Case No. 82-ERA-1

In the Matter of

RUBY LIVERETT

    VS.

TENNESSEE VALLEY AUTHORITY,
BROWN'S FERRY NUCLEAR PLANT

John R. Munger, Esquire
Charles A. Sullins, Esquire
Sullins & Munger
206 Randolph Avenue
Huntsville, AL 35801
    For the Complainant

Richard M. Gutekunst, Esquire
Tennessee Valley Authority
Knoxville, TN
    For the Respondent

Before: MARTIN J. DOLAN, JR.
    Administrative Law Judge

    This proceeding arises under the Energy Reorganization Act of 1974 as amended (hereinafter referred to as the Act). 42 U.S.C. 5851 and its implementing regulations, 29 C.F.R. Part 24.

The Complainant filed a timely complaint with the U. S. Department of Labor under 29 C.F.R. 24.3. The complaint alleged discrimination by reason of the fact that she had been fired from her position as a clerk-monitor in TVA's Public Safety Service assigned to duty at the Browns Ferry Nuclear Plant on August 22, 1981 as a direct result of her having previously reported a breach of plant security regulations involving co-workers on March 5, 1981. On September 30, 1981, following an investigation, the Area Director of the Wage and Hour Division, Employment Standards Administration, U. S. Department of Labor, concluded that Complainant's discrimination complaint was unproven and that she was terminated as a TVA employee because she failed to follow plant security procedures on August 14, 1981 in that she allowed an employee into the restricted security area without first assuring that such employee had in his possession a radiating Complainant thereupon timely filed a request for a hearing before an Administrative Law Judge.

    A formal hearing was held in Huntsville, Alabama at which time the parties were afforded full opportunity to present documentary evidence, call witnesses and make oral arguments. The record was held open until November 30, 1981 so as to allow counsel for the parties to submit briefs in support of their respective legal conclusions.

    Based upon the entire evidentiary record in this proceeding, including my observation of the witnesses and their demeanor, I make the following findings of fact and conclusions of law.

    The Respondent, Tennessee Valley Authority (hereinafter TVA), is a licensee of the Nuclear Regulatory Commission (hereinafter NRC), licensed to operate nuclear energy plants and operated the Browns Ferry Nuclear Plant at which Complainant was employed a clerk-monitor in the Public Safety Service from August 20, 1979 until August 22, 1981 when her temporary appointment as a clerk-monitor was not renewed. Her duties as a clerk-monitor involved the performance of gatehouse duties of signing in visitors and assigning escorts to visitors, issuing badges to all plant employees, inventorying card keys, racking employee badges, and completing necessary administrative paperwork incidental thereto. Her duties also involved being

detailed to a plant perimeter observation post for the purpose of observing a specific security fence sector.

    Complainant, while on duty at Post 24 at the east portal gatehouse on August 14, 1981, was charged with the responsibility of assuring that all employees passing by her post in the guardhouse were issued their picture (I.D.) badge, a TLD badge (measuring accumulated low level radiation) and a dosimeter (measure body radiation levels). On this date, she allowed an employee (Thomas Bates) to pass her post without assuring that he was issued a TLD badge. The Complainant testified that she determined that employee Bates did not have a TLD badge in his badge rack, that she issued to Bates his picture badge and dosimeter, and and at the saline time instructed him to report to the visitor's desk (Post 25;) some 15-20 feet to the rear of Complainant's post in the corner of the gatehouse. Ms. Liverett testified the hearing that Bates advised her that he had his TLD badge. Employee Bates did not stop at the visitor's desk in the gatehouse in order to secure another TLD badge but instead passed into the secured area of the plant without having in his possession a TLD badge.

    At noontime on the same day, employee Bates exited the plant via east portal gatehouse at which time another clerk-monitor (C/M Posey) discovered that he did not have a TLD badge in his possession and thereupon reported the incident to Lt. Ronald Utlz, the shift lieutenant on duty at the time. A report of this incident was made to Chief Jackson who directed that the Complainant be suspended pending investigation of the incident.

