as a structural engineer at CP&L's Shearon-Harris nuclear plant, through a "job shop" that provided contract workers to the nuclear industry. T. 73-74. Webb was hired temporarily to meet the increased need for engineers during an "outage," or period when the plant was not producing power and was implementing numerous design changes. Webb's first supervisor recommended him to acquaintances at CP&L's Brunswick nuclear plant, who in turn hired Webb as a contract structural engineer in 1987. T. 83. Webb subsequently worked every Brunswick outage from 1987 through November 1991 and, in addition, worked at CP&L for significant periods between outages. T. 87.

    After a lay-off of a few weeks' duration, Webb was rehired as a contract engineer by CP&L's headquarters-based Nuclear Engineering Department in August 1989. T. 88. That same month, the Nuclear Regulatory Commission (NRC) conducted an inspection at Brunswick and issued a report in which it criticized the plant's condition and stated that the educational level of the Brunswick engineering staff was only "marginally adequate." RX 37; T. 346-348. About 75 percent of the engineering staff did not have four-year engineering degrees. RX 37 p. 71; T. 348-350. The NRC report led CP&L to downgrade the positions of some of its engineers who lacked degrees. T. 446.

    Webb had a high school diploma and a limited number of correspondence courses in engineering, but did not have an engineering degree. T. 69-70. Nevertheless, in a 1990 performance evaluation, Webb's supervisor, Bobby Marlar, rated his work highly. CX 10.

    Although assigned to the headquarters Nuclear Engineering Department, Webb was transferred in August 1990 to the Brunswick plant as a civil/structural engineer, reporting directly to John McIntyre who, in turn, reported to J. E. Harrell. T. 397, 442, 646-648. In January of the next year, Richard Tripp replaced McIntyre as Webb's immediate supervisor. T. 821.

    The Nuclear Engineering Department's funds covering Webb's salary were depleted in August 1991. T. 648, 877. After determining that they needed to hire a contract engineer, Harrell and Tripp hired Webb directly into their organization, where he functioned as a design engineer. T. 648-649. When design work tapered off in November 1991, Harrell and Tripp laid off four contract engineers, including Webb. T. 650. Webb does not allege that his layoff violated the ERA.

    In an exit interview, Tripp told Webb that he was eligible for rehire by CP&L. T. 98, 100, 262, 844; see CX 35. Webb was given the opportunity to raise safety issues at that time, but he did not. RX 36; T. 240 -241.

    Webb's Protected Activities

    An April 1992 NRC reinspection of the Brunswick plant revealed a backlog in completing needed structural modifications as well as several problems with bolts installed at the plant. As a consequence, CP&L unexpectedly shut down both nuclear units at Brunswick. T. 370. A newspaper article concerning fraudulent bolts at the plant led Webb to speak with the NRC that month about structural design defects he had observed at Brunswick over a period of years. T. 101, 103, 106. In early May, the NRC sent two letters informing CP&L about information "received by the NRC" concerning certain safety defects at the Brunswick plant. RX 28, 29.

    The first safety defect identified by the NRC was an undersized steel beam in the North RHR room in the reactor building. RX 28; T. 116. The plant engineering records relating to the beam contain an entry in which Webb is named as one of the individuals who had identified and documented the problem with the beam. T. 116-118. Tripp accompanied the NRC resident inspector to inspect the beam. T. 846-849; CX 41 at 52.

    The next safety defect, 2(a), identified by the NRC in its correspondence was a missing bolt in the control room that Webb had previously reported to Tripp and that had been the subject of an extended discussion between them. T. 119-120. Again, Tripp accompanied an NRC inspector to the control room and determined that the bolt was missing. CX 41 at 52. Safety issue 2(b) related to a missing bolt that Webb had reported to Tripp and regarding which Webb recommended the preparation of a "trouble ticket." T. 122-123.

    Safety issue 3(a) related to the proper length of runs of conduit on which Webb had performed the engineering analysis prior to modification. T. 124. Webb had observed that the craft workers were running conduit spans that exceeded the lengths identified in the engineering drawings and he required the craft workers to make 40 design fixes. CX 40A at 7; T. 124-125. Webb personally informed Tripp and other supervisors of the need to modify the conduit spans. T. 126-128.

    Issue 4 concerned the improper installation of a door latch on a sacrificial shield door, a problem that Webb had pointed out to his supervisors in a 1989 letter. T. 128-129. In addition to the above safety issues identified in the NRC's correspondence, Webb had documented in a December 1988 memorandum the structural defects that are the

subject of Issue 7. T. 291. Webb's close involvement with a number of the safety issues raised by the NRC is well documented.

