DATE: September 29, 1995
CASE NO: 95-ERA-20
In the Matter of
ROBERT O. KLOCK,
Complainant
v.
TENNESSEE VALLEY AUTHORITY,
and
UNITED ENERGY SERVICES CORPORATION,
Respondents
Appearances:
Peter Alliman, Esq.
Robert Stacy, Esq.
Micaela Burnham, Esq.
For the Complainant
Brent R. Marquand, Esq.
Thomas F. Fine, Esq.
For the Respondent
Tennessee Valley Authority
Lawrence S. Kalban, Esq.
Carl Sottosanti, Esq.
For the Respondent
United Energy Services Corporation
Before: THOMAS M. BURKE, Administrative Law Judge
RECOMMENDED DECISION AND ORDER
This is a proceeding brought under the Energy Reorganization
Act of 1974 ("ERA"), 42 U.S.C. Section 5851, and the regulations
promulgated thereunder at 29 C.F.R. Part 24. These provisions
protect employees against discrimination for attempting to carry
out the purposes of the ERA or of the Atomic Energy Act of 1974,
as amended, 42 U.S.C.A Section 2011, et seq. The
Secretary of Labor is empowered to investigate "whistleblower"
complaints
[PAGE 2]
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.
Complainant, Robert 0. Klock, contends that he was
discharged from employment by respondents, Tennessee Valley
Authority ("TVA") and United Energy Services Corporation
("UESC"), because he engaged in protected activity, that is,
because he contacted the NRC regarding certain conditions and
acts by respondent TVA which he believed were unsafe or violated
NRC regulations.
The District Director of the Nashville, Tennessee, regional
office of the Employment Standards Administration, United States
Department of Labor, found after an investigation that
complainant was a protected employee engaging in a protected
activity and that discrimination was a factor in the termination
of his employment. Respondent TVA was ordered to restore
complainant to his prior or comparable employment and to repay
wages lost because of the job termination. TVA was also required
to pay to complainant the costs he incurred as a result of his
loss of income, and was ordered to cease all discrimination with
respect to complainant's compensation or conditions of employment
because of any action protected by the ERA.
Respondents timely appealed the Employment Standard
Administration's order to the Office of Administrative Law
Judges. A hearing was scheduled for March 14 and 15, in
Knoxville, Tennessee. The hearing was continued at the request
of complainant to allow him time to retain counsel.[1] The
hearing was rescheduled for April 4 and 5, 1995. The parties
were allowed thirty days after the receipt of the hearing
transcript to submit a post-hearing brief. The parties did not
receive a copy of the transcript until May 24, 1995. A joint
motion by Complainant and respondent TVA for an order extending
the period of time for submission of post-hearing briefs was
granted. Posthearing briefs of complainant and respondent TVA
were received on July 10, 1995. Respondent TVA submitted a reply
brief on August 1, 1995.
FINDINGS OF FACT
Complainant, Robert 0. Klock, was employed at TVA's Watts
Bar nuclear power plant in Tennessee from September 14, 1992
until his involuntary termination on July 5, 1994. He was
employed by UESC pursuant to an agreement between UESC and TVA
whereby UESC provided services of startup engineers to develop
and execute a comprehensive nuclear startup program at Watts
Bar.[2]
At the time complainant was hired at Watts Bar, and during
[PAGE 3]
his employment there, the plant was in the process of preparation
for commercial operation. To prepare for commercial operation,
TVA is required to test the plant systems to verify that the
systems' components meet safety design requirements.
Complainant's contract with UESC provided that he would work as a
Lead Engineer in the Startup and Test organization ("Startup").
Startup is a temporary organization responsible for the
preoperational tests; it will last only as long as is required to
bring the Watts Bar plant onto commercial operation. Because it
is temporary, Startup is staffed mostly by employees of several
different employment augmentation contractors including UESC.
TVA uses contract employees to do temporary work, rather than
hiring permanent employees, because the permanent employees will
become superfluous upon completion of the temporary work.
Complainant was such a contract employee.
Complainant has worked in the nuclear industry for
approximately 18 years, principally supporting startup tests in
nuclear power plants. His first nuclear industry employment was
in construction and startup at the Calvert Cliffs plant in
Maryland. He next worked at North Anna in Virginia for four
years as a general foreman responsible for startup tests. He
worked at Palo Verde in Arizona, where he conducted startup
activities. His job at Palo Verde continued after the initial
startup phase; he conducted startup testing for three years after
the plant became operational. He worked at Palo Verde for
approximately eight years. After Palo Verde, he worked at other
nuclear plants such as Trojan nuclear plant in Oregon, the River
Bend power station in Louisiana and the Peach Bottom Plant in
Pennsylvania, where he was the ILRT Coordinator and test
director. Complainant next returned to Calvert Cliffs for a
period of approximately a year and a half before accepting the
position with UESC at Watts Bar. Richard Daly, Jr., the startup
manager at Watts Bar until May, 1994, testified that he had known
complainant since they worked together at the North Anna nuclear
plant in the aid-1970s. He characterized the quality of the
complainant's work as excellent, and described complainant as
very dedicated, a hard pusher and very knowledgeable.[3]
Kenneth E. Miller, a consultant with the NRC, knows complainant
from complainant's work at Palo Verde and Watts Bar. Miller
described complainant as one of the best persons working on
startup procedures at nuclear plants.[4]
Complainant worked as a startup engineer in Startup's
Nuclear Steam Supply System ("NSSS") Group. His initial
assignments included the flushing and testing of component
systems. He described the flushing program as pushing and moving
water through all the lines to verify cleanliness of the safety
and non-safety related systems. In early 1994 complainant was
[PAGE 4]
assigned work with the local leak rate test ("LLRT"). The LLRT
is a test to verify that the containment isolation valves are
leak tight. Containment isolation valves prevent the escape of
contaminants in the event of an accident. At the request of
Daly, complainant also accepted responsibility as system engineer
for assuring the operation of the ice condenser system.[5] The
ice condenser system had been shut down and totally dismantled
approximately three years earlier.
Complainant subsequently worked on the integrated leak rate
test ("ILRT"). The flushing program and LLRT were programs
leading up to the ILRT, a "major milestone" with high
visibility[6] that has to be completed before the plant can
become operational. The ILRT involves pressure testing the whole
system. The ILRT was performed during the period June 22 through
29, 1994. Complainant was described as the key player in the
setting up of the leak rate tests by Daly and Keith Pierce, the
site manager for UESC personnel at Watts Bar. Daly described
complainant as being very knowledgeable in these valve testing
procedures. "He pushed every one of these procedures through the
necessary hoops to get them approved...he was the key man in that
damn thing." Daly often communicated directly with complainant
because he "didn't want to get anything scrambled.[7] Pierce
offered the opinion that complainant was more than anyone else
responsible for the success of the LLRT and ILRT programs. He
characterized complainant's work thereon as outstanding.[8]
Although complainant was employed by UESC, he was supervised
by TVA personnel. His immediate supervisor was Bill Bryant, the
test group lead for NSSS. Bryant reported to Daly, and after
Daly left Watts Bar in May of 1994, to Daly's replacement, Masoud
Bajestani. However, complainant only saw Bryant when dealing
with his work schedule or seeking approval of overtime. In
actuality, complainant looked to the group leader of the system
he was working on for direction on any problem that might arise.
