Date: April 6, 1995
Case Nos.: 93-ERA-7
93-ERA-8
In the Matter of
JAMES J. DEAN,
DAVID R. LAMB,
Complainants,
v.
HOUSTON LIGHTING AND POWER COMPANY,
Respondent
S. Tanner Garth, Esquire
For the Complainants
Roy O. Minton, Esquire
Ross E. Cockburn, Esquire
For the Respondent
BEFORE: EDWARD TERHUNE MILLER
Administrative Law Judge
RECOMMENDED DECISION AND ORDER
Statement of the Case
This case involves two claims under 210 of the Energy
Reorganization Act of 1974, as amended, 42 U.S.C. 5851 (ERA), and
the implementing regulations at 29 CFR Part 24.[1] The
Complainants, James J. Dean (Dean) and David R. Lamb (Lamb), each
filed timely complaints with the Department of Labor (DOL) on May
26, 1992, alleging that they were terminated from employment by
Houston Lighting and Power Company (HL&P) because of certain acts
by them which constituted protected activities under the ERA.
The Department of Labor Investigator concluded that Dean and
Lamb were terminated because they had engaged in protected
activities and recommended remedial action.[2] Following the
[PAGE 2]
investigation, the District Director, Employment Standards
Administration of DOL, found violations as alleged by the
Complainants and concluded that the Complainants had been
discriminated against as defined and prohibited by the ERA and 29
CFR 24.4. HL&P appealed the District Director's decision on
November 24, 1992, and demanded a hearing. The complaints were
consolidated, and all parties were represented by counsel at the de
novo hearing, which was conducted in Houston, Texas, on August 25-
September 3, 1993, and resumed and completed on November 1-11,
1993.[3]
It is undisputed that HL&P is an employer subject to the ERA,
and, specifically, the employee protection provisions in §210
of the ERA. Likewise, it is undisputed that Dean and Lamb were at
all relevant times employees entitled to invoke the employee
protections provided by the ERA upon a proper showing. It is
undisputed that Dean and Lamb were terminated from their employment
by HL&P on May 4, 1992.
The findings and conclusions which follow are based upon the
observations by this tribunal of the appearance and demeanor of the
witnesses who testified at the hearing as it affects their
credibility, and upon an analysis of the entire record, including
the testimony and documentary evidence, in light of the arguments
presented, the statutory law and applicable regulations, and the
applicable case law. The evidence in this sizeable record which
has not been discussed specifically has been determined to be
immaterial, or insufficiently probative to affect the outcome
directly.
Introduction
The Complainants Dean and Lamb contend that they were
unlawfully fired by HL&P because of security concerns that they
expressed within STP and to the NRC. They contend that their
expressions of concern qualified as protected activities; that the
decision makers at HL&P had knowledge of their protected
activities; that the reorganization of NSD which resulted in their
terminations was a pretext; that if the reorganization was not a
total pretext, its predominant purpose was to retaliate against
them and to terminate their employment at STP; that the rating
process which was used to justify Complainants' terminations was
fatally flawed by lack of objectivity and other substantial
deficiencies; that the process was merely a pretext for the
dismissals in retaliation for their protected activities which had
proved burdensome to HL&P; and that, as a consequence, their
[PAGE 3]
terminations constituted unlawful adverse action against them under
the ERA.
HL&P contends that Dean and Lamb were terminated, not because
of any protected activity, but because of a bonafide, business motivated reorganization which justifiably
resulted in a reduction in force. HL&P concedes that Dean and Lamb
engaged in protected activity when they went to the NRC, but denies
awareness of it, and denies that any protected activity by Dean or
Lamb was a factor in their terminations. (Tr. 124-25) Termination
for cause at the time of their actual dismissals is not in issue.
HL&P contends that the terminations occurred after an
appropriate and fair competitive evaluation of the relevant work
force was conducted for the legitimate business purpose of reducing
the work force, and that Dean and Lamb had the least favorable
competitive evaluations. HL&P denies that Balcom, or any of the
persons making the decisions which led to Lamb's and Dean's
terminations, had knowledge of Dean's or Lamb's protected
activities. HL&P contends that, even if HL&P or its management had
had such knowledge, HL&P would not have been motivated by that
knowledge to retaliate against Lamb and Dean. HL&P also contends
that in the Fifth Circuit the only activity for which Dean and Lamb
can be afforded protection is their contacts and meetings with NRC
agents in the spring and summer of 1991, prior to the time Balcom
became manager of the NSD.
HL&P contends that Complainants have not proved the requisite
knowledge of the Complainants' protected activities. Thus, HL&P
contends that Complainants have failed to prove an essential
element of their primafacie case. Such knowledge
was categorically denied by all HL&P personnel who would have had
any role in the decision to terminate Dean and Lamb. HL&P
contends that, in any event, the retaliation alleged would have
been improbable and out of character for those HL&P managers who
were involved.
HL&P contends, in addition, that there is an independent basis
for terminating Dean. In May, 1993, a document containing
"Safeguards Information" was found abandoned in his recently
vacated apartment. HL&P contends that this evidence supports a
finding of deliberate violation of the ERA which would bar Dean
from any remedy under the ERA pursuant to §210(g), even if his
claim of discrimination were vindicated. HL&P contends, in
addition and in the alternative, that Dean's possession of that
Safeguards Information under such circumstances, under the so-
called after-acquired evidence doctrine, would have constituted
[PAGE 4]
sufficient grounds for Dean's termination in any event, had HL&P
known of these circumstances, and had HL&P had such evidence, at
the time of Dean's termination. Dean contends that he never had
the document, and that, in any event, the document in question
contains no Safeguards Information that would be the basis for a
violation of procedure or regulation under the ERA.
The resolution of these issues in this decision is organized
as follows. The findings of fact set out a chronology of events
from 1988 until May 1992. An integral part of that chronology
traces responses to certain concerns raised by Complainants within
that time period. Those concerns are shown to be so well defined,
and so visible, and so identified with the Complainants, that the
decision makers who were involved must have suspected the
Complainants of the protected activities in question, and to have
acted on the basis of those solidly grounded suspicions in their
dealings with Dean and Lamb. The evidence establishes
circumstantial proof of knowledge by the HL&P managers who
functioned as decision makers in effecting the Complainants
terminations. Because HL&P's decision makers categorically deny
having the requisite knowledge which is essential to proof of a
causal nexus between the protected activities of the Complainants
and their terminations, the proof of knowledge is wholly
circumstantial.
Although these suspicions of HL&P management did not
necessarily rise to certainty, they engendered assumptions and
actions which prove circumstantially that the managers of HL&P who
participated in the process leading to the Complainants'
terminations did have such knowledge as would establish that
element of both the primafacie case and the merits
of Complainants' claims. The findings of fact establish other
circumstances that, when considered on the record as a whole, prove
by a preponderance of the evidence that there was a causal nexus
between the Complainants' protected activities and their
terminations.
The second portion of the opinion discusses the law applicable
to these detailed and complex facts. Some of the applicable law is
peculiar to the Fifth Circuit. This discussion sets out the
rationale upon which I find that the Complainants are entitled to
relief because their discharges were effected in violation of the
ERA.
The final section of the opinion deals separately with both
the facts and the law applicable to HL&P's motion to dismiss Dean's
claim because of the discovery, approximately a year after his
termination, of the document allegedly containing Safeguards
[PAGE 5]
Information among the effects abandoned in his apartment. I find
that, although there is insufficient proof of a deliberate
violation of the ERA to bar relief to Dean under §210(g),
there is a technical violation of Safeguards Information
requirements that requires a conclusion, under the circumstances,
that HL&P would have fired Dean on that ground alone had it known
of the violation on or before May 4, 1992. As a consequence,
Dean's entitlement to relief is restricted by a recent Supreme
Court decision.
Issues
(1) Which, if any, of Complainants' whistleblowing activities
were entitled to protection under the ERA;
(2) Whether Complainants have proved that HL&P had legally
sufficient knowledge that Dean and Lamb had engaged in protected
activities to establish a primafacie case;
(3) Whether Complainants have proved that there is a
sufficient nexus between their terminations by HL&P and protected
activities of which HL&P was aware to support an inference that the
terminations were motivated by those protected activities, and so
to establish the requisite primafacie case of
wrongful termination;
(4) Whether the reorganization of STP's Nuclear Security
Department (NSD) was a pretext for terminating Lamb and Dean;
(5) Whether, if HL&P had a legitimate motive for the
reorganization of the NSD, Complainants have proved by a
preponderance of the evidence that HL&P's predominant motive for
reorganizing NSD as it did was to effect termination of the
Complainants because of their protected activities;
(a) Whether, if the evidence establishes a dual motive
for its adverse actions, HL&P has proved by a preponderance of
the evidence that it would have terminated Dean and Lamb
regardless of their protected activities;
(b) Whether, under the rule adopted by the Fifth Circuit,
Complainants would not have been terminated by HL&P but for
their protected activities;
(6) Whether Dean's alleged possession of a particular document
allegedly containing Safeguards Information, if known by HL&P,
would, under the circumstances, have caused HL&P to terminate him
without regard to any protected activities;
(7) Whether Dean's possession of such a document under the
circumstances bars Dean from all relief pursuant to §210(g) of
the ERA.
Partial List and Description of Involved Personnel[PAGE 6]
Certain individuals in addition to Complainants who will be
frequently referred to hereinafter by their last names had
significant roles in the events affecting Claimants' termination.
For convenient reference their names and identities are noted as
follows:
Richard L. Balcom, Director, Nuclear Security Department (NSD),
beginning in January 1992; successor to Randlett; previously
manager, Quality Assurance (QA) under Jordan, at South Texas
Nuclear Project (STP)
A. Bill Beach, Director, Division of Reactor Projects, Nuclear
Regulatory Commission (NRC)
Ricky Wayne Cink, Senior Investigator for Speakout (formerly
Safeteam) Programs at STP
Don Driskill, Regional Inspector, Region IV, NRC
James Drymiller, Security Coordinator, NSD; certified
classification officer
A. Bruce Earnest, Security Inspection, Region IV, NRC
Al Gutterman, Washington D.C. Counsel to STP for nuclear
licensing matters
Don P. Hall, Group Vice President, Nuclear, at South Texas Nuclear
Project (STP); the senior person in charge of the nuclear
program at Houston Lighting and Power Company (HL&P)
J. Watt Hinson, Administrator of Compliance, Investigations and
Fire Watch at STP, divisions associated with NSD. Hinson was
transferred to Licensing Department as Manager of Access
Authorization in 1992.
Thomas J. Jordan, General Manager, Nuclear Assurance, at STP
William J. Jump, Manager, Nuclear Licensing, at STP
Warren H. Kinsey, Jr., Site Vice President, Plant Support, at STP;
reporting to Hall
M. Monteith, Auditor, Nuclear Assurance, at STP
John Rex Moore, supervisor, NSD, under both Randlett and Balcom
[PAGE 7]
James Neal, Supervisor, Compliance Division, NSD; reported to
Hinson; his two subordinates were Bill Worth and Mike Hall.
Eric Gary Pomeroy, Senior Security Coordinator at STP
William Randlett, Manager, NSD, until January 1992, when he
resigned
David Sheesley, Compliance Coordinator, NSD. Sheesley was
promoted to Supervisor in the Access Authorization
Department. He was the supervisor of Safeguards work of Dean.
Joseph Tapia, Senior Resident Inspector for STP, NRC
William Tobin, Office of Inspector General (OIG), NRC
Findings of FactChronology Relating to the Reorganization of NSD
1. Dean and Lamb were employed in the Nuclear Security
Department (NSD) of the South Texas Project Electric Generating
Station (STP) of HL&P. STP was the nuclear power generating plant
owned and operated by HL&P as part of a public utility consortium
providing electric power to the Houston, Texas, area. STP operated
as a relatively autonomous element of HL&P because of the special
operational characteristics of such a nuclear power plant.
2. Dean and Lamb were both hired by HL&P to work at STP in
1986. Lamb was instrumental in getting Dean hired by HL&P, and was
somewhat of a mentor to Dean. Both men held a number of different
positions during their respective tenures at STP. Lamb was a
supervisor and at times was Dean's supervisor. Dean was a
subordinate professional, who had various supervisors. Both men
were at all relevant times in NSD. Both worked together or jointly
in dealing with their security concerns during the relevant period.
3. There does not appear to have been any significant
security issue which is material to this case in which they were
not both involved to some degree, although, because of Lamb's
status as a supervisor, and because of Lamb's greater age and
experience, he tended in some instances to take a larger and more
visible role. Both men were terminated on May 4, 1992, as a
consequence of an internal departmental reorganization of NSD which
resulted in a reduction of force unique to NSD that included them
and one other NSD employee, Worth. Consequently, their activities
[PAGE 8]
are properly considered together, rather than separately, even
though their relative responsibilities for particular concerns may
have varied from time to time. A fourth employee, Neal, who was
Worth's supervisor, had resigned prior to the terminations of Dean
and Lamb, because, he testified, he expected to be terminated as
part of the process because the Compliance Section in which he was
a supervisor was to be abolished, and because of his whistleblowing
activities. (Tr. 2905-09, Neal)
4. Between 1988 and the end of 1991 Dean and Lamb expressed
concerns with what they considered to be several significant
breaches of security requirements at STP. Both men had expertise
and experience in relevant security matters at STP, including the
concerns they raised. Many of their concerns were vindicated wholly
or in part after investigation by higher authority. None of the
concerns were alleged or proved to be frivolous or not raised in
good faith. They also appear to have been motivated exclusively by
professional, rather than self-serving, concerns.
5. Over approximately four years beginning in 1988, Dean and
Lamb communicated their concerns to their peers, to HL&P management
directly, through Speakout, an anonymous employee complaint program
within STP, and to representatives of the Nuclear Regulatory
Commission (NRC). Seven specific concerns were identified by the
parties. Dean and Lamb allege that these concerns involved
significant protected activities with which they were closely
identified. The issues, which are referred to seriatim in greater
detail below, involved,
(1) The visitor access issue;
(2) Compensatory requirements for lighting failures;
(3) Management key access to vital spaces;
(4) The lockdown procedure for Electrical Generating Unit 2
(5) Response to a power outage;
(6) The allegedly inappropriate relationship between the NRC
inspector, Earnest, and Randlett of NSD;
(7) A damaged security door knob.
These issues were well defined and had continuing vitality until
resolved. Most of them were the subject of one or more
investigations and findings by the NRC. HL&P also investigated
most of them itself. HL&P contended that, for the most part,
Complainants' concerns merely involved differing interpretations of
regulatory requirements.
6. Dean and Lamb's concerns for the most part initially
related to decisions by Randlett, who headed the NSD at STP from
[PAGE 9]
the time that Lamb's and Dean's concerns were first raised in late
1988 until he resigned and was replaced by Balcom in early 1992.
Lamb and Dean first raised their concerns with Randlett. Because
they were outspoken and persistent in asserting their particular
concerns, which were clearly defined, Lamb and Dean were
conspicuous in the relatively small NSD, and other reaches of STP
as well. Lamb's and Dean's association with these concerns also
became known in other parts of STP which were affected by or
became involved with them. (Tr.A. 86-88, Worth; 1504-06, Moore)
Identification of Dean and Lamb with Protected Activities
Essential Chronology of Allegedly Protected Activities
(1) Visitor Access Issue
7. In June 1988, a Westinghouse employee named Rust was
authorized access to nuclear power generating Unit 1 by one Bailey,
who was only authorized to permit access to nuclear power
generating Unit 2. When the violation was subsequently discovered,
Randlett simply countersigned next to Bailey's name. Moore thought
the incident might have been reportable to NRC. Lamb, who was
present in the East Gate House at the time, immediately objected to
Randlett's action, both to Moore and to Randlett. He also
criticized Randlett's decision to Pomeroy, Smith, Neal, Worth,
Monteith, and others. (C-16 at 13-14)
8. The incident was a subject of Concern 11881 filed in
January 1989, and was part of the notice of that concern
subsequently given by Lamb to NRC's Driskill, as described below,
in March 1989. The Speakout investigator found the conern "not
substantiated," although he recorded that the incident was not
optimally handled, and that Randlett did not exhibit good judgment,
including with respect to his failure to log the incident. Lamb
also discussed the incident with NRC's Beach at a restaurant
meeting with NRC officials in Wharton, Texas, on April 22, 1991.
The Tobin report, described below, noted the incident, but recorded
that it had been investigated internally by STP's Safe Team, which
found no evidence of willfully misleading the NRC. The Tobin
Report also recorded that NRC reportability criteria were being
revised at the time, and were the subject of various
interpretations, so that it could not be determined whether the
incident should have been reported. The Jordan Report, described
below, identified this issue, but treated it as a straight forward
compliance matter that did not require additional analysis. (C-47
at 11; C-49)
(2) The Compensatory Requirements for Lighting Failures Issue
[PAGE 10]
9. In the Spring, 1988, Randlett changed compensatory
requirements for lighting failures from posting the entire area to
posting only the perimeter with security guards. Dean believed the
change did not conform to the security plan. Dean and Lamb
objected, but the procedure was changed by Randlett,
notwithstanding. Lamb and Dean disapproved strongly, both inside
and outside the NSD. This issue was a subject of Concern 11881,
filed by Dean with Lamb's input, and investigated by Cink for
Speakout, in January and February 1989. It was included in Lamb's
referral of Concern 11881 to Driskill in NRC's office of
enforcement in March 1989, and discussed with NRC's Beach at the
Wharton, Texas, restaurant on April 22, 1991. (Tr. 223-25, Lamb)
10. While Earnest investigated at the site in April 1989,
Lamb overheard Earnest tell Randlett that the change in the
compensatory procedure for lighting failures needed to be
rescinded, but that there were no other significant problems. (Tr.
225-27, Lamb) As a result, although this well identified security
issue involved a significant confrontation between Lamb and Dean
and Randlett, it did not persist into 1991. This was because after
Earnest told Randlett he was wrong, the procedure and related
regulatory language were restored by Dean at Randlett's direction,
and the concern was apparently resolved to Lamb's and Dean's
satisfaction. (C-70 at 0995-97) Because Earnest's inspection was
an unannounced inspection and dealt in part with the lighting
issue, Randlett could have inferred that the inspection had been
provoked by Lamb and/or Dean. This concern was part of the fabric
that identified Lamb with protected activity among management and
other employees at STP. There is evidence discussed below that
Randlett suspected Lamb as the source of Concern 11881, and the
cause of the OIG inspection. (Tr. 2532-35, Cink; 1193-94, Randlett)
(3) The Management Key Issue
11. In August 1988, Randlett was told at a Nuclear Safety
Review Board meeting to provide senior management with a key to the
vital areas of STP so that senior management would not need a
security guard on each occasion of entry into a vital area.
Randlett first attempted to change the procedure by means of a
field change order in October 1988. That failed because the shift
supervisor rejected the change as an "intent" change. Then, a
formal procedural change was undertaken to obtain approval by the
Plant Operations Review Committee (PORC). The Quality Assurance
department (QA), then headed by Balcom, and Licensing had concerns
with that approach. Randlett added a requirement that Security be
called prior to and immediately after using the key. PORC then
[PAGE 11]
approved the change, which was made in December 1988. (HL&P-20;
HL&P-158 at 9-11; C-16 at 9-12; C-46; C-47 at 1-2, 3-5; C-49 at 2-
5)
12. Lamb and Dean adamantly opposed the change because they
believed such a change violated STP's security Plans and Procedures
and NRC regulations, which required that access to such vital areas
be with "utilization of the security force." Lamb refused to sign
the compliance review form. Lamb believed that executing the
review form was criminal because it required the applicant's
assurance that the change did not lessen security. Moore and
Randlett, however, signed the compliance review form. Lamb wrote
a memo to Moore, his management superior, and to the file recording
his opposition. Lamb also communicated his concerns to Randlett.
The issue was included in Concern 11881, and was found by Cink to
be not substantiated. (Tr. 179-207, Lamb; 1185, Randlett; C-1; C-16
at 11, and last page) Although others also were involved in the
discussions regarding the key issue, and were opposed to the
change, Lamb and Dean, were conspicuously opposed to management,
especially Randlett, on the issue. Lamb was particularly concerned
and vocal, because the issue came within his responsibility.
(Tr.A 101-02, Drymiller; 2916, Neal)
(4) The Lockdown Procedure Issue
13. In October 1988 the lockdown was performed on nuclear
power generating Unit 2 of STP. A lockdown is an involved
technical security check of a generating unit prior to start-up of
power generation. Dean and Lamb believed that the lockdown was
done in violation of security requirements because new cores had
not been installed in the locks and necessary posting of
compensating security guards had not been effected to insure that
there were no breaches of security during the process. Lamb
discussed the lockdown with Moore, who told him that the lockdown
had gone as planned, that Unit 2 was secure, and that its status
had been reported to the NRC by Randlett. Lamb believed that
reporting to NRC that the unit was secure under these circumstances
was a Material False Statement under the applicable regulations.
14. This concern was included as a subject of Dean's Concern
11881, which was filed in January 1989, and dealt with in the
February 23, 1989, Speakout report by Cink. Lamb gave Concern
11881 to NRC's Driskill in March 1989, and Lamb and Dean discussed
this concern with NRC's Beach at the Wharton, Texas, Restaurant on
April 22, 1991. Lamb was interviewed regarding the Unit 2 lockdown
procedure during the Tobin inspection in early August 1991. The
Speakout investigator, Cink, could not discover any written
[PAGE 12]
guidelines governing the "lockdown" of a nuclear facility, and so
found the concern not substantial.(C-16 at 15-17; C-47 at 6)
15. In December 1988, Dean discussed the management key issue
with Kinsey. (Tr. 713-14, Dean) 10. Kinsey testified that he first
heard of the key issue in 1989, when the issue came up in a Nuclear
Safety Review Board hearing. Kinsey testified and that he might
have discussed the issue with Dean, but did not recall such a
discussion. Kinsey was then plant manager. Kinsey's testimony in
regard to this issue suggests that he knew Dean and that Dean had
routine access to him as a superior in the management chain of
authority. Dean reported periodically to him regarding security
procedures. Kinsey also testified that, although he was in charge
of a thousand employees, he felt comfortable with communicating
directly with the NSD managers that worked for his NSD supervisors.
Thus, if he needed information, and Randlett was not available, he
had no problem in talking with Moore or Hinson, who were NSD
supervisors. It was Kinsey's responsibility to be generally
informed regarding those departments for which he was responsible,
though he professed that he could not know everything. (Tr. 1082-
86, 1131-34, 1138-40, Kinsey)
16. The management key issue, as previously noted, was a
subject of Speakout Concern 11881 filed by Dean with Speakout in
January 1989. Speakout was the internal agency of STP which
existed to receive complaints from employees in confidence and
conduct confidential remedial investigations resulting in
appropriate recommendations. Dean was identified as the
"concernee." Lamb helped draft the summary of concerns that Dean
filed, but was not specifically identified as a concernee. There
is no evidence that Speakout knew of Lamb's drafting role. (Tr.
218, Lamb; HL&P-9; C-78) Dean's summary identified several
concerns and explained the reasons for those concerns. In addition
to the management key issue, Concern 11881 identified (1)
procedures for compensatory lighting failures, (2) the
falsification of a visitor's access authorization, which involved
an expostfacto authorization of access of an
individual named Bailey by Randlett, (3) the validity of Unit 2's
lockdown, and (4) Dean's and Lamb's other concerns, which focused
also on Randlett's arbitrary style as a manager and his allegedly
improper relationship with Earnest. (C-16)
17. Concern 11881 alleged procedural and regulatory
violations involving the implementation of the Physical Security
Plan at STP, an obligatory licensing document which must be
approved and on file with the NRC. (C-16; Tr. 2357, Cink) Cink's
Speakout investigation of Concern 11881, which was transmitted to
[PAGE 13]
Dean as concernee 11881 on February 23, 1989, found some of the
concerns "not substantiated" and, some, "partially substantiated."
