Close examination of the record, however, reveals that the low rating Jones received for the "Integrity and Trust" competency was not necessarily inconsistent with his mid-year evaluation. Prior to receiving his mid-year performance evaluation, Jones completed an "Employee Mid-Year Progress Assessment Input" form on January 12, 2000. CX 9. As previously discussed, this self-assessment form contained five performance factors, one of which is entitled "High Quality Human Resources." One of the components of this performance factor is "Ethics Program Compliance." Jones assessed his performance in complying with this component by writing: "No indication that ethics, honesty and integrity were in question." Id.
When Fowler later wrote Jones's mid-year evaluation in early February, he noted in the "High Quality Human Resources" performance factor section that Jones's "integrity and honesty are ‘NEVER' of question." CX 10. It appears that Fowler may only have been responding to Jones's earlier self-assessment that, with respect to complying with the company ethics program, his "ethics, honesty and integrity" were not in question. In any event, Fowler was not rating Jones on ethics, or honesty, or integrity independently, but rather was evaluating ethics program compliance.
When Starkey, Bucy, and Fowler prepared the RIF Candidate Selection Comparative Summary three months later, however, they did rate Jones on "Integrity and Trust." This competency was defined: "Is widely trusted; is seen as a direct, truthful individual; can present the unvarnished truth in an appropriate and helpful manner; keeps confidences; admits mistakes; doesn't misrepresent him/herself for personal gain." CX 21(b).
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While the mid-year report includes a component pertaining to complying with the company ethics program, it did not require that a supervisor evaluate an employee's integrity and trust as those terms were defined for the RIF summary. The fact that Fowler favorably used the words "ethics, honesty and integrity" in February 2000 and then three months later contributed to the low consensus rating for "Integrity and Trust" thus does not establish that Fowler was necessarily inconsistent in his judgment of Jones, let alone that he was retaliating because of protected activity. And even if Fowler had actually been rating Jones for integrity and trust on the February mid-year report, and not merely been responding to Jones's own assessment of his integrity, he was not overly impressed. Fowler gave Jones only a "meets goals/expectations" rating in the pertinent area of performance. Finally, since Jones's RIF rating for "Integrity and Trust" represented a consensus of the three managers, we cannot find that the consensus view was necessarily inconsistent with Fowler's earlier "meets goals/expectations" opinion, since the former rested on the assessments and experiences of all three and was produced following an opportunity for discussion, while the latter reflected Fowler's solitary experience and view at an earlier time.
Furthermore, the record supports the "2" ("weakness") rating for "Integrity and Trust." "Integrity and Trust" means, in part, that an employee "admits mistakes." CX 21(b). Starkey was unequivocal about his experience with Jones's shortcomings in this area:
Q: Did Mr. Jones ever admit any mistakes to you, personal mistakes of his?
A: No, sir. All I heard for the most — I don't remember ever hearing that. What I kept hearing was I can't do this. I don't have this. I don't have that. Nobody will help me with this. All I heard was just excuse after excuse after excuse after excuse.
TR at 287. Therefore, Jones's "Integrity and Trust" rating did not clearly contradict his earlier mid-year evaluation.
On the other hand, we agree with the ALJ that the USEC managers rated Jones too low on the "Knowledge of rules and regulations" functional/technical competency when they gave him a "1" ("minimum proficiency"). Craven received a "3" ("exceeds expectations"), the next highest rating above a "1." The record supports the ALJ's finding that Jones was strong in this area. R. D. & O. at 39; TR at 48, 50, 171-72. Similarly, a preponderance of the evidence supports the ALJ's finding that Jones demonstrated creativity. Thus, we find USEC managers rated Jones too low on the "Creativity" competency when they gave him a "2" ("weakness"). See TR at 87, 161-163; CX 4. Craven received a "5" ("towering strength"), and deservedly so. See TR 286-289; JX 1 at 50-51.
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Nevertheless, the fact that the USEC managers unjustifiably rated Jones only marginally below Craven in one of the 15 RIF criteria and three grades below Craven in another category, in which Craven excelled, does not compel us to infer that USEC discriminated because of protected activity. See St. Mary's Honor Center, 509 U.S. at 511, 519, 524. To prevail, Jones still must show by a preponderance of the evidence that Starkey, Bucy, and Fowler gave him a lower overall RIF score than Craven because of his protected activity. Jones did not make this showing.
