recommended the complainant's promotion to the engineering schedule (SD). (C-12). The SD schedule consists of employees classified by TVA as engineers. (T-18). That recommendation was rejected and the complainant continues in his capacity as an SE-5.

TVA contends, that there is no jurisdiction under the Act, that there is no discriminatory treatment of the complainant by TVA whatsoever, and that there is no discrimination directed towards the complainant due to his quality assurance work.

To establish jurisdiction it must be determined that the complainant's activities in quality assurance are protected activity under the Act. The pertinent language of the Act is paraphrased as follows: an employer may not discriminate against any employee because the employee participated in any action that carried out the purposes of the Act or the Atomic Energy Act of 1954.

Mr. R.T. Smith, the complainant's immediate supervisor stated that the complainant was the only person in the Brown's Ferry QA program affected by the reorganization. (T-209). The chief field QA supervisor, Douglas McCloud, did state that the complainant was the only person working outside of the reorganizational structure at Brown's Ferry. (T-64). The QA reorganization was developed by Mr. McCloud, Mr. Richard Parker the chief of ON and the TVA nuclear plant QA supervisors. (T-309). Although the complainant was the only person shifted from procurement duties considered to be on the SD schedule to surveillance of test data on the SE schedule, there were other personnel who were affected by the reorganization. (T- 63). QA engineers at the TVA Sequoyah nuclear plant who were performing surveillance of test data, were reassigned to strictly engineering duties commensurate with their engineering classification SD. (T-328).

Under the reorganization, the surveillance of test data is uniformly designated as a task for personnel on the SE schedule, engineering aides. Another engineering aide, Gene Holder, was also reassigned to completely new duties. (T-424). Both Mr. McCloud and Mr. Parker emphasized that the reorganization is an ongoing process with even more personnel changes ahead. (T-422-426, 386). Thus, the complainant was not the only QA position affected in this realignment. The switch involving the Sequoyah engineers moving from SE work to SD tasks is the exact converse to the complainant's move from SD tasks to SE duties. Moreover, the complainant who was classified as an SE-5 continues to hold this status in his present duties, which are designated for SE personnel. (T-637). On cross- examination, R.T. Smith agreed that the complainant hasn't been affected in any terms or conditions of his employment, pay or otherwise. (T-188).

Concerning the denial of promotion of the complainant onto the SD schedule as an SD-3, R.T. Smith did recommend that the complainant be promoted. (C-12). In that same memorandum, Mr. Smith also recommended three other nonengineering degreed persons for positions on the SD engineering schedule. Unlike the complainant, two of the men were promoted. (T-88). Both men, however, were already on the bD schedule (T-88) and both men had demonstrated adequate or better job performance in all of the QA engineering functions. (T-97, 98). The complainant is not on the engineering schedule and has specific

experience limited to procurement. He therefore is not in a comparable situation with the two others. The third individual and the complainant, however, are in comparable positions here. Both are nondegreed in engineering and both were not previously listed on the SD schedule. They each have on-the- job experience considered by R.T. Smith to warrant their promotions. The final similarity is that neither was promoted.

Proceeding on the basis that the essence of discriminatory treatment is treating like individuals differently, Dickens v. Tidewater Stevedoring Corp., 656 F.2d 74, 76 (4t Cir. 1981), the complainant has not established discriminatory treatment here, in relation to the reassignment or the denial of promotion. Rather the evidence shows that other TVA employees whose circumstances were comparable to that of the complainant were treated in the same manner. The complainant therefore has not succeeded in demonstrating discriminatory treatment by TVA.

performing the work being audited. (E-3). TVA top management instructed the Office of Power to take corrective action in accordance with this objective. (E-3).

At the August 14 meeting of the QA supervisors, it was decided in keeping with the requirement of upgrading the QA program that each QA function should be an engineering responsibility (including procurement). The SE personnel, engineering aides, would be responsible for reviewing the data to verify that it matches the established criteria, as opposed to setting the criteria which task would be an engineering responsibility (T-310). The inclusion of procurement as an engineering task brought the Brown's Ferry program into line with the other TVA nuclear plants where procurement was already being performed by a QA engineer. (T-310). once having decided that, it became necessary to reassign the complainant, an engineering aide, from his procurement duties to the surveillance of test data. The delegation of engineering aides to the latter task was in keeping with the concept of utilizing engineering aides for ensuring conformance with existing standards as opposed to actually setting the standards. (T-310). TVA management did recognize that the complainant performed his duties in a satisfactory manner. (T-16; C-3, 4). R.T. Smith and the complainant state that he has demonstrated his ability to perform all SD-3 engineering functions that have been encountered including § 10 C.F.R. Part 21 procurement reviews. (C-2t T. 582). On cross-examination, Kenneth Williams a supervisor in the personnel division acknowledged that the complainant performed the functions read to him by complainant's counsel from the current SD-3 job description. (T-582-588). Mr. Williams, however, in his detailed job audit report in which he compared the SD-3 job description to the complainant's actual job content, noted several discrepancies and concluded that the complainant's position was closer to an administrative post SA-3. (E-18, 19, T-602).

