Date: March 1, 1995
Case No: 94-ERA-36
In the Matter of
CARL M. REMUSAT
Complainant,
v.
BARTLETT NUCLEAR, INC.
Respondent.
Appearances:
Audrey P. Forrest, Esq.
For the Claimant
Kenneth B. Stark, Esq.
For the Respondent
Before: PAMELA L. WOOD
Administrative Law Judge
RECOMMENDED DECISION AND ORDER
This is a proceeding brought under the Energy Reorganization
Act of 1974 ("ERA"), 42 U.S.C. § 5851, and the regulations
promulgated thereunder at 20 C.F.R. Part 24.[1] These
provisions protect employees against discrimination for
attempting to carry out the purposes of the ERA or of the Atomic
Energy Act of 1954, as amended, 42 U.S.C. § 2011, et
seq. The Secretary of Labor is empowered to investigate and
determine "whistleblower" complaints filed by employees at
facilities licensed by the Nuclear Regulatory Commission ("NRC"),
who are discharged or otherwise discriminated against with regard
to their terms and conditions of employment, for taking any
action relating to the fulfillment of safety or other
requirements established by the NRC.
[PAGE 2]
In the instant case, the District Director of the Cleveland,
Ohio regional office of the Employment Standards Administration,
United States Department of Labor, found after an investigation
that Complainant Carl M. Remusat's termination by Respondent
Bartlett Nuclear, Inc. was not based on discrimination; the
District Director found that Complainant was terminated because
of his failure to follow proper procedures. Specifically, the
District Director found that Complainant was terminated because
on February 19, 1994, he entered a contaminated area without
signing in on the appropriate Radiation Work Permit, and then, on
February 22, 1994, Complainant entered a radiologically
restricted area without his thermoluminescent dosimeter.
Complainant appealed the Employment Standards
Administration's order to the Office of Administrative Law Judges
by facsimile transmission which was received on August 15, 1994
and by Western Union Mailgram which was received on August 16,
1994. A hearing was scheduled for September 13 and 14, 1994.
Respondent requested a continuance of the formal hearing because
it did not receive the request for hearing filed by Complainant,
and therefore, Respondent was given less time to prepare for the
hearing. On September 19, 1994, the undersigned Administrative
Law Judge continued the case. The hearing was held on October 12
and 13, 1994 in Cleveland, Ohio. The parties were given the
opportunity to submit post-hearing briefs; Complainant's brief
was received on January 4, 1995; Respondent's brief was received
on January 5, 1995.
BACKGROUND
Complainant is Carl Mitchell Remusat ("Complainant") who
currently resides in Orlando, Florida. Respondent Bartlett
Nuclear, Inc. ("Respondent"), whose business address is in
Massachusetts, employed Complainant as a junior health physics
technician at the Perry Nuclear Power Plant in Cleveland, Ohio.
Respondent is in the business of providing radiological
protection services to the nuclear power industry. Specifically,
Respondent provides health physics technicians at the junior,
senior, and management level. The responsibilities of a health
physics technician include determining where the radioactive
areas are within the plant, deciding how to deal with radioactive
material, determining what kinds of safeguards and protection
employees have to use while they are working with radioactive
material, and controlling egress and ingress into these
radiologically restricted areas. (TR 18).
[PAGE 3]
Most of Respondent's work is contracted for refueling
outages. A refueling outage occurs approximately every 18
months, which varies according to the type of fuel the utility
uses. During an outage, the nuclear power plant is shut down and
the workers replace the used-up fuel bundles. This work is done
around the clock so that the plant can get on-line and start
producing fuel as soon as possible. (TR 619).
The health physics technicians' work is conducted primarily
within the radiologically restricted area ("RRA"). To enter the
RRA the worker must have a radiation work permit ("RWP"). There
are three different types of RWPs. First, the access control
radiation work permit (RWP-0) is used when accessing the RRA
where no radiological work is performed; the access control RWP
number is "0000." Second, a general radiation work permit allows
entry to the RRA to perform a broad scope of tasks with minor
radiological significance; the access control RWP number used to
conduct general radiation work is "6001." Finally, for specific
radiation work, specific radiation work permits are issued.
(See RX F, p.8).
To enter the RRA, workers must have two types of radiation
detectors or dosimeters. (TR 636-637). A thermoluminescent
dosimeter ("TLD") is a personal monitor that is required by the
Nuclear Regulatory Commission. (TR 634). A Merlin-Gerin ("MG")
is a direct reading dosimeter that is required by the Perry
Nuclear Power Plant. The MG has a small display that gives a
continuous readout of the radiation dose a person receives. The
TLD must be read off-site by an independent vendor and is
considered much more accurate than the MG. (TR 636-637; see
also RX F).
Testimony of the Complainant
Complainant testified that he graduated from Central
Florida Community College with an Associates Degree in radiation
protection. Complainant's curriculum included radiological
courses as well as courses in mathematics and physics.
Complainant also worked at an internship at the University of
Florida. (TR 42).
Respondent, which is essentially a manpower company, sent
Complainant to the Perry Ohio Nuclear Power Plant facility owned
and operated by Cleveland Electric Illuminating Company ("CEI").
Complainant testified that Respondent uses a "qualification card"
to train its employees to work within a nuclear power plant.
Complainant explained that Mr. Craig Mix ("Mix"), who worked for
CEI, qualified him, but Complainant emphasized that his
[PAGE 4]
qualification only took two and one half hours and that he was
never fully qualified. Complainant explained that once a junior
health physics technician is completely qualified, he or she is
permitted to work throughout the plant without supervision.
However, a junior health physics technician does not have to be
fully qualified in order to work within the plant if he or she is
supervised by a senior technician. (TR 49-53).
Complainant testified that when he first started working at
CEI in January of 1994, his only job entailed monitoring the PCM-
1s which are personal body monitors or frisking devices.
(See RX F, RX J). Complainant testified that on several
occasions he informed his supervisors that he was not qualified
to work with the PCM-1s. Despite his supervisors' assurances of
help, Complainant testified that he never received any assistance
or guidance while he worked with the PCM-1s. (TR 59-60).
On Saturday February 19, 1994, Complainant reported for work
at 7:00 a.m. Complainant logged in at RWP-0 and started working
with the PCM-1s. (TR 74). While working with the PCM-1s, Mr.
Rick Coco ("Coco"), an employee of CEI and a senior health
physics technician, told the Complainant to come with him to
conduct a clean survey, which is a survey of the general walkways
of the plant. Mr. Phil Fahle ("Fahle"), Complainant's
supervisor, verified his assignment. (TR 75-76).
