DATE ISSUED: NOVEMBER 8, 1991

Case No.: 90-ERA-30

In the Matter of

MARVIN B. HOBBY,
    Complainant

v.

GEORGIA POWER COMPANY,
    Respondent

Michael D. Kohn, Esquire
David K. Colapinto, Esquire
Kohn, Kohn & Colapinto
    For the Complainant

James Joiner, Esquire
William N. Withrow, Esquire
Troutman, Sanders, Lockerman
    For the Respondent

Before: JOEL R. WILLIAMS
    Administrative Law Judge

   This case arises under the employee protection provision of

Section 210 of the Energy Reorganization Act of 1974 (ERA), 42 U.S.C. § 5851, and the regulations promulgated thereunder, 29 C.F.R. Part 24.

   The Complainant filed his initial complaint under the Act on or about February 6, 1990. This was supplemented on February 28, 1990. On March 26, 1990, the Acting Regional Director determined that the Complainant had been discriminated against for engaging in activity protected under the ERA and called for his restoration to his former position. The Respondent filed a timely request for a hearing. They also filed a complaint with the Secretary of Labor contending that the March 26, 1990 determination was made without their having been afforded a reasonable opportunity to participate in the investigation. Thereafter, the case was reconsidered by the District Director, Wage and Hour Division, based on additional information furnished by both parties. On May 25, 1990, the District Director amended the prior findings to the effect that the elimination of Complainant's job was not based on his having engaged in any protected activity. The Complainant then filed a timely request for a hearing.

   Following several continuances, requested and/or agreed to by the parties in order to allow time for protracted pretrial discovery, for resolution of discovery disputes, and for the disposition of various pretrial motions, the hearing was commenced in Decatur, Georgia, on October 23, 1990. It was recessed on October 26, 1990, and resumed and concluded in Washington, D.C. on November 13, 1990. The record was held open thereafter to permit the parties the opportunity to submit post- hearing briefs.

   Based on the testimony adduced at the hearing and the documentary evidence admitted into the record, I consider what follows to be a fair representation of the pertinent evidence in this case.

   Upon graduation from high school, the Complainant was given a full scholarship by a Dr. and Mrs. Claude Shingler to Mercer University where he received a Bachelor of Science degree in natural science concentration with a major in physics. Upon graduation, he went to work for Oak Ridge Associated Universities

where he received additional training in nuclear physics, radiobiology, and radiochemistry. He first went to work for the Respondent in 1971 as the director of the visitors center at the Edwin J. Hatch nuclear plant in Baxley, Georgia. He was hired by George Head. He was transferred to Atlanta in 1973 or 1974 and became a member of the staff of an ad hoc executive committee which had been established in order to focus on some of the financial problems which the company was then experiencing. He was involved subsequently in assisting Mr. H. Grady Baker in negotiating the sale of approximately 50 percent of the company's interest in its two nuclear power plants to Oglethorpe Power Corporation and others.

   The Complainant left Georgia Power in 1979 to assist Mrs. Shingler operate an alternative energy company. At the end of that year he heard of an opening at the Institute of Nuclear Power Operations (INPO), an industry group which had been established in Atlanta to assist the nuclear utility industry in achieving excellence in all aspects of the operation of nuclear power plants. He applied for the position of communications manager and was interviewed by Admiral Dennis Wilkinson, a retired naval nuclear expert, who had been selected as president of INPO after a nationwide search. The Complainant was hired by Admiral Wilkinson and eventually became his assistant and secretary of the corporation. In 1984, he was loaned by INPO to a group called the Nuclear Utilities Management and Human Resources Committee (NUMARC), which had been established in order to offer viable solutions to the Nuclear Regulatory Commissioner's (NRC) concerns in lieu of additional regulations. While there he worked with J.H. Miller, the then president of Georgia Power Company and the first chairman of NUMARC.

   As advised by Admiral Wilkinson, the Complainant had planned at some point in time to leave INPO and get back into the nuclear power industry. He discussed these plans with Mr. Miller, who offered him a position as his assistant at Georgia Power Company. His starting salary upon his return to Georgia Power was $76,000 per year. He was subsequently assigned a company car and included in a bonus program for senior people in the company. In addition to Mr. Miller, the Complainant reported also to Mr. Baker, who was then senior executive vice-president.

   Georgia Power Company is owned by the Southern Company, an electric utility holding company which also owns Alabama Power

and other companies. Both Georgia Power and Alabama Power had separately operated nuclear plants. While working for Mr. Miller, the Complainant suggested to him that the company again look into an earlier, unsuccessful plan to establish an operating company to operate all of the nuclear units. A task force was established to look into such a possibility. The Complainant served on Phase I of the task force. The task force recommended in July 1987 that a nuclear operating company be developed. The recommendation was accepted by the chief executive officers of the Southern system who decided to proceed with Phase II.

   The Complainant declined to serve on Phase II of the task force. Instead, he rotated jobs with a Tom McHenry, and became manager of nuclear support of Georgia Power about September 1, 1987.

   The Complainant's performance evaluation for 1987 was executed by Mr. Baker as Mr. Miller had retired in November of that year. Mr. Baker commented at the time that there was "no known limit" to the Complainant's future growth possibilities. In early 1988, Mr. Head, who was then senior vice president of fossil and hydro power, temporarily took on the additional responsibility of nuclear operations. During this time, the Complainant was assigned additional responsibilities which included nuclear security. Mr. Head began to implement a new management philosophy which placed more accountability for operation of the power plants in the plant managers with less corporate oversight. The Complainant supported this philosophy.

   In April 1988, R.P. McDonald, who was a senior vice president of Alabama Power, was named to the additional position of executive vice president of Georgia Power with responsibility for nuclear operations. The Complainant had known Mr. McDonald since about 1981 and had a favorable working experience with him. Mr. McDonald believed that there should be no corporate oversight of nuclear operations. The implementation of this philosophy resulted in the Complainant's having insufficient work for his security staff, which included John Fuchko and Gary Yunker. He recommended to Mr. McDonald in April or early May 1988 that they either find something else for Mr. Fuchko and Mr. Yunker to do in the company or look at the possibility of outplacement. Mr. McDonald would not allow such actions. On June 1, 1988, due to one of several reorganizations which occurred that year, the Complainant no longer was responsible for supervising Mr. Fuchko

or Mr. Yunker. During the same month, Alfred W. Dahlberg became president of Georgia Power.

   On June 22, 1988, the Southern Company, Alabama Power Company and Georgia Power Company filed an application with the Securities and Exchange Commission (SEC) to form the Southern Nuclear Operating Company (SONOPCO). Oglethorpe Power Corporation filed a Motion to Intervene with the SEC in September 1988. As this caused a delay in the formation of SONOPCO as a corporate entity, it was decided to implement the SONOPCO idea in three phases. The first phase, which was instituted on or about November 1, 1988, was to begin operating SONOPCO as a division. As a result, all nuclear operations personnel were relocated to Birmingham, Alabama. The formation of SONOPCO was headed by Joe Farley, executive vice-president of the Southern Company. During this phase, Georgia Power continued to maintain the license for its two plants. Mr. McDonald retained his position as vice president of both Alabama Power and Georgia Power. Dr. Dahlberg, Mr. McDonald, Mr. Farley, Mr. Head and Mr. Baker testified to the combined effect that during Phase I, which was still in effect at the time of the hearing, Mr. McDonald reported to Mr. Dahlberg regarding operation of the two Georgia Power nuclear plants.

   Mr. McDonald considered the Complainant to be "a valuable employee for a position in the new organization." (T 617) Upon being approached about transferring, the Complainant determined that he did not want to move to the SONOPCO project in Birmingham. The Complainant discussed with Mr. Baker the idea of establishing an interface group between Georgia Power and SONOPCO. Mr. Baker testified in this regard:

Well, we formed this group because it was the thing we usually did, the company usually did, in a new activity like that is we usually form a group to specifically look after it.

My own personal opinion is that that's not necessary but in this particular case, you know, I had Mr. Hobby and I didn't have anything really to do, for him to do, and I though that this might be an arrangement where he could make a contribution, and so we formed the nuclear operations operating group.

It was not clear to me when we formed it exactly what it was to accomplish, except that it was to be an interface between the Georgia Power Company various Georgia Power Company departments and the various departments in the SONOPCO group.

(T-686)

   The Complainant also discussed his idea with Mr. Head and prepared an outline as to how the group would be organized. Mr. Baker and Mr. Head discussed formation of the group with Mr. Dahlberg. At that point in time, Mr. Dahlberg believed that the SEC approval and incorporation of SONOPCO should take only a matter of months and when this occurred there would be a contract to administer between Georgia Power and SONOPCO. He anticipated also that Georgia Power "would need somebody to be involved in gathering information about the performance of the units, about budget, about safety facts." (T-330)

   On December 27, 1988, Mr. Dahlberg issued to the executive and management staff the following memorandum, which had been prepared by the Complainant:

As you know, Georgia Power Company's nuclear operations group has been relocated to Birmingham, Alabama. We are in the process of working out the agreements with out joint owners to establish Southern Nuclear Operating Company which, when finalized, will contract with us to operate our nuclear plants.

It is important for us to realize that while our nuclear operations may be managed in Birmingham and ultimately will be managed by a separate Southern subsidiary, Georgia Power will be held accountable by our regulatory groups, our stockholders, and the public for the operation and performance of our nuclear units. It is essential that Georgia Power Company be involved in the operations of our units, monitor their performance and integrate nuclear operations goals, accountabilities, and financial planning into Georgia Power Corporate Plan.

Effective immediately, a Nuclear operations Contract Administration Group is formed to interface with our nuclear operations group in Birmingham. This group will report to Mr. G. F. Head, Senior

Vice President, who will be responsible for all nuclear operations interactions.

Mr. M. B. Hobby, Assistant to the Senior Executive Vice President, currently on loan to Nuclear Operations, is named General Manager Nuclear Operations Contract Administration and will report to Mr. Head.

Your support as we move to restructure our nuclear operations group is appreciated.

(CX-8; RX-2)

   Fuchko and Yunker filed a complaint under Section 210 of the ERA which was scheduled to be heard commencing January 3, 1989. A meeting was held on January 2, 1990, between members of the firm representing the Respondent in that matter, Troutman, Sanders, Lockerman & Ashmore (TSL&A), and the company employees who were anticipated witnesses on its behalf. The Complainant attended the meeting as did Mr. McDonald. The meeting was conducted by Jesse P. Schaudies, Jr. and Donald W. Janney, partners in TSL&A, assisted by Mark Bose and Chris Miller, associates with the firm. The entire group of 20 to 30 people initially met together in the Respondent's corporation board room. They then broke into two groups with one remaining with Messrs. Schaudies and Miller in the board room and the other meeting with Messrs. Janney and Bose in a room on the next floor. Mr. McDonald was in Mr. Schaudies group and the Complainant was in Mr. Janney's group.