    The other hiring supervisor, Ken Fennel, testified that a few days after he received authority to hire an additional engineer the plant unexpectedly shut down. Consequently, Fennel did not need to fill the position and he never examined resumes in connection with it. T. 776-777; see also RX 7 (notation about job not existing).

    Quantum next submitted Webb's resume to Ray Heatherington as a "blind submittal" without reference to any specific opening. CX 14; CX 30. Heatherington did not remember receiving the resume and believes he probably discarded it since CP&L disfavors blind submittals. T. 690-691.

    Webb's resume was submitted by Quantum a third time, on June 15, 1992, for the position of structural/mechanical field engineer. CX 25. Quantum's record indicates that the position did not require a college degree. Id. Harrell, the listed supervisor, needed to hire several engineers. Id. Quantum submitted six other candidates, two of whom, like Webb, did not have a four-year degree. CX 23. A later entry in Quantum's computer record for this position states that CP&L needed two structural engineers and a degree was required. CX 25.

    Soon after his resume was submitted, Webb informed Quantum that a rival job shop said that a degree was required for this position. T. 252; RX 9 at 4; CX 26; CX 72 at 49. At about the same time, Webb telephoned Harrell to indicate his availability for rehire, and Harrell replied that there would be no problem in Webb's returning to the Brunswick plant during an outage. T. 162. Harrell explained that he was unaware that Webb lacked a college degree when he spoke with him. T. 617. Harrell verified that later he reviewed Webb's resume and rejected him because he lacked a four-year degree. T. 616. During that summer, Harrell hired into the position five candidates all of whom had at least a bachelor's degree in engineering. T. 616-620.

    Webb telephoned Quantum's Michelle Cooke on September 21, 1992 to inquire about the result of the June 15 resume submittal. Cooke checked with co-worker Sharon George and told Webb that he would not be hired because he did not have an engineering degree. That same day, Cooke entered into Quantum's computer record for the position a statement that only Webb had been ruled out on this job request. A final computer entry concerning this position cancels Quantum's job order because a competitor job shop had an exclusive contract to provide degreed engineers for this job request. CX 25; CX 72 at 35, 39, 111-113.

    Webb also used informal approaches to return to work at CP&L. He notified his friends at the Brunswick plant that he wished to return, and the friends in turn told various supervisors that Webb was available. One friend, George Frick, asked Tripp if he had any problem with Webb's performance. RX 71 at 9 (Frick); T. 842 (Tripp). Tripp replied

that there was a problem and suggested that Webb was "not as strong a performer as other people in the group, that he did not really get along that well in a group setting." T. 843; see also RX 71 at 8-10. Tripp believed that his conversation with Frick occurred in October, T. 842, and Webb's diary confirms that Frick related the conversation to him on November 1, 1992. RX 28 at 49.

whether particular alleged acts of discrimination constitute "a course of related discriminatory conduct" under the continuing violation theory. Thomas v. Arizona Public Service Co., Case No. 88-ERA-212, Sec. Dec. and Ord. of Rem., Sept. 25, 1993, slip op. at 13, citing Berry v. Board of Supervisors of L.S.U., 715 F.2d 971, 981 (5th Cir. 1983), cert. denied, 479 U.S. 868 (1986):

(1) whether the alleged acts involve the same subject matter, (2) whether the alleged acts are recurring or more in the nature of isolated decisions, and (3) the degree of permanence.

    All of the alleged discriminatory incidents in this case involved the same subject matter, CP&L's refusal to rehire Webb. The ALJ found that the rejections of Webb's applications -- Quantum's submittal of his resume on May 6 and June 15, 1992 -- were "not related in subject matter to Tripp's comment, and were isolated employment decisions of a permanent nature that should have triggered Webb's awareness of, and duty to, assert his rights." R. D. and O. at 16. We disagree because the ALJ did not consider several critical factors. Quantum's blind submittal of Webb's resume could have led to his being rehired at CP&L even after Webb learned that two of his applications for specific positions had been rejected. In addition, Tripp's testimony shows that CP&L managers often consider an informal performance assessment by a former supervisor in making hiring decisions about candidates who have worked for CP&L previously. T. 867.

