The B Group included the six Complainants. Five of them – Williams, Sottile, McQuay, Olguin and Rodriguez – arrived on line on February 6, 1996, but Byrd was delayed until late March while awaiting his security clearance. Soon after the B Group began work on dismantling the W55 weapons, DOE gave approval for the program to proceed to full production. Until that point, the development of the W55 was under the direction of the Pantex Engineering and Design Division. When the program was ready to proceed to full production, responsibility was shifted to the Manufacturing Division and its slate of supervisory personnel.

Further refinements to the dismantlement process

   Although the NEOPs had been developed to a point at which full production could begin, it was expected that these exceptionally detailed instructions for dismantling the weapons would continue to improve as the PTs actually began to "work the process." The initial team, the A Group, had been randomly selected because they were PTs who were available to work on the W55; they had not been selected to participate in development of the W55 NEOPs based on any particular experience or qualifications. The plant manager and other supervisors testified that, although a "safe process" was set up before the mass dismantlement was begun, continuous improvements to the safety and efficiency of the operation were expected as new participants and observers, with differing levels of relevant experience, evaluated the dismantling procedures. Because of their hands-on role, W55 PTs were uniquely situated to suggest improvements to the arduous disassembly process. A central focus of this case is the conflict that arose when the B Group PTs, some of whom had extensive experience with nuclear weaponry and high explosives at Pantex or in the military, began to evaluate the risks posed by the W55 process. The B Group's concerns placed them in opposition to the A Group, who were largely wedded to the process they had helped to develop.

The W55 work space and equipment

   The W55 work was performed in a self-contained space that was generally referred to as the W55 bay. The bay actually comprised both a large work area, called the mechanical bay, and a smaller area, called the cell. The preliminary steps in the dismantling of each weapon took place in the mechanical bay, and the final steps of separating the radioactive elements in the physics package occurred in the cell. These two primary work spaces, along with adjacent smaller rooms, were fitted with fixtures to aid in the proper positioning of the weapon and its components during the various stages of disassembly. The high explosive in the weapon was very sensitive to force and could be detonated if dropped a matter of inches. Floor padding was used as a safeguard against such detonation during certain of the NEOPs steps. The work area was also equipped with several systems and features to enhance security and to limit the damage that could result from fire or explosion.

   Several preliminary steps were required before the PTs entered the bay to begin work. They first gathered at the gate to the bay, where supervisory personnel held a "stand-up meeting." These daily stand-up meetings provided an opportunity for the supervisors to address any concerns raised by the PTs, to apprise the PTs of any developments regarding safety issues, and to announce each PT's assignment to either the preliminary mechanical work on the weapon or to the final work on the physics package in the cell. Before entering the bay, the PTs were required to test all the systems pursuant to a pre-operations checklist. As a safeguard, completion of some of the pre-ops checks required the participation of four employees. The PTs were also required to check a status board located at the gate in order to ensure that regularly scheduled maintenance on the critical systems serving the bay had been completed. Unlocking the bay required two PTs because the gate to the bay was secured by two locks, with no one person having access to the keys to both. One PT held keys to one of the locks, and the keys to the other lock had to be retrieved from a security station located some distance from the work area.

   After the PTs entered the bay, they donned various items of protective gear, including face shields and lead aprons, depending on the task being performed. In addition to the fixtures installed in the work area, the PTs used a number of tools to dismantle the weapons, several of which were specially designed for the work. Occasionally there were delays in obtaining replacements for malfunctioning tools, and re-tooled equipment typically took weeks to design and obtain.

W55 supervisory and technical support staff

   The PTs working on the W55 were subject to direction by an extensive organization of supervisory personnel and a wide range of Pantex technical experts. As previously noted, the Engineering and Design Division was responsible for development of the W55 until it proceeded to full production in March, when the Manufacturing Division took charge. While in training, the PTs were supervised by a trainer from the Training and Design Technologies Division.

   In addition to these changes in the PTs' chain of command, the supervisory scheme was further complicated by the involvement of four lower level managers – a Program Manager, an Operations Coordinator, and two Operations Managers who served as first-line supervisors. During the development of the disassembly process by the Engineering and Design Division, those supervisory positions were held by Mitch Carry as the Program Manager, Danny Brito as the Operations Coordinator, and Rustin Long and John Pontius, as the two Operations Managers. In addition, Kathleen Herring served as Director of Program Management during development of the W55 process. Herring's responsibility ended in late March, when the W55 program was transferred to the Manufacturing Division. At that time, Carry's responsibility also ended, when he was replaced by David Cole as Program Manager. Brito's supervisory responsibility as Operations Coordinator for the W55 continued, however, as did Pontius' responsibility as first-line supervisor. Long was reassigned to a different program and Paul Harter filled his his slot as first-line supervisor.

   The first-line supervisors typically had individual responsibility for the two different work areas, the mechanical bay and the cell. Brito and Cole were frequently called when a problem arose on the W55 line. In addition, James Angelo, head of the Manufacturing Division, would occasionally meet directly with the W55 PTs, or all the PTs in the plant, to provide directions on important issues. The PTs also depended on assistance from personnel from other plant divisions, including the engineering, facilities management, radiation safety, high explosives, and nuclear explosives departments.

Open conflict on the W55 and management's response

   The antagonism between the A Group PTs and the B Group, which included the Complainants, apparently began even before the B Group arrived on line. An investigative report and a follow-up root cause analysis, drafted respectively by Pantex managers John Meyer and John Rayford, were ordered by the Respondent in March and April 1996 as a means of examining various problems in W55 staff relationships. CX 2, 3. Those reports concluded that one problem was attributable to a communications and coordination failure by W55 managerial staff. That problem arose when the B Group requested changes to the W55 process while they were in training and then those changes were approved by management. When the A Group applied the new procedures in the W55 work bay, however, they were found to be problematic. Another problem reflected in those two reports and reinforced by management testimony concerned inadequacies in the training provided to the B Group for work on the W55. Management took steps to remedy both of these problems, particularly by changing the training provided to PTs who would later join the W55.

   After the B Group arrived on line, they began to raise various concerns about the process itself, as well as questioning whether some of the A Group PTs and first-line supervisors failed to comply with safety guidelines. Over the course of the W55 program, management validated and acted upon many of the nuclear safety concerns the Complainants raised. In order to discuss various concerns that the Complainants had raised in February, W55 management held safety meetings with program staff on February 27 – 29, 1996. At the last of those meetings, which plant manager William Weinreich attended, management scheduled a re-tooling session for the following day to attempt to minimize radioactive dust that posed an inhalation and ingestion risk or both, concerns which had been raised by the B Group. Afterwards, two of the A Group PTs, Randy Heuton and John Barton, spoke with Herring, the W55 program director, who took them to meet with Weinreich. They complained that they thought the W55 process did not need further improvements. The A Group PTs also expressed concern that a re-tooling shut-down would eliminate the overtime hours that they had been working. Barton testified that the B Group PTs were making notes about the W55 process, and he believed the B Group was trying to show that the A Group was "unsafe."

   Within a few days, hostilities between the PTs culminated in a confrontation between Complainant Williams and Renee Stone, one of the A Group. The A Group PTs met with management and asked that Williams be removed from the program. Management decided to do so, but only on a temporary basis while an internal investigative team looked into the problem of hostilities on the W55. It was at this point that the Meyer investigative team interviewed W55 staff and prepared a report regarding the conflict between the two groups. After the internal investigation was completed, management directed Rayford to analyze the root cause of the antagonism between the A and B Groups and to recommend how it could be avoided in the future. The fact that management ordered these reports to be prepared reflects the close connection between personnel tensions and lessened productivity, as well as heightened safety concerns, on the W55 line. Under the guidelines relevant to operations with nuclear weaponry, one PT's emotional upset may require that operations be halted. Consequently, friction among employees could translate into serious operational problems from the standpoints of both safety and productivity.

   In April, management acted on this report. Specifically, management closed down W55 operations in order to schedule training in effective human interaction and teamwork for the entire program staff, followed by a line-by-line review of the NEOPs. Dozens of changes were made to the W55 process as a result of the NEOPs review. Williams had returned to the W55 and, after the NEOPs review, the hostility among co-workers was apparently less pronounced. Management also decided to separate the A and B Groups, with the A Group generally working in the cell and the B Group working in the mechanical bay. This helped to reduce the friction.

   During the remainder of the time that the Complainants were on the W55 program, May to December 1996, the focus of workplace conflicts changed from incidents among the two PT groups to incidents between the B Group and lower level management. These exchanges usually involved disputes between the Complainants and the first- or second-level supervisor regarding compliance with nuclear safety guidelines. In July, Williams filed an ERA complaint with the Occupational Safety and Health Administration (OSHA) and raised various concerns to higher management, including a contention that some W55 PTs viewed him as a troublemaker. In September, Mason & Hanger -- with Williams' concurrence – engaged Vincent Noonan, an outside consultant, to conduct an investigation of several issues Williams had raised concerning his history on the W55. That report was released in late September.

   Williams testified that hostility toward him increased during the Noonan investigation, and that it worsened in November after OSHA issued a decision in his favor on his ERA complaint. With the W55 program nearing completion, Olguin and Byrd were transferred into training for another program in early November. Williams quit work following a heated exchange with Harter in late November. In early December McQuay, Sottile and Rodriguez were assigned to work with the Facilities Division, on an interim basis.

1. Whether the Complainants established the existence of a hostile work environment during their tenure on the W55 program.

2. Whether the Complainants established that the Respondent is liable for the hostile work environment.

3. Whether Complainants Williams, McQuay, Sottile and Rodriquez sustained their retaliatory temporary reassignment claims; whether Williams sustained his constructive discharge claim; and whether Sottile sustained his non-promotion claim.

I. THE PATTERN AND PRACTICE EVIDENCE

   As a threshold matter, we address the parties' arguments concerning the ALJ's exclusion of documentary evidence that purported to demonstrate that a work environment hostile to whistleblowers existed at Pantex prior to the 1995-96 timeframe covered by these complaints. The Complainants argue that the ALJ's determination to exclude documents that they offered to demonstrate a pattern and practice of unlawful retaliation against whistleblowers at the Pantex Plant interfered with what they charactize as their due process right to present this case fairly. CIB at 6, 52-54; CRB at 19-20. The Respondent urges that the Complainants have failed to demonstrate reversible error. RRB at 53-54.

   Formal rules of evidence do not govern this ERA case. In proceedings under the Act, "Formal rules of evidence shall not apply, but rules or principles designed to assure production of the most probative evidence available shall be applied. The administrative law judge may exclude evidence which is immaterial, irrelevant, or unduly repetitious." 29 C.F.R. §24.6(e). In addition, an ALJ's action that does not substantially prejudice the presentation of a party's case does not violate the party's due process rights. Under 29 C.F.R. §18.103(a)(2), "A substantial right of the party is affected unless it is more probably true than not true that the error did not materially contribute to the decision or order of the judge." See also Calderon-Ontiveros v. INS, 809 F.2d 1050, 1052 (5th Cir. 1986) and cases there cited; Smith v. Esicorp, Inc., No. 93-ERA-00016, slip op. at 11 (Sec'y Mar. 13, 1996).

(D) commenced, caused to be commenced, or is about to commence or cause to be commenced a proceeding under this Act or the Atomic Energy Act of 1954, as amended, or a proceeding for the administration or enforcement of any requirement imposed under this Act 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 Act or the Atomic Energy Act of 1954, as amended.

   The ALJ's analysis of the HWE claims did not evaluate the allegations of each of the six Complainants on their individual merits. RD&O at 59-60. For example, in examining the issue of a causal link between protected activity and harassment, the ALJ did not distinguish between the differing approaches of the six individual Complainants to the raising of nuclear safety concerns, but focused only on the conduct of one complainant, Williams. Id.

   The Complainants assert that the ALJ erred by faulting them for bypassing the W55 chain of command. RD&O at 60. Uncontradicted evidence in the record indicates that at least one of the Complainants never bypassed the chain of command. HT 1953-54 (McQuay). Furthermore, the record indicates that the extensive supervisory hierarchy along with the transitions between supervision by the Training, Engineering Design and Manufacturing divisions resulted in confusion about precisely who was in the Complainants' chain of command, particularly in the early months after they joined the W55 program. CX 2 at 3; HT 714-16, 725-26 (Meyer). The record also demonstrates that middle and higher level managers invited the PTs to bring concerns to them. HT 1484-85 (Carry), 1934 (Weinreich).

   More importantly, it is a long-standing principle of whistleblower case law, established by the Secretary and further developed by this Board and the United States Courts of Appeals, that it is a prohibited practice for an employer to retaliate against an employee for not following the chain of command in raising protected safety issues. See Pogue v. United States Dep't of Labor, 940 F.2d 1287, 1290 (9th Cir. 1991); Ellis Fischel State Cancer Hosp. v. Marshall, 629 F.2d 563, 565-66 (8th Cir. 1980), cert. denied, 450 U.S. 1040 (1981); Saporito v. Florida Power & Light Co., Nos. 89-ERA-7/17, slip op. at 5-7 (Sec'y Feb. 16, 1995); Pillow v. Bechtel Const. Co., No. 87-ERA-35, slip op. at 22-23 (Sec'y July 19, 1993), aff'd sub nom. Bechtel Const. Co. v. Sec'y of Labor, 98 F.3d 1351 (11th Cir. 1996) (table). This chain of command principle is as applicable to communications with a regulating agency like the DOE as it is to the raising of nuclear safety concerns within the employer's organization. See Kansas Gas & Elec. Co. v. Brock, 780 F.2d 1505, 1511-13 (10th Cir. 1985), cert. denied, 478 U.S. 1011 (1986); Mackowiak v. Univ. Nuclear Systems, 735 F.2d 1159 (9th Cir. 1984); DeFord v. Sec'y of Labor, 700 F.2d 281, 286 (6th Cir. 1983).