   At the initial session each potential witness was handed an individual compartmentalized list of areas about which they were expected to testify. The Complainant testified on direct examination in this regard as follows:

Q. And what happened in the meeting after they handed out these outlines?

A. I read over my outline, and I saw down toward the bottom there was a statement that says Hobby tried to terminate Yunker due to a lack of work, but it was vetoed by Mr. McDonald.

I read that, that was not true because it said in the August 1988 time frame. I raised my hand in the meeting and informed the attorney present that that was not a correct statement, that I had not tried simply to terminate Mr. Yunker, that my concern was with the lack of work for Mr. Yunker and Mr. Fuchko, and that I wanted to either look for other work in nuclear operations for them, look for other work at Georgia Power Company for them, or then as a last resort consider an outplacement, but I told the attorney it did not happen in August, that it happened back in the April-May time period.

Q. And was there any response to your comment? A. Yes. The attorney asked me if I had made these recommendations back in the April-May time frame, that if I had realized that they did not have work to do why had I not taken action against them in the April-May time period, and I said because Mr. McDonald -- Mr. McDonald was sitting to my right -- I said because Mr. McDonald would [not] allow me to.

A. And was there any response after that?

A. Mr. McDonald said "I don't know what he's talking about, he's never talked to me about that."

Q. And do you remember anything else that occurred at that meeting?

A. Well, we dropped that subject after Mr. McDonald said he had never heard me discuss that with him, or that I had not discussed it with him.

(T 92-93)

   Mr. Schaudies had the following recollection of the incident:

And then Mr. Hobby also raised an issue, and he

said that he had been looking at his outline and that he thought it was incorrect to suggest that on August 188 he said he wanted to terminate Yunker due to lack of work, but vetoed by McDonald which is what the entry reads at the bottom of his page on Tab 8.

What he explained or began to explain was that he had actually a month before Fuchko and Yunker had submitted their letter of concerns to the company he had raised the issue with Mr. McDonald of whether these men should be terminated or reassigned or released, reduction in force or something like that, and he made the point that he had discussed it several times, and he was discussing termination as an option, not as the exclusive remedy and not only in August of 188.

Q. All right. Did Mr. McDonald make any comment about Mr. Hobby's statements regarding his testimony?

A. Mr. McDonald from the other side of the room started to inquire what it was he was saying and to make sure he understood, and I just kind of cut it off that it didn't seem appropriate for the group discussion, and I said "That's fine, Don Janney will handle that with Mr. Hobby upstairs and I'll talk to Pat about it," and it was just fine-tuning, one of the purposes we were,there to make sure that we had all of the information and that the information on the, as you called them, outlines was proper, full and correct.

Q. Was there any inconsistency in Mr. Hobby's testimony and Mr. McDonald's testimony that was identified in that general session?

A. No, there wasn't. That was the -- the only comments that were made by either one of them that I recall in that general session were what

I've already related to you.

There was no inconsistency at all. In fact, what I explained to Mr. Hobby saying and my recollection of what he said, rather than being anything that could be characterized as an inconsistency I felt was further support for the case.

The case was a claim -- the Fuchko and Yunker petitioners were claiming that Mr. McDonald had intentionally discriminated against them and had placed them, not allowed them to get a job because of raising concerns, and here was Mr. Hobby saying "Wait a minute, months before I had given Mr. McDonald several opportunities to terminate these people who claimed to be whistle-blowers, and yet Mr. McDonald repeatedly chose not to do that." That was not an inconsistency at all.

   Mr. McDonald testified in substance that although he remembered attending the January 2, 1989 meeting, he did not recall any discussion about any inconsistency between his testimony and Mr. Hobby's testimony. (T-614). Mr. Janney stated that he was out of the room part of the time during the general session and that he did not remember the Complainant speaking up during the session.

   The Complainant stated further that during the initial, general session, Mr. McDonald outlined his proposed testimony as to how the SONOPCO project was staffed. The Complainant was concerned because he believed "that the information that Mr. McDonald was giving as far as how people were selected, I believed that to be false." (T.-95). No discussion of Mr. McDonald's proposed testimony on this point was held during the general meeting.

   When asked on direct examination what happened in the smaller meeting, the Complainant responded:

We went over each individual's testimony in a little bit greater detail.

At the conclusion of the meeting, though, one of

the attorneys from Georgia Power Company, and my recollection is it was not an attorney who was in my smaller meeting group, came up to me -- the meeting was breaking up, he came up to me and he said "Mr. Hobby, we have a problem," and I said "What is it?", and he said that Mr. McDonald -- "Your story and Mr. McDonald's story does not match."

We talked for a second about it. I said "Well, I'll tell you we've got a bigger problem, because Mr. McDonald's recollection, or Mr. McDonald's testimony that he is going to give as far as how people were selected for the SONOPCO project, that is not the way that I understand the selection to have been made."

The attorney said "Well, we've got a problem. We'll listen to what Mr. McDonald says on the stand, then we'll come back and get with you so you can change your testimony accordingly."

   And when asked for his opinion as to the identity of that attorney, the Complainant replied:

As I stated in my deposition, I believe the attorney was Mr. Jay Schaudies of the Troutman Sanders law firm, but as I said in my deposition my deposition I cannot be one hundred percent sure.

(T-97)

   Mr. Schaudies testified that he had no conversation with the Complainant following the general meeting. Mr. Janney testified that in the discussions he had with the Complainant subsequent to the general meeting, there was no indication that his testimony was going to be inconsistent with Mr.

McDonald's in regard to their Fuchko/Yunker conversations. He testified further that the Complainant never stated to him Mr. McDonald's description of the manner in which the SONOPCO project was staffed was inaccurate or incorrect. Mr. Janney replied in the negative when asked:

"Did you ever go to Mr. Hobby and tell him that you or the lawyers in the Troutman Sanders firm were going to listen to Mr. McDonald's testimony and then come back to Mr. Hobby and tell him what to say so that it would be consistent with Mr. McDonald's testimony?

(T-771-772)

   The Complainant went on to testify that as he was concerned about possibly being put in the position on the stand of contradicting Mr. McDonald and as he kenw that Mr. McHenry, who was scheduled to be a witness but did not attend the January 2 meeting, could be placed in the same position, he decided to call Mr. McHenry to alert him of this possibility and for "a sanity check ... to check my facts." The Complainant stated that during the course of this conversation, which occurred on January 3, he related to Mr. McHenry his conversation wherein "the attorney had suggested to me, or had told me that he would listen to Mr. McDonald's testimony on the stand, he would get back to me so that I could change my testimony accordingly." (T-101).

   Mr. McHenry recalled having a conversation with the Complainant on January 3, 1989 wherein they discussed their meetings with Mr. McDonald concerning Mr. Yunker and Mr. Fuchko and the staffing procedure for the SONOPCO project. Mr. McHenry was not examined at the hearing regarding whether the Claimant had related any conversation with an attorney about changing testimony. In an affidavit concerning the January 3, 1989 conversation, prepared during a meeting with the Complainant on or about July 16, 1990 (T-294) and submitted into evidence at the November 13, 1990 session, Mr. McHenry stated, in part:

Mr. Hobby stated to me that, at the conclusion of this planning meeting, an attorney from Troutman/Sanders had told him that his explanation of trying to terminate Messrs. Fuchko and Yunker in the April-June, 1988 time period did

not square with Mr. McDonald's recollection and that the Company had a problem with this conflict in testimony. Mr. Hobby told me that he told the attorney that the Company had bigger problems in that Mr. McDonald's statements related to the selection of personnel were incorrect. Mr. Hobby said he explained the discrepancies to the attorney and the attorney responded that he would listen to what Mr. McDonald said on the stand so that Mr. Hobby could change his testimony to agree with Mr. McDonald's. Mr. Hobby said he refused.

   On cross-examination the Complainant admitted that he had no direct evidence that the inconsistences of testimony that he had raised had ever been communicated to Mr. McDonald by the attorneys involved but that he believed that they did based on his experience with the law firm. He acknowledged further that neither Mr. McDonald nor any other company official had said anything to him about the issue of inconsistent testimony. (T-230-232).

   The Complainant was never called to testify at the Fuchko/Yunker hearing as the matter was settled after the Respondent's had put on two or three witnesses, including Mr. McDonald. (T-762)

   The Complainant testified also that he next saw Mr. McDonald early in the morning of January 3, 1989 when he was asked to come to his office. He described what transpired at the meeting as follows:

Mr. McDonald told me he wanted me to do something for him, which I agreed to do. I did tell him -- whatever it was was a little bit out of the ordinary, and I don't remember what it was he asked me to do, but I told him that I would like -- I'd be glad to do it, but I needed to check with my boss, George Head.

He asked me what I was talking about, and I said that Mr. Dahlberg had established a group to interface with -- it was an interface between

Georgia Power Company and the SONOPCO project in Birmingham, and I told him I had been named general manager of NOCA and that I now reported to Mr. Head, and Mr. McDonald told me that he didn't want -- he said "Don't have any part of that, I'm not going to have any part of it. if I decide that job is necessary or is needed in the future, I will pick the people who head it up. Don't you get involved with that."

   Mr. McDonald had no recollection of any such conversation. (T-618).

   On January 6, 1989, T.G. Boren, a Georgia Power senior vice-president, addressed a memorandum to the Complainant in which he proposed transferring responsibility for nine miscellaneous nuclear activities, including "Nuclear Performance Indicators" to his newly created organization (CX 11; RX 5). The Complainant testified and his phone log (CX 12) indicates that he discussed the memo with Mr. McDonald on January 19 and that he disapproved of it totally. He continued in this regard that Mr. Boren subsequently talked to Mr. McDonald about the memo and repeated that Mr. McDonald expressed great concern over assigning him those responsibilities. Mr. Boren testified that Mr. McDonald never asked that the Complainant be relieved of these responsibilites (T-479).

   On or about January 27, 1989, Mr. Head decided that the Complainant's new position should be rated at level 20, a two step increase over his previous position. His salary was increased accordingly from $95,000 to $103,104 per year, with a bonus of about 20%. (CX 14).

   The Complainant testified in detail concerning problems he experienced in March and April 1989 obtaining cooperation from SONOPCO in general and Mr. McDonald in particular. His testimony in this regard is, in effect, summarized in the following confidential memorandum, dated April 27, 1989, addressed to Mr. Fred Williams, a Georgia Power Vice-President, and signed by the Complainant and Mr. George Head:

   Following is a list of problem areas in Nuclear Operations that you requested.

