case of discrimination by showing a causal link between his protected activity and the adverse action he suffered. Overall filed an opposition to this motion and a motion to supplement complaint alleging that on June 16, 1997, TVA discriminatorily refusal to recall him for work on its Watts Bar ice condenser system (Jt. Ex. 5-7). On September 17, 1997, I issued an Order Granting Overall's Motion to Supplement Complaint and postponed a ruling on TVA's motion for summary judgment pending completion of discovery by Overall.

1. Whether TVA engaged in a concerted attempt to conceal significant safety deficits in its Watts Bar ice condenser system.

2. If so, whether TVA in furtherance of its concealment efforts discriminatorily transferred, laid off , and thereafter refused to recall Overall because of his attempt at exposing and correcting safety deficits in the Watts Bar ice condenser system.

3. The appropriate remedy.

   The stipulations as set forth in Jt. Ex. 9 are incorporated into the Factual Background and Findings of Fact, Section IV and V of this decision.

A. Overall's Work History and Educational Background

   After receiving a 2 year associate degree in architectural pre-engineering from Cleveland State Community College in Cleveland, Tennessee, Overall began working as an

engineering draftsman for the City of Chattanooga Department of Public Works in 1973. Overall kept this position until 1979 when TVA hired him to work in its Chattanooga Fossil and Hydro Division. He remained there until 1981 when he voluntarily transferred to the TVA Nuclear Division. From 1981 to December 1984 Overall worked as an SE-3, engineering aide at various plants in Chattanooga and surrounding vicinity, including TVA's Sequoyah nuclear power plant. His duties included work on plant outages, ice condensers, cooling towers, refilling apparatus, reactor seal tables, preventive maintenance on pumps and valves throughout the plants together with installation of HVAC heating and ventilation systems. (Tr. 56, 57).

   In December 1984, Overall voluntarily transferred to the Watts Bar nuclear facility where he worked an associate engineer responsible for air and heat systems and general mechanical maintenance throughout the plant, bearing the title of power plant maintenance specialist with a SD2 and 3 classification. (Tr. 58,59) As a power plant maintenance specialist, Overall performed a wide range of job duties spending 35 % of his time performing maintenance and monitoring on the ice condenser system which consisted of 1944 ice baskets located around the nuclear core. The remaining time was spent doing the following: identifying design changes to enhance nuclear plant operation and reliability (10%); preparing and revising work instructions for repair of equipment (5%); performing inspections, taking measurements, drawing sketches, taking photographs, and designing special tools and jigs (5%); performing special projects in the mechanical maintenance section (5%); reviewing plant equipment and vendor manuals, determining and procuring spare parts for mechanical equipment systems (5%); providing technical guidance to craft and maintenance engineers in the area of ice condenser maintenance and other assigned systems as well as preparing preventive maintenance instructions for mechanical equipment, preparing and revising plant maintenance instructions, and serving as a TVA representative at industry wide conference concerning the ice condenser system (7%). (CX. Ex. 1).

   Overall worked as a power plant maintenance specialist until November 20, 1989 when TVA transferred him into Technical Support at Watts Bar. (Tr. 58-60). Overall was reclassified as a power maintenance specialist and promoted to a SD-4 classification. (CX. Ex.2). As a power maintenance specialist, Overall was primarily responsible for the maintenance, testing, operation, construction and design of ice condenser, 61 system maintaining a constant awareness of the system's status, writing and revising site instructions, ensuring proper testing, and initiating appropriate action and documentation to resolve system problems including investigation of and determinations of root causes of abnormal events with recommendations for corrective action. In addition, Overall functioned as a project manager interfacing with other project managers on capital projects and served as a backup systems engineer on other plant systems when the primary system engineer was on a leave status . (Tr. 68, 69). Overall was expected

....to work to a high quality standard by doing the right thing the first time. [He] was accountable for the quality results of [his] own work and...[ had] personal responsibility to ensure that quality problems [he] encounter[ed] ...[were] identified and resolved promptly....

             (CX. Ex. 2 page 3 ).

   To qualify for this position Overall had to have an associate degree in engineering technology plus 8 years of experience in the operation, maintenance, and testing of power plant maintenance systems of which a minimum of 5 years had to be related to ice condenser maintenance and operation. (CX. Ex. 2, page 8).

    On paper Overall was administratively transferred to TVA Services on September 18, 1995, but physically remained in Technical Support at Watts Bar until November 3, 1995, completing paper work and training his replacement, Jordan. (Jt. Ex. 9). From November 4, 1995 until September 30, 1996 when he was laid off, Overall worked in TVA Services as a SD-4, program administrator. Thereafter, Overall has been unable to secure any further work from TVA.

   While working in Technical Support, Overall reported to McCormick, NSSS Engineer Supervisor who in turn reported Koehl, Technical Support Manager. In September, 1995, Koehl was promoted to Assistant Plant Manager at Watts Barr and held that position for one year after which he was again promoted to Operations Plant Manager at Watts Bar. On June 3, 1997, Koehl was again promoted to the position of assistant plant manager at Sequoyah. (Tr. 592-594). In like manner McCormick moved up the corporate ladder advancing to Senior Reactor Operator in April 1996 and then in September 1996 transferring back to Component Engineering where he has continued to work. (Tr. 761). At TVA Services Overall worked under the supervision of Rich Miller, Manager of Engineering. In April 1996 TVA Services transferred about 100 field engineering personnel including Overall to the supervision of Gary Pitzel (herein Pitzel) who reported to Swindell, Manager of Plant Services. ( Tr. 568-570).

(Tr. 265-268). Overall never got a B.S. in Engineering but did complete most of TVA in-house system engineering training except for some practical factors involving home study. At the time of his involuntary transfer notice Overall was working on completing the practical factors part of this training. (Tr. 843-845). McCormick, who allegedly made the decision to involuntarily transfer Overall to TVA Services, had no knowledge of what factors Overall needed to complete as part of the TVA in-house training.

    More significantly, Overall had the same total score (1325) as fellow employee John Ferguson on an equivalency evaluation performed by Human Resources. Like Overall, Ferguson was slated for involuntary transfer to Services in June 1995 but somehow was spared this fate by being given an equivalency engineer rating changing his classification from an SD-4 maintenance specialist to a SC-4 system engineer and kept in Technical Support. (Tr. 723-730, CX. Ex. 45). TVA called no one from Human Services to explain the difference between Overall and Ferguson's classifications.

B. The Watts Bar Ice Condenser

   As described in the parties joint stipulation, the ice condenser was a safety system utilized at Watts Barr and Sequoyah nuclear power plants. Both of these plants which operate pressurized water reactors utilize identical ice condenser systems manufactured by Westinghouse. In the event of a large steam leak in the reactor containment vessel, pressure could rise to a sufficiently high level rupturing the containment vessel, allowing radioactive steam to escape into the environment beyond the plant. To guard against this possibility, the ice condenser system maintained about 3 million pounds of ice treated with boron which absorbed neutrons and helped to maintain radioactive iodine in solution. The borated ice was placed in a series of 1944 ice baskets located around the interior of the containment vessel. The ice baskets were large metal structures each 12 inches in diameter and 48 feet high. When properly operating, steam from a major leak was channeled through the ice, condensing the steam back to water, thus lowering the temperature and reducing the pressure to manageable levels. The ice melt solution also served as an additional control over the criticality of the reactor. (Jt. Ex. 9, para. 4).

   TVA operated one pressurized water reactor at Watt Barr and two such reactors at Sequoyah. Watts Bar has two reactor units but only one is currently licensed to operate. (Tr. 245, 246). The Watts Bar ice condenser was housed in the primary containment building and cantilevered off of a crane wall in a horse shoe , 300 degree configuration around the reactor vessel. The 1944 ice baskets were divided into 24 bays consisting of 81 individual baskets. Each basket consisted of 4 twelve foot perforated sheet metal sections housing the borated ice. Holding the basket together were a series of metal rings or couplings located every 6 feet and approximately 186,624 sheet metal screws. (CX Ex. 21). Ice must be properly spaced and balanced within the baskets and constantly

monitored to achieve the necessary cooling effect. (Tr. 77-85). The sheet metal screws secured and maintained the ice basket assembly in its proper configuration thus insuring the integrity and reliability of the ice condenser system. (Tr. 118-120).