   The ALJ's HWE analysis also does not address the question of whether any of the Complainants had established the level of hostility necessary to prevail, see point 3) above. The ALJ does examine whether a causal connection between protected activity and the hostility had been demonstrated, see point 1) above. RD&O at 59-60. Concerning the level of hostility demonstrated by the Complainants, the ALJ states only, "That hostility was present in the W55 program is undisputed." Id. at 60.

   Complainants urge that the ALJ erred by failing to identify evidentiary support for the vast majority of his factual findings, to acknowledge evidence that could support contrary findings, or to provide an explanation for the rejection of such evidence. See, e.g., CIB 7, CRB 1-3. The ERA requires that Secretarial decisions "be made on the record after notice and opportunity for public hearing." 42 U.S.C. §5851(b)(2)(A). Pursuant to the Administrative Procedure Act, decisions on the record must provide the "findings and conclusions, and the reasons or basis therefor, on all the material issues of fact, law or discretion presented on the record . . . ." 5 U.S.C. §557(c)(3)(A) (1994); see Lockert v. U.S. Dep't of Labor, 867 F.2d 513, 517 (9th Cir. 1989) (holding that Secretary's ERA decision was adequate under §557(c)(3)(A), because the evidentiary basis for the decision was clearly specified and thus did not require speculation by the court); 29 C.F.R. §18.57(b) (summarizing contents required in ALJ decisions). Consistent with the mandate of Section 557(c)(3)(A), the ALJ's findings of fact must provide an explanation for the resolution of conflicts in the evidence and must reflect proper consideration of evidence that could support contrary findings. See Nat'l Labor Relations Board v. Moore Bus. Forms, 574 F.2d 835, 843 (5th Cir. 1978); Office of Federal Contract Compliance Programs v. Goodyear Tire & Rubber Co., ARB No. 97-039, ALJ No. 94-OFC-11, slip op. at 16 n.13 (ARB Aug. 30, 1999) (citing NLRB v. Cutting, Inc., 701 F.2d 659, 667 (7th Cir. 1983)); Bartlik v. Tennessee Valley Auth., No. 88-ERA-15 (Sec'y Dec. 6, 1991) (remanding case to ALJ for specific credibility determinations and specific citations to the record).

   Because the Board, as the designee of the Secretary, has plenary power in reviewing the ALJ's recommended decision in this case, see 5 U.S.C. §557(b); Trimmer v. U.S. Dep't of Labor, 174 F.3d 1098, 1102 n.6 (10th Cir. 1999) (under the ERA), we have engaged in a de novo review of the record and have rendered the factual findings necessary to decide these hostile work environment claims. The ALJ is in the best position to render demeanor-based credibility determinations because he has observed the witnesses at hearing. Accordingly, the ALJ's credibility determinations that "rest explicitly on an evaluation of the demeanor of the witnesses" are accorded significant weight. Pogue, 940 F.2d at 1289. Other than a determination regarding the credibility of Williams' testimony concerning the constructive discharge issue, RD&O at 65-66, the ALJ did not provide any credibility determinations. However, we have relied on various other indicia of witness reliability in reviewing the record. Witness self-interest, whether or not a witness' testimony is internally consistent, inherently improbable, or either corroborated or contradicted by other evidence, are all factors that we have applied to resolve any relevant conflicts in the testimony. See Bartlik v. Tennessee Valley Auth., No. 88-ERA-15, slip op. at 5 n.2 (Sec'y Apr. 7, 1993) and cases there cited. We now discuss the legal standards for establishing an actionable level of hostility and other elements of the hostile work environment cause of action under the ERA.

B. Gauging the level of hostility under the ERA

   We begin by examining the level of hostility that a complainant must establish to sustain a HWE complaint under the ERA. The Board and the Secretary have followed the lead of the Court of Appeals for the Fourth Circuit in English and adopted the Title VII requirement that in order to support a HWE allegation a complainant must establish harassment that is "sufficiently severe or pervasive as to alter the conditions of employment and create an abusive or hostile work environment." Varnadore (1996), slip op. at 93-95 (noting that the English court relied on the Meritor Savings Bank v. Vinson, 477 U.S. 57, 67 (1986) decision under Title VII in deciding an ERA complaint, and adopting the Meritor approach for environmental protection statutes); see Berkman, slip op. at 16 (quoting from Smith, slip op. at 23-24, which cites Meritor). In Berkman, the Board looked to the Supreme Court's Title VII decision in Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993) for guidance regarding the particular factors to be considered in

evaluating the overall severity of the harassment. The Board noted that the Court in Harris directed that "all the circumstances" be considered in determining whether an actionable level of hostility has been established in Title VII cases. Harris identified the following as factors that may be relevant to this determination:

[T]he frequency of the discriminatory conduct, its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance.

Berkman, slip op. at 16 (quoting Harris, 510 U.S. at 23). The Board in Berkman also recognized the fact that workplace interaction rarely conforms to an ideal level of harmony. In reality, workplace interaction involves missteps by both rank and file employees and managerial personnel, and our evaluation of the level of workplace harassment must provide leeway, a "normal range of workplace give and take," for such missteps on both sides. See Berkman, slip op. at 19. Actions or remarks that fall within the "normal range" of conduct in one workplace may be unacceptable in another. See Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75, 81-82 (1998) (arising under Title VII). Just as the "social impact" of sexually harassing incidents alleged under Title VII is best evaluated by reference to "a constellation of surrounding circumstances, expectations, and relationships" in the workplace, Oncale, 523 U.S. at 81-82, the level of hostility created by the harassing incidents in this case are best gauged by reference to the characteristics of the workplace where they arose.

were vented through outbursts that occurred with some regularity. See, e.g., HT 596-98, 601 (Stone, testifying re her use of foul language to express concern about loss of overtime at February 28, 1996 safety meeting); HT 866-69 (Olguin, testifying re exchange with a group PT James Moore, who had failed to properly survey a contaminated music stand); see also HT 1810 (Angelo, testifying re "body-slamming" incident involving W70 PTs that occurred in a breakroom); HT 477 (Williams, testifying that co-workers referred to the W55 Covey/team-building training as "love" or "Barney" classes, the latter in reference to a media character developed for pre-school children); RX 6 (Angelo memo re handling workplace friction, which anticipates isolated "stress relieving encounter[s]" among employees); RX 12, 68, 145 (Pantexan, plant newsletter). This impression is strongly reinforced by the numerous incidents in which PTs exchanged rather offensive remarks, and the lack of any indication in the record that these exchanges resulted in reprimands or other disciplinary actions. See, e.g., HT 629-30 (Heuton, testifying that he called Williams various epithets because Williams' lack of trust in the A Group made him "mad"); but see HT 675-76, 1332, 1527 (testimony of Cole, Brito and A Group PT testifying re EEO counseling provided the PT because he allegedly made a racially disparaging remark). In sum, the record indicates that the normal range of give and take in the W55 workplace provided leeway for intemperate remarks by both PTs and first-line supervisors.

   With these aspects of the W55 workplace in mind, we examine the incidents of alleged harassment to determine whether they created a hostile or abusive work environment. In analyzing the incidents the Complainants allege, we consider whether the events were humiliating, threatening or merely offensive. We also address other factors adopted by the Board and the Secretary from Harris – how frequently the incidents occurred, to what extent the harassment pervaded the workplace and whether the harassment unreasonably interfered with the respective Complainant's work performance. See Berkman, slip op. at 16-17. As previously discussed, we consider all these factors in determining whether the harassment reached a level that impermissibly interfered with the raising of nuclear safety concerns. See Smith, slip op. at 26. Although the rough-and-tumble culture of the W55 workplace complicates our task, we must nonetheless determine whether such harassment created a work environment that was hostile to raising ERA-protected concerns.

D. The Complainants' protected activities

   The ALJ determined that the Complainants' protected activities and the subsequent harassment were not related. We disagree. We find that a preponderance of the evidence establishes that the Complainants engaged in protected activities that gave rise to harassment from supervisory personnel and co-workers. Furthermore, we find and conclude that a preponderance of the evidence establishes that the resulting hostility was sufficiently severe and pervasive as to be actionable under the ERA, that the hostility would have detrimentally affected a reasonable person and did detrimentally affect each Complainant. See Berkman, slip op. at 16-17, 21-22. Before we analyze the level of harassment under Berkman, we discuss the legal standard for activities that qualify for ERA protection and the evidence relevant to such activities. Finally, we address the relationship between the protected activities and the incidents of harassment.

1. The legal standard for determining which activities qualify for ERA protection

   We note that the ALJ rendered only a summary finding regarding activity protected by the ERA. Specifically, the ALJ observed that the ERA amended in 1992 expressly covers complaints raised internally to an employer. He then concluded:

As to whether or not Complainants' concerns were about safety violations under the Act, I see no reason to spend time on this issue. Certainly, some concerns of the Complainants, whether voiced as a group or individually, were safety related and constitute protected behavior under the Act.

RD&O at 58. We agree with the ALJ that the record clearly supports a finding that the Complainants engaged in activities protected by the ERA. It is, however, essential that we further identify those activities, in order to determine whether the complained of incidents of harassment were related to a protected activity and thus prohibited.

   The ERA protects a number of activities that further the purposes of the statute. Those activities include communications with one's employer, or communications and cooperation with regulators or other government officials regarding nuclear safety requirements imposed under the Atomic Energy Act or the ERA. 42 U.S.C. §5851(a)(1)(A)-(F). Within the context of nuclear power plant operation and repair, the Secretary, the Board and a number of the United States Courts of Appeals have repeatedly addressed the issue of which activities qualify for ERA protection. That body of case law provides the following guidelines.

   First, safety concerns may be expressed orally or in writing. See, e.g., Stone & Webster Eng'g v. Herman, 115 F.3d 1568, 1573 (11th Cir. 1997) (holding that when "an employee talks about safety to a plant fire official, an employer and an industry regulator, he or she acts squarely within the zone of conduct that Congress marked out under 42 U.S.C. §5851(a)(1)"), aff'g Harrison v. Stone & Webster Eng'g, No. 93-ERA-44 (Sec'y Aug. 22, 1995); Bechtel Const. Co. v. Sec'y of Labor, 50 F.3d 926, 931 (11th Cir. 1995) (agreeing with Secretary's characterization of "questioning one's supervisor's instructions on safety procedures as 'tantamount to a complaint.'"), aff'g Nichols v. Bechtel Const. Co., No. 87-ERA-0044 (Sec'y Oct. 26, 1992). Second, the concern expressed must be specific to the extent that it relates to a practice, condition, directive or occurrence. See Sprague v. Amer. Nuclear Resources, Inc., 134 F.3d 1292, 1296 (6th Cir. 1998) (stating that covered ERA whistleblower "typically allege[s] a safety concern that [is] both concrete and continuing"); Bechtel Const. Co., 50 F.3d at 931 (whistleblower "did not merely make general inquiries regarding safety but . . . raised particular, repeated concerns about safety procedures for handling contaminated tools"); Consolidated Edison Co. v. Donovan, 673 F.2d 61, 63 (2d Cir. 1982) (whistleblower raised concerns about inadequate radiation work permit, possible production of radioactive dust by sandblasting, and lower level management's lack of action on safety complaints), aff'g Cotter v. Consolidated Edison Co., No. 81-ERA-6 (Sec'y Nov. 25, 1981).

   Third, a whistleblower's objection to practices, policies, directives or occurrences is covered if the whistleblower reasonably believes that compliance with applicable nuclear safety standards is in question; it is not necessary for the whistleblower to cite a particular statutory or regulatory provision or to establish a violation of such standards. See Kansas Gas & Elec. Co. v. Brock, 780 F.2d 1505, 1507 (10th Cir. 1985) (quality assurance inspector's documentation of "potential construction deficiencies" and "potential quality assurance problems" constituted protected ERA activity), aff'g Wells v. Kansas Gas & Elec. Co., No. 83-ERA-12 (Sec'y June 14, 1984); Miller v. Tennessee Valley Auth., ARB No. 98-006, ALJ No. 97-ERA-2, slip op. at 5 (ARB Sept. 29, 1998) and cases there cited (unnecessary for employees whose work requires them to make recommendations regarding how best to serve the interest of nuclear safety to allege violation of specific statutory or regulatory standard to qualify for ERA protection); Seater v. Southern California Edison, ARB No. 96-013, ALJ No. 95-ERA-13, slip op. at 5 (ARB Sept. 26, 1996) and authorities there cited; Hobby v. Georgia Power Co., No. 90-ERA-30, slip op. at 17-18 (Sec'y Aug. 4, 1995) and authorities there cited, aff'd sub nom. Georgia Power Co. v. U.S. Dep't of Labor, No. 01-10916, slip op. at 12-15 (11th Cir. Sept. 30, 2002). This third principle is especially relevant to this case where, for the most part, the Complainants raised safety concerns while performing work with nuclear weapons that posed a risk of imminent danger to the workers and the public. Conditioning protection for such concerns on a reference to supporting legal authority or proof that a nuclear incident would otherwise occur would contravene the ERA interest of minimizing the risk of a nuclear accident.

