provisions protect employees against discrimination for attempting to carry out the purposes of the ERA or of the Atomic Energy Act of 1954, as amended, 42 U.S.C. §2011, et seq. The Secretary of Labor is empowered to investigate and determine "whistleblower" complaints filed by employees at facilities licensed by the Nuclear Regulatory Commission ("NRC"), who are discharged or otherwise discriminated against with regard to their terms and conditions of employment, for taking any action relating to the fulfillment of safety or other requirements established by the NRC.

    In the instant case, the District Director of the Syracuse, New York regional office of the Employment Standards Administration, Wage and Hour Division, United States Department of Labor, found after an investigation that Complainant Robert T. Norway's termination by Respondent Niagara Mohawk Power Corporation was not based on discrimination.

    The Complainant appealed the Employment Standards Administrator's order to the Office of Administrative Law Judges by Western Union Mailgram which was received on November 1, 1994. A hearing was held on December 20 and 21, 1994 in Syracuse, New York. Post-hearing both Complainant and Respondent submitted briefs.

    To establish a prima facie case, the Complainant must prove, by a preponderance of the evidence, that: (1) he/she was engaged in protected conduct, (2) the Respondent was aware of the conduct, (3) Respondent took some adverse action against him/her (see Texas Department of Community Affairs v. Burdine, 450 U.S. 248 (1981)), (4) the protected activity was a contributing factor in the unfavorable personnel action. 42 U.S.C.A. §5851 (b)(3)(C).

    Once the Complainant establishes a prima facie case, the burden of proof shifts to the Respondent. The Respondent must show that the alleged disparate treatment was motivated by legitimate, non-discriminatory reasons. The Respondent's burden is one of production only. Burdine, 450 U.S. at 254-55.

    If the Respondent is successful in articulating the above, the burden of proof shifts again to the Complainant. The Complainant must then show that the Respondent's proffered business reason is mere pretext. Burdine, 450 U.S. at 256.

    If it is determined that a violation exists, the Respondent, in order to avoid liability, must show by clear and convincing evidence that it would have reached the same decision even in the absence of protected conduct. 42 U.S.C.A. 5851(b)(3)(B).

    There are certain facts not in dispute. The Complainant was hired in 1982. He was later promoted to the position of Safety Engineer as a member of the Independent Safety Engineering Group (ISEG).

    The Respondent is a Nuclear Power Plant that provides power for Central New York. The plant consists of two Units. The Complainant worked at Unit Two. According to the licensing requirement for this Unit it must have a five man Safety Group (the ISEG) which must consist of five engineers.

Robert T. Norway ("Complainant"): dismissed engineer

Thomas Egan: lead engineer of the Independent Safety Engineering Group ("ISEG") at the time of Complainant's dismissal. He is currently the acting ISEG director

B. Ralph Sylvia: Executive Vice-President for Nuclear Strategic Business Unit and head of the senior management team

James Spadafore: formerly the program director of ISEG (1990-1994), is currently the manager of technical services

Richard Abbott: formerly the manager of engineering for Unit 2 (2/91 to 1/93), in 1993 he was general manager of site support, since 1/94 he has been the plant manager of Unit 1

Patrick O'Brien: chemical engineer in the ISEG department

Paul Terry: Vice-President of Nuclear Engineering which includes ISEG (see RX-5 for organizational chart for nuclear engineering)

Colleen Ware: Director of Emergency Preparedness for Nuclear Sites and a member of the rightsizing committee in February 1994

    Niagara Mohawk ("the Respondent") is a nuclear power plant comprised of 2 nuclear reactors: Nine Mile Point Unit 1 and Unit 2. (TR 19). The Unit 1 reactor was built 25 years ago, Unit 2 began operation in 1986. (TR 19). There was a single administrative structure for nuclear operations over both plants. (TR 157).