Ken Clark was the group leader for the LLRT and ILRT programs.
The group leader reported to Dennis Koehl, Technical Support
Manager, who in turn reported to Bajestani.[9] Bajestani
reported to Site Vice-President John Scalice. Complainant's
contact with UESC was through Keith Prince, UESC's site manager.
Complainant reported several safety concerns to TVA
management and the NRC site inspector during the month of June,
1994. Complainant testified that problems arose in the LLRT,
ILRT and ice condenser system programs that he was responsible to
resolve, and if TVA people reacted inadequately, he would, at
times, call the problems to the attention of Miller, the NRC
inspector assigned to the LLRT and the ILRT. Complainant
testified to specific examples. His first reported contact with
the NRC occurred while he was systems engineer for the air lock
[PAGE 5]
tests. Complainant recommended that a containment air lock test
not be attempted because some design changes thought to be
necessary by complainant had not been completed. The test failed
as the leak rate was about four times the acceptable criteria.
In response to questions from Miller, complainant expressed
concern that the test had been attempted without the design
changes being made. Miller reacted by meeting with Bajestani and
Koehl to advise that TVA personnel should work closer with
complainant in the testing.[10]
The flushing program detected problems caused by organisms
growing in the water pipe lines. Complainant informed his TVA
supervisors that the organisms were able to grow because of
engineering deficiencies such as insufficient velocity of the
water used to flush the system that he believed allowed the
organisms to grow. TVA rejected complainant's advise for
correcting the problem and, instead, instructed complainant to
"accept as is." Complainant subsequently discussed the problem
of organisms in lines with Miller, the NRC inspector.[11]
During the heat exchanger thermal performance test program,
Miller sought out complainant's opinion on the type of
instrumentation that should be used, as Miller was aware that
complainant had experience with the test at other plants.
About one week prior to commencement of the ILRT,
complainant raised a concern about vents being open to
atmospheric contaminants during a valve alignment program
performed in preparation for the ILRT. Complainant thought
contamination through the open valves was a realistic concern
because of ongoing construction at the plant, including cutting
and grinding. Complainant voiced his concern at a daily work
group meeting while Miller was present. Miller then discussed
complainant's concern with Koehl and Jose Ortiz, the LLRT and
ILRT engineer who worked for Koehl. Complainant detected a
concern by TVA over why the NRC was addressing and raising all
these issues. Complainant was told by Ortiz and Clark that these
concerns that he had discussed with the NRC inspector were "non-
issues."[12]
The ILRT was scheduled to commence on June 22 or 23, 1994.
The test necessitated the proper alignment of approximately 700
valves. Early in the day on June 22, complainant identified a
closed valve that should have been open for the purposes of the
test. Complainant informed Clark of the closed valve at about
3:00 p.m. Clark responded that the valve was in the correct
position; that it wasn't a problem. Complainant raised the
problem again with Clark later that evening at about 7:00 p.m.,
but got no response. At the end of his shift, about 8:30 p.m.,
complainant informed Rocky Gilbert, the NRC inspector assigned to
the ILRT, of the closed valve. Gilbert replied that he would
[PAGE 6]
take care of it.[13] Miller testified that the reason
complainant contacted Gilbert was that complainant felt after
talking to Clark that Clark was not going to fix the problem and
he wanted to assure that the problem would be fixed.[14] When
the complainant returned to work at about 7:00 a.m. the following
morning, Miller was at complainant's desk, waiting for him.
Miller requested information on the closed valve, such as a copy
of the LLRT performed on the valve and available drawings and
flow diagrams. After discussion with complainant and a review of
the documents, Miller concurred that the valve should not be
closed. Then, complainant proceeded to Koehl's office with the
drawings to discuss the valve placement. However, Bajestani had
earlier been made aware of complainant's concern with the valve
placement and, prior to seeing complainant, had sent Lonnie
Farmer and one other TVA employee to look at the valve. They
reported that the valve alignment was correct and complainant was
wrong. Nevertheless, after a discussion between complainant,
Bajestani and Koehl, it was agreed that there was a problem. The
three of them decided to go and personally inspect the valve. On
the trip to the valve location they were joined by three NRC
inspectors, including Caudle Julian, chief inspector from NRC's
Atlanta office, who were proceeding to inspect the valve
themselves. The inspection revealed that the complainant was
correct; the valve alignment had to be changed. The inspectors
who had been sent to look at the valve alignment earlier that day
had inspected the wrong valve. A procedure change was written
and the valve alignment was changed that evening. The ILRT test
was delayed approximately 24 hours.[15]
Complainant testified that Koehl was angry because a problem
existed causing a delay in the ILRT and because TVA did not
initially identify the misalignment but had to be informed of it
by the NRC. Koehl testified that "[i]t was a very embarrassing
morning. I had to inform (the NRC) on three different occasions
of different problems we had..."[16] Miller testified that
Bajestani and the other TVA employees were embarrassed by
complainant bringing the misaligned valve to the attention of the
NRC.[17]
The ILRT was completed on Wednesday, June 29, 1994.
Complainant had previously discussed with Bryant, the NSSS lead,
the possibility of taking time off after completion of the ILRT.
Complainant had worked significant overtime on the ILRT; he had
already worked 63 hours by Wednesday of that week. He approached
Bryant on June 29th and received permission to take the rest of
the week off, through Monday, July 4. Complainant testified that
he also requested from Bryant permission to take off July 5
through 9, Tuesday through Friday, in the event he obtained
custody of his children. According to complainant's testimony,
[PAGE 7]
his intention was to leave on June 29, 1994 for Maryland where
his divorced wife and children resided. If he was able to obtain
custody of the children, he would take them to Disney World in
Florida. If he made the trip to Florida, he would not return to
the plant until Monday, July 11. Complainant testified that
Bryant granted his request to take off the four days, July 5
through 9. Complainant also told Prince before he left on his
vacation that he might need some "extra" time off because he felt
burnt out. Prince replied that complainant taking the time off
was alright with him.[18]
Complainant telephoned Prince, the USEC site manager, on
July 5 from Florida to inform Prince that he had gone to Florida
and would return to the plant on July 11, and to ask Prince to
relay the information to Bryant. Prince responded: "Have a good
vacation because you've worked all these hours."[19] Prince
immediately telephoned Bryant and relayed complainant's message.