   The Respondent specifically relies on a passage from Kesterson v. Y-12 Nuclear Weapons Plant, ARB No. 96-173, ALJ No. 95-CAA-0012, slip op. at 4 (ARB Apr. 8, 1997), in support of its argument that the Complainants' concerns raised during W55 training were only remotely related to nuclear safety and therefore not protected. The passage quoted by the Respondent concludes with the statement that "internal complaints about a technical issue which could only threaten the environment if many speculative events all occurred was not protected." Kesterson, slip op. at 4 (citing Crosby v. Hughes Aircraft Co., No. 85-TSC-2, slip op. at 28-29 (Sec'y Aug. 17, 1993)). The Respondent's reliance on the Crosby holding that is referred to in Kesterson is wholly misplaced. The Crosby case arose under the Clean Air Act, 42 U.S.C. §7622 (CAA), the Toxic Substances Control Act, 15 U.S.C. §2622 (TSCA), and the Comprehensive Environmental Response, Compensation and Liability Act, 42 U.S.C. §9610 (CERCLA). Crosby, slip op. at 1. In Crosby, the Secretary concluded that the complainant's concern that a computer "bug" could occur in software that was yet to be developed, that the bug would not be discovered when the software was tested, that the software could be used in a program for the detection of a hazardous gas cloud, and that the detection system would therefore fail, was too tenuously connected to the purpose of the environmental statutes to be "grounded in conditions constituting reasonably perceived violations" of the environmental acts. Crosby, slip op. at 24-30. Obviously, the Complainants' concerns about whether they were being adequately prepared to actually separate the various components from a nuclear weapon were not so tenuously connected to nuclear safety as to preclude ERA protection.

58 Fed. Reg. at 43681-82. Clearly, inadequate training prior to handling a nuclear weapon like the W55 nuclear depth bomb "could be an important link in a sequence of activities or events" that may compromise nuclear safety.

   We therefore conclude that the concerns the Complainants raised regarding deficiencies in the W55 training bear a substantial relationship to nuclear safety and thus qualify as protected activities under the ERA.

   b. W55 dismantlement

   Radiological exposure is also relevant to the next category of concerns the Complainants raised, which involves the W55 dismantlement process itself. Beginning while they were still in training and continuing until early March, the Complainants voiced the following concerns about the W55 process to various managers: whether the radioactive dust in the cell could be captured, and if not, whether the PTs could wear respirators during that step; whether the pressure exerted on the high explosive during rotation dangerously increased the risk of detonation; whether the pressurized stream of water used in one step was radioactively contaminated and whether the PTs should wear face shields to avoid a forceful stream of water to the face; whether some NEOPS in which the PTs worked within a specific proximity to exposed detonator cables should be designated for two-person coverage; and whether the bonding procedure adequately ensured that an electrical test on the weapon did not cause electrostatic damage to components inside the weapon. HT 96-110, 157-59, 206 (Sottile), 267-70 (Williams), 739-41, 1415, 1422-24 (Pontius), 753-57, 1460-63, 1472, 1475-76 (Carry), 780-87, 1782-85 (McQuay), 863-64 (Olguin), 1037-38, 1048-49, 1224-29, 1232-42, 1257-58 (Herring), 1117-19 (Byrd), 1405 (Long), 1495-98, 1545-46 (Cole), 1583-87, 1595 (McNabb); RX 13-20, 43, 45, 79.

   Mason & Hanger opposes the Complainants' assertion that these activities are protected. It quotes from the Secretary's decision in Abu-Hejli v. Potomac Elec. Power Co., No. 89-WPC-1 (Sec'y Sept. 24, 1993), that employees "have no protection . . . for refusing work simply because they believe that another method, technique, or procedure or equipment would be better or more effective." RRB 28-29 (quoting Abu-Hejli, slip op. at 14, holding that the complainant was not protected by the work refusal standard established by Pensyl v. Catalytic, Inc., No. 83-ERA-2 (Sec'y Jan. 13, 1984) when he refused to perform his assigned analytical tasks in an office setting). Abu-Hejli arose under the Water Pollution Control Act, 33 U.S.C. §1367, involved an analyst who refused to perform analytical work in an office setting, and is otherwise wholly inapposite to these ERA complaints arising in a nuclear weapons plant. Abu-Hejli, slip op. at 13-18). Furthermore, the "stop-work" procedure available to Pantex PTs is well-established in the record, and Weinreich, the plant manager, was said to be particularly concerned that PTs not be pressed to continue to work on a weapon when they were uncomfortable because of health or safety fears. HT 1592 (McNabb). We therefore reject the Respondent's reliance on Abu-Hejli.

   We find that a preponderance of the evidence in this case establishes that the Complainants raised concerns about the W55 dismantlement process that are directly related to nuclear safety, and that those concerns were founded on a reasonable belief that compliance with applicable nuclear safety standards had been called into question by the actions of co-workers or supervisors. The evidence supports a finding that many of the Complainants' concerns about the dangers surrounding the W55 dismantlement process were clearly well-founded. HT 689-90 (Brito, acknowledging on cross-exam that significant improvements were made in April 1996 NEOPs review, which was prompted by Complainants' concerns); HT 584-86 (A Group PT Stone, testifying to improvements in removal of high explosive and in risk of radioactive dust inhalation/ingestion resulting from Complainants' efforts); HT 618 (A Group PT Teddy Dubose, also testifying regarding decreased risk of radioactive dust inhalation/ingestion); HT 1583-85, 1595 (McNabb, testifying about increasingly effective modifications to address dust problem, culminating in tooling suggested by one or more of the Complainants); see also RX 56 (Roby Enge's May 2, 1996 e-mail re W55 ingestion incident in early February, to which Complainants' concerns

regarding dust bagging issue was related); RX 18-20 (minutes of February 27-29, 1996 safety meetings, at which radioactive dust issue was pursued primarily by Williams and McQuay); RX 62 (Angelo's memo regarding changes to the W55 in 1996). The Noonan report, in particular, indicates that changes to the W55 dismantlement process that the Complainants initiated resulted in substantial improvements in program safety. CX 4. ERA protection is not dependent on proof of an actual violation of nuclear safety standards. Nonetheless, the foregoing and other evidence leaves no doubt that the Complainants made significant contributions to nuclear safety on the W55. Furthermore, at least two of the issues the Complainants pursued – the two-person rule and the proper procedure for electrical testing of weapons – are significant enough to be specifically identified by the DOE 1990 Nuclear Explosive and Weapon Safety Program order. US DOE O 5610.11, supra, Chs. III and VII.

   c. Departures from safety guidelines

   The third category of activities that qualify for protection involves incidents where the Complainants believed co-workers or supervisors were departing from established safety guidelines. See Bechtel Construction Co. v. Sec'y of Labor, 50 F.3d 926, 931 (11th Cir. 1995); Consolidated Edison Co.v. Donovan, 673 F.2d 61, 63 (2d Cir. 1982).

   d. Internal complaints about harassment

Complaints to managerial personnel regarding hostility toward the Complainants for their protected activities comprise the fourth category of activities that qualify for ERA protection. As we describe in the individual summaries that follow, the Complainants reported incidents of harassing behavior by A Group PTs, other co-workers or first-line supervisors that they believed resulted from anti-whistleblower sentiment. As previously discussed, the ERA as amended expressly protects internal complaints. 42 U.S.C. §5851(a)(1)(A) (protecting employee against discrimination because he had "notified his employer of an alleged violation of this Act or the Atomic Energy Act of 1954 (42 U.S.C. 2011, et seq.)"); see summary supra §§IIB, D1. This coverage extends to internal complaints of retaliation. Cf. Diaz-Robainas v. Florida Power & Light Co., slip op. at 10-11 (Sec'y Jan. 19, 1996) (construing pre-1992 amendments ERA as covering internal complaints of retaliation). As the Secretary discussed in Diaz-Robainas, an internal complaint of retaliation is subject to the "reasonable belief" requirement that applies to all internal complaints. Diaz-Robainas, slip op. at 10-11. Particularly in view of our conclusion that the hostility in the W55 workplace was linked to the Complainants' protected activities, we have no difficulty finding that the Complainants reasonably believed that the harassing incidents that they reported represented conduct prohibited by the ERA. See 29 C.F.R. §24.2(b), (c). We therefore conclude that the Complainants' reporting of such incidents qualifies for ERA protection.

   e. External complaints

   External complaints comprise the final group of activities that qualifies for ERA protection. Complaints to government agencies, whether written or oral, are covered by the statute. 42 U.S.C. §5851(a)(1)(D), (F) (prohibiting discrimination against an employee who has "commenced, caused to be commenced, or is about to commence or cause to be commenced a proceeding under this Act or the Atomic Energy Act of 1954, as amended, or a proceeding for the administration or enforcement of any requirement imposed under this Act or the Atomic Energy Act of 1954, as amended" or who "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 Act or the Atomic Energy Act of 1954, as amended."). Sottile and Williams voiced concerns to DOE representatives, and all six Complainants filed formal complaints under the ERA with the OSHA regional office, which handles the preliminary investigation of whistleblower complaints. ALJX 1-6; HT 115-19, 133-37, 210 (Sottile), 312-13 (Williams), 553-58, 567-69 (Ross), 1918-21, 1938, 1939 (Weinreich); see 29 C.F.R. §§24.3–24.5. We therefore conclude that these external complaints qualify for ERA protection.

3. The relationship between the protected activities and the incidents of harassment

   a. The ALJ's reasoning

   According to the ALJ, the Complainants' safety concerns did not provoke the A Group's hostility. Rather, the ALJ found that the A Group's "sense of ownership" of the W55 disassembly process, combined with the way the Complainants conducted themselves after arriving on line, and the "attitude" of Williams, especially, were the causes of the hostility between the two groups. RD&O at 60-61. We do not concur in these findings.

   We disagree with the ALJ's reliance on the A Group's "sense of ownership." To conclude that such personal, subjective sentiments justify harassment of employees who are attempting to reduce radiation exposure or the risk of a nuclear accident would be antithetical to the purpose of ERA whistleblower protection. We also note that the record establishes that Pantex Plant guidelines contemplated that the W55 dismantlement process that the A Group had helped to develop would be refined further, as various PTs Aworked the process." HT 678-79 (Brito), 1074-75 (Weinreich), 1218-19 (Herring), 1458-59 (Carry), 1411-13 (Long). Those guidelines reflect the importance of efforts to improve nuclear safety and are at odds with the "sense of ownership" justification.

   Likewise, we cannot concur in the ALJ's determination that the Complainants had engaged in inappropriate conduct, including improperly bypassing the chain of command. That finding is not supported by the record and, if it were, it would not provide a proper basis, in and of itself, on which to fault the Complainants and deprive them of ERA protection. See discussion supra §IIA.

   In addition to finding that the Complainants had contributed to hostility on the W55 program by failing to properly follow the chain of command, the ALJ also found that the Complainants' "attitudes" provoked hostility among others working on the W55. RD&O at 60-61. The ALJ specifically found, "From the moment of their arrival, the Complainants, most particularly Williams, made threats of lawsuits and shut downs, ignored advice from the experienced A team members . . . ." RD&O at 60. In faulting the Complainants for such conduct, the ALJ failed to apply the proper legal standard. Statutorily protected conduct which is, nevertheless, "indefensible under the circumstances," may remove the statutory protection. Martin v. Dep't of the Army, No. 93-SDW-1, slip op. at 5 (Sec'y July 13, 1995); see also Mobil Exploration and Producing U.S. v. Nat'l Labor Relations Board, 200 F.3d 230, 242-43 (5th Cir. 1999) (addressing need to balance employee's right to engage in protected activity against employer's right to maintain order and respect); Carter v. Elec. Dist. No. 2 of Pinal Co., No. 92-TSC-11, slip op. at 19-21 (Sec'y July 26, 1995) (same, but as applied in Part 24 whistleblower cases by Secretary). Therefore we will review the record and analyze the chain of command and Martin conduct issues under the appropriate standards. We turn now to that analysis.

   b. Establishing a causal nexus between protected activity and harassment

   To properly evaluate whether the hostility was related to protected activity, the Board must first examine the various incidents of harassment to determine whether they are linked to protected activity, or whether some acts of harassment were motivated by other factors, including conduct on the part of one or more of the Complainants that was wholly unrelated to protected activity. See Berkman, slip op. at 17-21; Acord v. Alyeska Pipeline Serv. Co., ARB No. 97-011, ALJ No. 95-TSC-4, slip op. at 2-6 (ARB June 30, 1997). If the harassment was linked to protected activity, we then examine the incident to determine whether one or more of the Complainants engaged in misconduct that was indefensible in those circumstances, and thus forfeited their protection under the ERA. See Martin, slip op. at 5. The Martin standard also applies to a complainant's conduct in circumstances in which he or she has been provoked by the actions of others that violate the ERA. See Dunham v. Brock, 794 F.2d 1037, 1041 (5th Cir. 1986); Carter, slip op. at 19-21. Of course, only the Complainants' protected activities that were known to their supervisors and co-workers could have contributed to retaliatory harassment. See Berkman, slip op. at 16-17, 21-22.