(C-16) However, even though he had found the concern not to be
substantiated, Cink testified that the management key issue was
probably the most volatile issue to come out of the NSD during his
years at STP. (C-16 at 11; Tr. 2546-47, Cink) William Smith, for
example, also testified that he heard about the key issue, and
other conspicuous issues identified with Lamb, Dean, Worth, and
Neal, although he was in a different department at STP. (Tr.A 183-
84, Smith) These issues were revisited two years later in 1991,
when Jordan and the NRC conducted their investigations (Tr. 2545-
46, Cink)
18. Within a few days after the investigation of Concern
11881 started, Lamb was transferred from supervisor of Plans and
Procedures to supervisor of Systems and Equipment. Lamb considered
this transfer to be a demotion at the time. Dean stayed in Plans
and Procedures. Lamb believed this was Randlett's retaliation for
Lamb's involvement in Speakout Concern 11881. This complaint
generated Speakout Concern 11873 filed by Dean in February 1989
with respect to Lamb's transfer. Speakout investigated and
reported that the complaint was "not substantiated." (Tr. 219,
222, Lamb; C-15)
19. The management key issue caused Randlett to suspect Lamb
of protected activity. Randlett testified that he suspected Lamb
had been to Speakout and the NRC, "because some of the issues had
been brought up by him [Lamb] previously. And he [Lamb] was still
boisterous about some of the issues." (Tr. 1197, Randlett) It may
be inferred that in the course of an unannounced inspection on
April 10-14, 1989, Randlett told the NRC investigator, who it may
be inferred was Earnest, with respect to a contested issue of
reportability and a critical assessment by Speakout, then called
Safeteam, "It's Dave Lamb and some of his minions giving me a hard
time on reportability." Although Kinsey testified that his recall
was limited, I find that Randlett told Kinsey that members of his
staff were opposed to the change, and that Lamb was accusing
Randlett of improper activities in relation to NSD that could send
him to jail. (Tr. 1086-90, Kinsey) It also appears that Earnest
learned the identity of the confidential sources of Concern 11881
during another security inspection in September 1991, but he denied
telling Randlett those names. (C-51 at 11)
20. Randlett testified that he suspected Lamb had been to
Speakout and the NRC, "because some of the issues had been brought
up by him [Lamb] previously. And he [Lamb] was still boisterous
about some of the issues." (Tr. 1197, Randlett) It may be inferred
[PAGE 14]
that in the course of an unannounced inspection on April 10-14,
1989, Randlett told the NRC investigator, Earnest, with respect to
a contested issue of reportability to NRC and a critical assessment
by Speakout, then called Safeteam, "It's Dave Lamb and some of his
minions giving me a hard time on reportability." Although Kinsey
testified that his recall was somewhat limited, I find that
Randlett told Kinsey that members of his staff were opposed to the
change, and that Lamb was accusing Randlett of improper activities
in relation to NSD that could send him to jail. (Tr. 1086-90,
Kinsey) It also appears that Earnest learned the identity of the
confidential sources of Concern 11881 during another security
inspection in September 1991, but he denied telling Randlett those
names. (C-51 at 11)
21. In March 1989, Lamb contacted NRC's Driskill at NRC
Region IV and gave him Dean's summary of concerns, which had became
Speakout Concern 11881. As previously noted, the concerns, which
Lamb adopted and treated as his own, identified the management key
issue, the Unit 2 lockdown issue, the changed compensatory lighting
requirements issue, the visitor access issue, and the allegedly
improper relationship between Randlett and Earnest. Lamb
specifically asked Driskill not to refer the matter to Earnest
because of his relationship with Randlett, and Lamb's concern that
his identity might be compromised. Although Driskill promised
action, and made at least two fruitless follow up contacts with
Region IV within the next five months, Lamb, as alleger, never got
a direct response, and was not advised of the resolution of his
concerns. (Tr. 223-28, Lamb)
22. Lamb recontacted NRC's Region IV in March 1991, after the
power outage issue arose. He complained about the handling of his
1989 allegations. He was eventually interviewed by both Region IV
and OIG personnel. (C-51 at 5-6) This failure by the NRC to
respond, including the failure to refer the allegation for
investigation until two years later, was faulted in the OIG report
which was issued December 30, 1991.
23. The allegation that the alleger's identity was
inappropriately disclosed was found to be not substantiated by the
OIG's investigation. (C-51) However, when Earnest came to the site
for a security inspection on April 12, 1989, Lamb thought he had
come to investigate his, Lamb's, and Dean's concerns. In fact,
Earnest reviewed the contents of what was then called the Safeteam
Concern Investigation Report 11881 file, which did not identify the
concernee. He also asked to review the Interviewer file to Concern
11881, which would have identified the concernee, and the
Investigation file for Safeteam Concern 11873. Cink avoided the
[PAGE 15]
latter request because of its doubtful propriety as to Concern
11881. It appears that Lamb learned of Earnest's interest in the
Safeteam reports contemporaneously and was concerned that his
confidentiality might be compromised. Later on December 5, 1989,
Earnest reviewed all concerns related to issues about the NSD which
had been registered after January 1, 1989. (Tr. 227-28, Lamb Tr.
2393-2400, Cink; HL&P 26, 27; C-51 at 8-10)
24. None of Lamb's complaints other than the lighting issue
were dealt with by Earnest during his April 1989 inspection at the
STP site. (Tr. 227-28, Lamb) This NRC contact by Lamb with
Driskill was apparently not disclosed to management at HL&P, nor
was HL&P formally notified of NRC's investigation of these
concerns. Randlett, however, was aware of at least certain aspects
of Earnest's investigation. The OIG found that, despite Lamb's
misapprehension, Earnest was not assigned to investigate Lamb's
concerns given to Driskill. Those were sent to NRC headquarters in
Washington and ultimately determined to allege no violations
requiring NRC action. (C-51 at 9-10).
25. Having raised the management key and other issues with
management, Speakout, and the NRC, without satisfaction, Lamb and
Dean tried not to draw attention to themselves from the middle of
1989, until March 9, 1991, when there was an electrical power
failure affecting security equipment. Lamb believed that the
power failure was improperly not recognized as such; that it was
not reported as required; that failed security equipment was not
properly compensated for by posting armed security officers as
required; and that required equipment testing after the outage was
not performed. Randlett was responsible for those decisions and
thus generated the basis for Lamb's conspicuous concern. (Tr. 236-
44, 253, Lamb)
(5) The Power Outage Response Issue
26. On March 9, 1991, electrical power failed on STP's
security equipment. The power was restored after a short lapse of
time, possibly in less than a minute. No functional tests were
performed on the intrusion and detection systems after the outage
as required by the regulations, because Randlett determined that
the loss of power was so brief that it should be considered an
"interruption" not a failure or "outage." Relying on this
interpretation he did not post the system with security personnel,
retest the devices, or report the incident to the NRC. (Tr. 237-43,
Lamb)
27. Lamb learned of the power failure the day after it
[PAGE 16]
occurred. He asked Moore to investigate why Randlett had failed to
post compensation security guards as required when no functional
testing had been performed. Lamb believed that the power outage
was an event reportable to the NRC, and one that required remedial
testing. (Tr. 1187, Randlett) Randlett refused to take the
remedial action Lamb thought was required. (Tr. 243-49, Lamb)
28. Lamb, as well as other NSD staff, objected to Randlett's
interpretation of the event as an "interruption" rather than an
"outage." Lamb with a number of NSD's staff complained to Randlett
in his office, but Randlett refused to change his interpretation.
Moore testified that most of NSD staff felt that systems should be
functionally and operationally tested after each power interruption
before unposting the guards. (Tr. 1609-11, Moore)
29. Reacting to that power outage in March 1991, and
Randlett's, response to it, Lamb, Dean, and others in NSD discussed
going to NRC. In March 1991 Lamb and Dean, Neal, Drymiller, and
Worth, with input from others, drafted an anonymous letter to
Tapia, the NRC's on site Senior Resident Inspector for STP. The
letter alleged wrongdoing at STP by Randlett, particularly with
respect to certain power failures and related failures to do
compensatory equipment testing and reporting to the NRC. It also
alleged an improper relationship between Earnest and Randlett. (C-2
at 35, C-12B at 18, C-88; HL&P-121; Tr. 253-55, 257-58, Lamb; 755,
Dean) Shortly thereafter, perhaps a day or two later, in April
1991 Tapia approached Lamb in the parking lot and asked if he was
the author of the letter. Lamb said that he was, and Tapia told
Lamb he would be contacted by the NRC shortly. (Tr. 255-56, Lamb)
This incident is additional circumstantial evidence of the extent
to which Lamb could be, and actually was, readily identified by on
site personnel as engaging in protected activities. Tapia had
stated to investigators that he believed it was common knowledge at
STP that Lamb, Dean, and Worth had gone to NRC with safety concerns
in the past. (C-2 at 30)
(6) The Issue of Randlett's and Earnest's Relationship
30. In the March 1991, anonymous letter to Tapia, and the
subsequent meeting with NRC officials at the restaurant in Wharton,
Texas, on April 22, 1991, Lamb had expressed concern at NRC's
inaction with respect to Earnest's preferential treatment to
Randlett. Dean and Neal were also present at that meeting. (C-2 at
35; Tr. 253-61, Lamb)
31. Lamb, Dean, Worth and Neal made essentially the same
allegations to the NRC's OIG that, when Randlett came to the NSD,
[PAGE 17]
Earnest changed his demanding standards and tough style of
conducting inspections as the NRC Inspector from Region IV,
security ratings improved, and Earnest stopped issuing violations
to NSD. The relationship between Randlett and Earnest was suspect
as early as January 1989. Randlett and Earnest were old army
friends, and apparently consulted informally on various official
matters. (Tr. 1192-94, Randlett; C-70; C-16 at 16)
32. When Lamb initially contacted NRC's Driskill in March
1989 about the concerns identified in Concern 11881, he warned
Driskill not to refer them to Earnest because of his relationship
with Randlett. He complained that Randlett was not taking
appropriate action with respect to security violations or properly
reporting them to the NRC, and that Earnest was not addressing
those omissions properly because of the personal relationship
between the two men. Lamb's contact with Driskill was initially
futile. Subsequently, the OIG Report censured NRC personnel for
the two year delay in taking action on the complaint, and the
failure to advise Lamb of the disposition of his complaint. (C-51)
33. Earnest was removed from his inspection duties in late
spring 1991, after Lamb, Dean, and Neal made their allegations to
the NRC. Hall was alerted to the event by the NRC Regional
Administrator. The first inspection conducted by the NRC after
Earnest's removal was by the OIG. (C-46, 47; Tr. 2917, Neal; 989,
Hall) Contemporaneously, Randlett went to Kinsey and accused Lamb
of trying to undermine the NSD. Randlett also suspected Lamb of
being the source of the complaint regarding his relationship with
Earnest. (Tr. 1192-94, 1196-97, Randlett) Randlett later testified
that he was not surprised by the terminations of Lamb and Dean
because they caused headaches for management at STP. (Tr. 1198,
Randlett) Moore also testified that the concerns that Lamb and
Dean had been raising had been causing management problems for
years. (Tr. 1559, Moore) This testimony is evidence of Lamb's and
Dean's wide visibility and association with ongoing issues.
(7) The Damaged Security Door Knob Issue
34. In March 1991, the Security Computer Room door knob was
discovered in severely damaged condition. Hinson ordered that the
matter not be logged or reported. Lamb believed it was a
reportable event. Lamb was involved because the door was part of
the security system for which he was responsible. (HL&P-13 at 56;
Tr. 249, Lamb) It is not clear whether Lamb took the issue to
Speakout in March or April, 1991, or whether Worth took the matter
to Jordan and Speakout's Cink in June 1991 as part of Jordan's
investigation into NSC's problems. (Tr. 2180-81, Jordan; HL&P-13)
[PAGE 18]
This event was noted in the Tobin report, but the concern was
determined to warrant no further effort because the perpetrator
could not be identified and no actual or attempted breach of
security was established. (C-47 at 21, 51) Nevertheless, the issue
was a cause for Lamb's conspicuous concern, and the fact that it
was directed not to be reported made it a conspicuous issue in
contention between Lamb and management.
The Subsequent Investigations and NRC Contacts
35. After Lamb's contact with Tapia, Beach of NRC's Region IV
contacted Lamb and invited him to meet on April 22, 1991, with NRC
Region IV investigators Beach and McLean at a restaurant in
Wharton, Texas, to discuss problems in the NSD and the allegedly
improper relationship between Randlett and Earnest. (Tr. 258-260,
Lamb; HL&P-121) Lamb was joined by Dean, Neal, and Gregg.
Drymiller had met with these NRC personnel earlier in the day. (Tr.
104, Drymiller) At the meeting Lamb discussed the power outage and
concerns incorporated in Speakout Concern 11881 given to Driskill
in March 1989, as well as other recent power failures, the doorknob
incident, and relations, between Earnest and Randlett. He
expressed concern that NRC had not acted regarding Earnest giving
preferential treatment to Randlett. (Tr. 258-60, Lamb; C-12B at 18;
HL&P-121)
The OIG Investigation
36. In May 1991, Jump, manager of STP's Licensing warned
Jordan, General Manager of Nuclear Assurance, of an imminent
inspection of the NSD by the OIG of the NRC in June. The Quality
Assurance department (QA), then managed by Balcom, was under
Jordan's jurisdiction and included consolidation of audit and
assessment functions with quality engineering. Jordan's
jurisdiction also included Speakout. Jump advised Jordan that the
OIG would investigate NSD in June, and that Jump was coordinating
for the OIG. The OIG investigates allegations of misconduct by NRC
employees, but the scope of the investigation could extend to
relevant conduct of a licensee. (Tr. 2154, Jordan) In June 1991,
Hall was notified by Martin of NRC that Earnest was being removed
as inspector at STP pending an investigation.
HL&P/Jordan Investigation
37. Hall anticipated a related investigation of STP as well.
(Tr. 989, Hall) Jordan, with the assistance of HL&P's regulatory
counsel was assigned by Hall to conduct HL&P's investigation into
the concerns of the OIG. This was the first step leading to what is
[PAGE 19]
referred to as the Jordan Report. (Tr. 1019-20, Hall; 2141-42,
2155-56, Jordan) Jump and Jordan assumed that the OIG would
investigate allegations that Earnest gave preferential treatment to
Randlett. Jump wanted Jordan to identify security problems under
Randlett, and to ascertain what significant issues were unresolved.
(Tr. 2141-42, Jordan) Hall asked Jordan to ask Speakout whether
there were any issues which would concern the NRC. (Tr. 2141-42,
Jordan) Jordan contacted Cink, his senior Speakout investigator,
to ask if there were any outstanding issues in the NSD that might
be controversial enough to lead to an NRC investigation.
38. Cink advised Jordan of several issues, including those
raised by Speakout Concern 11881. (Tr. 2141-43, Jordan) Cink knew
that the management key issue was still volatile more than two
years after the original Speakout investigation. (Tr. 2253, Jordan)
Cink also identified Randlett's action regarding visitor access.
Cink retrieved copy of 11881 from archives, which Jordan studied.
Jordan reviewed Security issues that QA had audited, including the
management key issue, with Monteith of QA and Cink, and then
reported to Jump. Jump had list of people from the licensing
lawyers that the OIG wanted to interview at STP. Jump was to
coordinate interviews. Planning was undertaken to deal with the
OIG inspection and for debriefing of consenting STP personnel who
were to be interviewed on June 20, 1991. Lawyers arranged with
Jump, with approval of the OIG, to debrief each consenting
interviewee. Jordan had identified most significant issues in
dispute in Security during Randlett tenure during the summer of
1991. (Tr. 2142, 2190-94, Jordan; HL&P-112; HL&P 130)
39. The OIG investigated allegations regarding the allegedly
improper relationship between Earnest and Randlett and related
issues at the STP site beginning on June l7, 1991. The
investigation was precipitated by the concerns expressed to Tapia
in Lamb's and Dean's anonymous letter. (Tr. 260, 989, Lamb; C-2)
The OIG interviews included Randlett, Lamb, Dean, Cink, Drymiller,
Sheesley, Neal, Moore, and others. The OIG interviews ended June
20, 1991. The investigation, however, apparently continued, at
least formally, until December 1991. (C-2 at 35) The formal
report, which was directed to internal addresses and does not
reflect distribution to HL&P or others outside the NRC, was dated
December 30, 1992. (C-51)
The Debriefings
40. At the debriefings Lamb and Dean disclosed to Jordan and
Gutterman some, but not all, of the information they had given to
[PAGE 20]
the OIG investigators. All but one of these persons interviewed by
OIG agreed to be and were debriefed by Jordan and Gutterman. (Tr.
2156-57, Jordan; C-70) These debriefings were essentially
mandatory. (Tr. 266, Lamb; 990, Hall; 2156, Jordan) HL&P contends
that the purpose of the debriefings was to identify the issues
being investigated so that HL&P could make sure that the OIG
received complete information, and that any continuing deficiencies
were corrected. (Tr. 2155-56, Jordan; Respondent's brief at 50) In
the course of the debriefings, as well as from other sources,
Jordan learned that Randlett was distrusted by many. (Tr. 2162-64,
2199-2202, Jordan)
41. Lamb's debriefing by Jordan, Gutterman, and Nancy Ranek
on June 17, 1991, followed his interview with the OIG. That
debriefing makes clear that Lamb voiced a variety of concerns to
NRC investigators that he was not prepared to disclose to the
debriefers because of concerns as to how HL&P would react. He did
elaborate on the Earnest-Randlett relationship. He also identified
a number of what he considered security violations that he had
discussed with NRC, including the management key issue which he
believed involved a violation of NRC regulations. Lamb indicated
to the debriefers that the failure to report the security incidents
cited in the Speakout report to NRC concerned the investigators
greatly, but declined to elaborate because of concern as to how
HL&P would respond. Lamb opined that the OIG would probably refer
some issues related to Randlett's behavior to NRC's Office of
Investigations for follow-up. (C-70)
42. At his debriefing Dean expressed opinions consistent with
his expressed concerns elsewhere. Apparently, he did not reveal
any prior communications with NRC. Like others debriefed, Dean
apparently discussed a number of particular and contentious, but
selected, security issues with NRC during the investigation, and
disclosed this to the debriefers. (C-70 at 0995-99)
43. In the debriefings following the OIG inspection, Jordan
and Gutterman learned from Cink that Randlett thought Lamb was the
concernee behind Speakout Concern 11881 which had caused the
investigation. (Tr. 2532-35, Cink) Cink's testimony in this regard
is another example of the inductive reasoning process by which an
inside observer would have come to an awareness of Lamb's identity
as a whistleblower without having been directly informed by
someone.
44. Jordan and Gutterman also learned from the briefings that
Lamb, Dean, Neal, and Worth all alleged an improper relationship
between Randlett and Earnest to the NRC. Drymiller indicated that
[PAGE 21]
a close personal relationship, including consultations on technical
decisions, existed between Randlett and Earnest. Dean described
the relationship as extraordinarily "chummy," though he did not
cite specific improprieties. On the other hand, Sheesley indicated
in detail that the proprieties had been maintained punctiliously.
Jordan and Gutterman also learned from the debriefings that Lamb
and Dean discussed the management key issue with the NRC. (C-70)
Jordan discussed the debriefings with both Hall and Kinsey. (Tr.
2275, Jordan)
45. The OIG left the STP site on June 20, 1991, informing the
licensing lawyers, of which Gutterman was one, that several
technical issues would be investigated by a technical arm of NRC.
Jordan, Randlett, and others were so advised by management. HL&P,
however, contends that it did not know the results of the OIG
investigation when it terminated Lamb and Dean. (Tr. 1042, 1066-67,
Hall; 1454, 1487-88, Balcom; 2281, Jordan; Respondents brief at 49)
Randlett testified that he did not know the results of the OIG
investigation when he resigned. (HL&P-158 at 43-44, 52) If HL&P
did not know the formal results of the report in detail or in
writing, its managers nevertheless would have had a reliable
general indication of most of the OIG's concerns from Jordan's
investigation, the debriefings, the exit interview, and the general
process of responding to an important investigation. It was not in
OIG's interest to conceal from HL&P and its managers deficiencies
and needs for remedial action identified by such an investigation.
46. The OIG Report dated December 30, 1991, reflects wide
ranging observations by Lamb to NRC personnel, including
observations regarding an allegedly improper relationship between
Randlett and Earnest and related security violations. The issues
discussed were in many cases those same issues that Lamb had been
raising for several years. (C-51) HL&P contends that the OIG
Report did not substantiate the charge that Earnest did any favors
for Randlett or HL&P. HL&P also disclaims management knowledge of
any connection between the grievance which Earnest filed in
November or December 1991, and the OIG investigation. NRC's Region
IV management had contacted Hall regarding the possible grievance
action by an NRC inspector at STP, and an inference could
reasonably be drawn that someone in the NSD had complained to the
NRC regarding the inspector's conduct. (Respondents' reply brief
at 4; Tr. 1072, 1077, Hall; Tr. 1519-22, Moore; C-2 at 36)
Although the written report of December 30, 1991, was apparently
not served on HL&P management, HL&P's disclaimer of knowledge of
the connection between the grievance and the OIG investigation, or
the investigation and an NSD complaint regarding the inspector is
not credible, because of the timing of Earnest's suspension, of
[PAGE 22]
which Hall and others were informed, the known scope of OIG
inspections, and the extensive contemporaneous investigation and
debriefings by HL&P.
47. Randlett testified that he suspected that Lamb was behind
the investigation, and that it was Lamb, "Or someone he put up to"
making the allegations of an inappropriate relationship between
Randlett and Earnest. (Tr. 1192-94, Randlett) Randlett also
admitted going to Kinsey on at least two occasions "[t]o talk about
what [he] perceived as Mr. Lamb's effort to undermine the Security
Department." He admitted naming Lamb, and that he suspected that
he or one of his subordinates had been to Speakout on some of the
issues, because he had previously brought up some of the issues and
"he was still boisterous about some of the issues." (Tr. 1196-97,
Randlett) Kinsey confirmed that these conversations took place
around the summer or fall of 1991, when the investigations were in
progress. He described Randlett as very upset and desirous of
terminating Lamb, because Randlett had heard from industry contacts
that Lamb had said he was going to get Randlett fired, and that
Randlett would go to jail. Kinsey testified that he declined to
take action based on such rumors. He testified that he could not
recall if there was mention that Lamb was behind any of the
investigations, or that Lamb had contacted Speakout or the NRC, but
he testified that it would have made no difference. (Tr. 1141-44,
Kinsey)
The QA Audit
48. In addition, a scheduled QA annual audit of NSD was begun
on July 6, 1991. Balcom, as head of QA, reported to Jordan that
Randlett was intransigent on several issues. Balcom recommended
that issues be identified and reserved for resolution by Licensing
and NRC. Jordan approved. The QA exit meeting on August 6, 1991,
was attended by Jordan, Jump, Balcom, Randlett, Kinsey, Hall,
Tobin, and others. Balcom testified, "The audit [of NSD] covered
everything, so it would have had to have covered everything that
the Tobin report also looked at.: "Some of those areas" were "the
same areas that we've seen that Mr. Lamb and Mr. Dean were raising
their concerns about." The QA audit reviewed the management key
issue, among others with which Dean and Lamb were concerned.
Discussion of the sources and solutions of these issues would by
inference have involved Lamb and Dean, because, among other
reasons, they almost inevitably could be expected to be concerned
with any inappropriate responses to their previously expressed
concerns. Although he professed to have "had no preconceived ideas
of the people who worked in [NSD]" when he came to the department,
Balcom testified that he had formed an idea from QA audits of how
[PAGE 23]
the NSD staff had performed "[a]s a unit." But Balcom denied
seeing Lamb's and Dean's opposition to Randlett on issues within
the scope of the QA audit and Tobin report, "because [t]he audit
didn't focus on particular details like that. What the audit
focused on was issues or problems within the department as a unit."