Prince testified that Bryant expressed no surprise or concern; he
merely acknowledged the call, replied "okay" and "thanks for
calling." However, about one and a half to two hours later,
Prince received a telephone call from Bill Huffaker, the contract
administrator with the startup group, informing that complainant
was let go "because he took vacation without getting it cleared
up front."[20]
When complainant returned from his vacation on the evening
of July 10, he found a note placed on his door by a co-worker
neighbor stating that he had been fired.
Complainant telephoned Prince about 11:00 on the night of
July 10. Prince suggested that they meet at the plant in the
morning and together attempt to straighten matters out.
Complainant went to Prince's office the next morning. While
complainant was in his office, Prince telephoned Bajestani twice
and left messages, and telephoned Bryant once. Neither returned
his call. Complainant and Prince proceeded to Bryant's office.
Bryant informed them that when he told Bajestani on Wednesday
that complainant would not be at work until July 11, Bajestani
responded that if Bryant could get by without complainant, he
would let complainant go. Complainant asked if he could talk to
Bajestani. Bryant replied that he did not think Bajestani would
talk to him. Prince approached Bajestani on complainants behalf;
he asked Bajestani to please take a few minutes to talk to
complainant. Bajestani became irate and loud; he began hollering
that he wanted complainant off the site immediately. Prince
characterized Bajestani's demeanor as going "ballistic."
Bajestani described his temperament as "excited." Prince
returned and accompanied complainant to his desk. Bryant
appeared at complainant's desk and said that Bajestani had sent
him over to observe complainant cleaning out his desk.[21]
After
[PAGE 8]
complainant cleaned out his desk, Prince escorted him to the gate
and took his badge. On the way to the gate complainant expressed
the desire to talk to Employee Concerns, an organization
established by TVA to address employee safety concerns. Prince
responded: "That's fine, but you're going to do it from the
outside, make an appointment because if we don't get you off
site, security is going to come and make things ugly for us."[22]
Complainant left.
Complainant testified that as he was leaving, Bryant offered
to meet him later, off site. Bryant denies suggesting the
meeting. But, in any event, complainant and Bryant did meet at a
bar/restaurant outside the plant either later that evening or the
following evening. Complainant testified that Bryant told him
that he did not know why complainant was fired; that it was
Bajestani's decision. Bryant testified that he doesn't remember
any details of the conversation, but he denies that he would have
said he didn't know the reason since, at that time, he knew the
reason for complainant's termination, that is, unexcused absence.
Complainant contacted Employee Concerns by telephone the
afternoon of his firing. He received a return call the following
day from Keith Ackley, a TVA employee, who told complainant that
he was not fired. Complainant inquired of Ackley where he got
his information. Ackley called back two days later but was
informed by complainant that he had retained counsel and all
contacts would have to be through counsel.
Complainant testified that the first time he was given a
reason for his termination was when he applied for unemployment
compensation on July 14, 1994. He was told by the Tennessee
Unemployment Commission that the reason provided by TVA for
terminating his employment was absenteeism.
Prior to his termination complainant had worked for twenty-
two months at Watts Bar. During the twenty-two months he missed
only twelve work days. He was off five days for an operation and
seven days for trips to Maryland mandated by divorce proceedings.
Since his termination complainant has been unable to obtain
a job in the nuclear industry even though he has filed at a
minimum twenty job applications. He thought that two job
openings were particularly promising: at the Crystal River
Nuclear Plant doing startup testing and at the Milestone Nuclear
Plant in Connecticut for Cataract, an employment contractor.
However, both applications were rejected after the prospective
employers were made aware of complainant's employment and
termination at Watts Bar. Complainant accepted employment at the
end of October 1994 as a steamfitter with Steam Fitters Local 602
for M.W. Slosher installing and starting up HVAC (heating,
ventilation and air-conditioning) equipment. He was laid-off by
Slosser, but he found a position doing refrigeration work with a
[PAGE 9]
company from Buffalo, New York. Both of these positions paid
$21.49 an hour. His salary was $39.83 an hour plus $3.00 an hour
in benefits at Watts Bar.
MOTION FOR SUMMARY JUDGMENT
Respondent, United Energy Services corporation, moved at the
commencement of the hearing for summary judgment in its behalf
pursuant to Rule 56 of the Federal Rules of Civil Procedure.
UESC argues in its motion that there is no genuine issue of
material fact that UESC did not take any adverse action in
violation of the Act against the complainant.
The complainant concedes that UESC did not participate in
the decision to terminate the complainant from his position with
TVA on July 5, 1994, and that UESC did not discriminate against
complainant in violation of the ERA.[23] TVA does not dispute
complainant's concession.[24]
Respondent's motion was denied at the commencement of the
hearing for reason that UESC may be a necessary party to the
formulating of a remedy in the event that complainant is
successful in this claim since complainant was an employee of
UESC while working at TVA's Watts Bar plant. UESC again moved
for summary judgment post hearing. After reconsideration, UESC's
motion is granted. Jurisdiction vests in the Secretary under the
ERA to issue orders of abatement of violations of the ERA only to
employers who have violated the ERA. 29 C.F.R. 524.6(b)(2). As
UESC has not violated the ERA, the Secretary lacks jurisdiction
under the ERA to order UESC to undertake any action toward the
complainant. Moreover, a remedy can be formulated without
jurisdiction over UESC. TVA can be ordered to reinstate
complainant either as a contract employee of UESC or as its own
employee.
Accordingly, respondent UESC's motion for summary judgment
is granted. The complaint against UESC in dismissed.
PRIMA FACIE CASE
The requirements for establishing a prima facie case under
Section 210 of the ERA were set out by the Secretary of Labor in
Darty v. Zack Co. of Chicago, Case No. 82-ERA-2 (Sec'y,
April 25, 1983) slip op. at 8. They are: (1) the
complainant engaged in protected activity; (2) the complainant
was subject to adverse action; and (3) that the respondent was
aware of the protected activity when it took the adverse action
against him. The complainant must also present sufficient
evidence to raise the inference that the protected activity was
the likely reason for the adverse action.
PROTECTED ACTIVITY
Section 210 provides that:
No employer may discharge any employee or otherwise
[PAGE 10]
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)--
(A) notified his employer of an alleged violation
of this chapter or the Atomic Energy Act of 1954 (42
U.S.C.A. §2011 et seq.);
(B) refused to engage in any practice made unlawful
by this chapter or the Atomic Energy Act of 1954 (42
U.S.C.A. §2011 et seq.), if the employee
has identified the alleged illegality to the employer;
(C) testified before Congress or at any Federal or
State proceeding regarding any provision (or proposed
provision) of this chapter or the Atomic Energy Act of
1954 (42 U.S.C.A. §2011 et seq.);
(D) 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;
(E) testified or is about to testify in any such
proceeding or;
(F) assisted or participated or is about to assist
or participate in any manner in such a proceeding or
in any other 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. §5851.