   The March incident in which a PT from the W70, another weapons program, threatened to "take care of" Williams if his whistleblowing resulted in a shut-down of the W70 program is, of course, an obvious example of harassment directly related to protected activity. HT 326-29 (Williams); see CX 4 at 20. The record also indicates instances of hostility arising as an immediate reaction to the raising of safety issues. That hostility was manifested in varying degrees, particularly during the February 6 - March 6 period. See CX 4 at 8. Both W55 managers and A Group PTs resisted the Complainants' safety concerns. Some A Group PTs made hostile comments during meetings in which the Complainants' concerns were being discussed. HT 596-98 (Stone), 788-89, 832-33 (McQuay), 1126-27 (Byrd); RX 19. Managerial resistance, although subtle, is also evident in the pressure brought to bear on the Complainants at the February safety meetings. HT 917-20 (Olguin), 1350-51 (Dolores De los Santos, union safety officer); CX 106; RX 19, 20; see discussions infra §§IIE1-3. We must agree with the Complainants' contention that Herring, the W55 program manager who had primary responsibility for development of the W55 process, demonstrated resistance to changes to the W55 process when she took A Group PTs Heuton and Barton to plant manager Weinreich to express their view that the W55 process did not need improvement. HT 1054-59, 1258-60 (Herring). In contrast, the A Group PT whose ingestion of radioactive dust, spurred Williams and other Complainants on in their efforts to have the W55 equipment re-tooled to better contain the dust supported the Complainants' efforts at the safety meetings. RX 19, 20.

   The A Group's hostility culminated when they met with Herring on March 6 to complain about Williams and to request that he be reassigned. See HT 579-81 (Stone), 633 (Heuton), 1291-93 (Barton); RX 27. The evidence establishes that Herring and the A Group were interested in squelching Williams' concerns about the W55 process. A Group PTs testified that they were hostile because the Complainants raised safety issues about the W55 disassembly process. For instance, A Group PT Heuton testified that the A Group was already "mad" at the Complainants before they arrived on the W55 line in February because of the changes in the W55 process that the Complainants had initiated while in training. HT 626-28 (Heuton). A Group PT Stone testified that she resented the Complainants making suggestions for improvements. HT 584-86 (Stone). Stone had also objected to the loss of over-time hours that resulted from the March 1 shut-down for re-tooling. RX 20; HT 596-98, 601 (Stone). The Meyer report contained similar findings linking the A Group's hostility to safety issues. CX 2 at 2-3, 4, 5; CX 3; see also CX 4 at 8 (Noonan's report). Pontius testified that he was surprised that the Stone/Williams confrontation of March 4 had been raised to higher management. HT 736-39 (Pontius). Regardless of whether higher management shared the interest of the A Group PTs and Herring in squelching Williams' safety concerns, it reassigned Williams to the W70 and took no action against Stone. HT 1862-65 (Weinreich); CX 2, 4.

   Higher management's intent is difficult to discern here. The Respondent's contention that the reassignment action was consistent with plant policy is refuted by evidence demonstrating that it did not have a standard practice or a stated policy for transferring PTs from programs when serious interpersonal conflicts arose. HT 940-43, 951-53 (Olguin), 1749 (Noonan); CX 4 at 18, 26-29; RX 66. However, Weinreich immediately appointed an investigatory team to evaluate hostility among W55 employees and he returned Williams to the W55 after the investigatory report was provided in late March. HT 310-13 (Williams), 1094, 1868-69 (Weinreich); RX 42; CX4. These actions suggest that Weinreich was attempting to defuse a tense situation in a workplace where employee confrontations could have dire consequences. The preponderance of the evidence nonetheless does establish that the hostility of the A Group and Herring toward Williams for raising safety concerns provided the impetus that led to Weinreich's reassignment decision. See Ellis Fischel State Cancer Hosp. v. Marshall, 629 F.2d 563, 566 (8th Cir. 1980), cert denied, 450 U.S. 1040 (1981) (ERA case in which court noted, "The presence or absence of retaliatory motive is a legal conclusion and is provable by circumstantial evidence even if there is testimony to the contrary by witnesses who perceived lack of such improper motive."); see also Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 141 (2000) (quoting U.S. Postal Service Bd. of Governors v. Aikens, 460 U.S. 711, 716 (1983), regarding the "sensitive and difficult" question posed by employment discrimination cases, in

remarks is relevant and supports a conclusion that W55 supervisors Peak and Brito harbored hostility toward the Complainants for raising safety issues.

   The evidence also establishes that the A Group PTs continued to harbor anti-whistleblower animus over the course of the W55. See, e.g., HT 167-69, 1971 (Sottile). We infer that, even in those few situations where the hostile remarks or actions of co-workers did not refer to whistleblower activities and did not occur as an immediate response to such activities, the harassment was linked to the Complainants' raising safety issues. See, e.g., HT 138-40, 177-79 (Sottile, testifying re Barton's harassing remark about hitting someone, with impunity); cf. Carter v. Chrysler Corp., 173 F.3d 693, 693, 701 (8th Cir. 1999) and cases there cited ("All instances of harassment need not be stamped with signs of overt discrimination to be relevant under Title VII if they are part of a course of conduct which is tied to evidence of discriminatory animus.").

   We agree with the Respondent that management took corrective action to address most of the concerns regarding the W55 disassembly process as it stood in February. RX 14-20, 43, 45-47, 62, 79; HT 205-06 (Sottile), 904-05 (Olguin), 1342-45 (De los Santos), 1532-38 (Cole), 1773-78 (Angelo); see RRB 21-27. The record also demonstrates, however, that lower and middle-level managers usually undertook such corrections begrudgingly. Furthermore, W55 supervisory staff and the A Group PTs continued to manifest resentment towards the Complainants. See HT 169-73, 176 (Sottile), 625, 628-29 (Heuton), 763-65, 1524-25, 1571-72 (Cole), 860-61, 864-65 (Olguin), 960-63, 1992-93 (G. Rodriguez), 1213, 1253-54 (Herring), 1363-64, 1368-70 (F. Rodriguez); see also RX 16 at 4 (minutes of February 27 meeting, PT Moore stating that "ideas go to the foreman and engineer and nothing gets done"). In addition, corrective action like the W55 NEOPs review and rewrite in April addressed the W55 disassembly process as written in February, but did not address the Complainants' concerns regarding the failure of some A Group PTs and W55 supervisory staff to comply with established safety guidelines. See RX 14-20, 45, 62. Those additional concerns continued to be a source of conflict for the Complainants. See, e.g., November 24 and 26 incidents discussed infra. Based on the foregoing evidence, we find that Williams was subjected to antagonistic and intimidating remarks by W55 supervisors and A Group PTs who sought to discourage him from raising safety-related concerns.

   We also find that a W70 PT threatened Williams while he was working on the W70 program during his March reassignment, see n.16 supra. Williams testified that this W70 PT threatened to "take care of" him "without a trace" if Williams' whistleblowing caused a plant shutdown that resulted in the loss of the PT's job. HT 326-29 (Williams); see CX 4 at 20. Williams' testimony is uncontradicted, and the testimony of Curtis Broaddus, the Pantex Operations Security and Counterintelligence Officer, provides corroboration. Broaddus confirmed that the same W70 PT had initiated a security investigation of Williams a few months later. HT 1623-28 (Broaddus). We also credit as true Williams' general allegation that Rob Protsman, a Pantex training specialist, confronted him off-site, in March and again in June, for criticizing the Pantex training department. HT 324-26 (Williams). Williams' claim that the training specialist confronted him – at a cocktail lounge in a hotel near the plant – is supported by Noonan's investigation and findings. CX 4 at 20, 24. In addition, Weinreich testified that he followed up on Williams' complaint about these confrontations by directing that the training specialist be counseled regarding proper professional conduct. HT 1883-84 (Weinreich).

   We similarly credit Williams' allegation that he received a hostile reception from A Group PTs when he initially returned to the W55 work area sometime after March 26, when the Meyer team's internal investigation report was completed. McQuay's testimony and Angelo's memorandum regarding his meeting with W55 PTs to discuss Williams' return support Williams' uncontradicted testimony. HT 310-13 (Williams), 799-800 (McQuay); RX 42. Williams returned to the W55 in April after management agreed that his return could be delayed to coincide with the teamwork training and table-top review of the W55 NEOPs. HT 310-13, 321 (Williams), 1779-80 (Angelo).

2. Complainant McQuay

   McQuay also took a leading role in raising and pursuing safety issues. See, e.g., HT 1596-98 (McNabb, Program Engineering Manager, testifying that Williams, Sottile and McQuay raised more issues than other PTs). In the first month after the B Group reported to the W55 line, McQuay actively sought both to improve the process for removing high explosive components from the weapons and to decrease the risk of ingestion or inhalation of radioactive dust. HT 740-41, 1415 (Pontius), 780-85 (McQuay), 1475 (Carry). The evidence demonstrates that, like Williams, McQuay was the target of supervisors' hostile remarks and A Group jeers and snide remarks in the W55 safety meetings held in February. Most significant are McQuay's comments made at the February 28 meeting, at which he exercised his stop work authority based on his concern about the radioactive dust issue. McQuay stated that supervisors were putting him and others "on trial" for pursuing W55 improvements. RX 19 at 11-13; see HT 780-91, 793 (McQuay). Specifically, McQuay stated, "We feel intimidated. We are on trial here, that's what we're here for. In the reactions we get from certain people in our areas, we feel the friction, but we want to make it clear we are here to work and we want to do the work." RX 19 at 13. The testimony of union safety officer De los Santos, along with notes she made immediately following the meeting, support McQuay's view. De los Santos testified on cross-examination that Carry repeatedly stated that it was important to use stop work authority when appropriate, but his other remarks and overall conduct of the February 28 meeting made the PTs feel "extremely uncomfortable and pressured" not to exercise their stop work authority. HT 1350-51 (De los Santos); see CX 106. De los Santos testified that she then intervened and called for a work stoppage to implement improvements that would address the PTs' concern about ingestion or inhalation of radioactive dust. HT 1350-51 (De los Santos); see RX 19 at 11-12. The February 28 meeting minutes also indicate that Gary Britten, a radiation safety manager, made antagonistic remarks regarding whether the re-tooling efforts being pursued by McQuay and others were worthwhile. Specifically, Britten stated that the only way to address the PTs' concern about the radioactive dust was to use respirators. RX 19 at 17. Britten's remarks prompted McQuay to ask, "Is that a threat?" and De los Santos to comment, "It sounds like a threat to me." Id. Near the end of the meeting, McQuay requested two tool "enhancements." After explaining the hazards posed by the tooling then in use, McQuay stated that he had "asked back in November for this to be addressed." Before Carry could reply, Herring interjected, "It's not relevant, when or where." Id. at 19. We find that the foregoing evidence establishes that W55 supervisors intimidated McQuay when he voiced safety concerns in February.

   Also, at one of the February meetings at which McQuay was present, A Group PT Stone used obscene language to express her disappointment that the overtime hours the PTs had been working would not be available while re-tooling efforts were underway. HT 596-98 (Stone), 788-89, 793, 832-33 (McQuay), 1126-27 (Byrd); see RX 19 at 18-19; see also RX 20 at 5 (February 29 meeting minutes, quoting one PT's statement, "Some people are worried about the overtime, but I'm worried about my health."). McQuay testified that A Group PTs also made gloating remarks after Williams' March 6 reassignment to the W70 program, and suggested that he could be the next target of reassignment. HT 797-800, 839-40 (McQuay). That testimony is uncontradicted and is also supported by Olguin's testimony regarding similar A Group remarks. HT 859-60 (Olguin). Based on the foregoing evidence, we find that McQuay was subjected to antagonistic and intimidating remarks by A Group PTs because of the safety concerns that he raised.

   Brito did not testify regarding this incident, and Hoops was not called as a witness. The testimony of both Cole and Angelo provides support for McQuay's version of events, however. Although Cole acknowledged that it was necessary to replace the photograph of the fire deluge system gauges for the checklist to be accurate, he nonetheless testified that he believed that McQuay and the other PTs Awere just trying to come up with things . . . to harass the supervisors . . . ." HT 1557-60 (Cole). Angelo did not address Cole's viewpoint or Brito's conduct, but he did attest to the significance that he attached to completion of an accurate pre-ops checklist. Specifically, Angelo testified that he had met with over four hundred Pantex PTs to impress upon them that some were "not paying close enough attention to pre-operational form requirements" and he cited the DOE shutdown of the Rocky Flats plant as an example of what could happen if safety violations caused DOE "to lose confidence in our ability to operate the plant." HT 1804-07 (Angelo). Angelo had emphasized the importance of these checklists a few months before but, at this meeting with the PTs, he also required them to sign "a statement of understanding of responsibilities" related to the checklists in order to reinforce his directive. HT 1804-05 (Angelo); see also CX 69 (Angelo's December 6, 1996 memo to managerial staff reminding them that "the qualification of people [is] no less important to the Process Safety Envelope than preop checks are to the Facility Safety Envelope," and alerting them that he will recommend termination for a negligent failure either to check workers' qualifications or to properly conduct pre-ops checks).

their concern than in assisting them with protection against the water spray, which -- even if uncontaminated -- could disorient a PT who was handling high explosives. HT 96-107 (Sottile). The record provides support for Sottile's testimony on this point.

   The documentary evidence is at odds with the supervisors' testimony about how long it took for the face shields to be made available to the W55 PTs. In an attempt to refute Sottile's account, Herring, Carry and Pontius testified that the face shields were implemented as protective equipment almost immediately. Specifically, Pontius testified that Williams and Sottile raised the issue to him after Williams had been sprayed, and that face shields were implemented "within a day or two" after their request. HT 739-40, 1422-24 (Pontius). Herring testified that, after Williams raised the issue to the supervisors in the February 20 meeting, they began the process of obtaining approval for the additional protective equipment from the Nuclear Explosives Safety Department. HT 1236-40 (Herring). Carry testified that he first knew about the face shields issue when Williams raised it, along with the related issue of whether the water was contaminated by radiation or chemicals, in the February 20 meeting with Herring, Carry and Long. HT 753-54 (Carry). Carry also testified that Sottile reiterated the request in a later meeting, at which time Sottile was told that "the engineering staff had already been directed to incorporate those face shields . . . ." HT 754-55 (Carry); see HT 1449-52 (Carry). However, other parts of Carry's testimony and his February 22 memorandum, RX 14, contradict these statements.

