Although the use of the ten points resulted in a more accurate representation of containment average air temperature, Respondent determined that this practice was not in compliance with the "tech specs" requirement of using only five points to determine the average air temperature. Respondent reported this non-compliance to the NRC in a License Event Report dated May 18, 1995. In the course of correcting the situation, Respondent recognized that using five points instead of ten could permit the selection of measurement locations that do not provide a representative indication of the overall containment atmosphere, which could result in an "unconservative containment average temperature being calculated." (R-55, P-48)

recommended that Complainant be terminated. (TR 841-842, R-35,36) Based on these recommendations, Straubmuller initiated termination proceedings for Complainant. (TR 844-848) On August 1, 1997 Moaba gave Complainant a letter stating that Complainant had failed to make sufficient progress on his PIP and that for that reason Complainant was being terminated, effective August 1, 1997. On August 15, 1997, Complainant appealed his termination to Employer's "Employee Relations Review Panel" ("ERRP"). In his appeal, Complainant alleged that he was terminated for raising safety concerns (R-38) The ERRP held a hearing on November 14, 1997. On December 1, 1997 the ERRP notified Complainant by letter that "management's decision to discharge" complainant was being upheld. (R-62)

1. PROTECTED ACTIVITY

A. Complainant failed to establish that he engaged in protected activity prior to his August 1,1997 termination.

   The initial question to be resolved is whether Complainant's October 4, 1996 approval of the report which recommended utilizing the more conservative MPR methodology and his subsequent work on the temporary modification (T-Mod) to measure the temperatures in the upper levels of the containment constitute protected activity.

some aspect of nuclear safety. Decresci v. Lukens, 87-ERA-13 ( Sec'y Dec. 16, 1993). In Jarvis v. Battelle Pacific NW Laboratory, 97-ERA-15 (ARB Aug. 27, 1998), the Administrative Review Board (the "ARB") held that "[t]he protection afforded whistleblowers by the ERA extends to employees who, in the course of their work, must make recommendations regarding how best to serve the interest of nuclear safety, even when they do not allege that the status quo is in violation of any specific statutory or regulatory standard." The ERA is designed to protect workers who report safety concerns and to encourage nuclear safety generally. Mackowiak, 735 F.2d at 1163 (9th Cir. 1984) .

   Soens

Although Complainant stated that he was "shocked and surprised" upon receiving Soens' e-mail to scrap the T-Mod (TR 1233), Complainant did not offer testimony to establish that he "resisted Soens' e-mail" (asserted in Complainant's brief) or reacted to that e-mail by raising a safety concern to Soens or any other manager or supervisor. Complainant did not convey to Soens or anyone else that he believed that the T-Mod should be completed in the interest of nuclear safety or that "scrapping" the T-mod would in some way compromise safety. Rather, Complainant's testimony reveals that, upon receiving Soens' e-mail, he did no more than brief Meinershagen regarding the purpose of the T-Mod (to measure the upper areas of the containment and to determine the five best locations to place the permanent data loggers):

Q: Why did you show Soens' e-mail to Mr. Meinershagen?

A: Meinershagen was new to the company. He didn't know many of the activities going on, so he is acting supervisor, he wanted to be alerted what Frank Soens is talking about this T-mod project.

(TR 1237) Based on the record, it appears that Complainant had no other discussions with his superiors regarding Soens' e-mail message.