Complainant explained that he was still logged in on RWP-0
while conducting the clean survey even though Coco and the
Complainant were within a Radiologically Restricted Area.
Complainant and Coco discovered a water spill and started to rope
off the spill. Complainant testified that craftsmen, who are
welders and pipe fitters, requested H.P. (health physics)
coverage. Coco told the Complainant to dress in full protective
clothing. (TR 79). Complainant went to Fahle and told him that
he was not sure what he was doing; Fahle responded by telling the
Complainant that he could only learn the procedures by doing the
work and that he would be supervised by the senior health physics
technicians. At this time, Ms. Lynn Muelhauser ("Muelhauser"), a
senior H.P. (health physicist), started supervising Complainant's
work. (TR 83).
After dressing out in full protective clothing, Complainant
went back to the fuel handling building. Muelhauser, who was
supervising the Complainant from about 100 feet away, motioned
for the Complainant to go into a roped-off area. (TR 87-88).
Complainant explained that the roped-off area was a contaminated
area within the RRA. (TR 97). Complainant informed that this
[PAGE 5]
particular contaminated area had large hoses full of contaminated
water. Complainant's job within the contaminated area was to
check the contamination levels of the hoses. Complainant
testified that he completed taking smear samples of the hoses to
"the best of my ability." Muelhauser stayed outside the
contaminated area the entire time Complainant conducted his work.
(TR 101-103).
While taking the samples, Complainant testified that one of
the hoses that was full of contaminated water broke causing water
to spill over one of the craftsmen. Complainant testified that
the worker "screamed, 'HP, HP, I'm all crapped up.'" (TR 105).
Complainant explained that:
there was nobody I could talk to about it, and he came
to me for help and I told him for the most part that
he's not going to die, but as soon as we get out of
here, he needs to have himself checked and take a
shower and seek senior HP help. (TR 107).
Complainant explained that after he "calmed down" the worker, he
wanted to practice ALARA, meaning ensuring radiation dose was as
low as reasonably achievable, and leave the area of the spill as
soon as possible. (See 10 C.F.R. § 20.1003; RX X).
However, Coco, who was working in another section of the
contaminated area, came over to the Complainant and told him he
must stay in the area until everyone leaves. Complainant
emphasized that:
I felt what they taught me in training wasn't complying
with what he was telling me now. If he were practicing
ALARA, I should have left. (TR 111).
Muelhauser then asked Complainant for his work. Muelhauser
reached over the roped off area and took Complainant's smears.
(TR 112).
After Complainant left the contaminated area, he went to Mr.
Doug Stawick ("Stawick") to ask about the worker involved in the
spill. Complainant explained that:
I came out and I told him I had picked up some dose. I
was concerned about the guy that had got water on him.
I was concerned about the work, my work ability in
there, what I had done, where the materials went to,
just general safety. (TR 115).
[PAGE 6]
Stawick responded by asking Complainant what RWP he was on;
Complainant informed Stawick that he logged on at RWP-0.
Complainant testified that Stawick threw up his hands yelling an
expletive and then told Fahle to write up a radiological
awareness report ("RAR") on the Complainant. Complainant
explained that an RAR is the mildest type of reprimand an
employee can receive. (TR 113-116, 118, 347-348; RX Q).
Complainant also testified that Fahle indicated that he
would "clear this on the computer." (TR 116). Complainant
explained that in his opinion, Fahle was going to erase the two
millirems that Complainant received while working within the
contaminated area off his badge. Complainant testified that:
I worked right there in the RAFT with the computers,
and that's all I worked with, and people would come in
there with, like, crazy numbers. They'd throw it in
there, zero it out, see you later. (TR 117).
Complainant went to Stephen Lancaster ("Lancaster"), site
coordinator, to discuss the RAR. Lancaster explained to the
Complainant that he had to be on an RWP. Complainant explained
to Lancaster that he was not briefed and was not properly
supervised by the senior health physics technicians. Lancaster
informed the Complainant that he would help him through this
incident and that the Complainant should leave work early. (TR
122-124).
Complainant's next scheduled day of work was Tuesday
February 22, 1994. Complainant reported for work at 7:00 a.m.
Complainant walked into the plant with three co-workers and they
received their badges. Complainant explained that a badge is an
ID card that fits around the employee's neck. Attached to the ID
badge is a thermoluminescent dosimeter ("TLD"). Complainant
testified that he did not notice that his TLD was missing from
his badge. (TR 125-126).
Complainant first reported to Lancaster who emphasized to
the Complainant that he must sign in on RWP 6001. Complainant
testified that Lancaster also did not notice that his TLD was
missing. (TR 127). Complainant then went into the RAFT, which is
an RRA, and punched in a code number. Complainant testified that
the computer should not have let him log in because his TLD was
missing. Complainant testified that "if they pull anything on
your badge, it's supposed to void you out of the computer and
deny your access. They have computers to do that." (TR 130).
[PAGE 7]
Complainant went to the employee break room to wait for an
assignment. Complainant was assigned to work with Mr. Jerry
Bailey ("Bailey") and Mr. Tony Bertuca ("Bertuca"), who were
senior health physics technicians, to take air samples. (TR 131-
132). Complainant testified that while the senior HPs were
showing him the air sampler, he and Bertuca realized that the
Complainant did not have his TLD. Bertuca told Complainant to go
directly to the RAFT or the trailer, and when Complainant
returned to the RAFT, he told Mr. Larry Miller ("Miller") what
had happened. Complainant asked Miller if he could cross his
name off the log because he did not do any work before realizing
that his TLD was missing. Miller permitted Complainant to cross
his name off the log. (TR 134).
Complainant returned to the break trailer. Bertuca met
Complainant in the trailer and told Complainant that he could not
find his TLD. Bertuca decided to call Dosimetry. Dosimetry told
Bertuca that it pulled Complainant's TLD. Complainant remained
in the trailer the rest of the day. (TR 135-136).
Complainant returned to work the next day, and when he
picked up his badge, there was a yellow notice on it informing
him that his TLD had been removed. Complainant went to Lancaster
to inquire why his TLD had been removed. Complainant testified
that:
I went in there and I saw him, and right when I saw
him, he was shaking his head no and he pretty much said
that it's going to -- 'This is your second screw up and
I can't guarantee anything,' and he had walked me off
site and he promised me he would help me find another
job. (TR 138).
