Administrative Review Board
200 Constitution Avenue, N.W.
Washington, D.C. 20210
ARB CASE NO. 96-013
ALJ CASE NO. 95-ERA-13
DATE: September 27, 1996
In The Matter of:
ROBERT SEATER,
COMPLAINANT,
v.
SOUTHERN CALIFORNIA EDISON COMPANY,
RESPONDENT,
BEFORE: THE ADMINISTRATIVE REVIEW BOARD1
This case arises under Section 211, the employee protection provision,
of
the Energy Reorganization Act of 1974 (ERA), as amended, 42 U.S.C. § 5851 (1994).2 Before this Board for review is the
Recommended Decision
and Order (R. D. and O.) issued on October 17, 1995, by the Administrative Law Judge (ALJ).
The
ALJ concluded that Complainant, Robert Seater (Seater), had failed to establish that Respondent,
Southern California Edison Company (SCE), had violated the ERA by taking adverse action
against
Seater in retaliation for engaging in activity protected under the ERA. The ALJ therefore
recommended that the complaint be dismissed.
In this complaint, Seater has alleged that SCE's decision to terminate
Seater's employment as a contract worker at the San Onofre Nuclear Generating Station
(SONGS)
and, subsequently, to accelerate the termination of Seater's employment at SONGS were in
violation
of the ERA. In addition, Seater has alleged that he suffered from a hostile work environment at
SONGS.
Based on review of the record and the arguments of the parties, we
conclude that the case must be remanded to the ALJ for a supplemental hearing regarding the
question of whether acceleration of Seater's termination date from December 1994 to September
1994 was in violation of the ERA.3 Although we
agree with
the ALJ's conclusion that Seater has failed to establish that SCE's decision not to extend Seater's
contract employment beyond December 1994 was retaliatory, we provide clarification of the
ALJ's
analysis on that issue. We decline to rule on the question of whether the evidence establishes a
hostile work environment, pending completion of further proceedings on remand before the ALJ.
I. Procedural issues
A. Question of Bias
Initially, we reject Seater's assertion that he was deprived of a fair
hearing in this case as the result of bias on the part of the ALJ. As discussed infra, we
agree
with Seater that the ALJ erred in excluding certain documentary evidence and testimony. The
ALJ
committed exclusionary errors affecting both parties, however, and the record does not establish
that
the errors prejudicial to Seater are attributable to improper bias harbored by the ALJ.
The record in this case does indicate that the ALJ directed remarks to
Seater's counsel at the hearing that suggest annoyance and frustration. See, e.g., T. 382,
696-97, 1313-14, 1734, 1737.4 The hearing
transcript
also indicates, however, that the ALJ made apparent efforts, through banter with counsel for both
parties, to defuse the exceptional level of tension and hostility generated in the courtroom by the
issues arising in this case. See, e.g., T. 966-67, 1513-14, 1585-86, 1811. Moreover,
various
rulings in favor of Seater at hearing demonstrate the ALJ's efforts to be even-handed in
conducting
the hearing and to provide ample latitude for the complainant to raise issues not strictly
concerned
with the question of retaliatory intent in this case. See, e.g., T. 559-62, 752, 815, 935-36,
965, 1037, 1107, 1109-17, 1333, 1345, 1363-64, 1556, 1638, 1814; see also T. 1628
(ALJ's
explanation of his approach of being flexible with both sides regarding admission of
documentary
evidence not exchanged prior to hearing), 1783-84 (ALJ's response to Seater's counsel's objection
to "double-teaming" by opposing counsel).
As the record does not establish that bias on the part of the ALJ
deprived Seater of a fair and impartial hearing, and in view of the clear instructions to guide the
ALJ
in conducting the supplemental hearing in this case that we provide infra, we do not
conclude that reassignment of the case for a new hearing before a different ALJ is warranted.5 Cf. Gimbel v. Commodity Futures
Trading Comm.,
872 F.2d 196 (7th Cir. 1989)(rejecting bias contention in case in which ALJ exhibited impatience
and displeasure with both counsel and ruled in favor of petitioner several times); Donnelly
Garment Co. v. National Labor Relations Board, 123 F.2d 215 (8th Cir. 1942)(rejecting bias
contention in case in which hearing examiner "made comments which might better have been
omitted").
We do note, however, that the ALJ's role in maintaining order and
decorum in the courtroom may become an onerous task in some instances. See, e.g., T.
1322-23, 1332-33, 1345, 1395, 1419-40, 1881-82. We recognize that the difficulties of
distinguishing between the actions of a zealous advocate and those of an overzealous opponent,
while attempting to ensure the efficient use of Federal resources in the adjudication of cases
before
him, may substantially increase the burden on the ALJ. We therefore caution counsel for both
parties that denigrating statements regarding opposing counsel and overtly hostile exchanges,
see, e.g., T. 394, 1077, ll. 11-12 (Seater's counsel), 394, 1332, ll. 16-17 (SCE's counsel),
as well as introduction of extraneous issues, T. 799 (comment,"for the record," that certain
exhibits
had been provided to Congressional investigators) serve only to cloud the issues at hand and to
delay
the completion of the adjudication of this case by the Department of Labor.6
Cf. Frampton v. Dept. of the Interior, 811 F.2d 1486 (Fed.Cir. 1987)
(remanding case to provide petitioner an opportunity to complete presentation of his case but
cautioning the petitioner that it was his attorney's responsibility "to prepare his case in advance
of
the additional hearing and to avoid burdening the presiding official with irrelevant testimony or
repetitive evidence.")7 ; see generally
Lockert v. United
States Dept. of Labor, 867 F.2d 513, 519 (9th Cir. 1989)(addressing broad discretion of
Secretary in remanding case to ALJ).
B. Evidentiary issues
Seater initially alleges error by the ALJ in excluding various categories
of evidence on relevancy grounds. Specifically, Seater challenges the ALJ's exclusion of
evidence
concerning the technical merits of Seater's fastener concern and the extensive debate in the
nuclear
industry about the fastener issue, and evidence concerning alleged collusion between the NRC
and
SCE. Comp. Br. at 25-30.
Seater also urges that the ALJ erred in excluding expert testimony
concerning ways in which surveillance of Seater and others in the SCE test laboratory could have
been effected by SCE management. Comp. Br. at 25-27. In addition, Seater urges that the ALJ
erred
in refusing to admit the written statement of an SCE manager who was critically ill at the time of
the
hearing and also erred in refusing to allow the manager's testimony to be taken telephonically at
the
hearing. Comp. Br. at 23-25. Further, Seater challenges the ALJ's exclusion of exhibits
proffered
by Seater on the last day of hearing, alleging that the ALJ improperly admitted SCE exhibits
although they were also untimely proffered. Comp. Br. at 28.
Regulations concerning the investigation and adjudication of
complaints filed under the ERA are found at 29 C.F.R. Part 24. Also relevant to the proceedings
below are the Rules of Practice and Procedure for the Office of Administrative Law Judges
(OALJ),
found at 29 C.F.R. Part 18, and the Federal Rules of Civil Procedure. See 29 C.F.R.
§
18.1; see also Nolder v. Kaiser Engineers, Inc., Case No. 84-ERA-5, Sec. Dec., June 28,
1985, slip op. at 5-6.
1. Exclusions of evidence on relevancy grounds
Pertinent to the issue of relevancy, Section 18.401 of the OALJ Rules
of Practice and Procedure defines "relevant evidence" as "evidence having any tendency to make
the existence of any fact that is of consequence to the determination of the action more probable
or
less probable than it would be without the evidence." 29 C.F.R. § 18.401 (1995). In
retaliatory intent cases that are based on circumstantial evidence, as here, fair adjudication of the
complaint "requires full presentation of a broad range of evidence that may prove, or disprove,
retaliatory animus and its contribution to the adverse action taken." Timmons v. Mattingly
Testing Servs., Case No. 95-ERA-40, ARB Dec., June 21, 1996, slip op. at 10-11 [footnote
omitted]; see generally K.C. Davis, Administrative Law, 2d Ed., Vol. 3, Ch. 16,
Evidence
(1980). In this case, Seater has alleged that SCE had an interest in silencing the fastener dispute
which provided impetus for it to terminate Seater's employment in as expeditious a manner as
feasible.
Considered within this context, it is clear that the magnitude of the
controversy that arose, and continued, at SCE because of the protected activity engaged in by
Seater
for several months prior to his termination from SCE in September 1994 is relevant to the
determination concerning Respondent's motivation for terminating Seater when it did. Evidence
concerning the technical merits of Seater's view on out-of-specification fasteners is also relevant
to
the extent of the controversy concerning the fastener issue and the concomitant concern of SCE
management about Seater's continuing presence and protected activity at SONGS. The more
credence given the theory endorsed by Seater, at SONGS and elsewhere in the nuclear industry,
the
more likely it is that SCE management feared that such view would gain adherents among the
SCE
staff, thus increasing the tension caused by the fastener issue. Evidence of such concern by SCE
management could provide support for Seater's view that SCE was anxious to ensure Seater's
prompt departure.
The ALJ's statement, R. D. and O. at 5 n.4, that it is not necessary to
determine the technical merit of Seater's safety concern is consistent with the well-established
precept that the raising of a safety concern is protected under the ERA regardless of whether the
concern is based on an actual violation of the regulatory and statutory standards applicable to the
nuclear industry, see Diaz-Robainas v. Florida Power & Light Co., Case No. 92-ERA-10,
Sec. Dec., Jan. 19, 1996, slip op. at 11 n.7 and cases cited therein; see also 42 U.S.C.
§ 5851(a)(1)(A) ("alleged violation"), (B) ("alleged illegality") (1994). In the instant case,
however, Seater seeks to introduce evidence concerning the viability of Seater's view that
out-of-specification fasteners posed a safety risk as support for his theory of management's
motivation in
this case. The ALJ thus erred in refusing to allow testimony on this specific issue.
With regard to the merits of Seater's view on out-of-specification
fasteners, it is adequate, for purposes of providing evidence relevant to the issue of retaliatory
intent,
to establish that others having expertise in this technological area found Seater's view to have
merit.
The question of who is actually correct regarding the competing views about out-of-specification
fasteners is not germane to the retaliatory intent issue. The ALJ may therefore find it appropriate
to exclude from consideration "unduly repetitious" evidence concerning the technical merits of
Seater's view on fasteners in conducting the proceedings on remand, pursuant to 29 C.F.R.