   Meinershagen

Complainant did not establish by his testimony that he raised safety concerns to Meinershagen. Indeed, Complainant testified that he had "very little interface" with Meinershagen. (TR 1139) Further, Complainant stated, as noted above, that his discussion with Meinershagen about containment temperature consisted of a brief summary regarding the nature of the T-Mod assignment. Complainant testified that he did not discuss ventilation questions with Meinershagen or other supervisors during the period when Meinershagen was his temporary supervisor:

   Moaba

Complainant did not establish by his testimony that he raised safety concerns to Moaba. Complainant testified that he did not have any personal contact with Moaba before July 8, 1997, and that the containment temperature issue "had not come up before that time." (TR 1283) Complainant also testified that when the issue came up on July 8, he recalled only briefing Moaba on the MPR methodology: "I give him the MPR report, hard copy of the MPR report, how it started, and the operating procedure of the plant what to use to measure or calculate the temperature in the containment." Complainant could not recall "filling him in on any other information on the subject." (TR 1284) Complainant also testified that on July 8 and 9, when he and others were assigned the task of temporarily relieving the problem of the containment reaching a calculated average overall temperature of 116.6 degrees, his only interaction with Moaba was as follows:

Q: What occurred on the morning of July 9 involving Mr. Moaba?

A: On July 9 I generated the calculation curve which summarizes all of the calculation done which is nothing but a refinement of the MPR calculation. It was signed, approved by Allen Meinershagen. That document, the next morning I went to Joe Moaba's room and handed it to him and told him this is the result we can save about 3 degrees based on this new refined methodology and he thank about it that we have more margin not to exceed the 120 limit. He was happy and complimented for the work done on the eighth (sic).

Q: Did you have any other discussion with him at that time?

A: No, I don't have any conversation afterwards.

(TR 1306) Further, Complainant testified that after his July 9 conversation with Moaba he "never discussed the temperature issue with anyone." (TR 1899) When Moaba was asked whether Complainant expressed support for the MPR method and opposition to Respondent's plans to revert from the MPR method back to the original arithmetic method, Moaba testified that "there was not one person that I have ever talked to that heard Mr. Makam make any complaint about this change or make any words of support for the MPR report. Mr. Makam never once spoke up in objection to this." (TR 442) Moreover, at Complainant's ERRP hearing on November 21, 1997, Complainant was repeatedly asked

whether, and to whom, he raised a safety concern. Complainant stated only that he raised a concern subsequent to his termination on August 1, 1997. (P-68)

   Despite the generally broad application of §5851, courts and the Secretary have held that the ERA protects only certain types of acts. First, an employee must in some way communicate or report the safety concern, either by internal complaint or by complaint to an outside entity or authority. See Dobrewenaski v. Associated Universities, Inc., 96-ERA-44 (ARB June 18, 1998; see also Scerbo v. Consolidated Edison Co. of New York, Inc., 89-CAA-2 (Secy Nov. 13 1992); Conley v. McClellan Air Force Base 84-WPC- 1 (Secy Sept. 7, 1993); Francis v. Bogan, Inc., 86-ERA-8 (Sec'y Apr. 1, 1988) (the employer must know about the protected activity for the complaint to be actionable). Second, an employee's acts must implicate safety definitively and specifically. American Nuclear Resources v. U.S. Dept. Of Labor, 143 F.3d 1292 (6th Cir. 1998), citing Bechtel Construction Co. v. Secretary of Labor, 50 F.3d 926 (11th Cir. 1995). In Bechtel, the court protected the employee's acts because he "raised particular, repeated concerns about safety procedures," which were "tantamount to a complaint." Bechtel, 50 F.3d at 931. However, the record in the instant case, including Complainant's own testimony, contains no evidence that he communicated a "commitment" to utilize the more conservative MPR method, or a complaint to his supervisors or to management regarding the temperature issue prior to his termination on August 1, 1997. Therefore, I find that Complainant has failed to establish that he raised safety concerns regarding the calculation of containment air temperature prior to his termination.

