Respondent, Tennessee Valley Authority (hereinafter TVA) is a licensee of the Nuclear Regulatory Commission (hereinafter NRC), licensed to operate nuclear energy plants including the Browns Ferry Nuclear Plant (hereinafter BFNP) at which Complainant was employed as an engineering associate in the Division of Nuclear Quality Assurance, (hereinafter DNQA). Complainant had worked at various positions with BFNP, his last as a Quality Control Inspector. (Tr. pp. 309-311, RX-6).

    In late 1985, TVA began a major reorganization of its quality control program. It was decided to consolidate the quality assurance organizations in TVA and to establish a set of consistent standards to permit the interchangeability of quality control inspectors. (Tr. pp. 42,48). This led to the development of the Nuclear Quality Control Inspector Program which is based on the American National Institute Standards (Tr. pp. 40, 50). The program went through various stages of development and the first NQCI training class was held in late 1986. (RX-1, RX-2, RX-3, RX-4, Tr. p. 50). It was decided that, until the NQCI program was fully implemented, the existing credentials for inspectors would be used. (Tr. p.52).

    All inspectors who held a permanent position would be required to pass the program. While this was on a volunteer basis, those inspectors who did not successfully complete the new requirements would be reduced-in-force (RIF) once the program was implemented at their plant. (Tr. pp. 64-65,76). Complainant volunteered for the NQCI program in January 1987 and renewed his intentions in February 1988. (RX-11, Tr. pp.338,340).

    Complainant failed the math portion of this test two times and Respondent provided a tutor at no expense to Complainant and on company time. Complainant successfully passed the math portion of the NQCI

program in December, 1987. (Tr. pp.170-171, 342-343, 468-470). He then proceeded to the basic portion of the NQCI program. Complainant took the dimensional measurement tools course three times. Complainant again received outside assistance after each of the first two failures. Complainant's last attempt at this course was in September, 1988. As Complainant was again unsuccessful, he was not certified under the NQCI program, which was to be fully implemented at BFNP in September 1988.

information. (Tr. pp. 523, 529-30, 553-554).

    Complainant testified that there was a meeting that he attended on July 21, 1988 where saftey and discrimination concerns raised. Complainant states that the safety concerns were in relation to inspectors being directed to accept unsatisfactory material. (Tr. p. 322). complainant also testified that he complained about signing for an uncertified inspector. (Tr. 320). The evidence shows that Chairman Runyon was the only management official at the meeting and that it involved primarily with discrimination complaints and was attended solely by black employees. (Tr. pp. 270, 274-275, 320-321).

    As Complainant has shown that he engaged in protected activity under the Act, he must now show that the Respondent knew of this activity and acted in response thereto. Complainant has shown that several employees were aware his complaints. (Tr. pp. 227, 231-42, 246, 265, 267-268, 274-275, 281, 302). Mr. Van Martin testified that the only concern of Complainant of which he was aware of prior to the RIF related to the traceability and paint sticks. (Tr. pp. 687-688). He further testified that he was not aware of any other complaint until he was contacted by the NRC in November 1988. Mr. Martin also stated that he had no role in the decision to terminate Complainant. (Tr. pp. 682-683, 692).

    Dave Dharia, who had some supervisory authority over Complainant, testified that he was aware of the unprocessed CAQR. He further testified that he discussed the capacitor testing with Complainant. Mr. Dharia also stated that he had no role in the decision to RIF Complainant. (Tr. pp.549-550, 553-554).

    Michael Holland was a co-worker and, as lead inspector, had some supervisory authority. Mr. Holland stated he had no involvement in the RIF of Complainant and that he did not see the CAQR until after Claimant had left. He testified that he had heard 'talk in the office" about it prior to that time. (Tr. pp. 502-503, 507-508, 513). Complainant's last immediate supervisor was Gerald Turner. Mr. Turner testified that, while he had heard some of the complaints at the plant, he was not aware that they had been made by Complainant until after the RIF. (Tr. pp. 482-484).