§
24.5(e)(1) and Section 7(c) of the Administrative Procedure Act, 5 U.S.C.
§ 556(d). See generally Sage Development Co., 301 N.L.R.B. 1173, 1185 n.28
(1991)(noting ALJ's direction to a party to select its "best witness" to testify on an issue with
which
various witnesses were familiar, in the interest of avoiding repetitious or cumulative testimony);
Buffalo Tank, 6 OSHC (BNA) 1994, 1978 OSAHRC LEXIS 299, *2 (1978) and cases
cited
therein.8
The blanket exclusion of exhibits designated CX 104-144, 159-161,
169, 173 and 175, which concern the extent of the controversy about the fastener issue among
SCE
staff and managers, the extent of the fastener controversy at a national, industry-wide level,
and/or
provide evidence of the technical merit of Seater's safety concern, was thus erroneous, see
T. 138, 1907-28; see also T. 1-51 passim (pre-hearing teleconference). We
therefore reverse the ALJ's exclusion of those exhibits.9
On remand, the ALJ must also allow the presentation of testimony on these issues, subject to the
"unduly repetitious" standard of Section 24.5(e)(1). SCE must then be provided a meaningful
opportunity to respond to the foregoing evidence and testimony. See Land v. Consolidated
Freightways, Case No. 91-STA-28, Sec. Ord., May 6, 1992, slip op. at 5-8 and cases cited
therein.
We reject Seater's contention that the ALJ committed reversible error
in limiting the presentation of evidence relevant to Seater's allegation of collusion between his
supervisors at SCE and specific officials at the NRC. Seater urges that the NRC engaged in
conduct
giving rise to a conflict of interest by accepting gratuitous assistance from SCE in the execution
of
a "sting" purchase from a replacement parts vendor that was suspected of engaging in fraudulent
transactions. Comp. Br. at 28-30.
The ALJ did allow Seater to question several witnesses and submit
documentary evidence relevant to this issue. E.g., CX 102; T. 1143-53
(cross-examination
of Rosenblum). Documentary evidence of record indicates that the "sting" action was being
planned
by SCE and NRC officials within the month of June 1994, soon after Seater was advised by SCE
that
his termination had been accelerated from December to September 1994. Further, such evidence
indicates that two of Seater's supervisors were personally involved in planning and executing the
operation with the same NRC investigator who was involved in investigating the fastener
controversy at SCE. CX 2, 50; RX 38, 94. In addition, Seater and two fellow whistleblowers
from
the SCE laboratory, Gary Telford (Telford) and Richard Clift (Clift), testified that the NRC
investigator who was involved in both the "sting" operation and the fastener investigation failed
to
resume discussions later in 1994 with the three about the fastener issue, although he had
indicated
he would do so. T. 317-20 (Clift), 684-88 (Seater), 781-99 (Telford).
The foregoing evidence, if fully credited, may support a finding that
Seater's supervisors, at a time proximate to advising Seater of the decision to accelerate his
termination date from December to September 1994, were interested in garnering favor with the
NRC investigator. Nonetheless, as concluded by the ALJ, T. 1639, 1935, evidence suggesting
that
SCE managers were interested in garnering favor with NRC officials does not necessarily
indicate
that such interest was linked to a concern about the fastener controversy or the adverse action
against
Seater. SCE managers could, for example, have been motivated to aid in the "sting" operation by
SCE's own interest in preventing further fraud by the vendor involved. Furthermore, as noted by
SCE, Resp. Br. at 29, Seater has failed to identify what salient points could be established by the
presentation of further evidence on this issue, Comp. Br. at 29; see Comp. Post-hearing
Br.
at 54-57.10 Consequently, we find no
error in limiting
the further presentation of evidence relevant to the collusion allegation. See 29 C.F.R.
§ 18.103(a); see also 29 C.F.R. § 24.5(e)(1), discussion supra at n.8.
The ALJ did err, however, in limiting the parties' presentation of
evidence pertinent to Seater's argument that the SCE laboratory and related training program
suffered as a result of his termination from the laboratory, on relevancy grounds. See, e.g.,
T. 1139-40, 1314-15, 1720-21, 1725, 1842-44, 1942-43. The ALJ properly stated that the
retaliatory intent inquiry must focus on the mind-set of the decision-makers at the time the
decision
to take the adverse action was made. T. 1314-15; see generally Timmons, slip op. at
10-11
and cases cited therein. In the instant case, however, evidence of incidents occurring or
conditions
developing in the SCE laboratory and training program as a result of Seater's accelerated
departure
may provide valuable indicia of the supervisory mindset at the pertinent time.
On remand, therefore, the ALJ must provide the parties an opportunity
to present evidence regarding the state of operations in the SCE laboratory and training program
following Seater's termination in September 1994. Evidence regarding changes to the laboratory
training program, including the cross-training aspect of that program, made around and since
September 1994 would also fall within this category. As the ALJ excluded CX 171, which
pertains
to the qualifications of laboratory personnel, on relevancy grounds, T. 1925, we reverse that
exclusion. But see n.9, supra.
2. Exclusion of expert witness on surveillance potential
We reject Seater's argument that the ALJ's exclusion of expert
testimony regarding the issue of how surveillance of Seater could have been effected in the SCE
laboratory should be reversed. The ALJ ruled at hearing that Randy Udovich, an expert in the
area
of security technology, would not be allowed to testify as an expert witness. T. 304-05.
The
ALJ questioned Udovich's objectivity based on statements made by him that the ALJ found to be
indicative of a bias in favor of the complainant and against the respondent in this case,
T. 287-88, 290-304; see ALJX 1. The ALJ also concluded that Udovich's testimony
would
be of little probative value regarding the issue of whether SCE had in fact placed Seater and his
coworkers in the laboratory under improper surveillance or had created an impression of such
surveillance. T. 299-300.
We agree with the ALJ's conclusion that the record raises questions
concerning Udovich's ability to present reliable testimony in this case. Cf. Marbled Murrelet
v. Pacific Lumber Co., 880 F.Supp. 1343, 1363 (N.D. Ca. 1995)(discrediting experts'
testimony
because lacking in objectivity).11 The
appropriate course
in such circumstances, however, is to admit the evidence and consider the witness's dubious
objectivity as a factor pertinent to the probative weight to be accorded such evidence. See
Fugate v. Tennessee Valley Authority, Case No. 93-ERA-0009, Sec. Dec., Sept. 6, 1995,
slip
op. at 3-4 (citing Builders Steel Co. v. Commissioner of Internal Rev., 179 F.2d 377 (8th
Cir.
1950)(addressing lessened significance of technical rulings on evidence admissibility in non-jury
trials)); Multi-Medical Convalescent and Nursing Center v. NLRB, 550 F.2d 974, 977-78
(4th Cir. 1977), cert. denied, 434 U.S. 835 (1977); see also 29 C.F.R. §
24.5(e)(1); see generally 29 C.F.R. § 18.702 (provision paralleling Fed.R.Evid.
702
regarding expert witness testimony).
As demonstrated by the following analysis, the question of whether
covert surveillance could have been effected in the SCE laboratory need not be reached in
disposing
of the surveillance issue. Therefore any error in the ALJ's refusal to allow the Udovich
testimony
is harmless. See 29 C.F.R. § 18.103(a).
An understanding of the substance of the surveillance issue is crucial
to consideration of whether any prejudice resulted from exclusion of the Udovich testimony.
The
ERA prohibits interference, or action intended to interfere, with the exercise of protected activity.
See 42 U.S.C. § 5851(a); Mackowiak v. University Nuclear Systems, Inc.,
735
F.2d 1159, 1163 (9th Cir. 1984); Remusat v. Bartlett Nuclear, Inc., Case No. 94-ERA-36,
Sec. Dec., Feb. 26, 1996, slip op. at 8-10 and authorities cited therein. Surveillance of
employees, or the creation of an impression of surveillance, for the purpose of monitoring
participation in protected activity would thus constitute a violation of the ERA. See generally
Laidlaw Waste Systems (Michigan), Inc., 305 N.L.R.B. 30 (1991)(citing J.P. Stevens &
Co.,
245 N.L.R.B. 198 (1979), Consolidated Edison Co. of New York, 4 N.L.R.B. 71, 94
(1937), aff'd 305 U.S. 197 (1938) and addressing employer's surveillance or creation of
an
impression of surveillance of protected activity as violations of the National Labor Relations
Act); but see Miller v. Ebasco Services, Inc., Case No. 88-ERA-4, Sec. Dec., Nov. 24,
1992,
appended ALJ's dec. at 17 (finding legitimate basis for surveillance engaged in by employer).
The ALJ concluded that the testimony of Seater and his fellow
whistleblowers in the laboratory did not provide support for the allegation that SCE had engaged
in
illegal surveillance of Seater. R. D. and O. at 17 n.8. This finding is consistent with the
testimony
of record, which is comprised of very general assertions by Seater and his fellow whistleblowers
regarding their suspicions that surveillance was being conducted, e.g., SCE management
"seemed to be like about a step ahead of us on several key issues that we knew we were going to
be
doing," T. 766 (Telford); see T. 357-58 (Clift), 611, 631-33, 679-80 (Seater), 761-67
(Telford). As further support for his conclusion, the ALJ noted that documents concerning the
SCE
Mesa Access Control System, which was installed at SONGS in 1994, RX 98, indicated that "No
camera's [sic] will be located to where they are monitoring specific personnel/work activities."
R.
D. and O. at 17 n.8. We agree with the ALJ's conclusion that the evidence does not establish that
SCE was in fact conducting improper surveillance of Seater.
Regarding the standard to be applied in determining whether SCE has
created an impression of surveillance, we find case law developed under an analogous provision,
Section 8(a)(1) of the National Labor Relations Act, 29 U.S.C. § 158(a)(1),12 to be persuasive. Section 8(a)(1)
decisions turn on the
question of whether employees reasonably believed that their protected activity was being
monitored
and that an employer was thereby attempting to discourage their participation in protected
activity.
See, e.g., Electro-Voice, Inc., 320 N.L.R.B. No. 134 (1996). In the
instant
case, the crucial question regarding an impression of surveillance is thus whether Seater
perceived
that SCE had placed him under surveillance in the SCE laboratory for the purpose of interfering
with
his protected activity and, if so, whether such perception was reasonable.
