ML023640422

Part 2 of 2, Attachments to Tennessee Valley Authoritys Posthearing Proposed Findings of Fact and Conclusions of Law

ML023640422
Person / Time
Site:	Browns Ferry, Watts Bar, Sequoyah
Issue date:	12/20/2002
From:	Marquand B Tennessee Valley Authority
To:	Atomic Safety and Licensing Board Panel
SECY RAS
Shared Package
ML023640450	List: ML023640384 ML023640420 ML023640422
References
+adjud/rulemjr200506, 50-259-CIVP, 50-260-CIVP, 50-296-CIVP, 50-327-CIVP, 50-328-CIVP, 50-390-CIVP, ASLBP 01-791-01-CIVP, EA-99-234, RAS 5159
Download: ML023640422 (81)

Text

Peter Broida A A DEWEY PUBLICATIONS, INC.

3!=!ieG ARLINGTON, VIRGINIA

Citlng Byrd 132 MSPR 300 (1987)l... the agency correctly asserts that the administrative judge erred by confusing the

. requirements for the rating assigned to the appellant's Individual critical element and the summary rating assigned to the appellant's overall performance.

In Byrd, the Board explained that under 5 CFR § 430.204 an agency is required to develop: (1) a minimum of three rating levels for each critical element and (2) five summary rating levels for the employee's performance derived from the ratings on the critical elements and, a t the agency's discretion, from the ratings on the noncritical elements. The Board also stated that the administrative judge had correctly relied on Donaldson v. Department oflabor, 2 7 MSPR 293 (1 9851, In stating that (1) where the agency has chosen t o create a five-level evaluation system for each critical element, it must inform its employees of what level of performance is required to earn a "minimally satisfactory" evaluation and (2) agency performance appraisal plans that require extrapolating the performance rating on a critical element more than one level below the only level for which there is a written standard violated the statutory requirements of objectivity.... Upon review, we find that the opinion in Byrd misstated that Board's holding in Donaldson regarding extrapolation of performance ratings.

InDona/dson, the issue was whether an agency's extrapolation of a performance rating more than one level above or below the written standard conclusively established that the standard faiIed to meet statutory requirements and warranted reversal of the action. Although the appellants in Donaldson argued that the Board should be bound by the requirements of Federal Personnel Manual Letter 430-4 (March 24,1981) which stated that performance rating systems requiring extrapolating more than one level above or below the written standard faled t o satisfy the requirement for objectivity... the Board rejected that argument. Rather, it stated:

We find that the agency's system contravenes the cited FPM Letter, and w e agree with OPM's analysis that such a system generally will violate the statutory requirement of objectivity. However, w e find that an employee's substantive rights to a bone fdo opportunity t o demonstrate acceptable performance and t o communication of the standards he is expected to meet may be met otherwise than by a performance standard which meets OPM's requirement for extrapolation only one level above or below the written standard. -Thus, we hold that an agency may satisfy the employee's rights... by communicating t o the employee the standards he must meet in order to be evaluated a s demonstrating performance at a level which is sufficient for retention.... Such communication may occur in the PIP

... in counseling sesslons, in written instructions, or in any manner calculated to apprise the employee of the requirements against which he is to be measured.

Donaldson, 27 MSPR at 297-98.

In both appeals involved in Donaldson, the Board found thatthe agency's performance standards did not comply with OPM's restrictions on extrapolating standards. Nevertheless, the Board considered whether the agencies had otherwise adequately informed the appellants of the appropriate level of performance that was expected of them....

Thus, the initial decision and the Board's decision In Byrdare inconsistent with Donalds4n to the extent that they imply that a performance rating under standards that do not meet OPM's extrapolation restrictions could never meet the statutory requirements....

In this case, however, as in Byrd, the evidence supports the agency's claim that although it had the required five-level rating system for its summary rating of the appellant's performance, it did not have a five-level rating system for the individual critical element in issue. The appellant's performance standards for the critical element are identified as "far exceeds,"

"exceeds," or 'met."

Thus, In finding the appellant's performance unacceptable, the agency did not extrapolate the performance rating on the appellant's critical element more than one level below a level for which there was a written standard, and the administrative judge erred in finding that the agency had an improper performance rating system.

In the event that Cochran Is not entirely clear, in Donaldson it was held that the agency may avoid the problem of lack of formal distinctions between levels of performance in a five-tier system by communicating t o the employee, through a PIP. counseling sessions, written instructions, or other means, the requirements that he must meet t o retaln employment. Standards, If set a t 1

only one level for a five-level review system, are Inadequate, but statutory requirements may be met if the standard that Is

satisfactory is cornmunlcated In a performance lmprovement plan, in counseling sessions, In written instructions, or in any manner calculated t o apprise the employee of the requlrements. Adems v. Dept. of Navy, 28 MSPR 589 (19851 rrablel.

The Board tried again In Luscrlv. Dept. ofArmy, 3 9 MSPR482,489 (19891, comlng right out and holding, in plaln language. that

'the agency did not need to establish a separate level for 'mlnlmally acceptable' performance':

The appellant notes that the performance improvement plan references onlythe standards thai the appellant must meet for

'fully successful performancew inthe critical elements. The agency correctly held the appellant to these standards, however, because St did not have a 'minimally acceptable" levet of ratrng for the critical elements. Rather, the agency had only one defined performance standard - the fully successful level - and three levels of rating for each critical element - exceeded, met, and not met. Under 5 CFR § 430.204(e), a system with three radng levels for each critical element is acceptable: the agency did not need to establish a separate level for "minimally acceptable" performance in the crhical elements. Sss Cochran v. Vet8rens Addnlstration, 35 MSPR 555,556-58 (1987).

That the agency had five rating levels against which t o judge the appellant's overan performance, including a minimally acceptable level, b irrelevant. Under 5 CFR 9 430.204(h), agencies are required to develop five summary rating levels for the employee's performance derived fromthe ratings on the critical elements and, a t the agency's discretion, fromthe ratings I

on the noncridcal elements. Cochren, 35 MSPR at 556. Here, the agency had the necessary 5-level plan, but it requfred the appellant to meet the defined performance standards in all critlcal elements t o be rated even marginally acceptable. The appellant has not Identified any error in this requlrement, because an employee may be removed for failing to meet the GUIDE TO MSPB LAW & PRACTICE CHAPTER 9

established performance standards in one or more of the critical elements of his position. See 5 USC §§ 4301(3) and

- 4302(b)(6).

The Board also attempted to explain [through Indirection) the difference between a performance action based on single-level standards and multiple-level summary ratings In Sepfavy v. VA, 41 'MSPR 251.252-54 (1989), involving a demotion:

The agency charged the appenant with failing to satisfy the critical elements of Grounds Maintenance and Safety. Each of these elements only specified one level of performance. Relylng on the Board's decision in Donafdson...the administrative judge found that these standards were invalid because "any assessment of performance must be extrapolated from the one set of performance guidelines." The admlnlstradve judge also found that thls need to extrapolate adds a measure of subjectivity to the assessment of the employee's performance which is contrary to the mandate of 5 USC Chapter 43 that performance be judged, to the maxlmum extent feasible, on the basis of objective criteria....

We find, however, that the present case is distinguishable from Donafdson.. In Donafdson, the Board found that a A

performance appraisal plan that requlres the rating on an individual critical element to be extrapolated more than one level above and below the written standard may violate the objectivity requirement.... This holding, however, applies to the rating assigned to Individual critical elements, and not to summary ratings of an employee's overall performance. See Byrd

v. Department of the Army, 32 MSPR 300,302 (1987), a s modifiedby Cochran v. Veterans Admin;stration, 35 MSPR 555 (1987).

In the present case, there is no evidence supporting the administrative judge's finding that the agency established a system that requires extrapolation more than one level above or below the written standard for each critical element. The appellant's performance appraisalindicatesthatthe written performance standards describe the "fullysuccessful" levels of achievement.