(Tr. 1210-11, Balcom)
The Tobin Inspection
49. On August 6, 1991, the nine day NRC inspection of NSD
directed by Tobin began. It was conducted by a team of inspectors
from NRC Regions II, III, IV. The Tobin inspection was a special
team inspection which was undertaken because the NRC had developed
some special concerns about security matters at STP. (Tr. 965-66,
Hall) Their purpose was a follow-up inspection to address
interpretive technical issues raised by NSD staff. (Tr. 2159,
Jordan) Some of these issues were developed by the OIG
investigation. The inspectors investigated the management key
issue, the power outage issue, the Unit 2 lockdown issue, and other
issues that Lamb and Dean had been raising since 1988. (Tr. 1509,
Moore) The Tobin Inspection Report notes that STP's Nuclear
Quality Assurance Department and Speakout Team were currently
investigating several physical security issues and that the Tobin
inspection was curtailed so as not to interfere with that ongoing
internal self-assessment process. (C-46)
50. The Tobin inspection continued on site until August 15,
1991. Hall, Jordan, Jump, Kinsey, Monteith, and Randlett were
among those who were interviewed by the inspectors. Inspectors
interviewed Lamb about technical issues he had raised before: the
management key, Unit 2 lockdown, and the power outage. At a
standard exit interview on August 15, 1991, the inspectors
discussed tentative findings, including the identification of three
violations, with senior management, which included Hall, Kinsey,
Randlett, Jordan, Jump, and others. A written report was to
follow. The written notice of violation was dated November 5,
1991. (Tr. 261, Lamb; 2159, Jordan; C-2 at 35; C-46, 47)
51. Lamb was not present at that Tobin inspection exit
interview. He believed he was identified as a cause of all the
problems NSD was having with NRC, and he believed that he was given
the cold shoulder afterwards by HL&P management. After the exit
interview Kinsey would not speak to him as before. Randlett would
have meetings about Lamb's systems and exclude Lamb, but include
Moore and one of Lamb's staff. (Tr. 308, Lamb)
The Jordan Report
[PAGE 24]
52. After additional issues arose in relation to the OIG
investigation in June 1991, the QA audit in July-August, and the
Tobin inspection, Hall instructed Jordan in mid-August to identify
every disputed "interpretive issue" which was dividing NSD from
Speakout, the OIG inspection, the QA audit, and the Tobin
inspection, and to implement a procedure to frame each issue in
terms of regulations and Physical Security Plan. Hall wanted
positions on each issue by QA, Licensing, and NSD to be reviewed by
Hall for approval, together with a proposal to resolve each issue
permanently, including referral to NRC Senior Resident and NRC
Region IV and, if necessary, Washington. Hall specifically wanted
to have the ultimate HL&P responsibility for deciding HL&P's
position, and to have NRC's review and approval of HL&P's planned
resolutions. These instructions established the scope of the
Jordan Report, whose preparation and review involved Hall, Kinsey,
Jordan, Randlett, and other STP managers and supervisors. (Tr. 961-
66, Hall; 2186-92, 2208-11, Jordan; HL&P-158 at 64-67, Randlett;
HL&P-112)
53. Jordan worked with Randlett, Jump, Monteith, who was the
Quality Assurance Auditor, and thus in Balcom's department, and
Cink to identify the issues, alternative positions, and the
applicable NRC requirements. They developed a position paper on
each issue for management review. HL&P contends that they did not
focus on the identities of personnel who disagreed with Randlett.
Jordan testified that it was not part of his process to identify
people who had made reports of safety concerns, but that, in
identifying the issues through the debriefings, through Speakout,
and other sources, "[a]t one time or another, just about every name
of every staff member within the HL&P security organization came to
[his] attention as being involved in one of the issues or another."
Jordan testified that he did not, in reporting his progress to
Kinsey and Hall, report the names of individuals involved. (Tr.
2190-91, 2199, 2247-50, Jordan) Jordan's focus, HL&P contends, was
to ensure that interpretations were thoroughly reviewed and
approved by top Project management and by the NRC, so that they
could be resolved. (Tr. 965-66, 1020-21, Hall)
54. The positions taken in Jordan's report "were fairly well
finalized" by late September, but, because the authors anticipated
that the Tobin report would take at least some contrary positions,
particularly with respect to the management key issue, Jordan held
off finalizing the issue papers until they could see the actual in
print position of the Tobin inspection team. (Tr. 2209, Jordan; C-
49) Jordan shared the issue papers as they developed with Kinsey,
and Randlett expressed his views to Kinsey regarding the correct
responses to the issues, in order to get Kinsey's "agreement or
[PAGE 25]
disagreement on them," although Kinsey was not actually a member of
the task force. (Tr. 1148, Kinsey) Jordan's report was still in
process in early November when Tobin report arrived. I infer that
Lamb and Dean would have been identified in the normal course as
proponents of significant interpretations which were in issue and
contrary to management positions, especially as to those issues
which were in contention within STP vis-a-vis NRC.
The Tobin Report
55. The Tobin Report was issued in early November 1991, and
was sent to management of STP on November 5, 1991. Jordan wanted
to reconcile STP's positions with the NRC's positions taken in the
Tobin report. Jordan, Jump, and Randlett, after initial reluctance
on the part of Randlett, agreed on positions that could be taken to
Hall. (Tr. 2204, Jordan; C-49) Randlett locked up the report, and
denied anyone access to it except Hinson and himself. (Tr. 306,
Lamb). At that point, according to Lamb, Randlett began to display
his hostility towards Lamb openly. (Tr. 308, Lamb) Nevertheless,
it became known that NRC found violations of security with respect
to the management key and power outage, and the failure of backup
diesel generator to start when tested by Tobin during the
inspection. Lamb believed he was responsible for all three
violations and that management believed it and disapproved of his
actions. It is not disputed that he was involved to some extent in
the first two.
56. The Jordan report, whose subject was "Interpretive
Security Issues," stated, "In accordance with your instructions,
Nuclear Generation, Nuclear Licensing and Nuclear Assurance have
compiled issue papers regarding interpretive matters within
Security, Security/QA, and those subject to current
investigations." (C-49) Hall approved Jordan's recommendations
contained in the report. Thereafter, Jordan and Jump discussed
those recommendations with Tapia of the NRC. (Tr. 2205-09, Jordan)
57. The Jordan Report identified a number of security issues
raised in connection with four identified arenas: the NRC OIG
Investigation, the Nuclear Assurance security audit, which was
conducted by QA, the Speakout investigation of security concerns,
and the August 1991 NRC special inspection of security issues,
referred to as the Tobin inspection. (C-49) The Jordan Report
treated a number of issues, of which the management key issue and
the power outage issue are most significant. Hall and Kinsey
testified that the key issue was especially significant because
substantial resources and time had been committed to dealing with
the issue. (Tr. 1139, Kinsey; 986, Hall)
[PAGE 26]
58. Lamb and Neal got copies of the Tobin Report from NRC in
January or February 1992, because they were the allegers. (Tr. 308,
Lamb) Lamb testified that in response to his request, Balcom gave
NSD personnel access to the Tobin report. (Tr. 615, Lamb) Prior to
that time Lamb and Neal advised Balcom of certain inaccuracies in
the Tobin Report after Balcom had taken over NSD. Balcom regarded
two of the inaccuracies as insignificant, but agreed to investigate
the circumstances relating to Dean's mishandling Safeguards
material further. (Tr. 3122-13, 681; C-55; HL&P-48) Lamb believed
that Balcom must have inferred from Lamb's knowledge of the content
of the Tobin report that he was the instigator of the
investigation. (Tr. 615-16, Lamb)
59. The Tobin report identified three Level IV violations,
two of which related to the management key issue, and the power
outage issue. Lamb and Dean had raised the first of these
approximately two and a half years before, and the power outage
issue the previous March. (C-46, 47; Tr. 1509-13, Moore) The third
violation involved the failure of a backup diesel generator, which
did not directly involve Lamb or Dean. The notice of violation was
issued over the signature of Beach, who had interviewed Lamb and
Dean at the Wharton, Texas, restaurant in April. (C-47)
60. HL&P contends that the Tobin report focused on resolving
issues raised by the various NRC and HL&P reviews of STP security,
not individuals, so that HL&P did not attribute the reduced SALP
(Systematic Appraisal of Licensee Performance) score to the Tobin
inspection or to actions by Lamb and Dean. (Respondent's brief at
49; Tr. 954, Hall) However, Hall, as Vice President-Nuclear,
testified that he attributed the decline between 1990 and 1992 in
the SALP ratings to violations imposed on STP by the NRC in the
Tobin report; and that there was no question in his mind that the
key issue and the power outage issue affected HL&P's ratings. (Tr.
956-61, Hall) Moore likewise testified that he believed the
violations issued as a result of the Tobin inspection contributed
to reduced SALP scores and reflected negatively on him as a
manager. (Tr. 1575, Moore) If, as HL&P suggests, HL&P did not
learn of the lowered SALP score until October 1992, well after the
reorganization, the reduction, nevertheless, could have been
anticipated under the circumstances. (HL&P Reply Brief at 5; Tr.
1616-22, Moore; HL&P-110)
61. It was generally known that STP wanted to avoid
reportable events, because reportable events indicate that the
system is not functioning well. That attitude was well known in
the NSD. (Tr. 2057-08, Pomeroy; 2955, Neal) Hall testified that
[PAGE 27]
management at STP tried "within management propriety" to avoid
Tobin-type inspections, which were special team inspections, rather
than normal routine inspections. (Tr. 966, Hall) STP management
strove for the best SALP ratings possible, in order to decrease the
work load and associated costs generated by more frequent NRC
inspections. The violations which the Tobin team issued, and which
included the management key and power outage issues, led directly
to a reduction of the NSD's SALP rating from 1 to 2. (Tr. 960-61,
965-66, Hall; C-46, 47) Although Hall testified that his concern
in response to a Tobin-type inspection was to identify and resolve
issues, not to identify individuals who were generating the
allegations, I find that the identity of responsible personnel
involved with identifying the issues would inevitably be linked
with the proper assessment and solution of those issues, and that
the categorical disclaimers of knowledge in this regard as to who
those persons were not credible.
62. The management key issue was one of those issues
identified by Jordan at Hall's behest for permanent resolution
shortly after the Tobin assessment provided at the exit meeting
August 15, 1991. Jordan reported his findings to Hall at several
meetings in early December 1991. After the Tobin Report had been
received, the issues papers were finally completed, and Jordan gave
the written report to Hall around December 6, 1991, for review and
approval. (HL&P-112; Tr. 2186-92, 2208-11, Jordan; Tr. 962-63,
Hall) HL&P contends, incongruously, that when the Tobin report was
received in November, it did not occasion significant management
attention, even though completion of the Jordan report had been
deferred to allow reconciliation of its recommendations with the
findings of the Tobin Report. (HL&P-158 at 64-67, Randlett; Tr.
2204, 2209, Jordan; C-49)
63. On February 21, 1992, Balcom, Jordan, Jump, and Kinsey
met with NRC personnel from Region IV and Washington, D.C. at
Region IV Headquarters in Arlington, Texas. The agenda was the
Jordan Report, which had been forwarded by Tapia, NRC's Senior
Resident Inspector at STP, to Region IV, and included the
management key issue and its resolution, among other matters, which
had been of concern to Dean and Lamb and HL&P. The pending issues
apparently were resolved between HL&P and Region IV and the
Washington representatives of the NRC. Balcom was thus directly
involved with the final resolution of these contentious issues
while he was planning the reorganization of NSD.
64. Tracing the management key issue demonstrates the clear
definition of the issue, its durability and persistence, the
repeated interaction of STP and NRC personnel that it generated, as
[PAGE 28]
well as the inextricable involvement of Lamb and Dean with the
issue. Their involvement was so substantial and sufficiently
conspicuous as to make management's categorical denials of
knowledge of that involvement incredible.
The Dean-Sheesley Incident
65. In October 1991 a confrontation between Dean and his
supervisor, Sheesley, over work assignments occurred. Sheesley
accused Dean of threatening him. Dean was sent home, and Human
Resources investigated. During the investigation, Moore learned
that Dean had been to Speakout. (Tr. 1630, Moore) Moore recorded
in a note to the file that Dean had stated that in the two and a
half years since he and Lamb had been to Speakout there had been an
effort to chase them both out. He recorded that Dean had expressed
concern as to the eventual response of the regulators regarding
"events that were in violation of federal law," and "that he had
discussed these issues with the then Plant Manager and now Vice
President of Nuclear Generation and Mark Wisenburg." He also
recorded that, "Taylor asked Dean if he was saying that there was
a conspiracy involving Warren Kinsey, Mark Wisenburg, Bill
Randlett, Rex Moore and Dave Sheesley to hide things that were
wrong at STP. Dean replied that he had been harassed for trying to
protect the company. He stated that the harassment went no higher
than Randlett and that Moore had been bypassed. Dean said that
Sheesley had dealt directly with Randlett on a lot of matters.
Dean restated that the purpose of the meeting was to force him to
resign." (C-9 at 132)
66. Human Resources completed its investigation of the
incident in November 1991, concluding that Dean had not threatened
Sheesley. Dean was given a one day "decision making leave" after
approximately one month off work. (C-9) The documentation of the
Dean-Sheesley incident was prepared with due regard for possible
litigation. (Tr. 999, Hall)
67. In mid-November 1991 Kinsey wrote an undated confidential
office memorandum to Hall, which was explicitly approved by Hall,
responding to a recommendation of the "Human Resources Department,
in consultation with our lawyers," regarding the Dean-Sheesley
incident. Kinsey observed that "[t]heir recommendation took into
consideration that Mr. Dean was included in the Inspector General's
investigation and that Mr. Dean indicated, during his interviews
with Human Resource Department personnel, that Security Department
management were retaliating against him. The lawyers are concerned
that Mr. Dean will file a 210 if we take strong action on this
issue." Kinsey went on to note that he had reviewed the facts and
[PAGE 29]
consulted with Jordan in making his recommendation for "Decision
making leave." He closed, stating, "Both Tommy Jordan and I feel
that if Mr. Dean does file a 210 this course of action will be
viewed favorably. Your approval to proceed with this disciplinary
action is requested." (C-9 at 113)
68. At the hearing Kinsey did not recall his use of the word
retaliatory, but he admitted learning that Dean thought he was
being retaliated against, that Dean had been to Speakout some two
and a half years before, and that Dean had talked to the NRC or the
OIG in the summer of 1991. (Tr. 1120-21, Kinsey) Ultimately,
Kinsey, in consultation with Jordan, made the decision to put Dean
on decision making leave, based, he said, on Dean's previous work
history, and the conclusion that he did not mean to threaten
Sheesley, but that he had engaged in nonprofessional conduct. (Tr.
1165-70, Kinsey) The memorandum shows the interaction of STP
management, its exchange of information, and its general awareness
that Dean professed he had engaged in protected activity, and was
concerned about retaliation because of it. The memorandum
manifests an alert and explicitly cautious response, tempered by
legal advice, to Dean's sensitivities and concern with the
possibility that he might file a whistleblower claim.
69. In October and November 1991 Randlett completed the 1992
budget and organizational structure, reflected in an organizational
chart which identified personnel and their positions, based on
operational need and job functions for the NSD, although possibly
slightly in excess of the earlier T. B. Martin Report's
recommendations. (Tr. 1189-90, Randlett) Randlett's proposals were
submitted to Kinsey and Hall and approved by them. Later in
November or December, Randlett announced at an NSD staff meeting
that the 1992 budget had been approved, and that, notwithstanding
a reduction in force which had been implemented at HL&P, there
would be no layoffs within the NSD in 1992. (Tr. 1188-91, Randlett;
1069, Hall; 1222, Balcom) Kinsey, who was Vice President, Nuclear
Generation, advised NSD personnel almost contemporaneously that the
STEP competitive ranking procedure used elsewhere in HL&P for
reductions in force would not be used at STP. (Tr. 1946, Lala;
1080, Kinsey)
70. The Tobin report issued November 5, 1991, after the
August 1991 on site inspection by the NRC observed, "within the
Nuclear Security Department are adequate numbers of supervisors,
managers and coordinators for such tasks as compliance, procedures,
operations and equipment." (C-47 at 12) The Tobin report also
referred to the Nuclear Quality Assurance Audit relating to the
annual audit in August 1990 which had concluded that the Program
[PAGE 30]
was adequately staffed. By implication, NSD was not significantly
overstaffed. It also noted that the current QA audit had
identified issues relating to differences with the Security Manager
on reporting/logging criteria and the adequacies of compensatory
posts. (C-47 at 12-13) I find that budgetary considerations were
not a significant incentive for Balcom's reorganization of STP.
71. Jordan gave a written report (the Jordan Report) to Hall
in early December after several meetings with Hall concerning his
findings on issues involving the NSD. Jordan recommended
replacement of Randlett to Hall and Kinsey because of Randlett's
deficient management style. Randlett resigned and departed from
HL&P in early January 1992. Although not conceded by HL&P, had he
not resigned voluntarily, he would probably have been forced to
resign. Certain of his professional conduct had been characterized
as inappropriate and investigated. He was widely perceived as a
deficient administrator, tending to be arbitrary and a poor
communicator in his dealings with subordinates. Kinsey had tried
unsuccessfully to coach Randlett to improve upon his management
style. Though he had not asked Randlett to leave, Kinsey
apparently had Randlett's confidence, and encouraged him to seek
employment near his family in the East when Randlett disclosed that
he was considering the possibility. (Tr. 2302-08, Jordan; 1144-47,
Kinsey)
Randlett's Departure; Balcom's Appointment to NSD
72. Kinsey advised Jordan that Randlett was leaving in early
January 1992. It was his responsibility to find a replacement for
Randlett. He asked Jordan and Jump for recommendations for a
replacement. They recommended Balcom, a manager in the Quality
Assurance department of STP and former Navy chief petty officer,
who was recognized as a tough, decisive, effective administrator,
experienced and knowledgeable in his field. Balcom had worked in
the nuclear power field for twenty-five years, fourteen in the
nuclear industry. However, he had no background in nuclear
security with which the NSD was concerned. His background was in
operations and, after 1987, nuclear assurance, as director of
quality assurance (QA), which was an oversight function of all the
programs and processes at STP. In that position he became aware of
problems in the NSD. From 1990-91 he also became acting manager of
Speakout, as an auxiliary duty, with Cink working under him as an
investigator. (Tr. 1205-11, Balcom) Thus, Balcom was in a position
over a substantial period of time to be familiar in detail with
problems, issues, and personnel in NSD.
[PAGE 31]
73. In January 1992 Kinsey recommended Balcom to become
Manager of NSD. Though he would have liked to promote from within
NSD, "[i]t was [his] judgment that the top two members of that
department at that time were not capable of managing that
department." Kinsey was looking for an organizer, a management
type person who could communicate well, "and set up a teamwork
environment." He knew Balcom, who had worked for him in the past,
"pretty well," and had a good working relationship with him.
Kinsey was helped in that selection process by Jordan and Jump, who
also favored Balcom. Hall questioned the appointment because
Balcom had no nuclear security background. Kinsey persuaded Hall,
and Balcom was appointed. (Tr. 1010, Hall; 1149-51, Kinsey) HL&P
strenuously denied that Balcom was a "hatchet man," or was
perceived as such, as alleged by Complainants. (Tr. 1070-71, Hall;
1440-45, Balcom; Respondent's brief at 51) It was thus clear that
Kinsey was thoroughly familiar with the personnel and the
department with which he was dealing.
74. Kinsey advised Balcom that Hall had decided to move him
from Director of Quality Assurance to Manager of Nuclear Security.
Balcom came to NSD less than a week later on January 7, 1992, to
observe NSD while still running QA. Randlett lingered for
approximately ten days to help Balcom with the transfer. (Tr. 1211,
Balcom) Balcom attended all staff and other meetings in both
departments during transition. Both NSD and QA were on the same
floor. Balcom observed a lack of supervisors' input at Randlett's
staff meetings, and noted Randlett's deficient managerial style.
He testified that sections operated with jealous independence:
Drymiller, as supervisor of Operations and Training; Sheesley, as
supervisor of Plans Screening and Safeguards Information; Lamb, as
supervisor of Systems and Equipment; Hinson, as Division Manager of
Investigations and Compliance; Rex Moore, as Division Manager of
Security Support. He undertook a comprehensive personal evaluation
of NSD over the next four months. His one acknowledged specific
directive from higher management, which he got from Hall and
Kinsey, was to focus the NSD on the physical security of STP. (Tr.
1221-23, Balcom)
75. HL&P maintains that Balcom was selected to improve
administration of NSD, and that Hall told him to focus it on
maintaining the physical security of STP. Balcom testified that
one of his primary objectives was to bring a disciplined or
structured approach to resolving interpretive issues that involved
employee or staff disagreements with management decisions on
various technical issues within NSD. Balcom was obviously familiar
with these "interpretive" issues. These were issues that involved
Lamb and Dean, who, Balcom could assume and could hardy ignore,
[PAGE 32]
were concerned that management was violating applicable
regulations. (Tr. 1329-34, Balcom)
The Reorganization of NSD
76. Kinsey told Balcom that Hall wanted NSD tightened up and
to concentrate exclusively on physical security of STP. He wanted
to move access authorization out of NSD and into HR or Licensing.
The change was a year overdue under Randlett.(C-75C at 1-4; Tr.
1152-53, Kinsey) Balcom's transfer date was January 22, 1992, but
transition was to start immediately. While Balcom denied that
Kinsey had told him to "reorganize" the NSD, when he testified,
that testimony was contradicted by Kinsey's statement to the NRC,
"I had the present manager, Richard Balcom, further explore the
possibility of a reorganization," and, "I was involved in the
decision making processes with respect to the recent reorganization
of the nuclear security department at STP." (Tr. 1221, Balcom; C-
75b)
77. On January 22, 1992, Balcom was installed as director of
NSD. He disclosed his intent to completely reorganize the NSD in
March. Balcom knew about the OIG investigation and the Tobin
inspection. Balcom and his staff in QA worked on regular basis
with NRC. Balcom testified that during January and February 1992
he interviewed all personnel in the NSD, seeking information about
NSD, its personnel and operations, and their views. He reviewed
their files. He sought to identify "things that impeded
communication, teamwork and the organization functioning as a
whole." He assiduously avoided discussing any of the employees
that were going to work under him with Randlett. (Tr. 1213-16,
1383-84, Balcom) Balcom testified that he kept his own counsel,
and kept all his information in his notebook computer, not on
paper. He testified that in the course of his investigations he
did not divulge his findings or conclusions to anyone. He
explained that this was necessary to avoid rumors and their adverse
consequences. (Tr. 1224-25, Balcom) He observed Lamb and Dean work
during those first few months. As to their work ethics, he
testified, "I wouldn't say that I have no criticisms. I took no
disciplinary action, and I identified no particular, what I would
call performance problems that I felt needed to be directly dealt
with, with relation to either one of those." During this period he
developed no criticism of their work ethics "that [he] documented,
or anything like that."
78. Balcom's personality, competence, experience at STP, and
methodology were such that he could not have avoided becoming
thoroughly familiar with the issues which had affected the NSD's
[PAGE 33]
administrative efficiency and morale. He would have gained
knowledge of the individuals who were concerned and between whom
the problems existed. Given the extended time period, and the
professed care and attention to detail that he employed in
investigating the situation and forming his own opinions about the
seventeen or so employees in NSD, he would have discovered how they
interacted with each other. He would have learned what issues had
continuing vitality, and had involved the NSD in investigations by
the NRC, as well as internal investigations. Such issues would
have had to be dealt with in any reorganization of NSD. At least
some of the issues could be readily traced to Lamb's differences
with Randlett, most of which would have involved Dean. I find that
Balcom, having gone through extensive interviews with the NSD
personnel, including Lamb, Dean, Neal, and Worth, would have
learned that they had opposed management on the particular issues
in question, because of the investigations by NRC, and intra
company interactions between personalities. I also find that he
would have come to suspect, even if he did not know to a certainty,
"in all probability that they had been to both Speakout and the
NRC" as Claimants allege. (Claimants' brief at 12)
79. In February 1992 Balcom decided to reorganize NSD, and
solicited ideas regarding structure from Moore and Hinson, but did
not disclose his plans for NSD. (Tr. 1221-23, 1226-27, Balcom; C-
75c at 4) That month, as his first major act as head of NSD,
Balcom eliminated the NSD Compliance section. (Tr. 1448, Balcom)
He then stopped the standard annual performance appraisals for
those in the NSD. (Tr. 1703, Jones) During this time, it became
apparent that Hinson would take Access Authorization with him to
Licensing or Human Resources.
