DATE: November 23, 1994
CASE NO.: 94-ERA-15
In the Matter of
ARTHUR J. ROBERTS, JR.,
Complainant,
V.
TENNESSEE VALLEY AUTHORITY,
Respondent.
BEFORE: FLETCHER E. CAMPBELL, JR.
Administrative Law Judge
RECOMMENDED DECISION AND ORDERBackground
On November 12, 1993, Arthur J. Roberts filed a complaint
under the Energy Reorganization Act, 42 U.S.C. §5851 (1988
& Supp. IV 1992) alleging that his employer, the Tennessee Valley
Authority, had violated the employee protection provisions of
the act by terminating him for protected activity within the
scope of this law.
Findings of FactIdentity of Complainant
1. Complainant was employed by Respondent, Tennessee Valley
Authority (hereinafter referred to as TVA), from August, 1991,
through March 29, 1993 (Tr. 6). He was initially hired as the
Manager of Materials and Procurement at the Watt's Bar nuclear
plant and served in that capacity until March 19, 1992 (Tr. 6).
2. When Complainant arrived at TVA, the Materials and
Improvement Program (hereinafter referred to as MIP), that was
developed in June, 1991, was being implemented
[PAGE 2]
(Tr. 18). The purpose of MIP was to "remove a cloud of
uncertainty over the materials at Watts Bar" (Tr. 19).
3. Complainant received the materials he used in his job from
MIP. He was concerned that the procedures used by MIP were
technically inadequate, incomplete or incompetent (Tr.
28-29). He voiced these concerns to MIP Manager, Fred Walsh,
Modification and Engineering Manager, Henry Weber, and to other
managers, peers and superiors as well (Tr. 28). Complainant was
told to "stay out of it" because he was not part of MIP (Tr. 28).
4. In March, 1992, John Garrity, site vice-president, replaced
Fred Walsh with Complainant as MIP Manager (Tr. 29). Complainant
was directed to rewrite the procedures and develop a training
program for the Materials organization in an effort to resolve
quality concerns with the program (Tr. 29-30, EX-3).
5. Complainant's position as MIP Manager lasted approximately
six months. Complainant testified that TVA resisted his efforts
to rewrite the procedures (Tr. 32).
6. On September 24, 1992, Complainant received a notice to
transfer to the employee transition program (Tr. 44, EX 1). On
January 14, 1993, Complainant was given notice that he was being
terminated as a result of a reduction-in-force (hereinafter
referred to as RIF) as of March 29, 1993, if he was not placed in
another position within TVA before that date (Tr.
45, EX-2). The RIF notice stated, in part, the following:
I regret that because of a reduction-in-force,
specifically, the elimination of your position of Project
Manager, Project Management, Manager and Specialist PG-09,
Watts Bar Nuclear Plant, because of a reorganization, it
will be necessary to terminate you from your position
effective March 29, 1993 (EX- 2).
7. Complainant applied for thirty nine positions while in the
employee transition program (Tr. 62). He received interviews for
four or five positions but was not considered acceptable
for any of them. Complainant testified that several available
positions were two pay grades below his and that the interviewers
for these positions used to report to him, but he was not
found acceptable even for these positions (Tr. 63). Complainant
testified that it is his belief that he was rejected for these
positions because his complaints slowed some of the functions.
MIP never completed all that it was created to do and was also
over budget (Tr. 63).
8. Complainant was terminated by TVA pursuant to a RIF on March
29, 1993.
9. In October, 1993, Complainant received copies of the site
standard procedures that he was working on when he was employed
by TVA. The site standard procedures were prepared by Larry
Walker (Tr. 65).
10. Based on the fact that Larry Walker continued to revise
procedures that Complainant had been working on, Complainant
filed a complaint with the Department of Wages and Hours on
November 12, 1993 (Tr. 41).