Complainant has established that he engaged in protected
activity on at least five occasions.
The first protected activity was complainant's disclosure to
Miller, the NRC inspector, that TVA personnel had performed a
containment air lock test against complainant's recommendation
that it not be performed because design changes necessary for a
successful test were not completed. Miller reacted to
complainant's information by meeting with Bajestani and Koehl to
suggest that cooperation between complainant and other TVA people
be increased. Miller considered this incident as an example of
[PAGE 11]
poor cooperation. He testified:
A. For an example, the air lock test. [Complainant) told
Jose Ortiz and Ken Clark that the air lock is not ready to
test and [complainant] didn't want to go ahead and test it
because he expected it was going to fail. So Jose and Ken
Clark decided they were going to go out there and test that
air lock and see what happened. It failed.
Q. Okay.
A. If they had just waited until the necessary repair work
had been completed on the air lock, they probably would have
just done the test once. That's the kind of thing I'm
talking about.[25]
The second protected activity was complainant's informing
Miller that TVA personnel had rejected complainant's advice for
correcting a problem of organisms growing in the water pipe
lines. Complainant believed that the velocity of the water used
to flush the system was insufficient.
Complainant's discussion with Miller regarding the type of
instrumentation that should be used in the heat exchanger thermal
performance test program was a third occasion where he engaged in
protected activity.
The fourth occasion when complainant was engaged in
protected activity occurred about one week prior to commencement
of the ILRT program when complainant voiced a concern about vents
being open to atmospheric contaminants during a valve alignment
program. Complainant expounded on his concern during a daily
work group meeting while Miller was present. Miller's
recollection is that he subsequently discussed the contamination
problem with Ken Clark and Jose Ortiz.
Complainant's fifth engagement in protected activity
occurred on June 22, 1995, one or two days before the ILRT
program was scheduled to begin. Complainant informed Rocky
Gilbert, the NRC inspector assigned to the ILRT, of a closed
valve that should have been opened for the ILRT to be successful.
Complainant imparted the information to Gilbert because he had
earlier tried and failed to convince Clark, the ILRT group leader
that the valve was misaligned. Complainant's meeting the next
morning with Miller, wherein he persuaded Miller that the valve
was misaligned, his subsequent meeting with Koehl and Bajestani
to explain the problem, and his guiding of the group of Koehl,
Bajestani, and three NRC inspectors to inspect the valve, all
constitute protected activity.
ADVERSE ACTION
[PAGE 12]
Complainant was fired from his job by Bajestani on July 5,
1995, less than two weeks after he had engaged in protected
activity.
KNOWLEDGE OF PROTECTED ACTIVITY
Complainant must show that TVA had knowledge of his
protected activity at the time of the adverse employment action.
Hassell v. Industrial Contractors, Inc, Case No. 86-CAA-7
(Sec'y, Feb. 13, 1989).
On direct examination Bajestani testified that he did not
know that the complaint had raised any concerns with the NRC when
he made the decision on July 5, 1995 to fire complainant.[26]
However, complainant testified that he told Bajestani, Koehl and
Clark that he had reported the misaligned valve to the NRC. It
is undisputed that complainant led the impromptu inspection of
the valve and that the inspection group included Bajestani, Koehl
and three NRC inspectors.
Moreover, Bajestani admitted on cross-examination that he
knew on June 23 or 24, the day the ILRT test was completed and
ten or twelve days before he fired complainant that complainant
had informed the NRC about the misaligned valve.[27] Thus,
complainant has shown that TVA knew about his protected activity
at the time he was fired.
REASON FOR TERMINATION
Complainant has shown that he engaged in protected activity,
that he suffered an adverse action when he was subsequently
fired, and that TVA knew of the protected activity when it
terminated his employment. Complainant must, to establish a
prima facie case, present evidence to raise the inference
that the protected activity was the likely reason for the adverse
action. Dean Dartey v. Zach Company of Chicago, Case No.
82-ERA2, slip op., (Sec'y, April 25, 1983). Stack v.
Preston Trucking Co., Case No. 86-STA-22, slip op.,
(Sec'y, Feb. 26, 1987) and Haubold v. Grand Island Express,
Inc., No. 90-STA-10, slip op., (Sec'y, April 27,
1990).
Complainant was fired by Bajestani on July 5, 1994, less
than two weeks after complainant had contacted Gilbert, the NRC
inspector assigned to the ILRT, about the misaligned valve
because complainant became concerned when Clark, the group leader
for the ILRT, disagreed that the valve was out of alignment, and
less than two weeks after the complainant led the impromptu tour,
including Bajestani, Koehl and three NRC inspectors, to inspect
the valve, an incident which according to Koehl prompted "a very
embarrassing morning."[28] The firing was also less than four
weeks after Miller, the NRC inspector assigned to the LLRT and
ILRT, met with Bajestani and Koehl, to advise that TVA personnel,
particularly Clark and Ortiz, needed to work closer with
complainant in light of the failed leak rate test.
[PAGE 13]
This temporal proximity of the firing of complainant to the
protected activity is sufficient in itself to raise the inference
that the protected activity was the reason for the adverse
action. The Court of Appeals in Couty v. Dole, 886 F.2d
147 (5th Cir. 1989) held that the temporal proximity of "roughly
thirty days" is sufficient as a matter of law to establish an
inference of retaliatory motivation. See also the Secretary's
decision in Goldstein v. Ebasco Contractors Inc., Case No.
86-ERA-36 (Sec'y, April 7, 1992).
Moreover, complainant's value as an experienced and
conscientious employee raises an inference that the firing was
caused by retaliatory motivation because it is evidence that his
firing was motivated by reasons other than sound business
practice. As previously discussed, Daly, the startup manager,
characterized the quality of complainant's work as excellent and
described complainant as very dedicated, a hard pusher and very
knowledgeable. Daly extolled complainant's competence in the
valve testing procedures as "the key man in that damn thing."
Keith Prince, the site manager for UESC personnel, characterized
complainant's work as outstanding, and offered that complainant
was responsible, more than any one else, for the success of the
LLRT and ILRT programs. He also lauded complainant as the key
person in the leak rate tests. Miller, the NRC inspector,
considers complainant to be one of the best persons working on
nuclear plant startups. These acclamations suggest that
complainant was a valued employee whose termination would not
have been in the best interest of the respondent TVA.