Although not specifically addressed by the ALJ, the record does not
establish that SCE created an impression of improper surveillance of Seater. The very general
statements of Seater and his fellow whistleblowers in the laboratory concerning SCE
management's
apparent knowledge of matters that Seater and other laboratory staff thought they had kept
private
and the limiting of telephone lines to the laboratory and other problems with telephone
equipment,
are not adequate to establish a reasonable basis for a perception by Seater that such surveillance
was
being conducted. See T. 357-58 (Clift), 611, 631-33, 679-80 (Seater), 761-67 (Telford).
In addition, Seater has not urged that covert surveillance was
threatened or even intimated by SCE management.13
Although a fellow whistleblower in the laboratory testified that a supervisor had told him to
"Watch
what you say on the phone, watch what you do, they can have cameras and stuff like that on
you,"
T. 762 (Telford),14 such statement
constitutes mere
speculation and not a threat by management to improperly monitor protected activity. Cf.
Simmons Industries, Inc., 321 N.L.R.B. No. 32, 1996 NLRB LEXIS 325 (1996)
(supervisor's
comments to employees "calculated" and "reasonably interpreted" to indicate surveillance
constituted coercion); Electro-Voice, Inc., 320 NLRB No. 134, 1996 NLRB LEXIS 208,
*3-5 (1996)(supervisor's comments to employee reasonably led to impression of surveillance);
Libralter Plastics, Inc., 1995 NLRB LEXIS 507, *20-22 (1995)(employer's "public
acknowledgment of awareness of open" protected activity does not provide reasonable basis for
inference of surveillance). In view of the lack of evidence to establish either that SCE was in fact
engaging in improper surveillance of Seater or that Seater reasonably perceived that such
surveillance was being conducted, the ALJ's refusal to hear testimony regarding the technical
potential for such surveillance is harmless.15 See
29 C.F.R. § 18.103(a); Frady v. Tennessee Valley Authority, Case Nos.
92-ERA-19, 92-ERA-34, Sec. Dec., Oct. 23, 1995, slip op. at 9-10.
3. Exclusion of testimony of ill SCE supervisor
Seater also assigns error to the ALJ's refusal to allow the testimony
of an SCE supervisor, Curtis Robert Horton (Horton), who was critically ill at the time of
hearing,
see CX 103B, to be taken by telephone. As relief Seater requests that the ALJ's
exclusion
of Horton's written statement, CX 103A, be reversed or that the ALJ be directed to allow
Horton's
testimony be taken by telephone on remand. Comp. Br. at 23-25. In support of the ALJ's ruling
on
the Horton evidence, SCE cites Seater's failure to schedule a pre-hearing deposition for the
purpose
of preserving Horton's testimony and Seater's decision not to avail himself of the opportunity to
depose Horton after the hearing. Resp. Br. at 24-25; see Resp. [May 9, 1995] Motion to
Exclude Comp. Exhibits.
We disagree with the ALJ's conclusion, T. 135-37, that taking
Horton's testimony by telephone, without first providing SCE an opportunity to depose him,
would
have deprived SCE of an adequate opportunity to respond to such testimony. Horton had been a
project engineer with supervisory responsibilities in the SCE division where Seater worked and
had
worked closely with Seater's second-level supervisor. T. 746-49, 872-75 (Telford); CX 157, 158.
Horton had been questioned regarding Seater's complaint in November of 1994 but had not
signed
the statement drafted by the Department of Labor investigator, and SCE was aware of this fact.
T.
119-29. Although Horton had been included on Seater's list of witnesses to be called at hearing,
see T. 121-22 (SCE counsel), Seater became uncertain as to whether to actually call
Horton
as a witness, owing to Horton's ill health and the probable adverse effect on his serious heart
condition that could result from the rigors of testifying at hearing or in deposition.16 See id.; see also CX 103B. One
week before
presentation of witness testimony was begun in the hearing on May 9, 1995, Seater provided
SCE
with a copy of Horton's signed statement, CX 103A. T. 125-29.17 When the hearing convened on May 9, 1995, the ALJ denied Seater's request to
admit Horton's written statement into evidence. T. 130. The ALJ also refused to allow Horton's
testimony to be taken by telephone and ruled that SCE must first be allowed to depose Horton
before
he could give testimony in the case. T. 135-37.
Horton's written statement provided notice to SCE of the matters on
which Horton could be expected to testify. See CX 103A; T. 135; see generally
Malpass and Lewis v. General Electric Co., Case Nos. 85-ERA-38, 85-ERA-39, Sec. Dec.,
Mar.
1, 1994, slip op. at 13 (quoting J. Moore, Federal Practice ¶ 26.57(4), at 26-212 regarding
elimination of surprise as a purpose of the discovery rules). Those matters concerned
general policies regarding the employment of contractors at SCE, information regarding budget
decisions by SCE and statements attributed to Seater's second-level supervisor. CX 103A.
During
the course of the hearing, relevant budget and employment records were not only readily
accessible
to SCE, but documentary evidence regarding such issues had already been designated as
proposed
exhibits by SCE, see, e.g., RX 10-14 (admitted into evid., T. 1025-32). Moreover, the
supervisor who was allegedly quoted in the Horton statement was to be called as a central
witness
in the presentation of SCE's defense at hearing, T. 140. The means with which to frame a
rebuttal
response to the proffered testimony were thus readily available to SCE. The ALJ erred,
therefore,
in accepting SCE's argument that its right to a fair opportunity to cross-examine Horton could be
ensured only if it were allowed to first depose Horton.18
Cf. Price v. Seydel, 961 F.2d 1470, 1474 (9th Cir. 1992) (addressing the four prong test
developed by the courts in determining whether to allow the testimony of a "surprise witness"19 ).
In addition, we agree with Seater that the ALJ's refusal to hear
Horton's testimony telephonically did not demonstrate a proper degree of sensitivity to the issue
of
Horton's critical state of health.20
Section 18.611 of the
OALJ Rules of Practice and Procedure provides that the ALJ should control the mode and order
of
the questioning of witnesses in the interest of the "ascertainment of truth," the avoidance of
"needless consumption of time," and the protection of witnesses from "harassment or undue
embarassment." 29 C.F.R. § 18.611.21
Similarly, Section 18.15 provides authority for the ALJ to restrict the conditions under
which
discovery may be conducted as "justice requires to protect a party or person from annoyance,
embarassment, or undue burden or expense . . . ." 29 C.F.R. § 18.15; see
Fed.R.Civ.P. 26(c), Protective Orders; see also 29 C.F.R. § 18.22(e);
Fed.R.Civ.P. 30(d), Schedule and Duration; Motion to Terminate or Limit Examination. Among
the alternatives available under Section 18.15 is the denial of the discovery request. 29 C.F.R.
§ 18.15(a)(1).
The ALJ's ruling that Horton's testimony would be allowed only
if his deposition were taken in person, either for the purpose of discovery or in lieu of hearing
testimony, failed to accommodate the critical state of Horton's health. The physician's statement
in evidence in this case provided ample substantiation for the contentions raised by Seater at
hearing
concerning the adverse effects that unrestricted, in-person questioning could have on Horton's
health. See CX 103B; T. 120, 123-25, 129-132. Inasmuch as the ALJ's ruling regarding
the Horton deposition did not provide any protective restrictions, Seater's failure to take Horton's
deposition post-hearing does not constitute a waiver of his right to challenge the ALJ's action.
Cf. Price, 961 F.2d at 1474 (holding that party did not waive right to challenge exclusion
of testimony despite failure to present testimony under the conditions imposed by trial judge).
Concerning the issue of telephonic testimony, we note that
neither the regulations at 29 C.F.R. Part 24 nor those at 29 C.F.R. Part 18 provide for the taking
of
testimony by telephone. Persuasive authority exists, however, to support the use of such
practice
if necessary to facilitate the presentation of Horton's testimony in these circumstances. Section
30(b) of the Federal Rules of Civil Procedure provides for the taking of depositions by telephonic
means.22 Fed.R.Civ.P. 30(b). In civil
cases involving
witnesses who are unavailable to appear in court, the presentation of testimony by telephone has
frequently been allowed, despite the objections of an opposing party. See, e.g., Official
Airline
Guides, Inc. v. Churchfield Publications, Inc., 756 F.Supp. 1393, 1399 n.2 (Ore.D.
1990)(witnesses unavailable based on distance from trial location); Ferrante v. Ferrante,
127 Misc.2d 352, 485 N.Y.S.2d 960 (N.Y.Sup.Ct. 1985)(physically incapacitated plaintiff
and
witness); Gregg v. Gregg, 776 P.2d 1041, 1989 Alas. LEXIS 67 (Alaska Sup.Ct.
1989)(out-of-state respondent in divorce action allowed to take witness oath and to testify by
telephone under
state civil procedure rule allowing telephonic participation); see also Textor v. Cheney,
757
F.Supp. 51 (D.D.C. 1991)(rejecting APA challenge to Department of Defense debarment hearing
in which petitioner participated by telephone); but see Murphy v. Tivoli Enterprises, 953
F.2d 354, 358-59 (8th Cir. 1992)(disagreeing with Official Airline Guides court
conclusion
that telephonic testimony constitutes "testimony taken orally in open court" as required by
Fed.Civ.P.Rule 43(a)); see generally Schwartz, Administrative Law Cases During
1989,
42 Ad.L.Rev. 423, 435-36 (1990)(noting divergent Federal court rulings on parties'
objections
to hearings held by telephone23 );
Comment, Speaker-Telephone Testimony in Civil Jury Trials: the Next Best Thing to Being
There?, 1988
Wis.L.Rev. 293 (1988).
Although telephonic testimony does not provide the
opportunity for observation of the witness that is provided by in-person testimony, it does
provide
more opportunity for observation of the witness than does a deposition submitted in lieu of such
testimony. See Official Airlines Guides, Inc., 756 F.Supp. at 1399 n.2; Casey v.
O'Bannon, 536 F.Supp. 350, 353-54 (E.D.Pa. 1982). Horton, the prospective witness, is an
employee of SCE, the party to whose cross-examination he is to be subjected. In such
circumstances, the requirement of an in-person appearance at hearing is unnecessary to impress
upon
the witness the seriousness of the matter in which he is giving testimony. See generally
National
Labor Relations Board v. Dinion Coil Co., 201 F.2d 484, 487-91 (2d Cir. 1952)(addressing
history of oral testimony given in open court); 7-Eleven Food Store, 257 N.L.R.B. 108,
113
n.31 (1981)(noting well-established principle that an employee who testifies in a manner adverse
to
his employer's position is generally accorded greater credence) and cases cited therein.
