some maintenance work, undertaken in late 1992, produced
improvements, see CX 43, complainant still had concerns that
the area south of the "low water crossing" would be considered a
"wetland" necessitating permits if it needed to be drained. He
mentioned this to his then-supervisors, Kinsey and Steinmann, both
in written memos in January and May, 1993, and at open meetings in
late August and early September of 1993. Kinsey told him "the
spillway did not have to be taken care of immediately, however, Ken
Cope and his group should start preparing for some ideas on how to
approach this task." See CX 44-48; RX 57-58.[5] During
the same time period, according to the testimony of Gary Ralston,
who had become manager of the Facilities Management Division,
beginning in May 1993, he started the process of streamlining the
organization by merging the positions of reservoir maintenance
supervisor and grounds maintenance supervisor. As a consequence,
the individual who had been the grounds maintenance supervisor,
John Lauger, was proposed to take over the new position and
complainant was to be reassigned to another position involving
training and the handling of station problem reports (the merger
was not to involve any
[PAGE 6]
change in salary and two other supervisors were also to be
transferred to plant engineering as part of the reorganization).
When this proposal was announced, and evidently implemented, in
October 1993, complainant filed an "age discrimination" grievance
with Human Resources. See CX 35-42. According to the
credible testimony of both Ralston and Roger Garris, after it was
determined that the process should not go forward without
interviewing the individuals contesting for the new position,
complainant and Lauger were interviewed,[6] and the selection
committee was prepared to choose Lauger. Garris, however,
determined that the reorganization should not go forward and
complainant was returned to his reservoir maintenance supervisory
duties effective December 14, 1993. RX 7.[7]
Once back at his reservoir maintenance position complainant
continued to voice his concern that the spillway discharge channel
should be cleared so that it would not be considered a wetland. As
a result of complainant's expressed concerns to Garris in December
of 1993, Ralston was directed to get a further clarification from
the Technical Services Department regarding the reservoir spillway
status. The response obtained, dated January 14, 1994, which was
conveyed to complainant, was: "The current status of the spillway
(e.g. siltation, vegetation) would require us to obtain permits and
appropriate agency approval prior to cleaning or otherwise
disturbing this area." RX 8. Garris testified that he told
complainant, upon giving a copy of the document to him, "Dick, to
me this means no work in the area without a permit." Nonetheless,
Garris directed Ralston "to develop an estimate to obtain permits
etc. and clean" and noted that "although Mr. Gangluff does not
believe in his memo that it is needed at this time it is an issue
that should compete for funding in 1994/95." RX 9. As a result,
complainant was directed to prepare an estimate for performing the
work, which he did in February 1994, though it was "still the
position of Environmental that no action with respect to the
spillway is necessary." RX 10-12. The records indicate that as of
July 6, 1994, complainant recognized that "the spillway channel may
be declared as a wetlands, and the Texas Department of Parks &
Wildlife would now determine what we could or could not do to
alleviate our problem." RX 18; CX 55-56.
According to the testimony of complainant and William Cottle,
pursuant to complainant's request they met on July 27, 1994,
because complainant was "concerned about maintenance of the
spillway." After accompanying complainant to view the area in
question Cottle agreed that the items would need to be done but he
told complainant it was a "business risk decision" when to do the
work and it was his decision that it was not part of the 1994
budget. Cottle did not alter his decision even after complainant
[PAGE 7]
delivered a copy of a Dam Safety Book (with which Cottle was not
familiar) that complainant cited as the source of his views.