1. Responsibility as Agent: There is no clearly defined person responsible for acting as agent for the Joint Owners. I serve on the Joint Subcommittee for Power Generation (and am currently serving as Chairman) and deal with their Nuclear Operations people probably more than anyone else. However, you are involved, several of your people are involved and others.

It was my understanding when we tried to negotiate a contract between GPC and SONOPCO and amend the contract between GPC and Joint Owners, that I would act as OPC's (for example) agent, working for George Head, and that all interactions on nuclear matters between GPC and OPC would come through me with the exception of some specific, routine reports that would be provided directly from SONOPCO to all owners. I am prepared to handle that.

Yet, on Friday, April 21, I received a call from John Meier stating that the SONOPCO Project was establishing a Quarterly Review Meeting with GPC's Joint Owners to discuss Nuclear Operations. John asked if that meeting could replace the Joint Committee or Subcommittee. I said no. On Tuesday, April 25, Dan Smith from OPC called to say they had been contacted by John Meier and OPC wanted to know who was setting up this Quarterly Review Meeting, its purpose, and why I was not included. He said Oglethorpe was confused as to what is going on and who was in charge.

While I know that there are significant differences between GPC and OPC on a number of matters, the relationship between us in nuclear is excellent. If GPC could get a handle on SONOPCO and, if nuclear could be separated from these other issues, I believe Dan Smith and I could work out all of the problems in nuclear.

2. Communications: On January 19, Pat McDonald called to say he was developing an E mail system to connect all Joint Owners -- including GPC. One of its purposes was to provide daily reports to each Joint Owner on the status of our plants. He asked me to contact Roy Barron to work out details. I did.

On Monday, March 13 (I believe that was the date), Roy Barron told me that the system was ready to do a test run and all he needed was to get Pat McDonald's approval. I called Pat to ask for his approval but he was out of town in Florida. I asked his secretary to ask him if it were okay when he called in. She called back on March 15 to say she had been unable to ask him.

I talked with Pat on Tuesday, March 21, and he said the system wasn't ready.

We are still not connected. I get no information from SONOPCO on the status of our units. I get all of my information (except monthly summaries three weeks after the end of the month) from Oglethorpe Power. I get daily reports from them.

Secondly, we have been limited by Pat McDonald to talking to only one person at the SONOPCO Project -- first it was Bob Gilbert, who delegated it to Merv Brown, who delegated it to Tim Marvin. This process has worked fairly well on routine data requests but on non- routine items, it has been an impediment.

As an example, I was alerted that we were to receive an update of the draft TAC on Nuclear Operations during the week of April 10 - 14. The responsibility for that report, its review, and rebuttal testimony had been assigned to me. Art Domby had been helping me. Early during that week, Art called Tom Beckham and Ken McCoy

and had told them that, when he received the report, we would need technical assistance -- in a short time frame -- in reviewing the report and in preparing for a meeting with the PSC.

Friday, about noon, April 14, I received the report and Art asked me to call McCoy and Beckham to alert them we needed the technical assistance on Monday, April 17, and the meeting with PSC staff and consultants would be held on April 19. My discussions with Beckham went well -- he was very cooperative. McCoy said he didn't know what I was talking about and said he hadn't talked to Domby in weeks. Domby remembers his call because he had to have McCoy tracked down at Plant Vogtle.

I don't know what happened in Birmingham. I received a call from Tim Marvin raising hell that Art and I had called a Vice President. McDonald called a meeting. I received a call from Dwight Evans who said McDonald was irate and I had been taken off the TAC report. I was later told, though I can't prove it to be true, that the Vice Presidents of Georgia Power on the SONOPCO Project were told they could not talk to me or Art Domby.

In Mr. Dahlberg's memo of December 27, he stated that the interface at Georgia Power with the Nuclear Operations group in Birmingham would be George Head and me (see Attachment A). The interface we have had with them, except for routine data requests, has been negligible. In fact, it has been prohibited.

Yet, SONOPCO Project personnel are not so inhibited. See memo (Attachment B) from Bob Gilbert dated April 20, 1989. Note that George Head and I were not copied on the memo.

In discussing the establishment of Nuclear Operations Contract Administration, I was told that Mr. Head and I would review and approve

the SONOPCO Project budget. However, Grant Mitchell of Corporate and Financial Planning at SONOPCO doesn't agree. See page 3 of memo (Attachment C) from G. Mitchell dated April 20 1989. Neither George Head or I received a copy but it is in direct conflict with what the President of GPC has stated. It is also in conflict with what SONOPCO agreed with the Joint Owners. I also found that first paragraph on page 1 of that memo interesting. Had Georgia Power personnel sent out these two memos, SONOPCO would have raised hell.

3. Interfering with Other PCO Functions: When I was first named to this job, we had a meeting in which I was assigned by executive management certain responsibilities.

Since then, Mr. McDonald has objected to several of these assignments and I have been removed from meetings or relieved of responsibilities, not because GPC management agreed, but in order to get cooperation from SONOPCO.

What we need is for SONOPCO to support us and cooperate with us and allow Georgia Power management the right to determine who does what. Our management and other GPC people will be held accountable for our regulatory affairs effort. We need SONOPCO's support and then let us do our jobs. Unfortunately in several examples, Mr. McDonald has interjected himself into directions of other company functions and support from SONOPCO appears to hinge on his getting his way.

4. Staffing: When we established NOCA, I told George Head we needed a manager, secretary, two accountants, and two performance engineers. He agreed to start out with one accountant and one performance engineer and revisit the staffing level as the work load increased. We later added another accountant.

Back in January, I called Ken McCoy to ask if I could talk to Mike Barker about the performance engineer job. Mike had done a similar job for me prior to going to Birmingham and was well qualified. Ken asked if it were a promotion. I said I had not had the job evaluated yet and didn't know. He said if 4t were a promotion, SONOPCO would not object.

I had a job description done by Personnel and it was determined to be a level 13 job -- one promotion for Mike Barker. Mr. Head approved the job description at that level.

I told George Hairston about this in the GPC cafeteria later and relayed my conversation with McCoy, but he would not give me permission to talk to Mike Barker. I called the Administration people at SONOPCO and asked what the rules were. They said they were told if it were a promotion, management would give its permission.

After talking with George Head, we posted the job. I selected the best three candidates and they were all from SONOPCO -- which is not surprising. Our Personnel department was told the request to interview had been approved all the way up to George Hairston. But, there it stopped. Later, our Personnel department was told Mr. McDonald would not approve the request because he didn't agree that the job level should be a 13! Although GPC Personnel department and a Senior Vice President at GPC had approved the position, Mr. McDonald has held up this request and I have not been allowed to interview these three gentlemen.

I need the expertise the performance engineer would bring and the lack of support from Mr. McDonald is impacting my ability to get the job done.

5. Cooperation: I served on Phase I of the SONOPCO Task Force and was, and am, a real supporter of

the Operating Company concept. In our discussion, Bob Buettner, an attorney with Balsh and Bingham and now a Vice President at Alabama, said Mr. Farley was concerned that once this operating company was established, we would wind up with a group of arrogant, technically trained elitists that the operating companies would have no control over. I now respect Mr. Farley's concern more than I did two years ago.

It takes one to operate -- two to cooperate. I know that most people at Georgia Power want to cooperate with SONOPCO and want it to be a success for GPC and the System. But, there are great concerns by many people.

A significant concern that a lot of people have is who does Mr. McDonald work for. I have heard discussions on that at high levels in the Company. It is a very important question because the operating licenses for Hatch and Vogtle are in GPC's name; for Farley, APC. I am not a lawyer or licensing specialist, but I believe both will tell you that it is essential that GPC and APC be in control of these plants. Oglethorpe Power is so concerned that it has formally requested confirmation that Mr. McDonald receives his management direction from and reports to Mr. Dahlberg. If that is not the case, we are in violation of our license and could experience some significant repercussions from the NRC -- including the revocation of the licenses.

Oglethorpe is very concerned about this issue and they feel NRC is concerned. A Region II NRC employee suggested to Oglethorpe that NRC was so concerned that they might seek to put a resident inspector in Birmingham to see what was going on.

In establishing an Operating Company, the System, among other things, sought to open up the opportunity for us to run other utilities' power plants under contract. We should now be operating in that mode -- subject to meeting license conditions.

There are some possibilities in the industry now and we ought to be giving serious considerations to how we operate now so that, should we get through the legal hurdles and be given permission to expand outside our service area, we will be ready to aggressively pursue these opportunities. But, I really doubt any utility would be interested in contracting with SONOPCO if their experience with the contractor was going to be similar to Georgia Power's Fred, there are other issues relative to SONOPCO, important to the System, that needs to be addressed. I have asked repeatedly for an opportunity to discuss these with senior management. I hope we will get that opportunity soon and can work toward a more cooperative relationship with SONOPCO.

   In regard to the Complainant's not being able to interview Mike Barker, testimony was elicited from Lee Glen, Georgia Power's Manager/Corporate Concerns, and William R. Evans, a Georgia Power Corporate Concerns Coordinator, which was to the combined effect that a complaint had been filed with their department because of the inability to transfer from a SONOPCO position by an employee, other than Mike Barker. (T-509-540) Following an investigation which included an interview with the Complainant about the similar problem he was having, a "white paper" was prepared by Mr. Evans, with the following "Investigation Results":

"Transfer denial applies to all nuclear employees who wish to accept a position for which a job slot must be transferred from Nuclear Operations to fill an early retirement job opening. Slots may become available after finalization of SONOPCO staffing plans."

(CX 20)

   Mr. Barker was called as a witness and testified that after he became "frustrated" at not having been granted an interview for the NOCA position, he, telephoned Mr. Dahlberg on June 28, 1989, during one of his "Dial Dahlberg" sessions. This was a program where anyone in the company could call Mr. Dahlberg during a specific period and voice any concerns they may have. After Mr. Barker related the difficulty he was experiencing in

attempting to transfer to NOCA, he was told by Mr. Dahlberg that "he had put that job on hold." Mr. Dahlberg reportedly stated that his reason for doing so was that if the SONOPCO Project works as they envision it, there would be no need for NOCA and he did not want to transfer Mr. Barker when there might not be a position for him in a couple of months. (T-908-911)

   In regard to the reporting issue, the record also includes the following memorandum, submitted into evidence by the Respondent, from the Complainant to Mr. Williams under the date of April 26, 1989:

At the April 19 Subcommittee for Power Generation meeting, Mr. Dan Smith requested a response to the following. The wording is taken from the minutes exactly as Dan stated.