   Rather than supporting the testimony of Pontius, Carry and Herring that the face shields were "immediately implemented" as protective equipment, the relevant evidence supports Sottile's testimony that the supervisory staff seemed to be more concerned with thwarting the use of the face shields than in facilitating their use. At a meeting with the W55 PTs on February 22, Carry told them that the use of face shields would be discussed at a meeting to be held the following week. RX 14 at M&H002883. In a February 22 memorandum to Williams, Carry advised that the engineers that been "directed to include face shields" in the water pumping operation, but the minutes of the safety meetings held on February 27 and 28 indicate that use of the face shields was still an unsettled issue. RX 15, RX 16 at 8, RX 19 at 2. Significantly, the February 28 meeting minutes quote McNabb, an Engineering Division manager, as stating that he thought that a catchall provision in the NEOPs allowed for the immediate addition of the face shields. RX 19 at 7-8. We therefore find that Sottile met with substantial resistance when he pressed Carry for permission to wear face shields.

   In addition, Sottile testified that A Group PTs greeted safety concerns raised by other W55 PTs at daily stand-up meetings with derisive comments like, "Don't panic," or hostile, glaring looks. Sottile said that such behavior made the W55 "a very harsh place to work." HT 59-60, 62-64 (Sottile). Sottile identified few remarks or actions that were directed at him personally, but one notable incident did occur after the W55 staff completed the teamwork training in April. Sottile testified that A Group PT Barton walked up to him in a plant break room and pulled a velcro strip on Sottile's overalls, while commenting that he could "hit somebody" and not be held accountable. HT 138-40, 177-79 (Sottile). Sottile complained to Cole about Barton's threatening action. HT 179 (Sottile). Neither Barton nor Cole testified regarding the incident, but a timeline of relevant W55 events prepared by Cole refers to it. RX 97 at M&H000249. Although the Respondent's counsel asked Sottile whether he thought Barton's action and remark had been made in jest – which Sottile denied – the Respondent offered no evidence that Barton had been joking or that Sottile had unreasonably misunderstood Barton's actions. Accordingly, we find that Sottile was subjected to antagonistic remarks by co-workers and a physically threatening action. On November 19, Sottile filed his ERA complaint, alleging a hostile work environment and retaliatory non-selection for promotion. ALJX 6.

   On November 26 Sottile supported McQuay in the detonator cable incident. HT 140-42 (Sottile). As already discussed, Brito and Harter became angry when McQuay and other PTs insisted that an engineer examine the cable. Sottile was also present the following day, November 27, when Harter became extremely angry upon learning that DOE representative Ross had stopped Sottile and Williams while they were on their way to pick up the W55 work area keys. Sottile testified that after Williams took one of the two keys required to open the W55 work area and left, Sottile directed Rodriguez to re-lock the other W55 lock because he believed that Harter's emotional state was such that it would violate Personnel Assurance Program guidelines for Harter to handle nuclear weapons at that time. HT 133-35, 179-83 (Sottile); see CX 88 at M&H003311 (PAP guidelines). Sottile's testimony on this point is uncontradicted and is also supported by management's discipline of Harter for his angry remarks on that occasion. HT 1024-26, 1788-89 (Angelo, testifying that discipline imposed on Harter was based on Harter's angry demonstration).

   Furthermore, according to McQuay's uncontradicted testimony, Sottile was present and supported McQuay in the confrontation with Brito and Hoops regarding the inaccurate photograph of the fire deluge system gauges on the pre-ops checklist. HT 814-15 (McQuay). McQuay also testified that Sottile was reassigned to work with the Facilities Management division later that day. HT 816, 838-39 (McQuay); see HT 1561-63, 1576-77 (Cole, testifying that he only recalled that Sottile was among the last PTs working in the W55 bay at the end of the program, and that Sottile was then reassigned to work with the Facilities division); see also §IIE2 discussion of McQuay's reassignment and disposition of that issue in n.27 supra; RD&O at 67-68 (rejecting claim regarding Sottile's temporary reassignment). Based on the foregoing evidence concerning the November 26, 27 and pre-ops checklist incidents, we find that Harter and Brito subjected Sottile to direct or second-hand harassment, or both.

   Finally, Sottile testified that in December he assisted in the DOE's on-site investigation of the use of uncertified workers on the W55, a situation which Sottile had reported. HT 133-37, 210 (Sottile). He also reported to the DOE that a cutting wheel that had been replaced without the assistance of qualified personnel was producing sparks, thereby creating a serious hazard because of the proximity to explosive materials. HT 115-19 (Sottile). Sottile's testimony regarding these activities is supported by the testimony of the DOE representative Ross. HT 553-58 (Ross). In addition, Angelo testified that four supervisors – including Pontius and Brito – were relieved of their supervisory responsibilities as a result of the investigation by DOE into the use of uncertified workers. HT 1812-15 (Angelo); see CX 69 (Angelo's December 6, 1996 memo to managerial staff regarding removal of supervisory personnel and reminding that "the qualification of people [is] no less important to the Process Safety Envelope than preop checks are to the Facility Safety Envelope," and advising that he will recommend termination for negligent failure to check workers' qualifications). Sottile testified that, after he left the W55 program, Harter not only failed to exchange greetings with him when they crossed paths around the plant, but he was also openly rude. HT 210 (Sottile). This testimony is supported by that of Byrd, who testified to similar experiences with Harter, Brito and Pontius, sometimes when he was accompanied by Sottile. HT 1141-43, 1151-52 (Byrd). Sottile testified that he believed the supervisors' behavior was related to his protected activities on the W55. HT 119-20, 183-87, 210 (Sottile). Based on the foregoing evidence, we find that Harter, Brito and Pontius were hostile toward Sottile during the months immediately following Sottile's departure from the W55 because he reported the use of uncertified workers.

   On December 17, Sottile amended his ERA complaint to add further HWE allegations. ALJX 6.

4. Complainant Olguin

   Over the course of the W55 program Olguin initiated fewer safety-related concerns than McQuay, Sottile and Williams, but he did support them when they voiced safety concerns. See, e.g., HT 227-28 (Williams), 850-51, 895-97, 948-49 (Olguin). Carry initially could not recall Olguin raising a safety issue, but on cross-examination he remembered that Olguin had raised a question regarding person-to-person coverage during certain phases of the disassembly process. HT 1472, 1475-76 (Carry). The minutes of the W55 safety meetings held in February also quote Olguin as voicing concerns about respirable radioactive particles and about friction arising when the B Group PTs asked safety-related questions. RX 14 at 2; RX 16 at 3, 4; RX 18 at M&H000301. Like Williams and McQuay, Olguin testified that he also was intimidated by the hostile remarks and actions in the safety meetings held in February. HT 857-58, 915-21 (Olguin).

   We also credit Olguin's testimony that he was intimidated when the A Group expressed satisfaction about Williams' reassignment. According to Olguin, A Group PTs Dubose and Barton told him that they had "voted [Williams] out." HT 859-60 (Olguin). Although four A Group members testified that they had not actually voted, none of them refuted Olguin's testimony testified regarding the remarks made to Olguin. HT 575 (Stone), 612-13 (Dubose), 733-34 (Barton), 1372 (F. Rodriguez). Furthermore, two of the A Group PTs testified that they were seeking Williams' reassignment when they complained to Herring on March 6. HT 580-81 (Stone), 633 (Heuton). We fully credit Olguin's testimony on this point and find that supervisors and A Group members intimidated Olguin in February and March.

   Olguin also testified that W55 supervisors and A Group PTs were overtly hostile when he raised safety concerns during the remaining months of the W55. HT 864-80, 927-30, 932, 949-50, 1984-85 (Olguin). A Group PT Moore reacted angrily to Olguin's suggestion that he follow prescribed guidelines for tool de-contamination. HT 866-69 (Olguin), 1328-33 (Moore). Harter and Cole became angry because Olguin and Byrd again requested that a pressurized eye-wash be replaced because of its "borderline" pressure reading. HT 877-80, 927-30, 949-50 (Olguin), 1130-33, 1182-83 (Byrd); see HT 1501-03 (Harter), 1555-56 (Cole, testifying that eye-wash was covered by pre-ops checklist); discussion supra at §IIE2 regarding Angelo's emphasis on accurate completion of pre-ops checklists. In fact, the testimony of Harter and Cole supports Olguin's account and confirms the adversarial mindset that lower and middle-level supervisors on the W55 repeatedly demonstrated toward the Complainants. HT 1503 (Harter), 1560 (Cole). We find that Olguin was the target of hostile remarks by W55 supervisors and A Group PTs after the team-building training and NEOPs review in April. Olguin was reassigned from the W55 to the W69 in early November. HT 932-34 (Olguin). He filed his hostile work environment complaint under the ERA on November 19, and amended it to include additional HWE allegation on December 17. ALJX3.

5. Complainant Byrd

   Byrd, like Olguin, raised fewer concerns independently than did McQuay, Sottile and Williams, but joined them in pressing safety issues. See, e.g., HT 227-29 (Williams), 1119-20, 1170-71, 1195-96 (Byrd). Since Byrd did not arrive on the W55 line until late March, he did not witness the conflicts that arose soon after the others arrived. Byrd did attend the W55 safety meeting on February 29, however, and testified that he overheard Stone's disparaging comment about losing overtime because of the re-tooling shut-down. HT 1126-27, 1160-62 (Byrd).

   Upon his arrival Byrd was greeted by A Group PT Barton, who abruptly asked him if he had come to work on the W55 or to shut it down. HT 1124 (Byrd); see HT 1173-77 (Byrd). Although Barton denied making the remark, HT 1302-03, we find that Byrd's account is more reliable. The record indicates that Byrd was a candid witness. In contrast, we find that Barton's recall at the hearing was faulty. Barton testified that he could not remember attending a follow-up meeting that Herring held on March 6 to advise six A Group PTs that Williams was being reassigned to the W70. HT 1303-07 (Barton, being questioned about Herring's time line, in evidence as RX 43). We find this particularly significant in view of the fact that it was Barton who had scheduled a meeting earlier in the day with Herring, which then led to Williams' reassignment. HT 1060-61 (Herring), 1291-93 (Barton); RX 27. A reasonably reliable witness would have recalled a follow-up meeting in which Herring told the A Group PTs that their request for Williams' reassignment had been, in effect, granted. It is also significant that Barton denied that he carried high explosives without proper safeguards although three Complainants testified otherwise. Cf. HT 1297-99 (Barton) with HT 273-74 (Williams), 861-63 (Olguin), 1973-74 (Sottile). We therefore find that Barton greeted Byrd with a remark that was clearly antagonistic to whistleblowing activity when Byrd arrived to begin work on the W55.

   Byrd testified that Harter responded "very angrily" when PTs raised issues of non-compliance with safety guidelines or questions about specific units that were being dismantled. HT 1138-39 (Byrd). Byrd, like McQuay and other Complainants, said that his requests that W55 supervisors not store an excessive number of radioactive units in the W55 work area were unsucessful. HT 1127-30, 1178-82, 1193-96 (Byrd); see §IIE2 discussion of McQuay's request that the number of units in work area be limited, supra. As previously discussed, Byrd joined Olguin in pressing for a replacement eye-wash, which required "prolonged bickering" with Cole and Harter. HT 877-80, 927-30, 949-50 (Olguin), 1130-33, 1182-83 (Byrd); see HT 1501-03 (Harter), 1555-56, 1560 (Cole). Based on the foregoing evidence, we find that Cole and Harter were hostile and resistant toward Byrd when he expressed safety concerns.

   Byrd was reassigned to the W69 program on November 4. HT 1139 (Byrd). He filed a hostile work environment complaint under the ERA on November 19 and amended it on December 17 to include further HWE allegations. ALJX 5. Like Sottile, Byrd testified that, after he left the W55 and filed this complaint, Harter, Brito and Pontius were either ominously silent or openly rude. HT 1141-43, 1151-52 (Byrd); see HT 210 (Sottile). We therefore find that Harter, Brito and Pontius were hostile toward Byrd during the months immediately following his departure from the W55 because of protected activity.

6. Complainant Rodriguez

   Rodriguez was less active in pursuing safety concerns than the other Complainants, especially during the first half of the W55 program. See RX 14–20. Consequently, he was not personally targeted for the same hostile remarks as the other, more active, Complainants during the W55 training period and the initial months on line. See HT 958-63, 966-67, 971-75 (Rodriguez). However, when he did join other PTs in voicing safety issues, lower level supervisors demonstrated anger toward him. Most of these incidents arose when the PTs objected to a supervisor's disregard of NEOPs, or to the use of defective tools in violation of safety guidelines. HT 799-803 (McQuay), 958-63, 966-67, 971-75 (Rodriguez), 1134-35 (Byrd).

   In December Rodriguez supported McQuay in objecting to signing off on the pre-operations checklist because of the inaccurate photograph of the fire deluge system gauges. Like McQuay, Rodriguez testified that Brito, along with Hoops, a Facilities Management supervisor, reacted quite angrily and, later that day, Rodriguez was assigned to custodial work under the direction of the Facilities Management Division. HT 960-63, 972-73 (Rodriguez); see §IIE2 discussion of McQuay's reassignment and n.27 supra. Consequently, we find that Rodriguez experienced hostility and anger from W55 supervisory personnel when he voiced concern about safety matters. Rodriguez filed his ERA complaint on November 19. ALJX 4. On December 17, Rodriguez amended the complaint to include further allegations in support of his HWE claim. Id.

