Although the Complainant did raise questions about the propriety of the
preparation of the list on which his name appeared for the RIF, I find that
the evidence is not sufficient to meet the greater burden of proof set out in
Ridenour, that his inclusion in the RIF was motivated by his protected
activities.
Site Security Manager
The Complainant maintains that he was not selected for the position of
Site Security Manager at Watts Bar Nuclear Plant because of his protected
activities. At the time the position was filed, Mr. Smith was Acting Site
Security Manager. To establish the Respondent's wrongdoing, the Complainant
has argued that the vacant position announcement (VPA) issued in September
1988 (CX 91), appears to have been written for Richard Hardin who was
ultimately selected as Site Security Manager. This description, when
compared to the May 1988 description (CX 92), clearly shows that the two are
virtually identical, except for a highly significant experience requirement.
The May 1988, description (CX 92), under the heading of
"Qualifications:" provides as follows:
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A B.S. or B.A. in Criminal Justice/Security Administration or
equivalent. A minimum of seven year's experience in managing security
systems or programs, three of which have been in a supervisory role
with control over a minimum of 100 individuals. (Emphasis added).
The September 1988, description (CX 91), under the same heading of
"Qualification:" provides:
[Page 23]-
B.S. or B.A. in criminology or Security Administration, or equivalent.
Requires extensive knowledge of theory and concepts relating to nuclear
security services and industrial complex protection. Skilled in
observing possible security threats and solutions, make complex
decisions under emergency conditions, schedule, coordinate, and manage
the activities of personnel at various onsite locations, establish
cooperation, and manage activities to accomplish tasks, and communicate
effectively in writing and orally. Eight years' experience in the area
of nuclear, industrial, or security forces, including at least five
years responsible nuclear security supervision experience. (Emphasis
added).
Clearly the two management experience requirements are distinctly
different. The Complainant argues that he possessed the necessary
experience requirement expressed in the earlier description, while Mr.
Hardin did not. Indeed, Richard Hardin testified that he did not have a
minimum of seven years experience in managing security systems or programs
(Tr. 2556), and that he had never supervised up to a hundred individuals
(Tr. 2562).
The vacant position announcement for the Site Security Manager's job
was also suspiciously posted for only a brief period. Sharon Moore testified
that she was employed as the lead clerk in the security section and had been
secretary to the manager of site security at Watts Bar while the position
was held by Rick Parker, Frank Smith, and now, Richard Hardin (Tr. 1535-
1536). Mrs. Moore testified that the VPA (CX 91), was received by her office
for posting on September 12th and that the advertisement also closed on the
same day (Tr. 1563). Yet, Richard Hardin testified that he received the
announcement by mail at the training center in Cleveland, Tennessee, two
days before the deadline on the application (Tr. 2536, 2563).
Further, the position appears to have been advertised without following
existing TVA policy regarding the filling of new positions. By memo issued
April 29, 1988, an employment freeze was imposed by J. Scott Shaffer, head
of personnel services at Watts Bar at the time (Tr. 1579; CX 90). The freeze
imposed by Mr. Shaffer provided that any new positions would require
approval of a "Request to Advertise Position," and that "...justification
must be provided that demonstrates that the position is required for restart
or recovery activities and that the duties cannot be performed by, or
distributed to, existing employees" (CX 90). At the time that the position
of site security manager was filled, Mr. Smith was already acting in the
same capacity. The record contains no evidence that the Shaffer memo and
freeze (CX 90), had been lifted; nor is there evidence that a "Request to
Advertise Position" had been approved.
These factors must be considered in light of the timing of Mr. Smith's
July 12, 1988, request for investigation made to the TVA Inspector General
[Page 24]
(CX 93). The clear inference is
that the whole procedure for advertisement and selection of Mr. Hardin as
the Site Security Manager at Watts Bar was pretextual, and that the
Complainant's persistence in supporting Mr. Brock's concerns was a factor in
his failure to be retained as Site Security Manager at Watts Bar. I find
that this evidence is sufficient for the Complainant to establish a prima
facie showing to support the inference that his protected activity was a
motivating factor in TVA's selection of Mr. Hardin instead of the
Complainant. Once this is established, the burden shifts to the Respondent
to demonstrate that the same action would have been taken even in the
absence of the protected conduct. See, DeFord, supra, citing Consolidated
Edison Co. v. Donovan, 673 F.2d 61 (2d Cir. 1982), and Mt. Healthy City
School District Board of Education v. Doyle, 429 U.S. 274 (1977).
In support of TVA's actions, Mr. Gerald Shilling testified that he
prepared the job description upon which CX 91 is based (Tr. 2920), and that
at the time he was working with Mr. McCloskey and Mr. Gillison (Tr. 2921).
Shilling testified further that he suggested the changed language which
eliminates the requirement that an applicant had supervised a minimum of 100
people because it was too limiting (Tr. 2930).
