DATE: October 31, 1995
CASE NO. 91-ERA-20
IN THE MATTER OF
FRANK BAUSEMER,
COMPLAINANT,
v.
TU ELECTRIC,
RESPONDENT.
BEFORE: THE SECRETARY OF LABOR
FINAL DECISION AND ORDER
Before me for review is the Recommended Decision and Order
(R. D. and O.) issued on January 31, 1992, by the Administrative
Law Judge (ALJ) in this case arising under Section 210 (employee
protection provision) of the Energy Reorganization Act of 1974
(ERA), 42 U.S.C. § 5851 (1988).[1] The ALJ has recommended
that the complaint of retaliatory blacklisting be dismissed
because it is time-barred and because Complainant failed to prove
that Respondent unlawfully denied him employment. While I
disagree with the ALJ on the timeliness issue, I agree that
Complainant has not prevailed on the merits of the complaint.
Accordingly, the ALJ's decision is adopted as explained below.
FACTUAL BACKGROUND
Between October 1987 and March 1988 and during most of 1989,
Complainant Frank Bausemer was employed at the Comanche Peak
Steam Electric Station (CPSES), a two-unit nuclear power plant
located at Glen Rose, Texas. CPSES is owned and operated by
Respondent Texas Utilities (TU) Electric Company which utilized a
multitude of contractors for construction and operation of the
plant, including Ebasco Services, Inc., Fluor Daniel, Inc., and
[PAGE 2]
Brown and Root, Inc. During 1989 Complainant was employed at
CPSES by Fluor Daniel as a Quality Control receiving inspector.
Receiving inspectors operate within Respondent's Procurement
Quality Assurance group and are responsible for inspecting
incoming material to ensure that it meets applicable standards.
Complainant was laid off effective November 3, 1989.
Complainant was notified of his layoff on the afternoon of
the November 2 "Thermo-Lag incident." Earlier, Complainant and
Forbee Harper, another Quality Control receiving inspector, had
discovered that a large percentage of Thermo-Lag panels were
deficient in that they failed to meet minimum thickness
requirements.[2] An argument ensued after Willie Wolfe, a lead
inspector, instructed Complainant and Harper to report the
deficient panels and Greg Bennetzen, a superior, countermanded
the instruction. Bennetzen considered Complainant to be a "knit-
picking" inspector and had threatened to lay him off if he ever
were in a position to do so. Hearing Transcript (T.) 8/21/91 at
473.
Complainant thereafter complained to the Citizens'
Association for Sound Energy (CASE), a nuclear safety citizens'
group; the CPSES SAFETEAM, an employee concern contractor; and
the Nuclear Regulatory Commission (NRC). Complainant also filed
an ERA section 210 discrimination complaint against TU Electric,
Fluor Daniels, and Brown and Root. In settlement of the
complaint, the respondents agreed that Complainant "will be
fairly and equitably considered for any further employment at
CPSES Unit 2, when construction commences, and during refueling
outages at Unit 1, provided that he apply for and be qualified
for the positions available at [CPSES]." TU Electric was cited
by the NRC as the result of the Thermo-Lag incident and paid a
fine of $25,000. The Notice of Violation provided in part:
[O]n November 2, 1989, Quality Control receipt
inspectors were not provided with adequate authority
and organizational freedom to identify quality problems
and initiate, recommend and provide solutions in that,
they were told by their supervisors that defective
[Thermo-Lag] conduit sections were not to be documented
on nonconformance reports as required by station
procedures.
Complainant Exhibit (C-Exh.) 24.
In early 1990, Complainant applied for the position of
Quality Control receiving inspector. Under the recently
implemented Staff Augmentation Program (SAP), four contractors
submitted Complainant's name to TU Electric for one of six
receiving inspector positions. Upon telephoning TU Electric in
late July 1990, Complainant learned that he had not been placed
[PAGE 3]
in any of the positions. (Two positions were filled on July 10
and the remaining four were filled on July 17.) He was not
advised, however, that TU Electric's procurement compliance
supervisor had rated him unfavorably in considering his
application, nor did he possess a copy of the SAP procedures. On
August 8, Complainant met with Susan Palmer, the "stipulation
manager" for TU Electric,[3] to request information about the
SAP decision making process. Palmer responded on September 28
that TU Electric had filled the receiving inspector positions
with incumbent employees and enclosed a copy of SAP procedures.