RESPONDENT'S REASON FOR TERMINATION
As the complainant has established a prima facie
case, TVA 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,
nondiscrimatory 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. Texas Dep't of Community Affairs v.
Burdine, 450 U.S. 248, 254-255 (1981). Dartey v. Zack
Company of Chicago, Case No. 82-ERA-2 (Sec'y, April 25 1983).
Once a respondent satisfies its burden of production, the
complainant then may establish that respondent's proffered reason
is not the true reason, either by showing that it is not worthy
of belief or by showing that a discriminatory reason more likely
motivated respondent. Shusterman v. EBASCO Services,
Inc., Case No. 87-ERA-417 (Sec'y, Jan. 6, 1992).
Respondent proffers that complainant was fired by Bajestani
on July 5, 1994 because Bajestani received information that
complainant was scheduled to be at work but was in Florida and
[PAGE 14]
would not be back for another week.[29] Bajestani testified
that he terminated complainant because of a combination of lack
of showing up for work, the test was completed, and unauthorized
use of overtime.[30]
ABSENCE FROM WORK
Absence from work with or without leave was out of character
for the complainant. During the twelve months complainant had
worked at Watts Barr, he had taken off only twelve work days;
five days for an operation and another seven days when he had to
return to Maryland for divorce proceedings.[31] Commencing in
April of 1995, complainant was working between 60 to 100 hours a
week because of the added demands of the ice condenser system to
his work on the LLRT and ILRT programs. Daly applauded
complainant's work ethic: "He must have worked hundred of hours
without ever a complaint. And many a time, I would just tell
him, 'Bob, you've got to -- you're going to have to work the
weekend again'. He never once ever buckled under working
additional hours...He worked day in and day out and made the
schedule on the testing, which was an extremely tight
schedule.[32]
None of the witnesses who were questioned about
complainant's work conduct believed that complainant was the type
of employee who would, without leave, simply fail to report to
work. Richard Camp, vice-President of UESC with the
responsibility for implementing the contract with TVA, testified
that he was surprised at the reason for complainant's
termination. He was not aware of anything in complainant's work
history to indicate that complainant would not show up for work.
Steven Poulsen, a test group supervisor at Watts Bar, testified
that complainant is a dependable, excellent worker who always got
the job done.[33] Bryant opined that complainant is the type of
person who you could count on to meet his work schedule. Prince
testified that complainant presented no problem regarding
absenteeism. Prince elaborated that when the complainant was
absent for the operation on his leg and the divorce proceedings,
he requested the time off.[34] Even Bajestani admitted that
prior to July 5, he did not consider complainant to be an
absenteeism problem.[35]
It is illogical that an employee with complainant's
reputation as a dependable and excellent worker, and a track
record of taking minimal time off while working many hours of
overtime without complaint, would be fired for being absent
without leave, without being given the opportunity to explain his
absence.
Also, the hostile reception accorded complainant by
Bajestani when he returned with Pierce "to attempt to straighten
matters out" reflects more than a concern over an employee's
failure to inform his supervisor about taking time off. When
[PAGE 15]
Pierce told Bajestani that complainant was at the plant and
wanted to talk to him about the matter, Bajestani not only
refused to see complainant but became irate. Bajestani described
his demeanor as excited. Pierce described the scene:
A. ... And when Mr. Bajestani came in -- excuse me -- I
asked him to please take a few minutes to talk to
[complainant] and see if we couldn't get it rectified.
Q. And what was Mr. Bajestani's reaction?
A. He went ballistic on me.
Q. What do you mean, "he went ballistic"?
A. He started yelling, high voice, "Get him out of here.
Get him out of here. I do not want to see him. I don't
have anything to say to him. If you don't get him put of
here, I'll have security escort him off site."
Q. Were you able -- From your observations at that point
in time, what was Bajestani's attitude toward
[complainant].
A. I've never seen anyone have an attitude like that in my
whole life. To my knowledge, he had done nothing --
[complainant] had done nothing. At the worst, it was take
time off without asking. And I've never seen anybody react
to that like Bajestani did.[36]
Bajestani testified that the reason he became excited at
complainant's presence at the plant was because complainant's
presence after his termination was a security violation.
Bajestani's explanation is not accepted. Surely, an
accommodation could have been made for an employee, who returns
from a vacation to find his job terminated without warning, to
appear at his job site to discuss the reasons for his termination
and retrieve his personal belongings.
Bajestani's anger at complainant could not have resulted
from complainant leaving behind unfinished work that only
complainant was capable of completing. Bajestani testified that
the ILRT was completed as of July 11 and other test engineers
were present to write up the test results. Miller reported to
the DOL investigator that, in his opinion, there was no way that
complainant could have been needed during the time that he was
off, and "If I was his supervisor [I) would have told him to take
off and have a good time."[37] Miller explained that the basis
for
[PAGE 16]
his opinion was that the test results weren't available during
the time complainant was off.[38]
Complainant testified that when he requested time off from
Bryant on June 29, 1994, his request was for the periods June 30
and July 1, and July 5 through 9. Bryant contends that
complainant only mentioned June 30 and July 1. Acceptance of
this miscommunication or misunderstanding as the rationale for
complainant's termination and the reason for the hostility of
Bajestani toward complainant, in light of the aforesaid testimony
of complainant's expertise and reputation as a worker, would be
irrational. Accordingly, TVA's stated reason that complainant
was terminated because he took leave without receiving prior
approval is determined to be pretextural.
UNAUTHORIZED OVERTIME
Bajestani testified that a factor in his decision to
terminate complainant's employment was complainant's use of
unauthorized overtime.
Bryant was the test group supervisor. He testified that
every week he would submit a request to Bajestani for overtime
for the employees under his supervision. His request was based
on his experience on the hours needed to do a particular job.
Bajestani would approve the request or reply by setting a lower
number of hours. All the employees, including complainant, at
times worked more overtime hours than the number approved by
Bajestani.[39] Bryant testified that there was no doubt that
complainant worked those hours, and that complainant could
explain the need for doing so. Bryant testified further that he
warned complainant that the consequence of working the higher
number of hours was that complainant would have to explain the
need to Bajestani.[40] Complainant was always paid for the
hours that he worked.