    Lt. Mize testified to the effect that he interviewed Thomas Bates, the employee involved in the August 14, 1981 incident and took a written statement from him wherein Bates declared that he advised Ms. Liverett that he had left his TLD badge in his desk drawer and that she merely allowed him to pass her post with no instructions or directions (Employer Exhibit 9). Bates is no longer an employee of TVA and his present whereabouts is unknown.

    Clerk-monitor Posey testified to the effect that she inquired of Employee Bates as to the whereabouts of his TLD badge when he exited the gatehouse at noon on August 14, 1981 and was advised by Bates that such TLD badge was in his desk inside the plant, further that he had been allowed to enter the plant at 6:00 a.m. without possessing the TLD badge by the clerk-monitor who was on duty. It was determined via relevant testimony that

Ms. Liverett was the clerk-monitor who allowed Mr. Bates entry into the plant without the required TLD. badge. Complainant Liverett also furnished a written statement to Lt. Mize wherein she asserted that employee Bates told her that he had carried his TLD badge home with him and that she therefore did not demand proof that he had his TLD badge on his person upon entering the plant.

    In view of the conflicting versions of the Complainant's testimony as to the conversation she had with Employee Bates, I credit the written statement made by Bates to the investigating officer and the testimony of Clerk-Monitor Posey as to her conversation with Employee Bates when she noted that he did not have a TLD badge and attach little credence to Complainant's exposition of the dialogue she had with Mr. Bates. Against the backdrop of this testimony, it is clear that Complainant knowingly allowed Mr. Bates to pass her post without assuring that he was reissued a TLD badge as required by NRC regulations.

    Ms. Posey further, testified that, while there were no specific written instructions which directed the clerk monitor on duty to escort an employee without a TLD badge to the visitor's desk to secure such a badge, she as a matter of regular procedure, always escorts the employee to the visitor's desk to get a reissue of the badge because she feels that it is her responsibility to see that all employees are properly badged. She recounted that the first time she encountered such an occurrence of an employee not having a TLD badge she asked one of the safety officers on duty what procedure she should follow and that she advised by, the safety officer that she should not issue the employees picture badge until she determined that the employee has both the TLD badge and the dosimeter in his possession.

    Complainant Liverett testified that there were no written instructions which specified precisely how the clerk-monitor on duty was to handle such a situation. She disclosed that the employees turn in all their badges upon exiting from the plant and are reissued such badges again upon reentering the plant and that employees sometimes leave their TLD badges in their offices or work areas within the plant, and thus do not turn in the badge upon leaving the plant. Complainant averred that she believed that she was discharging her badging responsibility when she told

Bates to get a reissue of the TLD badge at the visitor's desk in the gatehouse.

    Complainant Liverett further asserted in her testimony that she believed that she was fired by TVA because she reported a March 5, 1981 security violation to the Assistant Plant Superintendent which resulted in the suspension without pay of Lt. Mize and Lt. States for two weeks and a one week suspension of Safety Officer Owens. The March 5, 1981 incident involved the situation where a plant employee (Peggy Gilbert) exited the guardhouse relinquishing her picture badge and re-entered the plant via the guardhouse as a escort for a visitor to the plant without picking up her picture badge. Miss Gilbert, upon reentry into the plant with the visitor entered the restricted area without being observed to be without the required picture badge by the safety officer on duty (S/O Owens). The line lieutenant (Lt. Mize) and the shift lieutenant (Lt. States) were the immediate superiors of Owens at the time of the incident and failed to make timely report of the incident to their superiors in Public Safety Service. Safety Officer Owens was suspended without pay for one week and Lts. Mize and States were suspended without pay for two weeks.

    Complainant further testified that she was frequently detailed to an undesirable duty post (Post 29) located in a guard house located on the outside of the perimeter of the fenced nuclear plant, and was socially shunned by her fellow employees. She further asserted that she was the subject of harassment in that she would be unable to communicate by walkie talkie radio from her Post 29 guardpost to the east portal gatehouse because someone would "squelch" the radio while she was attempting to talk over the radio. She alleged that she was the subject of written "reports" by her superiors which commenced after she "blew the whistle" on March 5, 1981 in connection with her reporting of the security breach on that date to the Assistant Plant Superintendent.