Complainant relies on Minard v. Delemar Co., 92-SWD-1 (Sec'y Jan. 25, 1994), as support for this proposition. In Minard, the Secretary held that both Title VII case law and previous Department of Labor decisions support the conclusion that an employee's reasonable belief that his employer is violating the statute may be a sufficient basis for a retaliation claim if the employer took action against the employee because he expressed his belief. I find that Minard is inapposite. The issue in Minard was "whether an employee who complains to his or her employer about the treatment of a substance which is not listed as a hazardous waste under the [Solid Waste Disposal Act's] whistleblower provision may be protected by [the statute's] whistleblower provision." The Secretary concluded that where the complainant has a reasonable belief that the substance is hazardous and is regulated as such, he is protected under the statute. Applying this reasoning, in the instant case Complainant produced no evidence to show that his complaints of mistreatment and "scapegoating" were protests or opposition to some reasonably perceived violation of the ERA. There is no evidence in the record that indicates Complainant ever raised or reported a reasonably perceived safety violation, or that Complainant protested his perceived mistreatment because he believed that it occurred in retaliation for raising any safety concerns or reporting any safety violations. See Dias-Robainas v. Florida Power and Light, 92-ERA-10 (Sec'y Jan. 19, 1996). At the hearing, when asked if he ever raised concerns of discrimination to Moaba, Complainant testified:

[W]hen he told me that because of this reason you are going on the PIP and he told me your previous performance is not good, I felt very bad about it. It was like a shock to me. I did my best to alleviate the situation and he wanted to put me on a PIP which is not warranted for any reason at the same time. He could have waited for a month or a week or something like that to do it, but he did it the very next day [after the July 8 refinement calculation was completed].

Q: Did you raise concerns about discrimination in that meeting?

A: I did not....I don't remember using the word discrimination in that meeting.

(TR 1339)

   In fact, the evidence shows that when Complainant complained of being placed on a PIP the only challenge he made to Respondent's actions after the containment temperature problem arose he did not believe that Moaba was discriminating against him because he raised a safety concern; rather, just the opposite. Complainant testified that the

reason Moaba was unfairly holding him responsible for "not speaking up" about the containment issue prior to July 8, 1997, i.e., because Complainant had approved the MPR report without raising a warning, when it was clear that the MPR methodology would result in a calculated average containment temperature that would exceed the tech spec limit in the hot summer months. In this regard, Complainant testified:

Q: Did you use the word that you were taking the blame for being the last one left [of the involved employees] to Mr. Moaba?

A: That is true. He was -- He was telling to me that I should be responsible for the issue of the high temperature in the containment.

Q: (By Administrative Law Judge)

Wasn't that the basic difference between the way Mr. Moaba felt and the way you felt. He felt that you should have done something active to alert somebody in a higher authority about the potential temperature problem due to the MPR methodology and you felt that that was already known and you didn't have to do anything?

A: You're right.

Q: (By Administrative Law Judge)

That's what it was all about?

A: Yes, sir.

(TR 1413-1414)    In light of the above, I find that Complainant has not established that he engaged in protected activity when he complained "about his mistreatment, and being beaten, humiliated and scapegoated."

   Based on the foregoing, I find that Complainant has failed to establish that he engaged in protected activity prior to his termination on August 1, 1997.

B. Complainant engaged in protected activity after his August 1,1997 termination.

   I find that Complainant engaged in protected activity when he contacted the NRC on August 4 and 15, 1997, and Respondent's human resources department on August 15, 1997, and stated that he was terminated in retaliation for his signing, approval, and advocacy of the more conservative MPR methodology.

2. DISCRIMINATORY CONDUCT

   To establish a prima facie case of retaliatory discrimination under the ERA, an employee must show that: (1) he engaged in protected activity; (2) the employer was aware of that protected activity; and (3) the employer took some adverse action against him. The employee must present evidence sufficient to raise the inference that the protected activity was the likely reason for the adverse action. Dartey v. Zack Co. of Chicago, 82-ERA-2 (1983). In the instant case, the adverse actions consist of Employer placing Complainant on a PIP, excluding him from a July 9, 1997 meeting regarding containment air temperature and from the group that approved the reversion back to the arithmetic method, and, ultimately, discharging him. The presence of a retaliatory motive is provable by circumstantial evidence even if witnesses testify that they did not perceive such a motive. See Ellis Fischel State Cancer Hosp. v. Marshall, 629 F.2d 563, 566(8th Cir. 1980), cert. denied, 450 U.S. 1040(1981).