[PAGE 3]
Testimony of Carl Boyce Corn
11. Boyce Corn is presently employed by TVA as a Human Resources
Manager with the Public Safety Service in Knoxville, Tennessee
(Tr. 71). He had held this position for two months. Mr. Corn
has been employed by TVA for twenty three years.
12. He was assigned to the Human Resources office at the Watts
Bar nuclear plant from July, 1989, through May, 1994 (Tr. 72).
13. Mr. Corn was consulted by either Complainant's supervisor,
Jim Chardos, or Mr. Chardos' supervisor, Henry Weber, with regard
to surplusing Complainant's position (Tr. 82).
14. Mr. Corn reviewed the circumstances to ensure that a RIF was
appropriate. After he was satisfied, Mr. Corn prepared the
notice of transfer to the employee transition program and
the retention register. Mr. Corn also prepared the RIF notice
that Complainant received (Tr.
82-83).
15. Mr. Corn explained that a retention register is a list of
interchangeable positions as determined by a review of the job
description (Tr. 84). There were no compatible jobs for
Complainant's position, as it was a relatively unique description
(Tr. 85).
16. To Mr. Corn's knowledge, neither Mr. Walsh nor Oliver
Kingsley, president of TVA's generating group, which includes
nuclear power, had any role in the decision to surplus
Complainant's position (Tr. 86).
Testimony of Fred Walsh
17. Fred Walsh is presently employed by the TVA as a Manager of
Nuclear Information Planning and Projects (Tr. 92). He has been
an employee of TVA since late 1989.
18. In August, 1991, Mr. Walsh was the Manager of Nuclear
Materials Projects in the corporate organization at Watts Bar
(Tr. 93). Specifically, he was the manager of MIP, which
was designed to resolve regulatory and materials quality
assurance problems raised by the Nuclear Regulatory Committee,
(hereinafter referred to as the NRC) (Tr. 93). Mr. Walsh left
MIP in mid-October, 1991, but returned in mid-February of 1992,
"at the request of Watts Bar to assist Mr. Roberts in getting out
from under some problems with the Nuclear Regulatory Commission"
(Tr. 94). On or about March 19, 1992, Mr. Walsh became the
acting Manager of Materials and Procurement and remained in that
position until mid-June, 1992, when he was replaced by David
Hicks (Tr. 95).
19. Mr. Walsh testified that Larry Walker was employed by the
Procurement Engineering section, which used him as a technical
writer and resolver of problematic issues (Tr. 100).
Specifically, Mr. Walker developed and documented corrective
action plans in response to violations of procedures, rules, or
regulations cited either by the NRC or by TVA's internal
quality assurance organization (Tr. 101). Mr. Walker also made
modifications in the site procedures to resolve corrective action
problems" (Tr. 102).
[PAGE 4]
20. Complainant expressed to Mr. Walsh his "severe
dissatisfaction with the way the MIP procedures were structured"
(Tr. 103).
21. In Mr. Walsh's opinion, Complainant's job as Manager of MIP
entailed a long-term project to make fundamental change to the
way the materials procedures were written. Mr. Walker's job
involved "tweaking" and making both major and minor adjustments
to the existing procedures until Complainant's project was ready
to replace them (Tr. 106).
22. Mr. Walsh did not review any of Complainant's work regarding
this project (Tr. 107). Everything was left for his replacement,
David Hicks.
23. Mr. Walsh testified that he had no role in the decision to
surplus Complainant's position or to RIF him, nor were these
decisions discussed with him. He also stated he played no role
in Complainant's efforts to be placed in another job at TVA (Tr.
108).
24. Mr. Walsh testified that he is not now, nor was he ever a
personal or family friend of Oliver Kingsley (Tr. 108).
Testimony of James Chardos
25. Mr. Chardos is presently employed by the TVA as Manager of
Nuclear Development. He has held that position since August,
1993 (Tr. 118).
26. In January, 1993, Mr. Chardos was the Manager of Projects at
the Watts Bar nuclear plant (Tr. 118). As such, he was
responsible for the overall completion, schedule, scope and
funding for Watts Bar Unit 1 (Tr. 118).