The appraisal aIso establishes'that the appellant is rated on each critical element as "exceptional," "fully successful," or "less than filly successful." Thus, the performance plan does communlcate the minimally acceptable level for the employee's 7

retention in his position - performance at the level described In the standard itself. Although the appraisal does have a five-level evaluation system to determine the appellant's overall rating, this five-level system was not used to evaluate his performance on each critical element. We, therefore, conclude that the administrative judge erred In finding that the performance standards at issue are Invalid....

See also Sherrefl v. Dept. of Alr Force, 47 MSPR 534 (1 991 1; Clifford v. Dept. of Agric., 50 MSPR 232 (1 99 1).

c.

Two-Level, or PasslFail Rating System Although a rating system may have but two levels (pass or fail), the standards supporting the system must still be objective and not absolute. Johnson v. Dept. oflnterlor, 8 7 MSPR 359 120001, faulted an agency for absolute standards that did no more than describe, and did not measure, job performance. The Board's decision began by setting out the performance standards, id. a t 363-64:

QUALITY Knowledge. of the Field or Profession: Maintains and demonstrates technical competence andlor expertise In areas of assigned responsibility.

Accuracy and Thoroughness of Work: Plans, organizes, and executes work logically. Anticipates and analyzes problems clearly and determines appropriate solutions. Work k correct and complete.

Soundness of Judgment and Decislons: Assesses task objectively and researches and documents assignments carefully.

Weighs atternative courses of action, considering long and short term Implications. Makes and executes timely decision.

Effectiveness of Written Documents: Written work is clear, relevant, concise, well organized, grammatically correct, and appropriate to audience.

Effecdveness of communications: Presentation meets objecdves, is penuaslve, tactful, and appropriate to audience.

Demonstrates attendon, courtesy, and respect for other points of view.

Timeliness of Meedng Deadlines: Completes work In accordance wlth established deadlines.

TEAMWORK Partlclpation: Willingly participates In group activities, performlhg In a thorough and complete fashion. Communicates regularly with team members. Seeks team consensus.

Leadership: Provldes encouragement, guidance, and direction to team members as needed. Adjusts style to f& situation.

Cooperation: Support team initiatives. Demonstrates respect for team members, accepts the views of others, and actively support team declslons.

CUSTOMER SERVICE Quality of Service: Delivers high q u a r i products and servtce to both external and internal customers. Initiates and responds to suggestions for improving service.

Timeliness of Servlce: Delivers quanty products and services In accordance with time schedules agreed upon with customer.

Courtesy: Treats external and internal customers with courtesy and respect. Customer satisfaction Is hlgh priority.

OTHER: No more than 4 validated customer complaints [will] be allowed.

Johnson continued describing the development of the performance standards, 87 MSPR at 364:

CHAPTER9 PERFORMANCE CASES 1929

?he agency further explained that the appellant's PIP gave content t o these standards by instructing her to perform the following:

Provide each requisitioner with a calendarltimeline outlining the estimated time from receipt of requisition through the solicitation process to award and delivery. In addition keep the requisitioner apprised of the status of the acquisition on a regular basis appropriate to the nature of the acquisition.

Follow through with customers on promises made and explanations for any delays that may occur.

a Assure accuracy and thoroughness & work by reviewing incoming and outgoing documents.

Assure that requisitioner receives copies of the fully executed acquisition documents.

Provide clear concise Instructions to requisitioners either orally or in writing on the preparation of agreements documents. When you need additional or specific information from your customer. you musf be able to articulate the requirement, often in the most rudimentary terms. Especially with agreements, the process is one that is very different I

than other acquisition processes. if you are unable t o do so, the customer questions your competency and will often seek other sources for services.

Provide approved examples for requisitioners t o follow and skeleton (fill in the blank) agreements In order to streamline the process for the requisitioner.

Johnson concluded that the standards were impermissibly absolute, 87 MSPR at 364-66:

We find that, with the exception of the performance standard providing that no more than 4 validated customer complaints would be allowed, the performance standards, even as amended by the PIP notice, are invalid because they are improperly absolute. See Callaway, 23 MSPR at 597-600. in reaching this conclusion, we acknowledge that a two-tier performance system is permitted under the Office of Personnel Management's regulations. See 5 CFR § 430.2081dl. We disagree, 1

however, with the agency's claim that the generic performance standards it has developed under h s two-tier system are valid.111

[I] Our conclusion, however, Is limited t o the specifj standards a t issue In this appeal, and we do not reach the question of the general validity of all generic performance standards (or performance indicators].

The Office of Personnel Management (OPM) has provided guidance regarding the proper method for promulgating valid performance plans, including two-tier plans. See Office of Personnel Management, A Handbook for Measuring Employee Performance: Aligning Employee Performance Plans with Organizational Goals (19991 <http: I/ apps. opm. gov/ perform I wppdf I handbook. pdf>. Thls handbook121 explains that all critical elements for a position must have performance standards, and it defines perforrnance standards as "management approved expressions of the performance thresholds, requirements, or expectations that employees must meet t o be appraised at particular levels of performance." See also 5 1

CFR § 430.203. It further states that each critical element must have a fully successful or equlvafent standard, and that, In a two-level appralsal program, the fully successful standard describes a single polnt of performance, rather than a range.

Any performance at or above that single polnts fully successful, and any performance below Is unacceptable. Id. a t Chapter 3, Step 6, at 50.

I21 While OPM's guidance In this handbook is not entitled t o the force and effect of law, we find that it is entitled to weight in construing OPM's regulations concerning two-tier performance appraisal systems. See Sped81 Counsel V.

Malone, 84 MSPR 342,356 n.9 [1999).

OPM also wamed agencies, however, that the level of performance necessary for the employee t o be retained h the job, such as the fully successful level in the present two-tier system, must not be impermlssibly absolute, and must allow for some error. Id. at 51-52. It then provided the following examples of fully successfu1 standards that would be considered improper absolute retention-level standards lf used in a two-level appraisal program: "Work is timely, efficient, and of acceptable quality"; and "(c]ommunlcates effectively within and outslde of the organization." OPM explained that these. '. '

standards are considered absolute because they appear t o require that work is always timely, efficlent and of acceptable quality, and that the employee always comrnudcates effectively. Id. at 52.

AIl but one of the standards in the instant case suffer from this very deflclency. For example, they state the appellant must plan, organize and execute work "logkally," that her work be "correct and complete," that her written work be "clear, relevant and concise," and that she complete work "In accordance with established deadnnes." As written and fleshed out 1

in the PIP notice. these standards are absolute because the appellant must always meet these requirements.

I We further note that the standards at issue differ from the examples OPM cites a s acceptable standards in Appendix C to its handbook. The Appendix provides examples of elements and standards that were written specifically for two-tier performance appraisal programs. One of the exampleslncludes standards that, Eke the standards inthe present case, require that tasks be 'correctly" performed. Unlike the present standards, howeversthose acceptable standards further provide that the employee's supervisor Is "routinely satisfied" that the tasks are correctiy performed. It further states that,-to meet tha fully successful standard, the employee only need satisfy a majority of the specific hems that need to be accurately performed. In contrast, the standards at Issue in the present case do not provide for a supervisofs "routine satisfaction,"

or that work be correctly performed a "maJorityW of the t h e In order t o successfuUy perform. Instead, the agency's standards require the appellant to correctly perform all but one of them all of the dme.

Another example of acceptable standards contained in the Appendix requires that all of the tasks be accomplished to be fully successful. The standards, however, also state that the supervisor Is "routinely" satisfied that the work is done properly.

They further provide that some work is "generally* done by a certain date. As stated above, the appellant's standards here, GUIDE TO MSPB LAW & PRACTICE CHAPTER 9 I

with one exception, Instead require her t o all of the work properly all of the time, wlthout qualifying terms such a s "generally" or "routinely.".They are, therefore, impennlssibly absolute. See C81laway, 23 MSPR at 599 (absolute standards are those that fail to provide a basis for evaluating an employee as exceeding required performance); see also Bronfmn v.

GeneralSen4cesAdministration, 40 MSPR 184,187-88 (1989) (performance standards deemed lmproperlyabsolute where they described job duties without including the level of performance necessary for acceptable performance).