   In addition to the ice baskets, the ice condenser system contained a system of air handling units with 60 fans per unit and extensive air duct work that transported cold air from 35 ton chillers together with numerous valves and pumps and an lower inlet door system. Demineralized water, service air glycol, boration, and sodium tetra borate systems also comprised part of the ice condenser system and were found in other areas of the plant. (Tr. 69-74).

   Proper operation of the ice condenser was a sine qua non for plant operations for without a functional and approved ice condenser, Watts Bar could not go on line and produce power. In fact, Watts Bar could not even pressure test its safety equipment without an operable ice condenser. (Tr. 387-389, 828,829).

C. Overall's Protected Activities and TVA's Response

   In December 1994, Overall commenced ice loading in the 1944 ice condenser baskets. The loading was a 24 hour around the clock procedure and was not completed until February 1995. This was the second time that ice had been loaded in the baskets with the first loading operations occurring in 1984. The ice loading was accomplished by a gravity fed system with each basket taking between 7 to 12 minutes to fill and involved the proper placement of 3 million pounds of borated ice. During this process excess ice and debris was collected and inspected for the first time. On April 12, 1995, while inspecting a ice melt tank, Overall discovered 171 ice basket screw heads and 32 complete ice basket screws. (Tr. 97,98, CX Ex. 24).

the inspection was due in large part to his removal from PER 246 on July 10, 1995 as discussed in greater detail below.

   On the following day, May 19, 1995, Overall formulated a probable cause of the screw failure: inadvertent over tightening of the screws, and expansion and contraction during ice loading and melt down phases. ( Tr. 109, CX. Ex. 23, page 10). On the same day Overall consulted with TVA's on-site metallurgical engineer, Sisson, and together they gathered and transferred 8 sets of screws for analysis to TVA's Central Laboratories in Chattanooga. (Tr. 114). These screws include fractured screw heads, 12 new screws, and 12 other screws removed from Bays 1, 12, and 24.

   On June 2, 1995, Central Laboratories, sent Sisson their analysis which was prepared by Smith and approved by Delsa L. Frazier. (CX. Ex. 22). The report determined the mode of failure to be intergranular separation and the mechanism was stress overload. The following 7 causes were noted to be probable causes of the screw failure:

1. Low temperatures when the screws are in service (lowering the ductility of the screws).

2. Stresses higher than design limits, specifically at the threat roots (due to possible overtorquing).

3. The presence of stress concentrators present at the thread roots (lapping from rolling process).

4. A corrosive environment that breaks down the zinc plating and initiates rust around the threads.

5. Elevated carbon content, thus higher hardness values (again lowering the screws's ductility).

7. Thermal cycling which may have initiated micro-cracking or propagation of the pre-existent cracks.

   The June 2, 1995 report, consisting of 16 pages, described in detail the methods used to evaluate the screws including x-ray analysis, induction furnace combustion techniques, material hardness findings, plus a series of detailed photographs showing screw defects. (Tr. 124, 125).

   Upon receiving the June 2 metallurgy report from Sisson, Overall faxed a copy of the report to Westinghouse officials and gave another copy to Yetter on June 9, 1995, and suggested a meeting to discuss the screw issue which they agreed was appropriate. Then Overall called his counterpart at Sequoyah, John Rathjen, told him what he had discovered about the ice basket screws and asked for 12 of their ice basket screws. Rathjen replied that his supervisor, John Casey, would have to authorized the release. Overall then requested the screws from Casey and was

told by Casey that he could not release the screws because to do so would shut down their operations at Sequoyah. (Tr. 126-129).

   Casey did not testified. Rathjen testified by deposition that as system engineer at Sequoyah, he held a comparable position to Overall, being responsible for operation of the ice condenser system and that 99% of his time is spent with the ice condenser system. Rathjen admitted receiving a request from Overall for 10 of Sequoyah's ice basket screws in connection with PER 246 but told him that Sequoyah was not using screws supplied by Westinghouse. Rathjen had no knowledge of missing or broken screws at Sequoyah but admitted doing limited basket inspection. Rathjen also admitted that Casey instructed him not to send screws to Overeall for testing allegedly because the screws would be off site and out of his control and, being aware that the screw request had the potential for plant shut down. (RX Ex. 10).

   On June 14, 1995, Overall attended a meeting with a number of TVA personnel in the Watts Bar Interim Office Building, Room C-100. Attending were Woods, manger of TVA's corporate metallurgical division, Yetter, and additional personnel from Technical Support and Nuclear Design. Overall testified that Woods dominated the meeting stressing that the basket screw problem was not a safety issue and not a 5059 issue which was reportable to the Nuclear Regulatory Commission (herein NRC). Overall tried to express his opinion about probable causes and solutions but was not permitted to do so. Woods demanded that Westinghouse get Scrabis involved with the problem and come up with a solution since Westinghouse had designed the ice condenser system. Woods rescinded the June 2 metallurgy report and dismissed Sisson, and other members of the metallurgical team including Theresa Chapman and Dave Briggs. Woods then discussed the 7 potential causes of the screw failure as documented in the June 2 report stating that Central lab personnel were not qualified to make those conclusions. (Tr. 130-135).

   Although called as a witness by TVA, Woods failed to testify about June 14 meeting at Watts Bar. Sisson testified that Woods was very assertive during the June 14 meeting but could not recall Woods stating that the defective screws were not a safety issue. However, Sisson admitted neither she or other metallurgical personnel with the exception of Woods stayed for the entire meeting. (Tr. 479, 480). Sisson testified that she was asked to leave the meeting because of a determination that metallurgy had nothing further to contribute to resolving the screw issue and that the screw issue would be resolved by someone else determining how many screws were required for each basket. (Tr. 479 ). TVA called no witnesses to support Sisson's version of this meeting.

   Concerning the June 2 report, Sisson admitted that over-torquing, stressing a screw beyond design limits, low temperatures when a screw was placed in service, stress concentrators at threat roots, corrosive environment, elevated carbon content, the presence of quench cracks upon receipt and thermal cycling, were all possible causes for the screw failure requiring further inquiry. (Tr. 483-489). Further that metallurgical engineers were concerned with the issue of causation and in the past had gone to the site to work with personnel such as Overall to determine the cause. In fact Sisson had a number of conversations with Overall but was never able to determine the cause of screw failure. (Tr. 501-503).

   Woods later testified that sometime after the June 2 report issued, James Adair, lead civil engineer at Watts Bar Engineering Division called him about the report asking Woods to review it concerning the 7 reasons listed as probable causes for the screw failure. Woods reviewed the report and called a meeting at corporate Central Lab. Attending were Smith who prepared the report , Delsa Frazier, who approved the report, Robert Philips and Leslie Blankenship and Sisson. Woods agreed that Smith could conclude that low temperatures when the screws were in service led to the intergranular separation but did not see how Smith could conclude either than the screws were subjected to stresses beyond design limits or that thermal cycling had caused screw fractures. When questioned by Woods about design limits Smith admitted that he did not know the design limits of the screws and relied upon information supplied from Watts Bar concerning thermal cycling being told by Watts Bar personnel that the screws were cyclically cooled and warmed between 15 degrees and room temperature. According to Woods, all in attendance agreed that they were "over zealous" in putting the report together and that a new "factual" report would be issued which would not address the cause of the screw failure because the lab could not determine the cause without more information from the site and actual working under site conditions. (Tr. 545-549). Woods made no attempt to secure additional site information.

