Smalls held a bachelor's degree in computer science and, at the time of the hearing, was nine hours short of attaining a master's degree in computer resources. HT 276 (Smalls). Other than Smalls, who provided computer expertise and was actually an employee in the Plant Support Engineering division, the MRF 20951 team was composed primarily of supervisory staff from the Design Engineering division, along with a VCSNPS fire protection expert. HT 67-69 (Barton). Except for the knowledge he gained while on the SIMPLEX team, Smalls did not have experience or education in the fields of electrical, fire protection, or nuclear process engineering. HT 276, 282-83 (Smalls); see RX 17, tab 11, Evaluation Notes at 2, 4-7. He testified that he had been assigned to the MRF 20951 team "specifically to correct the problems with dealing with the computer issues on the SIMPLEX fire system." HT 292 (Smalls).

   Melvin Browne, Smalls' second-level supervisor, said Smalls' responsibility on the team was "to handle the changes to the software as directed by [D]esign [E]ngineering, and to perform maintenance on the system." HT 343. Mike Kammer, the fire protection engineer who designed the overall lay-out of the system and who became a primary target of Smalls' concerns about the system, testified that the function of the Process Control Analyst was to play "primarily a supporting role on issues related to interfacing with the vendor software, and basically follow[ing] Design Engineering's lead in defining the tweaks that need to be made in the computer program to make the system work as Design Engineering wants it to function." HT 388-89. By 1995, Smalls had developed considerable expertise in the computerized function of the SIMPLEX system and during the latter years of his work on the team, Smalls was on call to respond to any emergency issues that arose with the system. CX 1, 1995 performance evaluation at "Technical/Functional Knowledge"; 1996 performance evaluation at "Demonstrates a Customer Focus"; HT 262 (Smalls).

   Kammer, a degreed fire protection engineer, left the position of lead engineer responsible for implementation of the SIMPLEX system in 1993 when he was promoted to a different engineering position at VCSNPS. HT 358-59, 377-80, 385-88 (Kammer). Alfred Lyons had replaced Kammer as lead engineer by the time Smalls was assigned to the team. HT 402-03 (Kammer), 439 (Lyons). Not long after Smalls began working on the MRF 20951 team, another team member introduced him to Kammer. Smalls immediately confronted Kammer about problems Smalls perceived in the system and questioned Kammer's competence. HT 269-71 (Smalls), 402-03 (Kammer).

   Beginning in 1993, Lyons and Smalls had a cooperative working relationship for several years. During that time, Lyons expressed appreciation for Smalls' strengths while recognizing his weaknesses in the area of interpersonal skills. Specifically, Lyons recognized that Smalls had a tendency to become closed-minded regarding how best to address a technical issue and did not give others' views a fair hearing. But Smalls also was "in most instances . . . trying to get to the best solution to an issue." CX 33; see HT 440 (Lyons). Another team member, Freddie Joy, was an Instrument and Controls supervisor in Design Engineering who had been involved with the implementation of the SIMPLEX system since the project began. HT 412-13 (Joy). Like Lyons, Joy recognized similar strengths and weaknesses in Smalls' approach to the team project. CX 33; see HT 426-29 (Joy). In fact, different supervisors noted weaknesses in Smalls' interpersonal skills on his performance appraisals. CX 1; CX 9, July 8, 1997 Addison memorandum response to non-promotion grievance at 3.

   In March 1999, conflicts between Smalls and other SIMPLEX team members began to escalate. CX 2 at 1-2. When Smalls reported one confrontation to Browne, he suggested that Smalls put his specific concerns in writing for review by Design Engineering management. HT 349-50 (Browne). On April 9, 1999, Smalls distributed the first of a series of written communications about problems that he perceived in the design, installation and testing of the SIMPLEX system. CX 12. Smalls' focus went beyond addressing technical issues related to the installation and testing of the system. His approach suggested that he was also concerned "that the guilty parties . . . own up to their mistakes." CX 23, Barton e-mail message dated Mar. 24, 1999; HT 450-54 (Lyons). In April, May and July 1999, Smalls distributed letters to management that harshly criticized early work on the project and advanced serious allegations against co-workers. CX 12/RX 2, 3; RX 17, tabs 1-9. Two letters, dated April 30 and July 6, 1999, used particularly abrasive language to describe Smalls' concerns, including allegations that team members had "lied" regarding installation and testing of system components. CX 12/RX 2, 3.

   Although management responded to each of Smalls' technical concerns about the SIMPLEX system, the friction on the team continued. Kammer and others had already advised management of their concerns about the serious accusations Smalls had made, but management delayed addressing their concerns about Smalls' confrontational approach until after the technical issues were fully resolved. HT 115-17, 156 (Stroud), 228-29 (Franchuk); see HT 210-13 (Franchuk). On November 1, 1999, Joy joined Lyons in writing a memorandum to Design Engineering management complaining about Smalls' deteriorating role on the team. CX 18/RX 5; see CX 2 at 11. Later in November, Nuclear Operations General Manager Bruce Williams and Human Resources specialist Jimmy Duncan met with Smalls and gave him a summary of an independent reviewer's evaluation of Smalls' technical issues. They also advised Smalls that the manner in which he had expressed his concerns was problematic. HT 236-39 (Duncan); CX 2 at 12; see RX 17, tab 11.