Mr. Parker is of the opinion that procurement procedures as established under § 10 C.F.R. Part 21 require engineering judgments which would be better handled by an individual with the technical background. (T-313). In addition under the reorganization there is no permanent position of procurement specialist. (T-66. 108). Thus, the QA engineer who is responsible for procurement has other engineering responsibilities as well. (T-66, 109). The job evaluations for the complainant

contained in complainant's exhibits 2, 3, and 4 were reviewed by Mr. Parker who stated that they did not indicate that the complainant can perform engineering work outside of procurement. (T-110,118). The complainant's absence of an engineering degree or equivalent would be further highlighted under the QA engineer development program in which the QA engineers are rotated amongst the various engineering duties. If the complainant were left in procurement, TVA would be faced with two unfavorable alternatives: create a permanent procurement slot in the Brown's Ferry plant alone, and filled by a nonengineer; or rotate the complainant freely amongst the other QA engineering tasks. If the former is chosen, there will not be standardization between TVA's QA programs at the various plants and the other QA engineers at Brown's Ferry will be precluded from exposure to quality asurance in procurement. At Brown's Ferry they have already had two QA engineers work in procurement since the complainant's reassignment. (T-161, 162). If TVA chose the latter and rotated the complainant amongst the tasks, it would seriously compromise the scheme of upgrading the qualifications of its QA personnel. (T-111).

Thus TVA chose to reassign the complainant to duties more in keeping with his SE-5 classification.

now uses the word "must" in the phrase "must have a degree or equivalent" as opposed to the word "should" that was formerly utilized. (E-1, T-554).

As for the promotions of the other two men listed in (C-12), both men were on the engineering schedule (T-88) which meant that TVA had previously determined that the two individuals were bona fide QA engineers. (T-92, 557). Mr. Parker even as chief of QA could not interfere with that determination absent unsatisfactory job performance. (T-91). To date both men have performed their work at adequate or better levels. (T- 88, 89).

Contrary to complainant's allegation that Mr. Swindell's memorandum, which was written in response to the Corrective Action Report (CAR) 81-57 initiated by the complainant, played a large role in his reassignment, I find it played no role. The complainant admits that he has never been talked to or disciplined with regard to CAR 81-51. (T-628). Mr. Abercrombie, the Manager and Plant Supervisor at Brown's Ferry, states that the complainant was correct in issuing CAR 81-51. (T-448). Finally, Mr. Swindell has absolutely no administrative control or review over the Brown's Ferry QA group. There is no additional evidence with regard to the other two CARs of record and I find that there was no retaliation on the part of TVA because of them.

R.T. Smith's testimony, that Mr. McCloud stated that the reason for reassigning the complainant was an EEO complaint and a call from a congressman (T-166), is given no weight based on Mr. Smith's scant recollection of the conversation and Mr. McCloud's forthright denial. (T-47).

The testimony of Russell Perry and the incidents described therein together with the memorandum contained in Complainant's Exhibit 5 are indicative of the tension between the Outage and QA divisions. That tension however is a natural byproduct of the two conflicting goals of the respective divisions. The Outage group is charged with the responsibility of maximizing power output which necessitates keeping the plant operational. The QA group is charged with ensuring the plant is safely operated. While Outage is not blind to the safety requirements and QA does not disregard the

importance of keeping the plant operating, both divisions are charged with differing responsibilities. This functional tension therefore is an inevitable consequence of their divergent goals. It is not demonstrative of TVA management's hostility to the QA staff or that such hostility manifested itself in the treatment of the claimant.

Assuming arguendo that said hostility existed and did arise out of complainant's QA work, the Supreme Court has established a causation test regarding alleged dual motive cases in Mount Healthy City School District Board of Education v. Doyle, 429 U.S. 274 (1977), that is applicable. Applying the Court's holding to the facts of this case leads to the conclusion that where the complainant engages in protected activity and was reassigned and denied a promotion those actions will nevertheless be justified if there exists an independent legitimate basis for said actions. The complainant ought not to be able, by engaging in protected activity, to prevent TVA from enacting a policy of upgrading its QA program as prompted by the NRC and after assessing complainant's qualifications and reaching a decision to reassign and not promote the complainant, simply because the protected conduct makes TVA more certain of the correctness of its decision. Id at 286. As previously found, the upgrading of the QA program is the justification for the treatment of the complainant, which basis is both legitimate and independent of the complainant's QA activity.

In view of the above discussion and evidence of record, I find that the complainant has not demonstrated that TVA has discriminated against him because of his quality assurance work at Brown's Ferry. It is hereby recommended that the claim of T. Norman Batts be denied.

        CHARLES P. RIPPEY
        Administrative Law Judge