    Systematically excluding an individual from consideration for employment, by its very nature, is a continuing course of conduct and may constitute a continuing violation if it is based upon an employee's protected activity. Egenrieder v. Metropolitan Edison Co./G.P.U., Case No. 85-ERA-23, Order of Remand, Apr. 20, 1987, slip op. at 4. In this case, Tripp's negative reference, to the extent it is accepted as evidence of an ongoing decision to exclude Webb from consideration for employment, is sufficiently similar in nature to Webb's other allegations as to constitute a continuing violation. Accordingly, the merits of all of the alleged claims will be considered.

The Merits

    To prevail on the merits, Webb has the burden of showing by a preponderance of the evidence that his protected activity "was a contributing factor in the unfavorable personnel action alleged in the complaint." 42 U.S.C. §5251(b)(3)(C). However, "if the employer demonstrates by clear and convincing evidence that it would have taken the same unfavorable personnel action" in the absence

of the complainant's protected activities, relief may not be ordered. 42 U.S.C. §5251(b)(2)(D).

    In making the required showing of a "contributing factor," Webb must demonstrate that the CP&L employee or employees responsible for excluding him from consideration for rehire were aware that he had raised safety issues with the NRC. It is undisputed that Webb asked for, and received, assurances that the NRC would try to keep his name confidential. We do not agree with the ALJ that "it is irrelevant that CP&L could have fingerprinted Webb as the NRC alleger." R. D. and O. at 12. Rather, if Webb shows that any of the CP&L employees either knew or suspected that he was the NRC's alleger and that such an employee took adverse action against him as a result, Webb will have proved his case.

    We will begin with Tripp, who uniformly listed Webb as eligible for rehire on official documents, but testified that he personally would not rehire Webb because of low productivity and a communication problem. The oral performance evaluation Tripp gave to Frick in October 1992 allegedly was consistent with the written evaluation Tripp made at the time of Webb's layoff one year earlier.

    There are serious problems with the 1991 performance evaluation that preclude our relying upon it. Tripp did not recall having made the written evaluation when a Department of Labor interviewer questioned him approximately 18 months after he supposedly made it. CX 3 at 4. According to Tripp, he remembered making the evaluation only after John Duncan faxed it to him, although he did not have a copy of the faxed evaluation. T. 831-834. Duncan, however, testified that he did not fax a copy of the evaluation to Tripp; the only person to whom he sent the evaluation was an attorney for CP&L. CX 69 at 22, 38. This is not the only contradiction in the testimony concerning the evaluation.

    Roy Heatherington testified that he and Duncan together found the original of the evaluation in locked files in the company's Center Plaza Building. T. 722; CX 68 at 15-18. Duncan, however, maintains that CP&L did not keep the originals of the November 1991 evaluations of Webb and his coworkers, but rather sent the originals to the vendor, Quantum. T. 753; CX 69 at 23. Nevertheless, counsel for Quantum advised the Department of Labor investigator that Quantum did not have either a copy or the original of this evaluation in its files. CX 45 at E-5-a. Moreover, Duncan further contradicts Heatherington on the location in which the evaluation was found. Duncan testified that it was found in his own office, which is not in the Center Plaza Building. T. 739-741, 753.

    Finally, Tripp claimed that CP&L routinely and periodically evaluated all contract employees. T. 890. Duncan contradicted him, testifying that the 1991 evaluations at issue were a one-time effort and were not periodically performed. T. 741.

    In view of all the evidentiary problems with the purported 1991 performance evaluation, the ALJ properly gave it no weight in making a recommended decision. The conflicting testimony regarding the evaluation raises concerns about its validity. The Board finds the document inherently unreliable.

    Tripp contradicted his own purported negative evaluation of Webb's work when he told the Department of Labor investigator that the quality of Webb's work was satisfactory. CX 3 at 2. Tripp signed the handwritten transcription of his answers to the investigator's questions. Tripp had no explanation for why the reference to Webb's satisfactory quality of work was removed in the typed version of the statement that CP&L produced. T. 907-909; see CX 6. The difference in the handwritten and typed statements is highly probative of an effort to cover up unlawful motivation on Tripp's part.

    That difference is not the only suspicious change in the statement. Tripp's handwritten statement to the investigator listed low productivity, inability to accept criticism, and lack of initiative as the reasons he would not rehire Webb. CX 3 at 6-7. The typed version contained an additional reason, that Webb lacked a four-year engineering degree. CX 6 at 6. Again, neither Tripp nor any Carolina Power representative provided an explanation of how the additional reason got into Tripp's statement. We see no reason why CP&L would materially alter Tripp's DOL statement, other than in an effort to cover up Tripp's true motivation for giving a negative evaluation of Webb.