On August 2, 1994, at the routine weekly meeting attended by
complainant, Thormaehlen and Douglas Peltier, the independent
contractor in charge of maintenance at the reservoir area,
Thormaehlen brought up the work that needed to be done at the river
end in the spillway discharge channel. Peltier's credible
testimony, substantially confirmed by Thormaehlen, is that Peltier
asked complainant twice if he was sure he wanted "to clear that
area out," complainant did not give a clear answer the first time,
but by the end of the meeting it was agreed that when the #5200
Gradall was available the work was authorized. Though complainant
testified that he believed at the conclusion of the meeting that
"we'll talk about it when the equipment comes available," there is
no dispute that no further discussions took place before the
Gradall became available on August 29th. Peltier testified that on
that day he saw complainant in the hallway of Building 45 at about
8-8:30 a.m., and told him "we're fixing to do the work down at the
spillway." Though complainant denies that exchange, it is not
disputed that "mucking out" work was done from the river end of the
spillway channel during the full day of August 29th under the
supervision of Thormaehlen and Peltier, and without complainant in
attendance. The work consisted of taking out several pick up loads
of "sapling" sized water weeds and "cat tails," and widening the
ditch in the center of the channel, all in an area south of the low
water crossing. On the morning of August 30, before either
Thormaehlen or Peltier had arrived, the driver of the 26-ton
Gradall started work and got stuck in four feet of mud. After the
Gradall was pulled out a "furor arose." Ralston, complainant's
first line supervisor, testified that when he asked complainant
what had happened, complainant drew a sketch saying that the work
was being done north of the low water crossing, but when he later
learned that the work had been south at the river end of the
channel he asked all concerned to prepare statements. On August
31, 1994, in a meeting with his superior, Garris, Ralston was
scolded because complainant had been told not to do any work in
that area. Then, after the matter had been investigated, Garris
informed Ralston that he considered complainant's action in
authorizing the work to be a very serious case of insubordination
and that disciplinary action should be considered. Cottle
testified that when the matter was reported to him he said that if
someone performed unauthorized work in the discharge channel he
should be terminated.
After investigation by the appropriate Human Resources
personnel, Garris determined that complainant had authorized work
[PAGE 8]
that he had been instructed not to do by three levels of superiors,
that he could no longer be trusted to perform as a supervisor of
reservoir maintenance and that some disciplinary action was
necessary. After considering three options presented by Human
Resources, termination (if there was "willful intent"), demotion,
or a written warning (recommended by Ralston), Garris decided to
demote complainant from his Level 12 supervisor position to a Level
10 office position that he occupied from about October 1, 1994,
until the time of the hearing; the demotion involved a $4,500.00
reduction in salary (i.e., from about $60,000 to $55,500).
See CX 58-59, 62, 75; RX 28-29, 55, 61; CX/RX 14-15.
Thormaehlen and Garris testified that no action was recommended
against Thormaehlen because it was determined that as an employee
of the Design and Engineering Department he did not have
supervisory responsibility for authorizing the work in question.
The record reflects that subsequent to the August 29-30, 1994,
Gradall incident and the ensuing investigation, Ken Cope,
Thormaehlen's supervisor, "requested that in order to prevent
future occurrences of this nature Facilities should only perform
work on the Reservoir that he authorized" and the Environmental
Department reiterated the position that activities "at the terminus
of the spillway channel could potentially be within Corps of
Engineers jurisdiction" and "absent Corps concurrence that an
exemption or general authorization applies, or that no degradation
of wetlands will occur, the activity is unauthorized and, if
subsequently determined jurisdictional, subject to enforcement
action by the Corps." CX 97-A; RX 66.
Following his demotion, by letter dated November 1, 1994,
complainant filed a whistleblower complaint with the Department of
Labor. CX 10. I find that this document contains the first
assertion that he had ". . . reported concerns about . . . the
potential for massive flooding that could adversely affect property
values, wildlife and water quality" and "concerns about a reservoir
and spillways that are part of the emergency core-cooling system."