F. Conclusion that Complainants have established an actionable level of hostility related to protected activity

   We reiterate the legal standard for establishing an ERA HWE. Before establishing a basis for employer liability, an ERA complainant must establish by a preponderance of the evidence:

1) that he engaged in protected activity;
2) that he suffered intentional harassment related to that activity;
3) that the harassment was sufficiently severe or pervasive so as to alter the conditions of employment and to create an abusive working environment;
4) that the harassment would have detrimentally affected a reasonable person and did detrimentally affect the Complainant.

See Berkman v. U.S. Coast Guard Academy, ARB No. 98-056, ALJ Nos. 97-CAA-2, -9, slip op. at 16-17, 21-22 (ARB Feb. 29, 2000); discussion supra §IIB. We have concluded that the Complainants engaged in protected activity and suffered intentional harassment related to that activity. See discussion supra §§IID1, 2, 3. It remains for us to determine the level of hostility the Complainants have demonstrated and whether that hostility would have detrimentally affected a reasonable person and actually did detrimentally affect each of the Complainants.

   To evaluate the level of hostility – i.e., whether the Complainants have established the existence of an abusive working environment – requires consideration of the factors from Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993), factors, discussed above: the frequency and severity of the harassment; whether the harassment was physically threatening or humiliating, or merely offensive; and whether it unreasonably interfered with the complainant's work performance. Berkman, slip op. at 16-17 (quoting Harris, 510 U.S. at 23); In applying these factors we employ an objective standard and consider the impact that the harassment would have on a reasonable person, and the actual impact on the Complainants. Berkman, slip op. at 21; see Harris, 510 U.S. at 21-22; Green v. Adm'rs of the Tulane Educational Fund, 284 F.3d 642, 655-56 (5th Cir. 2002)(arising under Title VII). The Harris factors are illustrative and not a definitive list of requirements that must be met in order to establish an actionable level of hostility. Harris, 510 U.S. at 23. We consider all the "surrounding circumstances, expectations and relationships" in evaluating the workplace environment. Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75, 81-82; see Berkman, slip op. at 16 (quoting Harris, 510 U.S. at 23); We again emphasize that, above all, our evaluation of the workplace environment must serve the purpose of ERA whistleblower protection, which is to promote nuclear-related health and safety by encouraging the raising of safety related concerns. See discussion supra §IIB.

   The harassing incidents included in the foregoing summaries consist primarily of contentious remarks made by co-workers and supervisory personnel in response to the Complainants' safety-related concerns. Also included are four incidents involving express or implied threats of violence against Williams and Sottile. Consistent with the guidance provided by Oncale, the Board has carefully considered the "rough-and-tumble" plant culture where these HWE complaints arose. Although we recognize that the permissible range of give and take in the W55 workplace was broad enough to permit occasional intemperate remarks by PTs and lower level supervisors, the incidents evidenced in this case go far beyond that range. Instead, the antagonistic remarks were frequent and could only have had a chilling effect on voicing nuclear safety-related concerns. The mocking tone of many of the remarks, along with the threats of violence, contributed to an environment in which the prospect of ridicule and intimidation for engaging in protected activity was constant. Cf. Smith v. Esicorp, Inc., No. 93-ERA-00016, slip op. at 24-27 (Sec'y Mar. 13, 1996) (holding that sarcastic and derogatory cartoons, which depicted the complainant as a NRC whistleblower and were displayed on a lunchroom drawing board, contributed to a hostile work environment).

   Furthermore, the PTs were required to constantly consider nuclear safety – how best to avoid an accidental detonation and undue radiation exposure – and they were responsible for voicing their concerns. In view of the hostile response provoked by the raising of safety concerns on the W55, actual hostility or the potential for harassment pervaded all aspects of the Complainants' work. For example, when the Complainants encountered an anomaly in the construction of a weapon or the need to replace malfunctioning equipment, they faced the choice between provoking a confrontation with their immediate or second-level supervisor or both, remaining silent despite their well-founded safety concerns. We therefore find that the hostility on the W55 was pervasive.

   The Board also finds that the hostility had a tangible impact on the performance of the Complainants' jobs. Harter testified that Williams and Sottile were good technicians, and the record does not suggest that the other Complainants had not performed their duties satisfactorily. HT 1515 (Harter). Nonetheless, the animosity toward the Complainants clearly affected work relationships on the W55, particularly during the early months of 1996. See CX 2, 4. When conflicts between the A Group PTs and the Complainants persisted following the teamwork training in April, the first-line supervisors segregated most of the A Group from the Complainants, assigning the A Group primarily to the cell and the B Group primarily to the bay. HT 176-77, 211-12 (Sottile), 322-23 (Williams), 800-01 (McQuay), 1441-42, 1443 (Pontius). Although this helped to reduce interaction between the A Group PTs and the Complainants, it interfered with the maintenance of each PT's certification to perform the respective operations in the bay and the cell. HT 135, 176-77, 211-12 (Sottile); see also HT 1522 (Harter, testifying that supervisors "switched people around to try and keep them current in both operations"). DOE restricts the use of PTs in an operation – like either the W55 cell or the mechanical bay – where they are not currently certified. See HT 135-37 (Sottile), 553-58 (Ross), 1812-15 (Angelo). Assignment of the Complainants almost exclusively to the mechanical bay operation constituted an improper change in their working conditions. Cf. Berkman, slip op. at 17 (curtailing complainant's environmental compliance duties contributed to hostile work environment).

   The ALJ held that the memo ridiculed Varnadore and that posting the memo was retaliation for bringing the whistleblower complaint. The Secretary concurred. The Board was eventually asked to determine whether this incident created a hostile work environment. Id. at 70.

   Initially, the Board noted the Secretary's earlier determination that the concept of a hostile work environment applied to whistleblower cases. However, it concluded that the incident was isolated rather than pervasive and regular. Varnadore had not therefore, established that a hostile work environment resulted from this incident. Id. at 70-73. Nevertheless, the Board examined the company's reaction to the memo posting. It began by noting that the Supreme Court, in Meritor Savings Bank v. Vinson, 477 U.S. 57 (1986), clearly stated that employers are not to be held absolutely liable "for the acts of their supervisors regardless of the circumstances of a particular case." Id. at 73. The Board then adopted the Sixth Circuit's rule for determining an employer's liability for supervisory harassment that creates a HWE:

In a hostile working environment claim, the determination of whether an employer is liable for its supervisor's actions depends on 1) whether the supervisor's harassing actions were foreseeable or fell within the scope of his employment and 2) even if they were, whether the employer responded adequately and effectively to negate liability.

Varnadore (1996), slip op. at 75, citing Pierce v. Commonwealth Life Ins. Co., 40 F.3d 796, 803 (6th Cir. 1994) (emphasis added). The Board also cited a similar holding in the Second Circuit's Karibian v. Columbia Univ., 14 F.3d 773, 780 (1994). Varnadore (1996) slip op. at 74-75. Then, applying Pierce, the Board concluded that management's response had been immediate and effective and, therefore, "sufficient to negate any possible liability for [the supervisor's] actions." Id. at 76-78.

   The Board applied what is typically referred to as the negligence, or notice liability, standard for evaluating employer liability in supervisory harassment Title VII cases. See Elizabeth M. Brama, The Changing Burden of Employer Liability for Workplace Discrimination, 83 Minn. L. Rev. 1481, 1493-94 and authorities there cited (1999). The negligence standard is also referred to as a theory of direct liability because it looks to the employer's actions, rather than those of the harassing employee, to determine whether liability will attach. Burlington Industries, Inc. v. Ellerth, 524 U.S. 742, 758-759 (1998); Williamson v. City of Houston, 148 F.3d 462, 465-66 (5th Cir. 1998) and cases there cited; see Brian C. Baldrate, Agency Law and the Supreme Court's Compromise on "Hostile Environment" Sexual Harassment in Burlington Industries, Inc. v. Ellerth and Faragher v. City of Boca Raton, 31 Conn. L. Rev. 1149, 1155-61 (1999); David Benjamin Oppenheimer, Exacerbating the Exasperating: Title VII Liability of Employers for Sexual Harassment Committed by Their Supervisors, 81 Cornell L. Rev. 66, 97-98 (1995).

   The negligence standard is the only one Federal courts have applied for determining liability in co-worker harassment Title VII HWE cases. Faragher v. City of Boca Raton, 524 U.S. 775, 799 (1998); see Wright-Simmons v. City of Oklahoma City, 155 F.3d 1264, 1270 (10th Cir. 1998) (Title VII case involving race-based hostile work environment); see also Varnadore (1996), slip op. at 77-78 (discussing standard for employer's remedial action for co-worker harassment under the Title VII case of Baskerville v. Culligan International Co., 50 F.3d 428, 431-32 (7th Cir. 1995)). Furthermore, in the wake of Ellerth and Faragher, discussed below, the negligence standard remains viable. Federal courts continue to apply the negligence test to determine employer liability for supervisory harassment in Title VII cases. See, e.g., Dees v. Johnson Controls World Services, 168 F.3d 417, 421-22 (11th Cir. 1999); Wilson v. Tulsa Junior College, 164 F.3d 534, 541 n.4 (10th Cir. 1998).

   Under the negligence standard, an employer is liable for an employee's harassing conduct if the employer knew, or in the exercise of reasonable care should have known, of the harassment and failed to take prompt remedial action. See Miller v. Kenworth of Dothan, Inc., 277 F.3d 1269, 1278 (11th Cir. 2002); Wilson, 164 F.3d at 540-43. To avoid liability an employer must take both preventive and remedial measures to address workplace harassment. Wilson, at 540-42. An employer who fails to provide an adequate procedure for raising harassment complaints has not exercised reasonable care to ensure that it receives notice of the harassment, and cannot thereafter successfully defend on grounds that it did not receive actual notice. Instead, the employer will be deemed to have constructive notice of the harassment. See Sharp v. City of Houston, 164 F. 3d 923, 930-31 (5th Cir. 1999); Wilson, 164 F. 3d at 542. Constructive notice may also be imputed to the employer if the harassment was so severe and pervasive that management should have known about it. See Miller, 277 F.3d at 1278-79. Once an employer has been put on notice of the harassment, the question becomes whether the employer has addressed the harassment claim "adequately and effectively." Varnadore (1996), slip op. at 74-75, discussed supra.

2. Arguments of the parties.

   The ALJ found that co-worker harassment existed on the W55, but he concluded that it was not related to protected activity. Nevertheless, he addressed management's efforts to correct the harassment, and, applying a negligence analysis, determined that the Respondent had acted "promptly and responsibly to correct" the hostilities on the W55. R.D.&O. at 1-2, 63-64; see RD&O at 61-64. The Complainants assert that the ALJ erred in finding that the Respondent took prompt remedial action. They urge us to apply the vicarious liability standard for determining an employer's liability which the Supreme Court established in the Ellerth and Faragher decisions, cited above and discussed more fully below. The Complainants also contend that, even under a pre-Faragher analysis, the Respondent cannot avoid liability. Comp. Supp. Reply at 6-7, 8-10, 21-25. The Respondent asserts that the Ellerth and Faragher standard does not apply because this is an ERA case and does not involve supervisory harassment. Alternatively, the Respondent argues that, if necessary, it is entitled to rely upon the Ellerth and Faragher affirmative defense because it took no tangible employment action against the Complainants, the essential condition precedent for invoking the defense. Resp. Supp. Brief at 2-12, 19-23, see discussion, infra.

   We now explain why we conclude that the Varnadore (1996) negligence analysis is the proper standard for determining employer liability in this ERA hostile work environment case involving both co-worker and supervisory harassment.

3. The Ellerth and Faragher affirmative defense and the Board's conclusion about the employer liability standard.

   After the Supreme Court's 1986 decision in Meritor, but prior to Ellerth and Faragher in 1998, the Courts of Appeals developed variations on the themes of strict, vicarious, and notice liability and applied different standards to determine employer liability under Title VII where a supervisor's sexual harassment created a hostile work environment. See Oppenheimer, 81 Cornell L. Rev. at 131-40 and cases there cited; Fredrick J. Lewis and Thomas L. Henderson, Employer Liability for "Hostile Work Environment" Sexual Harassment Created by Supervisors: The Search for an Appropriate Standard, 25 U. Mem. L. Rev. 667, 674-76 (1995). These divergent standards prompted the Supreme Court to grant certiorari in Ellerth and Faragher. Ellerth, 524 U.S. at 749-51; Faragher, 524 U.S. 785-86.

   These two decisions modified the standards that had been developing since Meritor. The Court essentially struck a compromise between imposing strict liability on the employer and requiring an employee to establish that the employer had been negligent. See Baldrate, 31 Conn. L. Rev. at 1176. Where the complainant establishes an actionable hostile work environment created by supervisory harassment that culminates in a "tangible employment action," the employer is liable. Faragher, 524 U.S. at 807; Ellerth, 524 U.S. at 764-65. Where, however, the employee suffered no tangible employment action, the Court shifted the burden of proof and permitted the employer to raise an affirmative defense to liability or damages for supervisory sexual harassment. The employer must show, by a preponderance of evidence, that it "exercised reasonable care to prevent and correct promptly any sexually harassing behavior" and that the employee "unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise." Faragher, 524 U.S. at 807; Ellerth, 524 U.S. at 765.