    The employer has asserted, in response, that the Complainant was fired because her past work performance had been unstatisfactory since the fall of 1980 and that the August 14, 1981 incident was just another example of unacceptable job performance which prompted the decision of TVA management to decline to renew Ms. Liverett's contract as a clerk-monitor on August 22, 1981. The Employer further asserted that the

Complainant's admission of, the employee into the restricted area on March 5, 1981 was a knowing violation of NRC regulations rather than inadvertent human error type situation.

    A total of 23 witnesses were called during the course of the virtually all the witnesses being former coworkers and supervisors of Complainant Liverett, with the testimony of such witnesses being widely conflicting as to whether or not Ms. Liverett was the of harassment by her fellow employees subsequent to her reporting the security breach of March 5, 1981 and whether or not the Complainant violated extant NRC procedures and regulations in allowing an employee to enter the plant area on August 14, 1981 without being issued a TLD badge.

    Testimony furnished by Captain Glenn T. Lard, Administrative Captain, who was responsible for the administering of disciplinary action against employees assigned to Public Safety Service, stated that Complainant's overall work performance had been unsatisfactory since the fall of 1980. He stated that management had instituted in late January 1981, the use of standard forms on which the nature of sub-par performance of employees was recorded for the purpose of enabling management to more closely scrutinize the job performance of employees assigned to Public Safety Service and that six (6) instances of unsatisfactory work performance by Complainant were thus documented before her termination on August 22, 1981.

    He testified that Complainant's work performance was determine to be unsatisfactory in the fall of 1980 because she had proven to be a very slow worker while assigned to the visitor's desk (Post 24) in the gatehouse in that it took her approximately 15-20 minutes to properly badge each incoming worker whereas it took other clerk-monitors 3-5 minutes to perform this badging function. He disclosed that many of the workers were not able to report to their work areas until approximately 10:00 a.m. although their workday began at 6:30 a.m, this triggering Complaints by Richard Coates, plant personnel officer because these workers were getting paid high hourly wages by TVA and were spending an inordinate amount of time at the gatehouse being processed and badged by Ms. Liverett. This situation necessitated the removal of Complainant from this particular post, Complainant Liverett was subsequently reassigned to this post with her performance again proving unsatisfactotry by reason of her being unable to accurately and

expeditiously process the incoming workers.

    Captain Lard further revealed that an incident occurred in January 1981 where Complainant, while assigned to the east portal gatehouse, failed to assUre that the escort whom she had assigned to a group of workers, was the same individual shown on the records maintained at the gatehouse. He further testified that another incident occurred during January 1981 in which Complainant issued badges to a visitor whom she assumed to be pre-authorized but such person was not pre-authorized, this incident because Complainant did not follow the proper procedures and positively identify the individual before issuing the badges to him.

    Captain Lard noted that the six documented instances wherein Complainant's job performance was the subject of a report involved (1) tardiness in reporting for duty on February 13, 1981; (2) reporting for duty on March 11, 1981 without the required uniform vest which serves as identification of Public Safety Service personnel; (3) Complainant's failure on March 18, 1981 to properly perform a card key inventory where she failed to determine that two card keys were missing (such card keys allow authorized persons access through locked doors into vital plant areas); (4) Complainant's issuance of the wrong picture badges to an employee on April 29, 1981 although the error was detected by a Safety Officer before the worker left Complainant's post; (5) Complainant on July 7, 1981 admitted a visitor into the plant area without requiring that the escort assigned to accompany the visitor properly sign the visitor log at the gatehouse; and (6) the August 14, 1981 incident where Complainant allowed employee to pass her post into the plant area knowing that he did not possess a TLD badge on his person.

