2. Whether the Respondent knew or had knowledge that the Complainant engaged in protected activity;

    3. Whether the actions taken against Complainant were motivated, at least in part, by Complainant's engagement in protected activity; and

    At one time while Complainant worked as "principal quality engineer" he had six people working under him, but since 1993 he had worked by himself even though he remained classified in a supervisory role. Because of that classification, Complainant occupied a place on the salary scale which put him in a better range to receive raises, and he also participated in a management incentive bonus program which if goals were reached could pay as much as a 15 percent bonus. As previously stated, Complainant's position was fazed out due to cost cutting measures, and in January, 1996, Complainant transferred to the position of "senior engineer" in design. Unbeknownst to Complainant, an internal memo dated January 15, 1996, dictated that despite the January transfer, Complainant's job title would not be changed until April 14, 1996, so that he could get the benefit of the previous years merit increase in his salary. (RX 6).

    Design engineering was Complainant's background and degree in college, and after the "principal quality engineer" position ended in January, 1996, Complainant physically moved to another area and all things seemingly went well for him until mid-April of 1996 when his job title was then changed to that of "senior engineer." When this happened, he lost the management incentive program bonus potential (MIP). He was placed on a different bonus scheme which was called Team Sharing Incentive Plan (TSIP) and for which he could only get a 7 percent bonus though he would have the option at that level to work overtime which he had not had when he was in a supervisory slot. While his salary was not immediately changed, his salary potential was also reduced.

    This change in classification so disturbed Complainant that he wrote a memo to his superiors on May 1, 1996 (RX 19), and he proceeded to file this claim. It is Complainant's position that over the course of time, in 1995 particularly, he had been slow in signing off on certain quality reports or in some instances had refused to do so and that his title change was management's conspiracy to pay him back for that behavior. He stated the last time he signed off on these reports was in November, 1995, but offered no real specifics about his protected conduct at the time of the hearing. In his post-hearing brief, Complainant pointed to his exhibit 5 as providing examples dating from 1994 until November, 1995, which were representative of the various issues about which he made design engineering aware.

    Danny Bost testified at the hearing. He is director of design engineering at Grand Gulf Nuclear Station and has held that position since 1993. He started working with Respondent in 1981 and has known Complainant since that time.

    When Complainant and Mr. Bost discussed Complainant's May 1 memo, he was asked by Mr. Bost what his nuclear safety issues were, and Complainant replied that he did not have any nuclear safety issues which were an immediate threat to health or safety. Complainant was then encouraged by Mr. Bost to contact the Employee Concerns Program, but Complainant declined to do so. The Employee Concerns Program is a confidential program whereby safety, quality and employee issues can be anonymously raised and investigated. Complainant testified that he has never used the Employee Concerns Program in the past, nor had he ever gone to the NRC about any quality or safety issue. Mr. Bost then asked Mr. Curley Hayes, the Director of Quality who also functions as a contact person for the Employee Concerns Program at Grand Gulf, to contact Complainant to see if he could determine what Complainant's safety concerns were.

    Mr. Hayes, who testified by deposition, first met with Complainant on May 3, 1996, and at that time asked Mr. Eiff what his safety and/or quality issues were. Complainant stated that he had no concerns that were an immediate threat to nuclear safety or the public health, and that he was talking to his lawyer and would get back with him regarding his specific concerns. (Exhibit 1 to R-20). Mr. Hayes and Complainant met again on May 6, 1996, and at that time Complainant identified three areas of concern. These areas of concerns were investigated by the Employee Concerns Program, and three Quality Deficiency Reports were initiated on the concerns. The Quality Deficiency Reports were not initiated by Complainant but by Mr. Hayes' organization. The conclusion of that organization was that these concerns were administrative in nature, and not a threat to nuclear safety. (Exhibit 5 to R-20).

    One of the concerns was that the definition of "engineering request" differs in site documents from corporate documents. (Exhibit 1 to R-20). Another concern was that a change which was made on a departmental level to supplier deviation disposition requests ("SDDR") was not reflected in "upper tier," or site-wide, documents. Complainant stated, with regard to this specific complaint, that he did not believe that the change which was made to the SDDR process presented any threat to nuclear safety or was in any wage inappropriate. His concern was that the site-wide procedures had not been amended to reflect this change.

    Complainant conceded that all of the issues which he identified to Mr. Hayes had not been brought up by him to Mr. Bost. Mr. Bost testified that he was not aware that Complainant had these concerns, and was not aware of any general concerns that Complainant had, nor was he under the impression that Complainant had complained to the NRC or any other outside organization about any nuclear safety concerns or issues.

    In support of his position that he was retaliated against for protected activity, Complainant urges that he was treated differently from other individuals whose positions were also eliminated in the design engineering organization. Specifically, he alleged the following: (1) Scott Martin and Hiranmay Goswami were both supervisors in the design engineering organization; (2) Mr. Martin and Mr. Goswami's supervisory positions were eliminated; (3) as supervisors, they were also entitled to participate in MIP and had a salary range consistent with the salary range Complainant enjoyed as a principal quality engineer; (4) after their supervisory positions were eliminated, Mr. Martin and Mr. Goswami were reassigned as engineers within the design engineering organization but, unlike Complainant they maintained their eligibility for MIP and their salary range was not affected.

educational, and other requirements of the position. He likewise is a professional engineer. In addition, the expertise of Mr. Goswami and Mr. Martin was still needed in the organization. Even though their supervisory positions were no longer needed, the engineering functions they performed were still part of the engineering organization. In Complainant's case, his function, that of quality engineer, was no longer being performed by the engineering organization.