27. Complainant came under his supervision at the end of March,
1992, when Mr. Garrity, the vice-president of the site, informed
him that Complainant would be reporting to him as a project
manager. Complainant's sole responsibility was to rewrite the
procedures for the materials organization (Tr. 120). This was a
newly created position.
28. Mr. Chardos identified the real customer of Complainant's
project as David Hicks, Manager of Materials and Procurement (Tr.
122).
29. Mr. Chardos testified that the basis for the decision to
surplus Complainant's position was that Complainant's rewrites
were not fulfilling the requirements or needs of the Materials
and Procurement Manager (Tr. 124). Mr. Chardos stated that, in
August or early September, Mr. Weber mentioned that Mr. Hicks was
not satisfied with the product and that Mr. Hicks planned to have
any further or future changes or small modifications done by
someone else in the organization (Tr. 125). Later, Mr. Chardos
testified that there was no longer a need to have these
procedures rewritten (Tr. 126).
30. As there was no longer a need for Complainant's position,
Mr. Chardos contacted Mr. Corn in Human Resources to begin
drawing up a surplus notice (Tr. 126). To his knowledge,
Mr. Walsh played no part in the decision to surplus or RIF
Complainant (Tr. 127-128).
[PAGE 5]
31. Mr. Chardos stated that, after Complainant left Watts Bar,
someone else continued to "tweak the procedures" and modify them
as part of normal good practice, but that that person did not
totally rewrite the procedures as Complainant had been doing (Tr.
128).
32. Mr. Chardos testified that he did not have any direct
knowledge regarding the issues or concerns raised by Complainant
regarding quality assurance, quality control, or safety-related
issues involving MIP (Tr. 128-129).
Testimony of R. David Hicks
33. Mr. Hicks is currently employed by the TVA as a strategic
consultant for the materials organization of the Information
Services Department (Tr. 139). He has been employed by
TVA for the past twenty years and has been at his current
position since March, 1994.
34. Between April and August, 1992, Mr. Hicks was acting as the
Watts Bar Materials and Procurement Manager two to three days a
week (Tr. 140). As such, he was responsible for the Procurement
Department, the Inventory Control Department, and the warehousing
operation. He also had a dotted-line responsibility to the
Procurement Engineering Group for technical and quality issues.
35. It was Mr. Hicks' understanding that Complainant's
assignment as Project Manager was to do a complete rewrite of the
procedures with a new methodology. Complainant was going to
break the site standard practices into three types of documents.
One would contain only the requirements which could be audited by
the NRC. The second level would contain day-to-day instructions
on how to get things done and the third level would be a training
document (Tr. 144).
36. Mr. Hicks testified that Larry Walker was the technical
quality advisor at Watts Bar when he arrived. At that time, Mr.
Walker was responsible for "tweaking the procedures."
Any time there was a corrective action document or a problem, Mr.
Walker would change that particular section of the procedure and
do subsequent training on that section (Tr. 145).
He was also involved in preparations for the operational
readiness review, which is a requirement for starting the Watts
Bar plant (Tr. 146).
37. From June, 1992, until March, 1994, Mr. Walker's duties and
responsibilities remained the same, except that the amount of
work assigned to him was increased (Tr. 147). Mr. Walker's role
was and is to continue to fix the existing procedures by
"tweaking" them (Tr.
147).
38. In August, 1992, Mr. Hicks received work product from
Complainant regarding his revamp of the procedures (Tr. 152).
Mr. Hicks reviewed it, and he also gave copies to Don Owen, his
nuclear storage manager, and to Jack Davidson, his former storage
manager at Brown's Ferry, for their comments and review. Mr.
Hicks felt that the procedures were too vague: "they did not
really assign responsibilities" (Tr.153-154). Mr. Hicks
testified that Mr. Davidson agreed that the procedures were too
vague and ambiguous (Tr. 155).