CONCLUSION
We DENY Jones's complaint because he has not demonstrated that USEC discriminated against him and thus violated the ERA. That is, Jones did not prove by a preponderance of the evidence that his protected activity contributed to USEC's decision to RIF him, rather than Craven. This record does not support Jones's theory that his managers set him up for termination by not training him properly, assigning Craven to the MIE program, ignoring him, and using an unfair, subjective method to evaluate him.
But even if Starkey, Bucy, and Fowler did not properly train Jones and did in fact shun him and unfairly evaluate him because they wanted Craven to run the MIE program, Jones would not prevail. He still must prove by a preponderance of the evidence that the USEC managers retaliated because of his protected activity, not because they preferred Craven. That USEC's reason for terminating Jones's employment might be unpersuasive or even "obviously contrived" does not mean that Jones succeeds here. "It is not enough . . . to disbelieve the employer; the factfinder must believe the plaintiff's explanation of intentional discrimination." St. Mary's Honor Center, 509 U.S. at 519, 524. See also Gale v. Ocean Imaging and Ocean Resources, Inc., ARB No. 98-143, ALJ No. 1997-ERA-38, slip op. at 13 (ARB July 31, 2002) (We are not a "super-personnel department that reexamines an entity's business decisions," citing Morrow v. Wal-Mart Stores, Inc., 152 F. 3d 559, 564 (7th Cir. 1998)).
Finally, because we have ruled against Jones, we need not decide the Complainant's Motion for a Stay of Execution, Motion to Enforce ALJ Order, and Revised Motion to Enforce ALJ Order. We also dismiss ARB No. 03-010, USEC's appeal of the recommended attorney's fee order, because it is moot.
SO ORDERED.
OLIVER M. TRANSUE
Administrative Appeals Judge
JUDITH S. BOGGS
Administrative Appeals Judge
[ENDNOTES]
1 The statute provides, in pertinent part, that "[n]o employer may discharge any employee or otherwise discriminate against any employee with respect to his compensation, terms, conditions, or privileges of employment because the employee" notified a covered employer about an alleged violation of the ERA or the Atomic Energy Act (AEA) (42 U.S.C. § 2011 et seq. (2000)), refused to engage in a practice made unlawful by the ERA or AEA, testified regarding provisions or proposed provisions of the ERA or AEA, or commenced, caused to be commenced or is about to commence or cause, or testified, assisted or participated in a proceeding under the ERA or AEA to carry out the purposes of this chapter or the AEA as amended. 42 U.S.C.A. § 5851(a)(1).
2 The following abbreviations shall be used: Claimant's Exhibit, CX; Respondent's Exhibit, RX; Hearing Transcript, TR; Joint Exhibit, JX; and Recommended Decision and Order, R. D. & O.
3 Russell Starkey, head of the training department, testified that he knew Jones was in the pool of potential RIF candidates before he came to the training department in April 1999. TR at 265-66. Jones had avoided an earlier reduction in force by transferring to another department and had actively sought the transfer to Starkey's department. JX 3 at 15, 19-21; TR at 61-63.
4 A module consists of written and visual instruction that a trainer presents to employees to ensure that they operate equipment safely. JX 1 at 8-9, 16.
5 The PITs at Paducah consisted of forklifts, fork trucks, tow motors and tractors, flat form lift trucks, handtrucks, cylinder haulers, handlers, industrial crane trucks, carry deck cranes, and yard tractors. JX 1 at 34.
6 Two kinds of training occur at Paducah — SAT (systemic approach to training) and non-SAT. SAT training methods are developed to meet specific regulatory requirements under the licensee certificate that the Nuclear Regulatory Commission (NRC) issued to USEC. The non-SAT based training that Jones was involved with did not require the same degree of developmental rigor. JX 3 at 97-98; JX 4 at 46-47. See R. D. & O. at 7.
7 Jones actually received a "2" rating for the "Integrity and Trust" competency. A "2" rating indicated "weakness" whereas a "1" meant "serious issue." See CX 18.
8 Jones received a "1" rating for the "Knowledge of fed & state laws & regs (OSHA, A, DOT) & req'ments necessary for NRC cert" competency. A "1" indicated "minimum proficiency." He was rated "2" for "weakness" on the "Creativity" competency. See CX 18.