Id. at pp. 1-2. I also find it significant that as of that
date, complainant had not stated that his concerns were based on
the inability to detect "sand boils," nor were sand boils
mentioned in his discussions with Ralston, Garris or Cottle;
rather, as he summarized in his rebuttal testimony, his concern was
that the silt at the end of the spillway discharge channel had
clogged up the ditch, and the operating manual provided that it
should be mucked out "to prevent water from spilling all over the
place." That concern was consistent with his previously stated
concern that unless the area was better maintained it would result
in the need to obtain "wetlands" permits before HL&P could
discharge water from
[PAGE 9]
the reservoir if it became necessary to do so. See CX 33-
34.
Between October 1994 and the time of the hearing complainant
continued working in the office-based position to which he had been
demoted. However, based on the testimony of complainant, Ralston
and Garris, I find that at the time of the hearing the STP was in
the process of a project-wide down-sizing reorganization as a
result of which complainant's current duties were being reassigned;
that he was given an extension of time past the deadline he had
missed to post for other positions for which Ralston would not be
on the selection panel; that complainant elected not to post for
other Level 10 positions but did post for two Level 12 positions;
that voluntary separation packages were made available to all
employees affected who did not post for or obtain other positions;
and that Ralston had elected to accept such a voluntary separation.
Also, based on post-hearing exhibits CX 100 and 104, I find that
complainant was not selected for the Level 12 positions for which
he posted and, effective March 13, 1995, was relieved of duty and
would remain on the payroll and continue to receive full pay and
benefits for 60 days, during which time he was to have access to
services of the Placement Opportunity Services Center and be able
to seek other employment opportunities through the company-wide
posting process; further, if at the end of the period he is
unsuccessful in securing other employment with the company, he is
offered involuntary severance benefits.
Regarding the matter of "nuclear safety," the record contains
documentary evidence to the effect that "the Cooling Reservoir
Spillway Release Facilities are classified as a Non-Nuclear Safety
Class 1 (NS-1) System"; i.e., they are not part of the
quality control or "emergency core-cooling system." CX/RX 1, pp.
16, 27; CX/RX 2, p. 1; see also CX 49, 69. The record also
reflects the uniform opinions of witnesses Thormaehlen, Craddock,
Ralston, Cottle and Garris to the effect that a worst-case scenario
regarding the reservoir would not result in any danger of nuclear
safety; rather, the only effect would be a shut down of the plant
resulting in a shortage of electric power to users of the system
until the reservoir could be refilled with water.
Regarding the matter of safety related to flooding, the record
reflects evidence that:
The Cooling Reservoir Spillway Release Facilities are used to
release floodwaters, i.e., water exceeding the NMO elevation
of
49.0 feet msl, from the cooling reservoir safely and
efficiently.
Operation of the Cooling Reservoir Spillway Release Facilities
[PAGE 10]
is anticipated to be infrequent. Precipitation of 6 inches or
more, beginning with the reservoir water surface elevation at 49.0
feet msl, initiates system operation . . . .
RX 1, pp. 36-37. According to witness Thormaehlen, the water level
in the reservoir is 40 feet at the bottom of the gates, the
reservoir is usually kept at 45 feet by adding water, there has not
been any occasion to open the gates to release water, and any flow
from the spillway would reach the Colorado River 1.3 miles below.
According to Thormaehlen's predecessor, Charles Craddock, a retired
civil engineer who originally proposed the ditch within the
discharge channel, the greatest concern was for potential damage to
the reservoir's embankment from underseepage, the effect of which
might be catastrophic flooding (and the shut down of the project
without sufficient cooling water for the generators), and without
maintenance of the spillway discharge channel it would revert to a
"jungle state." Craddock also testified that the spillway/dam
gates had not been opened for 10 years. On cross-examination, he
acknowledged that in order for the reservoir to fill to overflowing
there would have to be so much rain that the Colorado River would
already be flooding the area between it and the reservoir.
The applicable law
The elements to be proved in a whistleblower action under
either ERA or WPCA are that: complainant engaged in some "protected
activity" (i.e., that he notified his employer of an alleged
violation of the laws in question, refused to engage in some
practice made unlawful by the statute, testified in or was about to
testify in a proceeding under such law, commenced or assisted in
such a proceeding); that his employer knew of such protected
activity; and that the employer took adverse action against the
complainant because of such activity. 42 U.S.C.A.