   On June 19, 1995, Smith prepared a modified screw report which was approved by his supervisor, Delsa Frazier. (CX. Ex. 23, pages 26-47). This report omitted reference to any possible cause for the screw failure or intergranular separation. Smith testified about the June 2 and 19 reports admitting a poor memory of the June 14 meeting and also admitting no recollection of anyone telling him to revise or expedite the report because of Overall's PER. Smith stated that he was told to report facts and not provide conjecture in his reports and to leave the determination of the cause of screw failure to other personnel at Watts Bar who were more familiar with the problem. Smith admitted that his second report omitted reference to possible causes of screw failure although it was certainly within his training as a metallurgical engineer to provide possible cause and more importantly that causes were omitted to avoid unwelcomed questioning by the NRC. (Tr. 521-523). In essence, TVA required its metallurgical engineers to function as lab technicians rather than utilize their full professional engineering skills. (Tr. 520).

probability of ice basket coupling failure was remote based upon the discovery of only 162 sheet metal screws from 1944 ice baskets; (2) if ejected during a loss of cooling accident (herein LOCA) ice baskets were not capable of reaching the top deck; (3) if ejected, ice baskets would still maintain proper ice bed geometry not compromising flow bypass paths; (4) intermediate deck structures would stop ice baskets from ejecting out of ice bed; and (5) ice baskets could maintain their integrity with only 10 out of 12 sheet metal screws per mechanical or metal coupling. (Tr.143-145, 853. CX.Ex. 23, pages 49-56.) This evaluation was never provided to Overall or McCormick until the current litigation. McCormick, who has a degree in mathematics was moreover unable to explain the Westinghouse statistical analysis. (Tr. 842, 843).

   Not only did the Westinghouse assessment fail to provide for any basket inspection, it also failed to account for the uncontested and credible testimony of Overall that 30 percent of the baskets were ejectable and could become missiles that could prevent ice condenser doors from opening to let steam enter and be condensed or alternatively in the event of over pressurization penetrate the containment vessel causing radioactive gases to escape. (Tr. 121,122, 148-156, 853, CX Ex.23, page 18). Moreover, baskets could and had been inspected by cameras in the past and in fact the only other way to determine the condition of basket screws was to take the baskets apart. (Tr.165, 340, 341, 345, 348-349).

    McCormick acknowledged the screws were a safety issue directly related to escapement of radioactive gases and further that a basket inspection was necessary to determine the number of missing screws. (Tr. 812-815, 827). Further, McCormick admitted there was a potential for all basket screws to be affected but neither Westinghouse nor Nuclear Engineering to whom the PER was transferred on July 12, 1995, ever made any such basket inspection and that during a LOCA ice baskets were capable of penetrating the containment vessel. ( Tr. 812-815, 840, 849).

   Other TVA personnel recognized the importance of the screw issue as witnessed by a July 7, 1995 meeting between Overall, Frank Koontz and metallurgist Theresa Chapman. Overall testified that he met with Koontz and Chapman to develop a recurrence control, i.e., a method to avoid recurrence of the screw problem. Koontz and Chapman asked Overall that if the screws in stock could be used as replacement screws, and how many screws were in fact missing. Overall replied that Westinghouse needed to provide that data. (Tr. 184, 185). Neither Koontz or Chapman testified about this meeting.

   When PER 246 was transferred on July 12, 1995, it went from McCormick's control in Technical Support to Nuclear Engineering under the control of James Adair. (CX. Ex. 23, page 6) This transfer was admittedly highly unusual for although other organizations within TVA worked on a individual PER to bring it to final resolution, no other PERs had been removed from the organization that initiated the investigation. (Tr. 185, 316-319, 433, 434, 809, 810). McCormick, who allegedly made the PER transfer decision, testified that he made the decision to transfer because Technical Support (1) was not resolving the problem, (2) did not have the authority to do the basket

inspection because this would involve help from mechanical maintenance, (3) did not have a good plan for basket inspection, (4) lacked the necessary expertise, (5) and there was no agreement from upper level management on what to do. ( Tr. 816-823). None of these explanations withhold scrutiny, for Overall was making progress in analyzing and suggesting ways to address the problem. Overall had a feasible plan for basket inspection utilizing the help of mechanical maintenance and had already worked successful with metallurgy in determining possible causes for the screw failure. (Tr. 114, 115).

   The only plausible and credible explanation for TVA's refusal to do camera or actual basket inspection was that given by Overall. Overall testified without contradiction that a camera inspection would have delayed fuel loading from 6 month to a year resulting in considerable loss of revenue. (Tr. 169- 172, 183 ). Indeed, meeting fuel-load dates was a factor affecting bonuses awarded to TVA nuclear managers in fiscal years 1995 and 1996. (CX. Ex. 43, admission #7).

    McCormick was aware not only of the need for camera inspection but also of TVA's desire to quickly dispose of PER 246 by having Westinghouse favorably resolve the issue. In fact, TVA officials told Westinghouse representative, Chuck Scrabis "...to get the skids greased and get the wheels turning for them to crank out a report to put this issue [PER] to bed." (Tr. 182, 183). McCormick even told Overall: " We need to give this PER over to Nuclear Engineering and I sure hope NRC doesn't review this one, the way it was handled here recently." (Tr. 330-335, CX. Ex.24, page 24 ). McCormick denied any concern about NRC reviewed but never denied this conversation with Overall and admitted being concerned about the length of time it was taking to resolve PER 246. (Tr. 825-827).

   Following the PER transfer to Nuclear Engineering, no further corrective action was taken. Rather, Nuclear Engineering merely accepted the Westinghouse assessment despite its obvious flaws and closed out the PER on August 10, 1995. (Tr. 156, CX. Ex. 23, page 20-22). The PER was closed out without any report being made to the NRC. (Tr. 390-402). Subsequently on November 3, 1995, the NRC issued a statement finding in part that the Watts Bar ice condenser was acceptable without any reference made to the screw issue. The NRC noted, however, that if ice weight was less than specified a plant shut down could occur. (CX. Ex. 30, page 16). Prior to this date on June 23, 1995, TVA system engineers certified the correct functioning of the ice condenser. (CX. Ex. 28).

D. Overall's transfer to TVA Services, Subsequent Layoff and Inability to Secure Employment with TVA

   In June, 1995, while in the midst of investigating the defective basket screw issue, Overall testified that Rich Miller, a supervisor with TVA Technical Service Group in corporate offices at Chattanooga, telephoned and offered him a permanent position in Services. Miller told Overall that he was aware of Overall's ice condenser experience from previous conversations with Koehl and as such was a highly marketable individual for whom Miller would create or tailor a

permanent position within the core group at TVA Services. Prior to the call, Overall never heard of Miller but knew as an at-risk employee his employment with TVA would not last more than a year after his reclassification to that status. As a permanent employee Miller told Overall that he would remain with the core group within Services. (Tr. 196- 197, 295-302, RX. Ex. 9). Subsequently, TVA Services posted a position as project administrator which fit exactly Overall's qualifications. ( RX. Ex. 10).

   Overall looked at the letter and asked Koehl to step inside a nearby office to discuss the letter which Koehl agreed to do. Both men went into supervisor Steve Woods old office. Overall asked why he was being transferred as an "at risk" employee because there was no justification for it. Koehl responded that there was not enough work to warrant a full time person in Overall's position. Overall disagreed saying that he had been over the ice condenser since 1984 and that the ice condenser system still had to function requiring a full time person to operate it. Koehl said he understood how Overall felt but someone else was going to take over the job. (Tr. 187, 188).

   Overall continued to work on the ice condenser with Law (Overall's back up), and in September with Gary Jordan, who eventually replaced Overall as the ice condenser specialist in November, 1995. In the meantime Overall continued to operate the ice condenser and complete paper work related to the system, transferring his knowledge of the system to Jordan who had no practical knowledge about its operation. (Tr. 189).

   Koehl testified that he did not give out the letter until June 23, 1995 because Human Resources which generated the letter did not prepare it before June 23, 1995. (Tr. 671). Koehl had no recollection of the June 16, 1995 meeting with Overall but insisted that he told Overall on several unspecified occasions that his transfer was necessitated by the nature of his job which did not require a full man year of work (2000 hours) plus the need to retain engineers who were more flexible in their work assignments and could be assigned to tasks outside of the ice condenser system. (Tr. 659-664). Admittedly, Koehl testified from memory alone. (Tr. 672). Overall, however, provided notes taken from a daily Franklin Planner diary in support of his testimony. (CX. Ex.24, page 23, 24 ).

   TVA called no witnesses to support Koehl's testimony nor did TVA call Human Resources Manager, Howard Cutshaw, to deny a June 21, 1995, conversation he had with Overall regarding the transfer as an "at risk" employee. Overall testified that he talked with Cutshaw on June 21 about the transfer and the reason given , i. e., no need for a full time ice condenser specialist. Cutshaw said the decision was wrong but "You know Dennis". (Tr. 195). Jordan, moreover, credibly testified that after replacing Overall he spent 95% of his time on the ice condenser and 5% of his time on flood mode boration which Overall was qualified to perform. (Tr. 214, 215).