Bajestani started at Watts Bar in early May, 1994, about
eight weeks before he fired complainant. Bajestani testified
that during the eight weeks that both he and complainant worked
at Watts Bar, complainant worked more overtime than he was
authorized. However, Bajestani was unable to identify those
weeks, and he admits that on the two occasions when complainant
requested extra overtime from him, he granted the requests.[41]
His predecessor as the Startup and Test Manager was Daly. Daly
testified that he never had any problem with complainant working
unnecessary overtime, but rather, "Usually the shoe was on the
other foot."[42]
Prince's duties as the site manager for UESC at Watts Bar
included bringing on new UESC employees, letting go employees
dismissed by TVA, and working out any performance problems by
UESC employees. He testified that no concern was ever expressed
to him about complainant working unnecessary hours, and that if
[PAGE 17]
any such concern had been expressed to him, "we would have
cleared that up right away."[43]
Bajestani's testimony that complainant's working of
unauthorized overtime was a reason for his termination is not
creditable. Complainant was never informed by Bajestani, Bryant
or any one else that the number of hours he was working was
placing his job at risk. Bajestani never told complainant that
there was a problem with him working more than the allotted
overtime hours, even though complainant on two occasions
requested authorization of additional overtime hours.
COMPLETION OF THE WORK
Bajestani's testimony that one of the reasons for the
termination of complainant's employment was the completion of the
ILRT is contradicted by the abrupt action he took in terminating
complainant's employment. Complainant's termination is
inconsistent with Bajestani's testimony that contract employees
are given a one or two week notice of termination as their work
nears completion.[44]
Accordingly, it is determined that the complainant has met
his burden of showing that TVA's proffered reasons for his firing
are pretextural. He has shown by the clear preponderance of the
evidence that those reasons, as enumerated by Bajestani, did not
actually motivate his discharge. See Manzer v. Diamond
Shamrock Chemicals Co., 29 F.3d 1078 (6th Cir. 1994); and
Shusterman v. EBASCO Services, Inc., supra.
TVA's termination of complainant's employment was a
deliberate retaliation for his contacts with the NRA.
DELIBERATE VIOLATION
TVA argues that complainant should be denied relief under
this claim because he deliberately violated an NRC regulation.
TVA does not contend that the violation was a reason for
complainant's employment termination but rather cites subsection
(g) of the ERA, 42 U.S.C. §5851, for the proposition that
the employee protection provisions of the ERA shall not apply
with respect to any employee who deliberately causes a violation
of any requirement of the Act.
TVA contends that complainant initialed a statement
verifying a final valve alignment even though he knew the valve
alignment and the procedure to be incorrect. In support, TVA
refers to TVA Exhibits 16 and 17 where complainant's initials
"verify that a final valve alignment verification has been
performed."
TVA's argument is rejected. TVA has not shown that
complainant deliberately submitted inaccurate information. To
the contrary, this case arises, at least in part, because TVA in
the person of Ken Clark refused to accept complainant's warning
that the very same valve was misaligned, thereby inducing
[PAGE 18]
complainant to bring the misaligned valve to the attention of
Rocky Gilbert, the NRC inspector.
Complainant testified that his initials on the statement
were intended to verify that the penetration, as written in the
procedure, was correct, not that he physically inspected the
alignment of all 700 valves. Complainant insists that he took
the appropriate steps for a situation where the procedure was
technically correct but the actual alignment was wrong. He
initialed the procedure verification form, verifying that the
procedure was technically correct, and then contacted the test
director and told him of the misalignment, contacted the test
director a second time, and upon finding that the misalignment
was not corrected, contacted the NRC.[45]
Clearly, this record does not support a finding that the
complainant deliberately submitted information to TVA regarding
the misaligned valve that he knew to be incomplete or inaccurate.
DAMAGES
42 U.S.C. §5851(b)(2)(B) provides that once
discrimination that is prohibited by the Act is found:
... the Secretary shall order the person who committed such
violation to (i) take affirmative action to abate the
violation, and (ii) reinstate the complainant to his former
position together with the compensation (including back
pay), terms, conditions, and privileges of his employment,
and the Secretary may order such person to provide
compensatory damages to the complainant. If an order is
issued under this paragraph, the Secretary, at the request
of the complainant shall assess against the person against
whom the order is issued a sum equal to the aggregate
amount of all costs and expenses (including attorneys and
expert witness fees) reasonably incurred, as determined by
the Secretary, by the complainant for, or in connection
with, the bringing of the complaint upon which the order
was issued.
The Court in Deford v. Secretary of Labor, 700 F.2d
281 (6th Cir. 1983), interpreted the above-quoted section as
permitting an award of reinstatement to a former job; restoration
of all back pay, benefits and entitlements; compensatory damages
insofar as they are thought to be appropriate; and reasonable
attorney fees and costs.
REINSTATEMENT
The Secretary has adopted for ERA cases the "long accepted
rule of remedies that the period of an employer's liability ends
when the employee's employment would have ended for reasons
independent of the violation found." Francis v. Bogan,
Case No.
[PAGE 19]
86-ERA-8 (Sec'y, April 1, 1988). Complainant requests that he be
reinstated to his former job. However, as a contract employee
with TVA, he was hired by UESC under a contract between UESC and
TVA whereby UESC agreed to provide startup engineering services
at Watts Bar. Thus, complainant is entitled to reinstatement for
only so long as he would have remained employed with TVA absent
the discriminatory firing.
A finding of intentional discrimination shifts the burden of
proof to the defendant in the damage phase of this type of case.
Woolridge v. Marlene Industries Corp., 875 F.2d 540, 546
(6th Cir. 1989). Once intentional discrimination in a particular
employment decision is shown, the Courts have held that the
disadvantaged applicant should be awarded the position
retroactively unless the defendant shows by clear and convincing
evidence that even in the absence of discrimination the rejected
applicant would not have been selected for the open position.
League of United Latin American Citizens v. Salinas Fire
Department, 654 F.2d 557 (9th Cir. 1981). Victims of
discrimination are entitled to a presumption in favor of relief;
because "recreating the past will necessarily involve a degree of
approximation and imprecision." Woolridge, supra., at
546.
At the time complainant was hired in September of 1992, he
considered the plant to be about three years away from completion
of the start up phase. He envisioned about ten years of work
available at Watts Bar, considering start up and operation, but
he realistically anticipated only three to five years of
employment.[46]
When complainant left on June 29, 1994 on leave, he
understood that upon his return he would resume his duties with
the ILRT where there was "a lot of testing to be done," including
the plant monitoring instrumentation which would take about
another two months of work, and he would continue with his duties
as the systems engineer for the ice condenser system, which had
"an extensive amount of work and testing to be done."
Complainant was also under the impression from a discussion he
had with Bajestani that upon completion of his work with the
ILRT, he would be assigned to work with the Heating, Ventilation
and Airconditioning ("HVAC") section of the start up phase, which
at that time was working seven days a week, twelve hours a day.
