1 The statute provides, in pertinent part, that "[n]o 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" notified a covered employer about an alleged violation of the ERA or the Atomic Energy Act (AEA) (42 U.S.C. § 2011 et seq. (2000)), refused to engage in a practice made unlawful by the ERA or the AEA, testified regarding provisions or proposed provisions of the ERA or AEA, or commenced, caused to be commenced or is about to commence or cause to be commenced, or testified, assisted or participated in a proceeding under the ERA or AEA to carry out the purposes of this chapter or the AEA as amended. 42 U.S.C.A. § 5851(a)(1).
2 At the close of the first day of the two-day hearing, the ALJ announced that he owned stock in SCE&G's parent company, SCANA Corp. The ALJ explained that he had been unaware of the corporate relationship between SCE&G and SCANA until earlier in the day, when he admitted into evidence a document carrying the SCANA logo. Hearing Transcript 318. The parties stated that they did not have any objection to the ALJ continuing to preside over the hearing and deciding the case. Id. Administrative Review Board review of the case record revealed the foregoing exchange, but the record contained no further indication regarding the value of the stock or other information that would be relevant to the ethics regulations at 5 C.F.R. Part 2635, including the 18 U.S.C. § 208 disqualifying financial interest provision that is implemented at Part 2635 and Part 2640. Following inquiries on behalf of the Board by the ARB General Counsel, the ALJ notified the Board that he had consulted with the Designated Agency Ethics Official in May 2001, who had advised that the circumstances did not require the ALJ's recusal from this case. ARB Gen. Coun. ltr. to ALJ dated Nov. 18, 2003; ALJ ltr. to Gen. Coun. dated Nov. 20, 2003, with June 1, 2001 e-mail msg. from Designated Agency Ethics Official attached; see 5 C.F.R. § 2635.107(b) (2001). The parties were served copies of both the General Counsel's and the ALJ's letters and neither party has raised any objection. It is thus unnecessary for us to address this issue further.
3 We will use the following abbreviations to refer to the case record: Hearing transcript, HT; Joint exhibit, JX; Complainant's exhibit, CX; Respondent's exhibit, RX.
4 This case involves very few disputed facts and our disposition turns on the legal significance of the facts that the record clearly establishes. The ALJ questioned the credibility of only one witness. He discredited portions of the testimony of Human Resources supervisor Jerry Stroud regarding the reasons the company terminated Smalls in December 2000. The ALJ discredited the portion of Stroud's testimony that SCE&G adduced because he found it to be an attempt to recant Stroud's earlier testimony, which had been given in response to questioning by Smalls. R. D. & O. at 16. Smalls represented himself at hearing and thus personally questioned his former co-workers regarding the deteriorating relationship with him on the SIMPLEX team in 1999. The credibility of the testimony given by those co-workers – Joy and Lyons – is enhanced by the fact that they responded with very straightforward, non-evasive answers to questions about Smalls' disruptive conduct when questioned by Smalls himself. See discussion infra at pt. IIB4.
5 Smalls actually held four different positions in the computer field over the years he worked at VCSNPS: Technical Specialist II, 1990-91; Computer Specialist II, 1992; Systems Programmer Analyst, 1993; Process Control Analyst, 1993-2000. CX 9, Mar. 5, 1997 grievance statement at 2.
6 The parties stipulated that the termination action was not at issue in this case, although Smalls was allowed to introduce documents and adduce testimony regarding the events that transpired during his last year at SCE&G. HT 7; see R. D. & O. at 2.
7 It is thus unnecessary for us to determine whether Smalls was acting on a reasonable, good faith belief that a nuclear safety-related standard was being violated when he raised each concern about the SIMPLEX system. Nonetheless, SCE&G's contention that Smalls' concerns were confined to fire safety and did not relate to nuclear safety, SCE&G Brief at 19-20, warrants comment. As the ALJ found, concerns related to nuclear power plant fire safety clearly fall under the category of safety concerns protected by the ERA. See, e.g., Stone & Webster Eng'g Corp. v. Herman, 115 F.3d 1568 (11th Cir. 1997).
8 The ALJ characterized Stroud's testimony as direct evidence of discriminatory intent. However, this testimony pertained to Smalls' termination in December 2000, not his unfavorable personnel evaluation in December 1999. Therefore, we find that Stroud's testimony regarding the reasons for the December 2000 termination is not very relevant to SCE&G's motivation in rating Smalls "below expectations" in December, 1999. We discuss Stroud's testimony concerning Smalls' history of interpersonal skills issues infra, at pt. IIB2.
9 The March 1997 grievance alleged race-based discrimination and cronyism but did not allege discrimination based on ERA-protected activity. CX 12.
10 Furthermore, the record provides no basis for concluding that Smalls was justifiably provoked to use such language, either by an unreasonable response to his technical concerns or because the hazards that he perceived posed an immediate danger at the power plant. See n.13, infra.
11 As noted under pt. IIB3 supra, Smalls complained that management had failed to formally appoint him to the position of Computer System Engineer with full-time responsibility for the SIMPLEX computer system. RX 2 at 3-4, 9; RX 3 at 16; see HT 74-79 (Barton).
12 The NRC inspection did find one violation of NRC requirements, but it was not related to the fire protection system at the plant. RX 18. The "non-cited violation" concerned "an inadequate surveillance procedure used to verify that the emergency core cooling discharge piping is full of water." Id. at Executive Summary.
13 The employee provocation doctrine does not apply to excuse Smalls' objectionable conduct. Smalls did not engage in impulsive, uncalculated behavior but instead deliberately and unnecessarily relied on abrasive language and a confrontational approach. See Harrison v. Roadway Express, Inc., ARB No. 00-048, ALJ No. 99-STA-37, slip op. at 9-15 and cases there cited (ARB Dec. 31, 2002).