39. It was Mr. Hicks' opinion that Complainant's effort was not
accomplishing what he
[PAGE 6]
had hoped it would. Mr. Hicks felt that the project was going to
require a lot of his or his people's time and energy, which he
did not think would be worthwhile (Tr. 157). Therefore,
Mr. Hicks was not interested in proceeding on with the project
and informed Mr. Chardos that he should find Complainant other
work. Mr. Hicks testified that significant improvement was made
on the existing site standard practices, and he chose to continue
to use the existing procedures rather than continue to rewrite
them (Tr. 158). "It was just a management decision on my part"
(Tr. 158).
40. Mr. Walsh had no role in reviewing Complainant's work
product and he did not provide any feedback regarding
Complainant's work or the work he was producing, to Mr.
Hicks' knowledge (Tr. 158).
41. Mr. Hicks states that he had several casual conversations in
the "breezeway" regarding Complainant's work product (Tr. 159).
He also provided Complainant with the written comments of Mr.
Owen and himself (Tr. 159).
42. Mr. Hicks testified that he played no role in the decision
to surplus Complainant. He stated that, to the best of his
knowledge, Mr. Walsh did not play any role in the decision to
surplus Complainant (Tr. 159).
43. Mr. Hicks has documented scheduled meetings with Complainant
on July 1, 9 and 13, August 6, and September 14, 1992 (Tr. 164).
The first meetings discussed philosophy and the latter meetings
discussed product. Mr. Hicks first received a draft of
Complainant's work product in August (Tr. 164).
44. Mr. Hicks informed Complainant that the major rewrite was
not a concept that he was going to be able to live with (Tr.
167). Mr. Hicks preferred that Mr. Walker continue to
revise the procedures as he had been doing rather than invest the
time and effort of his people in a major rewrite (Tr. 168). Mr.
Hicks stated, "I had made a management decision to live
with the existing procedures and continue the tweaking" (Tr.
168).
45. Mr. Hicks felt that Complainant's procedures were too vague
because the procedures used such terms as "as appropriate" and
"when necessary." To him, a procedure is not discretionary and
it should tell the operator when something is necessary (Tr.
174).
Discussion
This case arises under the Energy Reorganization Act, 42
U.S.C. § 5851. Arthur J. Roberts, the Complainant, alleges
that he has been discriminated against in contravention of the
employee protection provisions of the Energy Reorganization Act.
Specifically, he alleges that he was terminated by the TVA
because he raised quality concerns regarding the materials he
received from the Materials and Improvement Program at the Watts
Bar nuclear plant (Finding Nos. 3, 7).
Statute of Limitations
Before reaching the merits of the case, an issue regarding
the statute of limitations
[PAGE 7]
must first be resolved. The statute states that "any employee
who believes that he has been discharged or otherwise
discriminated against by any person in violation of subsection
(a) may, within 180 days after such violation occurs, file (or
have any person file on his behalf) a complaint with the
Secretary of Labor alleging such discharge or discrimination."
42 U.S.C. §5851 (b)(1). The filing period commences on the
date that Complainant is informed of the challenged employment
decision, not at the time the effects of the decision are
ultimately felt. Delaware State College v. Ricks, 449
U.S. 250, 258 (1980); Ballentine v. Tennessee Valley
Authority, Case No. 91-ERA-23, Sec. Final Dec. and Order of
Dismissal, September 23, 1992; See alsoHoward v.