    Testimony furnished by Captain James Brazzell, Supervisor of operations, Public Safety Service and Ralph Jackson Chief, Public Safety Service, Browns Ferry Nuclear Plant, corroborated the testimony of Captain Lard that Complainant's overall job performance was unsatisfactory and that the August 14, 1981 incident was but the latest occurrence which characterized her poor performance as a clerk-monitor; further that the decision not to renew her appointment on August 23, 1981 had no relationship to the event of March 5, 1981 wherein Complainant had reported a security breach, that there was no known harassment of the Complainant by employees of Public Safety Service, and that the Chief Jackson met in March 1981 with his

Supervisory lieutenants to impress upon them that there was to be no harassment directed toward Ms. Liverett by any Public Safety Service personnel as a result of her having reported the security breach. It is further observed that the Complainant's temporary employment contract had been renewed subsequent to the so-called whistle blowing incident on March 5, 1981 and prior in time to TVA electing to refuse to renew her contract which expired on August 22, 1981.

    There was testimony by Safety Officer Dial and clerk-monitor Beverly Kirby to the effect that there were no specific instructions in the Section Instruction Letters (SILs) which set forth procedures to be followed by clerk-monitors when faced with the situation of an employee seeking entrance into the plant who has a picture (I.D.) badge, a dosimeter, but does not have a TLD badge. Safety Officer Dial declared that there was no set procedure or any other requirement that the clerk-monitor leave her post and "escort" the employee over the visitor's desk to secure a replacement TLD badge for the employee; further that he had never observed a clerk-monitor leave his or her post to escort an employee who did not have a TLD badge over to the visitor's desk but that the clerk-monitor merely directs the employee to stop at the visitor's desk located approximately 15-20 feet to the rear of the badging counter where the clerk-monitors are positioned while handing out the badges to incoming employee.

    John Rozek, Chief, Public Safety Service, Tennessee Valley Authority, Knoxville, Tennessee, testified to the effect that he has overall responsibility for the security measures in effect at the Browns Ferry Plant. He stated that the admission of an employee who does not have a picture badge into the plant, constitutes a security breach while the admission of an employee who does not have a TLD bridge on his person does not constitute a security breach but constitutes a violation of NRC regulations which require that every person within the secured area of the nuclear plant wear on his person a TLD badge so as to provide a measuring device which measures the exposure of each employee to low level radiation for the employees own safety and protection. Mr. Rozek testified that Complainant Liverett, in her capacity as a clerk-monitor, was obligated to see that each employee she processed was properly badged with a picture badge, a TLD badge and a dosimeter before she processed any other employee, further, that the Complainant in the August 14, 1981 incident, should have

at least summoned a safety officer standing nearby and asked him to escort employee Bates over to the visitor desk to obtain a TLD badge upon her determining that Bates did not have a TLD badge. He further testified that Complainant was fired on the basis of an overall job unsatisfactory performance and that the August 14, 1981 incident was but part of such performance rating.

    Edward Cargill, Assistant Radiation Control Supervisor, Browns Ferry Nuclear Plant, testified to the effect that the NRC specifically requires that all persons within the plant wear at all times a TLD badge and a dosimeter so as to measure the exposure of each employee worker to radiation and the accumulated dosage received by their bodies over a monthly time period. He noted that this is a mandatory requirement of the NRC and that TVA must adhere to this requirement that personnel monitoring equipment be worn by all persons entering the restricted area so as to protect the health of all exposed personnel and so as to adhere to the license requirements set by NRC.

    During the course of Captain Lard's testimony, he disclosed that several other employees had issued incorrect picture badges to employees during the recent past (1980 and 1981) and were not fired for such security infractions but were suspended without pay for varying periods of time. One such instance involved Clerk-Monitor Hale who in 1980 issued the wrong picture badge to an employee at which time she was given a warning letter. Again in early 1981, Clerk-Monitor Hale issued the wrong picture badge to an employee at which time she was suspended for three days. He further testified that the safety officer, Shirley Armstead, in early 1981 issued the wrong picture badge to an employee at which time she was given a letter of warning. He continued to the effect that sometime during 1980 Clerk-Monitor Carolyn Jordan issued the wrong picture badge to an employee but that a duty lieutenant standing nearby noticed the error and effected the issuance of the proper badge to the employee.