    The Respondent holds a license from the NRC to operate two

nuclear plants. (TR 157-158). Each plant had its own license. (TR 158). The license is supported by the licensing basis. A licensing basis consists of documents that go into the inputs and overall design and how the plant would be operated. It sets out the process that supports the issuance of the license by the NRA. The Respondent can change the licensing basis but not the license. A change in the license (technical specifications) could only be granted by the NRC. (TR 158). A change in the licensing basis requires a safety analysis. (TR 158-159).

    An Independent Safety Engineering Group (ISEG) consisting of five engineers is required as part of the license at Unit 2. (TR 160; RX-2).

    A unit safety analysis report ("USAR") is the document that was submitted in the application for the license. The final USAR before obtaining the license is called the final safety analysis report ("FSAR"). (TR 175). Every year the FSAR was reviewed and updated. The Respondent is allowed to change the FSAR without going to the NRC as long as a safety evaluation, as described in 10 C.F.R. §50, was met. (TR 176). As long as the change in the FSAR did not change the technical specifications, it did not go to the NRC. (TR 176).

    The importance of the FSAR in this case relates to safety complaints the Complainant made. Two safety issues he raised concern the FSAR.

Independent Safety Engineering Group ("ISEG")

    Robert T. Norway ("the Complainant") was hired in June 1982 as a start-up engineer during the construction of Nine Mile Point Unit 2. He had an expertise in instrumentation and control systems. (TR 16). He began work in the Independent Safety Engineering Group ("ISEG") in January 1989 when the group was first formed. Soon after he was promoted to Senior Engineer Level 3. (TR 17).

    The responsibilities of engineers in ISEG included reviewing the design, engineering, operation, and maintenance activities that were being conducted at the plant as insurance they were being done safely. They were considered an oversight review group. (TR 20). There were 3 ISEG engineers and a manager assigned to Unit 1 and there were 5 ISEG engineers assigned to Unit 2. (TR 19). Unit 2 ISEG occasionally worked on Unit 1 issues and vice versa. (TR 81-82).

Problems Identified by the Complainant

    The Residual Heat Removal "RHR" System performed shutdown cooling during emergencies and normal shutdown. It could be set up to cool either the reactor vessel or suppression pool. The hot water came out, the RHR system cooled it down, then cold water was sent back in. (TR 21).

have an emergency shutdown system that took 54 hours or longer to cool (as opposed to 36 hours). Because the reactor vessel was of only a certain thickness, it would be subject to thermo- stratification if cooling took place faster than 1000 per hour. (TR 134-135). Thermo-stratification occurred when the temperature at the top of the vessel was much higher than the bottom causing thermo-stress cracking of the vessel. This would be expensive to repair. (TR 135).

    It was the Complainant's position that writing a procedure without doing a safety evaluation would not have solved the problem. (TR 218). Engineering thought there was no deviation present. (TR 219). Mr. Spadafore noted that he did not know if a safety evaluation of the deviating alternate cooling system had ever been done. (TR 215).

    Mr. Abbott reviewed the PR and agreed with his staff's initial disposition of the PR (they were within the requirements of the FSAR). (TR 229). Abbott spoke with Jim Spadafore and Complainant about the PR. (TR 230). He sent the PR back to Complainant with a letter written by Matt Yeminy and Ken Korcz (RX-1) explaining their rationale. (TR 229). Mr. Abbott concurred with the contents of that letter. (TR 230).

    If an initiator of a PR/DER did not agree with the dispositioner he could go to the line management of the organization responding to PR/DER, or go up his own chain of command, or jump the chain to the vice president, or go to the Quality First Program, or to the NRC. All of these options were available in 1991. (TR 233).

    Mr. Abbott suggested to Jim Spadafore that he take the problem to Mr. Terry and have him evaluate the issue. (TR 233). Eventually Gary Thompson signed-off the PR. (TR 234). Mr. Thompson was the general supervisor of system engineering in the nuclear generation department. It was his job to keep track of open and closed PRs. (TR 235).

    Mr. Abbott stated there was a safety evaluation in place for the operating procedure. However, he did not recall showing the safety evaluation to Jim Spadafore or the Complainant. (TR 248).