   When comparing Overall's specific testimony, exhibits and demeanor versus Koehl vague testimony and demeanor, I find Overall's testimony more credible and completely consistent with Cutshaw's June 21 comments which were never denied by TVA. It was also consistent with the June 19 anonymous call telling Overall the caller was glad he was being transferred to TVA Services and with Overall's action in boxing up his possessions on June 16, 1995, for transfer to TVA Services. (Tr. 194, CX. Ex. 24, page 25).

   Furthermore, Overall's testimony was consistent with his action in confronting McCormick about the transfer decision on June 16, 1995, after receiving the letter from Koehl. Overall testified that after receiving the letter and talking to Koehl he confronted McCormick about the letter. McCormick looked bewildered and said " You know, I tried to talk to Dennis about doing this, that it wasn't the right thing, but you know Dennis." (Tr. 192-193). McCormick could not recall any conversation he had with Overall about the transfer notice. (Tr. 788, 789).

   Swindell, who rarely had direct employee contact at TVA Services, testified that the mission of TVA Services was to assist employees whose jobs were being eliminated to find new opportunities within TVA including the acquisition of new training and skills. TVA Services was designed to be financially self-supporting by generating revenues from the sale of their services through contracts within and outside of the TVA organization. As of July 1996, Overall had not been able to acquire any contracts for his services for fiscal year 1997. (Jt. Ex. 9). Accordingly, Swindell testified that Overall was let go because there was no work opportunities to sustain and cover his cost for the 1997 fiscal year. (Tr. 573-575).

   Overall confirmed Swindell's statements wherein the latter told employees that they needed to market their skills and generate revenues. Concerning layoffs, Overall testified that prior to the layoff his supervisor, Pitzel, told him that his job had been budgeted for fiscal year 1997 and he, Overall did not have to worry about layoffs because Swindell had informed him, Pitzel, that Overall services and skills were still in demand. ( Tr. 309). TVA never called Pitzel as a witness. Moreover, Swindell testified that he could not recalling telling either Pitzel or Overall that his job was budgeted for fiscal 1997. (Tr. 576). Swindell testified that he attempted but unsuccessfully to find work for Overall both within TVA at Sequoyah and Watts Bar and other locations. According to Swindell, Pitzel dealt directly with personnel at Watts Bar and Sequoyah and that both Watts Bar and Sequoyah allegedly decided to do all of their ice condenser work with their own staff. (Tr. 578, 579).

   Following the layoff, Overall continued searching for work contacting personnel within and outside of TVA but was unsuccessful in finding work. (Jt. Ex.9, page 16). In April 1997, Ulysses White, Task Manager for Modifications at Watts Bar telephoned Overall about possible work with TVA's main contractor at Watts Bar, Stone and Webster, concerning work on the ice condenser during a refueling outage. According to White, both Jordan and Law were tied up with other work and Stone and Webster had been chosen to do the work. White agreed to provide Stone and Webster with Overall's resume which he did upon receipt of one from Overall. White turned the resume over to George Lowry of Stone and Webster. About 4 weeks later White learned that Stone and Webster had allegedly chosen to use their own engineers who had no ice condenser experience to do the work and so advised Overall. (Tr. 199, 200, 629-633). On cross White admitted that TVA would normally have done the outage work with their own personnel. White also admitted telling Overall that following the outage there was a possibility for additional ice condenser work with Stone and Webster.

   White also testified that while working as Task Manager for the past 4 years, he had listened to a presentation that Overall made in June 1996 while employed by Services for work during a mid-cycle outage. Law and Jordan were also present. After listening to Overall's presentation which included his ice condenser expertise, White recommended against using Overall. When asked why White replied: "...the money value that probably Service would be charging for us, we only had a certain amount of dollar values to do this project and the short time that we had to do it in, we just felt that, you know, we didn't need their services at this particular time." White never provided any other explanation for his recommendation and denied knowledge of any safety issues raised by Overall concerning the ice condenser. (Tr. 628, 629).

   This was the only time during the hearing that TVA attempted any explanation for refusing Overall's services. White's explanation was vague and never supported by any documentation. His denial of knowledge of safety issues was refuted by White's presence at the June 14, 1995 meeting wherein ice condenser safety was discussed. (CX.Ex. 33).

E. TVA's Defense and Overall's Response

60 TVA employees. The reductions were brought about by reduced budgets as Watts Bar went from a start-up to a constructions mode of operations. Various positions were eliminated including SCs and SDs. (Tr. 603, 604, 609-611). In August and September 1994, Koehl met with his managers or section supervisors and gave them a head count for their sections while at the same time eliminating the engineering component and consolidating work between maintenance and technical support.

   On September 15, 1994, Koehl, who was serving as acting plant manager, gave out 19 at risk notices to employees including Overall which read as follows:

   Koehl then met individually with these employees telling them that TVA had funded Services for a two year period and that while in Services they would receive extensive training. According to Koehl, Overall received the at-risk notice with no apparent emotion or concern. (Tr. 665,666).

   According to Koehl once he gave the section supervisors their respective head counts, he then let the supervisors determine who was to be kept or let go. McCormick allegedly made the decision to let Overall go by eliminating all SD positions in the NSSS section where Overall worked. Koehl in turn supported this decision. (Tr. 612-615, 639-642). Allegedly, McCormick

chose to let Overall go because McCormick did not need a full time person (2000 man hours per year) as a ice condenser specialist and Overall lacked a 4 year engineering degree or its equivalency making him less flexible than an engineer in performing other assignments outside of ice condenser system due to the engineer's superior educational background, which in turn allowed for quicker training time on new assignments (Tr. 642-648). Allegedly, Koehl in the past had ordered Human Resources to do three job equivalency evaluations on Overall and on all three occasions Overall was found not to possess an engineering equivalency. Overall was moreover encouraged to get additional training by attending school and did not do so. (Tr. 617-618).

   McCormick testified, however, that the alleged decision to transfer Overall to TVA Services was because of an alleged lack of flexibility as a SD employee in being assigned other plant systems and not because the position of ice condenser specialist did not justify a full time position. (Tr. 777-779). McCormick even estimated that Jordan spent at least 80% of his time on the ice condenser. (Tr. 805, 807). TVA called no witnesses to support McCormick's lack of flexibility assertion. Koehl, moreover, admitted that Overall had worked back up systems in the past. (Tr. 737).

   Koehl incredibly testified that by June 1995 there had been no change in the head counts although the number of employees in his section continued to diminish as employees left, resigned, or bid on other jobs with only 4 out of the original 19 employees, including Overall, receiving actual "at risk" transfer notices. (Tr. 667, 678). Of these 4, John Ferguson, was exempted from the transfer because of a last minute engineering equivalency rating. (Tr. 723-726). Interestingly, both Ferguson and Overall had the same total score but no attempt was made to re-evaluate Overall's status. (Tr. 741). Koehl admitted that Overall's completion of in-house training since 1991 should have been factored into his equivalency score but was apparently not done. ( Tr.738-743).

   Koehl had no recollection of talking to anyone in TVA Services or other organizations about Overall's skills or abilities. Koehl denied any conversations with Stone and Webster about Overall and the need for his services during work outages in 1997 and allegedly had no dealings with TVA Services concerning Overall's attempt to market his services at Watts Bar although admittedly he had worked with Stone and Webster in the past and had frequent conversations with personnel in TVA Services and as technical support manager, assistant plant manager, and operations manager he certainly was in a position to directly influence Overall's work opportunities at Watts Bar. (Tr. 592, 593, 599, 711, 712).

   McCormick's testimony concerning Overall's inability to be assigned other systems was not only contradicted by Koehl it was nonsensical. McCormick testified that Overall could not work other systems because if he worked on other systems he would seek a reclassification to the SC schedule which would be unsuccessful. (Tr. 765-767, 779). Overall, moreover, credibly testified that not only did his position allow him to work on systems other than the ice condenser but it fact he had worked on such systems including diesel generation. (Tr. 68, 69). Further, the ice condenser systems incorporated many other systems located throughout the plant. (Tr. 70-72).