   The Secretary of Labor has delegated authority to the Administrative Review Board (ARB) to review an ALJ's recommended decision in cases arising under the employee protection provisions of the ERA. See 29 C.F.R. § 24.8 (2001); see also Secretary's Order No. 1-2002, 67 Fed. Reg. 64, 272 (Oct. 17, 2002) (delegating to the ARB the Secretary's authority to review cases arising under, inter alia, the statutes listed at 29 C.F.R. § 24.1(a)).

   Under the Administrative Procedure Act, the ARB, as the Secretary's designee, acts with all the powers the Secretary would possess in rendering a decision under the ERA. The ARB engages in de novo review of the ALJ's recommended decision. See 5 U.S.C.A. § 557(b) (West 1996); 29 C.F.R. § 24.8; Stone & Webster Eng'g Corp. v. Herman, 115 F.3d 1568, 1571-72 (11th Cir. 1997); Berkman v. United States Coast Guard Acad., ARB No. 98-056, ALJ Nos. 97-CAA-2, 97-CAA-9, slip op. at 15 (ARB Feb. 29, 2000).

   The Board is not bound by an ALJ's findings of fact and conclusions of law in an ERA case because the recommended decision is advisory in nature. See Att'y Gen. Manual on the Administrative Procedure Act, Chap. VII, § 8, pp. 83-84 (1947) ("the agency is [not] bound by a [recommended] decision of its subordinate officer; it retains complete freedom of decision as though it had heard the evidence itself"). See generally Starrett v. Special Counsel, 792 F.2d 1246, 1252 (4th Cir. 1986) (under principles of administrative law, agency or board may adopt or reject ALJ's findings and conclusions); Mattes v. United States Dep't of Agric., 721 F.2d 1125, 1128-30 (7th Cir. 1983) (relying on Universal Camera Corp. v. NLRB, 340 U.S. 474, 496 (1951) in rejecting argument that higher level administrative official was bound by ALJ's decision). But see 29 C.F.R. § 1978.109(c)(3) (expressly providing that an ALJ's findings of fact that are supported by substantial evidence on the record considered as a whole are binding on the Board in whistleblower cases arising under the Surface Transportation Assistance Act, re-codified at 49 U.S.C. § 31105). An ALJ's findings constitute a part of the record, however, and as such are subject to review and receipt of appropriate weight. Universal Camera Corp., 340 U.S. at 492-97; Pogue v. United States Dep't of Labor, 940 F.2d 1287, 1289 (9th Cir. 1991); NLRB v. Stor-Rite Metal Products, Inc., 856 F.2d 957, 964 (7th Cir. 1988); Penasquitos Vill., Inc. v. NLRB, 565 F.2d 1074, 1076-80 (9th Cir. 1977).

   Did Smalls establish that SCE&G retaliated against him in violation of the ERA when it evaluated his performance as deficient in December 1999?

I. The Legal Standard

   To prevail in this ERA complaint, Smalls must establish, by a preponderance of the evidence, that he engaged in activity protected by the ERA, that SCE&G knew about that protected activity, took adverse action against him, and that the protected activity was a contributing factor in the decision to take the adverse action. See Kester v. Carolina Power & Light Co., ARB No. 02-007, ALJ No. 00-ERA-31, slip op. at 7-8 (ARB Sept. 30, 2003). If Smalls carries his burden to establish a violation of the ERA employee protection provision through proof of the foregoing elements, SCE&G may avoid liability by establishing, through clear and convincing evidence, that it would have taken the same adverse action in the absence of Smalls' protected activity. 42 U.S.C.A. § 5851(b)(3)(D); Kester, slip op. at 5-8 and cases there cited.

CX 1/RX 1 at unnumbered p. 3 (emphasis added).

   The ALJ interpreted "His actions caused a significant delay in a major project and a large expenditure of resources to close out the issue," as meaning Smalls' protected activity caused the delay and the large expenditures. Therefore, he reasoned, Smalls' "below expectations" rating was in part based on protected activity. Thus, to the ALJ, the text of the evaluation itself constituted direct evidence of discrimination. R. D. & O. at 16. But the ALJ failed to consider statements in the performance review that clearly praise Smalls for his pursuit of those concerns. He also ignored other statements in the performance review that reveal that SCE&G was concerned with Smalls' unacceptable conduct, not protected activity, when it rated him in December 1999. R. D. & O. at 16; see excerpt quoted supra.