Tennessee Valley Authority, Case No. 90-ERA-24, Sec. Final
Dec. and Order of Dismissal, July 3, 1992, slip op. at 2-3,
aff'd sub nom. Howard v. U.S. Department of Labor,
959 F.2d 234 (6th Cir. 1992).
In this case, Complainant complained to several managers,
peers and superiors that the procedures used to prepare the
materials he requested from MIP were technically inadequate,
incomplete or incompetent (Finding No. 3). In March, 1992, he
was named MIP manager and was charged with rewriting the
procedures and developing training in an effort to resolve
quality concerns with the program (Finding No. 4). However,
Complainant was advised on September 24, 1992, that his position
was being surplused and that he may be terminated through
reduction-in-force procedures (Finding No. 6; EX 1). Thereafter,
Complainant was transferred to the employee transition program
(Finding No. 6). On January 14, 1993, Complainant received
notice that he would be terminated pursuant to a
reduction-in-force on March 29, 1993 (Finding No. 6, EX-2). If
Complainant's contentions are correct, these actions constituted
discrimination in that they resulted in adverse actions against
him as a result of his whistleblowing activities.[1]
Complainant's complaint would have concededly been timely if it
had been filed on or before July 24, 1993. His complaint was
actually filed with the Department of Wages and Hours on November
12, 1993 (Finding No. 10). The fact that Complainant's filing of
his complaint was not timely is not contested (Complainant's
brief, at 2). However, Complainant argues that the doctrine of
equitable tolling applies to this case.
Equitable Tolling
The Secretary of Labor and the courts have recognized the
doctrine of equitable tolling of the statute of limitations
School District of City of Allentown v. Marshall, 657
F.2d 16 (3d Cir. 1981). The restriction on equitable tolling,
however, must be scrupulously observed. Id. at 19. The
doctrine of equitable tolling is generally appropriate in
three situations:
1) the employer has actively misled the complainant
respecting the cause of action;
2) the complainant has in some extraordinary way been
prevented from asserting his rights, or;
3) the complainant has raised the precise statutory claim
in issue but has mistakenly done so in the wrong forum Id.
at 20; citingSmith v. American President Lines,
Ltd., 571 F.2d 102, 109 (2d Cir. 1978).[2]
Complainant's arguments can be said to address situations one and
two, the concealment and prevention issues.
[PAGE 8]
A. Prevention
Complainant argues that he was prevented from asserting his
rights because he did not have notice of the actual filing
requirements. The testimony of record does not provide
sufficient information to make a ruling on whether the required
notices were posted at Watts Bar. However, a ruling is not
necessary to the decision of this case. Complainant did not
begin to assert a right to file a cause of action until October,
1993, when he received and reviewed the site standard procedures
he had been working on while employed as MIP Manager at Watts
Bar. After reviewing the procedures, Complainant was of the
opinion that he had been discriminated against and quickly filed
a complaint (Finding No. 10). Complainant's brief states: "It
is apparent from the record that, once he had reason to
believe he had been unjustly dismissed, Mr. Roberts did not
sit on his hands when he knew something was wrong with his
termination" (Complainant's brief at 1)(emphasis added). Even
if the procedures were adequately posted, it appears that
Complainant would not have been inclined to act until October,
1993, two months after the statute of limitations had expired.
Therefore, Complainant's argument regarding notice does not
justify a finding of equitable tolling in this case.
B. Concealment
Complainant also argues that Respondent fraudulently
concealed the reason for his termination. Three elements must be
proven to show fraudulent concealment.
1) wrongful concealment of its action by respondent;
2) failure of complainant to discover the operative facts
that are the basis of the cause of action within the limitations
period; and;
3) complainant's due diligence until discovery of the
facts.
Hill and Ottney v. Tennessee Valley Authority,
87-ERA-23,24, Sec. Dec. at 4 (Apr. 21, 1994); See alsoDavco Corp. v. Goodyear Tire & Rubber Co., 523 F.2d 389,
394 (6th Cir. 1975).