    Mr. Abbott did not specifically recall any discussion with the Complainant about firing nuclear engineers in the hallway of P building or R building. (TR 242, 244). He said he never gave the Complainant any direction to close the PR. (TR 243). He explained that he did not have the authority to tell him to close the PR. (TR 243). He maintained he had no management authority over the Complainant.

    Mr. O'Brien reviewed Complainant's PR (CX-1) in August or September 1994. (TR 257). His supervisor had asked him to look at the whole package, the corrective actions that had been taken as a result of the DER, and to give him an engineering judgement if everything looked satisfactory. (TR 258).

    Corrective action had been taken in response to the DER. (TR

258). A new special operating procedure was written addressing the issues in the DER (reaching cold shutdown in 36 hours). (TR 259).

    It was Mr. O'Brien's opinion that the issues stated in Complainant's PR were valid. (TR 260).

    Mr. Terry had no direct role in the 1991 PR. (TR 302). He was aware of the PR (CX-1) via information reports from ISEG and discussions with Jim Spadafore. (TR 303). He had also talked to Rick Abbott about the PR. (TR 304). He had no direct discussion with Complainant about the RHR. He did not give Jim Spadafore any directions about disposing or closing the PR. (TR 305). The PR had no impact on safe operation. They had a method to apply alternate shutdown cooling. (TR 305). The PR did not suggest they were out of compliance with the technical specifications.

    The DER (CX-4) was a different issue because it identified a possible conflict with the regulatory guide. (TR 307). He became aware of the DER through the Q1P in March 1994. (TR 307).

    On cross-examination, Mr. Terry stated that an operating procedure was written after Complainant was discharged and after he reported the issue to the NRC and Quality 1st Program,. (TR 317). Mr. Terry disagreed with Jim Spadafore and Pat O'Brien when they stated there was no safety evaluation for the shutdown system in 1991. (TR 318).

Safety Review and Audit Board

    The second safety issue identified by the Complainant concerned the disposition of Safety Operating Reports.

    The Safety Review and Audit Board ("SRAB") was made up of senior managers and outside contractors. The committee was headed by either Carl Terry, the Vice-President of Nuclear Engineering, or Ralph Sylvia, the Executive Vice-President of Nuclear Engineering. (TR 39). The Complainant was appointed to a SRAB subcommittee in 1993 by Jim Spadafore. (TR 39). The subcommittee was made up of four members: the Complainant, Jim Spadafore, Walter D'Ardenne (GE Contractor), and Pat O'Brien. (TR 135).

    The Respondent had in place a method to analyze and disposition operating experience reports ("OER"). (TR 40). The Complainant's subcommittee reviewed a 20% sample of OERs closed during a certain time frame. (TR 42). The group prepared a report and presented it to the SRAB committee in the fall of 1993. Jim Spadafore, chairman of the subcommittee, presented the general findings and the Complainant presented the specific issues. (TR 115). The report had been reviewed and approved by all subcommittee members. (see CX-5). The general conclusion from the report was that 25% of the issues were not properly addressed. (TR 43).

    Mr. Terry was present at the SRAB meeting when the report from the subcommittee was made. (TR 137). Mr. Terry specifically commented on an offgas event and reactor vessel inaccuracies. Mr. Terry disagreed with their conclusions. (TR 138).

    Mr. Burton had disagreed with some of the issues that were being identified as being in error. (TR 205). A verbal presentation of the report was given to the SRAB committee.

    On cross-examination, Mr. Spadafore stated that other reports of the subcommittee identified shortcomings and inadequate actions to the same extent as the September 1993 report. (TR 219). Mr. Terry was not angry because the report identified DERs that had not been handled properly. (TR 220).

    Mr. Terry was the chairman of the SRAB committee. His main concern over the subcommittee's report (CX-5) was that there was no resolution between the branch manager of QA and the ISEG people over whether the findings were valid or not. (TR 310-311). He was upset over their lack of preparation. (TR 312).

    One particular event was an "offgas fire". In the reactor, gases from the turbine are radioactive and can not be released into the atmosphere. Instead they are forwarded into an offgas system which retains the radioactivity by using charcoal beds until it is decayed to a point it can be safely released. (TR 43).