13. Standards Development 5 USC 4302(a1{2\\ provides that each agency shall encourage employee participation in developing performance standards. The Federal Labor Relations Authority stripped the requirement of significance when it ruled that labor unions could not require negotiation of performance standards. NTEU and Dept. of Treasury, Bureau of the Public Debt, 3 FLRA 768 (1 980). The MSPB has done nothing to improve the situation. Many agencles do ask employees for their comments on standards, but comments can be disregarded, and some agencies do not bother to ask for comments at all. Once the standards are established, they may 1

be supplemented, according to MSPB, by all types of communications from supervisors. What are the effects of the failure of an agency to solicit or provide a reasoned rejection of employee suggestions for standards? What constrailnts are there on the development of standards?

a.

Employee Participation If an employee defends against a performance-related action, including the denial of a step Increase, on the basis that he was not given the opportunity to participate in the development of his performance standards, the defense asserted Is an affirmative one. The employee bears the burden of proof on the Issue. Urn v. Dept. ofAgric.. 10 MSPR 129 (1982). The issue is then the right of the employee to participate in standards development. The answer. under BeverEy v. DLA, post, Is that there Is no statdory or regulatory requirement that each employee have an opportunity to.participate in the development of performance standards. 5 USC 4302(a)(2) does not require the agency to offer the appellant an opportunity to participate in the development of established standards prior to taking an action for unacceptable performance under Chapter 43. The statute does not create any substantive right for each employee to particlpate In the development of performance standards; it does establish that the encouragement of employee participation In the development of standards Is a statutory requlrement that cannot be overlooked by government agencies. Beverly v. DLA, 27 MSPR 600,603-04 (1 9851. found unobjectionable standards developed 10 months before the appellant entered the position:

[Alppellant claims that the agency erred in not providing her with an opportunity to participate in the establishment of the performance standards for her position. 5 USC 1 4302(a)(2) provides that agendas shall develop performance appraisal systems which encourage employee participation In establishing performance standards. However, there is no statutory or regulatory requirement that each employee have an actual opportunity to participate In the development of performance standards. The agency established performance standards for appellant's GS-5 Voucher Examiner position in March of 1982, almost 1 0 months before appellant entered the positlon In January, 1983. We cannot interpret 5 USC § 4302(a1121 as requiring that the agency offer appellant an opportunity to participate In the development of established standards prior to taking an action for unacceptable performance under Chapter 43. Appellant fans to cite any precedent or theory which supports a finding that 5 USC S 4302(a)(2] creates such a right for an employee assumlng a position for which standards have already been set with employee participation. Therefore, appenant fails to show any error In this regard.161 161 While 5 USC 4 4302(a1(2) does not create any substantive right foreach employee to have an actual opportuniry to parb'cipate in the development of performance standards, it does establish that the encouragement of employee particlpatlon in the development of standards Is a statutory requlrement which cannot be overlooked by government agencies.

The Board found that an appellant submitted detailed comments on his standards before they were issued; the Board commented that "an employee's right to comment on proposed performance standards does not amount to veto power...." S&

v. Dept.

of Agric., 64 MSPR 46-58 (19941.

b.

Personal Characteristics: Irr'rdative, Reliability The Board provided some guidance to agencies concerning standards development in CsUaway v. Dept. ofArmy, 23 MSPR 592, 601 (19841. endorsing OPM guidance In (the now abolished) FPM Ch.430, Subch. 2-4(a) (1980) discouraging use of perforinance standards to measure traits such as dependability, Interest, rellabllity, and inltiative, unlessthey are clearlyjob-related and capable of being documented and measured.

14. Changes h Standards An agency may modify performance requirements a s long a s it does so according to a reasonable standard and makes the employee aware of the modifications. The agency is not required to alter the employee's positron description to reflect changed requirements. Archuleta v. DHHS, 38 MSPR 648,654 (1988); Alexander v. Dept. of Commerce, 30 MSPR 243,248 (1986);

S d w o o d v. Dept. ofNavy, 5 2 MSPR 678,685 (1992) ("The onlyrequlrement imposed on an agencyin changing a performance standard is that the agency communicate the standard to the employee at or before the beginning of the appraisal period which forms the bads of the action agalnst the employee."). But agencles may not use a performance Improvement period either to reduce or to Increase the standards of perforinance established at the beginning of the appraisal period. Brown v. VA, 44 MSPR 635, 643 t1990) (allowing, however, that when standards are set for annual performance it b reasonable to establish a proportional numerical standard for the PIP, except in cases where seasonal or other variations in work load would make a PERFORMANCE CASES 1931

droportional standard unfair and inaccurate]; SmaIlwoodv. Dept. ofNavy, 52 MSPR 678 11 992) (standard developed for measure of work over one year properly modified t o measure work for the 90-day PIP). An agency may change performance standards for the employee a t the point in time she is placed on a performance improvement plan. as long a s the employee is given a bona fide opportunity t o demonstrate acceptable performance, and as long a s the changes do not unduly change performance requirements. See Anthonyv. Dept. ofArmy, 27 MSPR 271,273 n.* (19851 ("Here, as the presiding official found the changes In appellant's performance standards nelther materially changed the performance expected nor posed any additional burdens on appellant."); Boggess v. Dept. of Air Force, 31 MSPR 461 (1 9861. post.

If an agency does make acceptable material changes in standards, the employee must be glven an opportunity to perform under those standards before being rated and placed on a performance improvement period, assuming the agency ultimately desires t o use the changed standards to support what may become an unacceptable performance action. In Boggess v. Dept. of Ajr Force, 31 MSPR 461 (19861, the appellant, a housing manager, was removed for unacceptable performance after the agency presented him with revised performance standards substantially different from prior standards and notified him that his

'performance was unacceptable and that he had 30 days to improve. The Board concluded that the agency was required t o evaluate appellant's performance under the revised standards before it could give him a reasonable opportunity period t o improve mis performance under those standards. It was immaterial that the agency could have removed the appellant for unacceptable

,performance under his original standards. He had earlier been given a notice of unacceptable performance and an opportunity t o improve under those standards. The new performance plan did not encompass the one performance standard earlier Identified a s warranting an unacceptable performance rating: accordingly, it could not be said that the new standards and opportunity pedod canied forward the deficiencies noted in the prior plan and opportunity period. The Board noted that under regulations then [and no longer) prevailing. 5 CFR 430.204(m) (1986). the agency was required to provlde the appellant 90 days t o demonstrate the quality of his work under the new standards and critical elements before rating him on his performance during that period. The Board distinguished the Anthony case, discussed earlier, observing that there the employee was not denied an opportunity to ademonstrate acceptable performance, notwithstanding that standards were changed when she was placed on an improvement

'plan; the changed standards neither materially changed the performance expected nor posed added burdens on the employee.

If a standard is changed, the fairness of the revised standard may be challenged. That problem was explored in Walker v. Dept.

of Treasury, 28 MSPR 227 11985). The appellant was removed under Chapter 43 as a G S 4 Accounting Clerk for failure t o meet one critical element entitled "controlled work." Appellant was required under the standard to screen, log, and distribute 400-700 pieces of correspondence each month. She was highly successful with but one error, fully acceptable with two errors, and marginal with three monthly errors. The standards were In effect for about six months, with an average error rate of nine per month, for the six months before appellant received an unacceptable rating. She was then given 30 days to improve but made ten errors during that month. Before the standard came Into being, the appellant's performance requirements consisted of a percentage standard stating that errors above 14% of the correspondence constituted unacceptable performance. In the past

! the appenant met the old standard. Of these circumstances, the Board concluded that there had been an abuse of discretion,

- holding in Walker, 28 MSPR at 229:

The agency's numerical performance standard in this case was clearly objective and set forth in writing. We do not believe, however, that the agency has demonstrated by substantial evidence that It was realistic or reasonably attainable. While an agency may properly decide t o increase the quality and quantity of the performance it will require of its employees, it must do so according to a reasonable standard s o that its application will not denigrate their rights. Here, under the previously acceptable percentage-based standard, the affected employees were held to an 86% efficiency requirement - equivalent to an average of approximately 77 errors per month - for acceptable performance. Under the current 3-errorIs1-per-month numerical system, they are held to an approximately 99.5% efficiency standard. The agency attempted to demonstrate the reasonableness of the numerical standard by arguing, Inter a h, that it had determined that the old error rate, based upon a percentage of the number of pieces of correspondence handled, 'was not workable because the volume of work w a s not constant."