C-Exh. 46.
By letter of September 29, Complainant requested Palmer's
assurance that he would be considered for any position for which
he was qualified, not merely for the position of receiving
inspector. C-Exh. 47. On October 30, Palmer responded that she
was not responsible for hiring and that Complainant would need to
contact the proper personnel. She also directed him to a letter
of recommendation (C-Exh. 44) that he had been provided in July
and added that by providing him with the letter, TU Electric had
satisfied its commitments under the earlier section 210
settlement agreement. C-Exh. 48. Upon reviewing these
materials, Complainant concluded that TU Electric was
manipulating its employment practices to avoid hiring him.[4]
He filed the instant section 210 complaint on November 8, 1990.
DISCUSSION
The ALJ found the November 8, 1990, discrimination complaint
to be untimely because it was filed more than thirty days after
Complainant learned that he had not secured a receiving inspector
position in July 1990.[5] I disagree.
The section 210 limitations period is not jurisdictional and
is subject to modification, for example by application of the
doctrine of equitable tolling. That doctrine "permits a
plaintiff to avoid the bar of the statute of limitations if
despite all due diligence he is unable to obtain vital
information bearing on the existence of his claim." Cada v.
Baxter Healthcare Corp., 920 F.2d 446, 451 (7th Cir. 1990),
cert. denied, 501 U.S. 1261 (1991) (Age Discrimination in
Employment Act of 1967).
Under the analysis in Baxter Healthcare, Complainant
was "injured" prior to July 1990 when he received an unfavorable
rating in the application process and during July when Respondent
rejected him for the position of receiving inspector. His claim
accrued, however, on the date he discovered that he had been
injured. Although he learned in late July that he had not been
placed in any of the positions, he discovered the unfavorable
rating at a later date.[6] Accordingly, in late July
Complainant knew that he had been injured to the extent that he
had not been
[PAGE 4]
offered a job, but he did not necessarily know that the injury
was due to wrongdoing on the part of Respondent. The question
then becomes whether a reasonable man in Complainant's position
would have known prior to receipt of Ms. Palmer's correspondence,
including the October 30, 1990 letter, that he had been rejected
in possible violation of the ERA. If not, "the doctrine of
equitable tolling could suspend the running of the statute of
limitations for such time as was reasonably necessary to conduct
the necessary inquiry." Id.[7]
Additionally, the alleged discrimination is not simply the
failure to hire Complainant as a receiving inspector in July, but
an ongoing unwillingness to consider him for employment which was
precisely what Palmer's October 30 letter implied. Contrary to
her representation, the letter of recommendation, tendered to
Complainant in July and apparently intended for contractors and
other employers,[8] did not absolve TU Electric of its
own obligation under the settlement agreement. The
settlement required TU Electric to "fairly and equitably consider
[Complainant] for further employment at CPSES Unit 2, when
construction commences, and during refueling outages at Unit 1,
provided that he apply for and be qualified for the positions
available at [CPSES]." The Palmer letter, then, could be read to
mean that from July forward TU Electric would not consider
Complainant for positions at CPSES because it no longer
recognized an obligation to do so.
In this regard, the letter suggested a policy to deny
Complainant consideration which by its very nature was
continuing. Egenrieder v. Metropolitan Edison Co.,
G.P.U., Case No. 85-ERA-23, Sec. Rem. Ord., Apr. 20, 1987,
slip op. at 4-6. Cf. OFCCP v. CSX Transportation, Inc.,
Case No. 88-OFC-24, Sec. Rem. Dec., Oct. 13, 1994, slip op. at
22-23 (under one theory of "continuing" violation, the focus is
on what event should have alerted the employee to protect his
rights or on when he should have perceived that discrimination
was occurring). Accordingly, the complaint also contains
elements of a continuing violation which could render it timely.