    Captain Lard characterized these instances of the issuance of the wrong picture badges to employees aid also the March 5, 1981 incident involving the admission of employee Peggy Gilbert without her picture badge as "human error" violations and thus no additional disciplinary action was taken against such personnel.

    Captain Lard, Captain Brazzell and Chief Jackson stated, on the other hand that the August 14, 1981 incident involving

Complainant's admission of employee Bates into the plant area without his TLD badge was done "knowingly", she being fully aware that Bates should have had a TLD badge on his person and that she knowingly let him pass her post without such badge, further that the proper procedure which she should have followed was to "escort" Employee Bates lover to the visitor's desk. (Post 25) in order to secure a replacement TLD badge from the clerk-monitor manning that post.

    Captain Lard further testified that he and Lt. George had conducted classroom training sessions on August 25, 1980 and September 25, 1980, at which Complainant was in attendance, wherein clerk-monitors were specifically instructed not to issue a picture badge to an employee who did not have a TLD badge, and that such an employee should be escorted by the clerk-monitor over the visitor's desk for issuance of a replacement TLD badge with the clerk-monitor turning the employee's picture badge over the clerk-monitor manning the visitor's desk until such tie as the replacement TLD badge was issued to the employee.

    He further declared that Section Instruction Letters (SILs) Nos. 2.4 and 22.5 set forth the duties and responsibilities of gatehouse personnel. he pointed out that Section Instruction Letter 22.5 dated September 18, 1980 specifically states:

INSTRUCTION AND RESPONSIBILITY

... The clerk monitor. Post No. 24 and 25 are primarily responsible for the identification and badging of persons requesting entry into the protected area of the plant.

A security identification badge (picture badge), film, badge, and dosimeter will be issued to all personnel entering the plant protected area ....

    Additionally, he disclosed that Section Instruction Letter 22.4 dated May 8, 1981, specifically states:

INSTRUCTION AND RESPONSIBILITY

...The clerk monitor post no. 24 is primarily responsible for the identification and badging of persons requesting entry into the protected area of the plant.

He shall be responsible for the recordkeeping activities of his post, and shall see that the necessary badging procedures are performed....

    On the basis of the totality of the record evidence, I find that the Complainant has not carried her burden of showing discrimination practiced against her by TVA by reason of its determination not to renew her employment contract. The Complainant has the burden of proving (a) an act of discrimination by the employer by way of its treating like individuals differently under similar circumstances and also proving discriminatory intent by a preponderance of the evidence.

    While there there is a showing by credible testimony that other clerk-monitors received warning letters or suspensions without pay for their failure to issue the proper picture badge to TVA employees, there is no record evidence which demonstrates that they had a history of unsatisfactory work performance as was the case with Ms. Liverett. I also find that the nature of their errors, the inadvertent issuance of wrong picture badges to bona fide employees, is clearly distinguishable from the Complainant's knowing admission of employee Bates without his required TLD badge into the plant ares on August 14, 1981 and that the Nuclear Regulatory Commission's requirement that every person working in the plant area wear such a badge is of critical importance to the personal health and safety of each and every worker employed by a nuclear energy plant. The clerk-monitors and safety officers who issued the wrong picture badges to employees did so unknowingly. They were disciplined th the extent that they received warning letters which became part of their personnel file or were suspended without pay for varying periods of time. In the cases of these individuals, however, there was no showing whatsoever that they had otherwise performed unsatisfactorily in their respective jobs.

    I further find no credible evidence of harassment, either organized or orchestrated by management or spontaneously undertaken by fellow workers of the Complainant. There was vague testimony that some of complainant's co-workers did not like her, that they did not socialize with her either on the job or off the job, and that they felt uneasy or uncomfortable working in tandem with her because they felt that she was unsure of herself in the

performance of her duties. These subjective feelings of co-workers do no constitute harassment by TVA management and, such personal attitudes of her coworkers cannot be translated into malevolent or retaliatory intent with such intent being imputed to the TVA management and, thereby, support the proposition that TVA retaliated against the Complainant by refusing to renew her employment contract.