§5851(a)(1); 33 U.S.C.A. §1367(a); see St. Mary's
Honor Center v. Hicks, 113 S. Ct. 2742 (1993); Dunham v.
Brock, 794 F.2d 1037 (5th Cir. 1986); Kansas Gas & Electric
Co. v. Brock, 780 F.2d 1505 (10th Cir. 1985).
Did complainant engage in protected activity under ERA or
WPCA?
A. Internal complaints
As a preliminary matter, I note there is a split in authority
regarding the question of whether an internal complaint, as opposed
to one filed with an outside agency, can trigger the whistleblower
[PAGE 11]
protection provisions of nuclear and environmental statutes. In
Mackowiak v. University Nuclear Systems, 735 F.2d 1159 (9th
Cir. 1984), the Ninth Circuit held that the employee
protection provision of the ERA protects quality control inspectors
from retaliation for making internal safety and quality control
complaints.See also, McCuiston v. TVA, 89-
ERA-6 (1991). Conversely, the Fifth Circuit, in which this case
arises, holds that the filing of an internal safety report does not
constitute protected activity. Brown & Root, Inc. v.
Donovan, 747 F.2d 1029 (5th Cir. 1984). The Secretary
of Labor, however, has declined to follow Brown & Root, even
in whistleblower actions that arise in the Fifth Circuit.
See Bivens v. Louisiana Power & Light, 89-ERA-30
(1991); Goldstein v. Ebasco Constructors, Inc., 86-
ERA-36 (1992). Further, the Secretary has held that the filing of
internal complaints by employees who are not quality control
inspectors is also protected. Nunn v. Duke Power Co., 84-
ERA-7 (1987). I conclude, therefore, that complainant's
"expressions of concern" to his superiors regarding the condition
of the spillway discharge channel in this case may qualify as a
protected activity cognizable under ERA or WPCA.
B. Protected Activity under ERA
In order to establish a prima facie case of
discrimination under the ERA, a complainant's charge must relate to
some aspect of nuclear safety; thus, "not every act of
whistleblowing is protected under the ERA simply because the
employer holds a license from the [Nuclear Regulatory
Commission]". Decresci v. Lukens, 87-ERA-13
(1993). See alsoAurich v. Consolidated
Edison, 86-CAA-2 (1987); Fugate v. TVA, 93-ERA-0009;
(1993) and Bailey v. System Energy Resources,
Inc., 89-ERA-31 & 89-ERA-32 (1993).
The evidence of record shows that the reservoir and spillway
are not part of the nuclear emergency core cooling system at STP
and are not related to nuclear safety. I credit the testimony of
witnesses Thormaehlen, Craddock, Ralston, Cottle and Garris that a
breech of the reservoir wall resulting in a release of water
through the spillway discharge channel could, at most, cause the
shut down of the plant but would not present any nuclear danger.
Therefore, I find that the condition of the spillway discharge
channel does not pose any threat to nuclear safety.
Based on the foregoing, I find that complainant's concerns
regarding the overgrown condition of the spillway were not related
to nuclear safety. Thus, I conclude that he was not engaging in
protected activity within the meaning of the ERA when he expressed
these concerns and, accordingly, he has not established a prima
[PAGE 12]
facie case of discrimination under that Act.
C. Protected Activity under WPCA
The WPCA prohibits the discharge or runoff of pollutants,
without a permit, into the "navigable waters" of the United States.
33 U.S.C. §1311. "Discharge of a pollutant" is defined as
"any addition of any pollutant to navigable waters from any point
source," and "point source" is defined as "any discernable,
confined and discrete conveyance, including but not limited to any
pipe, ditch, channel, tunnel, conduit . . . from which pollutants
are or may be discharged." 33 U.S.C. §1362(12),(14).