    The Complainant testified it was widely known in the industry that this system was very susceptible to a fire in the first train of a charcoal bed. (TR 43). There were many OERs pertaining to this issue. There was an offgas fire at Nine Mile in the summer of 1993. This was a widely known, industry known, incident. (TR 44). The NRC investigated on site. (TR 44).

    Someone other than Complainant conducted a root cause investigation after the event and concluded the present DER system would prevent such an event from happening again. (TR 46). However, Complainant discovered that a DER involving offgas fires had been closed out 2 months before the incident. (TR 47). The Complainant concluded the present DER system contained problems in its performance that would miss industry issues. (CX-5).

    The incident needed to be reviewed by the Site Operation Review Committee ("SORC"), but by the closure of the DER and assigning it to another one, the SORC review would have been missed. (TR 48). It was the plant manager's responsibility to decide if it should go to SORC. (TR 49).

    Another issue raised by the Complainant concerns the Containment Spray System. The Complainant was assigned by Jim Spadafore to do a special assignment for SORC. (TR 50). This assignment concerned a safety evaluation of a Unit 1

containment spray system, specifically the water seal on that system. (TR 51). The said safety evaluation had repeatedly come back for additional SORC reviews because of safety issues that had been left out. At the time they were on revision 9 or higher. (TR 51). Safety evaluations were performed in accordance with 10 C.F.R. § 50.59. (CX-2).

    The Complainant created a report cataloging problems that should have been addressed in a safety evaluation. (CX-6, 6a). The general conclusion of the report was that the safety review process definitely needed improvement. (TR 55). The Complainant made suggestions for improvements. (TR 55-56). Mr. O'Brien also signed the report. (TR 120). Nuclear engineering of Unit 1 was responsible for the redone safety evaluations and was the overall responsibility of Carl Terry. (TR 56).

    Complainant stated his work responsibilities were different than other ISEG engineers in that he looked into adverse performance in programs which indicated a poor performance on managing the plant. (TR 56). He was assigned those responsibilities by Jim Spadafore. (TR 57).

    Mr. O'Brien was asked by Jim Spadafore to look into a matter involving a water seal. The safety evaluation kept coming back to SORC and had to be revised. (TR 251). He was assigned as lead for the investigation. (TR 251). The Complainant looked at more of the technical aspects of the safety evaluation where O'Brien was looking at the programmatic aspects. (TR 252). Two reviewers looked over their report and did not make any significant changes. (TR 252-253). Before the report was issued, he had a discussion with some of his peers in the licensing department. Lee Klosowski acted as the moderator. (TR 253). O'Brien would not characterize the discussion as heated. (TR 254).

    These activities are evidence of the Complainant's raising important safety issues. It is his position that these concerns are especially important because they influence overall site operations.

    There was testimony by others about investigations by other ISEG engineers. This was presented by the Respondent to attempt to prove that the complaints raised by the Complainant were no different that those raised by other ISEG engineers.

    Thomas Egan had been an ISEG engineer for 6 years. During that time he filed a half dozen PRs. (TR 148). Some issues raised by Mr. Egan included: a PR questioning the condition of equipment, tubing that was not capped off, performed safety assessment after an off-site power loss in March 1992, and was presently looking at putting breakers in cubicles. (TR 148-149). Mr. Egan encountered resistance from managers when raising some issues. (TR 150). He had gotten into shouting matches with some managers. (TR 150). However, he did not have any difficulty working with those same individuals after the incidents. (TR 151). Overall he said, the ISEG engineers would raise the same type of issues. (TR 152).

    Mr. Spadafore stated that the filing of a PR or DER was not an unusual occurrence. (TR 216). Other ISEG engineers filed PRs and DERs. (TR 216). There was no difference in the nature of issues identified or pursued by the Complainant relative to issues identified or pursued by other ISEG engineers. The problems raised with systems were to no greater extent than anyone else in the group. (TR 217).