The Secretary of Labor has held that equitable tolling applies
only where a respondent has concealed its actions which
give rise to a cause of action, not when it conceals its
motives. Ottney, 87-ERA-23, 24, at 6, (emphasis in
original). In Merrill v. Southern Methodist Univ., 806
F.2d 600 (5th Cir. 1986), the court held that the time limit
begins to run from the date plaintiff knew of the alleged
discriminatory act because "[i]t might be years before a
person apprehends that unpleasant events in the past were caused
by illegal discrimination. In the meantime, under
[Complainant's] theory, the employer would remain vulnerable to
suits based on these old acts." Id., citingDelaware State College, 449 U.S. 250 (1980); see
alsoChapman v. Homco, Inc., 886 F.2d 756, 758 (5th
Cir. 1989), cert. denied, 494 U.S. 1067 (1990)(age
discrimination complaint filed only two days late dismissed as
untimely although plaintiff did not learn of replacement by
younger worker until weeks after discharge). The Secretary
further indicated that Complainant's position would require a
respondent "either to confess violation of the ERA or be subject
to suit for an indefinite period until the Complainant obtains
evidence of Respondent's illegal motive" Id. at
6-7. The adoption of such a rule would effectively eliminate the
statute of limitations in ERA cases.
[PAGE 9]
The adverse action alleged by Complainant in this case was
his termination. This action was clearly communicated to
Complainant. On September 24, 1992, Complainant was informed by
the letter that ". . . as a result of lack of work your position
has been determined to be surplus" (EX-1). Complainant was then
transferred to the employee transition program. By letter dated
January 14, 1993, Complainant received notice that he was being
terminated pursuant to a reduction-in-force because of a
reorganization (EX-2).
If Respondent had concealed the action taken against
Complainant, i.e., the fact that he had been terminated,
the action might be subject to equitable tolling. Respondent
did not prevent Complainant from discovering his cause of action
against it merely because it did not openly state that he was
being terminated in response to his whistleblowing activities.[3]
While the site standard procedure obtained by Complainant in
October, 1993, may be evidence of a discriminatory motive, the
fact that Complainant became aware of its months after the
statute of limitations expired does not warrant equitable
tolling.
Because Complainant has not demonstrated that the doctrine
of equitable tolling is applicable here, I need not reach the
merits of this case. However, assuming that, contrary to
the view stated above, Claimant has made a case for equitable
tolling, I would reach the following conclusions on the merits.
The Prima Facie Case
To invoke the protection of the whistleblower statute, an
employee must show that: 1) he engaged in protected conduct, 2)
the employer was aware of that conduct, and 3) the employer took
some adverse action against him. The employer must also present
evidence to raise the inference that the protected conduct was
the likely reason for the adverse action. Dartey v. Zack
Company of Chicago, Case No. 82-ERA-2, Sec. Dec. and Order,
slip op. at 6-9.
If the employee successfully establishes a prima
facie case, the burden is then shifted to the employer, who
must rebut the presumption of disparate treatment by presenting
evidence that the alleged disparate treatment was motivated by
legitimate nondiscriminatory reasons. Id. If the
employer is likewise successful, the burden shifts once again to
the employee, who has the opportunity to demonstrate that the
reasons proffered by the employer were not the true reasons for
the employment decision. In that event, the trier of
fact must decide whether the employer's proffered explanation is
credible or whether the discriminatory reason alleged by the
complainant was a more likely motivation.
Respondent urges that Complainant has not proved that he
engaged in activity protected by the ERA. Additionally,
Respondent contends that Complainant did not carry his
burden of showing that any of the decisionmakers were aware that
he raised concerns regarding the procedures used by the Materials
Improvement Program, even assuming that raising such concerns
would constitute activity protected by the ERA. Respondent does
not dispute that it is an employer covered by the ERA or that
Complainant was a covered employee during the relevant time
period.