Consequently, the manner in which Horton's testimony is taken
on remand must accommodate Horton's physical condition at that time. Prior to the scheduling
of
a deposition or a supplemental hearing, Seater must provide medical evidence concerning
Horton's
current physical condition and any medically imposed restrictions pertinent to the taking
of Horton's testimony. Based on the information provided, the ALJ then must issue an
appropriate
order concerning the conditions under which discovery, if appropriate, will be conducted and
Horton's testimony will be taken.24
4. Exclusion of evidence not timely exchanged
On the last day of hearing, the ALJ rejected several exhibits
proffered by Seater, based on the ALJ's findings that the exchange with SCE was untimely and
that,
in some instances, the documents were irrelevant to the issues before him. T. 1907-28; see
CX 159-163, 169-175; see also T. 1623-30.25 As discussed supra, we have rejected the ALJ's blanket exclusion of the
exhibits CX 159-161, 169, 171, 173, 175, based on relevancy grounds. Furthermore, in view of
the
ALJ's erroneous pre-hearing rulings concerning relevancy, T. 1-51 passim (pre-hearing
teleconference), Seater's failure to exchange the foregoing exhibits with SCE in a timely manner
under the pre-hearing guidelines does not constitute a bar to the admission of such evidence.
See
generally Price, 961 F.2d at 1474. On remand, SCE must be provided a meaningful
opportunity
to respond to such evidence. See Land, slip op. at 5-8 and cases cited therein.
With regard to the other excluded exhibits at issue, CX 162,
163, 170, 172 and 174, we reject Seater's contention that the ALJ was not even-handed in his
admission of exhibits that had not been timely exchanged prior to the hearing. See T.
525-30, 555-66, 1628, 1783-86, 1914-30; see generally 29 C.F.R. § 18.47(b)
[Exchange
of Exhibits]. Indeed, Seater's counsel acknowledged that none of the documents that he
proffered
on the last day of hearing fell into the rebuttal category defined by the ALJ, i.e., evidence
whose relevance became apparent only after presentation of SCE's evidence in defense of the
complaint.26 T. 1926-27.
In addition, as noted by SCE, Resp. Br. at 29, Seater has failed
to assign error to the ALJ's exclusion of these exhibits on any other grounds. Comp. Br. at 28.
Finally, although Seater's counsel stated that these documents "speak for themselves," T. 1918,
the
probative value of exhibits CX 162-163, 170, 172 and 174 is unclear as each document appears
to
be irrelevant or repetitious.27 We
therefore reject
Seater's contention that the ALJ was not even-handed in determining the admissibility of
evidence
not timely exchanged within the parameters provided by the pre-hearing conference.28
II. The ALJ's Findings of Fact
Seater urges that the ALJ erred by failing to render credibility
findings concerning the demeanor of the witnesses at hearing. Comp. Br. at 21-22. Seater also
urges that the ALJ rejected evidence without adequate explanation. Id. To be sustained,
factual findings, including credibility determinations, must be supported by substantial evidence
on
the record considered as a whole. Cotter v. Harris, 642 F.2d 700, 704 (3d Cir. 1981).
Where a factfinder's "theory of credibility is based on inadequate reasons or no reasons at all, his
findings cannot be upheld." N.L.R.B. v. Cutting, Inc., 701 F.2d 659, 667 (7th Cir. 1983).
The factfinder must provide explicit statements concerning which portions of the evidence are
accepted or rejected, Dobrowlosky v. Califano, 606 F.2d 403, 409-10 (3d Cir. 1979), and
"cannot reject evidence for no reason or for the wrong reason," Cotter, 642 F.2d at
706-07.
Initially, we note that the ALJ provided a detailed narrative of
pertinent events, supported by references to the record evidence. R. D. and O. at 5-29. The ALJ
did,
however, fail to render all credibility findings, particularly with regard to the demeanor of the
witnesses at hearing, that are necessary to disposing of the allegations concerning SCE's decision
to accelerate Seater's termination date and a hostile work environment.29 But see R. D. and O. at 25 (rejecting Seater's contention that SCE
budget
analyst was an "arrogant, pompous" witness). Such findings are crucial to the proper resolution
of
pertinent conflicts in the witnesses' testimony. See Pogue v. United States Dept. of Labor,
940 F.2d 1287, 1289, 1290 (9th Cir. 1991); NLRB v. Cutting, Inc., 701 F.2d at 663.
For example, conflicting testimony was presented concerning
the factual question of whether NSC staff overheard comments regarding Seater and other
laboratory whistleblowers that were made by co-workers at employee meetings in September
1994.
T. 333-335, 378 (Clift), 621-23, 672-78 (Seater), 738-45, 812-16 (Telford), 918-22
(Brown); see T. 1848-51, 1874-76, 1899-1900 (Basu, Czapski and Reynolds, testifying
that
they heard remarks but thought they were intended to be humorous); R. D. and O. at 13.
The ALJ declined to credit the testimony of NSC staff person Steve Brown that an electronic
mail
message generated by Brown on June 21, 1994, CX 33, did not indicate his "displeasure" with
Seater
and other whistleblowers. R. D. and O. at 29. Nonetheless, the ALJ failed to explain the basis
for
his crediting of Brown's denial that he heard the comments at issue in the September 8, 1994
meeting. R. D. and O. at 13; see NLRB v. Cutting, Inc., 701 F.2d at 667; Cotter,
642 F.2d at 706-07.
In rendering a decision on remand regarding the acceleration
decision and the hostile work environment issue, the ALJ should provide findings concerning
witness demeanor in connection with resolution of conflicts in the pertinent controverted
testimony,
see, e.g., R. D. and O. at 9, 16, 28 (referring to testimony of Seater's second level
supervisor
Thomas Herring). The ALJ must also address pertinent conflicts in all the evidence of record
and
provide a basis for his resolution of such conflicts. See NLRB v. Cutting, Inc., 701 F.2d
at
667; Cotter, 642 F.2d at 706-07; Dobrowlosky, 606 F.2d at 409-10. In
resolving pertinent conflicts in the testimony of record, the ALJ may also rely on factors related
to
the content of the witnesses' testimony, e.g., internal inconsistency, inherent
improbability,
important discrepancies, impeachment and witness self-interest. See Dorf v. Bowen, 794
F.2d 896, 901-02 (3d Cir. 1986); Kent v. Schweiker, 710 F.2d 110, 116 (3d Cir. 1983);
NLRB v. Cutting, Inc., 701 F.2d at 666.
Seater notes that the R. D. and O. contains factual
misstatements. Comp. Br. at 15 n.8. In rendering his additional findings on remand, the ALJ
should
be cognizant of the following material inaccuracies regarding the evidence of record that are
contained within the R. D. and O.
The documentary evidence of record indicates that SCE sought
the expertise of two outside entities in the course of addressing the fastener safety issue that was
raised to the SCE Senior Vice-President's level by Seater on December 27, 1993. On December
29,
1993, Roger Reedy (Reedy), an engineering expert affiliated with the American Society of
Mechanical Engineers, was contacted as a technical consultant by Michael Ramsey, the SCE
engineer who had been assigned primary responsibility for a technical evaluation of the fastener
issue. CX 41 at 2. On January 17, 1994, a study was begun by Corporate Systemics, Inc. (CSI),
of
staff communications and interaction between the units of the Procurement Engineering division,
including the test laboratory where Seater worked, and other inter-facing SCE units, including
warehouse personnel. CX 5 at 37. This study was commissioned after the filing of Seater's
fastener
safety concern, and a report was issued by CSI on February 18, 1994. See id.30 On pages 8-9 and 14 of the R. D. and
O., the
technical consultation assistance provided by Reedy is confused with the organizational report
provided by CSI.31
The R. D. and O. also indicates a misunderstanding concerning
the employment status of two of Seater's fellow whistleblowers in the SCE test laboratory. On
page
8 of the
R. D. and O., the ALJ refers to Clift and Telford as contract employees, whereas they were
regular,
directly hired employees of SCE. T. 308, 720; cf. RX 7, 8, 9 (listing PE contract
employees
by name). In addition, the ALJ stated, R. D. and O. at 18, that "despite having been associated
with
two nuclear safety concerns within one year, Clift continues to be employed in the laboratory,"
whereas the evidence unequivocally establishes that Clift was scheduled to be transferred from
the
laboratory effective July 1, 1995.32 T.
365 (Clift), 1695-98 (Opitz); see T. 378-79 (Clift).
Documentary evidence offered by SCE concerning the budget
information available to Seater's supervisors around the time that they decided to accelerate
Seater's
termination date is also mischaracterized. On page 22 of the R. D. and O., the ALJ states that the
document titled "Procurement Engineering 1994 Budget Variance Report Thru April 1994,"
which
is designated RX 76, "projected a $167,506 deficit by the end of the year." In fact, the figure
quoted
by the ALJ is found on the monthly budget variance report for Procurement Engineering under
the
column headed "YTD variance." RX 76.33 The
testimony of Dokter, who prepared the report, Herring, the PE supervisor, and Hadley, the
unofficial
budget analyst for PE, confirmed that the "YTD variance" column on the monthly budget
variance
reports prepared by Dokter provided the year-to-date amount of deficit or overage for the
budget categories listed on those reports, based on year-to-date spending from amounts budgeted
for
those months of the year, not a projected deficit or overage.34 T. 515-19, 1456, 1774; see T. 1457-70 (line by line disc. of RX 75,
budget
variance report thru 3/94, by ALJ and Herring).
III. The ALJ's Conclusions of Law
A. Termination
Section 211 of the ERA protects employees in the nuclear
industry from retaliatory discrimination based on the pursuit of nuclear related safety concerns.
42
U.S.C. § 5851; Mackowiak, 735 F.2d at 1163. To prevail in this complaint based
on
circumstantial evidence of retaliatory intent, Seater must establish by a preponderance of the
evidence that he engaged in activity protected under the ERA, that he was subjected to adverse
action, that SCE was aware of the protected activity when it took the adverse action, and that the
protected activity was a reason for the adverse action. See Simon v. Simmons Foods, Inc.,
49
F.3d 386, 389 (8th Cir. 1995); Mackowiak, 735 F.2d at 1162; Thomas v.
Arizona Public Service Co., Case No. 89-ERA-19, Sec. Dec., Sept. 17, 1993, slip op. at 20
(citing St. Mary's Honor Center v. Hicks, 113 S.Ct. 2742, 125 L.Ed. 2d 407 (1993)).