    Additionally, there is no specific record evidence of harassment of the Complainant by way of her being detailed to duty at Post 29, a perimeter guard post, any more frequently than other clerk-monitor personnel. In this connection, the evidence shows that Complainant had difficulty performing quickly and accurately the duties required of her at Post 24 and Post 25 in the east portal guardhouse but that she performed the sentry duties at Post 29 in satisfactory manner.

    Similarly, there is no clear evidence of Complainant having been the subject of harassment by way of unspecified persons squelching her radio transmissions from Post 29 to the east portal guardhouse. Testimony showed that radio squelching on the numerous plant walkie talkie radios occurred frequently regardless of the identities of the persons speaking and that efforts to determine the identities of those employees who were responsible for the interference with radio transmission of fellow employees had not been successful. There has been no showing that TVA management more closely monitored or scrutinized Ms. Liverett's work performance or that TVA management personnel ostracized her or encouraged her fellow workers to ostracize or harass her.

    Consideration of the testimony of the various line lieutenants, shift lieutenants an the testimony of Captains Lard and Brazzel and Chief Jackson, as well as the testimony of Complainant herself, unmistakably points to an attitude of carelessness and inattention by Ms. Liverett to the various details and procedures incident to the proper identification and processing of persons into the restricted confines of the Browns Ferry Nuclear Plant. I find that the TVA management, in carrying out its responsibilities to the public in connection with the providing for the integrity and security of the Browns Ferry Plant, had legitimate independent reasons for the nonrenewal of Ms. Liverett's employment contract.

    I find that there is a complete failure of proof that TVA's termination of Complainant's employment contract was pretextual and motivated for the unlawful purpose of retaliating against her for reporting the security breach incident of March 5, 1981. Ms. Liverett's role in reporting the security breach of March 5, 1981 was indeed protected conduct and notwithstanding the fact that the whistle blowing incident of March 51 1981 occurred approximately 5 1/2 months prior to her termination, any inference of retaliatory motivation for the discharge is overcome for the simple reason that TVA management clearly had legitimate concern over her overall poor job performance as documented herein by her performance records and via testimony from all of the Employer's witnesses who testified to that effect. I find that the Employer's witnesses were credible, that their testimony was direct, convincing and non-evasive, and precise as to their observation of Complainant's performance at the various duty posts in the gatehouse and their concern about her apparent inattention to the various procedures which had to be followed in connection with admission of employees and visitors to the nuclear plant.

    The U. S. Supreme Court has established a causation test in alleged dual motive cases. Where, as in the case at bar, the employee engaged in protected activity or behavior by reporting the March 5, 1981 security breach and is subsequently terminated, such termination will nevertheless be justified if there exists independent and proper grounds for such termination. Mount Healthy City School District Board of Education v. Doyle, 429 U.S. 274 (1977); Education v. Doyle, 429 U.S. 274 (1977). Otherwise the employee is placed in a better position for having engaged in the protected behavior. An employee ought not to be able, by engaging in such conduct (protected behavior) to prevent his employer from assessing his performance record and reaching a legitimate management decision on the basis of that record. See also Texas Department of Community Affairs v. Burdine, 101 U. S. 1089 (1981) and NLRB v. Consolidated Freightways Corp., 651 F.2d 436 (6th Cir. 1981) where the nature of the respective burdens of proof which must be borne by the employee and the employer in discrimination cases is amplified. These decisions support the determination of the undersigned that the Complainant in the case at bar has not carried her burden of proof in showing discrimination, discriminatory intent and retaliatory conduct and thus the

complaint must fail.

    It is hereby recommended that the complaint of Ruby Liverett be dismissed.

       MARTIN J. DOLAN, JR.
       Administrative Law Judge

Dated: DEC 16 1981
New Orleans, Louisiana
nvc