"Dan Smith requested that Oglethorpe be provided an organization presentation by SONOPCO on the reporting chain up through the Board of Directors for Mr. George Hairston, Mr. R. P. McDonald, Mr. Joe Farley. He specifically asked how Mr. Farley fits into the picture and who he reports to up through the Board."

As we discussed, I am forwarding the question to you for reply.

(RX-1)

   Dan Howard Smith, Program Director of Power Production of Oglethorpe Power Corporation, testified that a question arose in his mind as to whether Georgia Power was really in charge of the nuclear plants. This had to do with Mr. McDonald's and other executives, being "triple headed." He explained this as follows:

They are employed as Georgia Power, SONOPCO and Alabama Power which means that they work for all three companies simultaneously. This is a very difficult situation to be put in. it is very hard to make that work, in fact.

The issue and question here is Mr. Dahlberg, who is CEO of Georgia Power, really have direct control over Mr. McDonald who wears three hats

who has control over Mr. Harrison who wears three hats who has control over Mr. Beckham and Mr. Farley, et cetera.

Or at any given time, who really is in charge of the nuclear plants? Is there a direct chain of command to Mr. Dahlberg. That was the question that came up in my mind because I have a responsibility for looking after my company's interest and I wanted to ensure that the arrangement that we were operating with was, in fact, legal and that the NRC agreed that it was legal. So I raised the issue.

(T-850-851)

   When asked whether anyone at NRC had ever raised such concern with him, Mr. Smith responded:

One evening after work, several of my associates and I were at the Bradbury Hotel in Tucker, Georgia. By chance, John Rogge, who is the chief resident inspector at the Vogel nuclear plant, happened to be staying there attending some type of NRC project. We were having a drink together essentially. John Rogge made the comment to no one in particular but to our group that the NRC was having trouble figuring out who was in charge at Plant Vogel, I assumed.

(T-853)

   There was no discussion with Mr. Rogge on the subject. Mr. Smith related the conversation to the Complainant and had raised the reporting issue with him at other times. The Complainant was non-committal.

   As for his reasons for preparing the April 27, 1989 memo the Complainant testified:

In April -- in February, March and April of 1989 we had continued to have problems in getting cooperation from Mr. McDonald. I had discussed them with my boss upstairs.

We were sort of -- we had sort of a list of

problems that needed to be addressed, Mr. Head had talked to Mr. Dahlberg about them several times.

Mr. Head told me that in one of his conversations with Mr. Dahlberg that Mr. Dahlberg said that he was going to go and discuss these with Mr. Farley and see if we couldn't get some resolution to them.

At about the same time Mr. Fred Williams called me and said that Mr. Dahlberg had asked him to develop a list of some of the problem areas between Georgia Power Company and SONOPCO, and that Mr. Dahlberg was going to talk to Mr. Farley about them, that Mr. Baker and Mr. Dahlberg were going to discuss them with Mr. Farley.

Mr. William asked me if I would prepare for him a listing of the problem areas that my group was having with SONOPCO. I wrote this memo. As I said, Mr. Head and I had been discussing this many times, the problem!!!

(T-147-148)

   The Complainant stated that he took the memo to Mr. Head, who "felt very strongly about the issues" contained therein and stated that he would sign the memo. (T-149). Mr. Head testified that the Complainant had raised the issue on several occasions of lack of cooperation by SONOPCO. He was shown the memorandum early in the morning of April 27, 1989, which was the day prior to his retirement from the company, and he signed it because he "thought it would help Marvin in resolving some of these issues." (T-674). He did not consider that the memorandum raised a regulatory concern because he "was very well aware that [Mr. McDonald] reported to the president of the company." (T-648).

   The Complainant went on to testify that he hand delivered the memo to Mr. Williams after Mr. Head had signed it. Mr. Williams reportedly took the memo, read it, turned to him, and said he should destroy all copies of it as they could not have the memo in their files. The Complainant responded to Mr. Williams that he "was raising a regulatory concern and he should not tell me to destroy all copies." He continued that he and Mr. Williams talked for a few minutes about the organizational set-up

and Mr. William's understanding that the NRC had been briefed on the SONOPCO concept and would be shown the organizational chart if anybody at NRC raised a concern. They discussed also Mr. Williams' views as to why Mr. Dahlberg "didn't just pick up the phone and tell Mr. McDonald what to do." (T-153). The Complainant stated that Mr. Williams then handed me back the original, but kept a copy. He told me that he was going to Birmingham the next day and he was going to discuss some of the problems with the people at SONOPCO, but he assured me that he was not going to give them a copy of the memo that he kept, and he said he would not retain that copy in his files. (T-152). The Complainant testified that he reported his conversation with Mr. Williams to Mr. Head, who told him to destroy copies of the memo but retain the original. Mr. Head did not recall such a conversation.

   Mr. Williams testified that he did not ask the Complainant to prepare the April 27 memo for use by Mr. Dahlberg in a meeting he was to have with Mr. Farley. What he did request was a memorandum concerning the relationship between Georgia Power and SONOPCO such as who contacted who and which departments interfaced. This was for his use as the primary negotiator with Oglethorpe Power. After quickly reading the memo on April 27, he determined that it was not responsive to what he had asked Complainant to do and that it contained inaccuracies. He continued:

"My management philosophy was one if I had a problem with somebody I would go talk to him, we didn't need to just start writing a bunch of memos around and saying we've got problems here and everywhere, go sit down and talk about it. Therefore, with the other inaccuracies that I had already pointed out, or what I saw as no problems at all in the memo that he was raising after my explanation to him I hoped that answered him that if I was him I would -- I asked him to go back -- not if I was him, I asked him to go back and consider whether he wanted to send the memo forward."

(T-416)

   Mr. Williams recalled retaining a copy of the memo in order to read it in more detail. He believed that he showed the copy

to his assistant, "because a lot of the areas were more as I saw personal concerns of Mr. Hobby, or frustrations or gripes that he wasn't included on some memos and all, or invited to some meetings or wasn't informed or had communications go through him to co-owners." (T-418). He had a routine meeting with Mr. Dahlberg a day or two later to apprise him of what was going on in the negotiations. He did not recall whether he showed a copy of the memo or just talked to him about some concerns the Complainant was raising. He informed Mr. Dahlberg that he thought we could work those things out through negotiations and through the structuring of the company. He did not think "Mr. Dahlberg was concerned with that." (T-418). Mr. Williams returned the copy of the memo to the Complainant within a day or two. (T-455) Mr. Dahlberg testified that he first saw the April 27, 1989 memo when he gave his deposition in regard to the instant matter (T-314).

   The Complainant testified that he had further conversations with Mr. Williams about the memo on April 28 when he called Mr. Williams at home to find out how his meeting went in Birmingham that day. Mr. Williams reportedly stated that he had apprised Mr. Bob Edwards of the law firm about the memo, that he was going to rewrite the memo, and that the Complainant was to destroy the original. The Complainant's telephone log for that day pertaining to a 1550 call to Mr. Williams includes the notations:

"-Edwards worried about memo -Williams will rewrite memo- get rid of orig"

   Mr. Williams did not specifically recall discussing the April 27 memo with Mr. Edwards although he may have mentioned to him that the Complainant had written him "something." (T--470). Mr. Edwards testified that Mr. Williams mentioned the memo to him on a trip either to or from Birmingham. He related their discussion as follows:

Yes, and the conversation really wasn't about the memo. He wasn't describing, going into detail about the memo. It was very a offhand conversation about the scene of Marvin Hobby showing him this thing and kind of -- it

was -- he was kind of disappointed with Marvin Hobby, but it wasn't the details of the memo.

(T-780)

   Mr. Edwards continued that he did not see the memo until his deposition was taken in the instant matter. He did not tell Mr. Williams that he was concerned about the memo or to have it destroyed.

   Mr. Williams testified further that he did not consider the Complainant's concerns relating to the reporting structure to be a significant regulatory concern or potential license violation regarding Georgia Power's nuclear plants as he was of the opinion that Mr. McDonald received his management direction regarding the Hatch and Vogtle plants from Mr. Dahlberg.

   Mr. Farley was questioned about a May 5, 1989 meeting he had with Mr. Dahlberg. It was a luncheon meeting held while the witness was in Atlanta for another purpose. The major part of their discussion centered on the progress of the negotiations with the co-owners about the SEC approval process. They also discussed a proposal for adding one or more job authorizations for the NOCA group. Mr. Farley stated that he expressed the following opinion as that time:

It was my opinion then, and still is that if the Southern system is to achieve the economies and the management approach that was desired in the formation of a Southern Nuclear Operating Company group that it would be an unnecessary expense and a duplication to set up a group that would oversee and overview the decisions that were being made by the nuclear operating group.

This is a problem that The Southern Company, and I presume other organizations tend to have in that if you assign responsibility to a group, and then you set up another group to oversee whether that group is doing it properly, then you wind up with duplication, you wind up with an adversarial relationship, and if you don't like the way that the group is doing its work you ought to get another group, but don't set up competing groups.

We have had experience with this within the Southern system on other areas, and I expressed the view that we would simply be adding people in a duplicative role, and that if Georgia Power or Alabama Power for that matter were not satisfied with the staffing, then we ought to change the staffing, but let's not duplicate it.

   That was in general the opinion that I expressed. (T-570-571)

   Mr. Farley testified further that he was not shown the April 27 memo at the meeting and was not aware of the same or the Complainant's concern, about to whom Mr. McDonald reported, until the commencement of the instant proceeding.

   Mr. Dahlberg recalled a luncheon meeting with Mr. Farley on or about May 5. The principal discussion concerned the status of the negotiations with Oglethorpe. Neither the Complainant's April 27 memo nor his concern, as to whom Mr. McDonald reported, was discussed. Although he was not certain it was during this meeting, Mr. Dahlberg did recall briefly discussing NOPC with Mr. Farley on one occasion. Mr. Farley expressed the opinion at that time that the group was "a duplication of effort." (T-320)

   Mr. Barker testified that Mr. Williams had mentioned the April 27 memorandum to him sometime later but he was unable to show him a copy and the only time he ever saw the memorandum was after the commencement of these proceedings (T-682-683). He testified further that the Complainant had told him a number of times that he couldn't get cooperation from SONOPCO. Mr. Barker's view of such complaints was that its the Complainant's "job was to establish a relationship with SONOPCO." (T-700)

   On May 15, 1989 Mr. Williams sent the following memorandum to the Complainant:

In response to your questions in your letter of April 26, 1989, I have the following reply.