   If the employee establishes a prima facie case, the employer has the burden of producing evidence to rebut the presumption of disparate treatment by presenting evidence that the alleged disparate treatment was motivated by legitimate, nondiscriminatory reasons. The employer bears only a burden of producing evidence at this point. The ultimate burden of persuasion remains with the employee. If the employer successfully rebuts the employee's prima facie case, the employee may yet prove that the proffered reason was not the real reason for the employment decision. The employee may succeed in this either by directly persuading the adjudicator that a discriminatory reason more likely motivated the employer or by indirectly showing that the employer's proffered explanation is unworthy of credence. The trier of fact may then conclude that the employer's proffered reason for its conduct is a pretext and rule that the employee proved actionable retaliation for protected activity. However, the trier of fact may conclude that the employer was not motivated, in whole or in part, by the employee's protected conduct and rule that the employee has failed to establish his case by a preponderance of the evidence. Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248 (1981).

   Because this case was fully tried on the merits, it is not necessary to determine whether Complainant presented a prima facie case and whether Respondent rebutted that showing. Adjiri v. Emory University, 97-ERA-36 (ARB July 14, 1998);U.S.P.S. v. Aikens, 460 U.S. 711, 713-714 (1983). Once Respondent

has produced evidence in an attempt to show that Complainant was subjected to adverse action for a legitimate, nondiscriminatory reason, it no longer serves any analytical purpose to answer the question of whether Complainant presented a prima facie case. Instead, the relevant inquiry is whether Complainant prevailed by a preponderance of the evidence on the ultimate question of liability. See St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993); Darty v. Zack Co. of Chicago, 82-ERA-2, (Sec'y Apr. 23, 1983).

A. Complainant failed to establish that Respondent's actions against him were based on a retaliatory or discriminatory motive.

   I have found that Complainant has not established that he engaged in protected activity prior to his August 1, 1997 termination. Even assuming, arguendo, that Complainant had established that he engaged in protected activity while employed by Respondent, I find that Employer's actions against Complainant the poor performance rating, termination of employment, and Respondent's other actions against him were motivated by legitimate, nondiscriminatory reasons.

   I further find that Moaba articulated a legitimate reason for recommending that Complainant be terminated shortly after he was placed on a PIP. Moaba testified:

We had a series of steps in the performance improvement plan that he needed to follow. When we came up to the steps that were dated in late July, 7/23 specifically, and Mr. Makam was nowhere near completing those and, in fact, was still very clearly confused to what they meant and were (sic) submitting documents in a haphazard manner that showed he didn't understand what was happening despite supervisory help and discussions. He not only missed the dates but it was clear to my mind he had no potential for making them up within the next week or so in a reasonable amount of time. When that happened, and that's why I would say the date in my mind is the 26th, 27th of July, that's when it pushed me over the edge to this determination.

(TR 388) The record reveals that Complainant did not successfully meet deadlines for many of his PIP assignments. P-9, which is a list of the PIP items and their due dates and handwritten annotations by Complainant documenting when he completed each item, shows that out of eight PIP assignments, two were completed timely, two were one day late, one was two days late, and three were never completed. Under the heading "Fuel Handling Building HVAC," item one is listed as due on 7/18/97 and noted by Complainant as being completed on 7/19/97. Under the same heading, item three is listed as due on 7/23/97 and simply noted by Complainant as "not received." Complainant admitted that it was his responsibility to go to Meinershagen to get this item approved and that he did not do so. (TR 1446) Under the heading "Containment Air Temperature Monitoring," item two is listed as due on 7/25/97 and noted by Complainant as "scheduled for installation" on 7/26/97. Under the same heading, item three is listed as due on 7/23/97 and noted by Complainant as completed ("given to Dave Dodson") on 7/25/97.