As the appellant aptly notes in her petidon, however, logic dictates that the fluctuation in the volume of correspondence handled would render a percentage-based standard significantly more objective and equkable than a futed-number standard....

As t o the agency argument that h was Important to have error-free work, the Board stated in Walker, 28 MSPR at 230-31:

nnany, the agency argued that because of the potential impact of the appellant's errors on the efficiency of her supervisors' labors, as well as on the Investors whom they served, 6 was "extremely important that [her] work be as error free a s possible." However a review of the record does not reveal that the agency was able to show that the commission of what are essentially clerlcal errors In the performance of thls crttlcal element had nearly as grave a result a s could be considered to warrant the imposition of the performance standard at issue....

We conclude that the agency abused b discretion in instinning and implementing the particular standard for the critical element at Issue In this case. The requirement of near perfection in thls critical element fans t o provfde a reasonable basls for rewarding an employee, but instead allows the agency to remove an employee, as h did here, on the'bask of an extremely low monthly error rate. We therefore find that thls contravention of 5 USC 5 4302(b)(1 I renders the performance standard invalid as a basfs for measudng performance, and the appellant cannot be removed based on the Invalid standard.

Revised performance standards cannot be retroactively applied. To do s o would run afoul of the requirement that the standards be communjcated t o the employee a t or before the beginning of the appraisal period that forms the basis of the acdon. T'Boi

v. DHHS, /Fed.'Cir.

1989 nonprecedential No. 88-3237). CL VA andAFGELocaI1765,43 FLRA 216 (1 991) (standards not t o be retroactively applied).

1932 GUIDE TO MSPB LAW & PRACTlCE CHAPTER 9

Assuming the appellant Is on notice of standards and extensions of those standards through "performance indicators," a performance action is not invalidated because the agency did not modify the standards in accordance with its internal guidance to supervisors. Mouser v. DHHS, 3 2 MSPR 543 (1987).

a.

Changes Thrwgh PIP I

The PIP is not the time to materially change performance standards. Betters v. FEMA, 57 MSPR 405,409-10 (19931, also noted that agencies generally ought not to use details to assess performance and held that:

fl]n Boggess v. Dept. of f i r Force, 31 MSPR 461,462-63 (19861, the Board held that by simultaneously presenting the appellant with revised performance standards that were substantially different from the prior standards and notifying him both that his performance was unacceptable and that he had thirty days to improve, the agency failed to fulfill the substantive requirement of 5 USC 4303 to provide the appellant with a reasonable opportunity to improve. The Board found further that the appelant was entitled to an appraisal period under the revised standards and to a reasonable opportunity to improve after his performance was rated a s deficient under those standards before the agency could properly initiate an action based on an unacceptable performance....

The adrninlstradve judge found that the agency's falure in this regard went further when the agency gave the appellant a new performance plan when he was placed on the PIP. This plan, too, differed significantly from that for the appellant's official position of record. Agencies may not use a PIP either to reduce or increase the standards of performance established at the beginning of the appraisal period. See Brown v. VeteransAdmln~stration, 44 MSPR 635,643 [1990). Accordingly, we find no error in the administrative judge's finding that the agency improperly used a PIP to change the appellant's performance standards.

a The Board cautioned against making improper changes in standards during a PIP in Cliffordv. Depr. ofAgric., 50 MSPR 232,236 11991):

In Brown v. Vereranshdmjnistretion, 44 MSPR at 643, the Board held that an employee's performance pursuant t o a PIP must always be reviewed in the context of the employee's performance plan, and that agencies may not use a PIP either to reduce or to increase the standards of perfomance established at the beginning of the appraisal period. In the present case, the initial decision's discussion... did not address the appellant's contention that his detail resuhed in additional duties that prevented him from successfully completing his PIP. The initial decision should, therefore, discuss this matter on remand.

Unlike the adverse action based on poor performance, the unacceptable performance action Is preconditioned upon notice of performance deficiencies and a fair chance to improve. The right to a meaningful opportunhy to improve Is one of the most important substantive rights in the entire Chapter 43 performance appraisal framework. Adorador v. Dept. ofAfrForce, 38 MSPR 461,464 (1988) (relying upon Zsng v. Defenselnvesdgative Sew., 26 MSPR 155 (19851); Thompson v. Farm Credit Ad&.,

51 MSPR 569,578 (1991); Wnes v. Dept of Defense, 67 MSPR 667,671 (1995) Inonprecedential opinion; OpInion of Chairman Erdrelch). If the employee demonstrates acceptable performance during the improvement period or PIP provided by the agency, the agency is precluded from removing or demoting the employee solely on the basis of deficiencies that preceded and triggered the PIP. If the employee's performance is unacceptable during the PIP, the agency may base its action on that deficlency and need not also show deficient performance prior to the PIP. Brown v. VA, 44 MSPR 635.64041 (19901. It is the removal or downgrading that is appealable, not the PIP; that the appellant may be subjected to an appealable a d o n as a result of his performance under a PIP 1s speculative and not a proper basis for the current assertion of jurisdiction. Shalshea v. Dept. ofArrny, 58 MSPR 450,454 (1993). But a PIP may be a threatened personnel action for purposes of an Individual Rfght of Action appeal, discussed in Chapter 13. See Gonzales v. DHUD, 64 MSPR 314 (1994) (a performance lmprovement period plan Involves a threatened personnel action, such as a reduction in grade or removal).

In pracdce, the PIP often transIates into detailed performance requirements and deadlines, coupled with periodic counseling or work reviews. lmprovement during the performance improvement perlod ("PIPwl as a result of the Individual development plan

("IDP"), a s the opportunhy period and notice of deficiencies are sometimes called, can salvage the employee. The improvement perlod is a significant step: An agency can properly consider an appellant's performance following its Issuance of a requirement letter to determine whether his performance fen short of satisfactory for any targeted crfdcal element of his position, and to determine whether perfonnance-based action Is warranted. O'Hearn v. GSA, 41 MSPR 280 I1989). But an agency cannot remove an employee for substandard performance prior t o the opportunity period if the employee's performance during the opportunity perlod Is adequate. See Siedle v. Dept. oflnterlor, 35 MSPR 241,251 n.14 (19871 {not addressing the situatfon of the employee whose performance slips to unsatisfactory fonowlng the close of the opportunity period). In some organkations opportunity periods are no more than formaries preceding a termhationthat is preordained. Some agenclesensure that managers 1

make a sincere effort to secure an employee's improvement. Whatever the philosophy, H it can be caned that, of a particular agency, the Board has established a few requirements for agencies to follow as to the ~tatutorily~required improvement perlod.

1

7.

FberequWte of Unsatisfactory Performance It is unacceptable performance that Mggers the unacceptable performance action through the notice of an opportunity to Improve.

An agency that rates an employee's performance a s marginal may not give the employee an improvement period, then rate the employee and take action on the basls of subsequent unacceptable performance. If the action taken is removal, h must be reversed. The employee has not been glven a reasonable opportunity to demonstrate acceptable performance. Colgen v. Dept.

CHAPTER 9 PERFORMANCE CASES 1933

C IN TSE UKITZD STATES COUXT OF APPSA-LS FOR TEE ELZVEKTE CIRCUZT No.

91-7474 JOHN R. SEUE?'S, P e t i t i o n e r,

LYNN YaTIN, SECXZTARY OF LABOR,.

UhTITED 'STATES DEPARTWENT OF LASOR, and TENNESSEE VALLEY Xt'THORITY, Respondents.