   McCormick was unable to recall his conversations with Overall about his transfer to TVA Services but consistently denied that it had anything to do with the safety concerns raised by Overall with PER 246. (Tr.786-788, 804). On cross, McCormick admitted that Overall's job description permitted him to be assigned backup systems. Further, Overall at the time of notice of involuntary transfer to TVA Services was in the completion of in-house training lacking only the completion of practical factors which could be completed by home study. (Tr. 843-846).

   Swindell's testimony, as discussed previously, was that TVA laid off Overall because Overall had been unsuccessful in marketing his services. Swindell had no recollection call of telling anyone that Overall's position had been budgeted for 1997. (Tr. 576). Swindell's testimony about Watts Bar doing all of their ice condenser work in 1997 was obviously incorrect and conflicted with White's testimony showing Watts Bar subcontracting ice condenser outage work with Stone and Webster. Swindell denied having any knowledge of Overall protected safety activity or any conversations with McCormick or Koehl about Overall. This is highly unlikely since Koehl had frequent conversations with TVA Service personnel and in fact negotiated directly with Swindell concerning the price that Technical Support would have to reimburse TVA services from September 18-November 3, 1995 while Overall continued to work in Technical Support performing paperwork and training his replacement, Jordan. (Tr. 751-753).

   In response to the asserted reasons for his transfer and eventual layoff from TVA Services Overall credibly testified that on August 10, 1994, he had a conversation with McCormick in which the future elimination of SD positions from his NSSS section was discussed. McCormick told Overall not to worry because things could easily change since there was always a need for an ice condenser specialist. (Tr. 253-255). Moreover, there was no company policy of letting employees go who did not have a 4 year engineering degree as shown by Overall's avoidance of 3 prior layoffs involving SC 4 year degree engineers and SE personnel. (Tr. 256-262). Indeed TVA continued to employ Technical Support SD employees Ronnie Schouggins and Doug Williams at Watts Bar after June 1995. Williams, who has no degree, was assigned from Technical Support (component engineering) to maintenance prior to the June 1995 transfers and since the June 1995 transfers has performed worked on the ice condenser. Schouggins has no degree and has continued to work up to the present performing maintenance work on pumps and turbines. (Tr. 738-740).

   Furthermore, Overall correctly noted that on June 16, 1995 and June 21, 1995, both McCormick and Cutshaw indicated that Koehl and not McCormick made the decision to transfer Overall to Services. (Tr. 192, 195). Once transferred to TVA Services supervisor, Pitzel, told Overall that Swindell had budgeted his position for the 1997 fiscal year. (Tr. 309, 310).

   Based upon my review of the testimony and exhibits as set forth above, I make the following factual and credibility findings:

   1. TVA, an agency and instrumentality of the United States government, operates pressurized water reactor nuclear power plants in Tennessee at Watts Bar and Sequoyah. The primary facility involved in this proceeding is Watts Bar. Sequoyah operates two reactor units while Watts Bar has in operation only one reactor unit. Both the Sequoyah and Watts Bar reactors utilized the same ice condenser system manufactured by Westinghouse.

   2. Overall worked for TVA from 1979 to September 30, 1996 at various divisions and locations including the fossil and hydro division in Chattanooga and nuclear division including Sequoyah and Watts Barr facilities and TVA Services.

   3. At Watts Bar Overall worked as a power plant maintenance specialist (SD2 and SD3) in the Mechanical Maintenance organization from December 1984 to November 20, 1989 responsible air and heat systems and general mechanical maintenance throughout the plant. In this position Overall performed a wide range of duties including maintenance and monitoring of the ice condenser system, identifying design changes, preparing and revising equipment repair instructions; inspecting, measuring, drawing sketches, photographing and designing special tools and jigs; reviewing plant equipment and vendor manuals; procuring spare parts for mechanical equipment; and serving as a TVA representative at industry wide conferences concerning the ice condenser system.

   4. From November 20, 1989 to November 3, 1995, Overall worked in the Watts Bar Technical Support organization as a power maintenance specialist ( SD 4) for a majority of the time under the immediate supervision of McCormick, NSSS Engineer Supervisor, who in turn reported to Koehl, Technical Support Manager. As a power maintenance specialist Overall's primary responsibility was maintenance, operation, construction and design of the ice condenser 61 system

with additional duties as project manager on capital projects and backup systems engineer on other plant systems in the absence of engineer primarily assigned to these systems.

   5. Throughout his tenure with TVA, Overall maintained an impressive work record receiving numerous and consistent favorable job appraisals.

   6. Overall had a 2 year, associate degree in architectural pre-engineering plus additional in- house engineering training and at the time of his transfer to Services was working on the completion of practical factors of this training.

   7. The last time that Overall was evaluated by Human Resources at Watts Bar to determine whether he had equivalent training and experience to be rated an engineer was in 1991.

   8. Employee John Ferguson, who had no formal engineering education, but rather a 4 year degree in business and who had the same total score of 1325 points as Overall was given an engineering equivalency rating in June 1995 and elevated to the SC scale and not transferred to TVA Services as an at-risk employee.

   9. TVA personnel including McCormick recognized Overall as a dedicated and conscientious, ice condenser expert requiring no supervision and possessing good forethought reqarding ice condenser problems and their solutions. (Jt.Ex.9, page 9).

   10. The ice condenser was one the primary safety systems at Watts Bar. Without its proper operation, fuel could not be loaded and nuclear power produced.

   11. On April 12, 1995, Overall discovered and reported to TVA management the presence of 171 ice basket screw heads and 32 complete ice basket screws in the ice melt talk. Thereafter, on April 21, 1995, Overall filed a Problem Evaluation Report, PER 246 with TVA .

   17. On July 10, 1995, McCormick, without any credible explanation, transferred PER 246 to TVA's Nuclear Engineering organization under the supervision of James G. Adair and Larry A. Katchum who in turn recommended closure of PER 246 without taking any corrective action to assess and/or replace defective ice basket screws.

   18. On August 10, 1995, TVA supervisor, Tom McCollum, closed out or completed the investigation of PER 246 without taking any corrective action and inaccurately concluding that the ice baskets in question were inaccessible whereas the credible testimony of Overall showed that the ice baskets were accessible.

   19. Following closure of PER 246, TVA supervisors never advised the NRC of the safety issue raised by the defective ice basket screws and accordingly thereafter received an operating license from the NRC.

   20. In June, 1995, TVA Services supervisor, Miller, at the prompting of Koehl, created a permanent position of program administrator at TVA Services and offered such a position to Overall telling Overall because of his experience in ice condensers he was a very marketable individual.

   21. On June 14 and 19, 1995, Overall received 3 anonymous, harassing telephone calls because of his initiation and participation in PER 246.

   22. On June 16, 1995, Koehl told Overall that he was going to be involuntarily transferred to TVA Services as an at-risk employee allegedly because there was not enough work to warrant a full time person in Overall current ice condenser, power plant maintenance specialist position.

   23. When faced with an involuntary at-risk transfer, Overall decided to apply for the position of program administrator at TVA Services. The decision to apply was obviously not a voluntary decision.

   24. Overall physically transferred to TVA Services on November 4, 1995 and was replaced at Watts Bar by Jordan who had no previous practical ice condenser experience. As Overall's replacement, Jordan has spent 95% of his time devoted to the ice condenser with the remaining 5% being devoted to a flood mode boration system which Overall was also qualified to run.

   25. Overall worked in TVA Services until his layoff on September 30, 1996. During that time he unsuccessfully attempted to market his services both to the Watts Bar and Sequoyah plants and other plants outside of the TVA organization.

   26. Swindell told TVA Services employees that it was necessary to generate revenues from the sale of their services in order to keep their jobs. On July 24, 1996, Ricky B. Kennedy, Manager of Human Resources for TVA Service notified Overall and 20 other engineering

employees they were being laid off because of a shortage of funds. Prior to this notification, TVA Services supervisor, Pitzel, told Overall that his position had been budgeted for the 1997 fiscal year.

   27. Following his layoff Overall diligently attempted to secure work at Watts Bar , Sequoyah and other non-TVA facilities but without success. In June, 1997, TVA officials at Watts Bar chose an outside contractor, Stone and Webster, to do ice condenser outage work despite the fact that Stone and Webster had no employees with previous condenser experience.