Protected Conduct[PAGE 10]
The Secretary has consistently held that reporting safety
and quality concerns internally to one's employer is a protected
activity under the ERA and other environmental statutes
enumerated in 29 CFR 24.1 (1992) Conaway v. Valvoline Instant
Oil Change, Inc., 91-SWD-4 (Dec. 4, 1992); citingKansas Gas & Electric Co. v. Brock, 780 F.2d 1505,
1510-1512 (10th Cir. 1985), cert. denied, 478 U.S. 1011
(1986); see alsoHelmstetter v. Pacific Gas & Electric
Co., Case No. 91-TSC-1, Final Dec. and Order, Jan. 13, 1993,
citingGuttman v. Passaic Valley Sewerage Comm'rs,
Case No. 85-WPC-2, Final Dec. and Order, Mar. 13, 1992, slip op
at 11, appeal docketed No. 92-3261, 3d Cir. May 13, 1992;
Wagoner v. Technical Products, Inc., Case No. 87-TSC-4,
Final Dec. and Ord., Nov. 20, 1990, slip op. at 8-12; Willy
v. The Coastal Corp., Case No. 85-CAA-1, Dec. and Order of
Rem., June 4, 1987, slip op. at 3. Complainant lodged complaints
with Fred Walsh and other managers, peers, and supervisors on the
TVA Watts Bar staff regarding the drafting and performance of
procedures which were supposed to comply with regulations
promulgated by the Nuclear Regulatory Commission (See
fn.1, Finding No. 3). These internal complaints are enough to
afford Complainant protection under the whistleblower regulations
and thus fulfill the first element of the prima facie
case.
Employer's Awareness of Conduct
Complainant is not required to prove "direct personal
knowledge" on the part of the employer's final decisionmaker that
the employee engaged in protected activity. The law will
not permit an employer to insulate itself from liability by
creating "layers of bureaucratic ignorance" between a
whistleblower's direct line of management and the final
decisionmaker. Frazier v. Merit Systems Protection Board,
672 F.2d 150, 166 (D.C. Cir. 1982). Therefore, constructive
knowledge of the protected activity can be attributed to the
final decisionmaker. Id.; See alsoLarry v.
Detroit Edison Co., No. 86-ERA-32, ALJ Dec. and Order at 6,
October17, 1986; Barlik v. TVA, 88-ERA-15, Sec. Final
Dec. and Order, Apr. 7, 1993.
It does not appear that Boyce Corn, who was ultimately
responsible for surplusing and RIF-ing Complainant's position
(Finding Nos. 14, 16, Tr. 82-83, 86), was aware of Complainant's
complaints regarding MIP. However, Complainant made his
dissatisfaction perfectly clear to the MIP Manager, Fred Walsh,
and to the Modification and Engineering Manager, Henry Weber,
among others (Finding Nos. 3, 20). Mr. Corn testified that he
was consulted by either Complainant's supervisor, Jim Chardos, or
Mr. Chardos' supervisor, Henry Weber, with regard to surplusing
Complainant's position. (Finding No. 13). In any event, Weber
conversed with Jim Chardos regarding the surplusing of
Complainant's position (Finding No. 29, Tr. 125). Because Mr.
Weber was aware of Complainant's complaints, his involvement in
the decision to surplus Complainant's position imputes
constructive knowledge to the ultimate decisionmaker, Boyce Corn.
Complainant has met the second element of the prima facie
case.
It is clear that Complainant has met the third element as
well: adverse action was taken against him, i.e.,
Complainant's position was surplused and, ultimately, he was
terminated.
Rebuttal of Presumption by Employer[PAGE 11]
Although I find that Complainant has established a prima
facie case, Employer has successfully rebutted the
presumption of disparate treatment by presenting compelling
evidence that the treatment was motivated by legitimate,
nondiscriminatory reasons. Mr. Roberts states that he was told
the reason for his termination was that he was no longer needed
in the job he had been performing, i.e., rewriting the
standard site procedures (Tr. 41, Complainant's brief at 4).
This reason conforms with the testimony of the "customer" of the
project, David Hicks (Finding Nos. 39, 44).
Mr. Hicks stated that he made a management decision not to
continue Complainant's project because he was dissatisfied with
Mr. Roberts' work (Finding Nos. 38-39). He preferred that Larry
Walker, who had been primarily responsible for developing,
documenting and implementing corrective action plans in response
to violations of procedures, rules, or regulations cited either
by the NRC or by TVA's internal quality assurance program,
continue to function in that capacity (Finding Nos. 21, 37, 44).