Complainant explained that before he left the plant, he was asked
to fill out an ombudsman paper. Complainant testified that he
was told that "it would look better" if he resigned. Therefore,
Complainant submitted his resignation. (TR 141).
Complainant testified that not having a TLD is a minor
offense. Complainant emphasized that under printed Perry Nuclear
Power Plant procedures, improper placement or handling or failure
to properly store a TLD may result in the initiation of an RAR
(Radiological Awareness Report), which is a mild reprimand.
(See CX 4; TR 142). Furthermore, Complainant emphasized
that on February 22, 1994, he did not receive any notice that his
TLD was missing. (TR 145).
[PAGE 8]
Complainant testified that before he was fired he reported
several safety concerns to his superiors. Complainant reported
that he was not qualified to work on the PCM-1's; Complainant
reported that on February 19, 1993, contaminated water spilled on
a worker; Complainant also reported that he was not qualified to
do the work on February 19, 1993, and that his MG showed he
received two millirems of radiation. (TR 149-150).
Testimony of Anthony Bertuca
Anthony Bertuca ("Bertuca") testified on behalf of the
Respondent. Bertuca, who resides in Coloma, Michigan, worked for
Respondent at the Perry Nuclear Power plant from January 10, 1994
to July 29, 1994 during the refueling outage. At the beginning
of his employment, Bertuca testified that he received "general
employment training" which included radiological control training
and miscellaneous procedures training. Bertuca testified that it
was the responsibility of everyone in the classroom to know the
procedures of the Perry Nuclear Plant. (See RX E; TR 463-
464, 466).
Bertuca explained that the qualification card would not have
to be completed for a junior health physics technicians to work
at the plant if the junior HP were supervised by a senior HP.
Bertuca opined that Muelhauser's supervision of the Complainant
on February 19, 1994 was adequate. Bertuca explained:
[a]s long as you're in eye distance of a worker, a
senior technician can let a junior go on with his work.
Once you do the work -- it's really repetitive. Once
you actually do the work there in that job, that job is
going to keep on doing the same thing, checking the
hoses, back and forth, smearing the hoses, getting them
read, the smears read and everything. (TR 470).
Bertuca explained that on February 22, 1994, he was waiting
in the break area of the RAFT for his job assignment. Fahle
assigned to Bertuca and Jerry Bailey the job of setting up an
area for insulators. Fahle told Bertuca and Bailey to take the
Complainant with them and show him how to do the set-up work.
Bertuca, Bailey, and Complainant logged in on RWP-6001 and went
to the Turbine Power Building. (TR 474, 476).
The group went to get an air sample monitor. Bertuca showed
Complainant how to use the air sample monitor. Subsequently,
Complainant, carrying the air sample monitor, walked through a
key card door. Complainant handed Bertuca his badge so that he
[PAGE 9]
could pass through the door; as Bertuca was pinning Complainant's
badge back on him, Bertuca noticed that the TLD was missing. (TR
580). Bertuca testified that Complainant responded by saying "I
must have dropped it." (TR 481). Bertuca escorted Complainant
back to the RAFT. Bertuca told Complainant to notify Miller what
had happened. Bertuca then went and completed the work within
the Turbine Power Building. (TR 482-483).
After completing the work, Bertuca met Complainant in the
employee break trailer, and asked him if he found his TLD.
Bertuca decided to call Dosimetry; Dosimetry informed Bertuca
that Complainant's TLD was pulled. After informing Complainant
that his TLD was pulled by Dosimetry, Bertuca testified that
Complainant responded by declaring:
'Well, why don't they notify me or anything of it being
pulled?' [Bertuca] said 'Well, don't you have a slip or
anything?' [Complainant responded] 'I don't know. Let
me check.' [Complainant] pulled out a yellow piece of
paper from his coat and showed it to me. (TR 484).
Bertuca informed that the paper was a notice that Complainant's
TLD was pulled. (TR 485).
Bertuca discussed this incident with Miller. Bertuca
testified that Miller:
told me it's not a big deal because [Complainant] never
went into the RRA. I said, 'Well, Larry, that's not
exactly true. He was with me. We were all the way
down by the other control point.' He said, 'That's not
what I was told.' I said, 'well, that's what
happened.' (TR 486).[2]
Bertuca also testified that Complainant requested him to
cross his name off the work permit dose tracking log because he
"did not do any work." (TR 487). Bertuca testified that he told
Complainant that he was still in the building and punched in on
the computer. Bertuca testified that Complainant said:
'Well, can you guys go over there,' referring to Jerry
Bailey and myself, 'and start a new sheet for me?' I
said 'no, we can not do that.' Jerry Bailey and I
looked at each other and both of us said at the time
that we're not falsifying records for anybody. (TR 487-
88).
[PAGE 10]
Testimony of Douglas Stawick
Douglas Stawick ("Stawick") is employed by CEI as a health
physics supervisor. (TR 556). Stawick has worked in the nuclear
power field since March 1, 1976. (TR 556). Stawick testified
that he oversees the plant to make sure it is radiologically
safe. Stawick explained that CEI health physicists report to him
and he assigns them work, and then, the CEI technicians assign
work to Respondent's technicians. (TR 557-558). Stawick
explained that a technician who assigns work is referred to as
Technician in Charge or TIC. Fahle and Miller are TICs. (TR 559-
560).
Stawick testified that on February 19, 1994 he was in the
Fuel Handling Building. Stawick observed employees, including
the Complainant, working within the contaminated area. Two
senior health physics technicians were working with the
Complainant. (TR 565-566). Stawick opined that one of the HPs,
Muelhauser, was exercising the proper degree of supervision over
the Complainant. Stawick explained that Complainant:
was smearing hoses, and hoses were going over to her
and they were going in a box, so it sounded to me like
a situation where -- which often happens in health
physics -- where part of the job is in a contaminated
area, part of the job is in a clean area, so you need
two HP's. One's got to be inside and one's got to be
outside. It's what you need to cover it. (TR 569).
Stawick testified that he saw the Complainant about forty-
five minutes later. Complainant reported to Stawick that he had
two millirems on his Merlin Gerin ("MG"). Stawick told him to
put it on his RWP; when Complainant failed to respond, Stawick
asked him what RWP he was on. Complainant indicated that he
logged in on RWP-0. Stawick asked the Complainant if he knew
that he had to log on an RWP in order to be in a contaminated
area. Complainant responded by acknowledging that he did not
know that he had to sign in on an RWP in order to work within a
contaminated area. (TR 572-573). Stawick emphasized that it is
the responsibility of each individual employee to make sure that
either the RWPs have been read or that they have been briefed.