   28. Koehl denied making the decision to transfer Overall to TVA Services stating the decision was made by McCormick because of Overall's lack of an engineering degree or its equivalent and because the ice condenser specialist position did not require a full time person or 2000 man hours of work. Koehl's denial was incredible and conflicted with the statements of McCormick and Howard Cutshaw who in conversations with Overall on June 16 and 21, attributed the decision to Koehl.

   29. Moreover, Koehl never informed Overall that his lack of an engineering degree played any part in the transfer decision. McCormick, on the other hand, testified that the reason he allegedly chose Overall was not because Overall's position did not required a full time person but allegedly because of Overall's lack of flexibility in job assignments since as SD employee he could not be assigned other back up systems.

   30. Overall's job description and duties not only required flexibility by working other systems than ice condenser but in fact Overall had worked other systems including plant wide maintenance and diesel generation. Further, many of the systems within ice condenser were located throughout the plant.

A. Credibility

   I made the foregoing and subsequent credibility findings taking into account (1) the rationality and consistency of the witness testimony, (2) the degree to which the testimony supports or detracts from other relevant and probative record evidence and (3) the fact that I am not

bound to believe or disbelieve the entirety of a witness' testimony. Altemose Construction Company v. NLRB, 514 F.2d 8, 16 n.5 (3rd Cir. 1975); See Frady v. Tennessee Valley Authority, Case No. 92-ERA-19 (Sec'y. Dec. Oct.23, 1995). In addition, I have considered witness demeanor having the unique advantage of seeing the witnesses and hearing testimony first hand.

   Credibility is that quality which renders a witness' testimony worthy of belief. To be worthy of belief evidence must proceed not only from a credible source but must be reasonable and probable in view of the transaction which it describes or relates so as to make it easy to believe and plausible. Indiana Metal Products v. NLRB, 442 F. 2d 46, 51 (7th Cir. 1971).

   In general, I was very impressed with Overall's testimony and demeanor. He testified in a straight forward, detailed, sincere and consistent manner. On the other hand, TVA's primary witnesses, Koehl, McCormick, Woods and Swindell, presented either inconsistent, vague, or illogical testimony as previously noted.

B. Burden of Proof and Production

   Claims brought under the ERA are subject to the following burdens of proof and production: (1) the complainant must first establish a prima facie case of discrimination. DeFord v. Secretary of Labor, 700 F.2d 281 (1983). Once complainant establishes a prima facie case, the burden shifts to the respondent to articulate some legitimate, non-discriminatory reason for its actions against complainant. Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 249 (1981). Once this is accomplished, complainant must then demonstrate by a preponderance of the evidence that the articulated reason for the adverse employment action was a pretext for discrimination. Burdine, 450 U.S.at 249, 257; Zinn v. University of Missouri, Case No. 93-ERA-34 and 36 (Sec'y. Dec. January 18, 1996).

   Complainant may demonstrate that the articulated reasons constitute a pretext for discriminatory treatment by showing that discrimination was more likely the motivating factor or by showing that the proffered explanation was not worthy of credence. 42 U.S.C. § 5851 (b)(3)(c); Zinn, Case No. 93-ERA-34 and 36, slip. op. at 5; Yellow Freight Systems v. Reich, 27 F.3rd 1133, 1139 (6th Cir. 1994). The finding that a respondent's asserted reasons are pretextual, however, does not compel a finding in favor of complainant. Complainant still retains the ultimate burden of proving, by a preponderance of the evidence, that the adverse action was in retaliation for the protected activity in which he was engaged. St Mary's Honor Center v. Hicks , 509 U.S. 499, 511 (1993). If there is evidence that respondent was motivated by both legitimate and prohibited reason, then a dual analysis is necessary. Mt. Healthy Sch. Dist. v. Doyle, 429 U.S. 274 (1977); Dysert v. Florida Power Corp., Case No. 93-ERA-21. (Sec'y. Dec. August 7, 1995).

C. Equitable Estoppel or Continuing Violation

leading to a current violation, it is necessary to consider the facts of each case including the type of discriminatory conduct, its frequency and most important the degree of permanence of the acts. Berry v. Board of Sup'rs of L.S. U. , 715 F.2d 971 (1983)

D. Prima Facie Case of Discrimination

   The essential elements of a prima facie case of illegal discrimination involves a showing by either direct or circumstantial evidence that (1) respondent is an employer subject to the Act; (2) complainant engaged in protected activity; (3) respondent subjected complainant to adverse employment action; and (4) a nexus between the protected activity and the discharge. Deford, 700 F.2d at 286; Moon v Transport Drivers, Inc., 836 F.2d 226 (6th Cir. 1987); see also Kahn v. Secretary of Labor, 64 F.3d 271, 277 (7th Cir. 1995); Simon v Simmons Foods, Inc. 49 F.3d 386, 389 (8th Cir. 1995); and Bechtel Constr. Co. v. Secretary of Labor, 50 F.3d 926, 933-934 (11th Cir. 1995).

    In this case TVA admitted in its pretrial motion for summary judgment that is was governed by the ERA. Further, TVA holds several licenses including one at Watts Bar from the NRC and is accordingly subject to the ERA, 42 U.S.C. § 5851 (a)(2) (A). There is also no dispute that Overall by filing and processing PER 246 was engaged in protected activities with the knowledge of TVA officials and that he suffered adverse employment action by his at-risk transfer to TVA Services and subsequent layoff. (Jt. Ex. 5 page 9).

   TVA contends, however, that there is no causal link between Overall's protected activity and PER 246 inasmuch as (1) his position was identified as surplus or potentially at risk in September 1994, (2) he was not singled out for disparate treatment with other SD employees being eliminated from Technical Support, (3) he voluntarily applied for transfer to TVA Services and (4) management officials at TVA Services had no knowledge of Overall's protected activity. Further, Respondent argues that it has the right to establish job responsibilities and to take adverse employment action for legitimate business reasons. Overall voiced no objection to TVA's right to either establish job responsibilities or take adverse employment actions for legitimate business reasons. However, as indicated above, Overall strenuously contests TVA other assertions.

   Regarding the so called voluntary transfer to TVA Services, the credible evidence shows that Overall applied for a transfer to a permanent position with TVA Services on June 16, 1996 only after being informed by Koehl that he was going to be involuntarily transferred to TVA Services as an at-risk employee. Faced with being treated as an at-risk employee with little hope of retention versus a permanent position that was budgeted at least for a two year period, Overall chose the lesser of two evils. Under such conditions the transfer application may be rightly compared to a situation where an employee faced between resignation and termination "voluntarily" elects resignation. Schultz v. United States Navy, 810 F. 2d 1133, 1136 ( Fed. Cir. 1987); Christie v. United States, 518 F.2d 584, 588 (Ct. Cl. 1975).

   Regarding the arguments about being selected for layoff in 1994, lack of disparate treatment and lack of knowledge by the supervisors who made the adverse employment decision, the credible evidence showed that when Overall received his 1994 at-risk notice, he was told by McCormick not to worry because it was not a definite decision. The decision became definite only

when Overall engaged in protected activity by initiating PER 246. TVA then treated Overall disparately and in violation of its alleged policy of eliminating all SD positions by retaining and overnight upgrading SD employee John Ferguson while allowing SD employees Ronnie Schouggins and Doug Williams the opportunity to transfer to other positions within Watt Bar while retaining full time employment. Ferguson was upgraded to a SC engineer position although he had no formal engineering training as did Overall. Neither Schouggins or Williams had any degrees. Moreover, Koehl and McCormick clearly had knowledge of Overall's protected activity since they initially participated in PER 246.

    I discredit Swindell's denial of knowledge of Overall's protected activity for such knowledge was widespread involving Watts Bar, Sequoyah, and corporate office officials. If properly investigated PER 246 had the potential of shutting down Watts Bar for 6 to 12 months while ice baskets were removed and inspected for defective screws. Moreover, Koehl had direct contacts with Swindell and other TVA Service supervisors on a frequent basis and in fact negotiated Overall's rate of pay with Swindell. Indeed it was Koehl who was responsible for TVA Services creating a position for Overall so as to remove him from processing PER 246.

   However, it is not necessary to establish Swindell's knowledge of Overall's protected activities because in large part Overall's failure to secure ice condenser work stemmed from Watts Bar officials refusal to accept Overall's services while instead employing inexperienced contract personnel to perform ice condenser work. Following Overall's transfer to TVA Services, Koehl assumed even greater authority and control at Watts Bar, and eventually Sequoyah, being promoted to assistant plant manager and operations manager at Watts Bar and in June 1997 assigned to the position of assistant plant manager at Sequoyah.