    We digress briefly from discussing the merits to underscore our concern with the highly suspicious behavior of Carolina Power representatives concerning the material changes to Tripp's DOL statement. Although it is not entirely clear from the record, it appears that Carolina Power submitted CX 6 (Tripp typed statement) to the investigator as a typed version of the handwritten statement, CX 3, that Tripp earlier had signed.

    Counsel for Carolina Power was present when the DOL investigator interviewed Tripp. T. 881; CX 2 at 7 (DOL investigator's report referring to presence of Joan Fife). Therefore, Carolina Power had ample opportunity to make for the record corrections had the investigator failed to record Tripp's answers accurately. Tripp had no idea why the statement was changed in the typed version. T. 907-909. If counsel knowingly allowed the altered version to be submitted to the Department of Labor assuming that it would be accepted as a typed version of the handwritten statement, that would be a serious violation of the standards of conduct for practice before the administrative tribunals of the Department. See 29 C.F.R. §18.36(a): "All persons appearing in proceedings

before an administrative law judge are expected to act with integrity, and in an ethical manner."

    The ALJ noted that the typed version differed from the handwritten version of Tripp's statement but did not pursue the issue. T. 886. Where the integrity of the Department's adjudicative processes is at stake, the presiding Administrative Law Judge should take all appropriate steps to resolve the uncertainty surrounding questionable conduct.

    In other cases in which negative employment references were motivated by animus because of the complainants' protected activities, we have found a statutory violation even where the complainant did not show that he was refused employment or suffered actual job loss. For example, in Leveille v. New York Air Natl. Guard, Case Nos. 94-TSC-3 and -4, Sec. Dec. and Rem. Ord., Dec. 11, 1995 slip op. at 18, the Secretary found a violation of the analogous employee protection provisions of several environmental statutes where a former supervisor "who was advised that he was speaking to an employer in possession of [the complainant's] resume, essentially recommended that the caller avoid employing [the complainant] by stating that [the former supervisor] would not hire her." In fact, the caller worked for a reference checking company that the complainant had hired.

    Likewise, in Gaballa v. The Atlantic Group, Inc., Case No. 94-ERA-9, Sec. Final Dec. and Ord., Jan. 18, 1996, the Secretary found an ERA blacklisting violation where the respondent referred to the complainant's discrimination complaint in a conversation with a hired reference checker. The Secretary there stated broadly that "[d]iscriminatory referencing violates the ERA regardless of the recipient of the information." Gaballa, slip op. at 3. The Secretary also reiterated the earlier ruling in Earwood v. Dart Container Corp., Case No. 93-STA-16, Sec. Dec., Dec. 7, 1994, slip op. at 5, that "the risk that improper information may be provided to prospective employers or placed in records maintained by outside organizations like reference checking companies, requires a prophylactic rule prohibiting improper references to an employee's protected activity whether or not the employee has suffered damages or loss of employment opportunities as a result.'" Gaballa, slip op. at 3.

    In this case there was no reference checking company involved and hence there was far less risk that Tripp's negative remarks would be maintained in records. Tripp made the remarks informally to a colleague who also happened to be a friend of Webb's. There is no basis in this record to find that Tripp gave the same negative reference to any person who stated that he was considering hiring Webb.

    In the context of this case, with its unique facts, we find that this case is not sufficiently analogous to those previous cases where substantial job detriment would be a predictable and natural outcome of the respondent's conduct. In those cases the complainant demonstrated that the respondent's actions in providing negative references to outside sources occupationally impaired them. In this case Webb has not established that there was a substantial risk that the negative reference would be maintained in a record or would be given to outside organizations seeking information about Webb. We therefore find that Webb has not established an independent violation of the ERA's employee protection provision.

Consequently, Webb must establish that Tripp's comments were part of an ongoing practice of exclusion which explains the other earlier adverse actions.

    An examination of the earlier employment actions does not support a finding that they were part of pattern or practice of exclusion motivated by Webb's whistleblowing activities. The remainder of Webb's claims concern the failure of CP&L to rehire him in response to the submittal of his resume. CP&L claims that it legitimately did not rehire Webb because he did not have a four-year technical degree. After the NRC's 1989 report stated that the number of degreed engineers at the Brunswick plant was too low, CP&L clearly preferred to hire engineers with technical degrees. Webb challenges this assertion on the basis that CP&L continued to hire non-degreed engineers, including himself, after the 1989 NRC report. Webb Brief at 17-18. The Board finds that the April 1992 NRC reinspection revealed a large backlog in making the necessary plant modifications to fix structural problems, and did lead CP&L to insist more strenuously on hiring degreed engineers at Brunswick.