(TR 564).
Stawick testified that he did not remember whether
Complainant told him that he thought his MG was broken or whether
he expressed concern about the quality of his survey material.
(TR 574). Stawick indicated that the Complainant did mention
that one of the workers within the contaminated area got water on
[PAGE 11]
him. (TR 575). Stawick emphasized that the worker was not
contaminated and no personal contamination report was filed out.
Stawick also testified that he did not consider two millirems
that Complainant received to be a safety or health concern. (TR
575).
Testimony of Stephen Lancaster
Stephen Lancaster ("Lancaster") was employed by Respondent
as the site coordinator at Perry Nuclear Power Plant. (TR 617).
Lancaster testified that he worked in the nuclear power industry
as a junior health physics technician for two years, as a senior
health physics technician for four years, and as a planner for
two years. (TR 621). Lancaster's present position is a site
coordinator and a senior radiological engineer. (TR 617).
Lancaster explained that he does not govern the day-to-day duties
of the employees. Lancaster handles the administrative duties
including the hiring and firing of employees. (TR 659).
Lancaster testified that hiring the Complainant was based,
in part, on Complainant's resume. Complainant had an Associates
Degree in Radiation Protection Technology. Complainant also
participated in an internship; Lancaster considered that the
Complainant, therefore, had practical experience. Lancaster
emphasized:
Internship means to me that he did hands-on stuff. He
performed these radiation surveys, he performed these
air samples, took smears, swipes, water samples, which
get into a chemistry area. Not only was he familiar
with the instruments that we use like the bicron, the
RO-2, and not only does he use them, but he was also
familiar enough to calibrate those same meters. (TR
655).
Lancaster emphasized that the Complainant, based on the resume he
submitted to Respondent, had excellent qualifications for a
junior health physics technician. (TR 656).
Lancaster informed that Respondent hired about two hundred
and fifty people for the outage at the Perry Nuclear Power Plant.
Lancaster emphasized that new employees do not necessarily
require experience. Depending on the new employees' experience,
they are either given procedure training only or both procedure
training and training within the plant. Lancaster emphasized
that after employees have received the proper training, he has
never encountered any difficulties with them understanding the
[PAGE 12]
various requirements for entering the RRA. (TR 625).
Lancaster explained that for an employee to enter an RRA, he
or she must have a radiation work permit. A radiation work
permit is a mechanism used to conduct work in a radiologically
restricted area. It sets the definition of work, which is the
description, the type of clothing to be worn, the dosimetry to be
worn, and any special provision that a worker needs to know for
that job. Lancaster informed that RWP-0 is an incidental
tracking RWP used for travelers in the plant inside the RRA;
Lancaster emphasized that no work is supposed to be done on RWP-
0. An employee is supposed to read or be briefed on a specific
RWP. An employee should know which RWP to read by the type of
work assigned and should understand all the requirements on that
RWP, sign in on it, and do whatever it allows one to do. The
requirements of the RWP are specifically listed on the dose
tracking log. (TR 646-648).
On February 19, 1994, the Dosimetry Office called Lancaster
to review the RAR written on the Complainant. Lancaster was
concerned about the note by Stawick on the RAR (Radiological
Awareness Report) which indicated that Complainant did not know
he was supposed to be on an RWP when in a contaminated area.
Lancaster decided to meet with Complainant and discuss this
problem. (TR 663-665). After this meeting, Lancaster told
Complainant that his TLD would be pulled, and that he should
leave work early because he would not be able to do any work
without his TLD. (TR 667). Lancaster explained that it was
normal procedure to have a TLD removed. Lancaster testified
that:
it was pretty normal practice for situations like this.
If we did not know up front what had broken down, we
would restrict that person from entering the RRA until
we found out and fixed it. We didn't want repeats. (TR
667).
The only further formal disciplinary action against
Complainant was a memo written by Lancaster to Mr. Craig Reiter,
radiation protection manager, indicating that Complainant was
coached and counseled. Lancaster emphasized that it was not "any
big-time deal." (TR 670; RX Y). Furthermore, Lancaster testified
that the amount of supervision Complainant received on February
19, 1994 was adequate. Lancaster testified that:
[Complainant] was in line of sight. Ms. Muelhauser was
able to give him enough hand signals that he knew what
[PAGE 13]
to do. Upon completion of his task, he actually handed her the
smears, which tells me they were pretty close to each other.
There is only a rope barrier between her and him, nothing else.
They were in full view. (TR 653).
On February 22, 1994, Complainant reported to Lancaster when
he arrived at work. Lancaster talked to Complainant about the
RWP structure and procedures. When Lancaster met with
Complainant, he did not notice that Complainant's TLD was
missing. Complainant left Lancaster's office and proceeded to
the RAFT. (TR 670-671).
On the following morning, Dosimetry informed Lancaster that
Complainant had entered the plant while his TLD was pulled. (TR
671-672). Dosimetry noticed a discrepancy in the records because
Complainant had lined out the RWP dose tracking log, but the RMS
computer system showed he had been in the plant for thirteen
minutes. An RAR was written up concerning this incident. (TR
675; RX AA).
Lancaster again met with Complainant to discuss the second
RAR. Lancaster testified that he took notes during the meeting.
(See RX U.) Complainant told Lancaster that
he had signed in on the RWP dose tracking log, gone to the
trailer break room, returned to the RAFT, logged in on the RMS
computer system, sat in the RAFT break room for thirteen minutes,
then logged off the RMS computer, lined out the RWP dose tracking
log and remained in the trailer the rest of the day. (TR 677-
678). Lancaster explained that the RAFT was a "gray area," in
that while the RAFT is technically an RRA requiring a TLD, the
RAFT break room was a clean area. Thus, Lancaster said that if
Complainant made "a quick jaunt in and back out again without the
badge," it "would have been okay," although technically he
crossed the physical boundary for the RRA. (TR 679-681).
Lancaster then discussed the incident with Bertuca. Bertuca told
Lancaster, contrary to Complainant's claims, that Complainant had
entered and gone to the other side of the plant inside the RRA.
(TR 681-682). Lancaster decided to terminate Complainant's
employment. Lancaster testified that:
When I found out that he was not being truthful with
me, and you tack on the RAR's, I summed up that I
didn't have a reliable, trustworthy person in my
employ. (TR 682).