    Mr. O'Brien had filed 10-15 DERs and couple dozen PRs. (TR 261). As a whole everything was about equal concerning the significance of problems raised by the ISEG engineers. (TR 263).

    For example, there had been a fuel bundle incident while preparing for refueling at the end of 1991 or early 1992. ISEG was asked by the plant manager to conduct a root cause investigation. Mr. O'Brien was one of the investigators along with Mr. Darweesh. (TR 255). The incident was significant from a regulator point of view. (TR 255). However it was not considered a significant safety issue. (TR 256).

    Mr. O'Brien's report was critical of supervisory staff oversight in that it was not what it should have been considering the job. Maintenance management should have been more involved in providing oversight. A near miss had occurred a few days prior that had not been communicated to the shift where the actual accident occurred. This could have been significant in heightening awareness to human error. (TR 256). Mr. O'Brien did not receive any negative criticism from management following the issuance of his report. (TR 257).

Issue

    This case concerns the Complainant's firing by the Respondent. The Complainant contends he was fired because he raised safety issues that were not adequately addressed by management. The Respondent says the Complainant was fired as part of an overall downsizing that was carried out according to written criteria.

Rightsizing

    The Respondent began to cut staff in 1993 in order to make itself competitive with other deliverers of power. The downsizing called "rightsizing" by the Respondent was to be accomplished in two stages. In each stage only the employees with the lowest performance evaluations were to be considered as expendable. The first stage in 1993 targeted the lowest 20%. The nuclear engineers were not targeted at all that year, so it did not affect the Complainant. The second stage of the program in 1994 targeted the lowest 40% as determined by performance evaluation. As nuclear engineers were targeted those engineers rated in the lowest 40% by their supervisors should have been targeted. once a person was identified as being in the lower 40% his name was sent to a Review Panel for further determination.

    In addition to the published targeting program there are also references to an ISEG rotation and elimination of jobs. There is no written documentation for

either.

    In 1993, the Complainant was told he was ranked in the lower 20% of ISEG. (TR 124). He was not laid off in 1993. Jim Spadafore had been asked by the review board to evaluate certain names against the Complainant. (TR 125). After the evaluation, the Complainant was still considered to be the best qualified to hold an ISEG position, so he was retained in the group. (TR 126).

    In January 1994 a letter from B. Ralph Sylvia (CX-7) was issued and distributed through company mail outlining how the down-sizing process would take place. The Complainant had a conversation with Jim Spadafore about the cuts in January 1994. (TR 59). It was revealed cuts were going to be made in ISEG. (TR 59). Three engineering positions associated with Unit I would be totally eliminated. (TR 59). One position would be eliminated out of the 6 remaining. (TR 60). Unit 2's technical specifications required 5 full-time engineers. As of January 1, 1994 there were 5 full-time engineers in Unit 2 ISEG. (TR 60). Unit 1 was not required, as part of their licensing base, to have ISEG. Plants built after the Three-Mile Island incident were required to have ISEG, those built before were grandfathered. As a result of the cuts, Unit 1's ISEG was eliminated. (TR 61).

    ISEG rotation was first mentioned at a group meeting with Jim Spadafore. He explained that it would be a learning experience for the group. An ISEG engineer would be taken out of his position and put into a position that he was reviewing to gain experience in the day-to-day activities of that department. At the end of a year the engineer would be rotated back to his own position. (TR 63). At the end of January 1994, the Complainant was told he would be included in the ISEG rotation. (TR 64). However, the Complainant had not seen a written plan or timetable for the rotation. (TR 128). It was Jim Spadafore's impression that the rotation program would not result in any termination by the right-sizing review board. (TR 64). Jim Spadafore had said Carl Terry was directing the rotation plan. (TR 128).