   Further, Complainant's own testimony shows that he did not complete many of his PIP assignments on time and that when they were handed in, the assignments were found to be unacceptable by supervisors. Complainant admitted that he handed in his first PIP assignment one day late (the assignment was due July 18 and handed in July 19). (TR 1443) Complainant also admitted that his supervisors were not happy with both the lateness and quality of the assignment when it was handed in after July 19:

Q: Do you recall a meeting on or about July 24, with Mr. Dodson and Meinershagen about the progress of your PIP?

A: Yes, sir.

Q: Was that first meeting to discuss the PIP with Mr. Dodson, as your new supervisor?

A: Yes, sir.

Q: Do you recall what he said to you, Dodson?

A: Meinershagen, Dale Dodson and myself in the room. I explained each item, what I've done. And I have he had the design basis on the fuel ending building.

Q: And what did he say about what did Mr. Dodson say about that?

A: Dale Dodson said he is not happy with the design basis document. He was looking for a road map for a newcomer who can come to the department and be able to handle that job. That was his understanding. But I didn't have that understanding when I was assigned to that one. And he said he had revised this one. And you already missed the due date of 7/18.

   As for item two of Complainant's PIP, "obtain approval from supervisor of design basis," Complainant admitted that he did not get the required approval:

Q: (By Administrative Law Judge)

Back to item number two, "Obtain approval from supervisor of design basis." Now, correct me if I'm wrong. To me, this puts the burden on you, since this says you're to go to your supervisor, apparently Mr. Meinershagen, to obtain his approval.

A: Yes, sir.

Q: And did you ever say to Mr. Meinershagen, is this item approved?

A: I didn't.

Q: And why is that?

A: I was expecting that he was going to tell me about the design basis document I gave him on December 19. And he did not tell me. And I did not approach him, what happened (sic).

(TR 1447) Complainant offered no explanation as to why he did not "approach" Meinershagen to get the required approval for the completion of the assignment.

   Complainant also conceded that he was two days late in handing in his third PIP assignment, under the heading of "Containment Air Temperature Monitoring." Complainant offered no explanation for the late completion of this assignment.

   The first PIP assignment under the heading "Containment Air Temperature Monitoring" was completed on time. However, Complainant testified that it was actually completed by another engineer:

Q: Were you told, during your performance improvement plan assigned by Mr. Moaba, to calibrate the data loggers that were going to be used?

A: Yes, sir.

Q: Mr. Lawson actually calibrated those data loggers. Didn't he?

A: I think the calibrations are wrong word. It is not calibration, it is programming.

Q: You're saying they were programmed, not calibrated?

A: Indeed. PIP says calibrate.

Q: Right.

A: But what was actually done was the programming.

Q: And Mr. Lawson programmed them.

A: Yes, sir.

Q: And you stood there and watched it.

A: Yes, sir.

Q: And you understood that the purpose of your PIP was to improve your performance.

A: That's right.

Q: Despite that understanding and despite the fact that you were told to calibrate the data loggers, which you interpreted as programming, you stood there and watched Mr. Lawson program each one of the 15 or 20 data loggers.

A: That's correct.

(TR 1717-1718)

Q: Did you ask him whether the planner was aware of that so that the data loggers could be installed?

A: Yes, I did.

Q: And what was his response?

A: At the time I asked him he had not called the planner. I told him that he needed to do that.

Q: Are there any later conversations regarding the programming of the data loggers?

A: Yes, later in the day I had made a comment to Phil Lawson and Phil had indicated that in fact he [Lawson] had actually done the programming on the data loggers.

Q: And what was your reaction to that?

A: I told him that he wasn't supposed to have done that, that this was [Complainant's] action to complete, not someone else's.

Q: Did you later speak to Mr. Makam about the programming of the data loggers?

A: Yes, I did.

Q: And what was that conversation?

A: I addressed the subject with [Complainant] and told him that it wasn't the intent of his PIP that he was supposed to get somebody else to do the work for him, that the assignment was for him to complete the work.