Lancaster gave Complainant an ombudsman exit interview
report, which is a form that gives the employee a chance to
[PAGE 14]
identify any concerns he or she may have. Lancaster then
escorted the Complainant out of the plant. (TR 683, 687; RX V).
Discussion
This case was brought under the Employee Protection
Provision of section 210 of the Energy Reorganization Act of
1974, as amended in 1992 (codified at 42 U.S.C. § 5851).
Subsection (a)(1) of that statute provides:
No employer may discharge any employee or otherwise
discriminate against any employee with respect to his
compensation, terms, conditions, or privileges of
employment because the employee (or any person acting
pursuant to a request of the employee)--
(A) notified his employer of an alleged violation of
this chapter or the Atomic Energy Act of 1954 (42
U.S.C. 2011 et seq.);
(B) refused to engage in any practice made unlawful by
this chapter or the Atomic Energy Act of 1954 [42
U.S.C.A. § 2011 et seq.], 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 any
proposed provision) of this chapter or the Atomic
Energy Act of 1954 [42 U.S.C.A. § 2011 et
seq.];
(D) commenced, caused to be commenced, or is about to
commence or cause to be commenced a proceeding under
this chapter or the Atomic Energy Act of 1954, as
amended [42 U.S.C.A. § 2011 et seq.], or a
proceeding for the administration or enforcement of any
requirement imposed under this chapter or the Atomic
Energy Act of 1954, as amended;
(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 this chapter or the
Atomic Energy Act of 1954, as amended [42 U.S.C.A.
§ 2011 et seq.].
[PAGE 15]
42 U.S.C.A. § 5851(a)(1).
To sustain a discrimination claim under the Whistleblower
Protection Provision of the Energy Reorganization Act, the
Complainant must prove, by a preponderance of the evidence: (1)
that the party charged with discrimination is an employer subject
to the Act; (2) that the complaining employee was discharged or
otherwise discriminated against with respect to his compensation,
terms, conditions, or privileges of employment; and (3) that the
discrimination arose because the employee engaged in protected
activity. SeeDeford v. Secretary of Labor, 700
F.2d 281, 286 (6th Cir. 1983).[3] As amended in 1992, the Act
requires a showing that the protected activity was "a
contributing factor in the unfavorable personnel action alleged
in the complaint." 42 U.S.C.A. § 5851(b)(3)(C). Relief may
not be ordered if the employer demonstrates by clear and
convincing evidence that it would have taken the same action in
the absence of protected activity. 42 U.S.C.A. §
5851(b)(3)(D).
It is not in dispute that Respondent is an employer subject
to the Act, and that Respondent discharged or otherwise
discriminated against the Complainant, that is, that Respondent
terminated Complainant's employment on February 23, 1994.
(See Respondent's Brief at p.23). Thus, it must be
determined whether the Complainant engaged in protected activity,
whether the termination was motivated, at least in part, by such
activity, and whether Respondent would have terminated the
Complainant absent the protected activity.
Protected Activity
Respondent argues that Complainant did not engage in any
protected activity under the Act, but the record indicates
otherwise. Complainant testified that prior to his termination,
he reported several safety concerns to his superiors.
Complainant testified that he told his supervisors that he was
not qualified to work with the PCM-1's, he reported on February
19, 1994 that a worker had contaminated water spilled on him, he
complained to his supervisors on February 19, 1994 that he was
not qualified to check the contamination levels of the water
hoses and that while he did this work he did not receive adequate
supervision from the senior health physics technicians, and he
reported that he received two millirems of radiation while
working within the contaminated area on February 19, 1994. (TR
114, 149).
[PAGE 16]
Respondent argues that Complainant did not contact the
Nuclear Regulatory Commission ("NRC") until after his employment
was terminated, and therefore, Complainant did not engage in any
protected activity prior to his termination. However, section
5851 of the Act was recently amended to include internal
complaints as protected activity. The Act states that an
employee has engaged in protected activity if that person
"notified his employer of an alleged violation of this Act or the
Atomic Energy Act of 1954." 42 U.S.C.A. § 5851(a)(1)(A).
The amendment to the Act codifies the position of several United
States Courts of Appeals, including the Sixth Circuit, as well as
the Secretary of Labor, that reporting safety complaints
internally is protected activity. See, e.g.,
Jones v. Tennessee Valley Authority, 948 F.2d 258, 264
(6th Cir. 1991)(noting that an employee who is retaliated against
for filing internal reports concerning violations of nuclear
regulatory law has recourse under the Act); Kansas Gas &
Electric Co. v. Brock, 780 F.2d 1505 (10th Cir. 1985),
cert. denied 478 U.S. 1011 (1986)(holding that internal
actions taken by an employee are within the purview of employee
protection that is guaranteed under the Act); Mackowiak v.
University Nuclear Systems, Inc., 735 F.2d 1159 (9th Cir.
1984)(holding that the Act applied when internal complaints
concerning quality and safety problems are made); see alsoChavez v. Ebasco Service, Inc., Case No. 91-ERA-24,
Secretary of Labor (November 16, 1992)(ruling that internal
safety complaints are sufficient under the Act); but seeBrown and Root, Inc. v. Donovan, 747 F.2d 1029 (5th Cir.
1984).
Respondent also emphasizes that Stawick, the health physics
supervisor of CEI, did not consider his conversation with
Complainant, which included a discussion about the worker who had
contaminated water spilled on him and Complainant's own radiation
exposure and the quality of the work he was performing, as a
"safety complaint." However, Complainant's own testimony clearly
establishes that he engaged in protected activity. A
Complainant's own uncorroborated testimony about an internal
safety complaint to a supervisor constitutes protected activity.
Samodurov v. General Physics Corporation, Case No. 89-ERA-
20, Secretary of Labor (November 16, 1993). Furthermore,
Complainant's concerns that he was not qualified are in fact
corroborated by the handwritten notes taken by Lancaster, site
coordinator of the plant and the supervisor who terminated
Complainant's employment, during his meeting with Complainant on
February 19, 1994. Lancaster wrote that Complainant:
informed him that he did not feel comfortable
[PAGE 17]
performing the survey and got tied up in the activities that were
going on. Laborers, et cetera, hollering for HP support, a lot of
pressure being applied to not slow work promoted the situation .
. . . (see RX Q; TR 666).
In addition, Stawick testified that Complainant informed him that
Complainant was concerned about the worker who had contaminated
water spilled on him. (TR 575).