    Mr. Sylvia testified about downsizing. After meeting with the NRC resident inspector, Mr. Sylvia wanted to enhance the ISEG function. (TR 163). Senior management received input from Jim Spadafore. A decision was made by the senior management team in late February, early March to rotate the ISEG engineers. (TR

179). It was thought that employees would gain alot more experience through a rotation program. However no timetable was adopted for ISEG rotation. They did not talk at all about individual engineers. They did talk about rotating the manager. (TR 164). Mr. Sylvia spoke with Patrick O'Brien in February 1994 about the ISEG rotation. (TR 176). Mr. O'Brien's name was sent to the Review Board. (TR 177). The Board decided not to rotate people because they were having enough trouble finding positions for people in the upper 60 percent. (TR 181).

    Mr. Terry was involved in discussions regarding rotation of ISEG engineers in early 1994. (TR 279-280). Jim Spadafore, in a presentation to senior management mentioned he would like to see a rotation program established for ISEG. (TR 280). Rotation

would not have involved a reduction of positions but rather people just changing jobs. (TR 281). There was no timetable or written document outlining the rotation program. (TR 281).

    There was much testimony about the downsizing process.

Testimony of Complainant

    The Complainant was told by Jim Spadafore that he was not on the 40% list. (TR 61). The Complainant was told he was one person off the 40% list. (TR 62, 126).

    On February 15, 1994 the Complainant was told, in a meeting with Jim Spadafore and Thomas Egan, that he was terminated. (TR 62). He was no longer on site and would be placed in a 2 month transition program. (TR 62). Again Jim Spadafore stated the Complainant was not on the 40% list and that his position had not been eliminated. (TR 63).

    The Complainant received a letter from Kathy Miles (CX-8) which stated that his position had been abolished. The Complainant wrote back to Ms. Miles because her letter was contrary to what Jim Spadafore had told him. (TR 67). The Complainant never received a response from Ms. Miles. (TR 67).

    The Complainant then wrote a letter (CX-10) to B. Ralph Sylvia, Vice-President of Nuclear Engineering. Mr. Sylvia wrote back to Complainant (CX-11) and indicated that the Complainant was not on the 40% list and that he was included in the ISEG rotation program. (TR 69). After the Complainant left Niagara Mohawk, no rotation program was ever implemented. (TR 69).

    The Complainant had received management training in 1993. (TR 69). Also a computer printout of what training programs Complainant was submitted at the hearing (CX-12).

Testimony of Thomas Egan

    Mr. Egan attended the meeting with Jim Spadafore when the Complainant was terminated. (TR 146). At that meeting Jim Spadafore told the Complainant he was not on the 40% list. (TR 147). The 40% list was developed by departments for people who were to be considered for release through "rightsizing." (TR 147). Complainant was qualified as an ISEG engineer and was very good with computers. (TR 147).

    Prior to the cuts in 1994, there were 5 degreed engineers for Unit 2 plus Jim Spadafore and 3 individuals at Unit 1 for a total of 9 employees. After the cuts there were 4 engineers plus the manager. (TR 152-153). ISEG was down-sized by one engineer.

    Respondent was required by the licensing base for Unit 2 to have 5 degreed engineers. (TR 154). Management functions had been given to one of those engineers.

Therefore, it was the manager who was eliminated and not one of the engineers. (TR 154).

    Darshan Suri was a good engineer and had a professional engineering license. In addition, Mr. Suri was a better communicator than the Complainant. (TR 151). If Egan was to select who to cut, looking at the needs of ISEG he would have kept Complainant, looking at the needs overall he would have chosen to keep Mr. Suri. (TR 153).

Testimony of Ralph Sylvia

    The review board was developed jointly by the Director of Human Resources and other members of the senior management team. (TR 168). There was an appeal process for employees. He was the final step in the process. (TR 169). He received an appeal from Complainant. (TR 169; CX-10). He had asked the Director of Human Resources, Mr. Krueger, to look into the Complainant's case. (TR 170). Mr. Krueger prepared the response letter (that Mr. Sylvia signed) to Complainant. (TR 170; CX-11).