Mr. R. P. McDonald reports to A. W. Dahlberg for operation and support activities of Plants Vogtle and Hatch. I have attached a copy of the most recent published organization chart showing

the reporting. Mr. George Hairston reports to Mr. McDonald.

Mr. J. M. Farley, Executive Vice President - Nuclear, provides services relating to the anticipated transfer of nuclear operating and support activities from George Power Company to the Southern Nuclear Operating Company. These services include the compliance with applicable regulatory requirements and for nuclear support on an industry basis.

(RX 14)

    Mr. Williams testified that he prepared the memo so that this information could be relayed to Mr. Smith. The Complainant stated that he delivered the same with the accompanying organizational chart at a May subcommittee meeting to Mr. Smith's representative, David Self, who did not consider it to be an adequate response. Mr. Smith testified that he accepted the response in resolution of the question he had raised and he did not bring up the issue again. (T-886-887)

   When asked whether he sought advice from anyone after he was told to destroy the April 27 memo, the Complainant responded:

I was concerned that I thought I had brought up a regulatory issue, a regulatory concern to the company, and I was concerned that since I had expressed it in writing to the company that I might have a legal obligation to inform the NRC, but I wasn't sure.

I talked to Morris Howard who was a former regional administrator of the NRC, I asked him what the rules stated. I also got a copy of the Code of Federal Regulations and read them to determine if I had a liability in not telling the NRC.

I did not get an answer that I felt comfortable with, I didn't know what the answer was, so on June the 8th, a month later, I wrote to Admiral Wilkinson. I expressed to him my concern of what had happened. I told him the events that had

happened, I expressed my concern, and I told him that I wanted to talk with him that weekend to seek his advice.

   The 6 + page letter of June 8, 1989 to Admiral Wilkinson is of record (CX 22). After generally praising Mr. Miller's and Mr. Head's performance when they were president and a vice-president of Georgia Power, critizing the performance of Messrs. Barker, McDonald and Dahlberg, noting they were "in a heavily political arena here," and relating the problems he was experiencing in managing his department, the Complainant concludes the letter:

I believe that the outcome will be that my job will be greatly reduced including a reduction in pay and I will be asked to report to Fred Williams. Or, I could be asked to resign. I don't know. But, I do know this, I have tried to do a good job and have been prohibited from doing my job by Pat McDonald. I got excellent support from George Head. I have received no support -- except lip service - from Grady or Dahlberg. Everybody is protecting their own position in the company.

I don't know what will happen. It is my opinion that GPC and Alabama Power Company are in violation of our NRC licenses. McDonald reports to Joe Farley, I don't care what the organization chart says. I have pointed out over and over to management that I was concerned that we were violating Federal law. But, the answer is time and time again, "We'll show them an organization chart."

Maybe you and I can talk about this on Sunday.

   A copy of the April 27 memo was enclosed with the letter. Admiral Wilkinson testified that during their subsequent telephone conversation, the Complainant expressed concern as to whether he had a legal obligation to report what he considered to be a licensing violation to the NRC. In response to the question as to whether he had given the Complainant advice in this regard, Admiral Wilkinson testified:

As a matter of fact, I advised Mr. Hobby that I was not a legal or licensing expert, and that in my personal opinion he did not have a legal obligation to report to the Nuclear Regulatory Commission because in my opinion there wasn't an immediate safety concern involved, he wasn't a company officer, that in my opinion such matters be handled within the organization.

I advised him that he should resolve the matter within the line management of Georgia Power and the co-owners.

   Testimony was adduced regarding the development of alternate "performance standards" for the operation of Georgia Power Company's nuclear power plants. This activity was related to a matter pending before the Georgia Public Service Commission and the belief that the commission was prepared to impose such standards on Georgia Power. Dwight H. Evans, an Executive Vice- President of Georgia Power, testified:

"I had overall responsibility for the rate case. We agreed that performance standards were not desirable for the operation of a particular plant, that the entire company should be judged in a rate case.

However, late in the rate case after our direct case it became apparent to me that the Public Service Commission was going to adopt performance standards, and that we should be prepared to comment on the performance standards that they were about to enter into testimony.

Mr. McDonald did not agree, and since he and I both were executive vice president of the company, we took that to our boss, Mr. Bill Dahlberg, and he resolved the issue."

(T-366)

   Mr. Evans continued that he and Mr. McDonald met with Mr. Dahlberg and attorney Joiner. After they both stated their

cases, Mr. Dahlberg concluded that they should submit testimony and instructed Mr. McDonald to do so. Mr. McDonald carried out these wishes and the testimony was submitted. (T-367) Mr. McDonald testified to the same effect (T-607-608) as did Mr. Dahlberg (T-337-338). The Complainant testified that he had been told by Dwight Evans that the conversation at the meeting got quite heated and Mr. Dahlberg "really chewed McDonald out." (T-168).

   The Complainant and Dan Howard Smith testified to the combined effect that from August to November 1989 they met two to three times per week, with the respective permission of Grady Baker and Tom Kilgore, Vice-President of Oglethorpe Power, for the purpose of attempting to work-out a Nuclear Managing Board agreement. They were instructed to do so confidentially so that no one at SONOPCO was aware of their activities in this regard. They concluded a draft agreement which was subsequently presented by Oglethorpe to Georgia Power.

   Mr. Boren testified concerning a Management Counsel meeting on November 7, 1989 attended by Mr. Dahlberg, himself, the other three senior vice presidents, and three of the four executive vice-presidents. Mr. McDonald was not included. When asked to explain the purpose of this meeting, Mr. Boren responded:

The purpose was several things, but the primary purpose was to look at leadership.

The Southern system, of which Georgia Power is a big part, was going through the process of looking at how do we ensure that we have the right number and quantity and type of leaders in the pipeline so to speak for the next decade, and one of the challenges they had issued to Mr. Dahlberg was to look at people that he had coming up through the ranks and make sure we identified those leaders, looked at their potential and were basically trying to develop that.

Also at the same time Mr. Dahlberg was doing some team building with us as well.

(T-483)

   And when asked what the Complainant's performance and potential evaluations were, he answered:

Let me describe the process we went through on that if you would.

Each of us stood up before the rest of the members of the management council, and we would list the individuals that reported directly to us, and then before anybody else commented on them we would sit down and identify what we thought their performance was from a rating of zero to four, zero being the lowest, four being the highest, and what we thought their potential was, and that basically went from zero to three I think, zero being peaked out, no further potential, one being could move one more level, two being could move two more levels.

In that particular assessment Mr. Hobby had three what we call double zeros, three two zeros and one one-zero. In other words, in terms of potential everyone rated him as having no further potential.

In terms of performance, three out of the seven people rated him at the lowest level possible, that's zero; one person rated him at one, and three people, four people rated him at level 2 which was basically about average.

(T-483-484)

   Messrs. Dahlberg's and Evan's recollections of this meeting were also to the effect that the Complainant was rated as having no potential with the company.

   The Complainant testified that Mr. Smith called him on November 15, 1989 and requested that they meet for breakfast the next morning. He continued:

When we sat down at breakfast on the 16th of November Mr. Smith said that he had been told by his boss that Mr. Williams had been out to

Oglethorpe, Mr. Williams had talked with Oglethorpe, and that we needed to hurry up and conclude our negotiations because as soon as our negotiations were concluded that I would be removed from my job at Georgia Power Company.

(T-185)

When asked how he reacted to this news, the Complainant replied that he was "very surprised, very shocked." (T-18.51)

   Mr. Smith testified that he relayed this information to the Complainant mainly because his boss, Tom Kilgore, asked him to let the Complainant know that he thought the Complainant would be terminated following work on the Managing Board agreement. (T-861)

   Mr. Williams testified that he had not told Mr. Kilgore that he was going to eliminate the Complainant's position. He did express to him during a negotiating session that he did not believe there was a need for expertise in the nuclear operating area on staff at Georgia Power Company. He testified further that since about the Spring of 1989 he had been giving some thought as to the need for the NOCA group and how it would fit in with the new relationship that they were negotiating. At that time he was "still very open-minded because we were still in the very early stages of negotiations at that point as to what we would need..." (T-408) He had conversations with Mr. Baker before his retirement about the need for the organization. He had also talked to the Complainant about the necessity for the group and invited his views as to what its function should be. Mr. Williams reached the conclusion after talking to the Complainant and his people, accounting staffs and SONOPCO people other than Mr. Farley and Mr. McDonald, that there was no need for a separate organization. In early November and in December, he informed Mr. Evans that "he did not see the need for a high level manager nor did he see the need for a separate organization to exist to administer a contract if we ever got a contract."

   Mr. Dwight Evans testified that he was an employee of Southern Company Services when NOCA group was formed. After joining Georgia Power as a vice-president, he developed the following opinion about the necessity for NOCA:

I believed that we should have multiple points of interface with the new company, that as an example I was responsible among other things for interfacing with the Public Service Commission.

I felt like that the accounting organization at Georgia Power that presented testimony, presented information to the Public Service Commission should have direct access to people at SONOPCO, and all across the board.

I felt like we did not need a high level position to interface with SONOPCO, that we should interface with them in many ways similar that we do with the service company where we have many people dealing and more lines of communication.

(T-369)

When asked whether he had ever discussed this opinion with Mr. Williams, Mr. Evans replied:

I did later in the year. Due to a retirement of an executive I knew that there would be reorganization and Mr. Williams would begin reporting to me at the end of the year, and there would be changes taking place, so that in late 1989 after the rate case, probably in the late October-November time frame, we began having discussions as to how we should organize and proceed.

(T-369)

Mr. Boren testified that the decision to eliminate the position of general manager of NOCA was discussed with him by Messrs. Williams and Evans. He stated the following reasons for eliminating the position:

When we established the position back at the end of 1988 -- I believe it was the end of 188, it may have been the beginning -- we did that on the

assumption that we would have a contract for this manager to administer.

Here we are almost 1990, the contract has not come about, and we've realized that the reason we established the job just wasn't there, and that's the primary reason that we were looking at eliminating the job, and the other miscellaneous requirements for the job were kind of being handled through the other normal functions of the company.

The Claimant went on to testify that in late November, Mr. Williams called him to his office to inquire about the status of the negotiations with Mr. Smith. The following conversation occurred at that time:

After Mr. Smith had told me that as soon as the negotiations were concluded, that we needed to hurry up and complete the negotiations, Mr. Smith -- excuse me -- Mr. Williams called me to his office in late November, I don't remember the exact date, and he asked me for a status on the negotiations.