   Before discussing when higher management received actual notice of the harassment against the Complainants, we address the procedures that were available at the Pantex plant for providing such notice. The record establishes that the Respondent had a published whistleblower protection policy and a means for filing reprisal complaints that had been in place at least since August 1993. RX 9, 132, 144; HT 1843-45 (Weinreich). That policy encouraged employees to raise concerns regarding "unsafe, unlawful, fraudulent, or wasteful practices," and it forbade reprisal against whistleblowers who raised such concerns, internally, to DOE, or to Congress. RX 9, 132, 144. In addition, the policy, which was disseminated as a bulletin to Pantex employees, stated that employees who declined to engage in practices that they believed to be "illegal or dangerous" would not be retaliated against. Id. The bulletin also provided employees with the names and telephone numbers of management," personnel they could contact to file complaints of reprisal. Id.

   In November 1995, plant manager Weinreich issued a bulletin advising employees that an Employee Concerns Program (ECP) had been established as "a formal system through which employees may report concerns associated with safety, health, security, environment, fraud, waste, abuse or mismanagement," or reprisal for raising such concerns. RX 133; HT 1845-46 (Weinreich). Weinreich testified that the ECP was set up pursuant to DOE directive, and that he had transferred the ECP from the Human Resources division to his direct supervision in order to make it independent of the usual chain of supervisory command. HT 1845-46, 1910, 1913-14 (Weinreich). Weinreich also testified that other avenues, including telephone hotlines, were available for employees to raise concerns within the plant. HT 1846, 1901-02 (Weinreich); see RX 103; HT 1647-48 (Robin McLaurin, ECP Manager.).

   The evidence establishes that Weinreich was not made aware of the anti-whistleblower harassment until late in March 1996. Although the lower and middle-level supervisors then assigned to the W55 – Herring, Brito, Carry, Long, and Pontius – were aware of hostilities among W55 personnel and were contributing to the hostility toward the Complainants, higher management was not given an accurate picture of what had transpired on the W55 until Weinreich received Meyer's investigative report, CX 2, in late March. Prior to that time, Weinreich's actual knowledge of conflicts among W55 personnel was limited. He had attended part of the safety meeting held by Carry and Herring on February 29, had a brief meeting with Barton and Heuton when Herring brought them to his office on February 29, and had been advised by Herring of the A Group's complaints about Williams on March 6. See HT 1054-59, 1258-60 (Herring); 1017-22, 1753-55 (Angelo); 1921-26 (Weinreich). Around February 23, Weinreich and Angelo had received a copy of Williams' letter to Herring regarding the safety issues Williams had discussed on February 20 with Herring, Carry and Long. CX 27; RX 43; HT 1019-22, 1753-55 (Angelo), 1242 (Herring). That letter did not, however, complain of hostilities on the W55 operation. RX 13/CX 24.

   The record also contains no suggestion that any of the Complainants had filed a harassment complaint with ECP or had proceeded through other channels prior to March 6, which is when Weinreich appointed Meyer, another manager, and union official Frank George to investigate the W55 hostility issues that were presented to Weinreich by Herring. Weinreich did receive a letter from Williams on March 8 concerning hostilities on the W55. HT 1865-66 (Weinreich); CX 28. Weinreich replied with a letter asking Williams to cooperate with ECP head McLaurin in an investigation of Williams' concerns, which Weinreich would then review. HT 1866-67 (Weinreich); RX 30. Williams did not accept this suggestion but instead met with McLaurin on March 27 and asked for a meeting with Weinreich, the Legal Department, and ECP staff. HT 1866-67 (Weinreich), 1630-33 (McLaurin); RX 110. The meeting was held on April 2. HT 308-11, 471-73 (Williams), 1867-70 (Weinreich); RX 41. By this time, of course, Weinreich had received Meyer's report. HT 1867-68 (Weinreich); see CX 2. We conclude that, prior to receiving Meyer's report in late March, neither Weinreich nor other high level managers had actual knowledge that intervention to address harassment of the Complainants was warranted. Cf. Sharp v. City of Houston, 164 F.3d 923, 929 (5th Cir. 1999) (in Title VII case, employer has actual knowledge of harassment when higher management or someone who can remedy the problem receives notice).

   We further conclude, based on the whistleblower protection policy that was in place, that the Respondent had exercised due care to ensure that a "reasonable avenue for complaint" was available. See Varnadore (1996), slip op. at 74-75; cf. Sharp, 164 F.3d at 931-32 (evidence that city provided no viable means for reporting harassment in a police unit that was isolated from higher management supported a finding of constructive notice). Consequently, the evidence does not establish that higher management should have known, in the exercise of reasonable care, that intervention to address the harassment was warranted until it received the Meyer report in late March.

   We turn now to the remedial action higher management took to address that harassment, beginning with the April 2 meeting with Williams and his attorney. At this meeting, Weinreich agreed that Williams would be reassigned to the W55. HT 1867-68 (Weinreich); RX 41. To prepare for Williams' reintroduction to the program, Angelo met with W55 PTs on April 2 to explain that Williams was returning and to caution them that reprisals against whistleblowers would not be tolerated. HT 1779-80 (Angelo); RX 42, RX 79 at M&H000018-19, RX 97. He also attempted to appeal to a sense of team-work and camaraderie among the A Group PTs who were antagonistic to Williams. RX 97 at M&H000248 (Cole's summary of Angelo's remarks, including, "[Williams] was removed from his position, how would you feel"); see also HT 489-91 (Williams, testifying that he objected to Angelo's remarks because Williams did not want to be "classified as a whistleblower."). Of more far-reaching effect, however, was the April shut-down of W55 operations for training and a NEOPs review, which Weinreich and Angelo initiated. See RX 40, 62. Cole testified that, upon replacing Carry as the W55 Program Manager in late March, he was directed to immediately complete work on a training plan to address the hostile work environment covered in Meyer's report. HT 1531-34 (Cole); see HT 1762-66 (Angelo); RX 43, 97. In April, the entire W55 staff was scheduled to complete 40 hours of instruction regarding team-building and other workplace interaction. HT 1533-35, 1541 (Cole), 1680-81 (Robert Rowe, Human Resources Manager), 1763-64 (Angelo); see HT 475-80 (Williams). Higher management's decision to involve the W55 PTs and other staff in a review and modification of the W55 disassembly process, along with the team-building and related training, was a significant step in addressing the hostile work environment. See RX 40, 62; HT 1535-39 (Cole), 1766-68, 1772-73 (Angelo). Although management had already initiated a plan to improve W55 – and other – weapons program training in order to address the training deficiencies that the Complainants had raised and that the Meyer report had confirmed, the NEOPs review and re-write provided validation of the Complainants' concerns about the W55 disassembly process itself. See CX 41; RX 45, 79, 116; HT 204-06 (Sottile), 1772-78 (Angelo).

   In April and May, higher management also initiated other actions to address friction in the W55 work environment. Management conducted a root cause analysis of the Meyer report findings. CX 3; HT 1815-20 (Angelo). That analysis concluded that supervisory inadequacies contributed to the growth of hostilities on the W55. CX 3. Angelo testified that management hoped to correct these inadequacies through its "W55 Employee Concern Action Plans." HT 1772, 1820, 1833-34 (Angelo); see RX 40, 62, 79, 124. In addition to the team-building and related training required of the entire W55 team, those Action Plans provided for higher management to hold separate discussions regarding "lessons learned" and professional conduct with the W55 PTs and a similar discussion with W55 supervisors. RX 79 at M&H000015, 18. Angelo covered that topic in his April 2 meeting with the W55 PTs, and higher management met with the W55 supervisors on April 8. Id. at M&H000020; see RX 97 at M&H000248. The Action Plans also called for enhancements to supervisory training "to further address employee concerns." RX 79 at M&H000015, 18-20. Angelo distributed a memorandum regarding "Team Building Lessons Learned" to lower and middle level managers on June 4, 1996. RX 63. The memorandum notes that "institutional processes or lack thereof" at the plant had contributed to development of a hostile work environment on "one of our startup activities", and it provides in-depth guidance for avoiding future hostility. Id. The memorandum contains two particularly relevant points about how a supervisor should respond when PTs raise safety issues. First, the memorandum states, "Line managers allowed technical issues to become personal and emotional issues," and emphasizes that supervisors must "act promptly on technical concerns and keep them out of the realm of personal issues." Id. at M&H002531. The memorandum also states, "[M]anagers have a tendency to ‘spotlight' individuals when issues are raised. . . . [T]he technicians tend to do the same thing," and cautions that supervisors "must ensure that no one is made to feel that they are ‘on trial' or placed under a magnifying glass." Id.

   Changes in supervisory training were initiated in April and May 1996. Robert Rowe, the Human Resources manager, testified that various "sensitivity" courses were added to the mandatory training requirements for managers and supervisors. HT 1656-58 (Rowe); see RX 2. He also testified that the plant had already implemented whistleblower training for supervisors in February, and that such training was converted to address the overall handling of employee concerns in March 1996, when a nuclear industry consultant with experience in representing whistleblower interests was engaged to teach the course. HT 1660-62, 1680 (Rowe). In May, management mandated training for middle and lower level supervisors and in July began to schedule further courses in workplace conflict and teamwork, totalling 40 hours of instruction. HT 1658-59, 1679 (Rowe); RX 2. In addition, rank and file employees were required to take a four-hour course concerning team-building and effective workplace communication. HT 1658, 1662, 1675, 1677 (Rowe). Rowe testified that, by the time the ALJ heard this case in June, 1997, approximately half of the rank and file employees had completed the four-hour course, with the remainder expected to finish by September 1997. Approximately half of the supervisors and managers had completed the 40-hour block of instruction, and the rest were expected to complete that by July or August 1997. HT 1660, 1675 (Rowe); see RX 124 at M&H002597.

   Weinreich and Angelo were personally involved in addressing hostility on the W55 after receiving Meyer's report. Weinreich met with Williams on April 2. Angelo met with the W55 PTs on the same day to announce Williams' return. Angelo, who was responsible for all the weapons manufacturing programs at the plant, also attended the first and last session of the W55 team-building training in late April, addressed the group, and took questions. RX 51, 59; HT 1768-70 (Angelo); see CX 4 at 21-23. An April 26 memorandum from Cole to Angelo, which begins, "Randy [Williams] wanted us to pass on to you a status of the Team training," indicates that Williams recognized Angelo's interest. CX 48; see HT 1768-70 (Angelo). Furthermore, Angelo met individually with McQuay, who had missed most of the team building and NEOPs review because of military reserve duty, to discuss the points that Angelo had covered in his remarks to the W55 team earlier in the month. RX 59; HT 798 (McQuay), 1534-35, 1565-66 (Cole), 1770-71 (Angelo). Weinreich testified that, in late April, he and Williams discussed how management was handling the issues that Williams had raised in the April 2 meeting. HT 1870-72, 1876, 1941-43 (Weinreich).

   Management began taking these actions within days after Weinreich and Angelo received the Meyer report. These actions addressed safety concerns about the W55 disassembly process and the need to improve co-worker and supervisory response to the raising of those concerns. We find, therefore, that once it received notice of the harassment on the W55, the Respondent took prompt action to correct the hostile work environment. See Varnadore (1996), slip op. at 74-75.

   We also find that the actions the Respondent took were effective in addressing whistleblower harassment on the W55. See Varnadore (1996), slip op. at 74-75. Although the Complainants urge that the staff training, procedures review, and related actions in April 1996 failed to reduce the harassment, the evidence does not support that view. Despite some of the more egregious instances of harassment occurring in the weeks immediately following the April training and NEOPs review – including A Group PT Barton's confrontation with Sottile and Protsman's second off-site confrontation with Williams – the evidence does indicate a reduction in the number of harassing incidents occurring after the April shut-down. See discussion supra §IIE. The Complainants' testimony indicates that workplace relationships with some formerly antagonistic PTs improved during this period, although Barton was a notable exception. HT 138-40, 175-79 (Sottile), 322 (Williams), 926 (Olguin), 969-70 (Rodriguez). In addition, Angelo and Weinreich gave uncontradicted testimony that no new hostile work environment issues were brought to their attention from late April until late June or early July. HT 1782-83, 1837 (Angelo), 1876 (Weinreich).

b. The June – December 1996 period

   In late June, Weinreich received an e-mail from George, the chief union official at Pantex, advising that Williams had recently raised issues with George about safety and hostility on the W55. HT 1875-76 (Weinreich). In response, Weinreich set up two meetings between Williams and managerial staff. Weinreich scheduled a July 1 meeting for Williams, George, and, in Angelo's absence, other Manufacturing Division managers, including VanArsdall, Rhoten and W55 middle level supervisor Brito. HT 1877; RX 66; see HT 1837-38 (Angelo). Weinreich also scheduled a July 2 meeting with Williams, George and himself. HT 1877-78 (Weinreich); RX 66. After Angelo's return, a follow-up meeting was scheduled between Williams, George, Van Arsdall, Angelo, Rhoten and Cole, to discuss the status of management action on the issues Williams had raised. RX 71.

   Williams' concerns ranged from the failure of some PTs to wear personal protective equipment as required during certain W55 disassembly steps to the question of why he had not been certified in the disassembly process. RX 66, 71; RX 97 at M&H000250; see HT 325 (Williams). In response, the Manufacturing Division managers addressed Williams' concerns. Weinreich drafted various versions of a plant-wide notice requested by Williams, which related the contributions whistleblowers like Williams had made to plant safety. RX 65, 67, 74, 76, 77; HT 1877-82, 1887-89 (Weinreich). The Respondent submitted documentary evidence that supports Weinreich's testimony that his versions of the notice did not satisfy Williams. See RX 65, 67, 77. No notice was issued. Id.