As found by the ALJ, Seater has failed to establish by a
preponderance of the relevant evidence that SCE's decision to terminate Seater in December
1994
was based, even in part, on retaliation for Seater's protected activity.35 We agree with the reasoning of the ALJ regarding SCE's decision to terminate
Seater in December 1994, but, as previously noted, we reject the ALJ's findings regarding the
decision to accelerate Seater's termination to September 1994. Particularly in the interest of
distinguishing the latter from the former, we provide the following clarification of the ALJ's
analysis
regarding the decision to terminate Seater in December 1994.
Initially, we reject Seater's contention that the ALJ committed
reversible error under Section 211 of the ERA in allocating the parties' burdens. Seater urges
that
the ALJ erred, under the CNEPA amendments to the ERA, by failing to require SCE to establish
a
legitimate basis for its termination of Seater by clear and convincing evidence. Comp. Br. at 2-3.
Contrary to Seater's contention, the clear and convincing evidence standard applies only if a
complainant establishes by a preponderance of the evidence that the adverse action was
motivated,
at least in part, by retaliatory intent; the amended Section 211(b)(3) of the ERA heightens an
employer's burden of proof only under the dual, or mixed, motive doctrine. Section
211(b)(3)(D) of the ERA, codified at 42 U.S.C. § 5851(b)(3)(D); see Dysert v. Florida
Power Corp., Case No. 93-ERA-21, Sec. Dec., Aug. 7, 1995, appeal docketed Dysert v.
Sec'y of Labor, No. 95-3298 (11th Cir. Sept. 28, 1995); Yule v. Burns International
Security
Service, Case No. 93-ERA-12, Sec. Dec., May 24, 1995, slip op. at 7-13; see also
Johnson
v. Bechtel Construction Co., Case No. 95-ERA-11, Sec. Dec., Sept. 28, 1995, slip op. at
2;
see generally Mackowiak, 735 F.2d at 1164 (addressing dual motive doctrine in case arising
under the ERA prior to the amendment by the CNEPA). Although the ALJ failed to
acknowledge
SCE's heightened burden if a mixed motive analysis were reached, R. D. and O. at 4, the ALJ
properly concluded that a mixed, or dual, motive analysis was not reached in regard to the SCE's
decision not to extend Seater's contract beyond December 1994. R. D. and O. at 30.
Consequently,
any error in the ALJ's misstatement regarding employer's burden under the dual motive analysis
is
harmless.
The determination regarding whether retaliatory intent
contributed to SCE's decision to terminate Seater at the end of 1994 must focus on the time at
which
the decision was made and the circumstances surrounding that decision. See Timmons,
slip
op. at 10-11 and cases cited therein. The temporal relationship between a complainant's
engaging
in protected activity and the employer's decision to take an adverse action must be considered in
assessing the motivation of the decision-maker at the pertinent time. See, e.g., Simon, 49
F.3d at 389 (citing Couty v. Dole, 886 F.2d 147, 148 (8th Cir. 1989); Bausemer v. Tu
Electric, Case No. 91-ERA-20, Sec. Dec., Oct. 31, 1995, slip op. at 10-12; but see
Jackson
and Roskam v. Ketchikan Pulp Co., Case Nos. 93-WPC-007, 93-WPC-008, Sec. Dec., Mar.
4,
1996, slip op. at 9-11 (discussing temporal proximity as only one factor to be considered in case
of
intentional retaliation based on circumstantial evidence). In the instant case, the ALJ
found
that the decision to terminate Seater in December 1994 had been made prior to December 27,
1993,
when Seater raised the fastener safety concern to the attention of the SCE Senior Vice-President.
R. D. and O. at 18-21, 25.36 This
conclusion is amply
supported by the record.
Uncontroverted testimony and documentary evidence establish
that in early 1992, soon after a decision was made to close one of the SONGS generating units
later
that year, a staff reduction and reassignment plan was developed by SCE management. E.g.,
RX 21, 22, 30; see R. D. and O. at 19-21 and testimony cited therein. In order to
find
other jobs for regularly employed SCE personnel who would be displaced upon the Unit 1
closing,
management announced its intention to cut consultants, part-time, temporary and supplemental
personnel. RX 24. By August 1992, the impact that the plans for "non-SCE staffing reduction"
would have on the PE budget was being actively discussed. RX 89, 90. In the last few months
of
1992 and the early months of 1993, SCE employees from Unit 1 were being reassigned to PE to
replace contract employees there, including employees in the test laboratory, where Seater
worked.
RX 69, 70, 71. In December 1992, the laboratory's immediate supervisor, David Opitz, was
transitioned from Unit 1 to the laboratory. T. 338-41 (Clift), 1371, 1562 (Herring). Two other
regular employees from Unit 1 transitioned to the laboratory in 1993 and one contractor working
in
the laboratory was terminated. T. 363-64 (Clift), 655-57 (Seater), 1375-76 (Herring); RX 70, 71.
Herring's testimony, T. 1375-76, that contract employees were also released from other PE units
in
1993 is uncontradicted.
In addition to the plan to transition employees from Unit 1, in
June 1993 SCE management was also considering a staffing study authored by Brian Katz, a
SCE
manager, that recommended further cuts in SCE staffing, including the staff in PE.37 T. 1011-14, 1126-36 (Rosenblum),
1274-78 (Reilly);
see RX 19; R. D. and O. at 20. In August 1993, Herring was planning to cut contractors
in
PE during 1994, in order to meet the request of higher management that he operate in 1994 on
approximately 10% less than his 1994 budget. RX 7, 8; T. 1277-78 (Reilly), 1391-97 (Herring).
Plans prepared by Herring in November 1993 indicate that he was planning to terminate some
contractors from PE during 1994 in order to operate within a budget amount equal to 90.8% of
the
1993 PE budget. RX 9. Seater testified that he and other contract workers were told in a
meeting
with Opitz in December 1993 that they would be needed in the laboratory through 1994. T.
619-20.
An electronic mail message from Hadley, the PE engineer who kept division budget records for
Herring, dated December 17, 1993, requested that the first-line supervisors working under
Herring
in PE prepare budgetary estimates for a meeting on January 4, 1994, and noted that budgetary
changes "will significantly impact the PE payroll and the ability to retain contractors." RX 102;
see T. 500-02 (Hadley).
A memorandum from Herring to Reilly and Rosenblum, dated
January 5, 1994, providing a schedule for termination of the twelve contract employees in PE,
"[a]s
requested in November of 1993," indicates that Seater was scheduled to work through December
1994. RX 10. The foregoing testimony and documentary evidence provide ample support for
the
conclusion that, although the Herring memorandum is dated a few days after Seater's protected
activity of December 27, 1993, the decision to terminate contract personnel in the test laboratory
and
elsewhere in PE during 1994 was based on personnel and budget decisions made prior to
December
27.
Also significant is the lack of evidence indicating hostility
toward Seater and his fellow whistleblowers in the laboratory prior to Seater's action on
December
27, 1993. Seater began voicing his concerns to Opitz and Herring regarding the fastener issue in
the
latter part of 1993. T. 251-53 (Brewer), 308-09 (Clift), 602-04, 612-14 (Seater), 726-27
(Telford),
1650-53 (Herring), 1713 (Opitz). There is no evidence, however, of demonstrations of
retaliatory
animus by Opitz or Herring, or other SCE supervisory personnel, during that time. Rather, the
evidence of hostility toward Seater and his fellow whistleblowers follows the developments in
the
fastener controversy at SCE during 1994. See, e.g, T. 254-55 (Brewer), 311-12 (Clift),
610-11 (Seater), 758-59 (Telford); R. D. and O. at 9, 16 (regarding Herring's hostile demeanor
toward whistleblowers in 1994). The uncontroverted evidence also indicates that Herring
initially
shared Seater's view that SCE should be utilizing the newer technology, known as System 22, to
gauge the acceptability of fasteners under pertinent specifications. T. 541-43 (Hadley), 1537-38,
1543-45 (Herring); see T. 147 (Johnson), 612-14 (Seater), 727-29 (Telford); CX 9 at
SCE2420.
We also agree with the ALJ that the evidence does not support
Seater's contention that the decision to transfer certain budget costs to the PE budget for 1994
was
made in response to Seater's protected activity of December 27, 1993. R. D. and O. at 25.
Documentary evidence of record establishes that the transfer of certain budget costs to the PE
budget
for 1994 was discussed by SCE supervisory personnel beginning in mid-1993. RX 103, 110,
114.
In sum, Seater has failed to establish a sequence of events that
supports the conclusion that the decision to terminate his contract employment with SCE at the
end
of 1994 was based, even in part, on retaliatory intent. See Miller v. ThermalKem, Inc.,
Case
No. 94-SWD-1, Sec. Dec., Nov. 9, 1995, slip op. at 5-6, aff'd sub nom., Miller v.
Sec'y
of Labor, No. 95-3174 (4th Cir. Aug. 15, 1996), 1996 U.S.App. LEXIS 20446; cf.
Bausemer, slip op. at 10-12 (holding temporal proximity between protected activity and
subsequent adverse action supported conclusion of retaliatory intent). We thus agree with the
ALJ
that Seater failed to demonstrate, by a preponderance of the evidence, that SCE's decision not to
extend Seater's contract beyond December 1994 was based, even in part, on a discriminatory
motive.38 See Carroll v. United
States Dept. of
Labor, 78 F.3d 352, 356 (8th Cir. 1996); Pillow v. Bechtel Construction, Inc., Case
No.
87-ERA-35, Sec. Dec., July 19, 1993, slip op. at 13 (citing St. Mary's Honor Center, 113
S.Ct. at 2749, 125 L.Ed.2d at 419), appeal docketed, No. 94-5061 (11th Cir. Oct. 13,
1994).
B. Acceleration of termination date
The ALJ found that SCE articulated a legitimate reason, i.e.,
budget pressures, for its acceleration of Seater's termination date from December 1994 to
September
1994. R. D. and O. at 24-25. 39 The ALJ
further found
that Seater had failed to establish, by a preponderance of all relevant evidence, that retaliatory
intent
contributed to SCE's decision to accelerate the date of Seater's termination. R. D. and O. at
25-30.