Q: And what did Mr. Makam respond?

A: He said that, yes, he admitted the fact that Phil had done the programming of the loggers for him, that he had found the computer program confusing and it was easier to just let Phil do the work rather than do it himself.

(TR 2636)

   Meinershagen testified that Complainant's work performance was generally poor. Meinershagen also stated: "Whenever I asked Mr. Makam the status of his work basically he never gave me an answer that was here's what he was doing to resolve the issue. It was always an answer that was an excuse for why he hadn't gotten it completed yet. And on the assignments that he did complete it was only after repeated prodding...that he was responsible for getting that answer completed and to meet the schedule, support the unit." (TR 2602, 2613)

   Complainant argues that his PIP was "harsh and unachievable" with "unachievable specific project deadlines." However, there is no evidence to support this assertion. On the contrary, the record shows that Complainant's PIP was reasonable and achievable. When Complainant refused to cooperate in preparing his PIP, Moaba sought the advice of Straubmuller, who told Moaba to write the PIP for Complainant and to make sure that the PIP was "specific, measurable, and achievable." (TR 838) Further, Dodson testified that the PIP was "reasonable and quite within [Complainant's] capabilities to accomplish," and that the deadlines were ... reasonable...." (TR 2930) Moreover, both Dodson and Meinershagen testified that they informed Complainant that he could put any other work aside, and concentrate on meeting the requirements of his PIP. (TR 2626, 2941) Complainant also claims he did not get adequate support or feedback from Moaba, Meinershagen, or Dodson while on his PIP. However, the record does not show that Complainant ever specifically asked for support or feedback or that his supervisors refused to provide such support. Rather, the record shows that both Meinershagen and Dodson spoke to Complainant on several occasions regarding the progress being made on his PIP (see the testimony of Meinershagen and Dodson, above).

   As evidence of Respondent's discriminatory motive, Complainant points to the fact that he was terminated "only sixteen days into a PIP that was supposed to last for ninety days under [Respondent's] standard policy." (Complainant's Proposed Findings of Fact, p. 20) I disagree with this interpretation of the facts. The evidence shows that PIP guidelines and procedures are at the discretion of management. As Howard Berrick, a senior engineer and a member of the panel at Complainant's ERRP hearing (selected by Complainant!), testified, the 90-day period for PIPs, although standard, is at the discretion of management and "if management felt that during the 90 day period there was no progress being made [on the PIP] it [is] their obligation or their right to terminate an employee." (TR 3974; R-42) Therefore, and based on the testimony of Moaba, Meinershagen, and Dodson that as of late July 1997 it was clear to them that Complainant was not successfully proceeding to the completion of his PIP, I find that Moaba and Dodson's recommendation to Straubmuller that Complainant be

fired was reasonable and nondiscriminatory, even though it came only sixteen days after the commencement of his PIP.

   Complainant also alleges that Moaba made false statements to Straubmuller which were instrumental in "getting [Complainant] fired." Complainant's primary allegations here are that Moaba incorrectly told Straubmuller that Complainant had done virtually nothing on his PIP assignments, and that Complainant had caused the plant to go into a tech spec violation. (TR 850-854) However, the evidence discussed above shows that Moaba had a reasonable basis to believe that Complainant had made little progress on his PIP. As to the second statement, Straubmuller acknowledged that she included this language in her summary which recommended that Complainant be fired. However, Straubmuller also stated that she misunderstood Moaba at the time of their discussion and that upon reflection since no tech spec violation had actually occurred she was "sure he didn't say that," and that he must have told her that "we almost went into a tech spec violation." (TR 852-54, 868-69) Moreover, the record reveals that although senior vice president Burt Simpson read Straubmuller's summary when he approved Complainant's termination, he did not rely on that summary alone in making his decision. Simpson testified as follows:

Q: What did you rely upon, sir, in approving the termination of Mr. Makam?