On ? e t i t i o n f o r Review of a F i n a l

~ e c i s i o n and Order of t h e S e c r e t z r y cf Labor BZIZF TOR TEE SSCETMY OF LABOX The S e c r e t a r y of -5or hzd jurFsZiction of *is matter pcrscant %o Section 210 ( 3 ), t h e ez2lcyee protection provision - c2 "Actn), as the Enerqy Reor5cnizaticn A c t of 1 9 7 4 (11ES-18 o-mended, 4 2 U. S. C. 5851(b). The Secretzry cf Labor issuee-h e r f i n e l d e c i s i o n and order on A p r i l 16, 1991, and P e t i t i o n e r has f i l e 2 a timely cppeal from t h e S e c r e t a r y ' s order.

Section 2 l O ( c ) (1) of t h e EPA, 4 2 U. S. C. 5851 (c) (1), g r a n t s t h i s Court j u r i s d i c t i o n t o review t h e S e c r e t z r y l s decision.

clearly n o t proteczed activi-y.

Rcllins v. S = a t e cf FIori2a D e ~ z r t a e n t of L a w Enforceaext, 6 6 s F.2d 3 9 7, 400 (11th Cir. 1989)

C

( T i t l e V I I t s a n t i - r e t a l i a t i o n provision s t i e l C s a:.

exsloyee regar8less of t h e merits of her com?laint, only i C she can show a goo6 f z i t h, reesonable b e l i e f t h + t the challenged practice v i o l a t e s ~ i t l e VII). Thus, rhe ~ e c r e t a r y properly resarded January 2 4, 1989, Yne &ate of the NXC con?laint, z s the critical date i n h e r z n z l y s i s of t h e record.

2.

Even assuminc arcuendo t h a t S e l l e r s

• Januzrtt 5, 1989 c o m ~ l a i n t was ~ r o t e c c e d a c t i v i t v, t h e recore skill 2molv demonstrates t h a t the TVA ha2 l e c i t i m z t e. nondiscrininatorv reesons f o r S e l l e r s i ternination PA lt,ensloyer nzy f i r e an e n ~ l o y e e :cr a good reascn, a bad Teasoa, a reason based on erroneous facts, o r f o r no r e ~ s o n a t a l l as long as its action is not Ecz a C i s c r i m i n a r c r ~ = e a s ~ n. ~ ~

Nix v. hxCY 322iolRzhzll Coxnur.icacions, 8 2

1 2.187 (11th c i r. 1984) ( c i t a t i o n oizitte8).

A c c ~ r d AE A r t. Inc. V.

3 645 F.2d 669, 679 (9th C i r. 1951) : LIEacs P~oZilcts. ~ n c -

V.

N23, 19 F.2d 1337, 1341 (5th C l r. 1580).

The erplcyee who is incoripetent, o r inscbordinate, cr has beccme i n e f z i c i e n t czimot use h i s p r o t e c t e d a c t i v i t y a s a shield a c a i n s t 2 6isc5arge f o r non-discrininztory reasons.

Ad A r k, Tnc. v. NLRS, suora; LISaas Products. ~ n c : v. NL??B, suDra: NLRB v. Red Ton, I n c., 4 5 5 1.2d 721, 726-728 (8th Cir. 1972); sse also NLRB v. Xncth Brothers.

I ~ c 537 F.2d 450, 953 (7th C i r. 1 9 7 6 ) (The s t e t c t e lldoes n o t I

imunize an emsloyee from Cisc'ncrge :or a c t s of... xiiscon8uct merely becacse those a c t s were associated v i t h protected

i n s z x c t i o n c f h i s supervisor, Smith, a r g ~ i n c j th2: it xzs n c t i n cor;pfi+nce v i t h the vork plan (T. 32).

S e l l e r s 1 co-vorker 3 i l l y Tidwell, who wzs S e l l e r s 1 work p a r t n e r a t t h e i n t z k e panp t h a t t?zy, t e s t i f i e d, however, t h a t s m i t h ' s i n s t r u c t i c n t o t h e crew w a s not i n any wey a v i o l a t i o n oE t h e work p l e n o r any 3%

proceduze; nor out of t h e or6inzry (T. 1 4 4 ). Yet, i n Ticiwell's wcrds, S e l l e r s beczne woutragedll and used "abusive lancpa~e" becaase Smith had direcied t h e n t o b u i l d t h e i r hzngzr l i k e 2 hanger already constructed by another m e m b e r of t h e crew (DX 12-1). A s alrezdy discussed (see sums p. 23) on t h a t szne &y, upon Smith's ret~rn t o t h e work s i t e a f c e r the e z r l i e r arpment, yet another confrontation occurred, t h i s t i n e concerninq t h e l a c k of prosress i n t h e work. S e l l e r s again beczne b e l l i c e r e n t ane used p r o f a i r y (T. 103, 107, 1s7, ~ss).

The r e c o r e facts regzrding t h i s i n c i e e n t aeke i z very c l e z r L k - i u r c c r cn chis occasion, 2s on many o t h e r s bc=h before end aE=er Janc2z-y 19S9, S e l l e r s resented su?ervision (see T. 166), and t h i s resulted in re3eated c o ~ f l i c t s with r;.anacenent.

Ln e n e c t i n ~

cnti-discrinination provisions such 2s t h e one involved here, Conqress Cid n o t seek " t o t i e the hanCs o f eaployers i n the-oSjective s e l e c t i o n anci c o n t r o l of personnel."

h'ochsta8t v.

Worcester Foundation For Ex~eriinental Ziolocv, 5 4 5 1.2d a t 231.

The llprotective mankletl of such provisions must be 11texpere2 by t h e enployerls right t o exect 2 lay's vork f o r e 22y1s pay a n l t o nzintain d i s c i p l i n e....

l1 Cater~illar T r a c t o r CO. v. FLRS, 230 2 - 2 2 3 5 7, 35s (7th C ~ T.

1956).

See s o

Lnc. V. 3 ~ ~ 3,

654

United States Nuclear Regulatory Commission Report of Review MILLSTONE u ~ T S I, 2, AND' 3:-.

Allegations of Discrimination in NRC 0fRce'of Investigations Case.

NOS. 1 002, 1-96-007, 1 007, and Associated Lessons Learned Millstone Independent Review Team March 12, 1999

i TABLE OF CONTENTS I.

Evidentiary Standard of Review..................................... 3

11.

Analysis of Cases.............................................. - 9 Ill.

Enforcement Recommendation.............................. -..... 15 V.

Conclusion.....................-..-............-.-..........--.28 Attachments:

1.

OGC Guidance for Determining Whether Discrimination Occurred

2.

Case Study - 01 Case No. 1-96-002

3.

Case Study - 01 Case No. 1-96-007

4.

Case Study - 01 Case No. 1-97-007

5.

Separate Statement of Alan S. Rosenthal

REPORT OF REMEW OF ALLEGATIONS IN NRC OFFICE OF 1NVESTIGATlONS CASE NOS. 1-96402.1-96-007,l-97-007, AND ASSOCIATED LESSONS LEARNED In accordance with Chairman Jackson's January 28,1999 tasking memorandum and the Chairman's February 9, 1999 memorandum establishing a charter for the Millstone Independent Review Team (MIRT), we have conduded a review of Office of Investigations (01) Case Nos. 1-96-002,l-98007, and 1-97607, all of which were described or referenced in the Office of the Inspector General (OIG) Event Inquiry, Case No.99-01s (Dec. 31,1998) [hereinafter OIG Report]. Based on that review, we have conduded the following:

1.

With respect to Case No. 1-96-002, as described in Attachment 2, the available evidence is sufficient to support the condusion that the two aliegers were the subjects of discrimination in violation of 10 C.F.R. 5 50.7.

2.

Wrth respect to Case No. 1-96-007, as described in Attachment 3, the available evidence is insufficient to support the conclusion that the three allegers were the subjects of d'idnation in violation of section 50.7.

3.

Wdh respect to Case No. 1-97-007, as is described in Attachment 4, the available evidence is sufficient to support the conclusion that the alleger was the subject of discrimination in violation of section 50.7.

Further, although we find there is an adequate basis for a finding of discrimination in two of these three cases, we recommend that no enforcement action be taken. Our conclusion in this regard is based on the utility's apparently successful response to the remedial requirements already imposed by the agency to correct discrimination at the Northeast Utilities System (NU) Millstone facility.