   This is not the first case wherein TVA used the defense of lack of knowledge to shield itself from adverse findings of ERA violations. In Jocher v. Tennessee Valley Authority, Case No. 94- ERA-24 (ALJ July 31, 1996 ) (ARB June 24, 1996), TVA at the same facility denied knowledge of protected activities when its Vice President of Nuclear operations, Joseph Bynum, unlawfully discharged William F. Jocker. Judge Robert L.Hillyard found that Bynum had knowledge through his handling of safety related concerns. Jocker, like Overall, engaged in activity exposing system wide defects and was the first person to initiate investigative and corrective action. By doing so, he exposed significant safety issues that TVA management officials had neglected resulting like the present case in an inordinate amount of unfavorable attention from TVA management.

   In Klock v. Tennessee Valley Authority, Case No. 95- ERA- 20 (ALJ Sept.29 1995)(ARB May 30, 1996) TVA also asserted lack of knowledge in the discharged Robert O. Klock. In that case, like the present one, Koehl played a key role in establishing TVA's knowledge of protected activities and role in dealing with safety issues. Koehl was part of the management team that ignored safety concerns telling personnel to accept safety defects as they were and reacting angrily when safety concerns were brought directly to the attention of the NRC.

   Nexus is moreover established by the proximity in time between the protected activity and the adverse employment action. Bechtel, 50 F.3d at 934; see also Bartlick v. United States Department of Labor, 73 F.3d 100 (6th Cir. 1996). To determine "proximity in time" the trier of fact must analyze the particular facts of each case. See Couty v. U.S. Dept of Labor, Sec'y Dole, 886 F.2d 147, 148 (8th Cir. 1966) ( 2 month interval between protected activity and adverse employment action held sufficient nexus); Zinn, Case No. 93-ERA-34 and 36, slip. op. at 36 (6 month interval sufficient to establish nexus); Thomas v. Arizona Public Serv. Co., Case No. 89-ERA-19 (Sec'y. Dec. Sept. 17, 1993) (12 month interval sufficient to establish nexus).

   In this case Overall was notified of his involuntary transfer by Koehl on June 16, 1995, at which time Overall was intimately involved with the processing of PER 246 and only two days after Woods announced that PER 246 was not a safety issue. This is clearly close enough in time to establish solid evidence of causation sufficient to raise an inference of retaliatory motive.

E. Rebuttal of Prima Facie Case

   Once complainant establishes a prima facie case as Overall has done herein, the burden shifts to TVA to produce evidence of a legitimate, non-discriminatory reason for the adverse employment action. St Mary Honor Center v. Hicks, 509 U.S. 502 (1993). To meet this burden TVA need only produce evidence of some legitimate ground for the involuntary transfer, subsequent layoff and refusal to recall. It does not have to prove that it was actually motivated by the proffered reasons. Burdine, 450 U.S. at 254-255.

   In this case TVA through the testimony of Koehl, McCormick and Swindell produced a variety of legitimate, non-discriminatory reasons, i.e., lack of a need for a full time ice condenser specialist, lack of flexibility in work assignments, and lack of funding caused by an inability of Overall to secure work. As such, TVA articulated non-discriminatory reasons and rebutted the prima facie case.

F. Pretextual transfer, layoff, and refusal to recall

   Once TVA articulated a legitimate, non-discriminatory reason for transferring, laying off and thereafter refusing to recall Overall, the burden shifted back to Overall to show that the proffered reasons were a pretext for discrimination rather than the true reasons for his adverse treatment. Burdine, 450 U.S. at 249. Pretext can be established by showing (1) that discrimination was more likely the motivating factor or (2) that the proffered explanation was not worthy of belief. Proof must go beyond disbelief of the asserted reasons. There must be a finding of discrimination. In other words, I, as the fact finder, must believe on the basis of evidence presented that TVA intentionally discriminated against Overall because of his protected activity. St. Mary's Honor Center, 509 U.S. at 509 (1993); Frady v. Tennessee Valley Authority, Case No. 92-ERA-19 and 34 (Sec'y. Dec. October 23, 1995).

As the Supreme Court stated in St. Mary's Honor Center 509 U.S. at 511:

The fact finder's disbelief of the reasons put forward by the defendant (particularly if disbelief is accompanied by a suspicion of mendacity) may together with the elements of a prima facie case, suffice to show intentional discrimination. Thus, rejection of the defendant's proffered reasons will permit the trier of fact to infer the ultimate fact of intentional discrimination...[without the submission of additional proof of discrimination].

Applying the foregoing principles to this case, Overall asserts that none of the reasons alleged by TVA are credible but rather are accompanied by such mendacity as to clearly show evidence of intentional discrimination.

   My review of the credible testimony convinces me all the reasons cited by TVA, including its denials of discriminatory motive, are false and clearly associated with that degree of mendacity to establish a strong circumstantial case of intentional discrimination. TVA advanced inconsistent reasons for the transfer with Koehl stating it was because there was no need for a full time ice condenser specialist while McCormick claimed it was because a lack of flexibility in work assignments. Both reasons were clearly false as established by Overall's replacement, Jordan, who working as ice condenser specialist has spent at least 95% of his time on the ice condenser and the remaining 5% on flood mode boration, which Overall was qualified to do. The lack of flexibility was contradicted by Overall's work outside of ice condenser systems and the fact that many of the ice condenser systems were located in other plant wide systems. More importantly, TVA chose an inexperienced person, Jordan, to operate it most important safety system when professing to place safety as its number one priority. The disparate treatment afforded Overall in not trying to upgrade his position with the last attempted upgrade in 1991 while hastily qualifying Ferguson as an engineer who had the same total score as Overall also strongly suggests intentional discrimination. The retention of SD employees Ronnie Schouggins and Doug Williams, who had no degrees, also conflicted with McCormick and Koehl's professed desire to retain only 4 year degree personnel.

   In addition, the following facts are indicative of false motives: (1) TVA's attempt to attribute the decision to transfer Overall to McCormick rather than to Koehl; (2) TVA's assertion that lack of funds resulted in laying off Overall when in fact his position had been budgeted for; and (3) TVA's refusal to re-employ Overall to work on the ice condenser choosing instead inexperienced Stone and Webster personnel for such work. Regarding the lack of funds defense, I note that TVA failed to call Pitzel to refute his conversation with Overall in which he clearly indicated, contrary to Swindell's assertions, that funds had been set aside for Overall's position. It is well established that when a party has relevant evidence within its control which it fails to produce, that failure gives rise to an inference that the evidence is unfavorable to said party. See, e.g. Interstate Circuit, Inc.,v. United States, 306 U.S. 208 (1939); Perkins v. State of Mississippi, 455 F.2d 7 (5th Cir. 1972); Brown v. Pacific Dry Dock, 22 BRBS 284 (1989); Hansen v. Oilfield Safety, Inc., 9 BRBS 490 (1978).

    When these factors are considered in the context of a concerted effort to conceal major safety hazzards by the use of defective ice condenser screws as detailed above and Overall's admitted zeal and competence in dealing with ice condenser problems, I am convinced that the only plausible and credible reason for adverse employment actions, i. e., transfer, layoff and refusal to recall was a desire by TVA officials to retaliate against and prevent Overall from engaging in protected activities.

   Assuming, arguendo, that the facts of this case show a dual motive of both discriminatory and non-discriminatory reasons for the adverse employment actions, a position I do not accept, TVA is nonetheless required to show by clear and convincing evidence that it would have taken the adverse personnel action in the absence of protected activity. Mount Healthy School Dist. v. Doyle, 429 U.S. 274 (1977); Stone and Webster Engineering Corp. v. Herman, 115 F.3d 1568, 1572 (11th Cir. 1997). Although the courts have never precisely defined "clear and convincing", the courts have indicated that it is higher than "preponderance of the evidence" and less than "beyond a reasonable doubt." Pacific Mutual Life Ins. Co. v. Haslip, 499 U.S. 1, 22 n.11 (1991); Grogran v. Garner, 498 U.S. 279, 282 (1991). In this case TVA failed to demonstrate by clear and convincing evidence that the sole reason the Overall's transfer, layoff and subsequent refusal by TVA to re-employ him was because of either a lack of need for a full time ice condenser specialist, a lack of work flexibility, or a shortage of funds. Accordingly, I find that Respondent failed to satisfy the dual motive burden.