   The statement the ALJ relies upon ("His actions caused . . . .") is taken from the summary paragraph in the final section of the performance review, and follows two sentences that are critical to understanding the delay Smalls caused. In the first of these sentences, the supervisor clearly praises Smalls by stating that Smalls "is very dedicated and committed to the installation of a quality product and he displays a strong conviction in pursuing what he is convinced is the proper course of action." CX 1/RX 1 at unnumbered p.3; see excerpt supra. The next sentence states that Smalls "alienated some team members and demonstrated a lack of respect for some individuals by the manner in which he raised the issue." Id. (emphasis added). Thus, the paragraph as a whole indicates that Smalls is being criticized for delaying completion of the SIMPLEX project by the disruptive manner in which he pursued his concerns, rather than being penalized for calling the concerns to management's attention.

   Furthermore, statements contained in the Performance Factors section of the performance review provide additional support for this interpretation of the evaluation. Smalls was rated "below expectations" on three of the six Performance Factors listed and "meets expectations" on the other three. Smalls received a "below expectations" rating on the Performance Factor titled "Values Performance." CX 1/RX 1 at unnumbered p.2. Supervisory comments there indicate that, "Ardis demonstrates a strong desire to do what is right and is very open and honest. He has failed on several occasions to consistently treat others with respect and care." To "respect and care" for co-workers is one of the performance requirements listed under that factor.

   Similarly, under the "Teamwork" factor, where Smalls was also rated "below expectations," the supervisor states:

Ardis has a good working relationship with most groups and individuals. He supports the common goals, but has exhibited a lack of teamwork and respect for others when he was not satisfied with progress on resolution of certain issues. I believe that Ardis truly felt it was more important to raise the issue to a higher level than whatever the personal consequences would be for raising the issues.

Id. Under "Teamwork," the supervisor must rate whether the employee "[a]ccepts, supports, and works with decisions of others; [w]orks cooperatively with team; and [w]orks effectively with other groups/departments." Id.

    The third factor on which Smalls received a "below expectations" rating was "Communications." Smalls was expected to "[d]iscuss[] issues and concerns in a constructive manner." The supervisor stated:

Ardis openly shares ideas and information. He needs to improve on organizing and conveying information to his audience. When he knows his information will not be readily accepted he should attempt to present it in a non-accusatory tone.

Id.

   Although Smalls was rated "Meets" under the "Work Quality" factor, the supervisory comments also reflect concern about the impact of Smalls' disruptive approach to discussing the SIMPLEX issues with other team members:

Ardis strives for an error free work environment. An issue of team trust has developed due to the process Ardis used to raise issues with quality on the project. He has provided constructive input to the recent discussions on implementing and testing the 2.03 software upgrade on the SIMPLEX CGUs.

Id.

   Similarly, although Smalls was rated "Meets" under the "Internal/External Customer Satisfaction" factor, the supervisor stated:

Ardis has been very supportive of OPS, System Engineering and Design Engineering with regard to certain areas of the 20951 modification. Some customers believe he has been a hindrance to the completion of 20951.

Id.

   Smalls was also rated "Meets" under the sixth factor, "Planning, Organizing, and Controlling," but the supervisory remarks reflect Smalls' failure to be consistently "constructive" in his approach to interaction with the MRF 20951 team:

Ardis has provided some constructive input to the recent 20951 weekly planning sessions. He provides estimated times for delivering his requested product and meets his deadlines.

Id.

   The performance review emphasized that, although the technical level of Smalls' work meets expectations and he is committed to quality work, the shortcomings in his interaction with co-workers adversely impacted all aspects of his job performance. In areas where constructive interaction is critical, those shortcomings resulted in unsatisfactory performance. Therefore, when the statement in the summary paragraph about Smalls' "actions" causing delay and expenditures is read in the whole context of the 1999 peformance evaluation, it becomes clear that it is the manner in which Smalls addresses safety-related issues that is the subject of management's concern, not the raising of those issues.

B. Other Evidence Relevant to Retaliatory Intent

   The performance review itself does not provide details of Smalls' failure "to consistently treat others with respect and care" and his use of an "accusatory tone" to present his views, but other documentary evidence and testimony provide vivid examples of the confrontational and otherwise counter-productive communications style Smalls employed in pursuing his concerns about the SIMPLEX system.

   1. Barton's testimony regarding the December 1998 and December 1999 performance reviews

   Although Barton was Smalls' first-level supervisor and drafted the December 1999 performance review, he was not a member of the SIMPLEX team, had not played a role in the design, installation and testing of the system, and was thus not the target of Smalls' allegations. HT 93 (Barton); see CX 12, RX 2, 3. Barton and Stroud described the SCE&G practice of soliciting input for performance reviews from co-workers with whom the employee regularly interacted and any peers that the employee named. HT 47, 72-73 (Barton), 123-24, 126-27 (Stroud); see CX 33. Smalls did not name any peers for Barton to contact for input in 1999. HT 81-82, 86 (Barton). As in 1998, Barton received input in 1999 from others who worked on the SIMPLEX team with Smalls and who had first-hand knowledge of Smalls' confrontational approach and frequent use of abrasive language. HT 83-84 (Barton). In addition to this input from others, Barton had copies of the April, May

and July 1999 letters that Smalls had submitted to SIMPLEX team members and other management personnel regarding his concerns about the SIMPLEX system. HT 71-79, 93-95 (Barton); see CX 12, RX 2, 3. Barton characterized Smalls' "communications style in both written and oral form" as "accusatory and very blunt . . . . He more or less slapped you in the face with it." HT 89-90 (Barton). When Smalls questioned him at the hearing, Barton provided the following explanation of the conflicts Smalls created with other team members:

Design Engineering had a certain set of procedures and documents to go through and you had some issue or you raised some issue as far as whether they were adequate or not. And once you raised it, you – I think you kept pushing the issue, even though it was being researched in the background, so to speak, you still would not go any further until the issue was resolved. I believe that's the best way to describe it.

HT 30 (Barton). As we discuss below, SIMPLEX team members Joy and Lyons testified to their first-hand experiences with specific problems of the type Barton described.

   At the time Barton drafted the 1999 performance review, he had received Kammer's May 1999 memorandum that complained about Smalls labeling Kammer a "liar." HT 71 (Barton); see CX 17/RX 4. Barton testified that he took Kammer's concerns into consideration but actually focused on his own reading of the Smalls documents. HT 71 (Barton); see CX 17/RX 4. Barton did not have a copy of the November 1999 letter from Joy and Lyons complaining about Smalls when he drafted the 1999 performance review, although he was aware of "some friction" among team members and Smalls. HT 83-84 (Barton); see CX 18/RX 5.

   Barton also testified regarding concerns related to Smalls' teamwork and communications skills that had been raised in 1998 and which were reflected in the December 1998 performance rating. HT 88-89 (Barton); see CX 1/RX 7; CX 33. In 1998, Joy provided written input into Smalls' appraisal:

[Smalls is] not open to constructive criticism in job performance. Always on the defensive side. Strives to do the best and right thing in task performance. Needs to improve communication skills.

CX 33; see HT 47-51 (Barton), 433-35 (Joy). Lyons also provided input, and much of it was very favorable. CX 33. Nonetheless, in 1998 Lyons also wrote:

Ardis is a positive force in completing "the BLACK HOLE" MRF20951 and its many components. On occasions he may seem a little difficult to work with but after you get to know Ardis as I have over the last 3.5 years you learn that in most instances he is trying to get to the best solution to an issue . . . . The one 3 [score] on "willing to learn and change" is only because I feel this is the only area he needs to improve. Some time he is over zealous in trying to solve a problem and does get narrow[-]minded (don't we all). . . .

CX 33. Lyons' testimony regarding the constant and time-consuming confrontations with Smalls that threatened to halt completion of MRF 20951 in 1999 demonstrates that the weaknesses in Smalls' performance that Lyons noted in 1998 worsened the following year. HT 465-68 (Lyons); see discussion infra at pt. IIB4.

   Under the "Teamwork" job requirement, the 1998 performance review stated that Smalls had "a good working relationship with most groups, individuals" but also noted that he "does have some conflicts that have yet to be resolved," and "on occasion exhibits some strong opinions/ideas on how to reach the goals and due to his zealous approach to some issues does not accept criticism well." RX 7 at unnumbered p.3; CX 1 at unnumbered p.8. Under the "Communications Skills" requirement, the review stated that, "In his zeal to do what is right, he sometimes may not see the full implications of his suggestions or not clearly present his point." RX 7 at unnumbered p.4; CX 1 at unnumbered p.9. The closing summary of the 1998 review reiterated these concerns:

[Smalls] displays a great conviction in pursuing what he is convinced is the proper course of action and in his zeal he has alienated some individuals/groups. I believe some training would be helpful in the area of negotiation/confrontation so Ardis could learn to better communicate with individuals who may not share his views/opinions.

RX 7 at unnumbered p.5; CX 1 at unnumbered p.10. Barton had hoped that including the statements regarding Smalls' communications and teamwork difficulties in the 1998 performance review would focus Smalls' attention on the need to improve his communications style. HT 88-89 (Barton). However, after Smalls' use of confrontational language continued in 1999, Barton believed that it was necessary to "formally" address the problems to foster improvement in Smalls' communications and interpersonal skills. Id. To assist Smalls to improve, Barton appended a list of interpersonal skills courses to the December 1999 performance review. HT 88-90 (Barton); see CX 1/RX 1 at unnumbered p.4. In addition, Barton suggested that Smalls submit memoranda addressed to co-workers to Barton first, so that he could "tone down" some of Smalls' language. HT 74-75 (Barton).