80. In early March 1992 there were approximately 22 HL&P
employees in NSD. Seven were supervisory. Two were clerks. There
was a two to one supervisory/professional ratio. Balcom decided in
March 1992 that the Wackenhut contract personnel should be
eliminated, causing a reduction of 18 Wackenhut personnel in
Operations. All remaining functions were to be organized in three
sections, plus Wackenhut's Operations Division. Balcom then
selected functions for each section and determined the number of
people to carry out the functions in each section. Total
reductions of 23 Wackenhut, and 7 HL&P employees resulted from this
process. Three HL&P employees would be transferred to Licensing
with Access Authorization. Among the several transfers of
functions to other departments, the Safeguards Information program
was transferred to management records. Balcom testified that he
spoke to the transferee, who allegedly did not need any extra
people. This seems odd, if substantial work was involved. The
consequence was that Dean did not follow his area of expertise.
[PAGE 34]
This result kept him eligible for elimination and under Balcom's
control. Two professionals and two supervisors remaining in NSD
would be eliminated. (Tr. 1214-15, 1223-24, 1229, 1404-09, 1411-13,
Balcom) Neal had resigned in March 1992 because his Compliance
section was being eliminated, and he believed he was going to be
fired by Balcom in retaliation for his going to the NRC (Tr. 2919-
20, Neal).
81. To effect these results, Balcom made a list ranking the
NSD employees from top to bottom, and solicited similar lists from
Hinson and Moore, comparing them with his own. He said he then
destroyed the lists. He testified that he never discussed the
lists with anybody, and never told Moore or Hinson his particular
ranking. (Tr. 1224-26, Balcom) By then he would have had virtual
assurance of the outcomes of any formal forced ranking process.
Balcom testified that he did not merely adopt Hinson's or Moore's
recommendations. He "sanity" tested their evaluations against his
own and submitted them to HR for review. (Tr. 1424, 1432, Balcom)
Balcom approved the result of the forced ranking process, which
placed Lamb at the bottom of the supervisors' rank order and led to
his selection for termination. Balcom selected Dean for termination
when he broke the tie between Dean and Brick in favor of retaining
Brick, who had neither Dean's expertise or transferrable skills,
and was a notably unexceptional employee. (Tr. 1432, 1435, Balcom;
C-43)
82. Although he ranked people, and compared his rankings with
those of Moore and Hinson, Balcom denied discussing those rankings.
He testified that in his meeting with Hall and Kinsey to discuss
the reorganization, he never discussed any people, only the
reorganization, "the number of people but not the people." (Tr.
1224-30, Balcom) Balcom met with Randlett a few times to discuss
specific problems, mostly about the systems. However, he testified
that he specifically rejected Randlett's offer to disclose his
opinions of NSD personnel, in favor of forming his own independent
opinions. (Tr. 1215-17, 1417-18, Balcom; HL&P-158 at 42-43,
Randlett) I am persuaded that a plausible motive for this conduct
is that Balcom consciously sought to insulate himself from
information about Dean and Lamb because of what he could reasonably
expect to learn.
83. In April, 1992, nearly four months after transferring to
NSD, Balcom had devised a plan for reorganization of the NSD that
he testified was the result of a process exclusively within his
discretion and control. The plan provided for certain organization
changes, and a reduction in force that would adversely affect two
supervisors and one professional within the NSD. The Access
[PAGE 35]
Authorization section was to go out of NSD. Investigations would
also be transferred. Safeguards Information would be transferred
to Document Control. Compliance, which he viewed as redundant to
QA, would be eliminated with NRC approval. Mid-level management,
the division managers, were deemed unnecessary and interfered with
communications between functional sections and the department
manager. (1401-02, 1404-06, 1409-12, Balcom)
84. Balcom submitted his plan to Kinsey for approval,
allegedly discussing the number of people and positions that would
be affected by his proposed reorganization. Balcom and Kinsey then
met with Hall on March 17, 1992 and obtained his approval. (Tr.
1228-29, Balcom) Balcom testified that he never discussed with
Kinsey or Hall which individuals would be terminated in the
reorganization. (Tr. 1229, Balcom) I find that difficult to
believe, under the circumstances, unless the outcomes were
implicit. Although the evidence suggests that the reorganization
may have been justifiable as an experiment in convenience, or
marginal utility, the evidence does not establish that it was
either urgent or essential in form or substance. As incentives,
these considerations are significantly less compelling than
eliminating Dean and Lamb would have been.
Evaluation of Personnel - The Process
85. Hall directed Balcom to consult with HR and legal counsel
in making the decisions as to who was to be transferred or
terminated. (HL&P-75g) On March 19, 1992, Balcom requested an
"objective" basis from Human Resources to help determine who would
be terminated. (C-41) Balcom contacted Odom, Manager of HR. Betty
Brown, Director of Personnel, contacted Balcom, and they decided to
utilize STEP program which had been used during prior year's 10%
RIF of 1300 employees. Utilization of STEP involved use of the
Special Performance Profile (SPP) for each employee. In fact,
this was apparently the only element of STEP that was taken and
adapted for the NSD reduction in force. STEP was an imported
program with which STP personnel were not familiar. They had no
training in its implementation. It had not been used at STP
before, and has not been used since. It had been previously used
for substantially larger groups of employees at HL&P than were
involved in NSD. Claimants contend that the choice and
implementation of the STEP procedure reflected a conscious bias
against them. (Tr. 1009-10, Hall; 1251, 1339-40, 1474, Balcom;
1522-23, 1527, Moore;, 3404-05, Brown; 1702, Jones; 1182-83,
Randlett; C-96) I find that the process has all the earmarks of a
cover for a previously conceived result.
[PAGE 36]
86. Randlett testified in his deposition that he did not know
what process was used to terminate Dean and Lamb, but that he did
know what process is normally used, and described it. He testified
that the normal determination of best qualified personnel for a
position is by looking at their job performance evaluations or
appraisals; that he had used performance evaluations, and not
special performance profiles in his management efforts at STP. He
testified that he had never fired anybody, was not aware of anyone
being fired, but STP had moved people around and demoted people,
and he had heard of people being asked to retire or to move to
different locations. (Tr. 1180-83, Randlett)
87. In April 1992 Balcom received the SPP package from Human
Resources. Balcom did SPP's on those directly under him, i.e.,
Moore, his secretary, and an administrator. This arrangement, in
effect, insulated Moore from competition with Lamb. Balcom
assigned former Division Managers, Moore and Hinson, to prepare
SPP's on employees under them. This decision would also have
insulated Moore and Hinson from competition with Lamb and increased
Lamb's vulnerability. Balcom assertedly did not tell anyone in NSD
why SPP's were being completed. The reason for their preparation,
however, should have been obvious to all but the naive. At this
point, Balcom knew Hinson's and Moore's ratings of NSD personnel,
so it can be inferred that he could be quite secure in predicting
their SPP ratings. (Tr. 1233, 1300, 1424, 1432, Balcom; 1532,
Moore) Balcom reviewed the SPP's, met with Moore and Hinson,
resolved inconsistencies, and sent the SPP's to HR for review. (Tr.
1231-32, 1255, Balcom)
88. The SPP process utilized a numerical scoring system to
allow relative ratings in various categories. It was generally
recognized that the SPP device was used to reach a forced current
ranking of employees against each other for the purpose of reducing
staff. Certain of the anomalies and deficiencies which were cited
by the OIG and the DOL investigator, are supported by evidence
adduced at the hearing. HR personnel questioned certain aspects of
the process as well. The following examples are illustrative and
significant.
89. When disparate ratings of two STP employees, Worth and
Brick, were challenged by HR based on past annual performance
ratings, Worth was given an additional point under present job
functions and Brick one less. However, NSD management then reduced
Worth's previous score under evaluation of other job related duties
from 0 to -2, ensuring that Worth still had one fewer points than
Brick. (C-2 at 32)
90. Although the SPP instructions stated specifically that
[PAGE 37]
skills "of special value" or "possessed by only one or some" be
considered, there was no mention in Lamb's SPP of his skills as a
firearms instructor, Certified Protection Professional, or first
person in the NSD authorized to evaluate all Nuclear Security
tasks. Unlike Lamb, Pomeroy received a point on his SPP for being
an NRA firearms instructor and certified armorer. (C-2 at 33) This
was a factor that seemed in practice to lend itself to a wide
latitude for subjective manipulation.
91. Negative comments were made on Dean's SPP relating to his
mishandling of Safeguards Information on several occasions, but no
mention was made of such an incident on Sheesley's SPP, although he
was also reprimanded. (C-2 at 33)
92. Of the seventeen employees rated pursuant to the SPP
process, only Dean, Lamb, and Worth were awarded negative points.
OIG reviewed the most recent official performance ratings, which
are in evidence, and concluded that, had either performance or
seniority or a combination of both been used to justify
terminations, Lamb, Dean, and Worth in combination would not have
been terminated as a consequence of the elimination of the three
NSD positions. OIG concluded that Dean would have been terminated
under various applications of performance ratings. (C-2 at 34)
93. Review of the SPP's for HR was assigned to Patricia
Jones, an employee of the Human Resources Department (HR) since
1990. She was asked to evaluate the process or SPP forms that
Balcom had used to determine fairness, consistency, and conformity
to company policy. She was not familiar with those forms. She knew
from the beginning of her involvement that two professionals and
one supervisor or manager were to be eliminated from NSD. Her
instructions were limited, but she was to evaluate Balcom's process
in completing the SPP forms, and after review, to confer with him,
so that "whatever we came up with was going to be the final
decision." (Tr. 1702-03, 1747, 1750, Jones; HL&P-2)
94. Jones saw "some problems" in the system as it was
applied. She had concerns about certain discrepancies and
inconsistencies in Balcom's rankings, particularly the difference
between what was reflected in the personnel files and what was on
the SPP forms. An example of such discrepancies was the comparison
of Brick and Worth. She discussed these concerns with Balcom in
April 1992. She pointed out the unfairness with the way Lamb had
been rated, as compared to Sheesley, and that the lack of comments
was a significant omission with respect to the way Lamb had been
graded. However, the ratings of Lamb were not changed. (Tr. 1707-
08, 1729-30, 1741-42, Jones)
[PAGE 38]
95. Rankings from SPP's were as Balcom had ranked them in his
own mind. The only negative points given to any of the seventeen
NSD employees rated were given to Lamb, Dean and Worth, who were
whistleblowers. Balcom characterized the result that these three
were whistleblowers as coincidence. The conspicuous absence of
substantive comments to justify the ratings given in most instances
is a convincing indication of arbitrary process. (C-38, 42, 43;
HL&P-4, 5; Tr. 1705-06, Jones; 1292-93, Balcom)
96. However, Jones testified that she had discussed with
Balcom her concern with Worth's appraisal, which reflected "such a
significant change -- or demise in his performance versus the
appraisals," and that "[h]e explained to me that there were some
serious problems there that had erupted within the last 12 months,
and Mr. Worth was not supportive of management." That problem was
reflected in Worth's revised SPP by a comment accompanying a -2
rating in the "Evaluation of other job-related factors" category
staging, "Has not been supportive of management positions regarding
Security Department decisions." (HL&P-4; C-42, 43; Tr. 1738-40,
1755-56, Jones) That characterization, not being supportive of
management, is the essence of disapproval of protected activities
which is at the crux of these adverse evaluations.
97. Jones also had been concerned about Brick's evaluation
which had been rated higher than his annual performance appraisals
would have warranted. After she consulted with Balcom, he returned
with Brick and Dean in a tied position. The tie was broken in
favor of Brick, purportedly because of Dean's discipline problems.
(Tr. 1758, Jones) While this result was not unreasonable, the
flexibility availed by subjective factors in the comparative
evaluations is manifest. In this regard, Worth and Dean were tied
at 7 for the lowest ratings among the professionals, of whom, the
three closest competitors were rated 8, 8, and 9. The effect of
Dean's -3 related to other job-related factors, specifically the
disciplinary matters, and Worth's -2, apparently added after a
reconsideration because of his alleged nonsupport of management
positions regarding security department decisions, were obviously
controlling. (C-43)
98. Several other aspects of the implementation of the STEP
procedure by Balcom at the NSD impeached the fairness and
impartiality of the procedure. Balcom must have known enough about
Lamb's and Dean's past performance and activities as a result of
his lengthy investigation to have anticipated the results of the
STEP procedure. Thus I note, but do not rely directly upon the DOL
investigator's review of the forced ranking process utilizing the
[PAGE 39]
SPP's in detail and concluded that there were inconsistencies in
the rankings, which were very subjective in nature and reflected
the obvious failure by the supervisors to follow the SPP
instructions. (C-12B at 19-20; C-13 at 31-33) Noting that two
Speakout reports prepared by STP had concluded that there was no
evidence of discriminatory action against Dean or Lamb, the OIG
Investigative Report stated, "However OIG's analysis of the
criteria used to justify the terminations determined that there
were a number of anomalies in its application and that the SPP
instructions were not followed." (C-2 at 32)
99. The DOL investigator's reports were expurgated to avoid
identification of individuals. However, he observes six instances
in which very low ratings of "1" or "2" were assigned to
individuals with respect to their potential to perform another job
function, but no comment was provided as required, or, in two
instances, the comments were too vague to justify the low ratings.
(C-13) One comment was "good potential to perform in other areas of
responsibility with proper coaching" and the other was, "minimal
experience outside of current duties, however, has shown
willingness to accept new tasks." The investigator also noted that
one SPP which disclosed no disciplinary problems, reflected a
deduction of two points because the rater felt the subject "has not
been supportive of management positions regarding security
department decisions." He also cited an instance in which Hinson,
who had not initially made comments in one instance, made a change
after meeting with Balcom. (C-13) He noted that the rankings were
subjective, but that, in addition, the failure of the raters, who
were supervisors, to follow applicable instructions showed "a
distinct pattern of rating Mr. Lamb...the lowest." These
observations are supported by a review of documents in evidence.
(C-12B, 13)
100. I find on the basis of the evidentiary record that,
while the use of the SPP process was ostensibly objective, it could
be, and in fact was manipulated to Dean's and Lamb's disadvantage,
because it allowed for the virtually unfettered application of
subjective judgment. In this instance, its application was by
personnel who were not experienced in using the process. Although
the SPP instructions required comments to accompany the numerical
scoring system, there is little that is explicit regarding the
manner and underlying reasons for the scores which were awarded.
There were significant adjustments in ratings in the initial
process, and upon reconsideration. Jones did her own set of
evaluations, based upon annual performance evaluations and
personnel files, and came up with significantly higher ratings on
the SPP's for Lamb, Dean, and Worth. Balcom administered the
[PAGE 40]
process with the aid of Moore and Hinson in a way which would have
allowed him to predict and manipulate the outcomes, particularly
with respect to Dean, Lamb, and Worth. The reconciliation of
disparate methodologies of Moore and Hinson, the evaluators,
allowed one form of manipulation of the process. I find that
Dean's and Lamb's concerns which evolved into protected activities
contributed to Balcom's assessment that they should be eliminated
as a product of the reorganization. (Tr. 1735-36, 1738-39, 1741-44,
1752-53, Jones; Tr. 1665-74, Moore; C-10, 42, 43; HL&P-2, 4, 5)
Moore's Knowledge and Participation
101. Moore's knowledge of Dean's and Lamb's activities and the
evaluation process is relevant because Balcom may be deemed to have
effectively delegated to Moore much of the decision-making
authority to select those who would be terminated, or adopted, at
least in substantial part, Moore's recommendations, which were
tantamount to deciding who should be terminated. Moore provided
input to Balcom, but he and Balcom both deny that Balcom discussed
his plans for the department with Moore. (Tr. 1222-23, 1226-27,
Balcom; 1532, Moore; C-75C at 4-5) Nevertheless, Balcom asked
Moore to prepare SPP's, even though he testified that he did not
tell Moore how they would be used. (Id.; C-75D at 5) It defies
credulity, however, that Moore would not have inferred that the
document would be the basis for transfers, demotions, or
terminations.
102. Moore knew of Lamb's opposition to Randlett on the
Management key and the power outage issues. (Tr. 1503-04) He
denied clear recollection of opposition from Dean on the issue.
(Tr. 1503, 1559, Moore; 712, Dean) On October 20, 1991, during the
investigation of the Dean-Sheesley incident, Moore learned that
Lamb and Dean had been to Speakout two and a half years earlier.
However, he testified that Dean did not identify the issues raised.
(Tr. 1567-69, 1605, 1630, Moore; 168-69, Dean) Moore denies
telling Balcom of Dean's remark. (Tr. 1635-36, Moore) Moore
denies knowledge that Lamb and others contacted the NRC with
concerns, notwithstanding the notes of Perez, the DOL investigator,
which indicated that he did. (Tr. 1561, 1565-66, 1603-04; C-13 at
68) Moore's sworn statement to the OIG states that Moore "was not
aware [that] Messrs. Dean, Lamb, and Worth had made allegations to
the NRC." (Tr. 1599, 1601, Moore; C-75D) Moore was aware that
Drymiller, Sheesley, Neal, Lamb, and others were interviewed on
site by the OIG when he was in 1991, but denies speculating as to
whether someone had reported something to the NRC to initiate this
inspection. (Tr. 1599-1600, Moore) What is clear is that Moore, in
his behavior and his testimony, was a team player, not about to
[PAGE 41]
buck higher management authority for any reason, and I have weighed
his credibility accordingly. (Tr. 1693-97, Moore)
103. Lamb believed Moore had a grudge against him based at
least in part on an adverse memorandum which Lamb had written in
1987 or 1988 criticizing Moore. (Tr. 330-32, Lamb) Moore had later
seen the memorandum according to Worth, but Moore testified that he
did not remember it. (Tr.A. 17-18, Worth; 3402, Brown; 1533, Moore;
HL&P-158 at 28-29, 74-75, Randlett) HL&P concedes that Moore had
participated in discussions over time at HL&P and "obviously knew
about the views of Lamb, Dean and most other security employees on
various security issues." (Respondent's brief at 53) Complainants
argue that Moore was prejudiced against Lamb because he was in
direct competition against Lamb for one of the three supervisor
positions.(Tr. 1710, Lamb) Respondent apparently concedes the
competition, but argues that Moore did not know there was such a
competition, because Balcom had not told Moore his reorganization
plans. (Tr. 1532, Moore; 1300, Balcom) Respondents note that
Drymiller and Sheesley were also in competition for the three
positions, and that Moore's involvement would not have affected the
relative ratings among Drymiller, Sheesley, and Lamb. Balcom
purportedly rated Moore against those three, not just Lamb.
(Respondent's brief at 54) The integrity of the process, however,
is manifestly suspect under the circumstances.
104. Moore apparently commented on Lamb's SPP that Lamb's
performance had declined during the past year, but he admitted not
counseling him. Jones of HR noted that omission, as well as the
failure to make an appropriate entry in the Supervisory Log
pursuant to the constructive discipline program. Thus, the
negative observation is purely subjective and undocumented, but not
inconsequential. Balcom had noted that Worth's recent performance
was a factor in his relatively low SPP score. (C-2 at 33)
105. Another manifestation of subjective evaluation appears
from a comparison of the SPP's and the recent annual performance
evaluations of Lamb and Sheesley, with whom Lamb was apparently in
the most direct competition for survival. Balcom, despite his
recent assumption of responsibility for NSD, had inexplicably
canceled annual performance evaluations of NSD personnel in 1992,
shortly after he was installed. (Tr. 1703, Jones) Presumably, a
recent favorable performance evaluation would have made Lamb's, or
anyone else's, elimination more difficult. Moore awarded four of
five points overall on both Lamb's and Sheesley's last annual
performance ratings. But he awarded Lamb only five of ten points
with no negative comments on his SPP under "Evaluation of
Performance in Present Job Function," while awarding Sheesley six
[PAGE 42]
of ten points with the negative comment, "Performance recently
affected due to not being selected for assignment to Access
Authorization group." Moore got a 7, without comment, from Balcom.
It can reasonably be inferred that Lamb's whistleblowing was a
substantial, if unmentionable, factor in this relatively low
rating. SPP instructions require comments if performance has
changed since last appraisal. They require that supporting
documentation in the department file cite specific examples of
performance changes. This was not done. Jones of HR who reviewed
the SPP's also observed that there were inconsistencies between
performance appraisals and the SPP and inadequate comments to
support the ratings. The latitude for subjective evaluation by a
nondisinterested evaluator such as Moore is apparent. (C-2 at 33)
106. Moore awarded a "-2" to Lamb on his SPP with the
comment, "Not supportive of management decisions with which he does
not agree." Lamb's protected activities would be inseparable from
such an assessment. Moreover, the assessment contrasts with
Moore's assessment on Lamb's most recent Performance Appraisal
dated February 8, 1991, which stated under "Leadership/Team
Building" that "Mr. Lamb instills a cohesive spirit within his
staff. Individual abilities are utilized to achieve positive
results." Moore awarded Lamb the highest rating under this rating
factor, and under the rating factor relating to improvement,
recorded "no deficiencies noted." I infer that the SPP rating is
the product of substantial subjective input by a nondisinterested
evaluator. (C-2 at 33-34)
107. Moore's negative comment on Lamb's SPP that Lamb was
unwilling to accept a transfer admittedly reflected only Moore's
subjective perception. (Tr. 1553, Moore) Lamb indicated that he
had not been asked if he would accept a transfer, and that, on the
contrary, he would have accepted a transfer. (C-2 at 34) The
evidence generally suggests that this was an ill-founded and
erroneous assessment.
108. Under the circumstances, Lamb's other competition would
have included Moore, who was clearly a company man, and who was
chosen by Balcom to evaluate Lamb. (Tr. 1694-97, Moore) Drymiller
had a college degree and certain other distinguishing
characteristics, including consistently favorable performance
evaluations which left him in a relatively secure position.
Balcom's ranking of Moore, however, was essentially noncompetitive,
since Moore ranked the other supervisors, Drymiller, Sheesley, and
Lamb, against each other, but not himself. Moore's rating of 7
related to performance in present job function, his rating of 3,
without comment, related to potential to perform another job
[PAGE 43]
function, and rating of +3 related to other job-related factors,
because he handles special projects well with little impact on
other duties, with two assignments cited, gave him the same
numerical ranking as Drymiller. Lamb's unexplained 5, 2, related
to other job functions, because of the alleged unwillingness to
transfer, and -2, because of his alleged nonsupport of management,
respectively, left him with a very low ranking within this process.
(C-42)
109. When Jones of HR was questioned regarding her review of
the SPP's which Balcom had submitted, she appeared sufficiently
protective of HL&P's position to give her testimony a suggestion of
bias. However, in her testimony she agreed that the first category
on the SPP form should generally reflect the rated individual's
performance appraisals "allow[ing] for any changes within the last
twelve months if they were critical because none of these people
had had performance appraisals from 1992." She also agreed that if
there had been changes, they were required to be noted in the
comment section. (Tr. 1714-15, 1717-18, Jones) In a detailed
comparison of the last available annual performance appraisals of
Sheesley and Lamb, both made by Moore on February 6 and 8, 1991,
respectively, the documents and Jones' testimony established that
Lamb's ratings exceeded those of Sheesley in virtually every
category of evaluation, were tied with Sheesley in a few, and were
exceeded by Sheesley's in only one. Significantly, Sheesley had
received a "6" in the first category of his SPP, with a notation
that his performance had recently been affected because he did not
get a desired assignment. This was an implicitly negative comment
reflecting a recent change. Yet Lamb received a "5" with no
comment. (Tr. 1719-30 , Jones; C-3, 42, 69C) In the absence of
explicit justification for the unexplained disparity in these
ratings, I infer that the disparity was motivated by negative bias
against Lamb. Jones opined that if Moore knew he was in
competition with Lamb for one of the three supervisory positions
remaining under the Balcom reorganization, it would not have been
fair. (Tr. 1710-11, Jones)
110. In the absence of budgetary or other considerations,
which have not been proved to have been a significant incentive for
the reorganization of NSD or its form, there is no obvious cause
for eliminating an employee of Lamb's manifestly high caliber
except retribution for his protected activities. It can be noted
from the listing by Jones of HR that Lamb's overall performance
appraisal ratings of 4 and 4 in 1990 and 1991 was exceeded by 5 and
5 for only two other employees of the eighteen in NSD, and one
employee with a 4 and 5. Lamb's 4 and 4 ratings were consistent
with those of a clear majority of the personnel in NSD, including
[PAGE 44]
Moore and Sheesley. Dean's 3 and 3 were the lowest in the division.