Water itself is not a pollutant; therefore, moving water from
one place to another does not constitute the discharge of
pollutants. Bettis v. Town of Ontario, N.Y., 800 F.Supp.
1113, 1119 (W.D.N.Y. 1992). In addition, the Eighth Circuit has
held that fluctuations in the flowage of water and turbulence
caused by the operation of a dam did not result in a "discharge of
pollutant" as defined in the WPCA because the operation of the dam
did not involve the addition of a pollutant from a point source.
State of Mo. ex rel. Ashcroft v. Dept. of the Army, 672 F.2d
1297 (8th Cir. 1982). The court also rejected the argument that
soil erosion caused by the flow of water should be classified as
"runoff" and regulated under the WPCA. Id.
Although water is not a pollutant, the 1972 amendments to the
WPCA established a permit system that regulates any
discharge by point sources. 33 U.S.C. §1342. A breech of the
STP reservoir wall resulting in the release of water through the
spillway discharge channel would constitute an unpermitted
discharge under the WPCA. The record shows that respondent has
applied for and been issued permits authorizing the discharge of
water into the Colorado River from spillway gate leakage and
reservoir relief wells. CX/RX-4 at 3, CX/RX-20 at 2. However, the
spillway gates have not been opened for 10 years and respondent
does not anticipate a need to open them during the lifetime of the
plant.[8] Based on the foregoing, I find there has been no actual
violation of the WPCA and that the possibility of a future
violation is extremely remote. See Crosby v. Hughes Aircraft
Co., 85-TSC-2 (1993).
Further, the record shows that complainant's expressions of
concern prior to his demotion were limited to his perception that
the spillway discharge channel would become a wetland unless it was
cleared. Complainant was concerned that a wetland designation
would necessitate permits before water could be discharged from the
[PAGE 13]
reservoir, and might prevent the release of water during an
emergency. Complainant's subsequent allegations regarding the
possibility of "wide-spread flooding" resulting from the overgrown
condition of the spillway discharge channel were made after
he had been demoted. This concern could not have played a part in
respondent's decision to demote him, and, therefore, cannot trigger
the employee protection provision of the WPCA. See Grover v.
Houston Lighting & Power, 93-ERA-4 (July 28, 1993); Bailey
v. System Energy Resources, Inc., 89-ERA-31 & 89-ERA-32 (1993).
Accordingly, I find that complainant was not engaging in
protected activity within the meaning of the WPCA when he expressed
concerns about the condition of the spillway discharge channel and
its relation to detecting reservoir leakage and/or flooding,[9]
and conclude that he has not proved a prima facie
case of discrimination cognizable under the WPCA.
D. Reasonable Perception
The remaining question is whether complainant's good-faith
belief that he was engaging in protected activity, even if he was
wrong, was a sufficient basis to trigger the whistleblower statutes
in this case. The test is: "To establish protected activity, the
employee need demonstrate only a reasonably perceived violation of
the underlying statute or its regulations." Abu-Hjeli v.
Potomac Power Co., 89-WPC-1 (1993); see alsoJohnson
v. Old Dominion Security, 86-CAA-3, 4, 5 (1991). It has been
held, however, that once an employer investigates a complainant's
safety concerns and demonstrates to him or her that there is no
possible violation of the statute, the complainant's activity is no
longer protected. Wilson v. Bechtel Construction, Inc., 86-
ERA-34 (1988).
The record here shows that respondent addressed complainant's
concerns on numerous occasions. On August 27, 1993, the civil
engineer responsible for the reservoir and its supporting
structures, Ken Copes, met with complainant to discuss his
concerns. After an investigation, Cope informed complainant that
the condition of the spillway did not present a safety issue and
that the spillway discharge channel could be utilized if necessary.