The suggestion of an ongoing policy is not developed in the
record, however. Noticeably absent is any questioning of Palmer
as to the meaning she ascribed to the phrasing. In the absence
of such evidence, I am unable to find on this record that TU
Electric had decided to blacklist Complainant as a matter of
course and that the violation was continuing.
I find, however, that the limitations period was tolled
under the doctrine of "equitable tolling" discussed in Cada v.
Baxter Healthcare Corp., 920 F.2d 451-453.[9] At the end of
July 1990, Complainant knew only that he had been rejected for
the position of receiving inspector. He then proceeded with due
[PAGE 5]
diligence to obtain information about the newly-implemented Staff
Augmentation Program which revealed certain irregularities in
hiring the receiving inspectors and suggested that Complainant
had not received impartial consideration. Because Complainant
filed the November 8 complaint almost immediately after receiving
the October 30 letter, the complaint is not time-barred.
Id. at 452-453 (plaintiff who invokes tolling to suspend
limitations period "must bring suit within a reasonable time
after he has obtained, or by due diligence could have obtained,
the necessary information").[10]
In making a contrary finding, the ALJ acknowledged that
"[t]he fact that Complainant knew that the six positions had been
filled does not mean that he had knowledge that Respondent acted
in a discriminatory manner in their selection." R. D. and O. at
6. He also acknowledged that in meeting and corresponding with
Palmer, Complainant "[c]learly . . . was . . . looking for
answers." Id. The ALJ ultimately found the complaint
untimely, however, in part because Palmer's responses assertedly
did not provide evidence of discrimination. In so finding, the
ALJ missed the significance of Palmer's disclosures. Initially,
she advised Complainant that the incumbents had been retained and
provided him with a copy of Respondent's Staff Augmentation
Program. C-Exh. 46. Having worked with the incumbents
previously, Complainant was in a position to assess their
relative qualifications and determine whether they fit within the
SAP contractor requirements. Complainant testified that he
considered himself better qualified than most of the incumbents
and that he believed some of them to be unqualified for the
position. T. 8/21/91 at 499-504. Then, in the October 30
response to Complainant's request that he be considered for all
positions for which he was qualified, Palmer stated that
Respondent had satisfied all commitments to him under the
settlement agreement, implying that it was not obligated to
accord him impartial consideration. I disagree with the ALJ that
these disclosures would not reasonably alert an employee to
possible impropriety, and I reject the contrary finding.
I turn now to the merits of the complaint. Under the ERA, a
complainant can raise an inference of discrimination by
establishing a prima facie case. The ALJ found that
Complainant failed to do so. R. D. and O. at 17. I disagree.
This burden is not onerous. Cf. Texas Dep't of Community
Affairs v. Burdine, 450 U.S. 248, 253 (1981) (Title VII of
the Civil Rights Act of 1964). An ERA complainant need merely
show that the employer is subject to the Act, that the
complainant engaged in protected activity, that the employer knew
about the activity, that the employer took adverse employment
action, and that a causal nexus exists between the protected
activity and adverse action.
[PAGE 6]
Carroll v. Bechtel Corp. (Carroll), Case No. 91-ERA-46,
Sec. Dec., Feb. 15, 1995, slip op. at 9-10, appeal
docketed, No. 95-1729 (8th Cir. March 27, 1995). "Proximity
in time is sufficient to raise an inference of causation."
Bechtel Constr. Co. v. Secretary of Labor, 50 F.3d 926,
933-934 (11th Cir. 1995), citing Couty v. Dole, 886 F.2d
147, 148 (8th Cir. 1989) (causal connection established by
showing that employer was aware of protected activity and that
adverse action followed closely thereafter).
As I have noted in several decisions, see e.g.