Complainant testified that he was told by Bajestani that the
remaining work he had with the air condenser system would not
preclude his assignment to the HVAC section.[47] TVA had
personnel from Startup doing HVAC work at the time of the
hearing.[48]
Steven Poulson, a group supervisor in Startup and Test,
testified that he was present for discussions among Bajestani,
Bryant and others to the effect that complainant and his group
would be moved back to HVAC after the ILRT was completed. The
[PAGE 20]
move was to be made because of vacancies in HVAC and availability
of people after completion of the ILRT.[49] Prince testified
that he was informed by complainant and an unidentified co-worker
that Bajestani disclosed to them that he intended to switch the
LLRT personnel over to HVAC work.[50]
Bajestani denied making a commitment to complainant that he
would be assigned to the HVAC section upon completion of the ILRT
work. Bajestani agreed that the HVAC section needed additional
help but he testified that he would not have assigned complainant
there because when he asked the supervisor of that section, John
Ferguson, if he needed complainant, Ferguson told him that "he
doesn't need complainant because he's not a good worker,
something to that fact (sic)."[51] Ferguson testified that he
never told Bajestani that complainant was not a good worker.
Rather, he testified that he told Bajestani that he did not want
complainant to work for him in the HVAC section because
complainant was "arrogant and headstrong." Ferguson had become
section supervisor on June 16, 1994, only about two weeks before
complainant went on leave. He had minimal dealings with
complainant; he knew him only by reputation from general office
conversation.
James Bible is an electrical and instrumentation test group
supervisor with the Start up and Test organization. Complainant
testified that Bible was present at the meeting between Bajestani
and himself in June of 1994 where HVAC testing was discussed.
Bible's recollection of the meeting was that Bajestani informed
complainant that the next major test would be the HVAC. He does
not recall Bajestani stating that he would move complainant and
his group to the HVAC.[52]
Complainant was hired under a contract to provide
engineering services during the startup phase. It is determined
that TVA has not shown that the complainant's employment at Watts
Bar would have terminated prior to the completion of the startup
phase. Bajestani's testimony that he would not have retained
complainant to work on the HVAC system is not credited. His
testimony regarding the reason for complainant's termination on
July 5 was found to be pretextural. For that reason, his
testimony that complainant would have been terminated rather than
assigned HVAC work is considered suspect. Moreover, his
testimony is inconsistent with the statement he provided to the
Wage and Hour Investigator on January 11, 1995. Bajestani told
the Wage and Hour Investigator who investigated complainant's
complaint that "if the incident hadn't happened", complainant
would have continued at Watts Bar through November, 1994 working
on the HVAC system.[53]
Ferguson's discussion with Bajestani wherein he described
complainant as headstrong and arrogant was subsequent to
[PAGE 21]
complainant's activities as a whistle blower. Ferguson's
characterization was based not on personal experience but rather
on conversations with others. Those opinions could very well
have reflected a disapproval of complainant's approaching the NRC
inspectors. Ferguson himself expressed the concern that a safety
matter should be first discussed with the two immediate levels of
supervision before being reported to the NRC.[54] TVA has not
shown that the testimony of Bajostani and Ferguson, to the effect
that complainant would not have been retained through the startup
phase to do HVAC work, was not affected by complainant's
reputation as a whistleblower.
Accordingly, it is ordered that the complainant shall be
reinstated so long as TVA continues to employ contract workers
performing startup engineering services at Watts Bar.
BACK PAY
Complainant calculates a loss of pay and benefits resulting
from the discriminatory firing from July 11, 1994 through April,
1995 to be $106,192.00. TVA does not contest these calculations.
From July 11, 1994 through the date of hearing the complainant
earned $6,801.59. Those earnings are subtracted from the
complainant's loss of wages. Complainant is entitled to a loss
of pay and benefits up to the time of hearing in the amount of
$99,390.41 ($106,192.00 - $6,801.59 = $99,390.41).
Complainant is also entitled to back pay and benefits until
reinstatement or until TVA's use of contract workers in the start
up phase is completed. Both parties shall within thirty days
supplement the record with evidence of additional loss of back
pay and benefits from the date of hearing until the present.
PER DIEM
Complainant requests that he be reimbursed for the per diem
he would have received had he continued to work at Watts Bar.
Complainant received per them of $45.00 a day because of his
status as a contract employee. Complainant's request for per
them is denied. The purpose of the per them was to defray the
expenses of living in Tennessee while working at Watts Bar.
Without the job, complainant does not have the extra expense of
keeping up a temporary residence away from his permanent home.
INTEREST
Complainant is entitled to prejudgment interest on back pay
and benefits, calculated in accordance with 29 C.F.R. 520.58(a)
at the rate specified in the Internal Revenue Code, 26 U.S.C.
§6621.
COMPENSATORY DAMAGES
Complainant testified that the lose of his job with TVA on
July 5, 1994 and the resulting loss of income resulted in his
inability to make the mortgage payments on his house in Walford,
Maryland, the finance payments on his 1992 Mazda automobile and a
[PAGE 22]
boat. His failure to keep up the payments on his house resulted
in its sale by foreclosure and his inability to make the payments
on the car and boat resulted in their repossession.
The foreclosure and repossession resulted from complainant's
loss of income after he was fired by Bajastani. Thus, the loss
of the house, car and boat constitutes damages that complainant
should be compensated for in order that he be made whole.
Complainant's Exhibit 4 shows that the amount of money
distributed to the mortgage holder after the foreclosure sale,
$131,212.04, was $40,158.25 less than the amount complainant and
his wife owed the mortgage holder, $171,370.29. Thus,
complainant suffered compensable damages in the amount of the
$40,156.25 deficiency judgment obtained against complainant and
his wife as a direct result of complainant's loss of job.
Complainant, however, has failed to sufficiently document
other losses. Complainant testified that the fair market value
of the house is $20,000.00 more than the amount he owed on his
mortgage. However, the only evidence complainant offered on the
fair market value of his house was his own testimony.
Complainant testified that he was knowledgeable about the fair
market value because he had an appraisal performed about one year
earlier when he refinanced his home. Complainant's testimony on
fair market value was allowed over the objection of TVA on the
condition that a copy of the appraisal be submitted post-hearing.
No appraisal of the value of the home was submitted.
Complainant's Exhibit 5 shows that complainant was in
default in the amount of $10,277.91 to Mazda American Credit on
October 11, 1994. Complainant testified that he was in default
that amount when the car was repossessed. Although complainant
estimated the purchase price of his car to be about $26,000.00,
he offered no evidence of the value of the Mazda when it was
repossessed. Without such evidence, complainant's loss cannot be
calculated.
Claimant argues that he lost $30,000.00 in equity when his
boat was repossessed, that he incurred $3,500.00 in legal fees
when he was unable to keep up his child support payments. He
also argues that because of the loss of income after his firing
he incurred increased costs of living of $2,800.00, increased
transportation expenses to work of ,228.50, travel expenses and
time off from work to pursue this claim in the amount of
,750.00, and costs from physical injuries and emotional
problems. However, these damages are not documented or otherwise
adequately supported by the evidence. Complainant not only has
the burden of showing that damages exist with reasonable
certainty but also of documenting the amount of such damages.