The record also shows that complainant met with Bob Englemeier,
Manager of the Nuclear Safety Quality Concerns Program, on July 12,
1994, and with William Cottle, Group Vice President - Nuclear,
STP's senior executive, on July 27, 1994, and was informed that the
condition of the spillway did not present a safety threat and would
not prevent the release of water from the reservoir in an
emergency. CX 7.
[PAGE 14]
Based on this record, therefore, I find that complainant's
concerns regarding the overgrown condition of the spillway were not
objectively reasonable concerns about safety in the light of
respondent's investigations and reassurances, and thus he did not
have a reasonable perception that respondent was violating either
ERA or WPCA.
In summary, having found that complainant's expression of
concerns about the condition of the spillway discharge channel did
not constitute protected activity under the ERA or the WPCA, I
conclude that he has not established a prima facie case
under either Act.
Was complainant's demotion prohibited discrimination?
Assuming, arguendo, that complainant's expression of
concerns regarding the condition of the spillway discharge channel
was protected activity within the meaning of either ERA or WPCA,
and assuming his superiors who were involved in his demotion had
knowledge of such protected activity,[10] the remaining question
presented by the facts in this case is whether such demotion was
taken in order to "discriminate" against him because he
expressed those concerns.
Based on the totality of the record alluded to above, I find
that the evidence on this issue establishes that complainant's
initial expression of concerns in 1992-1993 regarding the spillway
channel was given due consideration and referred to the Environmen-
tal Department, which determined that the condition did not present
a safety concern that necessitated immediate attention; that he was
informed in clear and understandable fashion as of January 1994
that the area should be "left as is"; that he was told to obtain
estimates for the work, which was to be budgeted for future
attention; that his continued expression of concerns to higher
level superiors Garris and Cottle were also accepted without any
indication that such activity was unwelcome; that complainant's
action in agreeing to Thormaehlen's request for the Gradall work
that was done on August 29-20, 1994, was not an intentional act to
flout the instructions he had received to leave the area alone but
was rather the result of a misunderstanding on his part as to what
was to be done and what was precluded; that the decision to
discipline him after investigation of the August 29-20 Gradall
incident was within the parameters provided in HL&P's personnel
policies; and that it was undertaken after a good-faith
determination by Garris, after consultation with appropriate Human
Resources personnel, that such action was necessary based on
complainant's failure to understand and follow the clear strictures
placed on him by three levels of superiors not to authorize
any[PAGE 15]
work in the area.[11]
There are several additional reasons why I am convinced that
the record supports a finding that the disciplinary action taken
against complainant was a good-faith personnel action and was not
related to his prior expression of concerns about the condition of
the spillway discharge channel. First, given complainant's actions
in filing grievances when his reservoir supervisor job was
threatened by reorganization in 1993, as well as HL&P's publicized
messages to employees regarding whistleblowers' rights and the
stipulated existence of other whistleblower-type actions involving
HL&P, see, e.g., CX 25-26, 87-88, it would have been
illogical, if not stupid, for complainant's superiors to think any
action against him in October 1994 would not produce similar
results; thus, the decision to proceed with the demotion,
notwithstanding the readily anticipated legal costs that would
ensue, must have been based on a serious determination that it was
a necessary personnel action. Second, complainant's theory that
the Gradall incident was a "pretext" is not credible in light of
the fact that he was not terminated, a sanction that could have
been imposed if retaliation were the true goal; instead, he was
given credit for prior good service with the result that he was
only reduced $4,500.00 to a position with a $55,500 annual salary.
Third, the notion that complainant was being "set up" for
retaliation, i.e., by being told to leave the "wetlands"
area "as it is," is belied by the self-evident observation that he
could have avoided any discipline by adhering to those
instructions.