A: ...My review of the entire document, not only assuming it was these few pages, but all the attachments, which basically indicated Mr. Makam's performance over a period of several years under various supervisors and managers was inconsistent. In other words, there had been meets standards and below standards [performance ratings]. That his unwillingness to fill out a PIP or to turn in a PIP indicated to me either he did not want to accept that he had any shortcomings, or for whatever reason, didn't want to participate. And the indications of the material included would indicate that he was not making adequate progress around those issues that he was told to do during his PIP period. So based on all of that, I agreed to sign off on the package.

(TR 2426) Further, Simpson presumably knew that there had been no tech spec violation and that Straubmuller's written statement to the contrary was incorrect.

   Complainant also argues that he was discriminated against when he was not taken to the July 9 meeting with Garchow regarding the containment temperature and the MPR methodology, and when he was not included in the group that made the decision to revert back to the arithmetic method on July 18. I find that the evidence shows that these occurrences

were not unlawfully motivated. Moaba testified that he did not take Complainant to the July 9 meeting with Garchow to present the revised temperature calculations for legitimate reasons:

Q: Then at 12:30 on July 9 you met with Mr. Garchow. Why didn't you take Mr. Makam with you to the meeting after he had just authored the revised calculations report that you were satisfied with that morning?

A: I did not take Mr. Makam because Mr. Makam very clearly did not prepare the curve that was the heart and soul of that report and he did not understand what was happening in that report and there was a feedback from the supervision and the other team members that he was a passive player that retrieved information upon request. So when I went to see Mr. Garchow, I took Mr. Meinershagen, who was the lead engineer, and we took Mr. Lawson, who in fact was the technical input person, if you will. He was the chief calculator. And [Lawson] sat outside in the anteroom in case we needed that kind of detail.

(TR 218) Further, Dodson testified that Complainant was not made a part of the group that made the decision to revert back to the arithmetic method because Dodson "didn't think that [Complainant] was capable of preparing the calculation in the time frame that we needed to have it prepared because of the work I'd seen him do so far." (TR 2664)

   Based on the foregoing, I find there is no evidence that Respondent's actions against Complainant after the containment temperature issue arose on July 8, 1997 were retaliatory. I find that Complainant was placed on a PIP and eventually terminated for legitimate, nondiscriminatory reasons.

B. Complainant failed to establish the existence of a hostile working environment.

   Complainant argues, in his brief, that he is entitled to a finding of strict liability for discrimination by being subjected to a hostile working environment. The Secretary has recognized that such discrimination is remediable under various environmental whistleblower protection provisions, including the ERA. Varnadore v. Oak Ridge Nat'l Lab., 92-CAA-2, (Sec'y, Jan. 26, 1996); Marien v.Northeast Nuclear Energy Co., 93-ERA-00049, (Sec'y, Sept. 18, 1995). A finding that a hostile work environment existed must be based on evidence that the employer's conduct was sufficiently severe or pervasive as to alter the conditions of employment and create an abusive work environment. Meritor Savings Bank v. Vinson, 477 U.S. 57, 67 (1986). To prove retaliatory discrimination in the form of a hostile work environment, an employee must establish five factors: that he engaged in protected activity and was intentionally retaliated against for such

activity; that such retaliation was pervasive and regular; that the retaliation detrimentally affected him; that the retaliation would have detrimentally affected a reasonable person under the same circumstances; and that respondeat superior liability is appropriate. Straub v. Arizona Public Service Co., 94-ERA-37 (Sec'y April 15, 1996).

   I have found that Complainant has failed to establish that Respondent's various actions against him were in retaliation for his (alleged) protected activity. Consequently, Complainant has failed to establish that he was subjected to a hostile working environment.