    Raymond Dibler worked at DNQA and was involved in the initial development of the program. Mr. Dibler stated he had absolutely no knowledge of any of Claimant's activity nor had he any role in Complainant's RIF. (Tr. p.81). Mr. William Sneed is employed by the Division of Nuclear Training at the Power Operations Training Center (POTC). He administers and writes the exams and was also involved in the development of the NQCI program. (Tr. pp. 102,105,108). Mr. Sneed stated he had no knowledge of Complainant's complaints and did not participate in the RIF decision. Mr. Sneed's only contact with Claimant was during the September, 1988 course. (Tr. pp.132, 137-138).

    Dennis Eggert taught Claimant during the general phase of the program and was involved in the certification of inspectors. Mr. Eggert testified that he had no knowledge of Complainant outside of the program. He testified that he had no supervisory authority over Complainant and had no part in the RIF. (Tr. pp. 179-180). Thomas Bass was Senior Quality Trainer at TVA. He had worked on the development phase of the program and also developed lesson plans used in the dimensional measurement tools test which Complainant failed three times. (Tr. 389-390). Mr. Bass stated that the only authority he had over Complainant was in the classroom and then only as an instructor. He further testified that he had no role in determining whether Complainant would be terminated and that he had no knowledge of any of Complainant's complaints prior to this litigation. (Tr. pp.441-442).

    Terrance Chafin worked at TVA for DNQA as an instructor. Mr. Chafin taught Complainant the Lab portion of the dimensional tools measurement course and was the person who graded his September 14, 1988 exam. (Tr. pp. 601,603-604). Mr. Chafin had no supervsiory authority over Complainant and further testified that he was without any knowledge of any of his complaints. He also testified that he was not given any directive to fail Complainant. (Tr. pp. 612-613).

    Complainant also alleges that the procedural change in the examination was discriminatory and that he would have passed the test under the prior procedure. It was stipulated that the September 1988 examination was procedurally different as there were two separate tests rather than only one. (Tr. pp. 297-298).

    Complainant contends that prior to the September 1988 exam

the two parts of the exam were averaged and that so long as the average was equal to 80% the candidate was passed. Therefore, if the September exam grades had been averaged the "75" on the practical and the "88" on the knowledge portion would equal 81.5% which is passing. (Tr. pp. 314-315). Complainant has failed to realize that while the exams prior to September 1988 resulted in a final score, it was a composite rather than an average score. The evidence shows that the NQCI program placed more emphasis on the practical portion and it was weighted at 80% of the total. Complainant admits that he knew the practical portion was weighted more than the knowledge portion. (Tr. pp. 79-80, 136, 256-257, 261-262, 283, 285, 295, 362, 413, 451).

    The evidence shows that even if Complainant's exams had been graded under the prior procedure, he would have received a 78 which is not a passing. It is further noted that while September 1988 was the first time the tests were given separately, they have been administered that way since that time. (Tr. pp. 412-413, 421-422, RX-27 p.6).

    Complainant has not presented any evidence proving that the NQCI program and its testing procedures were designed to discriminate against him. The evidence does show that the program was developed to insure constant standards within TVA and proper certification and training of Quality Control Inspectors. (Tr. pp.48,50). It is doubtful that if TVA was attempting to terminate Complainant he would have been provided with a tutor and extra informal instruction. (Tr. pp. 343, 470,472).

    Complaints other complaints are not supported by the evidence. He states that another reason he failed was that the instruments were not calibrated. However, the evidence reflects that all of the students used the same instruments and that the instructor would recheck a failed measurement to insure that the instrument was within the allowable tolerance. (Tr. 369-370, 439, 609). Complainant further complains that none of his prior experience was taken into consideration in the NQCI program. Mr. Dibler testified that during the general and basic phase of the program experience is not considered. It is not until an inspector reached the "specific" phase of the program that prior experience is considered.

    Based upon the totality of the evidence presented, the Court finds that Complainant has failed to prove that Respondent

designed, developed and implemented its NQCI program as a means to terminate him for any reason.

    It is, therefore, ORDERED, ADJUDGED and DECREED that the complaint of Complainant, James L. Steele, is hereby DISMISSED.

Entered this day of 1989, at Metairie, Louisiana.

       JAMES W. KERR, JR.
       Administrative Law Judge