However, Mrs. Sharon Moore testified that she did not know who
prepared the September announcement (CX 91), but that Mr. Gerald Shilling told her it
did not come out of his office (Tr. 1587). According to Mrs. Moore, it would
have been expected to be generated in Mr. Shilling's office, as he was
protective services human resource officer, and that such would normally be
issued by that office (Tr. 1588). She further testified that she called
"Gerald the, day it came in because we got it the same day it closed. He
said that it did not come out of his office. That he didn't know where it
had been during that this period of time. I'm assuming it had been out a few
days since it closed the day we got it" (Tr. 1587). Yet Mr. Gillison
testified that it was Mr. McCloskey who posted the vacancy announcement for
the permanent site security manager's position in early September 1988 (Tr.
1825). In considering this apparently conflicting evidence from Mr. Shilling
and Mrs. Moore, I don't necessarily see these statements as entirely
inconsistent. It is at least conceivable that Mr. Shilling was talking about
explaining the lateness of the VPA issuance as opposed to its content.
In any event, the issue to be considered here is whether the Respondent
has articulated a legitimate nondiscriminatory explanation for the problems
surrounding the Site Security Manager vacant position announcement.
As indicated, Mr. Shilling claims credit (with help from Mr. McCloskey
and Mr. Gillison) for authoring the changes in the announcement as they
[Page 25]
relate to the requirement of supervising a minimum of 100 individuals. More
significantly, Mr. Shilling does not claim credit for the change from "A
minimum of seven years' experience in managing security systems or programs"
as in the May 1988 description (CX 92), to "Eight years' experience in the
area of nuclear, industrial, or security forces" as in the September 1988
description (CX 91). This change is particularly significant as Richard
Hardin testified that he did not have a minimum of seven years' experience
in managing security systems or programs (Tr. 2556). Thus, Mr. Hardin could
not have qualified for selection under the earlier VPA.
Mr. Shilling does not explain, and indeed the Respondent's evidence
does not give an explanation for this major change in the VPA. In the
absence of such explanation, I find that
the evidence establishes that the September 1988 vacant position
announcement was unlawfully tailored to allow Mr. Hardin to qualify and be
selected as Site Security Manager at Watts Bar instead of the Complainant,
who was then the Acting Site Security Manager. Respondent also does not
explain why the position was advertised without following the Shaffer memo
regarding approval of a "Request to Advertise Position."
Further, I find that the motivation for this action was, at least in
part, the serious questions raised by Mr. Brock and Mr. Smith regarding the
Watts Bar protected area, which could have impacted upon the restart of the
Sequoyah Plant, as documented in Mr. Smith's July 12, 1988, complaint to
Norman A. Zigrossi, TVA Inspector General (CX 93). The assertions of the
Respondent that Mr. Gillison, Mr. McCloskey, Mr. Rogers, and others that
they were not aware of Mr. Smith's support for Mr. Brock, or his SORR
concerns or the July 12, 1988, complaint to TVA's Inspector General are
simply not credible.
As such, I find that the Complainant, Frank Smith, has been unlawfully
discriminated against by TVA as a result of activities protected under the
ERA.
DAMAGES
Because I have found that the Complainant was unlawfully
discriminated
against as a result of protected activities under the ERA, he is entitled
reinstatement to the position of Site Security Manager, Watts Bar Nuclear
Plant, and to recover back pay with interest, compensatory damages,
attorney's fees, and costs and expenses reasonably incurred by the
Complainant in the bringing of the complaint.
The back pay award shall comprise the Complainant's reasonably
[Page 26
]
projected compensation had he been selected and remained in the position of
Site Security Manager, less any compensation received as the result of
substitute interim employment. The period for computing back pay shall run
from September 26, 1988, the date of the selection of the Watts Bar Site
Security Manager, to the date that the Complainant is reinstated to the
position of Site Security Manager, Watts Bar Nuclear Plant.
Compensatory damages shall include all reasonable expenses which the
Complainant has incurred as a result of his failure to be selected to the
position of Site Security Manager on September 26, 1988, until the date he
is reinstated to that position. Such expenses shall include, but are not
limited to, expenses associated with travel to and from his place of interim
employment and additional living expenses; loss of TVA benefits, including
medical expenses incurred due to loss of insurance coverage; and, medical
expenses incurred as a result of stress relating to his discharge from
employment.
RECOMMENDED ORDER
It is hereby Ordered that:
-
1. Respondent TVA shall immediately reinstate Complainant Frank C.
Smith to the position of Site Security Manager, Watts Bar Nuclear
Plant.
-
2. The Complainant shall submit, in writing, within 20 days of this Decision an
Itemization of Damages, including back pay with interest, compensatory
damages, attorney's fees, and costs and expenses, which he claims are due
from the Respondent. Following submission of the Complainant's Itemization
of Damages, the Respondent shall file a response, in writing, within 20
days. Thereafter, a Supplemental Decision and Order will be issued to
determine the exact amount of damages.
Entered this the 1st day of October, 1991, at Cincinnati, Ohio.
Richard E. Huddleston
Administrative Law Judge