Respondent's argument that Complainant's complaints are not
considered protected activity under the Act is based on a too
narrow interpretation of the Act. The purpose of the Act is to
encourage reporting incidents involving or relating to nuclear
safety. The statute should therefore be read broadly because
"[a] narrow hypertechnical reading of section 5851 will do little
to effect the statute's aim of protecting." Kansas Gas &
Electric Company, 780 F.2d at 1512. The Act has a "broad,
remedial purpose for protecting workers from retaliation based on
their concerns for safety and quality." Mackowiak, 735
F.2d at 1163. This case involves several informal safety
complaints to Complainant's supervisors which clearly constitute
protected activity within the Act. Samodurov v. General
Physics Corporation, Case No. 89-ERA-20, Secretary of Labor
(November 16, 1993). The intent of the Act is to encourage
reporting the types of complaints Complainant disclosed to his
supervisors.
Accordingly, it is determined that Complainant's complaints
concerning the adequacy of the radiation safety program in effect
at the Perry Nuclear Power Plant, and specifically his complaints
that he was not qualified to work with the PCM-1's, that he was
not qualified to conduct surveys within a contaminated area, that
he did not receive sufficient supervision while working within
the contaminated area, that he was concerned about the worker who
had contaminated water spilled on him, and finally that
Complainant received two millirems of radiation, which he deemed
to not comport with the "ALARA" requirement, constitute protected
activity within the meaning of the Act.
Reason for Termination
Having shown that he engaged in protected activity and that
he was subsequently terminated from his job, Complainant must, as
part of his prima facie case, present evidence sufficient to
raise that inference that the protected activity was the likely
reason for the adverse action. Dean Dartey v. Zack Company of
Chicago, Case No. 82-ERA-2, Secretary of Labor (April 25,
1983). Direct evidence is not required for a finding of
causation. The
[PAGE 18]
presence or absence of retaliatory motive is provable by
circumstantial evidence, even in the event that witnesses testify
that they did not perceive such a motive. See Ellis Fischel
State Cancer Hospital v. Marshall, 629 F.2d 563, 566 (8th
Cir. 1980), cert. denied, 450 U.S. 1040 (1981).
The standard of proof to demonstrate that the protected
activity was the likely reason for the adverse action was
recently amended by Congress in 1992. Complainant must show that
the protected activity was a "contributing factor in the
unfavorable personnel action alleged in the complaint." 42 U.S.C.
§ 5851(b)(3)(C). Prior to the 1992 amendments, the standard
of proof was established by the Supreme Court in Mt. Healthy
City School District Board of Education v. Doyle, 429 U.S.
274 (1977). Although Mt. Healthy involved a 42 U.S.C.
§ 1983 action, its analysis has been applied to ERA cases.
See Dean Dartey v. Zack Company of Chicago, Case No. 82-
ERA-2, Secretary of Labor (April 25, 1983). According to the
Court's analysis in Mt. Healthy, the employee has the
burden of proof to show that the protected activity was a
"motivating factor" for the adverse employment action. Mt.
Healthy, 429 U.S. at 287. Under new subparagraphs (b)(3)(A)
and (C) of the Act, however, the employee must establish that the
adverse action was just a "contributing factor" rather than a
"motivating factor." Thus, the 1992 amendments to the Act
have lessened Complainant's initial burden of proof to show
causation.[4]
Complainant in this case has produced evidence demonstrating
that the protected activity was a likely reason for the adverse
action. Complainant has shown that his supervisors were aware
that he engaged in protected activity. On February 19, 1994,
Complainant told Stawick that he was concerned about the dose of
radiation he picked up while working in the contaminated area, he
reported that a worker had contaminated water spilled on him, he
was concerned that he was not qualified to work within the
contaminated area, and he claimed that he did not receive
sufficient supervision from the senior technicians. (TR 115).
Immediately thereafter, Stawick realized Complainant failed to
sign in on the proper RWP, and an RAR, which is a mild reprimand,
was written up on the Complainant. Subsequently, Complainant met
with Lancaster, the supervisor who terminated Complainant's
employment, to discuss the RAR. Complainant testified that he
told Lancaster that he was not briefed or properly supervised by
the senior technicians. (TR 124). Complainant's testimony is
corroborated by Lancaster's handwritten notes taken during the
meeting which reveal that Complainant was concerned about the
quality of his work and the working conditions within the
contaminated area. (See RX Q; TR 665). Lancaster had
[PAGE 19]
Complainant's TLD pulled and sent Complainant home from work
early.
Clearly, Complainant's supervisors, who were involved in
writing up the RAR and the termination of Complainant's
employment, had knowledge that Complainant engaged in protected
activity. Complainant voiced safety and quality concerns
directly to his supervisors, in particular to Stawick and
Lancaster, and then, four days later, Complainant's employment
was terminated by Lancaster.
In making a prima facie case, temporal proximity between the
protected activity and the adverse action may be sufficient to
establish the inference that the protected activity was the
motivation for the adverse action. Goldstein v. Ebasco
Constructors Inc., Case No. 86-ERA-36, Secretary of Labor
(April 7, 1992); see alsoCouty v. Dole, 886 F.2d
147, 148 (8th Cir. 1989)(holding temporal proximity, sufficient
as a matter of law to establish final element in a prima facie
case). Here, only four days elapsed between Complainant's
complaints about safety and quality procedures and his
termination of employment. Moreover, an RAR was issued because
Complainant logged in on the incorrect RWP, which is a minor
procedural error, immediately after Complainant voiced his safety
concerns to Stawick. Because of the short period of time, I find
that Complainant introduced sufficient evidence to raise an
inference that his protected activities contributed to his
termination of employment.[5]
Respondent's Reason for Termination
As the Complainant has established a prima facie case, the
burden of production devolves upon the Respondent to articulate
some legitimate, non-retaliatory reason for the adverse action.
Nichols v. Bechtel Construction, Inc., Case No. 87-ERA-
0044 (October 26, 1992). The respondent need not prove the
absence of retaliatory intent or motive; it simply must produce
evidence to dispel the inference of retaliation raised by the
Complainant. Cohen v. Fred Meyer, Inc., 686 F.2d 793 (9th
Cir. 1982).
Respondent's burden of proof was also modified by the 1992
amendments to the Act. Prior to the amendments, if the employee
showed that the protected activity was a motivating factor for
the adverse employment action, thereby establishing a prima facie
case, the employer had to show by a "preponderance of evidence"
that it would have taken the same adverse action. Mt.
Healthy, 429 U.S. at 287. However, under new subparagraphs
(b)(3)(B) and
[PAGE 20]
(D), the employer must now show by "clear and convincing
evidence," rather than by a "preponderance of the evidence," that
it would have taken the same unfavorable personnel action.