Carroll, slip op. at 8-12, once a case has been fully tried
on the merits, the answer to the question of whether the
complainant presented a prima facie case is no longer
particularly useful. I will discuss below the prima facie
causal nexus presented in this case in order to clarify the ALJ's
analysis, but note that since the Respondent presented rebuttal
evidence, the appropriate question to ask is whether Complainant
proved by a preponderance of the evidence that he was
discriminated against in violation of the ERA.
The ALJ found that Respondent was an employer subject to the
ERA and that Complainant engaged in protected activity. R. D.
and O. at 9-10. These findings are fully supported by the
record, and I adopt them. The ALJ also found adverse action in
Respondent's failure to rehire Complainant, but declined to find
the requisite causal nexus. R. D. and O. at 10, 17. While I
adopt the ALJ's former finding, I reject the latter. As stated
above, temporal proximity -- present here -- in conjunction with
Respondent's knowledge of Complainant's protected activity
suffices to show causation for purposes of the prima facie
case.
In particular, Complainant's section 210 complaint about the
Thermo-Lag incident and his subsequent layoff culminated in a
settlement finalized on March 30, 1990. Acting on Complainant's
separate complaint, the NRC investigated the incident and cited
and fined TU Electric on May 17, 1990. TU Electric paid the fine
in June 1990. Selection of the six receiving inspectors occurred
during May and June 1990, and the positions were filled in July
1990. Accordingly, the effects of Complainant's protected
activity and the adverse action were sufficiently confluent to
establish causation.
Complainant also charges that Respondent blacklisted him by
sending letters to contractors that identified him as a
whistleblower. On October 12, 1990, William Cahill, TU
Electric's executive vice president, wrote to each of the 300
CPSES contractors about discriminatory employment actions and in
a November 9, 1990, follow-up, he requested that he be notified
of any discrimination complaints brought against any contractor.
C-Exhs. 40 and 42. While the October 12 letter reflects concerns
[PAGE 7]
raised by the NRC in the Thermo-Lag incident and uses the "fair
and equitable" consideration language found in Complainant's
section 210 settlement agreement, neither the incident nor the
agreement is referenced specifically. Complainant also is not
named. The November 9 letter requests that Cahill be notified of
any discrimination complaint filed in a variety of forums,
including any section 210 complaint filed with the Department of
Labor. No reference appears to Complainant's complaint. After
close examination of this correspondence and the context in which
it arose, I must agree with the ALJ that it is essentially
ameliorative and "constitute[s] a positive effort by the
Respondent to guard against harassment of employees . . . ."
R. D. and O. at 12. I simply do not discern any sub rosa
message to blacklist Complainant. It thus fails to constitute
adverse action.
Once Complainant created an inference of retaliation by
establishing a prima facie case, the burden shifted to
Respondent to articulate a legitimate nondiscriminatory reason
for failing to hire Complainant. "[T]he employer need not
persuade the court; the burden is simply one of production."
Kahn v. United States Secretary of Labor, 64 F.3d 271, 278
(7th Cir. 1995). Respondent met this burden by articulating such
a reason: operation of its Staff Augmentation Program.
Consequently, the presumption created by the prima facie
case was dissolved, and Complainant assumed the burden of proving
that the proffered reason was pretextual.[11]
In attempting to prove pretext, Complainant points to
perceived irregularities in the application of the Staff
Augmentation Program. The ALJ largely credited Respondent's
explanations, however, and I find ample basis in the record for
the associated findings. See R. D. and O. at 10-16.
Briefly, in late 1989 Respondent began development of the
Staff Augmentation Program in an effort to reduce the cost of
employees supplied by contractors.[12] Initially, it solicited
proposals and selected nine contractors to become "General Staff
Augmentation Contractors." See Respondent Exhibit (R-Exh.)
42. Selection of employees also was subject to negotiation, to
set a commercial rate for the loaned employee services, with both
employee qualifications and cost being considerations.