In so doing, the ALJ credited the explanations of Herring and Reilly that the decision to
accelerate
Seater's termination date was based on budget considerations. R. D. and O. at 27-28. In
addition
to the evidentiary errors discussed supra, the ALJ also committed the following errors in
analyzing the question of whether Seater had demonstrated retaliatory intent in regard to the
acceleration decision.
A major flaw in the ALJ's analysis of the acceleration issue
is his failure to focus on the timeframe spanning March and April 1994. R. D. and O. at 27-28.
Herring and Reilly testified that they agreed upon the decision to accelerate Seater's termination
in
April 1994, T. 1279-96 (Reilly), 1454-71, 1645-46 (Herring), and examination of the events
occurring proximate to that time is crucial to a proper determination regarding any role that
retaliatory intent may have played in the acceleration decision, see, e.g., CX 11, 24, 25,
48,
53, 56, 152; RX 34. See Bausemer, slip op. at 10-12; see also Timmons, slip op.
at 10-11 and cases cited therein.
The ALJ also misinterpreted the budget information available
to Herring and Reilly in April 1994. Herring and Reilly testified that their decision to accelerate
Seater's termination date had been prompted by receipt of certain budgetary information. T.
1286-89 (Reilly), 1455-57, 1645-46 (Herring); see RX 75; see also T. 1284-85,
1290-99,
1309-10, 1321-23 (Reilly), 1412, 1471-73 (Herring); RX 12. Herring testified that the
year-to-date
performance of PE for the first quarter of 1994 indicated that PE "would not be able to meet [its]
1994 budget requirement." T. 1455; see T. 1646.
In reviewing the monthly budget variance reports referred to
in the testimony of Herring and Reilly, the ALJ, as discussed supra, misconstrued
the monthly budget variance report at RX 76 as providing a year-end deficit projection that was
not
included in that report. R. D. and O. at 27-28; see RX 76. The ALJ also erred in
concluding
that the unofficial budget reports prepared by Hadley provide support for the acceleration
decision
made by Reilly and Herring in April 1994. R. D. and O. at 22. Although Hadley's reports dated
March 7 and April 4, 1994 contain year-end deficit projections, the reports indicate that those
projections are based on the current "spending rate." RX 104, 105. Hadley's testimony, as well
as
a monthly budget report that he prepared later in 1994, establish that these earlier reports were
based
on a faulty premise, i.e., that PE spending would continue at the then current rate; the
projections provided in those reports did not reflect the diminished costs that were already
planned
for by the contractor release schedule implemented January 5, 1994. T. 504-13; RX 106 (noting
that
the year-end projection--a surplus--is based on the current spending rate and "the current
schedule for departure of contract personnel."); see RX 10 (Herring's 1/5/94 memo
regarding contractor termination dates in 1994).40
On remand, the ALJ should re-evaluate the evidence regarding
the PE budget that was available to Herring and Reilly in April 1994 to determine whether such
information supported the year-end deficit projection these supervisors attested to. Such analysis
must address all budget information then available to those supervisors, not merely that which
was
contained within the official and unofficial monthly budget reports prepared, respectively, by
Dokter
and Hadley. Thus, in determining whether the testimony of Herring and Reilly regarding the role
of
budget concerns in the April 1994 acceleration decision is substantiated by other evidence of
record,
the ALJ must consider budgetary factors that would have been taken into account by those
supervisors in their review of the budget documents in evidence. Cf. R. D. and O. at
21-23.
The analysis provided by the ALJ does not clearly differentiate
between the evidence relevant to two distinct events, viz., the decision to accelerate
Seater's
termination date from December to September 1994, which was made by Reilly and Herring in
April
1994, and the decision not to accelerate Seater's termination date from September to July,
which was made by Richard Rosenblum, SCE Vice-President for Engineering and Technical
Services at that time, in June 1994. R. D. and O. at 11-13; see T. 1645-46 (Herring),
1285-98, 1304-06 (Reilly), 1025-35, 1193-94 (Rosenblum); CX 2, 55, 166; RX 38, 39, 40;
see also
T. 1275-80 (Reilly), 1442-44, 1455-57, 1471, 1473-74, 1639-41 (Herring). Uncontradicted
evidence establishes that the decision not to accelerate Seater's termination date in June was
made
by Rosenblum, who rejected Herring's recommendation that Seater's termination be further
accelerated to July. T. 1030, 1034-35 (Rosenblum), 1304-06 (Reilly); CX 2, 55, 166; RX 38, 39,
40 (same 3 documents). The evidence also indicates that Reilly specifically consulted with
Rosenblum concerning the proposal that Seater's termination be further accelerated in June 1994,
but there is no evidence that Reilly or Herring called Rosenblum's attention to the fact that Seater
was included in the group of PE contractors whose termination dates Herring and Reilly decided
to
accelerate in April 1994. Compare T. 1279-80, 1296-98, 1455-57, 1473-74 (accounts by
Reilly and Herring regarding 4/94 decision), RX 12 with T. 1475-76, 1304-06 (their
accounts regarding 6/94 decision), RX 39; see T. 1645-46 (Herring). Particularly in view
of these factors, the question of whether retaliatory intent played any role in the April 1994
decision
by Reilly and Herring must be considered on its own merits. See generally Timmons,
slip
op. at 10-11 and cases cited therein.
Finally, in re-examining the acceleration decision on remand,
the ALJ must give due consideration to evidence establishing hostility toward whistleblower
activity
on the part of SCE supervisory personnel. See Pillow, slip op. at 22 (citing
Pogue, 940 F.2d at 1290 in support of principle that it is not permissible for an employer
to find fault with an employee for failing to observe established channels when making a safety
complaint); see also Harrison v. Stone & Webster Engineering Group, Case No.
93-ERA-44, Sec. Dec., Aug. 22, 1995, slip op. at 8-9.41 We
reject, however, Seater's contention that the refusal of Willis Frick, head of SCE's NSC office, to
provide data regarding the number of SCE employees who had engaged in whistleblowing
activity
that were still employed by SCE constitutes an admission. Comp. Reply Br. at 6-7 n.7; see
T. 219-20. Pursuant to Section 18.20, the failure of a party to answer a request for
"admission
of the truth of any specified relevant fact," in a timely manner will be deemed an admission of
such
fact. 29 C.F.R. § 18.20(a), (b). Similarly, pursuant to Section 18.6(d)(2), the failure of a
party
to comply with an ALJ's order for production of documents, answers to interrogatories or
requests
for admissions may be relied on, inter alia, to draw an adverse inference regarding the
information that would have been provided. 29 C.F.R. § 18.6(d)(2). In the instant case,
however, the record provides no indication that Seater pursued production of the aforesaid
personnel
information from Frick's office by means of a request for admission or sought the issuance of an
order to compel discovery, see 29 C.F.R. § 18.21, by the ALJ in an effort to obtain
this information. We therefore reject Seater's argument in this regard.42
C. Hostile work environment
Seater challenges the ALJ's finding that the evidence did not
establish that SCE had created a hostile work environment in violation of the ERA. Comp. Br. at
17-18; see R. D. and O. at 15-17. To establish retaliatory discrimination in the form of a
hostile work environment in this case, Seater must establish five factors. See Smith
v.
Esicorp, Inc., Case No. 93-ERA-00016, Sec. Dec., Mar 13, 1996, slip op. at 23-27 and cases
cited therein. Those factors are as follows: the complainant must establish that he engaged in
protected activity and was intentionally retaliated against for such activity; that such retaliation
was
pervasive and regular; that the retaliation detrimentally affected the complainant; that the
retaliation
would have detrimentally affected a reasonable person under the same circumstances; and that
respondeat superior liability is appropriate. Smith, slip op. at 24 n.18; see also Fuller
v. City of Oakland, 47 F.3d 1523, 1527 (9th Cir. 1995)(addressing hostile work environment
factors within context of Title VII of the 1964 Civil Rights Act, 42 U.S.C. § 2000e et
seq.). After resolving the conflicts in the pertinent evidence on remand, as discussed
supra,
the ALJ must re-evaluate the evidence of record under the foregoing standard and in view of
other pertinent points addressed in this decision, e.g., n.41 supra.
Accordingly, this case is remanded to the ALJ for further
proceedings consistent with this opinion.
SO ORDERED.
[ENDNOTES]
1 On April 17, 1996, the Secretary of
Labor
delegated authority to issue final agency decisions under, inter alia, the Energy
Reorganization Act of 1974, as amended, 42 U.S.C.
§ 5851 (1994), and the implementing regulations, 29 C.F.R. Part 24, to the newly created
Administrative Review Board (ARB). Secretary's Order 2-96 (Apr. 17, 1996), 61 Fed. Reg.
19978
(May 3, 1996). Secretary's Order 2-96 contains a comprehensive list of the statutes, executive
order,
and regulations under which the ARB now issues final agency decisions.
2 Section 211 of the ERA was
formerly
designated Section 210, but was redesignated pursuant to Section 2902(b) of the Comprehensive
National Energy Policy Act of 1992 (CNEPA), Pub. L. No. 102-486, 106 Stat. 2776, which
amended
the ERA effective October 24, 1992.
3 The parties have filed several
motions before
this Board. Orders concerning the granting of extensions of time in which to file briefs have
been
issued. Issues pertinent to re-opening the record and to supplemental authority cited by the
parties,
see Ltrs. of 5/5/96, 7/10/96, 7/31/96, 8/5/96 from Seater; Resp. Ltrs. of 5/16/96, 7/31/96,
8/6/96, are disposed of, either expressly or in substance, in this decision. It would not
serve
the interests of judicial economy to address further the specifics of those motions here.
4 The following abbreviations are
used herein for
references to the record: Hearing Transcript, T.; Complainant's Exhibit, CX; Respondent's
Exhibit,
RX; ALJ's exhibit, ALJX.
55/ Seater urges that a
financial
transaction engaged in by the ALJ during the course of the hearing in this case poses "at least a
potential appearance of impropriety." Ltr. of 1/24/96, accompanying Comp. Br. Seater states
that
the ALJ entered into a financial arrangement concerning the mortgage on the ALJ's residence
with
a subsidiary of a parent company having a significant role in the energy industry. Id. In
support of his view, Seater cites the importance of the outcome of the debate over
out-of-specification fasteners, which formed the basis for Seater's nuclear safety concern at SCE,
to the
nuclear industry. Id. Although the ALJ did err in excluding evidence relevant to the
extent
of the controversy at SCE over out-of-specification fasteners, see discussion
infra,
the ALJ also properly concluded that a determination concerning the merits of the divergent
views
on the fastener issue was not within his purview. R. D. and O. at 5 n.4. Furthermore, the
asserted
connection between the ALJ and the energy industry is too tenuous to pose a prohibited
appearance
of impropriety. See generally 18 U.S.C. Ch. 11, Bribery, Graft and Conflicts of Interest,
§§ 201, 208; 29 C.F.R. § 0.735-12, Conflict-of-interest laws (1995).