"I told him what the status was, and I told him that I needed to bring something to his attention, and I said "I had breakfast with Dan Smith and he told me the following, and I want to know if this is true or not," and Mr. Williams said that it was true, that when the negotiations were concluded that I would be removed from my job.

I asked him why, he told me it was because Mr. McDonald and Mr. Farley did not want any nuclear experience at Georgia Power Company, period.

He told me overall it was not personal related to me, but there was a personal problem relative to Mr. McDonald with me, and we discussed it for a couple of minutes, and I asked him what was the

company saying, and I asked Mr. Williams point-blank was he saying that the company was going to offer me a package to leave Georgia Power Company, and he asked me how much would it take.

I told him I'd have to think about it because, quite honestly, you can hear a lot of different things and you don't know whether they're true. I was surprised that Mr. Williams told me that what Mr. Smith had told me was true."

(T-189-190)

   Mr. Williams testified that he initially inquired as to whether the Complainant would be interested in a job at SONOPCO or another position with Georgia Power Company within one or two levels. It was after the Complainant rejected both of these options that Mr. Williams inquired whether he would be interested in some kind of outplacement.

   Testimony of the Complainant and Mr. Williams is to the combined effect that they began discussing an outplacement package at lunch in December 1989. Mr. Williams indicated at the beginning of these discussions that there might need to be a non-compete agreement for perhaps 3 to 5 years. The Complainant had desires to attend medical school. He would need to take some additional undergraduate courses in order to meet medical school requirements. He proposed at first that he should be given two years pay with bonus in a lump sum, six years, full salary, his company car and his computer. He later reduced his proposal to one year salary in lump sum and two-thirds of his pay for six years.

   Dwight Evans testified that he provided information at a Management Council meeting in late December 1989 that he felt the need to eliminate three positions from his organization, two vice-presidents, and the Complainant's.

   Mr. Dahlberg testified that he believed that the recommendation to eliminate the position of general manager of NOCA come from Mr. Evans or Mr. Williams. When asked whether he knew the reasons for the decision, he responded:

Yes. There was not a function to be performed.

There was no contract, and I had determined that the other things that I saw could be performed by that group, that is a monitoring of performance wasn't necessary and that SONOPCO did that themselves.

The same thing happens in the fossil and hydro. I don't have, for example, a separate organization on that looks at the performance of that group, they do it themselves, and there just wasn't a need for that position because there were no functions to perform.

   Mr. Boren testified that Georgia Power had gone through some major restructuring during the last few years which had resulted in a 10 percent reduction in its staff. He stated the following reasons for this restructuring:

Those changes have come about because we have completed construction of Plant Vogtle, because of competitive pressures, we haven't gotten the rate relief we wanted from the commission, that sort of thing, and its put a lot of pressure on us to reevaluate the departments to make sure they're serving useful functions and so forth, and to look at what we need to do to improve our operations.

(T-488)

   It was Mr. Boren's understanding that that Mr. Williams was responsible for eliminating the position of general manager of NOCA for the reason that there was no contract to administer and the other miscellaneous requirements for the job were "kind of being handled through the other normal functions of the company. (T-486) He stated that the focus of the December 29, 1989 Management Council meeting was to address a division reorganization although the Complainant's position "was on the list" and briefly discussed by Mr. Evans.

   Supervision of the Complainant and his group was officially transferred to Mr. Williams as of January 1, 1990. Thereafter,

Mr. Williams informed the Complainant that his proposal for an outplacement package was unacceptable. The Company was prepared to offer at that point one week's pay for every year he had worked for the company (14) plus 25 percent of his salary, approximately $25,000, for the next four years. There was a five year no compete clause attached to this offer.

   The Complainant was "very surprised" at the offer and decided seek advice concerning the same from Messrs. Miller, Head and Wilkinson. Subsequently, he met with Mr. Boren and Mr. Williams. At that time he was offered the opportunity to stay with the company until August 31 and then be paid one week's pay for every year worked and twenty-five percent of his salary and bonus for the next four years. His company insurance would be paid for him during this period of time. There would be no non- compete provision. The Complainant testified that Messrs. Boren and Williams would not commit themselves as to whether he would be required to do any work through the period ending August 31. Mr. Williams stated that he told the Complainant that they would work it out so that he would have time to attend classes for the pre-med school courses he needed. The Complainant testified that the meeting concluded as follows:

As I was leaving the room, I turned around and I said "Mr. Williams, what would happen if you and I can't reach agreement on this outplacement package?" He said "If that occurs, we will simply reorganize the company and eliminate your job."

I said "Why? All this time we've been talking about a mutually agreeable separation, what's going on?" He said "After the memo you wrote of April the 27th of last year, you're not going to get any more support from the senior management of Georgia Power Company."

It was just out of the blue, I didn't know what to say. He said that Mr. Dahlberg had discussed -- I don't remember whether he said he took the memo or whether he said he discussed the issues raised in the memo -- he took those to his meeting with Mr. Farley, and he said Mr. Dahlberg got beat up side the head, and he said

"After that you're not getting any more support from senior management of Georgia Power Company."

(T-205)

   Mr. Williams testified that neither the April 27 memo nor any of the subjects discussed therein was a factor in his decision to eliminate the Complainant's position and "[I]n fact, until he raised the issue here with the Department of Labor I had completely forgotten the memo was ever written." (T-417).

   The Complainant contacted an attorney on January 18, 1990. Thereafter, he, in effect, rejected the latest offered outplacement package.

   By letter dated February 2, 1990, Mr. Williams informed the Complainant:

"As a result of a management review of our organization, your position as General Manager, Nuclear Operation Contract Administration and Assistant To, has been eliminated. In connection with the elimination of your position, a program has been established in order to recognize your valuable service with the Company over the years and to minimize any financial hardship which you may have to encounter as a result of the elimination of your position."

   The letter goes on to say that the Complainant would not be required to perform any services after April 2, 1990 and would receive benefits consisting of four weeks, pay plus one week's pay for each year of service and insurance coverage for six months. He was requested to respond by March 16, 1990 by signing an agreement containing a release and settlement relating to the elimination of his position (RX-4; CX 30).

   The initial complaint, filed with the Department of Labor under the date of February 6, 1990, centered on the April 27, 1989, "confidential" memo as the Complainant's alleged protected activity but noted that he had "engaged in other forms of internal and external whistleblowing activity as well." The amended complaint, filed on February 23, 1990, alleges the following:

1. Prior to February 7, 1990, Mr. Hobby's office was located on the northwest corner of the 14th floor of the 333 Piedmont Avenue, N.E., Georgia Power location. On February 2, 1990, Mr. Hobby was informed that his office was to be relocated to the 19th floor of the same building. That move occurred on February 7, 1990. Said relocation constitutes retaliation against Mr. Hobby.

2. On February 19, 1990 Mr. Fred D. Williams stated to Mr. Hobby that "because of the action you have taken", Georgia Power Company was relinquishing Mr. Hobby of his executive parking privileges and was requiring of Mr. Hobby that he turn in his Georgia Power Company Employee Identification Badge. Upon information and belief, Mr. Williams, statement refers to Mr. Hobby's filing a complaint with the Department of Labor and as such constitutes illegal retaliation.

3. As a result of Georgia Power Company's taking of Mr. Hobby's Employee Identification Badge and as a result of the explicit instruction of Mr. Williams, Mr. Hobby was banned from 20 to 24 floors of the Georgia Power Company Corporate Headquarters.

4. On February 23, 1990, Mr. Hobby received his 1989 performance appraisal from Georgia Power Company. The performance appraisal was done by Mr. Fred Williams to whom Mr. Hobby did not report in 1989. Moreover, Mr. Williams, deliberately downgraded Mr. Hobby's performance appraisal.

   The Complainant testified that his office had been a Level 20 office of 280 square feet in size while the new office was a poorly furnished Level 12 of 120 square feet.

   Mr. Williams offered the following explanation for the complained of actions:

"He was still down -- moved his -- the rest of the staff we moved up to the 19th floor where I'm located, incorporated the personnel to

analysts or performance people and his secretary within to the bulk power marketing services group that already existed.

"Was going to leave Mr. Hobby on the 14th floor in his location down there. He came up one day and wanted discussions or a meeting to talk with me, and he said he was tired, and I asked him why he was tired, and he said because he had been downstairs shredding a lot of documents, nuclear documents out of the safe, which gave me some concern in the situation we were in, 'Why were you shredding these documents?'

'Well, that's all right, you didn't know about it, they were nuclear safeguard documents which, Fred, you didn't have the right to see because you weren't cleared or anything.'

"Well, I got a little concerned with Mr. Hobby being down there, plus somebody had seen him one day in the garage with somebody -- and you've got to understand with the executive garage you come in through a lifting arm, and you get inside the building and you do not have to pass the guard desk, you're in the building there and you can go on up -- who was with Mr. Hobby, they didn't recognize him.

So it was those two issues right there, I got concerned and I told Mr. Hobby I think it would be better if he moved on up to the 19th floor where we were, and that I would give him parking privileges in the manager's lot which was right outside the front door, but you had to go past the guard desk there, and not part in the executive garage any more.

And also since that what you job, I have no assignments for you or anything to do, all I wanted you to do is find another job in the company or whatever, I wanted you to be free to do that, that you only needed to actually come to the 19th floor or the personnel offices on

the first, second and third floor where they do this impacted employees looking for jobs. If he wanted to go to another floor, he had just to pick up the phone and call somebody, or in fact probably could walk once you're in the building, "I want you to sign in every day so I'll know when you're in the building and who's with you down there." and so I took his badge up also.

   Mr. Williams admitted on cross-examination that he subsequently ascertained that the Complainant had the authority and responsibility to shred certain nuclear documents.

   Mr. Boren testified that he had the following role in the decision to change the Complainant's parking privileges and to have him turn in his identification badge:

"I was coming in from the executive garage one day and saw Mr. Hobby leave with several gentlemen that I did not know, and this was about the time that Marvin had already rejected our two proposals and was also rejecting our outplacement package and notified us at least verbally that he was engaging counsel to work with him, and it's been my experience as the senior officer to whom human resources reports that when you get someone in that kind of situation that you wanted to basically control access, entrance and exists to the building, who came, who went, that sort of thing, and by parking in the executive garage he had no -- there was no one to control who went in and who went out.

"By having him park in the managers' lot which is in the front of the building as opposed to inside the building he had to come by the security guards, and if he had any guests with him they had to sign in. The other way they did not have to sign in.

"I thought it was just prudent management from looking at a potential labor problem here to make sure I knew who went and who came.