"Respondent believed that by limiting the number of staff
augmentation contractors to those with bidding rates approved by
Respondent, more control could be exercised over the cost of
loaned employees and ultimately, the cost of labor would be
reduced." R. D. and O. at 11. Lance Terry, the CPSES director
of nuclear overview, testified:
The main purpose of the staff augmentation program
. . . was to get more commercially acceptable rates.
[PAGE 8]
These staff augmentation contractors presented markups that were
significantly below the markups that had been charged by the
previous personnels providing those people to us. [B]y going to
the staff augmentation concept, we were able to reduce the
average markup on the part of contractors from about 1.9 to about
1.4. [Management] estimated that would save us around $18 to $20
million a year in contracts.
T. 8/26/91 at 130.
Although the staff augmentation employees were supplied and
compensated by contractors, Respondent was responsible for
managing them as it was for its "Direct Hire" personnel.
Id.[13] Essentially, staff augmentation employees were
brought in to supplement Respondent's direct hires. As Terry
explained:
Although we completed Unit One and Unit One is
operational now, we still have not established enough
experience with our organization to really be able to
sit down now and say this is the final size that we
want our organization to be in order to support
operation of Unit One, much less two unit operations
when Unit Two completes. As a result of that, we have
deliberately tried to hold our staffing level at the
approximately 1,200 to 1,300 level, which is where
we've been with TU personnel for a while and augment
that staff with contractors until such time as we can
establish clearly how many TU people we need in order
to do our job, at which time we'll try to have TU
people and augment with contractors only for temporary
assignments.
T. 8/26/91 at 108.
Some of the positions subject to staff augmentation already
were filled by employees who worked for contractors other than
those selected as General Staff Augmentation Contractors.
Certain incumbents were well qualified, experienced and had
performed well in their jobs. Terry testified: "We were just
getting into the operation of the plant. It would have been very
disruptive for us to take . . . a lot of those people who were
supporting operation . . . and replace them with new people that
weren't familiar with our procedures . . . ." Id. at 128.
See id. at 131-133. As a result, Respondent negotiated
separately with several contractors, including Brown and Root,
Ebasco and Fluor Daniel, who were then designated "Special Staff
Augmentation Contractors," in order to retain some of the
incumbents.
The six incumbent receiving inspectors had been employed by
Brown and Root. Because their positions were processed prior to
[PAGE 9]
its becoming a Special Staff Augmentation Contractor, these
employees applied for the receiving inspector positions along
with 26 other applicants, including Complainant. Because of
their superior work performance and Respondent's general desire
to retain crucial incumbents, they received the highest ratings
and were offered the positions. Upon acceptance, they apparently
were "rolled over" for employment by a General Staff Augmentation
Contractor.[14] T. 8/21/91 at 343. While a degree of
"manipulation" appears at play in evolving the augmentation
program, Respondent's motivation was continuity of operation
rather than retaliation against Complainant. In explaining why
he promoted a "rollover," Danny Leigh, the CPSES procurement
compliance supervisor, testified: "[W]e only had six [receiving]
inspectors at that time. And, we were getting ready to go
operational, and I could not afford to let all six of my
inspectors walk out the door on one day and leave me with no
inspection personnel." Id. at 358.
Admittedly, Complainant received an unfavorable rating when
he applied for the receiving inspector position but, again, the
reason was not retaliatory. Leigh, who rated the applicants,
testified that while Complainant had worked previously as a
receiving inspector, his "heavy background was operational
support during outage[s]."[15] Id. at 328. He
considered Complainant to be a "job shopper" who preferred to
work outages because "[t]hat's where the money was at."
Id. at 358. Leigh, on the other hand, was looking for
inspectors who would stay in the job "for a period of time" and
pointed out that some of the incumbents had been at the project
for as many as 13 years.[16] Id. at 332-333. Leigh
testified:
I give those people [the incumbents] the credit for
what they were doing at the time. They were currently
certified. They were doing the job. And, again, they
were good employees. They were meeting my expectations
as inspectors at the time of this review and
evaluation. [T]hat's just the way that I done that. I
give them credit for what they were doing.