Respondent first argues that Complainant's "intentional
misrepresentations" on his security questionnaire form concerning
his military discharge[6] and his unauthorized removal of a
qualification card provide clear and convincing evidence that his
employment would have been terminated regardless of Complainant's
protected activity. (RX C). Furthermore, Respondent also reported
that Complainant was previously fired by a part-time employer,
and Complainant reported on his questionnaire form that he left
to "look for better job."[7]
The United States Supreme Court has recently held that an
employee is not barred from relief based upon an employer's
discriminatory acts when the employer discovers evidence of
wrongdoing that, in any event, would have led to the employee's
termination on lawful and legitimate grounds. McKennon v.
Nashville Banner Publishing Co., No. 93-1543 U.S. Lexis 699
(January 23, 1995)(decided under the Age Discrimination in
Employment Act of 1967). The Court reasoned that recovery is
based on an employer's unlawful motive, and therefore, the
employer cannot be motivated by knowledge it did not have at the
time the employee was terminated. Id.
Accordingly, Respondent's argument and supporting evidence
that it would have terminated Complainant's employment in any
event for these unrelated matters is given no consideration in
deciding this case.
Respondent also articulates three additional reasons for
Complainant's firing: (1) he did not follow correct procedures
for signing in the RRA on February 19; (2) he went into the RRA
without his TLD on February 22; and (3) he was deemed
untrustworthy because he lied about the events of February 22 and
tried to cover them up. (TR 416-418, 682).
On February 19, 1994, Complainant, after working within a
contaminated area, met with Stawick to discuss his work. At this
time Complainant reported his safety and quality concerns to
Stawick. Stawick told Complainant to put the two millirems that
he picked up while working within the area on his RWP. When
Complainant failed to respond, Stawick asked him what RWP he was
signed in on. Complainant informed Stawick that he logged in on
RWP-0. Stawick stressed to Complainant that he had to sign in on
an RWP in order to work within a contaminated area. Complainant
told Stawick that he did not know that he had to sign in on an
[PAGE 21]
RWP in order to work in a contaminated area. Stawick ordered
that an RAR be issued concerning the incident.
Lancaster also reviewed the RAR. Lancaster testified that
he was concerned that the Complainant did not know that he was
supposed to be logged in on an RWP while working within a
contaminated area. (TR 664-665). Lancaster had Complainant's TLD
pulled off his badge, which Lancaster explained was normal
procedure after a procedural violation, and sent Complainant home
from work early. Lancaster considered the incident as "minor in
nature." (TR 663).
Complainant's next scheduled work day was February 22, 1994.
Complainant reported for work and picked up his badge;
Complainant failed to realize that his TLD was missing.[8]
Complainant first met with Lancaster who testified that he
"coached and counseled" the Complainant concerning RWP procedures
(TR 670). Lancaster emphasized that the incident was not "any
big-time deal." (TR 670). Lancaster testified that he also did
not notice that Complainant's TLD was missing. (TR 671).
Lancaster testified that he did not remind Complainant that he
pulled his TLD on February 19, 1994. Lancaster explained that:
He's an employee. He is not my child. He knew that
his TLD was gone. He didn't have it on him. I don't
go around every morning, 'Carl, do you remember what I
told you yesterday? Well the same thing is happening
today.' I don't do that. (TR 701-702).
Complainant was assigned to work with senior technicians
Bertuca and Bailey. They were assigned to set up an area for
insulators. Complainant went into this work area without his
TLD. Prior to beginning work, Bertuca and Complainant realized
Complainant's TLD was missing. Complainant went back to the RAFT
and told Miller what had happened. Complainant testified that he
requested and Miller permitted him to cross off his name on the
log. Another RAR was issued pertaining to this incident.
Complainant argues that this was another minor procedural
violation. In fact, Lancaster testified:
Q. If someone were to be in the plant without their
proper personnel dosimetry, might nothing happen?
A. I doubt it.
Q. In your 15 years of experience, what would happen?
[PAGE 22]
A. An RAR would be initiated.
. . .
Q. And would that RAR be such that a person would be
immediately terminated for it?
A. No. (TR 424-425).
Even though Complainant's mistakes are considered "minor
procedural violations," Respondent enabled the Complainant to
learn the procedures of the plant through its training procedure
classes which Complainant attended. It appears that Complainant
failed to learn the procedures of the plant. Complainant
testified on cross examination that he received twenty to thirty
packets of training material; he was told that he must learn the
information and that he would be tested on it. (TR 174-175, 181).
The training also included class room lectures and videos. (TR
175-176). However, Complainant testified:
Q. In this training program, you learned that there
were three kinds of radiation work permits, didn't you?
A. They probably taught it.
Q. Well, you were required to know it, weren't you?
A. I tried to learn it.
. . .
Q. Did you learn it or didn't you?
A. No. (TR 182).
Complainant acknowledged that it was his responsibility to
learn the procedures of the Perry Plant, but he failed to
properly study and learn these procedures.
Moreover, Complainant not only committed two procedural
errors on consecutive work days, he also was not completely
honest with his supervisors concerning the procedural violations,
and in fact, attempted to cover up his violations. Bertuca
testified that Complainant asked him to falsify the work permit
dose tracking log arguing that "he did not do any work." (TR 487-
[PAGE 23]
488). Lancaster testified that Complainant told him that he did
not go into the plant, but Bertuca informed Lancaster that
Complainant in fact went into the plant without his TLD.
Lancaster testified that he decided to terminate the Complainant
because of the two procedural violations and because the
Complainant lied to him about going into the plant without his
TLD. Lancaster testified that he concluded that he did not "have
a reliable, trustworthy person in my employ." (TR 682).
If the employer articulates a legitimate, non-discriminatory
reason for its action, the employee, to prevail, must establish
that the proffered reason was not its true reason, but instead, a
pretext to mask illegal discrimination.
Complainant testified that he failed to sign in on an RWP on
February 19, 1994, and that he entered an RRA without his TLD on
February 22, 1994. (TR 115, 119, 133-134). However, the evidence
shows that both incidents are categorized as minor procedural
violations that would not warrant termination. Nonetheless,
Respondent has clearly shown that Complainant failed to learn the
procedures of the plant and attempted to mislead his supervisors
concerning the TLD procedural violation. Bertuca, who was a
credible and reliable witness, testified that Complainant
admitted he entered the RRA and that with Miller's permission, he
crossed a line through his name on the dose tracking log. (TR
134-135). Bertuca also testified that Complainant inquired into
falsifying the dose tracking log. Moreover, Lancaster, also a
credible and reliable witness, testified that Complainant told
him that he never entered the RRA without his TLD; Lancaster's
testimony is corroborated by his handwritten notes taken during
his conversation with Complainant and which have been admitted
into the record. (See RX U). Therefore, I find that
Respondent's reasons for its termination of the Claimant are the
true reasons and not a pretext to hide discrimination.