In section I1 of this report, we summarize the results of our review of each of the three cases and, having conduded there is a sufficient evidentiary basis for proceeding in two of these cases, in section Ill explain our recommendation regarding appropriate enforcement action.

In addition, based on our review of the 01 investigative materials for these cases and the information provided in connection with background interviews conduded by the MlRT with individuals from the Office of the General Counsel (OGC), the Office of Enforcement (OE), 01, and 010, we have concluded there are certain 'lessons learned" that can be drawn relative to the investigative and enforcement processes that were utilized in these cases. These are set forth in section IV of this report. Moreover, as requested in the Chairman's January 28,1999 memorandum, and as an introduction to our discussion regarding the merits of the individual 01 cases, in section I of this report we provide a

discussion of the 'standard of review" for initiating enforcement cases concerning violations of the provisions of 10 C.F.R. § 50.7 that afford individuals protection from discrimination based on their invohrement in 'protected activities.'

Gary K-Hamer, Supervisory Investigator with the United States Office of Special Counsel (OSC), acting as an expert advisor to the MIRT, participated in our background interviews and discussions regarding the attached case studies, and reviewed the final case studies and this report. He agrees with the conclusions and recommendations made in this memorandum and the accompanying case studies.

Also acting as an expert advisor to the MIRT was Alan S. Rosenthal, former Chainnan of the NRC Atomic Safety and Licensing Appeal Panel and the General Accounting Office Personnel Appeals Board. He likewise participated in our background interviews and discussions regarding the attached case studies, and reviewed the final case studies and this report. His views concurring in the contents of this report and the attached case studies are included as Attachment 5.'

The Review Team would like to express its appreciation to the administrative staff of the Atomic Safety and Licensing Board Panel, in particular Jack Whetstine, Sharon Perini, Allene Comiez, and James M. Cutchin, V, for their invaluable assistance in the preparation of this report.

I. EVlDENTlARY STANDARD OF REVIEW Before providing our analysis of the particular 01 cases, we outline the general standard of review we consider appropriate for reaching a decision about whether there is an adequate evidentiary basis to proceed in connection with'each of these cases. It should be noted, however, that this is not the equivalent of a determination about whether to actually proceed with an enforcement action. Although a determination about whether there is an adequate evidentiary basis to sustain a discrimination allegation may be a substantial fador in making a decision to proceed with an enforcement adion, that enforcement decision also invokes consideration of the exercise of enforcement discretion, with all of its policy and resource implications.

A.

Four Elements for Review in Discrimination Cases We discussed with both OE and OGC the standard they currently use to determine when an enforcement case should be instituted relative to claimed violations of section 50.7.

We were provided with a copy of guidance recently prepared by OGC for use by the staff in determining whether discrimination occurred m viofation of section 50.7. In that memorandum, a copy of which is included as Attachment 4, OGC describes an analytical framewor)lcfor determining whether discrimination occurred, pertinent parts of which we summarize below.

As this guidance is relevant to the three cases we were asked to review: four elements are of critical importance:

I.

Did the employee engage in protected activity?

To answer this question requires a determination about whether the employee took some action to raise or advance a nudear safety concern. As the OGC memo notes, activiiies might include instituting an NRC or Department of Labor (DOL) proceeding, documenting safety concerns, or an internal or external expression of safety concerns.

2.

Was the employer aware of the protected a d i i This element necessitates a finding that the employer knew about the employee's nuclear safety concern or activities to advance the concern. An employer would not be liable for violating section 50.7 if an employee failed to articulate a safety concern in a way that brought it to the employer's attention.

• AS the OGC memo notes, other elements, such as whether the individual who is the subject of the claimed discrimination is an 'employee,' may be involved; however, they are not at issue in the 01 cases we reviewed.

3.

Was an adverse action taken against the employee?

To satisfy this component, it is necessary to conclude that the employer visited some detrimental effect on the employee's terms, conditions, or privileges of employment. As

' OGC points out, this could include a variety of actions ranging from actual termination to the threat to take some detrimental action.

4.

Was the adverse action taken because of the protected activity?

This requires a finding that there is a causal link between the adverse action and the protected act'nrity. Thus, in considering an employer-articulated reason for taking an adverse action that invariably is interposed to demonstrate the action was not taken because of an employee's protected activity, it is necessary to determine whether (1) the articulated reason is a pretext intended to conceal an action taken solely because of protected activity; or (2) the articulated reason is part of a dual motive for the action in that there was both a legitimate and an improper, discrimination-based reason for the action, with the latter being a scontributing hctor" to the action?

-B. Standard for Determining Whether There is A Sufficient Evidentiary Basis to Institute an Enforcement Action

3.

Nature of the Evidence in Discrimination Cases Although all four of the items described above are necessary to make out a case of discrimination under section 50.7, the fourth item is the most problematic, both generally and in the cases we were asked to review. This is because it is rare that this crucial element can be established by so-called 'smoking gun' evidence, i.e., evidence that inemably shows the adverse action was pretextual. (The clearest example of such evidence would be an admission by the official of the employer who was directly responsible for the adverse action that he or she took that action against the employee because the employee engaged in protected activity.)

Instead, what usually is available from an investigation into a section 50.7 discrimination allegation is testimony and documentary information, olten conflicting, that provides circumstantial evidence of whether an adverse adion was taken because an employee engaged in protected activity. Circumstantial evidence is 'evidence that tends to prove a fact by proving other events or circumstances which afford a basis for a reasonable inference of the occurrence of the fact in issue." Webstets New Collegiate Dictionary 203 (1975) [hereinafter Webstets Dictionary]. In the context of a discrimination case, relying on circumstantial evidence means that the requisite factual The question of the degree to which the protected activity must be a consideration in the employer's determination to take an adverse action so as to be a

'contributing factor' is discussed further in section I.C.2 below.

finding that adverse action was taken because of the protected activity would be the product of a reasonable inference drawn from other proven events or circumstances in the case.

In s o describing what is often the central supporting material in discrimination cases, it should not be supposed that because the information is circumstantial, the cases are somehow rooted in weak or deficient evidence. All cases, including a criminal case that must be proven with the highest degree of certainty, i.e., beyond a reasonable doubt, kgiimatefy can be based wholly on circumstantial evidence. Indeed, such evidence, often the result of a painstaking exerase in d d n g inferences (or more specifically reasonable inferences) based on the factual circumstances that are presented, can be as convincing as the 'smoking gun?

One other comment is appropriate regardimg the nature of circumstantial evidence.

Based a s it is upon the ability to draw "reasonable inferences,' it is a somewhat subjective notion. As is often said, 'reasonable people can differ.'

Thus, there is room for judgments to diverge about the extent to which any given circumstance or set of drcumstances is suffiaent to create an inference about the fact in issue, i.e., in section 50.7 discrimination cases, whether there is a sufficient causal nexus between the protected activity and the adverse action.

2.

Evidentiary Basis for Enforcement Action Wdh this background, the question remains about the basis on which a decision should be made whether there is sufficient evidence to institute an enforcement action in a '

section 50.7 discrimination case, particularly with regard to the problematic fourth element. This being said, there appear to be four possible 'burden of proof' constructs within which to frame a decision about whether there is sufficient evidence to conclude that a violation of section 50.7 occurred. In ascending order of difficulty these are: (I) the prima fade case; (2) preponderance of the evidence; (3) clear and convincing evidence; (4) beyond a reasonable doubt. And in the context of a discrimination case relative to the question of whether an adverse action was taken because of a protected adiv'i, they might be summarized as follows:

a.

Prima facie case - is there,evidence that shows temporal proximity between the pmteded activity and the adverse adion (as this standard is utilized in DOL discrimination cases, described further below, this is usually one year).

b.

Preponderance of the evidence - it is more likely than not (more than a 50-50 case) that the adverse action was pretextual or that protected activity was a 'contributing factor" in the adverse action.

c.

Clear and convincing evidence -- is there evidence that shows with reasonable certainty or a high probability that the adverse action was

pretextual or that the protected activity was a 'contributing factor" in the I

adverse action.

d.