Id. at 352. Moreover, the incumbents had survived at
least two reductions of force (ROF), including one in November
1989 when Complainant was laid off, and one in April 1990. The
fact that performance is considered under Respondent's ROF policy
suggests that these inspectors were well qualified. T. 8/27/91
at 307-309.
Finally, Complainant argues that some of the incumbents did
not meet a criterion in the receiving inspector position
description, namely that the applicant have two years of
experience in receipt inspection. Comp. Mem. at 23. I agree
[PAGE 10]
with the ALJ, however, R. D. and O. at 14-15, that the function
of the position description was to screen outside applicants in
the event that Respondent was unable to retain the incumbents and
that it did not apply to current employees who were NRC
qualified, certified and performing well. T. 8/21/91 at 318-319;
T. 8/26/91 at 142-144. In addition, contrary to Complainant's
contention, Comp. Mem. at 22-23, the fact that the incumbents'
billing rates slightly exceeded Complainant's rate is not
dispositive since Respondent considers whether rates fall within
an acceptable price range rather than merely hiring the least
expensive applicants. T. 8/26/91 at 123. Complainant thus
failed to prove that Respondent's proffered reason for denying
him employment as a receiving inspector was pretextual. As the
record contains no evidence that he was bypassed for additional
positions or otherwise blacklisted, that portion of the complaint
also must fail.
CONCLUSION
Although the complaint was not time-barred under the
circumstances presented here, Complainant failed to prove that he
was subject to unlawful discrimination. In rendering this
decision, I am mindful that Respondent, under the settlement
entered into between the parties, has a continuing obligation to
treat Complainant fairly and equitably in making future hiring
decisions and that Respondent has not complied with its
obligations under that settlement agreement by simply providing
Complainant with a letter of recommendation. Accordingly, the
complaint IS DISMISSED.
SO ORDERED.
ROBERT B. REICH
Secretary of Labor
Washington, D.C.
[ENDNOTES]
[1]
The amendments to the ERA contained in the National Energy
Policy Act of 1992, Pub. L. No. 102-486, 106 Stat. 2776 (Oct. 24,
1992), do not apply to this case in which the complaint was filed
prior to the effective date of that Act. For purposes of this
case, I will continue to refer to the provision as codified in
1988.
[2]
Thermo-Lag is insulation housing electrical conduits and cable
trays which provides a fire barrier.
[3]
The stipulation arose out of TU Electric's application for an
operating license and construction permit amendment before the
NRC Atomic Safety and Licensing Board. Among other things, the
stipulation authorized CASE, an intervenor in the proceeding, to
participate in CPSES Quality Assurance audits and NRC inspection
activities. C-Exh. 1.
[4]
Complainant testified that although he submitted his resume to
contractors on numerous occasions, he received no inquiries from
TU Electric's contracting office requesting his billing rate --
an early step in the bidding process. T. 8/21/91 at 457-459.
Contractors also represented that they had failed to receive
Complainant's resume and that they were not hiring when
Complainant had been told otherwise and "in fact . . . had
friends that had gone to work for them." Id. at 451, 461-
462, 468, 508, 510.
[5]
At the time of the complaint, the ERA provided that any
employee who believed that he had been subject to discrimination
in violation of section 210(a) "may, within thirty days after
such violation occurs, file a complaint with the Secretary of
Labor alleging such . . . discrimination." The ERA has since
been amended to allow a complainant 180 days in which to file a
discrimination complaint. 42 U.S.C. § 5851(b)(1) (1992).
[6]
The common law "discovery rule," which postpones the
commencement of the limitations period from the date of injury to
the date the injury is discovered, is consistent with the holding
in Delaware State College v. Ricks, 449 U.S. 250, 258
(1980), that a statute of limitations begins running when the
adverse decision is made and communicated to a
complainant. Cada v. Baxter Healthcare Corp., 920 F.2d at
450.