(C-10; Tr. 1736, Jones)
111. I find that the use of the SPP device, borrowed from the
STEP procedure employed for a large reduction in force at HL&P, but
never previously or since at STP, offered a way to circumvent
Lamb's long term favorable performance evaluations and to
manipulate the process by means of a device speciously justified as
an impartial means to rate employees against each other. The SPP
had only five categories to be rated; the last, "Evaluation of
other job-related factors," allowed an especially large measure of
subjectivity. The element of subjectivity was clearly critical in
selection among closely competitive employees by a less than
impartial evaluator. Further evidence of this element of
subjectivity was Balcom's attitude that, in adapting the SPP
process, which was designed to be used for large organizations, to
NSD, a small organization where Balcom knew he was the final
authority making the decisions; who felt he knew the people
involved pretty well; and who was mainly interested "in just
getting people ranked," "didn't think that the comments were
essentially needed." (Tr. 11474-75, Balcom) This approach would
lend itself to desired and predictable outcomes.
The Annual Performance Appraisals
112. The annual performance appraisals, by contrast, involved
multiple factors of varied types together with comments, including
a section for recently assigned objectives, and employee input. In
August-September 1986, after eight months in position, Lamb
received an "Outstanding" overall performance rating with the
comment, "Mr. Lamb is a very outstanding and dependable employee
and is definitely a key asset to the Nuclear Security Department,"
by his supervisor, Lancaster, and second level supervisor, Moore.
His greatest strengths were described as "his communicative skills
(both oral and written) his ability to plan and organize his work
and the work of others and his ability to provide a professional
product under adverse working conditions." It was noted, "Mr. Lamb
has no areas where improvements are needed." (C-8) His annual
appraisal in December 1986, after a year in position, was to the
same effect, except that his overall performance rating was reduced
a category to "Highly competent performer; often exceeds standards
for the job." The comments were the same. This evaluation was not
countersigned by Moore. (C-7)
113. In the evaluation of February 1, 1988, Lamb continued as
"highly competent performer; often exceeds standards for the job,"
and his "greatest strengths" were identified, "Dave's security
[PAGE 45]
knowledge and his leadership skills are his greatest strengths."
The evaluating supervisor, Kern, noted, "There are really no areas
that are identified as 'needs improvement,' but some improvement
could be made in evaluating his subordinates' performance." (C-6)
114. In the evaluation of February 14, 1989, Moore rated Lamb
overall in the next lower category, "Good competent performer;
meets and maintains standards for the job," and commented, "Mr.
Lamb is an asset to the Security organization. His knowledge and
experience result in improved performance in all areas of
Security." Lamb's greatest strengths were identified as his
"knowledge and his ability in decision making." Improvement needed
was identified, "Mr. Lamb should work on developing his
subordinates through additional training and coaching." The
evaluation was countersigned by Randlett as second level
supervisor. (C-5)
115. In the evaluation of January 26, 1990, Kern rated Lamb
in the next higher category again, as a highly competent performer,
commenting, "Dave had really improved over the last year in
attitude and support of management directives." His greatest
strengths were, "Security Systems and Program knowledge and
willingness to share and use this knowledge." As for improvement,
Kern noted, "Dave needs to be a little less sensitive about
feedback regarding his supervisory style." This praise regarding
management directives followed a period of frustrated withdrawal by
Lamb from his previous active pursuit of his concerns with
deficiencies in STP's security. (C-4)
116. In the evaluation of February 16, 1991, Moore rated Lamb
as a highly competent performer again, commenting, "Mr. Lamb has
successfully carried out his responsibilities during this past
year. These successes have contributed significantly to the
favorable RER and SALP 1 rating for Security." The absence of
deficiencies was explicitly noted. Lamb's greatest strengths were
identified as, "Mr. Lamb possesses a great deal of knowledge and
experience. This aids our Department effort to improve efficiency
and performance." The evaluation was countersigned by Randlett.
(C-3) The evaluation was prepared before the March 1991 power
outage which precipitated Lamb's and Dean's next important
whistleblowing activities.
117. In light of these annual performance appraisals, and the
fact that Balcom had canceled the appraisals for 1991 that would
have been prepared in early 1992, I find that Lamb's low rating on
the SPP is suspect, especially in the absence of a compelling
reason for a reorganization requiring a reduction in force unique
[PAGE 46]
to NSD. Moreover, in the face of a prior history at STP of
reorganizations of NSD, and apparently other divisions, which did
not require terminations; and in light of the abrupt terminations
of Lamb and Dean with no warning and no significant effort,
especially in Lamb's case, to retain a competent long term
employee, when prior reorganizations at STP would allow individuals
at least thirty days to find positions within the company or on
site. Therefore, I find Lamb's SPP rating to be impeached, where
the inference of an underlying improper motive is so well supported
by evidence.
118. Jones agreed that these annual performance appraisals,
would determine the rating of the first of the five categories of
the SPP's, in the absence of significant changes within the last
year. That category related to "Evaluation of performance in
present job function. Consider knowledge, skills, and experience;
quantity and quality of work; effectiveness in performing the job."
Lamb's 5 out of a possible 10, in the average range, given without
required comment is inconsistent with his performance appraisals,
which are clearly at least above average. The absence of credit
for specialized training and skills is not satisfactorily
explained, given the technical subject matter and Lamb's history of
professional training and experience. Lamb's "average" rating
relating to potential to perform another job function within
functional area, with the comment, "Knowledge and experience would
allow for transfer however unwillingness would negatively affect
results," is inexplicable in light of Lamb's denial of
unwillingness. In the absence of proof of a source for that
comment, other than Moore's subjective surmise from a
nondisinterested perspective, the impartiality of the evaluation is
impaired. In the absence of significant change within the last
year, the arbitrary deduction of two points related to "other job-
related factors," accompanied with the comment, "Not supportive of
management decisions with which he does not agree," impeaches the
integrity of the SPP evaluation by Moore. The disparities are
such as to indicate an extrinsic influence or ulterior motive for
the low evaluation, probably related to Lamb's protected
activities.
119. Because Dean was not so effective an employee as Lamb,
the conclusion is more difficult, but I find that his SPP is
tainted also by the defective process employed in preparing the
SPP's. That process was tainted by such factors as the addition
between the April 2 and April 21, 1992, versions of Worth's SPP, of
a -2 rating under "Evaluation of other job related factors: with
the comment, "Has not been supportive of management decisions
regarding Security Department decisions." The apparently repeated
[PAGE 47]
changes in the SPP's of Brick and Gregg, who appear to have been
Dean's closest competitors, but who lacked Dean's transferable
knowledge, also suggest the possibility of outcome determinative
manipulation, or lack of impartiality. (Tr. 1753, Jones; 1688-90,
Moore; C-43)
The Roles of Hall and Kinsey
120. HL&P and Hall deny that Hall had role in Balcom's
selection of Lamb and Dean for termination. Hall delegated
responsibility for the reorganization and related terminations to
Balcom. Balcom denied that Hall expressed any expectation that
personnel in NSD would be reduced, or suggested that Lamb or Dean
be terminated. (Tr. 1444, Balcom) Hall disclaimed any direct input
to Balcom as to how to reorganize NSD, except his expectation that
NSD focus on the physical protection as the plant. (Tr. 1047, Hall)
Hall approved the reorganization as properly focused. (Tr. 1050,
Hall) Hall's only input as to selection of individuals to be
affected by reduction in force was to instruct Balcom to consult
with Human Resources to insure correctness. Hall disclaimed
discussing with Balcom the individuals to be impacted. (Tr. 1052-
53, Hall) He also disclaimed discussing with Balcom who had been
raising issues as to the management key, power outage, or other
such issues when Balcom was reorganizing the NSD. There is no
direct evidence to the contrary.
121. HL&P and Kinsey deny influence by Kinsey on details of
reorganization. In a carefully prepared statement Kinsey stated
that he was involved in the decision making process related to the
NSD reorganization. He stated that reorganization of the NSD had
been under consideration since August 1990 when he and Hall
directed Randlett to explore a reorganization of NSD.
Nevertheless, apparently no significant action was taken until a
year and a half later. Kinsey provided Balcom with the guidance
that NSD should concentrate on physical security, and that access
authorization and control of Safeguards Information should be
transferred out of NSD. Balcom suggested additional changes, such
as reassignment of the training coordination function, all to
produce a more efficient NSD. Balcom discussed with Kinsey "the
number of people and the positions that would be affected by the
reorganization." (C-75B)
122. Kinsey testified that he discussed with Balcom the need
to focus the NSD and approve the reorganization. Kinsey testified
that he did not give Balcom "any direction on whom to cut, or how
to cut, or how many to keep. (Tr. 1176, Kinsey) There is no
direct evidence to the contrary.
[PAGE 48]
123. Kinsey categorically denied knowing which individuals
raised NSD concerns in the summer and fall of 1991, until preparing
for trial. He especially disclaimed knowledge of who was raising
issues as to the power outages, the management key issue, the
inappropriate lockdown of Unit 2, and lighting, or who was going to
the NRC or to Speakout with concerns. However, he admitted
speculating who was raising the issues in NSD, and being aware that
someone was going to Speakout, and that, contemporaneously,
Randlett was telling him that Lamb was accusing Randlett of related
violations. When it is considered that Kinsey was familiar with
NSD, its personnel, and its problems, and that the issues involved
Lamb's responsibilities, and that Lamb was at loggerheads with
Randlett, it may be reasonably inferred that any speculation of the
type that Kinsey described was focused, and not idle, and the
probabilities are very high that the focus was on Lamb. The nature
of Lamb's concerns was such, and their durability, and involvement
in the several investigations was such, that one in Kinsey's
situation would readily suspect the identity of the concernee, even
if protocol would have precluded him from vindicating his suspicion
absolutely.
124. Kinsey opined that Balcom did not know who was making
allegations or going to Speakout on the security issues. Kinsey
swore "that the reorganization that resulted in the termination of
[the] whistleblowers, Mr. Lamb, and Mr. Dean, and Mr. Worth, was
just a coincidence." (Tr. 1090-91, 1121-22, 1172-77, Kinsey)
Common experience makes such disclaimers suspect, and I do not
believe them, especially in light of HL&P's artificial insulation
of the managers and decision makers from each other and useful
information. Such contrived isolation allegedly characterized
their dealings with the whistleblower concerns raised within the
company and in the course of the subsequent investigations and the
personnel involved, although the players were clearly familiar with
each other and operated within a relatively limited environment.
125. There had been numerous reorganizations of NSD in the
past. They tended to occur as each new manager assumed
responsibility with his own concept of structure for the
department. (Tr. 2040, Pomeroy; 1525, Moore) Pomeroy opined that
there had never been any real differences in what NSD was doing
after past reorganizations, and little following Balcom's. After
Balcom's reorganization, there was, in effect, the same number of
managers as there had been before. (Tr. 2041, 2129, Pomeroy) Past
reorganizations had also given individuals affected thirty days
notice to find positions, after which they would be terminated.
(Tr. 1334-35, 1475-77, Balcom) Several prior reorganizations of
[PAGE 49]
NSD had resulted in transfers, not terminations, of excess
employees. (Tr. 1525-27, Moore)
126. The process of evaluation and reorganization was
concluded sometime after April 20, 1992. (Tr. 1293, Balcom) Lamb,
Dean, and Worth were terminated May 4, 1992. Balcom terminated
Dean and Lamb so abruptly, even brutally, that the circumstances
raise an inference of retribution. Balcom's reorganization,
apparently, was not completed in late April when Lamb asked about
his future before taking a vacation, and Balcom was noncommittal.
Lamb returned from vacation and was terminated immediately by
Balcom. Balcom also said he would not allow bumping. He gave no
reason. Dean was terminated a half hour later. Balcom testified
that he did not remember that thirty day notice to employees to
allow a job search was part of the STEP program, because he was not
intimately involved in it. He also admitted that he "had jerked
[Lamb's] access before [he] ever told him he was fired," allegedly
"in accordance with standard procedures for people who are going to
be terminated." (Tr. 1476-77, Balcom) This attitude and action
suggests that retribution was a basic motive in the process.
127. Balcom would not allow Lamb, a first line supervisor, to
"bump" lower level employees. However, he allowed second line
supervisor Moore, in effect, to "bump" Lamb when his position was
abolished under the reorganization. (C-2 at 34)
128. Balcom testified that he had double-checked that there
was no other position available for Lamb, Dean, or Worth. Balcom
and STP provided only perfunctory assistance to either Lamb or Dean
in finding other positions to which they might transfer within the
company. Moreover, instead of following STEP procedures utilized
at HL&P, which gave impacted employees 30 days notice and the
opportunity to re-post and seek a position elsewhere in the
company, Balcom jerked their access before they were told they had
been terminated. (Tr. 1053, Hall; 1753, Jones; 11476-77, Balcom)
Complainants contend that Lamb, Dean, and Worth were the first
employees of NSD that had ever been laid off or terminated by STP
in connection with a reorganization or downsizing without the
opportunity to accept another position. This allegation was not
refuted. (C-3 at 5; Tr.A 1225-26; 199, Smith; Tr. 1525-26, Moore)
Normal practice at STP was to transfer personnel within the NSD or
outside the department, even if persons involved required
retraining to perform in their new positions. (Tr. 1527, Moore;
Tr.A 182, Smith) (Tr.A 115, 125-26, Drymiller; Tr. 190, Smith; 24,
Worth; Tr. 1942, Lala; 2064, Pomeroy; 2919-20, Neal; 1871,
Williams; 1753, Jones)
[PAGE 50]
129. Because control of Safeguards Information was Dean's
primary responsibility and within Dean's specialized expertise,
such a transfer of responsibility could have been expected to move
Dean with it, thus effecting a reduction in force in NSD without
the necessity of a termination. The fact that Dean was not so
treated, suggests a discriminatory motive on Balcom's part. Dean's
successor in this specialized field is not indicated, and it does
not appear that when Balcom broke the tie between Dean and Brick,
that Brick would have assumed Dean's responsibilities in this
regard, or that the loss of Dean's expertise was a consideration.
This circumstance generates an inference that Dean's termination
because of his inconvenient concerns was a significantly higher
priority than the retention of his expertise.
The Underpinnings and Effects of the Reorganization of NSD
130. Balcom's reorganization involved a small reduction in
force, exclusively in NSD. There is no evidence which proves that
the reduction in force was indispensable or even compelled by any
serious or urgent need. Urgency is belied by the time it took
Balcom to accomplish the reorganization and terminations.
Significant budgetary considerations are belied by the
announcements and budgetary approval which preceded Balcom's
transfer to NSD. None of the problems which NSD apparently had
under Randlett were attributed to excessive supervisory or other
personnel. Hall's directive to focus on physical security could be
construed as a minimal rationale for reorganizing. Reorganizing,
however, would allow Balcom to jettison uncooperative employees
under a new regime. That, quite clearly, is what he did, with the
advice of counsel and a fair degree of finesse.
131. As previously suggested, I find that an intensive and
sustained inquiry and investigation of a small department conducted
by so knowledgeable and experienced supervisor as Balcom would
inevitably after four months have generated a clear image of Dean
and Lamb and the particular concerns about significant operations
of the department which they had raised with Randlett, as well as
how they had been resolved. Dean and Lamb were conspicuous and
significant as the result of both the internal concerns they had
expressed, and the NRC's investigations that their concerns had
generated. Balcom could hardly have avoided learning about the
long term relationship that had existed between Lamb and Dean.
With the elimination of Lamb, and his associate, Dean, Balcom would
have eliminated two employees perceived as disruptive because of
their dissents from particular, well identified, and controversial
management decisions. From his point of view, they would have been
the antithesis of team players. These considerations are
inseparable from Dean's and Lamb's complaints to the NRC, which
[PAGE 51]
clearly shaped Dean's and Lamb's status within STP and NSD, and
with Randlett and his successor, Balcom. Such perception would
create the obvious motive for Balcom to terminate both Lamb and
Dean, whether or not he could or would swear he knew that Dean or
Lamb had gone to the NRC.
132. By January 1992, Dean's and Lamb's activities had caused
significant problems for HL&P. There had been investigations by
the NRC and internal audits, and lowered safety ratings, which
required responses. These cost the Employer money and prestige.
The issues were readily traceable to Lamb and Dean, unless
management was determined to remain ignorant of the connection. I
conclude that HL&P management could not reasonably have been
ignorant of that connection.
133. The divisions within STP were relatively small. Only
seventeen personnel were evaluated in NSD in 1992 in connection
with the SPP process. There was evidence of considerable
interaction between divisions. For example, QA, which was part of
Licensing, and was headed by Balcom before he transferred to NSD,
conducted annual compliance audits of NSD. In such a universe, I
find it probable that Dean's and Lamb's conspicuous activities, or
activities which had consequences affecting other personnel at STP,
would have been suspected or known to their peers, and in due
course to their supervisors, and almost inevitably to upper
management, which was required to respond to the investigations and
their findings by remedial action.
134. It may also be assumed that these supervisory personnel
and managers needed to know what was going on at STP. They needed
to know, and would have wanted to know, the cause of the series of
investigations by the NRC. Jordan's investigation at the behest of
Hall in anticipation of the OIG's inspection was a reflection of
this process. STP managers were too well advised by legal counsel
and too sophisticated to have made direct inquiries or accusations
against whistleblowers which would have had substantial visibility
and carried high risks of predictably adverse legal consequences.
I find that the circumstances provided the bases for educated
guesses and well grounded suspicions that would have been more than
enough for STP's management to have acted upon as they did, and I
find that they did so, in substantial part because of the
association of Lamb and Dean with the particular issues which have
been described.
Discussion and Conclusions of LawWith Illustrative Supplemental Findings of Fact[PAGE 52]
Discrimination Claim
The ERA prohibits the discharge of or other discrimination
against an employee in retaliation for, interalia,
the employee's assistance or participation in proceedings or in any
other action that carries out the purposes of the ERA or the Atomic
Energy Act of 1954. 42 U.S.C. §§5801-5891.
Under the ERA,
No employer . . . may discharge any employee or otherwise
discriminate against any employee with respect to his
compensation, terms, conditions, or privileges of employment
because the employee . . . (1) commenced, caused to be
commenced, or is about to commence or cause to be commenced at
proceeding under this chapter . . . ; (2) testified or is
about to testify in any such proceeding or; (3) assisted or
participated or is about to assist or participate in any other
manner in such a proceeding . . . .
42 U.S.C. §5851 (1988).
To prove their discrimination claims under the ERA, Dean and
Lamb, as Complainants, must demonstrate that:
1. HL&P is an employer subject to the ERA;
2. As employees, Dean & Lamb engaged in protected conduct;
3. HL&P took some adverse action against them; and
4. The protected conduct was the likely reason for the
adverse action. DeFord v. Secretary of Labor, 700 F.2d 281,
286 (6th Cir. 1983). See generally S. Kohn, The
Whistleblower Litigation Handbook: Environmental, Health and
Safety Claims (1990), §3.14.
Prima Facie Case
To establish a primafacie case of
discrimination under the ERA, a complainant employee qualified as
such under the ERA must show (1) that he engaged in protected
activity; (2) that the respondent employer who is subject to the
ERA was aware of such activity; (3) that the respondent employer
took some adverse action against the employee; and (4) that there
is evidence sufficient to raise an inference that the adverse
action was motivated at least in part by the protected activity.
Dartey v. Zack Co. of Chicago, 82-ERA-2 (Sec. Dec. Apr. 25,
1983, slip op. at 7-8); accord, Mackowiak v. University
Nuclear Systems, Inc., 735 F.2d 1159, 1162
[PAGE 53]
(9th Cir. 1984); Kenneway v. Matlock, 88-STA-30 (1989).
1)Protected Activities
Although HL&P concedes that both Dean and Lamb engaged in
protected activity, a threshold issue is which, if any, of their
whistleblowing activities qualify as protected activity as a matter
of law in the Fifth Circuit. HL&P asserts that Brown & Root,
Inc. v. Donovan, 747 F.2d 1029 (5th Cir. 1984) precludes a
finding that Dean's and Lamb's internal communications to persons
and entities within STP or HL&P, as opposed to external
communications to the NRC, were protected activities under 42
U..S.C. §5851. HL&P contends that the only activity of Dean
and Lamb which is protected is their reporting of alleged
violations to the Nuclear Regulatory Commission (NRC). The issue
is significant, because HL&P disclaims all knowledge of the
Complainants' external communications to the NRC. I find that the
Complainants engaged in protected activities under the ERA.
The Secretary of Labor has adopted an expansive definition of
protected activity, and has consistently and respectfully declined
to follow the Brown & Root decision. SeeMackowiak v. University Nuclear Systems, 82-ERA-8 (Apr. 29,
1983); Wells v. Kansas Gas & Electric Co., 83-ERA-12 (June
14, 1984); Richter v. Baldwin Assocs., 84-ERA-9 (Mar. 12,
1986); Willy v. The Coastal Corp., 85-CAA-1 (Sec. Dec. of
remand, June 4, 1987); Poulos v. Ambassador Fuel Oil Co.,
86-CAA-1 (Apr. 27, 1987); Smith v. Norco Technical Services,
85-ERA-17 (Oct. 2, 1987); Nunn v. Duke Power Co., 84-ERA-27
(Dep. Sec. Dec., Jul. 30, 1987); Wilson v. Bechtel Constr.,
86-ERA-34 (Jan. 9, 1988), Lopez v. West Texas Util., 86-ERA-
25 (Sec. Dec. at 5-6, Jul. 26, 1988); Lockert v. Pullman Power
Prods. Corp., 84-ERA-15 (Sec. Dec. at 1-2, Aug. 19, 1985);
Bartlik v. TVA, 88-ERA-15 (Sec. Dec. of remand, Dec. 6,
1991), slip op. at 6. The Secretary continues to reiterate his
assertion that internal complaints to the employee's supervisors
and management are protected as within the scope of protected
activities as well as external complaints to the NRC. SeePillow v. Bechtel Constr., Inc., supra, slip op. at
10-11; Carroll v. Bechtel Power Corp., 91-ERA-46 (Sec. Dec.
Feb. 15, 1995) slip op. at 14.
The Fifth Circuit, in which this case arises, has noted the
Department's position. SeeIn re Willy, 831 F.2d
545, 548 (5th Cir. 1987), and the fact that other circuit courts
have disagreed with Brown & Root. SeeConsolidated
Edison Co. of New York v. Donovan, 673 F.2d 61 (2d Cir. 1982);
Mackowiak v. University Nuclear Systems, supra;
Kansas Gas & Elec. Co. v. Brock, 780 F.2d 1505, 1513 (10th
Cir. 1985), cert. denied, 478 U.S. 1011 (1986) (protection
afforded during all stages of participation in order to
[PAGE 54]
maintain integrity of administrative process in its entirety).
However, in Willy v. Coastal Corp., 855 F.2d 1160, 1169 at
n. 13 (5th Cir. 1988), the Fifth Circuit noted the continuing
vitality of Brown & Root within its jurisdiction. The
denial of certiorari by the Supreme Court in Kansas Gas
& Electric v. Brock, supra, does not, as Claimants
contend, resolve the issue against the Fifth Circuit's interpretation.
I find, however, that Dean's and Lamb's activities, both the
complaints that were internal and those that were external to STP
and HL&P, would, without exception, be protected activities under
the Act but for the rubric of Brown & Root, which is
distinctively applicable in the Fifth Circuit.