Beyond a reasonable doubt - is there evidence that is dear, precise, and indubitable or that establishes to a moral certainty that the adverse action was pretextual or that the protected activity was a 'contributing factor" in the adverse action.

From this group, the most obvious candidate is the preponderance of the evidence standard. As the OGC memorandum correctly indicates, this is the standard to be applied if an administrative hearing is held on an agency enforcement case charging discrimination. In contrast, invoking the dear and convincing evidence or beyond a reasonable doubt standards seems unnecessary. Either would put the agency to a higher standard of proof to lodge a charge than it would need to actually prove that charge if it is challenged. It is not apparent why imposing this burden on the enforcement process might be warranted.

So too, the lower standard used to establish a prima facie case seems inappropriate.

That standard is used in cases brought before DOL under section 21 1 of the Energy Reorganization Act of 1974,42 U.S.C. 5 5851, both in making a decision to institute an agency investigation of an employee's discrimination complaint and in the initial stages of the administratiwe hearing regarding the validity of the individual's challenge. In DOL hearings, the shifting allocation of burdens that begins with the complainant's need to establish a prima facie case recognizes the inherent d'ficulty an individual-faces in bringing a case that is likeiy to be based on drwmstantial evidence about unspoken motivations. As similarly is true in the equal employment opportunity (EEO) arena, providing that only a prima facie case must be established to shift the burden back to the employer to show it did not act improperly 'is intended progressively to sharpen the inquiry into the elusive factual question of intentional discrimination.' Texas Demrtment of CammuniW Affairs v. Burdine, 450 U.S. 248,254 n.8 (1981). In DOL cases, the prima fade case generally is established by utilizing a inference (or presumption) based on temporal proximity. Once established, the employer is then required to show that the adverse action was motivated by legitimate, nondisuiminatory reasons. Ultimately, however, the burden rests on the complainant to show by a preponderance of the evidence that the employer's adverse action was taken because of the employee's protected activity.

In the context of NRC discrimination cases, one of the significant justifications for the burden shifting that is at the heart of the prima facie case seems to be lacking. With its resources and access to licensee employees and documentation by way of its investigative processes, this agency should be able to look into allegations of discrimination in a way that allows development of a significantly more concrete evidentiary record than the average employee in a DOL hearing. Accordingly, it makes sense for the decision about whether there is a sufficient evidentiary basis to proceed to be based on an assessment of how strong the case is in relationship to the ultimate

standard of proof - preponderance of the evidence. Compare U.S. Department of Justice, Principles of Federal Prosecution 5-6 (July 1980) (government attorney should commence or recommend federal prosecution if he or she believes that a person's conduct constitutes a federal offense and that admissible evidence will probably be sufficient to obtain a conviction).

Accordingly, in assessing these and other discrimination cases, we believe the appropriate 'evidentiary" standard should be:

Whether, based on all the available evidence, there is information sufficient to provide a reasonable expectation that a violation of section 50.7 can be shown by a preponderance of the evidence.

In the context of this standard, as the OGC memorandum suggests, Attachment 1, at 2 n.1, we would consider the 'available evidence" to indude all the information accessible to those making the enforcement decision, regardless of whether it would be considered admissible in an adjudicatory hearing!

Further, we note that, because this standard is based on a 'reasonable expectation' of what can be shown, there is room for differing informed judgments about when the requisite expectation has been fulfilled.

C.

Additional Considerations Having outlined this general standard, we think two additional, related points require some mention.

I.

Evidentiary Basis to Charge Company v. Individual Company Officials From the information gathered as part of the OIG investigation, there seems to be some uncertainty about whether there is a difference in the evidentiary standard when enforcement action is being considered against a company, as opposed to the company employees who are alleged to have been the actors in the adverse action. There is a suggestion that, for the latter, there should be a somewhat higher standard, going more toward the dear and convincing side of the evidentiary spectrum. As far as we can ascertain, however, the applicable statutory or regulatory provisions regarding discrimination do not distinguish between the company and fts employees in terms of AS the OGC memorandum appears to recognize,see Attachment 1, at 3, making a decision based on 'availableg rather than 'admissible' evidence does not relieve those entrusted with making the decision on whether to go forward from candidly considering the strength of that evidence, which should include possible admissibility problems. In the administrative context, however, 'admissibility" is a more flexible concept that allows the use of evidence, such as hearsay, that would not be permitted in a judicial proceeding. See, e.&, Philadel~hia Electric Co. (Limerick Generating Station, Un%s1and2),AtA&863,25NRC273,279(1987).

culpability or liability. Accordingly. in both instances, the evidentiary standard must be the same.

What may lead to different treatment is the exercise of enforcement discretion. Even with a determination that there is an adequate evidentiary basis for finding a violation, as the Enforcement Policy indicates, the agency has wide discretion in determining when to act against companies or indiiduals that violate its requirements. Relative to discrimination cases, any number of factors may be relevant to bringing charges against individuals, induding the seriousness of the violation, whether the individual has committed previous violations, and the company's efforts to correct any violation both as to the company employee involved in the adverse action and the employee who was the subject of the action.

Ultimately, it is important not to confuse the standard being utilized to determine whether a case has a sufficient evidentiary basis to go forward and the associated exercise of enforcement discretion to ensure that all applicable agency policy and resource considerations are given appropriate consideration.

2.

Protected Adivity as a 'Contributing Factof in Dual Motive Cases.

As we have already noted, in 'dual motive' cases the question that must be confronted is whether the protected a c t i i was a -'contributing factor' in the adverse action. It might be asked, however, what is the meaning of 'contribute" in terms of the quantitative or qualiiie addition that the protected activity made to the decision to bring an adverse action?

One suggestion we encountered was to apply a 'but for" analysis, whereby one would find the protected adivity to be a contributing fador if one could reasonably conclude that 'but for' the protected activity, the adverse action would not have been taken. This, however, seems to set the bar too high, because it essentially requires that the protected activity be a predominate reason for the adverse action. On the other hand, if the protected activity played a role in the adverse action that was the equivalent of adding 'a drop of water into the ocean,' would that provide a sufficient evidentiary basis for going forward? Common sense suggests that must be something more.

'Contributem is defined as "to play a significant part in bringing about an end or result" Webster's Dictionary at 247. And, in turn, 'significant" is defined as &having or likely to have influence or effeck" Id. at 1079. These definitions, in concert, arguably strike the proper balance. And consistent with their terms, knowledge that an employee has engaged in protected activity by the company official taking the adverse action, standing alone, would not be enough to establish that the protected activity was a 'contributing factor." Instead, there would need to be an adequate evidentiary basis, i-e., a preponderance of the evidence, for a reasonable inference that the company official had.

some motivation or impetus relating to the protected activity that, in some meaningful way, was an ingredient in the decision to take the adverse action.

II. ANALYSIS OF CASES A.

Case Review Process In accordance with the directive in Chairman Jackson's January 28,1999 memorandum, the review team evaluated three 01 cases involving discrimination allegations. Although all the team members and team advisors familiarized themselves with each of the cases, an indiidualii, in-depth review of each of the cases was conducted by a single team A member or advisor who provided a repart on his or her conclusions.