"I also wanted to make sure that when he left the

building that if he left with boxes or anything, and I had no idea if he was or wasn't going to do that, that if he went by the security that they had the authority to stop and ask you to show them the boxes. Again, I thought that was just prudent management.

"I called Mr. Williams and expresses a concern about that, and then after talking to him he basically made the change with Mr. Hobby in terms of his parking and restricting access."

(T-496-497)

   In regard to the final performance evaluation, the Complainant testified, in substance, that although Mr. Williams had approved his rating one of his subordinates a "5" in accomplishing an assigned task, he was only rated as a "3" for the same. He stated further that as Mr. Williams was not his supervisor during 1989, he should have relied most heavily on input from his prior supervisor, Mr. Adams. He went on to testify that Mr. Williams had informed him that he had talked to Mr. Adams, Mr. Baker and Mr. Boren before making the performance evaluation. (T-215)

   The Complainant was advised on February 23 that it would not be necessary for him to report to work anymore.

   Based on the foregoing evidence, I reach the following factual findings for the reasons stated:

   The Complainant had experience in the nuclear energy area. Upon the establishment of SONOPCO, Mr. McDonald, believing that the Complainant would be valuable to the project, was desirous of having him transfer to SONOPCO. Whether it was because he had already formed his opinion of Mr. McDonald as expressed in his June 1989 letter to Admiral Wilkinson, or whether it was because he did not want to relocate, he declined to transfer. Instead, he designed a job for himself which he could perform at the Atlanta headquarters of Georgia Power, i.e. manager of a nuclear operations contract administration group. He then sold the idea to Mr. Head, whom he respected and with whom he apparently had a

good relationship. Mr. Barker reluctantly went along with the idea because he did not have anything else for the Complainant to do. Mr. Dahlberg's approval was based, in part, on his belief that incorporation of SONOPCO would occur within a matter of months.

   The meeting in preparation for the Fuchko and Yunker trial occurred six days after the memo establishing NOCA was issued. I find the Complainant's testimony, in regard to his having been told by anybody involved in the proceeding that he would have to change any testimony that he would give in that matter to conform to that of Mr. McDonald, to be totally unbelievable. I fail to see where Respondent's attorneys would even consider having the Complainant testify about the SONOPCO selection process as he was not involved in the same and any testimony he would have given relating thereto would have been nothing more than hearsay. The Complainant is unable to identify the attorney who purportedly approached him with such an incredible request. The two partner attorneys, who conducted the two sessions which the Complainant attended, have denied making such a statement and I consider them to be credible witnesses. There were two other associate attorneys present at the meeting, but the Complainant made no attempt to subpoena them to the hearing. Although he allegedly relayed the purported conversation to Mr. McHenry the next day, Mr. McHenry was not examined at the hearing in regard thereto and I decline to credit his affidavit, prepared with the Complainant's assistance 1 1/2 years after the purported event.

   I find nothing in this record which establishes that anything the Complainant said at the January 2, 1989 meeting upset Mr. McDonald to the end that he retaliated against the Complainant by making it difficult for him to perform his job or otherwise have an effect on its being eliminated. The Complainant can only speculate that Mr. McDonald was ever told that he had raised the issue of inconsistent testimony. Indeed, if Mr. McDonald was angered at anything the Complainant said at the meeting it would seem that he would have expresses his displeasure when they met the next morning. Instead, their meeting apparently began amicably when Mr. McDonald requested the Complainant to do some task for him. Whatever anger Mr. McDonald did express at their meeting developed after he was shown the memo establishing NOCA. Considering that Mr. McDonald had not been consulted about the establishment of NOCA, and considering his philosophy that there was no need for nuclear oversight at

Georgia Power headquarters, any dissatisfaction he expressed at the time is quite understandable.

   There is nothing in the record that establishes that any of the Respondent's other executives were privy to anything regarding the Complainant that transpired at the January 2, 1989 meeting. Significantly, although his new position was established shortly before this meeting, the decision to set his salary two grades higher was not made until afterwards. Such action would not be compatible with a management which was displeased with the Complainant's conduct at the January 2 meeting.

   The problems, which the Complainant was experiencing regarding obtaining cooperation from SONOPCO and adding Mr. Barker to his staff, commenced prior to his issuing his April 27, 1989 memo. Therefore, assuming arguendo, that these involved any retaliatory action, the would have to relate to the only incident of protected activity he has alleged to have occurred prior to that time, i.e., his participation in the January 2 meeting. For reasons already stated, nothing that the Complainant did or said at that meeting led to any retaliatory action. Any interference which Mr. McDonald may have caused in the Complainant's obtaining cooperation from SONOPCO and in Mr. Barker's transfer was not an outgrowth of that meeting. Rather, it was in keeping with his management philosophy of no need for nuclear expertise at Georgia Power's Atlanta headquarters. This is clearly borne out by the testimony adduced by the Complainant relating to the corporate concern that others had raised over their inability also to transfer SONOPCO employees to Georgia Power headquarters. Furthermore, the ultimate decision not to permit Mr. Barker's transfer to the Complainant's staff was based on management's uncertainty as to the future need for NOCA and its hesitation to overstaff this department.

   I turn now to the April 27, 1989, memorandum. If this document stood alone, I would have no hesitation in finding that it expressed no regulatory complaint by the Complainant. Rather, he merely relayed therein a concern that had been expressed to him by Mr. Smith. The Complainant expresses no opinion in the memo as to whether the concern is justified or indicates otherwise that he had adopted Oglethorpe's concern as his own.

   I have quoted the April 27 memo in toto because I believe

that it amply demonstrates why Mr. Williams was unhappy with the document. His objection to having the memorandum go forward, or even being preserved, was based on its obvious complaining style. Significantly, the memorandum which the Complainant wrote to Mr. Williams the previous day, which raised essentially the same reporting question, was retained in the Respondent's files. it appears to me that if Mr. Williams did not want any record of the reporting question in the company's files, he would have destroyed this memo. I believe Mr. Williams when he says that he was just trying to help the Complainant to be a better manager.

   I recognize that in addition to the memorandum, the Complainant did mention a concern, as to Mr. McDonald's receiving his management direction from Mr. Farley instead of Mr. McDonald, to Mr. Evans and perhaps others. Mr. Evans did acknowledge the Complainant's having mentioned such concern "in passing." Depending on the tone of such conversation, Mr. Evans could have. taken the concern as the Complainant's personal one. Nevertheless, the time frame for the oral complaints is not established in the record. Mr. Smith laid the matter to rest in May 1989 upon receipt of the organizational chart and Mr. Williams' memo. Although the Complainant continued to be concerned about the reporting relationship in June 1989, when he corresponded with Admiral Wilkinson, there is no evidence of record to establish that he continued to raise the subject with anyone beyond that time. Perhaps he had become as convinced as I am that Mr. McDonald did, in fact, take his management direction from Mr. Dahlberg in regard to the two nuclear plants owned, in part, by Georgia Power. Certainly, any doubts in his mind concerning the same should have been dispelled by the August 1989 meeting in reference to the Public Service Commission case. The evidence referable to what transpired at this meeting clearly established that Mr. Dahlberg exercised control over Mr. McDonald regarding Georgia Power's nuclear operations.

   It was not until some six months after the April 27 memo that the Management Council determined that the Complainant had no potential with the Respondent. The witnesses who participated at this meeting have denied knowing of the memo at that time and have denied that anything stated therein influenced their evaluation. I have no reason to doubt their testimony in this regard. That their evaluation of the Complainant's abilities may have differed from earlier performance evaluations comes as no great surprise. Mr. Miller and Mr. Head, for, whom he had

earlier worked, had retired from the company. The Complainant did not hold Mr. Miller's successor, Mr. Dahlberg, in high regard and the feeling may well have been mutual. Furthermore, the evaluation was based on his performance in a different position. Mr. Baker was concerned that the Complainant had not fulfilled his responsibility in this job of gaining cooperation from SONOPCO. Neither Mr. McDonald, who is the only company executive to have been identified as having attended the January 2, 1989 meeting, nor Mr. Williams, who is the only executive to have acknowledged seeing the April 27, 1989 memo, participated in this management council meeting.

   The decision to terminate the position of manager of NOCA, which Messrs. Evans and Williams had considered for some time, was finalized in the November/December 1989 time frame. The exact date is unimportant. The Complainant knew that the decision had been made or was in the making when he met with Mr. Williams in late November. This should not have come to any "great surprise" to him in light of the predictions he had made to Admiral Wilkinson in his June letter. Considering (1) that Mr. Head, who had sponsored the formation of NOCA, had retired; (2) that Mr. Baker, was not totally convinced as to the necessity for NOCA from its origination but went along with it in order to give the Complainant something to do; (3) Mr. Farley expressed an opinion to Mr. Dahlberg in May 1989 that NOCA was a needless expense and at odds with the purpose for which SONOPCO was formed (4) that the following month, Mr. Dahlberg expressed doubts to Mr. Barker as to the continued need for NOCA; (5) that Dwight Evans, who had not been involved in the decision to form the NOCA group, felt that they did not need a high-level position to interface with SONOPCO but should interface with them at multiple points in a manner similar to what is done in other areas; (6) that after several months of considering the matter, Mr. Williams, who also had no input into NOCA's formation, decided that there was no need for a high level manager or separate organization to administer a contract if it ever came to fruition; (7) that the incorporation of SONOPCO had been delayed beyond expectations; and (8) that there was a general reorganization of the company at the time with other executive and/or managerial positions being eliminated as cost-saving measures, I find that the decision to eliminate the position of manager of NOCA was in no way related to the Complainant's participation in the January 2, 1989 meeting or the concern raised in his April 27, 1989 memorandum as to from whom Mr.

McDonald receives his management direction for operation of the Georgia Power nuclear plants. I find that, instead, the decision to eliminate the position was fully justified as a measure to operate the Respondent's nuclear program more economically and efficiently.

   I find further that the change of the Complainant's office, the revocation of his executive parking privileges and badge and his restriction to certain floors of the headquarters building was not in retaliation for his having filed the instant complaint but was a justified security measure. As his position had been officially terminated and as he had rejected the possibility of a transfer to another position at SONOPCO or Georgia Power's headquarters, his ultimate departure from the company was a forgone conclusion at the time. He had been notified by Mr. Williams on February 2, 1989, four days before his complaint was filed, that his office would be moved. He had been transferred to Mr. Williams' supervision and his new office was on the same floor as his new supervisor. He had been observed with unidentified and apparently unauthorized persons in the executive parking area. That Mr. Williams' concern over the Complainant's shredding of documents may have later been proven to him to be unjustified does not mean that it was not a genuine concern when he first learned of the same. The February 6, 1989 initial complaint indicated that the Complainant had a copy of the April 27 "confidential" memo in his possession which demonstrates to me that concern over his possibly compromising other confidential company documents was well founded.