Accordingly, because of Complainant's procedural violations
combined with Complainant's attempt to mislead his supervisors
concerning working within an RRA without his TLD, Respondent has
demonstrated by clear and convincing evidence[9] that it would
have terminated the Complainant irrespective of Complainant's
protected activity.[10]
RECOMMENDED ORDER
For the reasons stated above, it is recommended that the
instant complaint be dismissed.
PAMELA L. WOOD
Administrative Law Judge
Pittsburgh, Pennsylvania
PLW:jmm:mv
[ENDNOTES]
[1] The following abbreviations are used when citing to the
record: CX - Claimant's exhibit; RX - Employer's exhibit; ALJX -
Administrative Law Judge's exhibit; and TR - Transcript of
Hearing.
[2] Even though no objection was made to this testimony, it
contains hearsay. 29 C.F.R. § 18.80 et seq.
Bertuca's recital of what Miller said Complainant said would
appear not to be admissible to show Complainant actually made the
statement, as Miller is not subject to cross examination, so I
give this statement no weight on that issue.
[3] Decisions under section 210 by the Secretary of Labor have
included a further element, that the party charged with
discrimination knew of the employee's protected activity.
SeeHancock v. Nuclear Assurance Corp., Case No.
91-ERA-33, Secretary of Labor (December 4, 1992). However, it
would appear that this element would be included in a showing
that the discrimination arose as a result of the protected
activity, since the employer would need to have knowledge of the
activity to respond to it.
[4] This is clearly shown by the legislative history of the
amendments to the Act. For example, Representative Williams
commented that "a new burden of proof is established that makes
it more realistic for an employee to prevail in a case of
retaliation." 138 Cong. Rec. H11442 (daily ed. Oct. 5, 1992).
Representative Ford stressed that the amendments to the Act
establish a "less onerous burden of proof." 138 Cong. Rec H11444
(daily ed. Oct. 5, 1992).
[5] Respondent argues that the amendments of the Act mirror the
language of the Whistleblower Protection Act ("WPA"), 5 U.S.A.
§ 1221, and that cases interpreting the WPA have held that
temporal proximity between the protected activity and the adverse
employment action does not, per se, demonstrate that the
protected activity was a contributing factor to the employment
decision. Citing Clark v. Department of the Army, 997 F.2d
1466 (Fed. Cir. 1993). Respondent's argument is rejected because
the court in Clark also noted that the Administrative Law
Judge is entitled to "consider the timing of a personnel action
relative to knowledge of a whistle blowing disclosure."
Clark, 997 F.2d at 1472. Furthermore, the court's
interpretation of the WPA in Clark was based on that
specific act's legislative history. In this case, Respondent's
analysis would actually increase the burden on the Complainant to
establish that the protected activity was a contributing factor
in the discharge decision, which is contrary to the legislative
history of the ERA amendments.
[6] Complainant reported on the questionnaire form that he
received an honorable discharge. Complainant testified that he
was discharged from the military for medical reasons. (TR 152).
The record shows that Complainant's discharge was "under
honorable conditions (general)." (RX DD). This is a minor
difference and not considered an "intentional misrepresentation"
as Respondent argues.
[7] Respondent's evidence to show Complainant was fired from his
previous employment is a form that Respondent sent to the former
employer as part of a routine employee background check. (TR 696-
697; see RX CC). The reliability of this evidence is
questioned because the former employer is apparently out of
business. (See Complainant's Brief at p.16). Furthermore,
Complainant objected to the introduction of this evidence into
the record. (TR 694). At the hearing, I admitted the evidence
into the record conditionally. (TR 698). Upon reviewing the
Respondent's evidence, which was admitted into the record as
Respondent's Exhibit CC, I find that Respondent's form is within
the business records exception to the hearsay rule to the extent
that it relates to matters completed by Respondent. However, the
form was allegedly filled out by a representative of the former
employer, and this information also constitutes hearsay and is
not within any exception to the hearsay rule. Accordingly, this
information is inadmissible into evidence to prove the truth of
the matters asserted by the former employer. See 29 C.F.R.
§§ 18.801(c), 18.802, 18.805. In considering this
claim, I give no weight to Respondent's Exhibit CC.
[8] There is conflicting testimony on whether Complainant had a
yellow notice on his badge informing him that his TLD was
removed. Complainant testified that no notice was on his badge.
(TR 129, 366). Bertuca testified that Complainant pulled the
yellow notice out of his coat after Bertuca told Complainant that
Dosimetry pulled his badge. (TR 486). Furthermore, Lancaster
testified that he did not know whether Complainant ever read the
notice that was allegedly placed on his badge. (TR 537). Based
upon Complainant's credible expressions of concern that he
receive the lowest possible radiation dose, I find that
Complainant was unaware his TLD had been pulled when he entered
the RRA.
[9] Clear and convincing evidence is defined by the Sixth
Circuit as a "heightened burden of proof." White v. Turfway
Park Racing Ass'n, 909 F.2d 941, 944 (6th Cir. 1990),
citing Street v. J.C. Bradford & Co., 886 F.2d 1472, 1479
(6th Cir. 1989). The quality of proof is "more than a mere
preponderance but not beyond a reasonable doubt." 30 Am. Jur. 2d
Evidence § 1167 (1967); see also Aetna Insurance
Company v. Paddock, 310 F.2d 807, 811 (5th Cir.
1962)(upholding jury instruction defining clear and convincing
evidence as "the witnesses to the fact must be found to be
credible and that the facts to which they have testified are
distinctly remembered and the details thereof narrated exactly
and in due order and that the testimony be clear, direct and
weighty and convincing, so as to enable you to come to a clear
conviction without hesitancy of the truth of the precise facts in
issue.")
[10] Although the Radiation Awareness Report (RAR) written up
based upon Complainant entering the RAR without having signed in
on an RWP was made at the time he first voiced his safety
concerns, the RWP which he signed in on was a matter of record,
recorded on the computer, so the RAR was in no way dependent on
his voicing of safety concerns.