    The focus in this case is specifically on CP&L's hiring decisions when Webb applied in May and June 1992. The issue is whether CP&L acted consistently at that time and legitimately declined to rehire Webb because he lacked an engineering degree.

    Quantum submitted Webb's resume to CP&L's Director of Contracts, Janet Crews, on May 6, 1992, for consideration for the position of civil/structural engineer, but the submission did not include a BNP [Brunswick Nuclear Plant] identifying number. CX 22; T. 983, 985. Crews did not recall receiving Webb's resume and did not know whether she forwarded it to the hiring supervisors. T. 983-984.

    The corresponding CP&L document alerting Quantum to the need for two civil/structural engineers, dated April 22, 1992, states "desire degreed individual for at least one of these positions" and lists two supervisors, Ken Fennel and Geoff Wertz. RX 49; see also CX 32. Fennel testified credibly that he never filled the position in his group because immediately after receiving permission to hire, both units of the plant shut down unexpectedly and he no longer had the need for the additional engineer. T. 776-777. Quantum's records are consistent with this explanation. CX 32.

    Concerning the second engineer position, CP&L advised six job shops, including Quantum, that the resumes it had received were "not adequate" and that the position required a degree. RX 48. Wertz verified that the position in his group required a degree, T. 782, 807, that the individual he hired had a four-year mechanical engineering degree, and that he did not recall seeing Webb's application. T. 784.

See also CX 72 at 18.

    We begin with the undisputed evidence that Harrell hired five individuals for these positions, all of whom had at least a four-year engineering degree. T. 618-619. Webb contends that the September remark ruling out only himself is direct evidence

of discrimination, since two of the other submitted candidates also lacked degrees. Webb Brief at 20.

    CP&L emphasizes the August remark in Quantum's computer record, which states that a degree was required for these positions. Michelle Cooke explained that after a brief hiatus she had just returned to work at Quantum when Webb telephoned, complained that he was being blackballed, and threatened to sue both CP&L and Quantum. CX 72 at 111-112. Cooke telephoned co-worker Sharon George, who informed her that a degree was required for these positions and, since Webb did not have a degree, he was not being considered. CX 72 at 112; CX 73 at 52-53, T. 620. Cooke explained that she made the notation that only Webb was eliminated because she talked to George only about Webb and did not inquire about the fate of any of the other candidates who had been submitted. CX 72 at 112-114.

    Although the remark that only Webb was excluded, taken alone, would seem to be direct evidence of discrimination, we believe Cooke's explanation that it reflected only Webb's elimination from consideration because she asked George only about Webb's candidacy. Notwithstanding a seeming "smoking gun" in the record, other evidence may show that there was no discriminatory intent. Acord v. Alyeska Pipeline Service Co., ARB Case No. 97-011, Final Dec. and Ord., June 30, 1997, slip op. at 5, 9. That is the case here.

    According to Cooke, it was an error to list the jobs as not requiring a degree since actually a degree was required all along. CX 72 at 18-19. Webb argues that Cooke's explanation cannot be correct and there must also have been non-degreed positions that remained available. First, he contends that according to Sharon George, CP&L "never changed the non-degree requirement and . . . the non-degreed engineering position remained open until the job order was canceled on October 20, 1992." Webb Brief at 16 n. 19, citing CX 73 at 32-41. We do not agree with this contention. George, who did not make the computer entry, was unsure if the notation of the need for two degreed engineers "was a true need for two additional people" or a correction of the earlier notation that no degree was required for the positions under Harrell. CX 73 at 36-37.

    Webb cites a second indication that there must have been a non-degreed field engineering position available: Heatherington, whose job was to screen resumes to make sure that the candidates had the appropriate education, nevertheless forwarded Webb's resume to Harrell for his consideration. Webb Brief at 16 n.18. Heatherington did not recall forwarding Webb's resume, however, T. 696, and he may simply have erred in sending it forward despite the lack of an engineering degree.

    Finally, Webb argues that there also must have been a position that did not require a degree since Cooke contacted a non-degreed candidate concerning these positions even after she learned that a degree was required. Webb Brief at 17 n. 19. See CX 25 (showing that Cooke contacted Edward J. Babcock on October 19, 1992 about this position) and CX 37 (showing that Babcock lacked an engineering degree). Webb did not question Cooke about her contact with Babcock, however.