C. Complainant failed to establish that he was discriminated against after his August 1, 1997 termination.

   Although I have found that Complainant engaged in protected activity after his termination, when he contacted the NRC on August 4 and 15, 1997 and Respondent's human resources department on August 15, 1997, and when he made allegations of retaliation at the November 21, 1997 ERRP hearing, I find no evidence to indicate that Respondent discriminated against Complainant after he was discharged on August 1, 1997. Although at the ERRP hearing on November 14, 1997, the panel knew that Complainant had filed complaints alleging that he had been discriminated against for protected activity, I find that the ERRP's December 1, 1997 decision to uphold Complainant's termination was based on legitimate, non-discriminatory reasons.

   The ERRP panel consisted of chair Margaret Pego (Employer's corporate manager of human resources), Don Mansfield (manager of employee relations), Kurtis Bux (station planning engineer), Gary Stith (senior systems engineer at Employer's Hope Creek plant), and Howard Berrick (senior engineer). Pego testified about the reasons the ERRP panel upheld management's decision to terminate Complainant, as follows (TR 2182):

Q: And what did you rely on in supporting management's decision?

A: We relied on the fact that Mr. Makam asked for a panel meeting because he claims he was fired in retaliation for raising a safety issue. He was asked repeatedly throughout the testimony what issue did he raise and whom did he raise it to. The only thing that he told us was he raised it to the NRC after he was fired. He was asked-- the panel also relied on the fact that there was testimony presented that said he was asked to prepare a PIP. He refused to do it. He didn't disagree with that. He agreed with what Mr. Moaba said. Mr. Moaba said, I'd asked him to prepare a PIP. He refused to do it. He presented his PAP, and argued he should be have continued to be on a PAP. He wasn't disputing his performance. He was disputing whether it was a PIP or PAP. He refused to do it, and he failed to make progress on it. That's what the panel looked at.

   Berrick, who was selected by Complainant to be his representative on the ERRP panel, testified that he felt a "special obligation" to Complainant and that it

was his intention to support Complainant as much as possible. (TR 3973) Nevertheless, Berrick testified that "at the time [the panel] made [its] decision [it] had sufficient information to rely upon that there was a basis to uphold management's decision to terminate [Complainant]." (TR 3988) Berrick also stated that he did not believe that any of the panel members had made up their minds to sustain the discharge before they had heard any evidence: "... I didn't get the impression that there were--that people had already predetermined this situation. No one--no one had seen any of the evidence up to that point in time." (TR 3978) Finally, Berrick stated that "based upon the information that was presented at the panel meeting," he did not "personally feel it was necessary to call other witnesses." (TR 3974)

   Finally, the ERRP hearing record (P-68) reveals that the panel carefully examined whether Complainant's termination was justified. The hearing lasted five or six hours, during which there were opening statements, testimony, and closing statements from both Moaba and Complainant. The panel thoroughly questioned both Moaba and Complainant regarding the containment temperature issues, the MPR formula, Complainant's alleged safety concerns (i.e., what they were, to whom they were raised, and when), the placement of Complainant on a PIP, and Complainant's progress on his PIP.

   Based on the foregoing, I find that the ERRP's decision to uphold Complainant's termination was based on legitimate, nondiscriminatory reasons, and that therefore Complainant has not established that he was the subjected to discrimination or retaliation subsequent to his August 1, 1997 termination.

   I have found that Complainant did not establish that he engaged in protected activity prior to August 1, 1997, but that he did establish that he engaged in protected activity after his termination on that date. I have also found that Complainant has failed to establish that Respondent engaged in discrimination or retaliation against him in violation of the ERA either before or after his August 1 termination. In making these determinations, it has not been necessary to credit one witness over another, as there is no significant conflict about what conduct Complainant and Respondent engaged in. The only questions are whether Complainant's actions should be construed to constitute protected activity and whether Respondent's actions were based on an unlawful or discriminatory motive. In short, I have found all the witnesses to be credible in their testimony about the facts.

   Based on my findings of fact and conclusions of law, the complaint must be denied.

   The complaint of Surendraiah Makam is denied.

      Robert D. Kaplan
      Administrative Law Judge

Date: February 19, 1999
Camden, New Jersey

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