   Browne, Smalls' second-level supervisor, concurred in the "below expectations" December 1999 performance rating and at the hearing described Smalls as having significant interpersonal skills problems that had interfered with the functioning of the SIMPLEX team. HT 325-29. Browne explained that the performance review stated that some team members had considered Smalls a "hindrance" to completion of the MRF 20951 because conflicts between Smalls and others like Joy and Lyons "essentially brought work on the modification to a halt." HT 337-38. Like Barton, Browne was not present in meetings where confrontations between Smalls and other SIMPLEX team members occurred. HT 344-45, 353-55 (Browne). Also like Barton, however, Browne had reviewed Smalls' April, May and July 1999 letters regarding SIMPLEX. HT 325-30 (Browne); see CX 12; RX 2, 3. Browne also had the benefit of management discussions regarding the negative reactions that Smalls' letters had provoked from Design Engineering and other staff that had worked on the SIMPLEX project and who were the subject of Smalls' allegations of lying and records falsification. HT 332-35, 340-41.

   Browne asked Smalls to write a memorandum about his concerns regarding the SIMPLEX system in order to get his "ideas clearly down on paper so they could be fairly evaluated." HT 329 (Browne). He made this suggestion after Smalls reported that he and Steven Fipps had a heated exchange about SIMPLEX in March 1999. HT 325, 349-50 (Browne); see CX 2 at 1-2. Like Barton, Browne had hoped that Smalls would finally recognize the need to improve his communications style after the December 1999 performance review. Browne believed that Smalls had conducted himself professionally in a December 16, 1999 meeting with Vice-President Gary Taylor and other high level managers to discuss Smalls' internal grievance regarding the December 1999 performance rating. HT 342-43, 352-53 (Browne). Immediately thereafter, Browne visited Smalls at his work-station to commend him for his professional conduct, which Browne viewed as demonstrating improvement. Id.

   2. Smalls' history of communications skills problems prior to 1998

   In addition to the evidence of communications skills problems that were addressed in Smalls' 1998 and 1999 performance reviews, the record contains evidence of management concerns about similar problems dating back to 1992. Stroud, a Human Resources specialist at VCSNPS, testified regarding his experience with Smalls' "longstanding interpersonal skills issues" and Smalls' reliance on accusations and a confrontational tone in his communications with co-workers. HT 109-10.

CX 12 at May 2, 1997 SCANA Human Resources Grievance Investigation Report at 5. Smalls appealed to the next level and alleged that supervisors had defamed him, in part because he was outspoken. Vice-President and Controller Jimmy Addison decided the appeal and stated:

I assume that this is related to the recommendations about your interpersonal skills which are critical for any type of leadership role. I believe that this was truly given as constructive feedback so that you might improve your overall performance and attain the promotion and general performance ratings that you are seeking.

My evaluation is that this is the very heart of the issue in this disagreement between our evaluation of your performance and your perceptions. Teamwork and communications have been repetitive issues in your evaluations since 1992. Those evaluations have been performed by a different individual every year but the same basic issues arise. While these attributes have always been important they are becoming critical to our operating environment as we enter the truly competitive world.

CX 9 at Addison July 8, 1997 memorandum at 3. Smalls then appealed to the company president, John Skolds, who denied the grievance in a ruling dated August 15, 1997. RX 6.

   Two of Skolds' conclusions are clearly relevant to the history of the communications and interpersonal skills problems that are involved in this ERA complaint. Regarding Smalls' allegations that SCE&G managers had defamed him and treated him unethically, Skolds concluded that Smalls was relying solely on situations where others had taken "a different position than [his] on a particular topic" as support for those allegations. RX 6 at 3. And in response to Smalls' allegation that he was due a promotion for his work on the SIMPLEX system, Skolds stated:

In some performance areas Mr. Smalls has met or exceeded the requirements for his current role. However, performance evaluations and other documented information have consistently shown Mr. Smalls to have performance difficulty in the areas of interpersonal skills and communications. Mr. Smalls appears to have the potential to be promoted but must work on his communications. Specifically, he should make his communications (oral and written) less con-frontational.

RX 6 at 4; see HT 153 (Stroud), 256 (Duncan). We note that Skolds also wrote a final ruling letter rejecting the grievance Smalls filed regarding his December 1999 performance review. That February 14, 2000 ruling letter reiterates the distinction between technical knowledge and interpersonal skills, and the need for Smalls to improve the latter:

[N]o one disputes your technical abilities. However, a significant part of being on a team is working cooperatively. Your communications skills need immediate improvement. It is totally unacceptable for you to continue to communicate in an inflammatory manner.

The management team remains committed to resolving technical matters affecting the safe operation of the plant. Your input is needed and appreciated. You can be a valuable member of the team at V.C. Summer if you change your method of communications to one that is more constructive and less inflammatory.

CX 16/RX 10.

   3. Smalls' April 30 and July 6, 1999 letters

RX 2 at 2-3. In the same letter, Smalls also claims that the MRF 20951 has received inadequate support from Design Engineering and the Fire Protection Coordinator. His statements on this issue include the following:

DE has had a lot of engineers working on this project. Themajority of those that work on this MRF 20951 did not pay attention to the NFPA 72 code or made sure that we were applying the code as it applies to VC SUMMER.