Although certain concerns were initially expressed by Dean or
Lamb or both of them to personnel within STP, in due course those
complaints which are material to this case became the subject of
investigations and actions by the NRC. Dean and Lamb repeated
their complaints which had been initially made internally within
STP to the NRC. Thus, it would be anomalous, where there is such
a connection, to say that such activities at an early stage were
not protected, so long as they were part of a process, and they
were mirrored by, or evolved into, technically and legally
protected activities, as defined by the Fifth Circuit, at a later
stage. The activities in question had continuing vitality and
effect from initiation to resolution. In this regard, to the
extent that the internal complaints evolved into complaints to the
NRC, they should be protected as an integral whole within the whole
scope of complaints by employees "who are about to commence or
cause to be commenced a proceeding or action." SeeLanders v. Commonwealth-Lord Joint Venture, 83-ERA-5, slip
op. at 1 (Sep. 9, 1983).
It would thus be inaccurate to characterize any of the
significant allegedly protected activities in which Dean and Lamb
were involved as "purely internal," to the extent that they might
have motivated HL&P's adverse action against the Complainants,
because they all came eventually and intact within the purview of
the NRC. SeeBrown & Root, supra at 1036. The
conflict between the Secretary's position and that of the Fifth
Circuit, regarding whether purely internal communications
constitute protected activity under the ERA, thus, need not be
reconciled in this case. The internal whistleblowing activities of
Dean and Lamb, which evolved into and mirrored the complaints made
to the NRC, and which would clearly be protected outside the Fifth
Circuit and within the scope of the Secretary's policy, were so
integrally and inextricably interrelated, both in subject matter
and in temporal
[PAGE 55]
sequence, with the external and clearly protected activities
involving the NRC, that they may be deemed to be an integral part
of the activities involving employee contact with a competent organ
of government which were clearly protected in the Fifth Circuit.
2)Knowledge
Whether knowledge of Dean's and Lamb's protected activities
can be imputed to HL&P through any of its managers or agents who
were responsible for the reorganization of NSD and terminations of
Dean and Lamb is a critical element of this case. HL&P has
categorically denied knowledge of Dean and Lamb's protected
activities by Balcom or anyone else responsible for Dean's and
Lamb's terminations. In such circumstances, proof of such
knowledge is necessarily established by circumstantial evidence.
SeeBartlik, supra. Dean and Lamb need not
prove that HL&P's final decision maker or decision makers had
direct or actual knowledge that they engaged in protected activity
in order to prevail. SeeFrazier v. Merit Systems
Protection Bd., 672 F.2d 150 (D. C. Cir. 1982). I find that
Complainants have proved that HL&P had sufficient knowledge of
their protected activities to act upon that knowledge, and did so,
adversely to Complainants.
In the absence of proof of direct knowledge obtained through
statements or admissions by the Complainants, HL&P managers and
decision makers, or other persons with personal knowledge,
knowledge imputable to HL&P may be established by proof that its
responsible managers heard rumors, which generated suspicions, or
made or acted on assumptions that Complainants had spoken to the
NRC about their safety concerns. Proof is sufficient if
Respondent's managers either were aware, or strongly suspected,
that Complainant had complained to the NRC. SeePillow v.
Bechtel Constr., Inc., supra, slip op. at 12-13;
Williams v. TIW Fabrication Machining, Inc., 88-SWD-3 (Sec.
Dec., June 24, 1992) slip op. at 6 (manager's suspicions that
complainant had filed complaints with government agency were
sufficient to show respondent's knowledge).
In this case the HL&P witnesses denied knowledge of Lamb's and
Dean's protected activities, at least to the extent that they
involved contacts with the NRC. But it is evident that by
"knowledge" they meant virtually absolute certainty, that is the
level of certainty that would be established by actual observation,
documentary confirmation, or direct disclosure by a reliable
person. While none of them may have had that degree of certainty,
and so could categorically deny such knowledge, the record
establishes that they were amply aware of circumstances, through
investigations, discussions, and other interactions, as well as
[PAGE 56]
close familiarity with personalities in a small universe, which
would have supported strong and reasonable suspicions, or
assumptions, which could have affected, and, I find, did affect
their conduct, which I find was also tempered by the caution that
attends the involvement of legal counsel.
Knowledge may be imputed to HL&P and the decision maker if the
ultimate decision maker has delegated the decision making authority
and has ratified the decisions of the subordinates involved.
Bartlik v. TVA, 88-ERA-15 (Sec. Dec., Apr. 7, 1993) n. 1.
Proof is sufficient if it is established that an employee of the
company "with authority to take the complained of action, or an
employee with substantial input into that decision, had knowledge
of the protected activity." Bartlik, supra at 4, n.
1.
Complainants contend that relevant decision making authority
was delegated by HL&P's Hall and Kinsey to Balcom. I so find, but
I also find that the exercise of that discretion was influenced by
the significant input of other managers. Complainants contend that
"virtually all of the HL&P employees had knowledge of the protected
activities," and so proof of knowledge was sufficient. (Claimants'
brief at 7) Claimants contend that the knowledge of Hall, Kinsey,
Moore, Balcom, and Jordan is imputable to HL&P, and that all of
those men knew of Lamb's and Dean's protected activities.
(Claimants' reply brief at 16)
Although the numbers may have fluctuated somewhat, the NSD
consisted of approximately 22 personnel, exclusive of contract
Wackenhut personnel. A substantial number of these personnel were
involved directly or indirectly in matters raised by Lamb's and
Dean's protected activities. In addition, there was the protracted
and intensive process of dealing with the issues initially
identified by Lamb and Dean, which became the subject of repeated
internal and external investigations. The intensity of focus on
these durable issues and the identification of those issues with
Lamb and Dean, make it virtually impossible to believe that in a
relatively small organization such as NSD, or indeed, STP, Lamb's
and Dean's activities, including communications with the NRC, would
not have been at least suspected by any responsible or informed
person in such a universe and with an interest in the resolution of
the issues or with dealing with the investigations and their
consequences. Thus, Claimants' assertion, "The evidence
established that virtually every witness in the case, including the
principal decision makers had some degree of knowledge of Lamb's
and Dean's engagement in protected activities," is persuasive.
Balcom categorically denied knowledge of Lamb's or Dean's
[PAGE 57]
involvement with the NRC. (Tr. 1432-33, 1435-37, 1487-88, Balcom)
Under the circumstances of this case, including my assessment of
the facts and the credibility of the witnesses, I find that denial
to be incredible, at least to the extent that the denial
encompassed knowledge which as a matter of law may properly involve
awareness or reasonable suspicions grounded on less than the
certainty of first hand observations. Balcom was an experienced
and sophisticated manager. As head of QA he had previously
performed audits of NSD. As QA manager in 1991, he administered
the audit of NSD in the summer of 1991 that resulted in significant
findings relating to the NSD, of which he advised Jordan.
According to Jordan, these involved reconciliation of strongly
opposing positions of Randlett and Balcom on the eve of the Tobin
investigation. Balcom admitted that he learned during the audit
that there were interpretive issues and disagreements between the
NSD management and staff, and that, thereafter, Jordan sent him to
discuss the problems with Randlett. (Tr. 2182-84, Jordan; Tr. 1329-
30, Balcom) Balcom testified that while he was with QA he was
aware of employee morale and discipline problems in NSD. (Tr. 1329,
Balcom)
As and after he assumed control of NSD, Balcom conducted a
lengthy, detailed, and largely secret personal evaluation of NSD
and its personnel in deciding how to remedy what he perceived as
its troubled condition. The investigation involved personal
interviews with all personnel. Balcom sought their perceptions,
except, perhaps oddly, in the case of Randlett, the head of NSD
whom he replaced. Balcom testified that he declined Randlett's
offer to give his personnel assessments to Balcom. However, Balcom
solicited and received substantial and very significant input from
Moore and Hinson. Randlett's attitudes and Balcom's thoroughness
support a compelling inference that Lamb and Dean would have been
linked to the interpretive issues and disagreements associated with
the NSD, since Lamb and Dean were major, if not the primary,
instigators. Moreover, these early discussions between Balcom and
Randlett at Jordan's behest probably obviated the need for Balcom
to confer with Randlett after Balcom assumed the direction of NSD.
By then, he probably knew what he needed to know about Lamb and
Dean aided partly by Randlett, and, probably with the prescience
instilled by the advice of counsel, would have tried to avoid any
demonstrable taint from Randlett's well established hostility to
Lamb and Dean.
Balcom denied learning that Lamb had gone to the NRC from
Monteith or Cink, whom Lamb claimed he had told that he had gone to
the NRC. (Tr. 1433, 1436, Balcom) Balcom testified that he had not
learned that Lamb and Dean had opposed Randlett on the issues
[PAGE 58]
addressed in the Tobin Report as a result of the audit by QA which
he directed prior to his assuming responsibility for NSD. (Tr.
1211-12, Balcom) Balcom denied knowledge of Speakout 11881, that
Lamb and/or Dean had initiated 11881, or that they had taken the
issues to the NRC until he prepared for trial. Balcom denied
awareness of the investigative report regarding the Dean-Sheesley
incident that mentioned Lamb and Dean having gone to Speakout. (Tr.
1297, 1346, Balcom) Moore testified that he never told Balcom
about Dean's comment that he and Lamb had gone to Speakout. (Tr.
1635-36) Balcom denied receiving debriefing information from
Jordan, and Jordan testified that he never knew the identities of
the allegers, and had not discussed individuals and their positions
on the debriefing issues. (Tr. 1295, 1336-37, Balcom; 2254, 2257,
2289, 2303, Jordan) Balcom took exception to the comment from
Tapia in the OIG report that it was common knowledge at STP that
Lamb, Dean, and Worth had gone to the NRC (Tr. 1487, Balcom; C-2)
Balcom's predecessor as head of the NSD, Randlett, resigned
from STP one week after the Tobin report was released. He denied
being asked to resign from the NSD. Randlett on deposition
remembered being opposed to Lamb on the senior manager key issue,
though he said he did not know Dean was opposed to that. He
acknowledged that the issue was Lamb's and Dean's belief that a
reduction in the physical security plans was involved, so that it
did not comply with the regulations, and that sometime later there
was a safety investigation of that issue. (Tr. 1185) Randlett also
remembered a dispute with Lamb over whether there was a power
outage, and later, whether there should be a test, and logging or
reporting to the NRC. He testified that he did not recall Lamb's
contention that the damage to the computer room door was a
reportable event. Randlett was Lamb's supervisor during virtually
all of the time that Lamb and Dean were conspicuously associated
with these issues. He remembered that the NRC and the OIG were
both on site during the summer of 1991 conducting an investigation;
he said that fact was known by everybody in the NSD, and Kinsey
knew they were there. (Tr. 1185-88, 1195, Randlett)
Randlett testified that he had complained to Kinsey on two
occasions that Lamb was trying to undermine the NSD. Randlett also
testified that he suspected that Lamb or one of his subordinates
had been to Speakout on some other issues, because "some of the
issues had been brought up by him previously. And he was still
boisterous about some of the issues." This testimony explicitly
establishes the linkage between Dean and Lamb and the particular
issues that could be appreciated by the interested and responsible
managers at STP. Randlett also admitted that "it didn't surprise
[him] that Lamb and Dean had been terminated, because they caused
[PAGE 59]
headaches for management at South Texas." (Tr. 1196-98, Randlett)
The Tobin Report was the product of an NRC investigation. It
found several specific and well defined violations by STP of
security requirements. Specifically, it found violations with
respect to the handling of the management key issue and the power
outage issues. These had been, and continued to be, high profile
issues over which Lamb had vehemently and persistently disagreed
with Randlett, had complained to higher management authority, had
complained to the NRC, and had cooperated with the NRC during the
investigation. Dean worked with Lamb on this issue. Because of
the continuum of focus and activity, Lamb's and Dean's involvement
was part of an integrated whole, comprising protected activity from
inception, the time of their initial disagreement with Randlett,
through their various communications with NRC personnel, which
ultimately forced STP to deal with the adverse assessments by the
NRC.
Alternatively, if Lamb's and Dean's protected activity were
deemed to qualify when Lamb or Dean first had contact with the NRC,
those prior activities would of necessity be considered an integral
part or mirror of the whole process. Both men were clearly
identified with those highly visible issues. This was clear to the
other employees with whom they were associated or came into
contact. The issues came within Lamb's, and also Dean's,
expertise. They were within Lamb's supervisory responsibility.
His position with regard to them generated conflict with at least
certain of his superiors. Randlett was no longer at STP when
Balcom reorganized NSD and terminated Lamb and Dean, along with
Worth. However, the reorganization was a response to Randlett's
legacy. By inference, Randlett's attitude toward Lamb and Dean was
indicative of management's attitude toward them, at least to the
extent that it recognized their roles as whistleblowers within the
organization. In that sense, Balcom would have been concerned, as
Randlett was, at their current and prospective roles within NSD.
Lamb, Dean, Worth and Neal made security related and
misconduct allegations to HL&P management, STP Speakout, and the
NRC. Their allegations pertained to matters under the regulatory
jurisdiction of the NRC. HL&P managers Randlett, Balcom, Moore,
Kinsey, and Hall all had some degree of knowledge that one or more
individuals in the NSD had made allegations to Speakout and/or the
NRC. Randlett suspected Lamb of making allegations dating back
to a May 1991 NRC inspection, and, as a result, complained on at
least two occasions to Kinsey about Lamb's attempts to undermine
the NSD. Dean admitted in Moore's presence during a November 1991
disciplinary action that he and Lamb had previously raised concerns
[PAGE 60]
to Speakout. Balcom learned in February 1992 that Lamb had brought
a recent concern to Speakout, although, according to Balcom, the
matter did not involve security concerns directly pertinent to this
case. (Tr. 1294-96, Balcom) Also in February 1992 Balcom was
advised by Lamb and Neal that the Tobin Inspection Report,
contained false statements. Lamb's and Neal's disclosure to Balcom
that there were inaccuracies in the Tobin report, which Balcom then
discussed with Kinsey, would have notified Balcom that Lamb and
Neal had been to the NRC, because the Tobin report had been under
lock and key. Since all supervisors except Randlett and Hinson had
been denied access to the document, the only way Lamb and Neal
could have got a copy would have been as allegers, a fact that
could not readily have escaped a manager of Balcom's experience and
sophistication. (Tr. 306, 308, Lamb; 1100, Kinsey)
Respondents assert that the date of the Randlett-Kinsey
discussion is not disclosed by the record, but that the record does
show that the discussion was not related to the Randlett-Earnest
relationship. Respondents also assert that there is no evidence
that this relationship was of particular concern to HL&P
management. The Jordan Report did not treat the issue, but was
directed toward particular security procedures. Hall and Randlett
claim, for example, that they did not see the OIG Report, and did
not discuss it with anyone. (C-49, 51; HL&P-130; HL&P-158 at 19-20,
Randlett; C-2 at 21-22; Tr. 1041-45, Hall) It is implausible,
however, that this issue involving the Randlett-Earnest
relationship was not significant, because it caused not only the
OIG inspection, which was unusual and would have been known to
involve potential misconduct by an NRC employee, but it engendered
the Jordan Report, the debriefings, and various other significant
responses from STP and demands upon its resources. In addition,
NRC Region IV management contacted Hall in November or December
1991 regarding a possible grievance action involving the NRC
inspector who previously conducted security inspections at STP.
This made it probable that someone in the NSD had complained to the
NRC about the inspector's conduct. As a result, Kinsey wrote a
memorandum directed to the Licensing Department of STP and the NSD
advising them of possible NRC contact. Further, an STP employee
and the NRC Senior Resident Inspector at STP told OIG that it was
common knowledge that Lamb had been talking to the NRC. Regardless
of the merits of the issue, it is implausible that STP management
would not have been concerned with who and what caused the
inspection to happen.
The opinions of Lala, Williams, Pomeroy, Drymiller, Neal,
Smith, and Boone are properly considered with respect to
Respondent's knowledge of Claimants' protected activities and
[PAGE 61]
HL&P's allegedly retaliatory motive for terminating them. Lala
testified that he was aware that Lamb and Dean had gone to Speakout
and that he had also heard that they had been to the NRC. (Tr.
1946-47, Lala) Lala described general knowledge, and Lamb's
concern with safety violations and indication that he had to take
the concerns forward. He described rumors that Lamb had been to the
NRC. (Tr. 2021-22, Lala)
Boone testified that it was common knowledge that Dean and
Lamb had been to Speakout and/or the NRC, but he meant that they
had been interviewed, and not necessarily that they had "initiated
concerns," which he did not know for a fact. (Tr. 2694-96, Boone)
Pomeroy testified that he knew of the protected activities of Lamb
and Dean, that Balcom knew of the types of concerns that they had
been voicing, and that he believed that they were terminated
because they took their concerns to Speakout or management.
Pomeroy testified that he believed that Balcom was responsible for
the retaliation, and that Balcom knew of Dean's and Lamb's
protected activities, because Lamb and Neal, as supervisors, told
Balcom about the inaccuracies in the Tobin report. (Tr. 679-80,
Lamb; 2069, 2116-18, Pomeroy)
Neal knew that Lamb and Dean went to the NRC because he was
with them. He had also been pulled by Lamb into Drymiller's office
where Lamb told him and Drymiller that he thought he would be fired
for going to the NRC. Neal also testified that Lamb had told him
that Kinsey and Balcom would not speak to him. (Tr. 2921-22, Neal)
Smith believed that Lamb had been to Speakout and the NRC, and
believed that it was common knowledge within certain circles at STP
that Lamb had been to NRC, because he had conversations to that
effect with others in NSD. (Tr.A 192-94) Worth knew of Lamb's and
Dean's protected activities, because he participated in those
activities with them. It was his opinion that Lamb's and Dean's
protected activities got them fired. (Tr.A 24, Worth) Tapia, the
Senior Resident NRC Inspector at STP believed that it was common
knowledge at STP that Lamb, Dean, and Worth had been to the NRC
with their safety concerns. (C-2 at 30) While this generally
credible testimony does not prove that particular members of
management necessarily knew of the protected activities, it does
tend to prove the existence of an environment which corroborates
and strengthens the inference that knowledge was derived by
management from the conditions and circumstances which generally
obtained at STP.
These witnesses established the requisite rationally based
perception and the aid to understanding the issues required for
admissibility of their opinions by 29 CFR §18.701. The
perceptions
[PAGE 62]
of these witnesses were based on observations of management
practices at STP over time, and communications with their fellow
workers. Confusion over the meaning of "common knowledge" would
not render their opinions inadmissible. What is not clear,
however, is how representative and unbiased, and therefore, how
reliable their opinions and observations are. But their testimony
establishes that there were employees of HL&P who were well
situated to know who held those opinions.
In this regard, Complainants cite Boone's testimony that he
knew that Lamb and Dean had been both to Speakout and to the NRC
with their concerns regarding regulatory violations. (Tr. 2665-66,
Boone) He testified that Lamb and Dean were not secretive in this
regard, and had told him, and that others knew it as well. Boone
testified that to his knowledge at least six other persons in the
NSD knew of these activities. (Tr. 2666, Boone) In this regard, it
is significant that there were approximately seventeen people in
the NSD, and that in addition to Boone, Neal, Gregg, Worth, Moore,
and Drymiller knew that Lamb and Dean had been to the NRC. (C-13 at
68, Moore) Complainants assert that such a breadth of knowledge
supports the conclusion that knowledge of Claimants' communications
with the NRC was "common knowledge." Drymiller knew that
Complainants had contacted the NRC, because Lamb told Drymiller
that the NRC wanted to talk to him. (Tr.A 134, Drymiller)
I find that Kinsey knew to at least some degree of Dean's and
Lamb's protected activities, because he testified that as Vice-
President of Nuclear Generation he was responsible for the NSD; he
met with his subordinates, including Randlett, Hinson, and Moore,
on a daily basis; he was required to keep abreast of what was going
on in the NSD and to talk with his subordinates about developments
in the NSD. (Tr. 1081-84, Kinsey) Moreover, Dean testified that he
specifically discussed his opposition to Randlett on the management
key issue with Kinsey, and explained that he believed that the
change would violate both applicable regulations and the physical
security plan. (Tr. 713-14, Dean) This conversation occurred in
1988, and Kinsey did not deny that it had occurred, although he
testified that he did not recall it. (Tr. 1085, Kinsey) Kinsey was
involved in the Nuclear Safety Review Board's discussions of the
management key issue. A review of the documents pertinent to that
issue would have disclosed Lamb's opposition to the proposed
change, since Lamb refused to sign off, and wrote a memorandum to
the file stating his opposition. (C-1) Kinsey testified that
Randlett told him of his staff's concern regarding the propriety of
the change. (Tr. 1088, Kinsey) Kinsey admitted that Randlett might
have told him of Lamb's and Dean's opposition. (Tr. 1116, Kinsey)
Kinsey had seen the report on Concern 12204, which alleged that
[PAGE 63]
Lamb was retaliated against over the management key issue, but he
testified that he did not specifically recall that Lamb "was -- one
of the trouble makers of the key issue." (Tr. 1118-19, Kinsey;
HL&P-13) Though he professed not to recall Randlett's use of the
word "undermine," Kinsey recalled Randlett's telling him that he
thought Lamb "was making accusations about him and that he would be
going to jail and lose his job. (Tr. 1089-90, 1115-17, Kinsey)
With regard to the ensuing Speakout investigation of the
issues, including the management key issue, which Lamb and Dean had
been raising, Kinsey testified that he was aware that someone had
been to Speakout on the key issue, and that he had speculated that
it might have been Lamb going to Speakout with these violations.
Kinsey thought that, as a probable result of conversations with
Speakout personnel or Randlett, he had become aware that someone
had to be going to Speakout with regard to the management key and
power outage issues in the summer of 1991 when the Tobin
investigation took place. (Tr. 1111-15, Kinsey) Kinsey also
received and reviewed the report generated on Speakout Concern
12204, which referred to Concern 11881, which had been filed by
Dean and prepared with Lamb's assistance. It also referred to the
allegation that Lamb was retaliated against for opposing Randlett
on the management key issue. (Tr. 1111, 1113, 1115-16, 1118-19,
Kinsey; HL&P-13; C-16) Kinsey's involvement in the documentation
of Dean's altercation with Sheesley, and his related review of the
investigation materials and report, led to his admitted knowledge
that Dean had been to Speakout and to the NRC. (Tr. 1120-21,
Kinsey) Kinsey also admitted that Randlett had told him that he,
Randlett, believed that Lamb was making accusations against him and
undermining the NSD.
I find that Kinsey had the authority to terminate Lamb and
Dean and that he delegated that authority to Balcom, who effected
the terminations, which were approved by Kinsey. Kinsey, in
effect, had selected Balcom to succeed Randlett as head of NSD,
even though Balcom had no security training or background, which
was of concern to Hall. Kinsey had a long and close working
relationship with Balcom. In that sense Balcom was, in effect,
acting as Kinsey's agent or delegate.
Kinsey discussed the direction he wanted NSD to take under
Balcom, and Balcom cleared his reorganization proposals in detail
with Kinsey and Hall, obtaining their approval. Balcom insisted
that he never discussed any people when he met with Kinsey and
Hall, although he discussed "manloading," or the number of people.
Although Balcom testified that he could not have discussed what
individuals were going to lose their jobs, I find it impossible to
[PAGE 64]
believe that in discussing a unique and carefully contrived
downsizing of a small, technically specialized department, whose
personnel were thoroughly familiar to the decision makers, there
would not have been discussion of whose talents might be lost and
why, unless there was a tacit understanding that would have
obviated the necessity for such a discussion, or they were
professionally irresponsible. (Tr. 1151-53, Kinsey; 1228-29,
Balcom)
Management's concerns about legal consequences of such action,
revealed in Hall's direction to Balcom to work with HR, and which
were also revealed in connection with the handling of the Dean-
Sheesley incident a few months before, as well as Hall's and
Balcom's resort to the STEP device, shows that these management
personnel were thoroughly sensitive to the risks of targeting
employees for adverse action. Indeed, there is an inference that
can be drawn from Hall's testimony that the handling of the
incident would have identified Dean as a whistleblower. (Tr. 1003-
09, Hall) And Kinsey testified that his recommendation to Hall was
colored by the lawyers' concerns that Dean felt he was being
retaliated against and that there was a risk of whistleblower
litigation as a result. (Tr. 1120-22, Kinsey) These managers also
knew each other well enough so that a tacit understanding would
have been a plausible substitute for overt discussion.