Testimony of Jim Spadafore

    Mr. Spadafore received a copy of Management Assessment Process for 1994 (CX-15, CX-16) in late December, early January. (TR 209). Mr. Spadafore used these documents in implementing the rightsizing process in his department. (TR 212). Mr. Spadafore was instructed to verbally inform employees whether or not they were on the 40% list. (TR 213). Mr. Spadafore told Complainant he was not on the 40% list. (TR 212). He did not tell him he was one off the 40% list. (TR 213).

    At a meeting on February 15, 1994, the Complainant was terminated. Again Mr. Spadafore told the Complainant he was not on the 40% list. (TR 213). Jim told the Complainant somebody else put him on the 40% list. His paperwork had been received by the Review Board and they identified him to be on the 40% list. Prior to submitting the Complainant's name to the Review Board, Spadafore told the Complainant that his name was going to the Review Board for rotation pursuant to ISEG rotation. (TR 214).

    In a special assessment, Mr. Spadafore had rated the Complainant above Mr. Suri. The Complainant was let go, Suri was retained. (TR 224).

    Mr. Spadafore testified that the ISEG rotation had not yet been adopted at Unit 2. (TR 215). It has never been implemented.

Testimony of Richard Abbott

    Mr. Abbott was on the review board that addressed rightsizing issues. (TR 238). In 1994 there were two review boards in place that operated in parallel. (TR 239). Mr. Terry was on the same review board as Mr. Abbott. The review board discussed the

Complainant and voted for transition. (TR 240). They also voted on Mr. Suri. (TR 240). The board voted by secret ballot, Human Resources tallied the results. (TR 240). There was no discussion of the rotation process. (TR 241).

    However, in a senior management team meeting in December or January, prior to the Review Board, ISEG rotation was discussed. A timetable was not adopted. There was no discussion about individuals to be rotated. (TR 241).

    On cross-examination Mr. Abbott stated that in 1992 he sat on a Review Board and had one vote in deciding whether or not to terminate Complainant. (TR 245). As a result of his vote Complainant no longer had a job. (TR 246).

Testimony of Patrick O'Brien

    Jim Spadafore advised Mr. O'Brien that his name had been submitted to the review board in December 1993 or January 1994. (TR 264). There had been talk of rotating ISEG engineers and that the process was going to be handled through the rightsizing review board. (TR 264). Mr. O'Brien was very concerned about his name being on the list to go to the review board. (TR 265). He was afraid there would be no differentiation between his name and others (least adequate performers) on the list. (TR 265). He wrote a letter to Mr. Sylvia and had a meeting.' (TR 266). He believed Mr. Suri also had met with Mr. Sylvia. He wanted to take whatever steps were necessary to get his name off of the list. (TR 266). The list did not have rankings. (TR 267). There was no delineation between the 40% list and those in the ISEG rotation. (TR 269). He believed Mr. Sylvia spoke with someone on the review board, but did not know for sure. (TR 274).

Testimony of Paul Terry

    Mr. Terry chaired the 1993 and 1994 review committees that were established to examine people for rightsizing. (TR 282). Senior management made up the review board. (TR 286). In 1993 they cut 10% of the management workforce. However, their goal was to retain the best people. (TR 282). They reviewed those people whose jobs were abolished and those on a lower performance level. (TR 283).

    In 1993 Complainant's name was before the review board because he was in the lower 20%. (TR 284-285). They decided Complainant should stay in his position. (TR 285). In 1994 Respondent wanted a 20% reduction of the work force. As a result, they wanted management to list the lower 40% of each group as well as those positions to be abolished. (TR 287). It was decided that ISEG would be cut down from 9 positions to 5 positions. (TR 289). The 5 remaining positions had to be filled by engineers. (TR 289). At a Sunday meeting of senior management, Jim Spadafore was informed of the cuts. (TR 289).

    The review board voted 6 to 1 for moving Complainant into transition. (TR 291). Before the vote, they had forms on each employee that provided

information on the manager's evaluation, resume of experience, and a feedback form of the employee. (See RX-6 for the packet of information on Complainant that was used by the review board, and RX-7 for the packet of information on Darshan Suri). Along with verbal comments made by board members. (TR 292).