RX 2 at 3. Smalls felt that he should be assigned full-time responsibility for the SIMPLEX system as a Computer System Engineer. He states that co-workers assume that he is filling that role, but he expresses his concern that he has not been officially appointed. Thus, he wrote:

For the record, it is the work of Mr. Smalls that this project is trying to reach pay dirt. Mr. Smalls has been flagged with the banner of being confrontational and not having good communicating skills since involvement on this project. Well, Mr. Smalls will defend himself right now. When you have a lot of Senior personnel that are suppose[d] to know and have the answer for systems that they are responsible and accountable for, and you add the fact that these employees may have covered up a grave mistake and thought nobody would unearth the truth, then all of a sudden here comes a young man name[d] Ardis W. Smalls who begins asking some hardcore questions that these folks don't want to answer, I can see confrontations coming. . . . Personally, I don't give a damn about that. I have done my job as a Process Control Analyst . . . . I have took my timeout to train all shifts about the operation of this system but they have not taken it seriously because testing was not required. . . . But I am still not recognize[d] for my work ethics as it pertains to this project!!!! But, I am the man that is keeping this project going in the RIGHT DIRECTION!!!!

RX 2 at 3-4. Additionally, Smalls questioned whether forms used to record post-modification test results were adequate, and, although the engineer who completed the test forms followed the format then in use, Smalls stated that "the I&C job supervisor did not report accurate information relating to the test back to the L[ead] E[ngineer]." RX 2 at 4. Smalls' choice of words suggests that the I&C engineer intentionally misinformed the lead engineer regarding the test results. See HT 420-26 (Joy).

   On June 24, 1999, Design Engineering responded to the concerns Smalls had raised in April and May 1999. That response reflected Design Engineering's investigation of each concern and corresponding findings and recommendations. CX 12 at June 24, 1999 memorandum to G. Moffatt, B. Williams, J. Stroud, M. Browne. On July 6, 1999, Smalls replied in a memorandum to several managers who were associated with the SIMPLEX project. Smalls commented on several of Design Engineering's explanations and recommendations concerning the SIMPLEX issues. RX 3.

   Smalls begins by asserting that, "From [1993] until now, I have witnessed DE lie about the true status of MRF 20951." RX 3 at unnumbered p.1. Smalls denies that his reports regarding the SIMPLEX system have been "very accusatory." He states, " I have not accused anybody!! I told who did what based on the facts and what their involvement was and still is in this project." Id. Smalls also addressed Design Engineering's directive that, to avoid further miscommunications with the SIMPLEX company, "all future communication to SIMPLEX, both the local and headquarters offices, will come through the R[esponsible] E[ngineer]." Design Engineering had earlier stated that Smalls had "abused" his authority to contact SIMPLEX directly when he telephoned the regional company office to complain about the local representative. RX 3 at 5-6. In his July 6 reply, Smalls attempted to justify his usurping the Responsible Engineer's role vis a vis the SIMPLEX company:

For the record, I did not abuse my authority . . . . There were several discussions about problems with the local office. DE Responsible Engineer (Albert Lyons) complained a lot about not receiving the proper responses from the SIMPLEX local office. I told him to get his Supervisor or Manager to generate a letter to Mr. Turay and the problem will get resolved. For some reason, Mr. Lyons did not want to confront his chain of command[.] Therefore, tired of his complaining, I took the appropriate action as Mr. Turay told me directly [in] Mass[.] in October of 1996. Therefore, as [a] member of VC Summer Nuclear Station Team, I took the proper action.

RX 3 at 6.

   When Design Engineering responded to Smalls' safety concerns on June 24, it had explained that the failure to install alarm bells in a maintenance building was the result of a "communication break-down." Id.; see RX 3 at 13-14 (further comments from both sides regarding when maintenance building was built). But Smalls disagreed:

This was not an oversight or breakdown. This is an example of not following the programs that were established for VC Summer Nuclear Station. During the initial installation of hardware, these items should have been verified for existence and not assume[d] to exist. Plant Program violated. . . .

RX 3 at 6.

   The closing summary of Smalls' July 6 comments include the following statements:

I hereby charge DE with failure to accurately report and to be truthful in the preparation, review or submission of reports that are held as plant records. . . .

For the record, Mr. Kammer lied to Mr. Browne who was manager at the time and he lied to our Vice-President who had to agree to the purchase of this mod. And most of all, he lied to his fellow employees who trusted that he would do the proper V&V. . . .

RX 3 at 21. At the hearing, Smalls repeatedly reiterated his assertion that Kammer had "lied" regarding the validation and verification of the SIMPLEX system. HT 269-71, 291-96 (Smalls).