The unfavorable rating was probably undeserved and, at
minimum, highly arbitrary. R. D. and O. at 12, 14. While
constituting adverse action, it also suggested that Complainant
did not receive impartial consideration for the receiving
inspector positions.
[7]
The court stressed its use of the term possible
violation: "If a plaintiff were entitled to have all the time he
needed to
be certain his rights had been violated, the statute of
limitations would never run -- for even after judgment, there is
no certainty." 920 F.2d at 451.
[8]
The letter of recommendation stated: "To Whom It May Concern:
Frank Bausemer should be fairly considered for employment at
CPSES in positions for which he has applied and is qualified.
While employed at CPSES, Mr. Bausemer's actions in pursuing his
concerns through SAFETEAM and the Nuclear Regulatory Commission
were consistent with TU Electric's policy and appreciated by
management as being taken to assist them in insuring the safety
of the facility." C-Exh. 44. The letter was signed by William
Cahill, TU Electric's executive vice president.
[9]
I do not invoke the doctrine of "equitable estoppel," also
discussed in Cada v. Baxter Healthcare Corp., 920 F.2d at
450-451, "which comes into play if the defendant takes active
steps to prevent the plaintiff from suing in time, as by
promising not to plead the statute of limitations."
[10]
The doctrine of equitable tolling adjusts the rights of two
innocent parties, as opposed to the doctrine of equitable
estoppel where one of the parties has misled the other.
Recognizing this distinction, the court stated: "We do not think
equitable tolling should bring about an automatic extension of
the statute of limitations by . . . any . . . definite
term . . . . It gives the plaintiff extra time if he needs it.
If he doesn't need it there is no basis for depriving the
defendant of the protection of the statute of limitations." 920
F.2d at 452.
[11]
I apply the analytical model set forth in McDonnell Douglas
Corp. v. Green, 411 U.S. 792 (1973). Contrary to
Complainant's suggestion, Comp. Mem. at 25, the "dual motive"
model applied in Mt. Healthy City School Dist. Bd. of Educ. v.
Doyle, 429 U.S. 274, 287 (1977), does not come into play
because Complainant did not prove by a preponderance of the
evidence that Respondent was motivated by an illegitimate reason.
Consequently, the burden does not shift to Respondent to prove
that it would have taken the adverse action for a legitimate
reason alone.
[12]
Respondent completed construction of CPSES Unit 1 in late 1989
and in January 1990 received an NRC license to load fuel and
begin low power operations. Commercial operation began in August
1990. Construction of Unit 2, which had been suspended in 1988,
resumed in 1991. The need for staffing revisions arose with the
transition from construction to operation.
[13]
The remaining variety of employee at CPSES was employed by
"Scope of Work" contractors. These contractors were responsible
for hiring and managing their employees to perform designated
functions, for example, security, major construction, engineering
or quality control "scopes" at either Unit 1 or 2. T. 8/26/91 at
106-107. These jobs were not permanent. "When the scope of work
is done, the contract should be over. Id. at 108.
[14]
Complainant argues that "rollovers" were discouraged under the
Staff Augmentation Program. This limitation appeared exclusively
in an early draft of the program, however, and did not survive
later revision. Compare C-Exh. 35 (dated November 1989)
with C-Exhs. 36 and 37 (dated April and May 1990). I
adopt the ALJ's findings on this point. R. D. and O. at 16.
[15]
Complainant testified: "In nuclear power plants, they have to
refuel. . . . They have an outage schedule that runs
approximately once a year. They have to shut the plant down.
They perform any maintenance that's needed. And, they replace
fuel rods inside the reactor." T. 8/21/91 at 475. Outages
usually are completed within a three-month period. Id.
[16]
In fact, the six incumbents had worked at CPSES a minimum of
seven years and a maximum of 14 years. R-Exhs. 7a-f. In
contrast, Complainant had held 16 different jobs during the
preceding twelve years. C-Exh. 75.