Mr. Walker's position, as described by Fred Walsh, includes
"tweaking" (i.e., making both major and minor adjustments
to the existing procedures) (Finding No. 21). While the initial
plan was to have Mr. Walker continue to "tweak" the procedures
until Complainant's project was ready to replace them, Walker was
running the procedures at MIP even before Complainant arrived at
Watts Bar in August, 1991 (Tr. 53). David Hicks decided that it
would be more beneficial to his project for Mr. Walker to
continue to revise the procedures as he had been doing rather
than invest the time and effort of his people in a major rewrite
(Finding No. 44). Hicks' testimony is credible and is not
specifically contradicted. Hicks denied, without contradiction,
any knowledge of Complainant's complaints. One of Complainant's
supervisors, Jim Chardos, denied any direct knowledge of
Complainant's complaints (Finding No. 32). Another official
above Complainant, Weber, who initiated the procedures that
ultimately led to the RIF, new about the complaints, but there is
no persuasive evidence that 1) Complainant's supervisors were
trying to RIF him, as distinguished from placing him in another
position within TVA,[4] or that 2) their actions were influenced
by Complainant's complaints.
Although Complainant has presented a prima facie case
under the ERA, he cannot prevail based on the evidence of record.
Far from being penalized, when Complainant complained about the
quality of the procedures used in MIP, he was put in
charge of revising those very procedures. It is entirely
proper for the employer to make a managerial decision to have
Larry Walker continue to "tweak" the procedures, as he was doing
before Complainant arrived on the scene, as opposed to completing
Complainant's major rewrite. The weight of the evidence is to
the effect that this decision was made because "the customer"
believed that Mr. Roberts was not doing a good job. The fact
that Complainant disagrees with the employer's handling of the
situation does not support a claim of discrimination based on
protected activity. For the reasons stated above, the claim
should be denied both on procedural and substantive grounds.
RECOMMENDED ORDER
IT IS ORDERED THAT Complainant's cause of action be
dismissed as untimely filed.
[PAGE 12]
FLETCHER E. CAMPBELL, JR.
Administrative Law Judge
FEC/LMF
November 23, 1994
Newport News, Virginia
[ENDNOTES]
[1] The Secretary of Labor has held that purely internal
complaints are protected. See, e.g.,Wilson v. Bechtel
Constr., Inc., No 86-ERA-34, D&O of SOL, at 2-5 (Feb.
9, 1988); Smith v. Norco Technical Servs., et al., No.
85-ERA-17, D&O of SOL, at 3 (Oct. 2, 1987) and cases cited
therein. As Complainant's complaints to Fred Walsh
directly involved the drafting and performance of procedures
which were supposed to comply with regulations promulgated by the
Nuclear Regulatory Commission (Tr. 67-68; 10 CFR 50, appendix B),
I find that he engaged in protected activity.
[2] The Supreme Court has recognized that failure to comply with
employment discrimination filing periods is not a jurisdictional
bar to maintaining a cause of action but instead is subject
to equitable modification. Zipes v. Transworld Airlines,
Inc., 455 U.S. 385, 393 (1982).
[3] In addition, if Complainant's arguments are taken as true, he
should have been aware that adverse action had been taken against
him when he applied for thirty-nine positions while in the
employee transition program and was rejected for all thirty-nine,
despite the fact that several available positions were two pay
grades below his and that the interviewers for these positions
used to report to him (Finding No. 7). The requirement of
diligent inquiry places an affirmative duty on the potential
complainant to investigate adverse actions against him
Hill and Ottney, 87-era-23, 24, at 9. Complainant failed
to diligently investigate his lack of success in qualifying for
placement in another TVA position which also defeats his
claim for equitable tolling.
[4] Although Complainant stated that he applied for and was
denied placement in thirty-nine positions while in the employee
transition program, there is no persuasive testimony that he
was the best qualified applicant for any of these positions.
Additionally, there is no persuasive testimony that he was turned
down for these positions based on the complaints he made.