I find that Jordan, who was the General Manager of Nuclear
Assurance at all relevant times, likewise, had knowledge of the
protected activities of Lamb and Dean. He oversaw QA audits of the
NSD, and Balcom, before his transfer from QA manager to NSD,
reported to him. Jordan discussed the problems in NSD with Balcom
when Balcom was QA manger, and sent Balcom to discuss with Randlett
the problems facing the NSD, including the management key and power
outage issues, which were set out in HL&P-130. Jordan was charged
by Hall with investigation of the "interpretive issues" related to
NSD, in which Lamb and Dean were deeply and conspicuously
involved.. (Tr.A 248-53, Jordan; Tr. 964, Hall; 2182-84, Jordan;
HL&P-130) In addition, Jordan participated in the debriefings of
all personnel interviewed by the OIG, which was investigating the
allegedly improper relationship between Randlett and Earnest, and
related issues. He would have learned that Lamb, Dean, Worth, and
Neal told the OIG that there was such an improper relationship
between Earnest and Randlett, unless he had insulated himself
artificially, because the credibility and significance of the
allegations would have depended upon the source or sources, and the
issue related to the basic integrity of the security system. (C-70)
Jordan testified that he obtained a copy of Speakout Concern
[PAGE 65]
11881 from Cink and investigated the issues involved in the
concern. He was also involved in the development and investigation
of Speakout Concern 12204, which had been initiated by Worth,
following detailed inquiry and discussion by Jordan with Worth
concerning "inappropriate management issues and reporting of
security incidents and events and improper handling of security
incidents by security management." That concern makes specific
references to Lamb's involvement in the management key issue, his
opposition to Randlett, and that he was routinely mentioned with
respect to retaliation. (Tr. 2176-85, 2253-55, Jordan) Jordan,
like Kinsey, was involved in the selection of Balcom to head NSD,
and testified that he was confident that Balcom would be able to
eliminate the problems of the type that NSD had been experiencing.
(Tr. 2308-09, Jordan) Those problems involved Lamb's and Dean's
dissents from decisions by management. As Claimants contend,
Jordan could not have failed to make the connection between Lamb,
and probably Dean, and these issues, and subsequently between Lamb
and Dean, these issues, and the Tobin investigation of the same
issues that Lamb and Dean had been raising, and had discussed in
their debriefings, if not with absolute certainty, with little room
for doubt. (Claimants' brief at 46)
In a different context, Balcom engaged Hinson and Moore to
prepare the SPP forms which were used to justify the terminations
of Lamb and Dean, allegedly under the STEP process. Hinson rated
Worth; Moore rated Lamb and Dean. Thus, Hinson and Moore had
substantial input into the decision to terminate Lamb and Dean.
Subject to what he called a "sanity check," and the resolution of
certain inconsistencies, Balcom adopted their rankings, at least
partly because he professed a lack of current knowledge, and so he
deferred to Hinson's and Moore's greater knowledge, rather than
make the choices himself. (Tr. 1422-25, 1429, Balcom)
Moore's awareness of Lamb's and Dean's activities extended at
least from 1988 through their terminations in May 1992. He knew of
their opposition to Randlett on the Management key issue, and heard
them voice their concerns that violation of regulations was
involved. Moore received Lamb's memo stating his concerns over the
management key issue. Moore testified that Lamb's and Dean's
opposition and belief that management was violating regulations in
this regard was well known within NSD. Moore, who identified
himself as management, testified that concerns regarding
noncompliance with regulations that Dean and Lamb had been raising
had been causing management problems for years. Moore was also
involved in the Speakout investigation of Speakout Concern 11881
which focused on issues he knew Lamb and Dean had been raising.
Moore testified that he knew that both Lamb and Dean had been to
[PAGE 66]
Speakout. (Tr. 1503-09, 1559-61, Moore; C-16) The DOL investigator
Perez recorded an admission by Moore during an investigative
interview that he was aware during the fall of 1991 that Lamb and
others had brought allegations to Speakout and the NRC. (C-13 at
68; Tr. 1562, 1566, Moore) In assessing what Moore "knew," it is
significant that he disclaimed knowledge that Balcom intended to
shrink the NSD, but "assumed" that NSD was going to be shrunk.
Moore also assumed that the reorganization was going to result in
terminations. (Tr. 1528-31, Moore) I find that such assumptions,
under the circumstances, were tantamount to knowledge that these
events would take place, and that Moore's judgments and actions
were based upon, or would have been significantly affected by those
assumptions.
3) Adverse Action HL&P's termination of the Complainants is clearly an adverse
action against each of them, and I find that Complainants have
proved this element of the requisite primafacie case
and their claims.
4)Causation - The Nexus Between Protected
Activity and Adverse Action
There is no requirement that HL&P, as the employer, have
knowledge of the full scope and detail of Dean's and Lamb's
protected activities, if it had sufficient knowledge of the
activity in general and of the activity qualifying under Brown
& Root in particular to provide an impetus for the terminations
which occurred. SeeFrancis v. Bogen, Inc., 86-ERA-8
(Apr. 1, 1988). In this case, there is a categorical denial by
HL&P of any knowledge whatever of the protected activity by Balcom
or any of the other decision makers who had any role in Dean's and
Lamb's terminations. However, there is convincing evidence that
HL&P's managers gave the term "knowledge" an artificially
constricted and self-serving interpretation, when there were
sufficient indicia of protected activities to generate serious
suspicions and inferences that could readily provide an appreciable
incentive to act adversely against the Complainants, and to effect
their terminations, however cleverly devised the process.
Complainants terminations are indisputably adverse actions by
the Employer against its employees. Complainants may establish a
primafacie case of discrimination if they have
demonstrated a sequence or pattern of suspicious circumstances from
which a reasonable inference may be drawn that their terminations
were effected in retaliation against the protected activity.
See[PAGE 67]
Mackowiak, supra at 1162. HL&P categorically denies
that Dean's and Lamb's protected activity affected in any way the
decision to terminate them in May 1992. Obviously, the presence or
absence of a retaliatory motive would be "provable by
circumstantial evidence even if there is testimony to the contrary
by witnesses who perceived lack of such improper motive." Ellis
Fischel State Cancer Hospital v. Marshall, 629 F.2d 563, 566
(8th Cir. 1980), cert. denied, 450 U.S. 1040 (1981);
Mackowiak, supra at 1162.
To the extent that STP's problems with security issues could
be traced to Dean's and Lamb's concerns, and their persistent
refusal to acquiesce in the decisions of management which they
believed to be erroneous, and which later became the subject of NRC
investigations, HL&P would have wanted to eliminate those two
employees under a new regime. If this incentive did not stem from
any particular concern of Lamb's and Dean's, it would have stemmed
from the cumulative effects of those concerns and how Lamb and Dean
pursued those concerns. Those concerns generated the internal and
external investigations of STP with their attendant pressures.
They focused STP's and NRC's attention on NSD, and Randlett's
shortcomings as an administrator. These factors surely caused
Randlett's departure from STP, even if he was not actually forced
out. Randlett's departure opened the way to a reorganization by a
new manager who had the confidence of higher management, a new
regime, and, if convenient, a related reduction in force, all of
which occurred. The chain of events that led to Balcom's
assumption of authority, and the remedial actions he took to deal
with what he perceived as the unsatisfactory conditions within NSD,
and led to his reorganization of NSD, thus support the inference
that they were causally related to Lamb's and Dean's concerns and
their persistence in seeking vindication of those concerns.
I find that Complainants produced ample evidence to support an
inference that HL&P retaliated against them because of their
complaints to the NRC. The issues that concerned them were well
defined and durable. These issues, which, for the most part,
started as conspicuous expressions of security concerns by Lamb and
Dean to HL&P management at STP, became the subject of NRC
investigations in which HL&P managers were intensely involved and
to which they were compelled to respond with a substantial
commitment of resources. The two Complainants were continuously
and conspicuously associated with these issues as they developed
from late 1988 through the spring of 1992. Among their responses,
HL&P's managers conducted their own investigations of the problems.
Key managers either knew or suspected that the Complainants had to
some degree caused these investigations by communicating with the
NRC, because of the issues involved, and because of the
interactions of closely associated STP personnel within the company
and with the NRC.
[PAGE 68]
The process that led to Complainants' terminations began days
after the last NRC report was completed and issued, and involved to
some degree virtually all of the key managers at various intervals
then and thereafter. That process, unique in various respects,
raised serious questions as to its impartiality and the necessity
of its selection and use. Those three who were terminated, Lamb,
Dean, and Worth, were the most conspicuous and persistent
whistleblowers who challenged management with their concerns
related to security issues. The manner of their discharge was
abrupt, if not brutal. Thus, the inference that the adverse
actions against the Complainants, Lamb and Dean, were motivated, at
least in substantial part, by their protected activities, and
HL&P's knowledge of those activities, is reasonable and soundly
based. I find that Complainants have established a primafacie case that their terminations violated the employee
protection provision of the ERA.
Rebuttal
If Complainants establish their primafacie case, as I find that they have, Respondent must
introduce evidence which, if believed by the trier of fact, would
suggest a finding that a legitimate nondiscriminatory reason was
the cause of the adverse employment action. SeeSt.
Mary's Honor Ctr. v. Hicks, 113 S. Ct. 2742, 2747
(1993); Carroll v. Bechtel Power Corp., supra, slip
op. at 9-12; Dartey v. Zack Co. of Chicago, supra,
slip op. at 8. Such proof must be satisfied with specific evidence
and corroborating documents. Priest v. Baldwin Assoc., 84-
ERA-30 (Sec. Dec. Jun. 11, 1986) slip. op. at 12-13. Respondent
has produced evidence of a legitimate, nondiscriminatory reason for
the terminations, which is the reorganization of NSD and reduction
in force purportedly justified by business considerations.
Respondent has thus satisfied its burden of production, "the
rebuttable presumption created by the prima facie showing drops
from the case," and "the answer to whether the plaintiff presented
a prima facie case is no longer particularly useful." SeeCarroll v. Bechtel Power Corp., supra, slip op. at
11, citingTexas Dept. of Community Affairs v.
Burdine, 450 U.S. at 255, n. 10. St. Mary's Honor
Ctr. at 2748; Goldman v. First Nat'l Bank, 985
F.2d 113 (1st Cir. 1993).
Complainants have the ultimate burden of persuasion, which
requires them to prove that the reason articulated by HL&P was
pretextual, and that the real motive for the adverse actions was
retaliatory, or intentionally discriminatory on a forbidden basis.
SeeSt. Mary's Honor Center v. Hicks, supra;
Pillow v. Bechtel Constr., Inc., 87-ERA-35 (Sec. Dec.
Jul. 19, 1993), slip op. at 14, n. 10. If, however, a respondent
employer's adverse action
[PAGE 69]
against an employee was motivated by both prohibited and legitimate
reasons, the dual motive doctrine applies, and the respondent
employer must prove by a preponderance of the evidence that it
would have taken the same action concerning the employee, even in
the absence of the protected activity. SeePillow v.
Bechtel Constr., Inc., supra, slip op. at 14-15 (citing
Dartey, slip op. at 8-9); Mackowiak, 735 F.2d at
1163-64; Mt. Healthy City School District Board of Education v.
Doyle, 429 U.S. 274, 287 (1977); Price Waterhouse v.
Hopkins, 490 U.S. 228, 252 (1989)(plurality opinion). In this
regard, Complainants must still prove that it is more likely than
not that discrimination motivated Respondent's action.
DeFord v. Secretary of Labor, supra; House
v. TVA, 91-ERA-42 (Sec. Dec. Jan. 13, 1993, slip op. at 4);
Bartlik v. TVA, 88-ERA-15 (Sec. Dec. Apr. 7, 1993).
A complainant may carry his burden of proof by direct or
circumstantial evidence. SeeUnited States Postal Service
Bd. of Governors v. Aikens, 460 U.S. 709, 103 S. Ct. 1478
(1983); Ellis Fischel State Cancer Hosp. v. Marshall, 629
F.2d 563, 566 (8th Cir. 1980) citedinBartlik
at slip. 3. Disparate treatment evident in the employer's actions
is particularly material to proof of legitimate and illegitimate
motives. SeeDonovan ex. rel. Chacon v. Phelps Dodge
Corp., 709 F.2d 86 (D.C.Cir. 1983). If direct evidence of
discrimination exists, and it is not effectively rebutted, a
respondent can avoid liability only by showing it would have taken
the same action in the absence of protected activity. Blake v.
Hatfield Elec. Co., 87-ERA-4 (Sec. Dec. Jan. 22, 1992, slip op.
at 5-6).
In the Fifth Circuit where these claims were brought, the
applicable law is unsettled in significant respects. The Circuit
has not determined the appropriate allocation of the burden of
persuasion in a retaliatory-discharge case under Section 210 of the
ERA. SeeDunham v. Brock, 794 F.2d 1037, 1039 n. 2
(1986). Nor has the Circuit decided whether to apply to
whistleblower claims under the ERA the shifting burden test for
dual-motive discharge cases established in the First Amendment
retaliatory-discharge case of Mt. Healthy City School District
Board of Education v. Doyle, 429 U.S. 274, 287, 97 S. Ct. 568,
576 (1977), as applied in Consolidated Edison Co. of New York v.
Donovan, 673 F.2d 61, 62 (2d Cir. 1982); Mackowiak v.
University Nuclear Systems, Inc., supra at 1163-64.
Nonetheless, following the decision in St. Mary's Honor
Ctr., supra, it may be assumed that the Claimant must
ultimately meet the burden of establishing that the discharge was
discriminatory. In fact, such an interpretation appears consistent
with the Fifth Circuit's standard in Title VII retaliation cases
that requires the plaintiff to show that "but for" the protected
[PAGE 70]
activity, the termination would not have occurred, notwithstanding
the other legitimate reasons advanced by the defendant. Jack v.
Texaco Research Center, 743 F.2d 1129, 1131 (5th Cir.
1984). As discussed, infra., I find
that the Complainants have met the required burden and have
established that, but for their protected activities, they would
not have been terminated, and that their terminations were the
result of discriminatory actions by HL&P motivated by their
protected activities which culminated in their contacts with the
NRC.
Pretext/Dual Motive
Complainants contend that HL&P's reorganization of NSD was a
mere pretext for the elimination of employee disagreement such as
theirs with management decisions. In the alternative, they contend
that HL&P had a dual motive for their terminations. There is
evidence which would support the inference that the reorganization
was pretextual. However, the evidence viewed as a whole
establishes that any need for the reorganization itself was largely
a response to the pressures that Dean and Lamb had been generating
and a perceived need to eliminate the fountainheads of those
pressures, especially those related to the NRC. Nevertheless, the
reasons HL&P has stated for the reorganization of the NSD are
sufficiently plausible to require consideration of the dual motive
doctrine.
An analysis of the "dual motive" possibility is required under
circumstances in which the adverse action might have been motivated
by two factors, one legitimate and one prohibited. SeeFrancis v. Bogan, supra at n. 1; Palmer v. Western
Truck Manpower, 85-STA-6 (Sec. Dec., Jan. 16, 1987). Under the
rule in Texas Dept. of Community Affairs v. Burdine, 450
U.S. 248 (1981), an employee must show that the adverse action
taken by the employer was, more likely than not, the result of the
protected activity. The legal standard for "dual motive"
discharges under the ERA, is explained in Mackowiak. As
noted above, once it is found that retaliation "was at least a
motivating factor" in a discharge, and that the employer also had
legitimate business reasons to terminate the employee, the test for
"dual motive" discharges developed in Mt. Healthy applies.
Mt. Healthy's two-part test for "dual motive" cases
requires that, once the complainant has shown that the protected
activity "played a role" in the employer's decision, the burden
shifts to the employer to prove that it would have discharged the
complainant, evenif the protected activity had not
occurred. Ostrowski v. Atlantic Mut. Ins. Cos., 968 F.2d
171, 181 (2d Cir. 1992); Mackowiak, supra. It has
been held that the employer bears
[PAGE 71]
the risk that the influence of legal and illegal motives cannot be
separated because the risk was created by his own wrongdoing.
SeeMackowiak, supra at 1164. In light of
St. Mary's Honor Ctr., supra, however, it may be
assumed that the Claimant must ultimately meet the burden of
establishing that the discharge was discriminatory. Without such
evidence of a dual motive, Complainants would have to prove that
the reorganization was a mere "pretext" to discriminate against
them because of their protected activities.
Mackowiak, supra; St. Mary's Honor
Ctr., 113 S. Ct. at 2746-48. In the Fifth Circuit, the
standard may be the more restrictive "but for" test, which would
require Complainants to show that "but for" their protected
activity, the termination would not have occurred, notwithstanding
any legitimate reasons advanced by HL&P. SeeJack v.
Texaco Research Center, supra.
In this case, HL&P's proof becomes especially difficult,
partly because of the strong indications that the reorganization
was itself a response to the Complainants' protected activities,
and partly because of the extent to which the effects of the
protected activities permeated and tainted the evaluation process
which resulted in the selection of Lamb and Dean for termination in
conjunction with that reorganization. The lack of urgency or
budgetary necessity, and the timing and character of the
reorganization undercut's Employer's claims of legitimacy. The
evidence also supports an inference that Dean and Lamb were
subjected to disparate treatment in comparison with other similarly
situated employees. The process by which the reduction in force
was effected, and evaluation which preceded it, and on the basis of
which the terminations were justified, raise this issue.
SeeO'Brien v. Stone & Webster Eng'g Corp., 84-ERA-31
(ALJ Dec., Feb. 28, 1985). As in the case at bar, where the
termination is of a worker engaged in protected activity, evidence
of disparate treatment can be circumstantial evidence that the
carefully orchestrated and unique use of the forced competitive
evaluation process, reorganization, and related reduction in force
comprised a mere pretext for the elimination of targeted employees,
in this case Lamb, Dean, and Worth. SeePriest v.
Baldwin Assocs., 84-ERA-30 (June 11, 1986). The abruptness of
the terminations, and the failure to allow Lamb and Dean even the
normal opportunity to find alternative employment within the
company, is compelling evidence of disparate treatment that tends
to prove a discriminatory motive.
Conclusion
From the myriad details of the record, I conclude that HL&P's
adverse action against Dean and Lamb was motivated by a desire to
[PAGE 72]
put an end to their concerns with, and challenges to, HL&P's
management decisions. Dean's and Lamb's concerns had a well
established history of contacts with NRC and NRC investigations.
Lamb's and Dean's concerns, confrontations with management, and
complaints to Speakout and the NRC were widely known directly and
indirectly in a relatively small environment where the players were
well known to each other and interactions were continuous. The
issues were well defined and readily traceable. Dean and Lamb were
conspicuous and outspoken concernees. The pursuit of the issues
took place over a substantial period of time and affected many
people. They resulted in significant responses by STP to the
resulting NRC investigations, including internal investigations,
reports, and debriefings.
While the various managers may not have known to a certainty
all the details of Lamb's and Dean's interactions with the NRC,
following their concerns expressed internally at STP, they were
sophisticated and had enough pieces of the puzzle to be charged
with the knowledge required to establish the nexus between their
adverse actions and the Complainants' protected activity. Balcom
and Kinsey had a long working relationship, and apparently knew
each other quite well. Frequent briefings, audits, and other
management interactions, relating to contentious and well defined
issues involving conspicuous personalities could hardly have
avoided tacit understandings and meetings of minds among the
managers, including Balcom and Kinsey, who were responsible for the
adverse actions. The identification of action advantageous to
HL&P, under such circumstances, would not have required a great
deal of explicit agreement. Since Dean and Lamb were the other
half of the confrontational equation with Randlett, the departure
of Randlett obviously did not resolve the problems at NSD from
HL&P's point of view. Those that were left in the NSD after Dean,
Lamb, Worth, and Neal were gone were likely from past history to be
basically compliant team players.
The downsizing of NSD which resulted in Dean's and Lamb's
terminations was historically unique at NSD and, apparently, STP.
It followed assurances by responsible management that downsizing
would not occur at that time. It was not a part of a wide
reduction in force at STP. Those eliminated were by all
appearances the most conspicuous and persistent whistleblowers at
NSD. No employee who was not a whistleblower was terminated. It
also is odd that Dean, unlike other NSD employees who followed
their transferred responsibilities, did not follow the Safeguards
Information responsibilities which were his particular expertise to
its new location in a different department. Moreover, although
there were some possibly constructive changes that were made as a
[PAGE 73]
result of Balcom's reorganization, neither the complexity of the
objectives nor any budgetary or other urgency seems to have
required the adverse actions which resulted. Indeed, Lamb's and
Dean's protected activities, their confrontations with Randlett,
and their pursuit of their concerns through channels and to the NRC
could be considered to have been, and I find were probably the
primary cause of the reorganization of NSD, since they identified
significant weaknesses in the system. On that rationale, but for
the protected activities, the need for reorganization following
Randlett's departure probably would not have arisen as it did. And
but for the Complainants' protected activities, including their
contacts with the NRC, there would have been no compelling need or
desire on HL&P's part to terminate three or four competent
employees. Thus, I also find that HL&P has not proved that it
would have terminated Dean and Lamb without regard to their
protected activities.
Balcom's abruptness in handling the terminations, his refusal
to allow bumping, and his failure to provide notice to Lamb and
Dean to allow them to seek other employment within the company,
bespeak retaliation. Balcom's alleged inquiries regarding
alternative positions are not convincing. Lamb was a technically
proficient employee with a solid performance record, as proved by
his annual performance evaluations. Dean had distinctive expertise
on classified document handling, if a less distinguished
performance record than Lamb's, and was situated like Lamb vis-a-
vis HL&P's adverse action. These considerations are consistent
with the conclusion that the selection and adaptation of the SPP's
as an element of the STEP process was contrived to facilitate a
preconceived objective. The elimination of the annual performance
appraisals in the spring of 1992, at the time of the
reorganization, together with the adoption of the unfamiliar SPP's,
which could be readily manipulated by unarticulated subjective
input, impeaches the integrity of the process and tends to prove
that it was unfairly applied to the whistleblowers to achieve
predetermined results.
Viewing the record as a whole, I find that the methodologies
used by Balcom in effecting the reorganization and terminations,
the categorical denials of knowledge of the protected activities by
the HL&P managers, and the virtual omnipresence of legal counsel at
critical junctures, disclose an artifically contrived effort to
insulate the managers from the kinds of information and awareness
that sophisticated and diligent managers in such a small and
technical environment normally would have had. There is
substantial evidence, which with reasonable inferences based upon
it, rises to a preponderance, that those managers who were involved
[PAGE 74]
in Dean's and Lamb's terminations did have knowledge sufficient to
cause them to act as they did, adversely to Dean and Lamb. This is
so notwithstanding the protective confidentiality which normally
would attend the proper processing of whistleblowers' concerns. An
obvious indication of a retaliatory motive was the assignment of
negative points to Lamb for a "failure to be supportive of
management decisions." Dean's and Lamb's confrontations with
management evolved into and mirrored their concerns expressed to
the NRC, which investigated those concerns. Given the
circumstances of this case, Balcom's concern with internal
discipline, and his intimate involvement with the SPP's, those
negative points must have reflected antagonism toward
whistleblowing, and are indicative of adverse action against
whistleblowers. They cannot reasonably be construed merely as mere
benign criticism of failure to be team players. Lambs negative
points, like Dean's negative points, were critical factors in the
process that led to their respective terminations. Thus it is
apparent in the context of this case, that HL&P's adverse action
was directed at least as much against Dean's and Lamb's protected
activity as any other cause, and, therefore, HL&P acted unlawfully
in terminating Dean and Lamb.
I find it incredible that at no time during the planning and
approval process for the reorganization, would Balcom have
discussed the particular individuals who would be affected by the
reorganization. Those individuals were well known to the managers.