   4. Written complaints about Smalls' conduct from Kammer, Lyons and Joy

   Several witnesses testified concerning the counter-productive effect that language used in Smalls' letters had on them individually and also on the functioning of the SIMPLEX team. Beyond the abrasive language used in the letters, the record contains testimony concerning Smalls' disruptive conduct that caused delays in the team's completion of MRF 20951. Not surprisingly, Kammer, Joy and Lyons filed written complaints with management in 1999 regarding their concerns. CX 17/RX 4; CX 18/RX 5.

   Kammer sent a memorandum to Barton in May 1999 after learning of Smalls' April 1999 allegations that Kammer had lied about the "verification and validation" (V&V) testing process . HT 371-73 (Kammer); see RX 2 at 3. Although Kammer was no longer on the SIMPLEX team, he was the fire protection engineer who had initially designed the system for the VCSNPS lay-out. As a licensed professional engineer who still worked in the Design Engineering division, he took "strong personal and professional exception to Mr. Smalls['] allegations of hiding information developed for this project, or not being forthcoming to management concerning the project status." CX 17/RX 4. In his May 1999 memo to Barton, Kammer states that he has recommended that management undertake an independent technical review of Smalls' claims about the design, installation and testing of the SIMPLEX system, in addition to a technical review that Design Engineering was then handling. Id. Kammer also states:

My response and the independent review will prove these claims and allegations are without merit. It has been my experience that a questioning attitude is healthy for any team; however, Mr. Smalls['] claims go beyond questioning and border on defamation. His methods in this case are also unprofessional. Please consider this as input into his upcoming Performance Evaluation for 1999.

CX 17/RX 4; see HT 406-07 (Kammer).

   Similarly, Lyons and Joy sent a November 1999 memorandum to Fipps, head of Design Engineering. CX 18/RX 5. They stated that Smalls' actions and statements beginning in February 1999 had compromised the "internal trust" among SIMPLEX team members. This demonstrated "that he is no longer willing to function as a supportive Team member for MRF 20951." CX 18/RX 5. The memorandum described the delays Smalls was causing:

A change in his ability to compromise and be objective on issues, even if all other Team members have reached a consensus, has not been well received. There have been cases where he has provided no supporting evidence to proceed in a different direction on a given issue, but that is the way he wants it done. He has also made statements indicating that malicious compliance will be the path of travel in updating or correcting software, in times when his input and feed back is needed.

No one on this Team is perfect or always 100% correct. This is why we practice the "STAR" principles and have successfully worked as a Team in supporting each other's work. Mr. Smalls over the past 5 months has raised a number of concerns and issues that have been previously addressed or has no proven foundation or basis. Our observations indicate that he is unwilling to accept the answers to the issues that are contrary to his beliefs and has maintained a one-man crusade during this time period. His recent performance and allegations in this area has cost this job numerous man-hours of Engineering time, and 4 months of productive work. His continued vigilance in bringing planned work to a halt (most recently loading the software on the simulator) indicates that he has moved away from being an objective team player to support the closeout of MRF 20951 by December 31, 1999. Another problem is his reluctance to work with the assigned Simplex Technical Representative and his continuing effort to circumvent the Local Simplex Office on Technical issues.

CX 18/RX 5. The memorandum concludes by asking that Smalls be replaced with a different computer support representative to serve as the primary contact for the SIMPLEX team, although Lyons and Joy stated that they would not object to Smalls playing a back-up computer support role. Id.

   Lyons, who was the lead engineer on the SIMPLEX project beginning in 1995, testified that he and Joy sent the memorandum to their Design Engineering supervisors and the general manager only after months of deliberation. HT 465-66. They did not want Smalls disciplined, but they thought that someone else, possibly Smalls' supervisor, needed to "act as an intermediary" so that when confrontations arose, they "could go to the supervisor and the supervisor would remedy the problem." Id. Lyons described Smalls' disruptive conduct in those months as follows:

We just had trouble dealing with him on issues. We felt like if he had his idea of doing it, even if it was almost what he wanted to do, if it wasn't the same way he wanted it, we had confrontations.

HT 465-66. Similarly, when Smalls questioned him regarding when he and Smalls began to have difficulties working together, Joy replied:

Later on, it seemed that you had – my personal observation, it seemed that you had an alternative agenda, other than performing the actual functions that you were designated to perform in that particular modification. And it just seemed that you had your own agenda where you were not focused totally on the performance of this modification in the way that you had been before.

   Concerning Smalls' intimidation claim, the ECP investigation found that Smalls' only basis for that allegation was that Design Engineering had distributed a copy of its June 24, 1999 response to Smalls' technical concerns to Stroud, in the Human Resources office. RX 17, tab 10; tab 11 at Executive Summary; HT 222-24 (Franchuk). ECP concluded that the "tone and content" of Smalls' April and May 1999 correspondence warranted Design Engineering's contacting Human Resources. RX 17, tab 11 at Executive Summary. ECP ultimately concluded that Smalls had not substantiated his intimidation allegation and that "communications and project management" of the MRF 20951 had contributed to Smalls' perception. Id.; HT 229 (Franchuk).