    Pat O'Brien was also before the review board. (TR 295). Complainant had been ranked 6th out of eight. (RX-6). Mr. Suri had been ranked 7th out of eight. (RX-7).

    The Complainant's explanation of why he was terminated supports his contention that his persistence in pursuing his safety complaints was the reason for the adverse action. The PR filed in 1991 is by itself proof of such action. The Complainant's continued pursuit of this safety problem was supported by his immediate supervisor Jim Spadafore.

    The Complainant relates in detail a discussion he had with Mr. Abbott as a result of his persistence. This confrontation in which the Complainant was threatened with termination if he did not drop the complaint is not denied by the Respondent. Mr. Abbott merely stated he does not recall any such confrontation; this cannot be considered a denial. The action taken against the Respondent starting after he again raised essentially the same issue in 1994 indicates a direct link between the warning and the termination action.

    These actions constitute proof of a prima facie case by the Complainant. The burden therefore shifts to the Respondent.

    The Respondent's counter argument is that the termination was motivated by a nondiscriminating action. In support of this the Respondent stated that there was a general downsizing called rightsizing that took place in 1993-1994 in an effort to streamline the utility and make it competitive with others in the power business.

    The fact that a general downsizing took place in the years 1993-1994 is not in dispute. According to the published criteria the targeted group consists of employees whose performance evaluations were in the lower 40%. In 1993-1994 the goal was to reduce the number of nuclear engineers. If an employee was not in the lower 40% he was not in danger of termination.

    The evidence establishes that the Complainant was repeatedly told that he was not in the targeted group. Any time he asked any of his superiors he was told he was not in jeopardy. No one ever told him he was in this group.

    The Respondent counters with several arguments. They say that the Complainant was in the lower 40% and was terminated strictly in accordance with the stated criteria. A second not wholly consistent position is that there were other nonpublished criteria that justified the firing of the Complainant.

    The first of these arguments is based on performance evaluation that shows the Complainant in the lower 40%. These evaluations were prepared during the last stage of the downsizing. There is no indication that they were ever communicated to the Complainant. They also include different handwriting. Most importantly they are totally inconsistent with the verbal assurances given to the Complainant.

    The document in question is RX6. A close look shows that there is no indication that this document was communicated to the Complainant or to his immediate

supervisor. It includes the statement that the position is not being right sized.

    The record is consistent in showing that the Complainant was told he was not in the lower 40% of the rankings. (TR 61, 62, 126). The question remaining is whether there is any other legitimate reason for terminating the Complainant.

    The Complainant received a letter from Mr. Sylvia dated March 15, 1994. (CX 11). Mr. Sylvia confirmed that the Complainant was not in the lower 40%. He stated the termination was due to the Complainant being included in an ISEG rotation. It noted that the decision to rotate employees was made after the downsizing was in progress.

    The Complainant received another explanation from Kathy Mills, a member of the Respondent's Human Resources Department. This letter said the Employee was being terminated because his position has been abolished.

    Ultimately the question in this case is one of credibility. The Complainant has shown that he raised important safety issues with which the Respondent disagreed. As a result he was threatened with loss of his position. The Respondent doesn't deny this, but merely states he can't recall the conversation. The Complainant has shown that he was repeatedly assured he was not in the group eligible for termination. The testimony of all witnesses confirms this position.

    The Respondent, on the other hand, has not shown why the Complainant was terminated. They have suggested several reasons, none of which is supported by the evidence. The record shows there was no rotation plan for ISEG engineers. There is also no evidence that the Complainant's job was abolished. The only performance evaluation showing the Complainant is in the lower 40% for 1994 is of no value because of its lack of consistency with other evidence.

    Based on the above the Complainant has proved his case and is entitled to damages.

Damages

    There is insufficient information in the record to assess complete damages. The parties are therefore given until April 15, 1996 to submit detailed statements of damages, including information about the value of all fringe benefits, separation payments and subsequent employment. After receipt of this information a Final Order will be issued by May 15, 1996.

       GERALD M. TIERNEY
       Administrative Law Judge

GMT/ir