   Respondent, TVA, violated Section 210 of the ERA by transferring, laying off and refusal to recall Overall as set forth herein.

   A successful ERA complainant is entitled to affirmative action to abate the violation including reinstatement to his former job, back pay, costs, attorney fees and where appropriate compensatory damages. 42 U.S.C.§ 5851 (b)(2) (B). In the absence of a strong reason for not returning Claimant to his former position, reinstatement should be ordered. Ductile v. Tighe Trucking, Inc. ,Case No. 93-STA-31 (Sec'y. Dec. Oct. 31, 1994); West v. Systems Applications International, Case No. 94-CAA-15 (Sec'y. Dec. Apr. 19, 1995). Since there is no compelling reason for not ordering reinstatement, I hereby direct TVA to reinstate Overall to his former position of power maintenance specialist (SD-4) over the ice condenser system.

   Overall is entitled to back pay from date of his transfer from Technical Support at Watts Bar to TVA Service until properly reinstated at Watts Bar with interest on the back pay at the rate specified for underpayment of federal income tax at 26 U.S.C. § 6621. Creekmore v. ABB Power Systems Energy Service, Inc., Case No. 93-ERA-24 (Dep. Sec'y. Dec., February 14, 1996); Blackburn v. Metric Constructors, Inc. , Case No. 86-ERA-4 ( Sec'y. Dec. Oct. 30, 1991) affirmed in relevant part and rev'd on other grounds, Blackburn v. Martin, 982 F.2d 125 (4th Cir. 1992); Sprague v. American Nuclear Resources, Inc. Case No. 92-ERA-37 (Sec'y. Dec. Dec. 1, 1994). Appropriate deductions should be made for any wages TVA paid Overall while employed in TVA Services and interim earnings from other employment subsequent to his layoff from TVA Services, which earnings could not have been made if Overall had not been unlawfully laid off.

    Overall is entitled to recover for any loss of health, pension and other related benefits that he suffered as a result of either his transfer or layoff by TVA together with reasonable costs, expenses and attorney fees incurred in connection with his complaint. 42 U.S.C. 5851 (b)(2)(B).

   Overall is also entitled to compensatory damages under the Act. To recover compensatory damages, Overall must show that he experienced mental and emotional distress caused by TVA's adverse employment action. Deford, 700 F. 2d at 283, Blackburn v. Martin, 982 F.2d 125, 131 (4th Cir. 1992, citing Carey v. Piphus, 435 U. S. 247, 263-264 and n.20 (1978); Creekmore, Case No. 93-ERA-24, slip. op. at 12. An award may be supported by the circumstances of the retaliatory action including emotional pain and suffering, mental anguish, embarrassment, and humiliation. Id.; Lederhaus v. Paschen, Case No. 91-ERA-13 ( Sec'y. Dec. Oct. 26, 1992). Testimony of medical experts is not necessary, but it can strengthen a case for entitlement to compensatory damages. Busche v. Burkee, 649, F. 2d 509, 519 n.12 (7th Cir. 1981 ), cert. denied, 454 U. S. 897 (1981).

   Overall credibly testified that as a result of the adverse employment actions, he has suffered from depression, loss of self esteem and anxiety and has had to seek the services of psychologist Dr. Gary Leigh and take anti-anxiety medication. Associated with the depression was increased irritability, thoughts of suicide, and lack of interest in sex, hobbies and family affairs. Emotional stress has been increased because of loss of income requiring his son to drop out of college and his wife and daughter to take additional jobs. Even with their help Overall is still in arrears on mortgage and car payments (Tr 203-209). This was confirmed by the uncontradicted and credible testimony of his wife, son and daughter. Dr. Leigh credibly testified that he treated Overall for an adjustment disorder with repressed mood and mixed emotional features and dysthymia associated with problems brought about by his employment situation with TVA. (Tr. 435-451; Jt.Ex. 11).

   In determining the amount of compensatory damages to assess, it is necessary to consider the facts of this case and the awards made in comparable cases. EEOC v. AIC Security Investigations, Ltd., 55 F. 3d 1276, 1285 (7th Cir. 1995); Lederhaus, Case No. 91-ERA-13, slip. op. at 13. The Secretary has awarded compensatory damages in the following

   Accordingly I hereby RECOMMEND that the Secretary of Labor issue an ORDER providing that:

   (1) TVA shall reinstate Overall to his former position of power plant maintenance specialists (SD-4)at Watts Bar, or, if no longer available, to a substantially equivalent position with back pay from November 4, 1995, until his reinstatement and provide him with such other benefits as he would have been entitled to had he not been discriminated against. TVA shall receive credit for all compensation and wages heretofore paid with the exception of his earnings from unemployment compensation.

   (2) TVA shall pay interest on the back pay at the rate specified in 26 U.S.C. § 6621 through the date of compliance with this order.

   (3) TVA shall reimburse Overall for the costs he incurred for health insurance, medical costs, life insurance, and retirement fund.

   (4) TVA shall expunge from Overall's personnel records all derogatory or negative information relating to his employment with TVA with the exception of Overall's November 22, 195 job evaluation which did not constitute part of TVA's discriminatory treatment of Overall.

   (5) TVA shall pay Overall $50,000 in compensatory damages.

   (6) Overall is granted 20 days from receipt of this Recommended Decision and Order in which to file and serve a fully supported application for costs and expenses including attorney fees. Thereafter TVA shall have 10 days from receipt of the application in which to file a response.

   (7) TVA shall post the attached Recommended Notice to Employees (Appendix 1) on all bulletin boards at its Watts Bar and TVA Services facilities, where TVA's official documents are posted, for 60 days ensuring that it is not altered, defaced or covered by other material.

   ORDERED this 1st day of April, 1998, at Metairie, Louisiana.

       CLEMENT J. KENNINGTON
       Administrative Law Judge

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

   After a hearing in which all participants had the opportunity to present evidence, the Administrative Review Board, U. S. Department of Labor, has found that Tennessee Valley Authority, (Respondent) violated the law, and has ordered the posting of this notice.

   The Employee Protection Provision of the Energy Reorganization Act of 1974 (ERA), as amended, 42 U.S.C. § 5851 (1992), prohibits an Employer from discharging or otherwise discriminating against any employee with respect to his/her compensation, terms, conditions, or privileges of employment because the employee:

(A) notified his employer of an alleged violation of the ERA;

(B) refused to engage in any practice made unlawful by the ERA, if the employee has identified the alleged illegality to the employer;

(C) testified before Congress or at any Federal or State proceeding regarding any provision (or proposed provision) of the ERA;

(D) commenced, caused to be commenced, or is about to commence or cause to be commenced a proceeding under the ERA, or a proceeding for the administration or enforcement of any requirement imposed under the ERA;

(E) testified or is about to testify in any such proceeding, or;

(F) assisted or participated or is about to assist or participate in any manner in such a proceeding or in any other manner in such a proceeding or in any other action to carry out the purposes of the ERA.

   WE WILL NOT discharge or otherwise discriminate against employees because they engage in protected activities.

   WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of their rights under the Employee Protection Provision of the ERA as enumerated above.

   WE WILL unconditionally offer Curtis C. Overall immediate and full reinstatement to his former job as a power plant specialist, or if that position no longer exists, to a substantially equivalent position, without prejudice to his seniority or other rights and privileges.

   WE WILL make Curtis C. Overall whole for any loss of earnings, benefits or other forms of compensation he may have lost, plus interest thereon, because we discriminated against him.

   WE WILL pay Curtis C. Overall $50,000.00 in compensatory damages because of the mental or emotional distress imposed upon him as a result of our discriminatory, adverse employment action.

   WE WILL expunge from our records all pertinent derogatory or negative information relating to Curtis C. Overall.

   WE WILL reimburse Curtis C. Overall for costs and expenses, including attorney's fees, incurred in the prosecution of his complaint against Tennessee Valley Authority.

          Tennessee Valley Authority
          Respondent

Dated: _______________________     By: ___________________________
                                      (Representative) (Title)