   As a preliminary matter, I note that the Respondent raised an issue as to the timeliness of the filing of the complaint in this case for the first time in its post-hearing brief. Pursuant to 29 C.F.R. § 18.1, in the absence of any contrary provisions in the ERA, its implementing regulations and the Rules of Practice and Procedure for Administrative Hearings Before the Office of Administrative Law Judges, the Federal Rules of Civil Procedure are applicable to the instant proceedings. Cf. Cooper v. Bechtel Power Corporation, 88-ERA-2, (Decision and Order of the Secretary, October 3, 1989). Rule 8(c) provides that statutes of limitations are affirmative defenses. Failure to assert such a defense in a Respondent's pleadings is considered a waiver of the same. Paety v. U.S., 795 F.2d, 1533, 1536 (11th Cir., 1986).

The defense must be asserted at the earliest possible moment. Davis v. Bregan, 810 F.2d 42 (2nd Cir., 1987). Consequently, irrespective of whether the Respondent's contentions regarding timeliness of the claim have merit, I conclude that they are too late in raising the issue.

   I note also that Respondents, citing Brown & Root, Inc. v. Donovan, 747 F.2d 1029 (5th Cir. 1984), contend that as this matter involves strictly an internal complaint, it does not come within the purview of the ERA. While Respondent acknowledges that there have been holdings contrary to Brown & Root, in other circuits, i.e., the Tenth Circuit in Wells v. Kansas, Gas & Electric Co., 780 F.2d 1505 (1985) cert. denied 106 S. Ct. 3311 (1986) and the Ninth Circuit in Mackowiak v. University Nuclear Systems, 735 F.2d 1159 (1984), it argues that the fact; in these two cases are distinguishable as the facts in the instant case do not involve quality or safety problems. However, as noted by the Complainant, in Willy v. The Coastal Corporation and Coastal States Management Corporation, 85-CAA-1 (Decision and Order of the Secretary of Labor, June 4, 1987), a case arising in the Fifth Circuit, the Secretary stated:

I continue to be persuaded that reporting violations of the environmental statutes enumerated in 29 C.F.R. § 24.1 internally to one's employer is a protected activity and tat Mackowiak and Kansas Gas & Electric rather than Brown & Root, set forth the appropriate resolution of this issue. For the reasons set forth below, I respectfully decline to follow the Fifth Circuit's decision in Brown & Root. Should it become necessary to do so on remand, the ALJ is instructed to follow Mackowiak and Kansas Gas & Electric on the internal complaint issue.

   The Secretary went on to respectfully note that as the Supreme Court had denied a writ of certiorai in Kansas Gas & Electric the Fifth Circuit should be given the opportunity to consider the issue in light of the Tenth Circuits more recent decision. I interpret the Secretary's holding as being broad enough to encompass internal reporting of any violation of the ERA and consider myself to be bound by the same.

   In any event, I consider the two foregoing issues to be

mooted by the findings I have made and the conclusions I am prepared to reach on other issues.

Section 210(a) of the ERA provides:

No employer, including a Commission licensee, an applicant for a Commission license, or a subcontractor of a Commission licensee or applicant, 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)-

(1) 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; (2) testified or is about to testify in any such proceeding or;

(3) assisted or participated or is about to assist or participate in any 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.).

The applicable burdens and order of presentation of proof in cases arising under Section 210(a) of the ERA were set forth by the Secretary in Darfey v. Zack Company, 80-ERA-2 (April 25, 1983) as follows:

[T]he employee must initially present a prima facie case consisting of a showing that he engaged in protected conduct, that the employer was aware of that conduct and that the employer took some adverse action against him. In addition, as part of his prima facie case, "the plaintiff must present evidence sufficient to raise the inference

that . . . Protected activity was the likely reason for the adverse action." [Citation omitted]. 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. Significantly, the employer bears only a burden of producing evidence at this point; the ultimate burden of persuasion of the existence of intentional discrimination rests with the employee. [Citation omitted]. If the employer successfully rebuts the employee prima facie case, the employee still has "the opportunity to demonstrate that the proffered reason was not the true reason for the employment decision . . . [The employee] may succeed in this either directly by persuading the court that a discriminatory reason more likely motivated the employer or indirectly by showing that the employer's proffered explanation is unworthy of credence." [Citation omitted]. The trier of fact may then conclude that the employer's proffered reason for its conduct is a pretext and rule that the employee has proved actionable retaliation for protected activity. Conversely, 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." [Citation omitted]. Finally, the trier of fact may decide that the employer was motivated by both prohibited and legitimate reason, i.e., that the employer had "dual motives."

. . . [I]f the trier of fact reaches that latter conclusion, that the employee has proven by a preponderance of the evidence that the protected conduct was a motivating factor in the employer's action, the employer, in order to avoid liability, has the burden of proof or persuasion to show by a preponderance of the evidence that it would have reached the same decision even in the absence of

the protected conduct. [Citations omitted].

Citing Couty v. Dole, 886 F-2d 147, 148 (8th Cir. 1989) Complainant contends that "'as a matter of law' 'temporal proximity, between an employee's engaging in protected activity and a change in management attitude toward the employee is alone sufficient to establish a discriminatory motive." (Emphasis the Complainant's). However, I find nothing in the Court's opinion in Couty which stands for the proposition that a "change in management attitude" sufficient to establish discriminatory motive either standing alone or otherwise. I am aware, however, that in Shaw v. Mast Advertising and Pub. Inc., 715 F.Supp. 1503 (D. Kan 1989) the Court held that evidence of the employee's having been treated differently subsequent to filing a discrimination complaint was one factor to be considered with other evidence in determining whether her discharge was in retaliation.

   What the Court did say in Couty was that:

"A prima facie case of retaliatory discharge is established when the plaintiff shows: (1) engagement in protected activity; (2) defendant's awareness of plaintiff's engagement in protected activity (3) plaintiff's subsequent discharge and (4) that the discharge followed the protected activity so closely in time as to justify an inference of retaliatory motive. (Citations omitted) (Emphasis added)

The Court in Couty went on to hold:

"In our opinion, [the ALJ's conclusion that the evidence did not support an inference of retaliatory motivation] was error since petitioner was discharged roughly thirty days after he engaged in protected activity. Our cases hold that this temporal proximity is sufficient as a matter of law to establish the final required element in a prima facie case of retaliatory discharge. See Keys [v. Lutheran Family and Children's Service of Missouri] 668

F.2d at 358 (less than two months); Womack [v. Munson] 619 F.2d at 1296 (twenty-three days)." (Emphasis added).

   Thus, what the Court held to be a "temporal proximity" as a "matter of law", was a period of "roughly thirty days." Other cases cited by the Claimant as showing that "[a]dverse action closely following protected activity is itself evidence of an illicit motive" likewise rely on a relatively short interim between the protected activity and adverse action. In Newkirk v. Cypress Trucking Lines, Inc., 88-STA-17, Decision and Order of the Secretary (February 13, 1989) the interval was only six days and in Priest v. Baldwin Assoc., 84-ERA-30, Decision and Order of the Secretary (June 11, 1986) the interval was approximately one month. Further, in the cases relied on by the Secretary in Newkirk, the time elements ranged from 2 days to six weeks. See: Jim Causley Pontiac v. NLRB, 620 F.2d 122, 126 (6th Cir. 1980) (6 weeks); NLRB v. Advanced Business Forms Corp., 474 F.2d 457, 465 (2d Cir. 1973) (17 days); Donovan v. Stafford Const. Co., 732 F.2d 954, 960 (D.C. Cir. 1984) (2 weeks); NLRB v. American Geri-Care, Inc., 697 F.2d 56, 60 (2d Cir. 1982) cert. denied, 461 U.S. 906 (1983) (5 days); NLRB v. Rain-Wall, Inc., 732 F.2d 1349, 1354 (7th Cir., 1984) (2 days). In other cases where the temporal relationship between protected activity and retaliation has been considered significant, the time spreads have been similarly brief. See e.g.: Donnellon v. Fruehauf Corp. 794 F.2d 598, 601 (11th Cir. 1986) (one month) Devlin v. Federal Reserve Bank of St. Louis 634 F.Supp. 389 (E.D.Mo., 1986) (2 weeks); Eirvins v. Adventist Health System/Eastern & Middle America, Inc., 660 F.Supp. 1255 (D. Kan. 1987) (7 days); Saks v. Amarilla Equity Investors, Inc., 702 F.Supp. 256 (D. Col. 1988) (16 days). On the other hand, as Respondent has noted, the inference of a causal link weakens as the length of time between the protected activity and the alleged adverse action increase.¹ I agree. See, Booth v. Birmingham News Co., 704 F.Supp. 213, (N.D. Ala. 1988) aff'd mem., 864 F.2d 793 (adverse action taken some six or seven months after discrimination claim settled was insufficient standing alone to demonstrate requisite causal connection between protected activity and alleged retaliatory discharge); Fitch v. R.J. Reynolds Tobacco Co., 675 F.Supp. 133 (requisite causal link not established between filing complaint and termination 10 months later); Cooper v. City of North Olmstead, 795 F.2d 1265 (6th Cir. 1986) (mere fact that

   Complainant contends further that "[i]t is well settled that a lowering of an employee performance rating after he or she engaged in protected activity constitutes sufficient evidence of discriminatory motive.² I agree that a causal connection element may be established by proof that the employee received favorable performance evaluation before engaging in protected activity and negative evaluations after engaging in such activity. See Sawers v. Kemina Inc., 701 F.Supp. 809 (S.D. GA. 1988). However, this is no hard and fast rule. For example, in Mitchell v. Baldridge, 759 F.2d 80, 88 (D.C. Cir. 1985) the Court found that a shift to lower performance rating did not constitute evidence of discriminatory motive when it coincided with a change in job responsibilities. The temporal relationship between the protected activity and lower performance rating is also a factor. In Fitch v. R.J. Reynolds the Court held:

The fact that seven months after he filed and then withdrew the EEOC charge, Fitch received the lowest performance evaluation to date is insufficient to make out a prima facie case of retaliatory action."

¹Respondent relies, in part on Jennings v. Tinley Park Community Consol. Sch. Dist 146, 796 F.2d 962 (7th Cir. 1986) as supporting this proposition by holding that a four month lapse is too long to show causal connection. I find no such holding from my reading of the case.

²Complainant again cites Couty v. Dole (supra) as supporting this proposition. However again my reading of the case fails to reveal any mention of a performance evaluation.