    The investigation also established to Mr. Bost that at least one individual who was situated similarly to Complainant was treated the same as Complainant. Bryan Warren, an individual who voluntarily gave up a supervisory position to pursue a technical career path, was made a senior engineer rather than a senior staff engineer. Mr. Bost testified that Mr. Warren had expertise which he would have liked to have retained through the use of the senior staff engineer position, and would have made Mr. Warren a senior staff engineer when he gave up his supervisory position, but that Mr. Warren, like Complainant, was not a licensed professional engineer and was therefore ineligible for that slot. Mr. Warren, then, became reclassified as senior engineer, and lost his entitlement to the MIP and was put into a lower salary range, just as Complainant. Complainant, on the other hand, did not meet any of the qualifications necessary for any of the eight slotted positions, since he had no experience in any of these disciplines, and he was no longer a licensed professional engineer and did not meet the fundamental job requirements.

    In a case such as this the burden is on the Complainant to prove by a preponderance of the evidence that retaliation for protected behavior was a motivating factor in his termination. The requirements for establishing a prima facia case are that (1) the Complainant engaged in protected activity; (2) the Respondent was aware of such conduct; and (3) the Respondent took some action adverse to the Complainant which was more likely than not the result of the protected activity. See Dean Dartey v. Zack Co., 82-ERA-2 (1983). Once Complainant establishes a prima facia case, then Respondent has the burden of producing evidence that the adverse action was motivated by legitimate, non-discriminatory reasons. If Employer is successful, Complainant, as the party bearing the ultimate burden of persuasion, then must show that the proffered reason was not the true reason, but a pretext for retaliation.

    In this instance, I really do not believe it necessary for me to make a determination whether Complainant engaged in protected activity or not, for there is no evidence that Complainant was discriminated against for any concerns he may have

voiced while occupying his position as "principal quality engineer." To the contrary, the evidence all points to the conclusion reached by the Director: that Complainant's reassignment was part of a planned downsizing and that the same action would have taken place in the absence of any alleged protected activity on Complainant's part.

    While Complainant believes the function he was performing as "principal quality engineer" was important to the Respondent and that certain key oversight functions which he performed are not being performed as well without him in the position, he conceded that there were legitimate business reasons for doing away with the position, and that it was only the effect of the elimination of that position on his salary and bonus that he believed to be discriminatory.

    In other words, Complainant agreed that his complaint was that his salary range and entitlement to the MIP were affected by the elimination of his position, while others such as Mr. Martin and Mr. Goswami, whose supervisory positions in the design engineering department were eliminated as a result of downsizing and reorganizations within the department, were not similarly affected. Complainant believes that he was treated differently because he served in a quality function, while Mr. Goswami and Mr. Martin did not.

    The evidence does not support Complainant's allegation of disparate treatment. Mr. Goswami and Mr. Martin were supervisors within the design engineering organization. As the result of the combining of various groups within the design engineering organization and, as a consequence of downsizing, both Mr. Goswami and Mr. Martin were in supervisory positions which were no longer needed. Their supervisory positions were eliminated. As supervisors, Mr. Goswami and Mr. Martin were entitled, under Respondent's policies, to participate in MIP and their supervisory positions carried a higher salary range. After the elimination of these positions, both men, unlike Complainant, were needed as "senior staff engineers." Positions for which they were qualified, and which, under Respondent's policy, justified paying non-supervisors a salary and benefits commensurate with a supervisory position in order to keep their expertise. Complainant was not so qualified, and accordingly was not placed within one of the few non-supervisory positions within the engineering group which carried entitlement to MIP and a salary range commensurate with that of supervisor.

    Simply stated, Complainant has failed to make out a prima facie case of discriminatory treatment. On the other hand, Respondent has shown by clear and

convincing evidence that it has not discriminated against Complainant for engaging in any alleged protected activity. The elimination of the Complainant's former position was a decision which was a long time in making, and one which was contemplated by Mr. Bost's predecessor. The discussions between Mr. Bost's predecessor and Complainant regarding elimination of that position predates any of the specific concerns which Complainant now voices. Complainant has failed to establish any nexus between his activities as a quality engineer within the design engineering organization or the raising of safety or quality issues and the eventual elimination of his position. In fact, Complainant clearly appears not to have had any problem with the elimination of that position until he learned of the effect of the elimination on his salary and bonus program.

In sum, I find that the Complainant's position was eliminated as a result of legitimate business needs resulting from downsizing. I also find that the Respondent did not retaliate or discriminate against Complainant by eliminating his position and reclassifying him as a senior engineer. There is no evidence to support an allegation that any of the actions by the Respondent were motivated by or as a result of an intent to discriminate or retaliate against Complainant for having engaged in alleged protected activities.

    It is my recommendation that Complainant's complaint be DENIED.

    Entered this 26th day of November, 1996, at Metairie, Louisiana.

      C. RICHARD AVERY
      Administrative Law Judge

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