Such an omission might be understandable, however, if the managers
involved knew, or at least tacitly understood, who the affected
employees would be. Based on the circumstantial evidence, my
observation of the witnesses at the hearing, and my consideration
of their testimony in context, I conclude that the categorical
denials of knowledge of the Complainants' protected activity are
not credible. I conclude that, after a long history of problems
such as STP had in relation to NSD, a convenient, but clearly
elective, reorganization of a single relatively small and
technically specialized department is not a legitimate cover for
getting rid of whistleblowers, and only whistleblowers, who
identified many of the most significant problems. I therefore find
that the Complainants have satisfied their burden of proof by
showing that retaliatory or discriminatory motives were the
predominant cause for their terminations, and, indeed, that their
terminations would not have occurred but for their protected
activity. Thus, they are entitled to relief from HL&P's unlawful
adverse action.
HL&P's Motion To Dismiss and/or for Summary
Disposition of Dean's Complaint[PAGE 75]
Prior to the hearing HL&P filed a motion to dismiss Dean's
complaint brought pursuant to §210(a) of the ERA, or, in the
alternative, for summary disposition of that complaint, because
about a year after Dean's termination a document alleged to contain
Safeguards Information was discovered unprotected in Dean's
recently abandoned apartment. Dean contends that he did not have
possession of the document, and that the document does not contain
Safeguards Information, so that both of HL&P's contentions must
fail. (Tr. 388-89S, Dean)
The motion was based upon two propositions. First,
§210(g) of the ERA provides,
Subsection (a) of this section shall not apply with
respect to any employee who, acting without direction
from his or her employer (or the employer's agent),
deliberately causes a violation of any requirement of
this chapter or of the Atomic Energy Act of 1954, as
amended.
Citing English v. General Electric Company, 683 F. Supp.
1006, 1014 (E.D. No. Car. 1988), aff'd on other grounds, 871
F.2d 22 (4th Cir. 1989), rev'd on other grounds, 496 U.S. 72
(1990), HL&P contends that, even if it violated §210(a) of the
ERA by discharging Dean because he voiced concerns about nuclear
safety, Dean is absolutely barred from obtaining redress if he has
caused a deliberate violation of any nuclear safety
requirement. HL&P contends that such a violation should be
inferred from the discovery of the document as alleged in Dean's
abandoned apartment.
Second, relying on the after acquired evidence doctrine
articulated in Summers v. State Farm Mutual Insurance, 864
F.2d 700 (10th Cir. 1988), and similar authorities, HL&P also
contends that Dean's complaint should be dismissed, because HL&P
would have fired him for unauthorized possession of the Safeguarded
document if HL&P had been aware of Dean's possession of the
document before Dean was actually terminated in May 1992. The
motion to dismiss was denied at the commencement of the hearing
because material facts were in dispute. Since the hearing, the
Supreme Court has decided McKennon v. Nashville Banner
Publishing Co., 115 S. Ct. 879 (1995), which holds that an
employee who proves a discriminatory discharge is not barred from
all relief if the employer, subsequent to the discharge, discovers
evidence of wrongdoing that, by itself, would have led to the
employee's discharge on lawful and legitimate grounds had the
employer known of it at the time of the discharge.
[PAGE 76]
Facts
The operative facts are these. On May 31, 1993, approximately
a year after Dean was terminated by HL&P, he suddenly vacated his
apartment, apparently for lack of funds, after having just renewed
his lease for six months on May 1, 1993. He returned the keys to
the manager, with a note indicating that he was abandoning the
remaining contents of the apartment. On June 2, when the manager
inspected the messy premises, he found, among other things, what
ultimately amounted to nine large boxes of documents related to STP
and HL&P. The manager secured the apartment and contacted HL&P.
HL&P personnel, after consulting with counsel, went
approximately two hours later to take possession of the abandoned
documents, which they transferred to the STP site. After further
consultation with counsel, Garris arranged the assignment of
Rainosek and Monteith to inventory them. Garris learned from the
apartment manager that the apartment had been occupied by Dean,
whom he knew of as working in NSD. The inventory process began on
the afternoon of Wednesday, June 2, and was completed the following
week. Gutterman, as legal counsel, was aware of the process.
One of these documents that were recovered and inventoried in
June 1992 contains what HL&P alleges to be Safeguards Information.
Monteith first discovered the document on Thursday, June 3, 1993.
He commented that he thought it was Safeguards, and Rainosek called
Gutterman. Gutterman examined the document, and then he, Rainosek,
and Monteith took the document to Balcom. Rainosek testified that
they told Balcom that the document had been found off site, but
then purposely did not tell Balcom that it had been found in Dean's
apartment, in accordance with an understanding reached when the
documents were recovered. Balcom summoned Drymiller, as a
classification officer in NSD, who, according to Rainosek and
Drymiller, was told what had been told to Balcom. Drymiller opined
that the document was Safeguards Information, and took custody of
the document. Drymiller then confirmed its origin and status to
his satisfaction by reviewing logs and other information. (Tr.
2727, 2729-33 VanValkenburg; 2741-43, 2749-51, Garris; 2773, 2784-
93, Rainosek; 2824-28, 2996-3001, Drymiller; HL&P-113, 114, 117)
The document was an undated draft of a letter and enclosures
from HL&P to the NRC purporting to transmit certain changes to the
STP Physical Security Plan and Security Personnel Training and
Qualification Plan dating from 1987. (HL&P-114) (Tr. 2826-27,
Drymiller) HL&P contends that Dean's possession at his apartment
of such a document containing Safeguards Information prior and
subsequent to his termination was a deliberate violation of NRC
[PAGE 77]
regulations adopted pursuant to the Atomic Energy Act of 1954, 42
U.S.C. §2011, and of HL&P's internal security procedures
concerning Safeguards Information.
Dean first denied any recollection of having seen the
document, or of having taken it to his apartment. Then at the
hearing, having examined the redacted version of the document, Dean
denied that the document was in his apartment, and suggested that
it had been planted by HL&P. Dean testified that he believed that
he would have noticed the document while reviewing his papers in
preparation for trial. (Tr. 352-53S, 358S, 369-70S, 388S, Dean)
Dean described the papers he left in the apartment as "a collection
of NUREGs, regulatory guides, various HL&P memos, note and drafts
that [he] had taken down through the years, several reference
books, related to security and nuclear power, background
information [he] used for [his] certified protection exam." (Tr.
351-53S, Dean)
By reason of experience and job description, Dean was
thoroughly familiar with the security requirements for Safeguards
Information. He had been a classifications officer for more than
four years. (Tr. 386S, Dean) There is no dispute that his duties
required him to handle large amounts of Safeguards Information, and
it appears that he was generally conscientious in that regard,
despite three written reminders in 1988, 1990, and 1991 for
apparently negligent failure on three separate occasions to control
particular Safeguards Information properly. At the time of his
termination on May 4, 1992, however, Dean was also on a form of
probation following his being placed in November 1991 on "decision
making leave," a form of discipline which made his employment
status precarious.
Safeguards Information Status
Dean contends that, despite the document's being stamped
Safeguards Information on its last page and despite boilerplate
language in the draft cover letter indicating that secure handling
was required, the document did not, in fact, contain substantive
Safeguards Information. The argument was based on the current
status of the document, the fact that it was an undated draft
document, and on expert opinion that the contents of the document
were not properly classified as Safeguards Information. As a draft
document, it would normally have been handled differently from a
document in final form classified as Safeguards Information. The
draft document would normally have had a short span of utility,
and, therefore, would normally have been destroyed promptly and in
the ordinary course. This undated draft document, some of whose
[PAGE 78]
contents were superseded in the final document, appears to have
been both stale and obsolete when discovered. Thus, there would
have been no reason for Dean to have kept the document because of
its substance, especially since that substance was shown to have
changed in subsequent drafts.
Dean's arguments are plausible and reasonably persuasive.
There is virtually no likelihood that any of the undated contents
of the draft document found in Dean's apartment would have been of
the slightest use to anyone, let alone a spy or saboteur. However,
it is also clear that the Safeguards classification implied in the
cover letter and reflected in the stamped label on the last page of
the document reflects a technical and apparently bona fide
application of professional judgment, presumably at the time the
document was prepared. There is no evidence that the document was
decontrolled. I find, therefore, that the controlling fact is that
the document contained overt indicia, the Safeguards Information
stamp and boilerplate directive in the cover letter, which would
make obvious to a lay person as well as someone with Dean's
expertise, that it contained Safeguards Information and had not
been decontrolled. That fact should have controlled its status and
handling by anyone, including Dean. It follows that, if Dean's
possession of the document is inferred from its presence among the
abandoned effects in his apartment, there would be at least a
technical violation by Dean of the ERA's security requirements.
Possession; Related Inferences
The chain of custody of the documents recovered from Dean's
apartment might be imperfect, but the nature and age of the draft
document under the circumstances make it very unlikely that the
document would have been planted by HL&P as implied by Dean. (2747-
50, Garris; 2783-84, Rainosek) The manner in which the documents
were retrieved and inventoried, and the incentives behind the
process, make the contamination of the process by an extraneous
document of such a nature most unlikely. The conflicting
assertions by Dean regarding its alleged presence among his
abandoned effects in the apartment undercut his credibility, but
are not affirmative evidence of possession or knowledge. Dean's
possession of the document may fairly be inferred under the
circumstances from its discovery among the material left in his
recently abandoned apartment. Possession of the document at the
apartment may be presumed to have been unauthorized, in the absence
of a showing to the contrary, if it qualified as Safeguards
Information.
Assessment under ERA §210(g)
[PAGE 79]
Whether, under the circumstances of this case, Dean's inferred
possession of this document would constitute a deliberate violation
of a nuclear safety requirement or an unauthorized disclosure in
violation of the Atomic Energy Act is doubtful. I find that it
does not. Section 210(g) requires deliberate causation of
any violation of the ERA or the Atomic Energy Act, which must not
be at the direction of the employer, HL&P. There is no allegation
or suggestion of employer direction. The lapse of several years
between the time that the draft document was apparently created in
1987, when it would have had currency, and the time it was culled
by HL&P and identified as Safeguards Information in May 1993,
severely attenuates the normal inferences of knowing possession,
knowledge of origin, and guilty possession which could be derived
by analogy to the criminal law's inference from unexplained
possession of recently stolen property.
There is no affirmative evidence that Dean's possession of the
document was knowing, let alone deliberate. If he had recognized
the document as being Safeguards Information, it would have been
irrational for Dean to have assumed the risk of knowingly or
deliberately having and maintaining possession of such an obsolete
and apparently useless document five years after it was created.
Presumably, the document would have been destroyed in the ordinary
course. The document was the only document of its kind culled from
nine large boxes of documents, and its existence among that mass
was not proved to be deliberate. The hypothesis of an accidental,
if inexcusable, oversight resulting in negligent possession of a
nondecontrolled Safeguards document is at least as reasonable on
the record before me than that of a deliberate violation of the law
in the circumstances of this case, and I find on this record that
the former hypothesis is more reasonable.
HL&P, therefore, has not proved that Dean's possession of the
document, inferred from the circumstances, was a deliberate
violation of nuclear safety requirements such that, if sanctions
were not invoked, the violation would promote or countenance an
abuse of the protections which might otherwise be afforded to Dean
by §210(a). See generally, English v. General Elec.
Co., 496 U.S. 72, 110 S. Ct. 2270, 2280 (1990) I find,
therefore, that Dean should not be barred from relief by
§210(g) of the ERA.
Assessment Under After Acquired Evidence Doctrine
The application of the after acquired evidence doctrine
creates greater difficulty. Dean's employment status was allegedly
so precarious that Balcom testified that his termination would have
been mandated if HL&P had known of his possession in his apartment
[PAGE 80]
of the Safeguards document in question. That contention is
plausible. Dean had three reprimands for deficient handling of
Safeguards Information. The last of these warned of possible
termination in the event of another such incident. In addition,
the Dean-Sheesley incident was significant enough that Dean was put
on "decision making leave" and on an essentially probationary
status. He was not fired at the time, as Randlett urged, because
of a considered and advised decision by Kinsey. Although Dean
thought retaliation was involved, I am not persuaded that the
outcome of the incident was so tainted, or, because of its
spontaneity, that it was a pretext for any improper purpose. Even
if HL&P's judgment in this regard were tainted by the
discriminatory action which led to Dean's termination, it is
impossible to determine whether, or to what extent, an improper
motive might have predominated, or that the disciplinary action
taken was unjustified under the circumstances, even recognizing
that Dean and Sheesley, his supervisor, had little use for each
other.
As noted, the age of the document, the status of the document
itself, and the questionable status of the substantive contents of
the document as Safeguards Information indicate that, at most, a
technical violation of Safeguard Information security requirements
was involved. The fact that there was only one such document in
the nine boxes of documents inventoried suggests that a negligent
oversight involving a relatively insignificant document and no
substantial security risk, led to the presence of the document
among Dean's effects. The record as a whole demonstrates quite
clearly that Dean's motives, like Lamb's, were based, not on self-
aggrandizement, but on a genuine concern, whatever its wisdom, for
the improvement of security at STP. Nevertheless, the wholly
fortuitous discovery of the document by HL&P as a consequence of
the events put in motion by HL&P's discharge of Dean does not, as
a matter of law, preclude HL&P's use of that discovery as a
legitimate basis for Dean's discharge. SeeMcKennon
at 886.
Dean's negligent possession of the document might appear less
serious than those situations involving resume fraud, falsified
documents, or unauthorized removal of confidential files,
discovered after the alleged discriminatory action and utilized as
after-acquired evidence to justify independently a contested
personnel action. CompareSummers,
supra (multiple additional falsifications
while on probation); O'Day v. McDonnell Douglas Helicopter
Co., 784 F. Supp. 1466 (D. Ariz. 1992), Bonger v. American
Water Works, 789 F. Supp. 1102 (D. Colo. 1992), and McKennon
v. The Nashville Banner Publishing Co., 797 F. Supp. 604 (M.D.
Tenn. 1992)(removal and copying of multiple confidential
[PAGE 81]
documents). However, absent a showing of what would be a clearly
arbitrary discharge by HL&P, or what would be a discharge
inextricably responsive to unlawful motives, it is not appropriate
for me to substitute my judgment of the severity of this act of
negligence under the circumstances for that of the employer. The
issue, therefore, is whether HL&P would, in fact, have discharged
Dean for this negligent act, and not for reasons related to Dean's
protected activities, had HL&P known of it at the time of Dean's
termination on May 4, 1992.
While I have substantial doubt that the document would
properly qualify as current Safeguards Information, HL&P has proved
a colorable claim or reasonable cause to believe that it does. The
document bears objective evidence of what appears to be unmodified
standard warnings of controlled status. Thus, although the
technical violation alleged is attenuated and deminimis, I must conclude that HL&P would have fired Dean had
it known of the presence of the document in his apartment on May 4,
1992, even though I doubt that, but for Dean's probationary status,
and the history of three prior violations, "the wrongdoing was of
such severity that the employee in fact would have been terminated
on those grounds alone if the employer had known of it at the time
of the discharge." SeeMcKennon at 886-87. It seems
quite clear, however, that, unless enjoined, HL&P would have
discharged Dean, under the circumstances, on that ground, which,
under the circumstances, may be deemed legitimate and not wholly
unjustified, or would lawfully discharge him on that separate
ground if he were ordered to be reinstated as a remedy for his
discriminatory discharge.
Conclusion
Therefore, because his discharge on May 4, 1992, was effected
in violation of the ERA, Dean is entitled to back pay from May 5,
1992, until May 31, 1993. No extraordinary equitable circumstances
further affect the relief to which he is entitled. The motion,
therefore, is denied with respect to the bar under §210(g) of
the ERA, and is granted in part and denied in part with respect to
the relief HL&P has sought based on the after acquired evidence
pursuant to McKennon.
The Remedy
If a respondent is found to have violated the ERA, "the
Secretary shall order the person who committed such violation to
(i) take affirmative action to abate the violation, and (ii)
[PAGE 82]
reinstate the complainant to his former position together with the
compensation (including back pay), terms, conditions, and
privileges of his employment. . . ." 42 U.S.C. §5851(b)(2)(B).
SeePillow v. Bechtel Constr., Inc., supra,
slip op. at 25; see generallyWells v. Kansas Gas & Elec.
Co., 85-ERA-72 (Sec. Dec. Mar. 21, 1991) slip op. at 17. In
addition, "the Secretary may order such person to provide
compensatory damages to the complainant" and shall assess costs and
expenses, including attorney fees, reasonably incurred in bringing
the complaint. Id.;
DeFord v. Secretary of Labor, 700 F.2d 281, 288-89, 291 (6th
Cir. 1983). A complainant is entitled "only to recover damages for
the period of time he would have worked but for wrongful
termination; he should not recover damage for the time after which
his employment would have ended for a nondiscriminatory reason."
SeeBlackburn v.Martin, 932 F.2d 125, 129
(4th Cir. 1992). A complainant may also be awarded compensatory
damages for pain and suffering, mental anguish, embarrassment, and
humiliation. DeFord, 700 F.2d at 283. Such an award may be
supported by the circumstances of the case and testimony about the
physical or mental consequences of retaliatory action. SeeLederhaus v. Paschen, 91-ERA-13 (Sec. Dec., Jan. 13, 1993)
slip op. at 10.
In their opening statement, Complainants declared their
explicit claims for relief. On their behalf, counsel expressly
identified "abatement of the discriminatory conduct, full
restoration of their positions with all privileges, welfare or
retirement benefits, medical insurance, everything that they had at
the time they were terminated, all back pay with interest,
compensatory damages for [extensive] metal anguish...." They also
sought compensatory damages for extensive damages to their careers,
injunctive relief against future discriminatory conduct, and to
protect against termination without good cause, a directive to HL&P
to establish an effective system for addressing internal complaints
in lieu of the Speakout program. Complainants sought exemplary
damages based on allegedly egregious facts. (Tr. 123-24)
Neither party briefed these issues. The focus of the
testimony was upon the merits of the claims. The focus of the
briefs of both parties was upon the difficult and complex issues of
entitlement based on the extensive record in this case. Also,
Complainants suggest in their reply brief that "HL&P lost the trust
of the NRC which shut their operations down in February of 1993,"
but that event, of whatever significance to this case, is dehors
the record. (Complainants' reply brief at 20) Nevertheless, such
an event could substantially affect the character and scope of the
relief available.
[PAGE 83]
With respect to damages, Lamb testified generally as to the
financial and personal effects the termination had upon him. He
described serious emotional impacts, marital problems, loss of
income from his salary of approximately $50,083 at the time of
termination, the loss of job security, and of very substantial
anticipated future earnings and benefits at HL&P. He described his
frustration in seeking employment, and his costs of job search
estimated to be about $4000. He described being forced to sell his
house without profit when he could no longer make the mortgage
payments. He described invading all of his savings of about
$33,000, and his wife's savings of about $7000. He described his
accumulation of undischarged indebtedness and resulting insolvency
or possible bankruptcy in the near future. He described his loss
of health insurance for himself and his wife, and his acceptance
after an extensive search for employment of a job selling marine
supplies at $9 per hour or at greatly reduced earnings of about
$17,800 per year. (Tr. 373-91, Lamb; C-67)
Dean testified that at the time he was terminated he was
earning a salary of approximately $35,600 per year, or
approximately $2,966 per month. He described a frustrating effort
lasting about fourteen months to find employment, which resulted in
his securing a part time minimum wage job delivering pizzas
beginning the month before the hearing. With tips he estimated his
earnings to be $145-50 per week or $600 per month. Dean described
the loss of his apartment, and inability to get a lease because of
his unemployed status, and reduced circumstances to an
unairconditioned room in a boarding house. He described using up
savings of over $15,000, his loss of health insurance coverage, the
forced sale of all of his possessions, and the emotional impact of
his experience. (Tr. 808-15, Dean; C-26)
The record that has been developed establishes that Lamb is
entitled to reinstatement to his former supervisory position, or
its equivalent, without penalty or disadvantage, with back pay
beginning at the rate of compensation he was paid when wrongfully
terminated on May 4, 1992, with interest until the date paid. He
is entitled, at least, to the restoration of all employment
benefits and entitlement that obtained when he was discharged.
Because of the application in this case of the "after acquired
evidence" doctrine, Dean is not entitled to reinstatement. He is
entitled to back pay beginning at the rate of compensation he was
paid when he was wrongfully terminated on May 4, 1991, until the
date that the document allegedly containing Safeguards Information
was identified as such by HL&P on June 3, 1993. (Tr. 2822-24,
Drymiller) He is entitled to the restoration of all employment
benefits and entitlement that obtained when he was discharged, or
their comparable cash value to the extent that they cannot be
provided in kind without his formal reinstatement.
The instant record does not support an award of exemplary
damages, and that claim is rejected. In the absence of specific
proof and adequate briefing as to either entitlement or quantum
related to claims for compensatory damages, the parties are
authorized to file an appropriate petition for supplemental relief,
together with supporting points and authorities, or to negotiate
and agree to a settlement of such claims to be submitted for
approval, and supplemental recommended decision and order, to the
undersigned within sixty (60) days. The law allows the award of
compensatory damages in appropriate cases, but whether such an
award would be appropriate in this case is unresolved on the
instant record. Any such petition shall not affect or delay this
initial recommended decision and order finding entitlement and
awarding reinstatement to Lamb, and back pay with interest and
employment benefits and entitlement to each of the Complainants.
Although not expressly requested or supported by petition of
record, I find that Complainants are entitled to reasonable legal
fees in an amount to be negotiated and agreed upon among the
parties, or submitted with appropriate supporting documentation for
approval within sixty (60) days.
RECOMMENDED ORDER
Pursuant to 42 U.S.C §5851(B)(2)(b) and the foregoing,
1. HL&P shall take affirmative and appropriate action forthwith to
abate all discriminatory actions against personnel who engage in
protected activity as defined under the ERA.
2. HL&P shall forthwith reinstate as of May 4, 1991, Complainant,
David R. Lamb, to his former position or to a substantially
equivalent position at the South Texas Nuclear Project, with all
rights, terms, conditions, privileges, and benefits of his
employment that he had at the time of his termination or might have
accumulated during his unlawful separation from his employment;
3. HL&P shall pay to Complainant, David R. Lamb, all salary and
compensation (including back pay), including employment benefits
and entitlements, he would have received, but for his unlawful
termination on May 4, 1991.
4. HL&P shall pay to Complainant, James J. Dean, all salary and
compensation, including employment benefits and entitlements, he
would have received, but for his unlawful termination on May 4,
1991, until June 3, 1993. To the extent that employment benefits
and entitlement to which he would otherwise have been entitled
cannot be recovered by Dean without formal reinstatement, he shall
be paid their comparable value in cash.
5. HL&P shall pay to each Complainant interest on the total sum
due each, exclusive of attorneys' fees, at the rate specified in 28
U.S.C. §1961, commencing from the date or dates such salary
and other compensation and benefits would have been due until
payment.
6. HL&P shall be entitled to credit for such earnings, or a
reasonable approximation thereof, as each Complainant shall have
received during the applicable period, against payments for which
HL&P would otherwise be liable.
7. Complainants shall file with the undersigned within sixty (60)
days of the date of this order any petition for supplemental relief
related to compensatory damages that should be recommended to the
Secretary for approval. Respondent shall file its response, if
any, within thirty (30) days of receipt of any such petition.
8. HL&P shall pay to Complainants a sum equal to the aggregate
amount of all costs and expenses (including attorneys' and expert
witnesses' fees) reasonably incurred by the Complainants, jointly
and severally, for, or in connection with, the bringing of their
respective complaints. Complainants shall file with the
undersigned within sixty (60) days of this order any petition for
such amount, together with appropriate supporting documentation,
that should be recommended to the Secretary for approval.
Respondent shall file its response, if any, within thirty (30) days
of receipt of any such petition.
______________________________
EDWARD TERHUNE MILLER
Administrative Law Judge
Washington, D.C.
[ENDNOTES]
[1]
The amendments to the ERA contained in the Comprehensive National
Energy Policy Act of 1992, Pub. L. No. 102-486, 106 Stat. 2776
(Oct. 24, 1992)(CNEPA), do not apply to this case, because the
complaints were filed prior to the effective date of that Act.
References, therefore, are to the provisions as codified in 1988.
[2]
(C-12B, 13) An Investigative Report completed in February 1993 by
the Office of The Inspector General, U.S.Nuclear Regulatory
Commission, reached a similar conclusion. (C-2)