6 These principles are equally
applicable to
proceedings before this Board. The parties should also be mindful that reliance on inaccurate
factual
statements in briefs and motions does not enhance the persuasive value of the party's
corresponding
contention; it merely delays the decisional process. Cf. Avitia v. Metropolitan Club of
Chicago, 49 F.3d 1219, 1224 (7th Cir. 1995)(stating that "A misleading statement of facts
increases the opponent's work, our work, and the risk of error.").
7 Similar to the circumstances in
Frampton, Seater's counsel misjudged the length of time the hearing would take. In
enthusiastically agreeing with the ALJ's estimate that the hearing could be concluded in three
days,
Seater's counsel noted that his "experience in recent years with employers and whistle blower
cases
is they try to make the trials go too long." T. 43-44; see also 4/19/95 OALJ staff Report
of
Contact regarding telephone conference with parties' counsel (Seater's counsel believed case
could
be heard in 3 days, SCE counsel did not).
8 At hearing, the ALJ expressed
concern about
including evidence that would unduly burden the record. See, e.g., T. 344-45, 1101.
Section 18.403 of the OALJ Rules of Practice and Procedure provides that relevant evidence may
be excluded if the probative value of such evidence is "substantially outweighed" by the risk of
confusing the issues, misleading the trier of fact, or by concern regarding "undue delay, waste of
time, or needless presentation of cumulative evidence." 29 C.F.R. § 18.403. Section
24.5(e)(1) provides, inter alia, that the ALJ may exclude evidence that is "immaterial,
irrelevant or unduly repetitious." 29 C.F.R. § 24.5(e)(1). Section 24.5(e)(1) thus does not
allow for the exclusion of probative evidence unless it is "unduly repetitious." Section 24.5(e)(1)
was promulgated under Section 211 of the ERA and other statutory employee protection
provisions,
see 29 C.F.R. § 24.1(a), and is thus controlling as the specific program provision,
rather than the more general provision for Department of Labor adjudications found at Section
18.403. 29 C.F.R. §§ 18.1(a), 18.1101(c). The mandate of Section 24.5(e)(1) is
consistent with the nature of the evidence presented in a circumstantial evidence case of
retaliatory
intent, some of which may appear to be of little probative value until the evidence is considered
as
a whole, see generally Timmons, slip op. at 10-11 and cases cited therein. Section
24.5(e)(1)
is also in accord with Section 7(c) of the APA, 5 U.S.C. § 556(d).
9 The admission of these exhibits
into evidence
is subject to proper identification or authentication on remand. See 29 C.F.R. §
18.901; cf. 29 C.F.R. § 18.50 (authenticity of proposed exhibits submitted in
advance
of hearing).
10 Seater has filed a Motion to
Supplement
the Record with evidence that he urges is relevant to the collusion allegation in this case. As the
evidence proffered -- a magazine article concerning the relationship of the NRC to the nuclear
industry -- does not provide evidence that would link any interest his supervisors may have had
in
garnering favor with the NRC investigator to the fastener issue, we deny Seater's motion.
11 In addition to indicating a
degree of
sympathy toward the complainant and antipathy toward the respondent, the statements relied on
by
the ALJ indicated Udovich's intention to discount his fee if Seater did not prevail in this
complaint.
See ALJX 1; T. 287-88, 290-304. Any arrangement that links the amount of payment to
an
expert witness to the outcome of the litigation gives rise to questions
concerning the reliability of the testimony of such witness. See, e.g., Model Rules of
Professional Conduct, Rule 3.4(b) note (1995)("The common law rule in most jurisdictions is
that
it is improper to pay an expert witness a contingent fee."); see also Proposed
Amendments
to the Federal Rules of Civil Procedure to Implement the Agenda for Civil Justice Reform
(recommendation to amend Fed.R.Evid. 702 by adding a "Prohibition on Contingent Fee for
Expert Witness"), reprinted in 60 U.Cin.L.Rev. 1025 (1992); Exec. Order No. 12,778,
§ 1(e), 56 Fed. Reg. 55195 (1991), 3 C.F.R. at 360, 362 (1992)(Guidelines to Promote Just
and Efficient Government Civil Litigation -- ban on contingency fees for expert witnesses);
but
see Note, Contingent Expert Witness Fees: Access and Legitimacy, 64 S.Cal.L.Rev.
1363 (1991)(proposing "nonpercentage contingency fees [for expert witnesses] as a viable
alternative to the present ban" in the interest of increasing access to legal system); see
generally
Ojeda v. Sharp Cabrillo Hosp., 8 Cal.App.4th 1 (1992)(discussing impact of various state
restrictions on contingent fee agreements with expert witnesses).
12 Section 8(a)(1) prohibits
unfair labor
practices that interfere with the exercise of employee rights to organize for purposes of collective
bargaining under the National Labor Relations Act. 29 U.S.C. § 158(a)(1)(1994).
13 Seater's argument in regard
to the
surveillance issue is somewhat muddled. See Comp. Br. at 25-27. In addition, in his
post-hearing brief before the ALJ, Seater cites a sign at the SONGS entrance which reads "For
your
protection, this facility is electronically monitored by video surveillance."
Comp. Post-Hearing Br. at 62; see CX 68; T. 767. Seater then observes, "Nothing on the
sign indicates or suggests that SCE will refrain from subjecting employees to surveillance as a
result
of protected activity." Comp. Post-Hearing Br. at 62. Seater's reliance on the notice at the
SONGS
entrance is wholly misplaced in this instance, where the burden of proof is on the complainant to
establish that improper surveillance did indeed occur or that Seater reasonably perceived that
such
surveillance was being conducted. See Section 7(c) of the APA, 5 U.S.C.
§ 556(d); see generally Marien v. Northeast Nuclear Energy Co., Case No.
93-ERA-00049, Sec. Dec., Sept. 18, 1995, slip op. at 5-6 (addressing complainant's burden of
proof under
42 U.S.C. § 5851(b)(3)(D)).
14 Our disposition of the
surveillance issue
obviates the need to address Seater's contention, Comp. Br. at 26, that the ALJ's striking of
Telford's testimony in this regard should be reversed. See 29 C.F.R. § 18.103(a).
15 We do not intend to suggest
by this
holding that expert testimony concerning how covert surveillance could be effected would not be
probative in any case. For example, in a case in which the reasonableness of a complainant's
perception of surveillance were challenged on the basis that such surveillance would not have
been
technically possible, such expert testimony may very well be probative.
16 In the discussion of this
issue among
counsel and the ALJ at hearing, SCE counsel indicated that when Horton responded to its notice
concerning their intention to schedule his deposition, he told them that he did not want to testify,
that
he did not want to give a deposition, that "he didn't want to go through that." T. 121-22.
17 In the discussion among the
ALJ and
counsel at hearing, Seater's counsel indicated that he had obtained the original version of the
Horton
statement, which was unsigned, from the files of the Department of Labor investigator pursuant
to
a Freedom of Information Act request; he had asked Horton to make any changes to the
statement
Horton felt were necessary before signing the statement; Horton's signing of the amended
statement
had been notarized on May 1, 1995.
T. 119-25.
18 Inasmuch as we construe
Horton's
written statement as serving the purpose of a discovery document, we need not reach SCE's
contention that the statement does not qualify for admissibility within the pertinent evidentiary
guidelines, see Resp. Brief at 24-5; Resp. Motion to Exclude Comp. Exhibits at 2-10; T.
119-21.
19 The four factors are as
follows: 1)the
prejudice or surprise to the opposing party; 2)the ability of that party to cure the prejudice; 3)the
extent to which allowing the testimony would disrupt the orderly and efficient trial of the case at
hand or other cases; 4)bad faith or willfulness in failing to comply with the pre-trial order.
Price, 961 F.2d at 1474 and cases cited therein; see generally Fed.R.Civ.P.
37(c)(1),
which provides sanctions for failure to disclose witness information pre-hearing "without
substantial
justification."
20 Seater's reliance on the
Americans with
Disabilities Act of 1990, 42 U.S.C. § 12101 et seq., is misplaced, however.
See
Comp. Br. at 24. Access for handicapped individuals to Federal agency proceedings is
provided
for by Section 501 of the Rehabilitation Act of 1973, as amended, 29 U.S.C. § 791. We
also
note that neither statute is controlling on the issue at hand, i.e., how to strike a balance
between the due process rights of the parties to this case.
21 Section 18.611 is based on
Rule 611 of
the Federal Rules of Evidence. See 29 C.F.R. Part 18, App. to Subpart B--Reporter's
Notes.
22 It is also noteworthy that,
on April 23,
1996, the United States Supreme Court issued an order proposing an amendment to Rule 43(a) of
the Federal Rules of Civil Procedure, to be effective December 1, 1996, which would, "for good
cause shown in compelling circumstances and upon appropriate safeguards, permit presentation
of
testimony in open court by contemporaneous transmission from a different location."
23 In Purba v. I.N.S.,
884 F.2d 516
(9th Cir. 1989), the court agreed with the petitioner that the telephonic deportation hearing
conducted
by the Immigration and Naturalization Service violated the Immigration and Nationality Act
provision, 8 U.S.C. § 1252(b)(1982), requiring a hearing "before" an immigration judge.
In
Casey v. O'Bannon, 536 F.Supp. 350 (E.D.Pa. 1982), the court rejected welfare
applicants'
constitutional challenge to telephonic hearings on their appeals, based on analysis under
Mathews v. Eldridge, 424 U.S. 319, 333, 96 S.Ct. 893, 902 (1976).
24 The possibilities range from
a standard
discovery deposition with live testimony at hearing, if Horton's condition has improved
sufficiently
to allow such participation, to prohibiting discovery and taking Horton's testimony telephonically
if Horton's condition so requires. Telephonic testimony should be taken with specified
safeguards
to reliability in place, e.g., a notary/court reporter present with the witness to administer
the
oath or affirmation pursuant to Section 18.603, the recording of the witness testimony on
videotape,
in addition to transcription of the testimony by the court reporter at the hearing site, see
Ferrante, 127 Misc.2d at 353, 485 N.Y.S.2d at 962; see also In re San Juan Dupont Plaza
Hotel Fire Litigation, 129 FRD 424, 429 (P.R.Dist. 1990)(Order regarding conditions for
satellite transmission of witness testimony); cf. Geneva v. Tills, 129 Wis.2d 167, 384
N.W.2d 701 (Wis.S.Ct. 1986)(reliance of telephone witness on documents not then available to
opposing party denied that party a meaningful opportunity to cross-examine the witness).