    Other evidence leads us to believe that there never was a non-degreed field engineering position under Harrell on the job listing in question. First, about nine days after his resume was submitted, Webb alerted Quantum that a rival job shop told him that a degree was required for this position. T. 252; RX 9 at 4; CX 26; CX 72 at 49. Also, Cooke testified knowledgeably that Quantum canceled the entire job requirement when it learned that a rival job shop, Enercon, had a sole source contract that covered these openings because they required a degree. CX 72 at 15, 121. If there were any remaining openings that did not require a degree, they would not have been canceled by the Enercon sole source contract. In addition, after making the "degree required" notation, Quantum submitted only candidates who had engineering degrees. CX 23. Finally, Harrell stated that he never listed a need for non-degreed field engineers with anyone. T. 639, 645.

    Webb alleges that Harrell acted inconsistently, first stating there was no reason he could not be rehired at CP&L, T. 162, 617, then eliminating Webb because he lacked an engineering degree. Harrell testified credibly that at the time of the first statement he assumed Webb had a degree, T. 617, and only later eliminated him from consideration because he learned from the resume that Webb lacked the requisite education. T. 619-620.

    Webb counters that Harrell's eliminating him for lacking a degree is not credible because Harrell hired other non-degreed candidates for engineer positions. The positions for which non-degreed candidates were hired were distinguishable because they did not require design calculations. T. 267-269; see CX 8 at 1. The record shows that only degreed candidates were hired for the positions for which Webb's resume was submitted.

    Webb also is troubled by an inconsistency in Harrell's assessment of the quality of his work. In his statement to the Department of Labor investigator, Harrell stated that Webb's "work was below average to average on production and quality." CX 7 at 4; CX 8 at 7. Harrell maintained this opinion at the hearing as well. T. 657. But in deposition testimony given between the time of the statement to the investigator and the hearing, Harrell agreed with the 1990 Marlar performance evaluation that Webb was above average in quality and quantity of work. T. 662-663. We are left with no clear indication of Harrell's opinion of the quality of Webb's work. The lack of clarity is not dispositive here, however, because Harrell consistently stated that he eliminated Webb from consideration for the engineer openings in June 1992 solely because he lacked a degree. T.

619-620; CX 7 at 4; CX 8 at 6. On the issue of not rehiring Webb in response to the June 15 resume submittal, we again find that Webb did not establish that his protected activities were a contributing factor.

    An additional matter requires clarification. Although Webb may have believed that Quantum submitted him to CP&L for non-degreed field engineer positions, the record demonstrates otherwise. There is no evidence suggesting that Quantum's computer records were incomplete with respect to the number of times it submitted Webb's resume to CP&L. Although Sharon George told the Department of Labor investigator that she had submitted Webb for field engineering positions, it is likely that George referred to the June 1992 submittal for openings that in reality required a degree. CX 73 at 103. At her later deposition, George indicated that Quantum did not submit Webb at any time other than the three occasions listed in its computer records. CX 73 at 101-102. In addition, Michelle Cooke explained that she did not submit Webb for a field engineering position that arose at about the same time as the engineer positions that reported to Harrell because Webb's pay "rate exceeds the rate for a CP&L Brunswick structural field engineer." CX 72 at 115. George concurred with that view. CX 73 at 102- 103. Neither Cooke nor George recalled Webb stating that the pay rate did not matter and he wished to be submitted for lower paying field engineering positions. CX 72 at 116; CX 73 at 103.

    Finally, Webb claims that the reason he had not been hired by any employer in the nuclear industry, despite making numerous applications, must be CP&L blacklisting. Webb presented no evidence that any other employer contacted CP&L for a reference or otherwise received negative information about Webb from the company. Moreover, Webb sent out 1,400 resumes in January 1992 and had no job offers in the four months prior to the NRC writing to CP&L about the safety issues Webb raised. CP&L could not possibly be responsible for any negative result in Webb's job search prior to the NRC's notices. Webb simply has not presented sufficient evidence establishing that CP&L blacklisted him in the nuclear industry.

    In summary, we find no evidence that Tripp's impermissible, discriminatory animus against Webb had any influence on the actions taken by the other CP&L personnel involved in evaluating Webb's qualifications for the positions for which his resume was submitted. Webb has not established that his protected activities were a contributing factor in any of the actions that CP&L took with regard to his submitted resume.

    Webb has not proved that Carolina Power violated the employee protection provision of the ERA. The complaint is DISMISSED.

    SO ORDERED.

      DAVID A. O'BRIEN
      Chair

      KARL J. SANDSTROM
      Member

      JOYCE D. MILLER
      Alternate Member