   Franchuk testified that he initially found Smalls' explanation of his technical concerns difficult to follow and that Franchuk's role was to act as Smalls' "agent" by ensuring that the concerns were fully investigated and resolved. HT 200, 222-24 (Franchuk). The issue of whether Smalls had used abrasive language or exhibited poor interpersonal skills in raising his technical concerns was not within the scope of the ECP investigation. HT 228-29 (Franchuk); see RX 17, tab 11 at Executive Summary.

   Following an on-site investigation, in which he spoke with thirteen VCSNPS employees including Smalls, the independent, outside consultant evaluated Smalls' technical concerns. RX 17, tab 11 at Evaluation Notes. The consultant, William Miller, was a retired NRC inspector with more than thirty-six years of experience with designing and evaluating fire detection, suppression and fire barrier systems. RX 17, tab 11 at Miller resume.

   Miller's report finds some of the issues Smalls raised were unsubstantiated, that corrective action was already pending to address other issues, and that at least one issue reflected a misunderstanding of "pressure switches on the various automatic sprinkler systems." RX 17, tab 11 at Evaluation Notes at 2, 4-7. Miller also agreed with Design Engineering's plan to enhance post-modification test sheet formats with changes that Smalls initially recommended. Id. at 3; see HT 448-50 (Lyons). Miller also recommended that "qualifications for the personnel performing computer related work activities on the SIMPLEX Fire Protection System be established." RX 17, tab 11 at 8.

   Smalls contends that Miller was not qualified to review the technical issues. HT 285-86 (Smalls); Comp. Brief at 18-19. In fact, according to Smalls, based on his knowledge of computerized systems and his training regarding the SIMPLEX system, he was the only person who was adequately qualified to assess the technical issues he had raised. HT 284-87. However, Franchuk testified that NRC representatives had not objected to management's choice of Miller to conduct the investigation. HT 203-07, 225-26. Franchuk also pointed out that Miller, as a retired NRC inspector, had experience in asking the right questions in the course of an investigation, in order to ensure that he had an adequate understanding of the technical issues, even if he did not have experience with SIMPLEX computer software. HT 200-01, 205-06 (Franchuk).

   6. The NRC investigations and Smalls' objections to the NRC inspector

   In a May 7, 2001 letter, the NRC addressed questions that were presented in a January 7, 2001 letter from Smalls. JX 1. The May 2001 letter rejects Smalls' concern about a lack of testing of supervisory circuits in the SIMPLEX system because NRC regulations did not require such testing and because the lack of testing did not undermine the functioning of the system as intended. An attachment to the letter also explains why it would be unreasonable to conclude that SCE&G personnel had falsified records about such testing. JX 1 at Enclosure at 2. More relevant to our analysis, the NRC letter addresses Smalls' objections to the qualifications of the Regional Reactor Inspector who had conducted the inspection of the VCSNPS fire protection system.

   The letter states that the NRC inspector was "a qualified and experienced fire protection engineer." The NRC states that it nonetheless instructed a second NRC inspector to review the efforts of the first inspector. The second inspector

concluded that while our assigned fire protection engineer did not have expertise in SIMPLEX fire detection computer hardware and software, he did have sufficient expertise to understand the required functions of the system, the testing and inspections performed to verify those functions, the applicable code requirements, and the NRC requirements.

JX 1. Nevertheless, Smalls testified that he believed that the NRC inspector's qualifications were, like those of Miller, inferior to Smalls' own. HT 284-87.

C. Summary of the Evidence

   The overwhelming weight of the evidence supports management's December 1999 assessment that Smalls' communications and teamwork skills were unsatisfactory. The record also establishes that Smalls' pursuit of ERA-protected safety-related issues did not contribute to the "below expectations" rating. Documentary evidence and testimony by SIMPLEX team members and Smalls himself bolsters the testimony of Barton and Browne, who, respectively, drafted and approved the performance appraisal. As Barton testified, Smalls' performance standards required that he "work with the [SIMPLEX] team in a productive manner." HT 83-84. The company president had counseled Smalls in 1997 regarding the importance of improving his interpersonal skills by making his communications less confrontational. Barton had attempted to assist Smalls in "toning down" the abrasive language he typically used. Smalls' letters and his hearing testimony clearly demonstrate harsh criticism and imprudent accusations. Members of the SIMPLEX team provided first-hand testimony of how Smalls disrupted work on the MRF 20951, despite their efforts to address his technical concerns.

   Since Smalls failed to demonstrate that SCE&G rated him "below expectations" because he raised nuclear safety concerns, he did not prove that SCE&G violated the ERA. Therefore, we DENY his complaint.

   SO ORDERED.

      OLIVER M. TRANSUE
      Administrative Appeals Judge

      M. CYNTHIA DOUGLASS
      Administrative Appeals Judge