Prunty v. Arkansas Freightways, Inc., 16 F.3d 649 (5th
Cir. 1994).
[PAGE 23]
Accordingly, a second hearing devoted solely to damages will
be convened to allow complainant an opportunity to meet his
burden of proving those compensatory damages he sustained, other
than back pay and interest thereon which he has already proven.
Nolan v. AC Express, Case No. 92-STA-37 (Sec'y, Jan. 17,
1995).
ORDER
IT IS HEREBY ORDERED that a hearing will be conducted in
this matter solely on compensatory damages sustained by
complainant on Tuesday, October 31, 1995 at 9:00 a.m. at the
following location:
U.S. BANKRUPTCY COURT
PLAZA TOWER
SUITE 1501
800 SOUTH GAY STREET
KNOXVILLE, TENNESSEE 37929
The parties shall exchange, by mail, copies of all documents
that the party expects to offer into evidence at the hearing on
compensatory damages on or before October 26, 1995.
RECOMMENDED ORDER
IT IS HEREBY RECOMMENDED THAT:
1. Respondent United Energy services Corporation's Motion for
Summary Judgment be granted;
2. The complaint against Respondent United Energy Services
Corporation be dismissed;
3. Respondent Tennessee Valley Authority be ordered to:
A. Reinstate complainant, Robert 0. Klock, either as a
contract employee or its own employee for, at a minimum, so long
as Respondent Tennessee Valley Authority continues to employ
contract workers performing startup work at Watts Bar;
B. Pay to complainant back pay in the amount of
$99,390.41;
C. Pay to the complainant interest on the back pay from the
date the payments were due as wages until the actual date of
payment. The rate of interest is payable at the rate established
by section 6621 of the Internal Revenue Code, 26 U.S.C.
§6621; and
D. Pay to complainant all costs and expenses, including
attorney fees, reasonably incurred by him in connection with this
proceeding. A service sheet showing that service has been made
upon the respondents and complainant must accompany the
application. Parties have ten days following receipt of such
application within which to file any objections.
THOMAS M. BURKE
Administrative Law Judge
NOTICE: This Recommended Decision and order and the
administrative file in this matter will be forwarded for review
by the Secretary of Labor to the Office of Administrative
Appeals, U. S. Department of Labor, Room S-4309, Frances Perkins
Building, 200 Constitution Avenue, NW, Washington, DC 20210. The
Office of Administrative Appeals has the responsibility to advise
and assist the Secretary in the preparation and issuance of final
decisions in employee protection cases adjudicated under the
regulations at 29 C.F.R. Parts 24 and 1978. See 55 Fed. Reg.
13250 (1990).
[ENDNOTES]
[1] The complainant's request for a continuance and subsequent
request for an opportunity to submit a post-hearing brief were
considered as constituting a waiver of the speedy decision
provisions of 29 C.F.R. §24.3-24.6.
[2] Complainant's Exhibit 2, Attachment A.
[3] Complainant's Exhibit 8; Deposition of Richard Daly, Jr.
March 24, 1995, p. 9.
[4] Complainant's Exhibit 6; Deposition of Kenneth E. Miller,
March 23, 1995, pp. 38-39.
[5] The ice condenser system is a safety system whereby steam
from a line break contacts ice which floods and cools the
containment to prevent containment pressure from exceeding design
pressure. N.T. pp. 55-56.
[6] N.T. p. 89.
[7] Complainant's Exhibit 8; Deposition of Richard Daly, Jr.
supra, pp. 9-11.
[8] Complainants Exhibit 9; Deposition of Keith Prince, March 24,
1995, p. 9. Keith Pierce was involved in the LLRT and ILRT
programs in an administrative capacity. He attended all the
meetings, kept all the records, and made sure all the paperwork
was filled out and turned in properly.
[9] N.T. p. 59.
[10] N.T. pp. 17, 59, 60.
[11] N.T. p. 61.
[12] N.T. pp. 64-66.
[13] N.T. p. 75.
[14] Complainant's Exhibit 6; Deposition of Kenneth Miller,
supra, p. 29.
[15] N.T. pp. 85-87.
[16] N.T. p. 391.
[17] Complainant's Exhibit 6; Deposition of Kenneth Miller,
supra, p. 30.
[18] N.T. p. 12.
[19] N.T. p. 102.
[20] Complainant's Exhibit 9; Deposition of Keith Prince,
supra, pp. 14-15.
[21] N.T. p. 18.
[22] N.T. p. 22.
[23] N.T. pp. 7-9.
[24] Id.
[25] N.T. p. 57.
[26] N.T. p. 638.
[27] N.T. pp. 689-690.
[28] N.T. p. 391.
[29] See Repondent TVA's Posthearing brief, p. 19.
[30] N.T. p. 652.
[31] N.T. p. 121.
[32] Complainant's Exhibit 8; p. 10.
[33] N.T. p. 250.
[34] Complainant's Exhibit 9; Deposition of Keith Prince,
supra, P. 10.
[35] N.T. p. 649.
[36] Complainant's Exhibit 9; Deposition of Keith Pierce,
supra., pp. 17-18.
[37] Complainant's Exhibit 6; Deposition of Kenneth Miller,
supra, p. 45.
[38] Id.
[39] See Attachment A to Complainant's post-hearing brief showing
the identity of twenty-five workers who worked additional hours
than those approved by Bajestani.
[40] N.T. p. 47.
[41] N.T. pp. 657-658.
[42] Complainant's Exhibit 8; Deposition of Richard Daly, Jr.,
supra, p. 10.
[43] Prince testified that it was necessary for the complainant
to work the overtime in order to complete his assignments:
Q. Could you explain to the Administrative Law Judge why it
was necessary, if it was, for [complainant) to work long hours
during the pre-test Watts Bar situation.
A. The schedule was so tight in conjunction with the number
of problems that they found. In almost every piece of equipment
that was tested we would find problems because you understand,
our equipment is many, many years old. It's not like the new
equipment right now. And in order to meet the schedule and stay
on target, he had to work that many hours. Complainant's Exhibit
9, Deposition of Keith Prince, March 24, 1995, p. 9.
[44] N.T. p. 651.
[45] N.T. pp. 712-714.
[46] N.T. pp. 52-53.
[47] N.T. p. 99.
[48] N.T. p. 279.
[49] N.T. pp. 251-252.
[50] Complainant's Exhibit 9; Deposition of Keith Prince, supra,
pp. 19, 27.
[51] N.T. p. 635.
[52] N.T. pp. 313, 324.
[53] N.T. pp. 679-682.
[54] N.T. p. 277.