   In the July 1 and 2 meetings, Williams questioned whether the team-building training had been effective because "some friction" remained among the W55 team members, but the record does not indicate that he reported any specific incidents of harassment in those meetings. RX 66, 71; see HT 323-29 (Williams). Williams did report two incidents of harassment directly to Weinreich, in late June or early July, and Weinreich took action on both. First, Williams testified that he talked to George after Protsman confronted him for the second time, and they both spoke with Weinreich about the need to address the issue with Protsman. HT 324-25 (Williams); see CX 4 at 20, 24-25. Weinreich testified that he directed that Protsman be counseled regarding professional conduct, on and off-site. HT 1883-84 (Weinreich). Although Williams testified that Protsman was not counseled until "much later," HT 496-97, Noonan's September investigation found that Protsman had been counseled by that time, CX 4 at 24-25.

   The second incident that Williams took directly to Weinreich in early July concerned the FBI investigation that was triggered by a "tip" from the W70 PT who had threatened Williams in March. HT 326-29 (Williams); see CX 4 at 25. Specifically, the W70 PT alleged that Williams was disclosing classified information to unknown persons. CX 5 at 000440. The record does not support Williams' argument that Broaddus, the Security and Counter-intelligence Officer at the plant, acted on the "tip" in a manner intended to harass Williams. CIB 28. Rather, the FBI documents in evidence corroborate Broaddus' testimony that he contacted the local DOE office to discuss the information that he had received from the W70 PT, and DOE officials – not Broaddus – contacted the FBI. CX 5 at 000440; HT at 1622-26, 1628 (Broaddus). Furthermore, the FBI documents indicate that Weinreich expressed concern that a further, arguably unwarranted, investigation could create the appearance of retaliation against a whistleblower. CX 5 at 000443-444. Finally, Weinreich's testimony that he directed that the Respondent's own staff not pursue an investigation of the matter is uncontradicted. HT 1882-83 (Weinreich).

   Also in July, Weinreich received feedback from the local DOE office regarding concerns that Williams had raised about the effectiveness of the Pantex Employee Concerns Program. HT 1918-21, 1938, 1939 (Weinreich). Then on July 26, Williams filed his ERA complaint with the OSHA regional office. ALJX 1. Both Angelo and Weinreich testified that they believed the actions they had taken in response to the issues that Williams raised in early July had been satisfactory to Williams. HT 1836-39 (Angelo), 1876, 1884-87, 1891-92 (Weinreich). Weinreich's testimony is uncontradicted that he had two exchanges with Williams after management began to address the issues raised by Williams on July 1 and 2, and that in neither instance did Williams raise any objection to the way the issues were being handled. HT 1884-85 (Weinreich). Weinreich's testimony and a corroborating e-mail from George, who had been acting as intermediary between Weinreich and Williams regarding the various versions of the plant-wide notice that Weinreich had drafted, establish that George also believed that Williams was satisfied with the way management was addressing the issues he had raised. George, too, was surprised when Williams filed the ERA complaint. HT 1885-87 (Weinreich); RX 73.

   In August, Mason & Hanger engaged two consultants from the nuclear industry to address issues raised in Williams' ERA complaint and issues about the Employee Concerns Program. First, it hired an industry consultant, who had been providing training for supervisory personnel, to review the Employee Concerns Program and to make recommendations for enhancements. RX 75; HT 1847-50 (Weinreich). The Respondent also set up an employee committee to provide input regarding the revamping of the ECP. HT 1847-49 (Weinreich). The recommendations for improvements to the ECP were submitted in late August, CX 107, and Weinreich testified that two primary changes had been made by the time the hearing was held. HT 1849-54 (Weinreich). One of the changes was to ensure the confidentiality of the complaint process. HT 1849-50 (Weinreich). The other was to establish an appeals council, composed of individuals from both inside and outside the plant. HT 1850-54 (Weinreich); see HT 1721, 1738-40, 1750 (Noonan). Weinreich also testified that one change yet to be made was the addition of an ECP staff person with technical expertise in nuclear issues. HT 1910-12 (Weinreich). Perhaps most importantly, the company requested input about developing the appeals council from the public interest group that provided the Complainants' counsel in this case. HT 1850-51 (Weinreich); see HT 1738-40 (Noonan).

   The foregoing sequence of events, which began in June, indicates that the Respondent, usually through the actions of Weinreich and Angelo, moved quickly to address any recurrent or continuing problems on the W55 that were brought to higher management's attention. Although Noonan's report provided some information regarding hostilities, in general, on the W55, Williams was the only Complainant who communicated with higher management that he had been the target of harassment. Although the others have demonstrated that lower and middle-level supervisors harassed them during the latter months of the W55 program, the record does not establish that higher management knew or, in the exercise of reasonable care, should have known that such incidents were occurring. For example, Sottile had raised his concern about the May altercation with Barton to Cole. Olguin and Rodriguez had raised their concerns about an incident with Moore to Brito and Cole. However, the record contains no suggestion that such concerns reached higher management. See RX 97 at M&H000249; HT 138-40, 177-79 (Sottile), 674-77 (Brito), 866-72, 932, 1984-85 (Olguin), 1526-27 (Cole). We find that neither Angelo nor Weinreich was aware, prior to the filing of the other five hostile work environment complaints in mid-November, that W55 PTs other than Williams believed they were the targets of either co-worker or supervisory harassment. See HT 1836-39 (Angelo), 1880-81, 1884 (Weinreich).

   In September, Noonan found that some PTs believed that the ECP was "a waste of time." CX 4 at 21. Even if the other five Complainants shared this view, Williams' testimony indicates that Weinreich had an established "open-door" policy. HT 297 (Williams). Particularly in view of Weinreich's accessibility to Williams since April, the other Complainants should have recognized that Weinreich would be interested in their concerns. Another important fact is that Weinreich and Angelo had shown their willingness to entertain safety concerns about the W55 disassembly process. At hearing, Sottile contrasted Weinreich's February 29 direction that W55 cell operations be suspended for re-tooling with the negative reaction of W55 supervisors to safety-related concerns. HT 111-12 (Sottile). McQuay's testimony suggests a similar recognition that higher management was likely to be receptive to safety concerns raised by the PTs. McQuay testified that it was "[a] constant battle to get issues past the first and second-line supervisors to someone who would listen." HT 1959-60 (McQuay). The Complainants were doubtlessly aware that neither Angelo nor Weinreich was involved with day-to-day W55 operations. See HT 1784-85 (Angelo). Unless the PTs dealt directly with them, Weinreich and Angelo would not know that lower and middle supervisors responded negatively to safety concerns or disregarded safety guidelines.

   We therefore conclude that, even if the Complainants believed that filing a complaint with the ECP in the latter months of 1996 was not worthwhile, they could have instead voiced their concerns directly to Weinreich or Angelo. Weinreich's action after he received notice that the other five Complainants had filed ERA complaints in November provides further support for this conclusion. Within days after the filings, Weinreich scheduled meetings with them and George, the union official, to discuss their concerns. HT 1893-94 (Weinreich). However, on November 26, Sottile telephoned Weinreich's office and cancelled the meetings, stating that he and the others preferred not to meet with Weinreich without their attorney present. HT 1894 (Weinreich); RX 91; see HT 939 (Olguin).

   The record also contains no indication that Williams, who had been present when the others were harasssed during the latter months of the program, alerted Angelo or Weinreich about such incidents. Weinreich's attempt to speak with Williams as soon as he learned that Williams had resigned on November 27, as well as the conciliatory letter Weinreich sent to Williams, attest that he was still available to discuss Williams' concerns as they developed. HT 1891-93 (Weinreich); RX 93. The evidence also establishes that, at the time of the hearing, management was continuing to address deficiencies of lower and middle supervisors and to further enhance the effectiveness of its Employee Concerns Program. HT 1820-21 (Angelo), 1910-12 (Weinreich).

   Particularly in view of Weinreich's accessibility, as well as the emphasis that Angelo and Weinreich placed on safety, we conclude that the Complainants were not justified in failing to alert higher management to their concerns in the latter months of the W55 program, either through filing an ECP complaint or by directly communicating with Angelo or Weinreich, or both. Cf. Woods v. Delta Beverage Group, Inc., 274 F.3d 295, 300-01 (5th Cir. 2001) (holding in Title VII case that harassed employee did not have objective basis to conclude that it would be futile to notify employer of recurrence of harassment). In the absence of such action on the part of the Complainants, higher management could properly feel confident that the hostile work environment had been corrected.

c. Conclusion regarding employer liability

   The ALJ summarily concluded that Williams' working conditions were not so intolerable that a reasonable person would have felt compelled to resign, but he did not provide factual findings to support that conclusion. RD&O at 64-66. The ALJ did, however, discredit Williams' testimony that he left employment because of the working conditions. Instead, he found that Williams' departure was "premeditated," as Williams had planned to leave Pantex within a matter of months. Id. at 65-66. Whether or not Williams had determined in advance to terminate his employment at Pantex on November 27, we find that the uncontradicted evidence of record establishes that Williams' working conditions were not intolerable.

   We have concluded that a hostile work environment existed on the W55 but, as noted, proof of intolerable working conditions imposes a higher burden. Harter's confrontation of Williams on November 27 because of the delay in returning with the W55 work area keys clearly precipitated Williams' departure. See discussion supra §IIE1. Harter was angry because DOE representative Ross had stopped Williams and Sottile en route to discuss the crushed detonator incident of the previous day. Harter had also become angry the previous day when resisting the PTs' concern about the crushed detonator cable.

   On the other hand, the uncontradicted evidence indicates that Williams' working conditions for the weeks preceding November 27 had improved in various ways. As the ALJ stated, Williams had received the favorable OSHA decision on his ERA hostile work environment complaint only a few work days before November 27. RD&O at 65; ALJX 1. Other members of the B Group had joined Williams in alleging that a HWE existed on the W55, by filing ERA complaints a few days before the November 21 decision in Williams' favor was issued. ALJX 2 - 6. The W55 was nearing completion. Other PTs had been reassigned elsewhere but Williams had been retained on the W55, apparently because of the quality of his work. HT 1515 (Harter). Furthermore, the evidence does not indicate an escalation in harassing actions toward Williams in the weeks before he left work on November 27. Rather, the harassing incidents that occurred in October and November concern almost exclusively the other Complainants' exchanges with Harter and Brito, as opposed to harassment directed at Williams. See summary supra ' IIE. In addition, on November 27 Ross had assured Williams that the concern about the detonator cable was valid and that he was going to pursue the matter. HT 546-48, 551 (Ross).

   Finally, even when we limit our analysis of the constructive discharge allegation to the confrontation between Williams and Harter on November 27, we do not find that Williams established intolerable work conditions immediately preceding his resignation. Despite Harter's angry remarks about Williams' brief discussion with the DOE representative, Williams had alternatives available to remove himself from the harassing situation. See generally Perry v. Harris Chernin, Inc., 126 F.3d 1010, 1015 (7th Cir. 1997) (except in extraordinary circumstances, Title VII complainant is expected to remain on the job while seeking relief from harassment). Rather than leaving the plant on November 27, Williams could have left the W55 work area and discussed the situation with Weinreich, Angelo, or even George, the chief union official in the plant. As we discussed in analyzing the Respondent's remedial efforts, Weinreich had continued to maintain open channels of communication with Williams since April 1996. See discussion supra §IIG3. Furthermore, Weinreich and Angelo consistently responded to PTs' concerns about W55 operations that were brought to them. See id.

   Williams could have chosen to seek relief through measures short of resignation. This fact is reinforced by the letter that Weinreich, the plant manager, sent to Williams later on the day he left the plant, and Williams' response to it. In this November 27 letter to Williams, Weinreich stated that he was disappointed to learn of Williams' resignation and asked him to return to work at Pantex. Weinreich also invited Williams to contact him and indicated that he would be happy to meet with Williams at his home. RX 93; HT 346-47 (Williams), 1891-93 (Weinreich). Williams could have withdrawn his resignation when Weinreich gave him the opportunity soon after November 27. Instead, Williams responded by letter dated December 1, stating that he had thought about leaving Pantex for some time before November 27. He also stated that he would return to the plant "if my complaints can be satisfactorily resolved, my attorneys paid, and continued abuse brought to an end," and that the "terms" of his return to the plant should be discussed with his attorney. RX 96.

   For all the foregoing reasons, we conclude that Williams failed to establish that a reasonable person in his situation on November 27 would have felt compelled to resign.

IV. SOTTILE'S NON-SELECTION FOR PROMOTION CLAIM

   Inasmuch as Sottile has not proven that he was rejected in favor of a similarly qualified candidate, he has not established an adverse action of failure to promote under the ERA. Based on this conclusion, we need not examine further evidence relevant to his non-selection claim, including evidence of retaliatory intent.

   We conclude that the six Complainants – Williams, McQuay, Sottile, Olguin, Byrd and Rodriguez – established the existence of a hostile work environment on the W55 but failed to establish employer liability for that environment. We also conclude that Williams, McQuay, Sottile and Rodriguez failed to sustain their temporary reassignment claims, that Williams failed to sustain his constructive discharge claim, and that Sottile failed to sustain his non-promotion claim. These complaints are therefore dismissed.

   SO ORDERED.

       OLIVER M. TRANSUE
       Administrative Appeals Judge

       WAYNE C. BEYER
       Administrative Appeals Judge

           M. CYNTHIA DOUGLASS
       Chief Administrative Appeals Judge