25 At hearing the previous day,
Seater
proffered the foregoing exhibits, as well as exhibits CX 164-168. T. 1623-30. SCE agreed to
waive
objection to Seater's proffer of CX 164-168, which had not been exchanged with SCE prior to the
hearing, in exchange for Seater's agreement not to object to exhibits proposed for submission in
connection with the testimony of SCE's budget expert, Garret Dokter, the following day. Id.;
see T. 1783-85 (response of SCE counsel to Seater's objection to one of the Dokter exhibits,
reminding the ALJ of the parties' agreement the previous day; the ALJ responded that it was not
his
role "to enforce contracts between counsel.") The ALJ stated that he would reserve ruling on the
admissibility of exhibits CX 159-163 and 169-175 until they were actually proffered. T. 1629.
We
note that the parties are considered to be bound by their stipulations. See, e.g., 29 C.F.R.
§§ 18.17, 18.51.
26 Seater's counsel stated that
Seater had
had the documents designated as CX 162, 163, 170, 172 and 174 for some months prior to the
hearing, but had not provided them to his counsel until counsel requested that Seater re-review
the
materials in his possession, following the first week of hearing. T. 1914-15; see T. 1919,
1923, 1925-26.
27 At hearing, Seater did
address the
substance of CX 162, which he indicated was relevant to animus against him as a whistleblower
by
the SCE Nuclear Safety Concerns (NSC) office staff.
T. 1915. The document designated as CX 162 represents an excerpt from the record of Seater's
safety concern that was maintained by the NSC office, which is in evidence at CX 41; an almost
identical version of the text of CX 162 is found at pages 10-14 of CX 41. See 29 C.F.R.
§ 24.5(e)(1); n.8 supra. Also repetitive of evidence already in the record is the
document designated as CX 172, which concerns SCE's plan to bring Francis Brewer back to
work
following his termination at the end of June 1994, for the purpose of working on the fastener
safety
issue. Similarly, the two page exhibit marked CX 170 contains a copy of an organizational chart
for
the SCE division where Seater worked dated November 10, 1993, which is already in evidence at
RX 26; the attached e-mail from one of Seater's supervisors presents statements testified to by
that
supervisor at hearing. The significance of the document designated as CX 163, which appears to
be
an outline for a document to be drafted by SCE management in response to the fastener safety
concern, is unclear. The same is true of the document marked CX 174, which concerns an NSC
staff
interview with Seater in late August 1994 regarding objections to his termination that he had
voiced
to the personnel service through which he had been hired by SCE.
28 We note that these
documents were all
generated by SCE personnel and had been provided to Seater in the course of discovery. See
CX 162-63, 170, 172, 174; T. 1914, 1918, 1922. That factor largely undermines SCE's
contention that it would be subjected to unfair surprise by the admission of these documents. T.
1914-16, 1922, 1930. We also note that the ALJ correctly ruled that SCE could not properly
withhold evidentiary exhibits simply because such exhibits would be used on cross-examination
of
witnesses. T. 559-62; see RX 107. Such a practice would interfere with the elimination
of
surprise that is the purpose of discovery and pre-hearing exchanges and disclosures. See
Malpass and Lewis, slip op. at 13. Section 18.613 of the OALJ Rules of Practice and
Procedure,
modeled on Rule 613 of the Federal Rules of Evidence, see n.21 supra, does
provide, however, a narrow exception for evidence of inconsistent statements by witnesses, when
introduced solely for the purpose of impeaching witness testimony. T. 559-62, 587-91. Pursuant
to Section 18.613, evidence of such statements may be withheld, subject to disclosure to
opposing
counsel at the time the witness is questioned regarding those statements. 29 C.F.R. §
18.613;
see also 29 C.F.R. § 18.801(d)(1)(regarding admission of such statements as
substantive evidence); see generally Fun Connection, 302 N.L.R.B. 740, 747-48
(1991)(addressing prior inconsistent statements under FRE 801(d)(1)) and authorities cited
therein.
29 As previously indicated, we
affirm the
conclusion of the ALJ that the evidence does not establish that SCE's decision to terminate Seater
in December 1994 was retaliatory. As reflected in our analysis of the termination issue
infra, that conclusion is supported by uncontradicted testimony and documentary
evidence.
Consequently, any failure by the ALJ to resolve the conflicts in the controverted evidence of
record
relevant to the termination decision does not interfere with our affirmance of his conclusion
regarding the termination decision. See n.38 infra.
30 The record contains
conflicting
testimony by SCE supervisors concerning whether the decision to commission the CSI study was
prompted, at least in part, by the filing of Seater's safety concern. T. 1351-52 (Reilly), 1164
(Rosenblum). The "Introduction" section of the CSI Procurement Engineering Diagnostic Report
itself states that the study was requested by Herring, the Procurement Engineering supervisor,
and
notes that "Appendix A will highlight concerns associated with the Nuclear Safety Concern."
31 An understanding of the
respective roles
of Reedy and CSI is important to an evaluation of the extent of the industry-wide technical
debate
about fasteners and the extent of the internal controversy at SCE on the fastener issue; and, in
turn,
the role of these factors in the mindset of the SCE supervisors who made the decision to
accelerate
Seater's termination date. See discussion regarding relevancy of evidence, supra.
32 We also note that the
evidence
establishes that higher management was planning to transfer Telford from his regular duties in
the
laboratory but Opitz resisted this and retained Telford there. T. 642-43 (Seater), 755-56, 851-56
(Telford), 1698-1700, 1716-17 (Opitz).
33 The "Grand Total" YTD
variance figure
on RX 76 is actually $169,506, rather than $167,506 as indicated in the R. D. and O.
34 The year-to-date deficit
amount would
become the year-end deficit amount only if actual expenditures during the remainder of the year
were equal to the amounts budgeted for the remainder of the year. Pertinent documentary
evidence
indicates, however, that expenditures could not have been expected to remain at the budgeted
level.
As of early May 1994, when RX 76 would have been available to Herring, Procurement
Engineering
expenditures could be expected to decrease in relation to the amounts budgeted for the remainder
of the year. See RX 10, 18; T. 511 (Hadley),
1774-75 (Dokter). The substantive significance of this error will be addressed in the discussion
of
the acceleration issue, infra.
35 The parties stipulated that
Seater had
engaged in protected activity at SONGS. See R. D. and O. at 5.
36 The record unequivocally
establishes
that Seater's immediate, second level and third level supervisor, in addition to others in higher
management, were aware of Seater's December 27, 1993 protected activity within a few days
thereafter. See R. D. and O. at 6-8, 14; see generally Samodurov v. General Physics
Corp., Case No. 89-ERA-20, Sec. Dec., Nov. 15, 1993 (a complainant may establish
knowledge
of protected activity by either direct or circumstantial evidence).
37 The Katz study was based
in part on a
staffing study produced by consultant T.D. Martin. RX 19; see T. 1011-14, 1126-36
(Rosenblum). At the time that he conducted the study, Katz was head of the Nuclear Oversight
Division. T. 1223-24 (Slagle).
38 Our reliance on
uncontradicted
testimony and documentary evidence as support for the foregoing analysis obviates the need for
us
to review further findings of fact and evidence relied on by the ALJ in drawing his conclusion
that
Seater had not established that the decision to terminate him in December 1994 was retaliatory.
39 In a case such as this, in
which the
respondent has proffered evidence to rebut the complainant's prima facie case, the ALJ
may
simply proceed to weigh all the relevant evidence to determine whether complainant's ultimate
burden of establishing retaliatory intent by a preponderance of the evidence has been met.
See
Erb v. Schofield Mgmt., Inc., ARB No. 96-056, Sept. 12, 1996, slip op. at 3 (citing
Carroll
v. Bechtel Power Corp., Case No. 91-ERA-46, Sec. Dec., Feb. 15, 1985, slip op. at 11 n.9,
aff'd sub nom., Carroll v. United States Dept. of Labor, 78 F.3d 352, 356 (8th Cir.
1996)).
40 Despite SCE's counsel's
suggestion to
the contrary, T. 517, Herring did not testify that he was relying on the Hadley year-end
projections
in making the decision to accelerate Seater in April 1994.
41 The ALJ recognized the
evidence of
Herring's hostility toward Seater and other whistleblowers in the laboratory, R. D. and O. at 28;
see R. D. and O. at 9, as well as the hostility harbored by NSC office personnel toward
Seater, R. D. and O. at 29. He also noted the testimony of various witnesses, including SCE
managers, that Seater's action of December 27, 1993 was "unprecedented." R. D. and O. at 6.
On
remand, the ALJ must carefully consider the foregoing factors, in addition to SCE's response to
the
meeting of Seater and other whistleblowers with the NRC in Washington, D.C. in April 1994, in
determining whether retaliatory animus contributed to the decision to accelerate Seater's
termination.
42 Seater also contends that
SCE
demonstrated its hostility toward activity protected under the ERA by basing its policy toward
SCE
employees who appeared as witnesses in this case on the content of each witness' testimony.
Comp.
Br. at 22-23. This contention is refuted by the record, which indicates that SCE paid all
employees
that appeared at the hearing their regular salary but limited reimbursement for expenses related to
appearing at hearing to only those employees who were called by SCE as witnesses. T. 1155-60
(Rosenblum), 1955-58 (Hadley); see T. 1636-38, 1940-42. By rejecting Seater's
contention
in this regard, we do not suggest that the intimidation of witnesses in an ERA hearing is not a
serious
matter. See Remusat, slip op. at 8-9 and authorities cited therein; see also T.
1941-42 (Seater's counsel's discussion with ALJ regarding the foregoing issue).
[Page 2]
[Page 3]
[Page 4]
[Page 5]
[Page 6]
[Page 7]
[Page 8]
[Page 9]
[Page 10]
[Page 11]
[Page 12]
[Page 13]
[Page 14]
[Page 15]
[Page 16]
[Page 17]
[Page 18]
[Page 19]
[Page 20]