In summary, therefore, I find that the decision to demote
complainant as of October 1, 1994 (as well as the "displacement"
action taken in March 1995), was not retaliation for his
prior expression of concerns regarding the spillway discharge
channel, but was a disciplinary action dictated by legitimate, non-
prohibited considerations. See 10 C.F.R. §50.7(d);
Lockert v. U. S. Dept. of Labor, 867 F.2d 513 (9th Cir. 1989);
Dunham v. Brock, supra. Thus it is concluded that
complainant was not discriminated against within the meaning of ERA
or WPCA, and the complaint must be DISMISSED.
ORDER
It is therefore recommended that the complaint of Richard F.
Udovich be DISMISSED.
ALFRED LINDEMAN
Administrative Law Judge
San Francisco, California
AL:ms
[ENDNOTES]
[1] Also listed in "Complainant's Final Exhibit List and Motion
to Admit Proposed Complainant's Exhibits" are CX 99 and CX 101,
both described as "reserved."
[2] I note that when I observed the quoted comment I regarded
it as an obvious but unfortunate attempt at humor, since I
anticipated the result that has indeed ensued. See TR
677-678 (NB: in view of the regulatory requirement
of issuing this decision within 20 [business] days of the close
of the hearing, see 29 C.F.R. §24.6(a), no other page
citations to the Transcript are provided).
[3] E.g., an examination of CX 97-A indicates that it is
a typewritten memo that is unsigned and has no readily apparent
identity of the author or recipient. Nor does an examination of
the document support complainant's assertion that it contained
"some of the best evidence on many central issues."
[4] Given the lack of substantiation for the charge, I must
characterize the disproportionate fixation on the issue as
unwarranted and inappropriate; similarly, I consider that the
unintentional, momentary and innocuous communication between
respondent's counsel and a witness during a recess was not the
culpable conduct described by complainant's brief.
[5] It is noted that at the September 8, 1993, meeting
complainant "discussed the (6) people for reservoir maintenance,
along with the (2) additional people slated for operations on
heavy equipment such as the new 5200 Gradall and the brome to be
purchased and used within the 1994 budget." RX 58. HL&P's
Environmental Department determined on September 28, 1993, after
a meeting attended by complainant on June 29, 1993, that "The
condition of the reservoir spillway was discussed and it was
decided to leave it as is." RX 6.
[6] The day after the interviews on October 26, 1993,
complainant added the matter of his voicing concerns about the
spillway channel as a "new angle" to his age discrimination
grievance. See CX 36, 37, 39.
[7] Complainant's notes show that when he returned to his
reservoir maintenance position he was concerned about "the size
of my present office," his need for "a truck for reservoir/roads"
and "to have Gary Ralston be more friendly and open to the people
working for him, and not to hold any grudge against me"; also,
when Human Resources notified him in June 1994 that its
investigation did not support his grievance, he stated "my
present harassment is still an ongoing concern to me. My work
assignments and responsibilities are greater in proportion to
other supervisors in my department. I also still believe that
this harassment is either ongoing discrimination because of my
age or in retaliation for having raised my concern in the first
place." CX 50, 52; RX 16.
[8] An unanticipated discharge could be defined as an "upset"
(i.e. an "exceptional incident in which there is unintentional
and temporary noncompliance with technology based permit effluent
limitations because of factors beyond the reasonable control of
the permittee"), providing an affirmative defense to a
noncompliance action. 40 C.F.R. §122.41(n).
[9] I.e., I credit the testimony of witness Thormaehlen
that any flow from the spillway would reach the Colorado River,
and the testimony of witness Craddock that the amount of
precipitation necessary to cause the reservoir to overflow would
also cause the area between the reservoir and the Colorado River
to be flooded. Therefore, I find that vegetation in the spillway
would not be the cause of flooding on adjacent land.
[10] HL&P does not contest that Ralston, Garris and Cottle had
knowledge of complainant's expression of concerns regarding
maintenance of the spillway discharge channel; as indicated
above, however, they do dispute that such concerns related to
safety under either ERA or WPCA.
[11] Ironically, the area's uncertain "wetlands" status was the
basis of complainant's concern from the start.