For these in-depth studies, the case reviewer had available the 01 case report; all supporting exhibas; the 01 investigative file for the case, which included correspondence and investigator notes; and the OE file for the case. In addition, relative to Case Nos. 1-96-002 and 1-97-007, team personnel conducted interviews with the 01 investigators with principal responsibility for those cases to clarify questions about the scope of the investigation that was conducted. Further, relative to Case No. 1-96-007, the indepth review included considerationof the October 2,1996 NRC Task Force Report and associated attachments; a December 10, 1997 01 Investigator memorandum; the investigative report in another 01 case, No. 1-90-001, along with two interview reports conducted in connection with that case; and a February 4,1999 letter to Chairman Jackson from one of the allegers. Also in connection with that case, the team reviewed additional comparative information regarding the employees who were in the final pool considered for termination that OIG obtained from NU as part of the inquiry that resulted in the OIG December 1998 report. Finally, also considered in Case No. 1 002 were SECY-98-292, Proposed Staff Action Regarding Alleged Discrimination Against Two Employees at Northeast Utilities (EA 98-325) (Dec. 21,1998);

Commissioner vote sheets concerning that SECY paper; and letters dated January 19, January 27, February 9, and February 23,4999, from one of the allegers to OIG that were referred to the review team for its ~nsideration.~

Besides this case specific information, team personnel also reviewed various "generic" documents in an attempt to acquire an understanding of the overall situation at Millstone during the relevant time period. These included: Confirmatary Order Establishing Independent Corrective Action Verification Program (Effective Immediatety) (Aug. 14, 1996); NRC Office of Nudear Reactor Regulation, Millstone Lessons Learned Task Group Report, Part 1: Review and Findings (Sept 1996); Order Requiring Independent, Third-Party Oversight of Northeast Nudear Energy Company's Implementation of Resolution of Millstone Station Employees' Safety Concerns (Od. 24,1996) [hereinafter October 1996 Order]; SECY-97-036, Millstone Lessons Learned Report, Part 2: Policy Issues (Feb. 12, 1997); SECY-98490, Selected lssues Related to Recovery of Millstone OIG advised the team that the alleger was informed of the refeml of the January 1999 letters.

Nuclear Power Station Unit 3 (Apr. 24, -1 998); SECY-98-119, Remaining Issues Related to Recovery of Millstone Nuclear Power Station, Unit 3 (May 28,1998); SECY-99-10, CIosure of Order Requiring Independent, Third-Party Oversight of Northeast Nuclear Energy Company's Implementation of Resolution of the Millstone Station Employees' Safety Concerns (Jan. 12,1999); Transcript of Meeting on Status of Third Party Oversight of Millstone Station's Employee Concerns Program and Safety Conscious Work Environment (Jan. 19,1999).

Each of the individual case studies was subjected to critical analysis by all team personnel. The case studies have been adopted by all of the team members and, as is noted above, each has been endorsed by the team's advisors.

B.

Discrimination at Northeast Utilities As is noted above, each of the three cases assigned for independent review was evaluated in terms of its individual merits as reff ected by the documentary and testimonial evidence obtained in the -course of the OI investigation. Nonetheless, given the circumstantial nature of the body of that evidence, in reaching a wndusion respecting whether discriminatory action on the part of NU management occurred it was necessary in each case to draw inferences from the established facts.

This function was undertaken against the background of an order issued in late 1996 on behalf of the Com.mission by the Acting Director of the ORtce of Nuclear Reactor Regulation with regard to the operating licenses held by NU for the three Millstone units.

As noted in its caption and further developed in its text, the order imposed a requirement that there be independent, third-party oversight of NU implementation of a mandated

'comprehensive plan for reviewing and &positioning safety issues raised by [its]

employees and ensuring that employees who raise safety concerns are not subject to discrimination." October 1996 Order at 7.

As justification for imposing the requirement, the order observed that it was addressing

'past failures in management processes and procedures for handling safety issues raised by employees, and in ensuring that the employees who raise safety concerns are not discriminated againstw u. at 2. The order went on to note the Commission's concern regarding the manner in which NU 'has treated employees who brought safety and other concerns to the attention of ri] management." Id.

Still further, the order pointed to ~ ~ ~ c o m ~ l e t i o n in January 1996 of its review of Yhe effectiveness of its Nudear Safety Concerns Program (NSCP) in taking corrective actions related to employee concerns and ensuring that the employees who raise concerns are treated appropriately.' Id. at 3, According to the order, that review led to findings 'similar to those of previous [NU] assessments, studies and audits performed since 1991." id. at 4. Among those 'common fmdings" was one to the effect that management 'Yended to punish rather than reward employees who raised safety concerns.' u. Moreover, the review disclosed that many of the past problems it

identified stilt existed becahe prior recommendations had not been implemented 'in a coordinated and effective manner.' u.

The cases before us involve allegations of discriminatory action in 1993,1995, and 1996, respectively. Thus, they called for an examination of events occurring in the period during which, according to the Commission order, there were significant deficiencies in the manner in which NU was treating employees who raised safety concerns.

Standing alone, that consideration could not be deemed dispositiie in assessing the merit of the allegations at hand. Stated otherwise, it does not necessarily follow from the fad there may have been numerous instances of discriminatory action in the relevant time period that the individual allegers with whom we are concerned were among the victims.

At the same time, however, the revelations contained in the Commission order manifestly could be taken into account in circumstances where the 01 investigation was found to have produced sufficient independent evidence to support an inference that a nexus existed between the alleger's dismissal or demotion and the protected activity in which he had previously engaged. More specifically, NU'S unenviable track record in dealing with employees who had raised safety concerns could properfy senre in such circumstances to buttress the independently drawn inference of improper management conduct. Additionally, although seemingly not the situation in any of the cases at hand, had the 01 record allowed a choice between equally plausible opposing inferences respecting the likelihood that protedted a W i was an influencing factor in the adverse personnel action, that track rewrd might well have tipped the balance in favor of a finding of discrimination.

Against this backdrop, we provide the following synopsis of our review and conclusions regarding each of the three cases?

C.

Case No. 1-96402 01 Case No. 1-96-002 involved two supemsors who were demoted in the course of a

'reintegration," i.e., reorgan-kation, of NU'S nudear engineering functions in November 1993. Both employees rnainwmed that their demotions, to the positions of senior and principal engineer, respectively, were prompted by the fad that they had raised and championed a variety of safety issues in the two years preceding the reorganization.

Indeed, just days before the announcement of the reorganization, both had raised In connection with the foregoing discussion, we note that the totafity of the record before us does not support the conclusion that discriminatory circumstances at NU were so 'pervasive and regular" with respect to the individual allegers as to constitute a.hostile work environment' as that concept is outlined in the OGC guidance memorandum. =e, at 2.

controversial safety issues with the vice president who presided over the process that led to their demotions.

The reorganization involved not merely first-level supervisory positions such as those held by the employees here involved but, as well, higher-level positions including those held by vice presidents. The process of determining with whom the various positions would be filled was, however, not the same in all instances.

In the case of managers, directors, and vice presidents, each candidate for,such a position received a formal assessment based upon the consideration of a number of competency factors and a numerical rating that ultimately influenced the placement decisions. In the case of the first-level supervisory positions, however, there was no equivalent evaluation of employees who were supervisors at the time. The selection for those positions was made from a pool consisting of incumbent supervisors and empfoyees who either had some experience as acting supervisors or no supeMsory experience at all. The managerial potential of only the forty to frfty employees not in supe~sory positions was assessed. Those employees were then ranked in four quartiles.

The actual supervisory position selections were made at a meeting presided over by a vice president and attended by, among others, persons who had already been tapped for director positions in the reorganized engineering structures. Apart from the quartile ratings for the potential supervisors, there was no written material -such as performance appraisals - available to the selecting officials. Moreover, it appears that, in order to receive any consideration, a candidate had to be proposed by one of those officials. According to the presiding vice president, the objective of the selection process was to determine which candidates would be the 'best ff in the positions that survived the reorganization.

Whether or not the names of the two allegers were ever mentioned, the 01 record indicates that apparently neither received any consideration at all. In the totality of the circumstances disclosed by the 01 record, we concluded that it could and should be inferred that this failure was infiuenced by the employees' prior protected activity.

Among other things, both individuals had strong performance appraisals that reflected attributes that would appear to have been what was being sought in the quest for the

'best fits.' Beyond that, one of the allegers was replaced as a supervisor by an individual (a prior mere acting supervisor) who was not shown to have possessed qualifications lacking in the alleger.

All in all, the officials involved in the selection process did not supply a credible explanation respecting why neither alleger was worthy even of consideration for retention in supervisory positions in which they had performed well in the past. Given the totally subjective nature of the selection process for supewisory positions, this shortcoming could be deemed pivotal on the question of whether their protected activii influenced their non-selection.

Consequently, we have concluded with respect to this case that, based on all the available evidence, there is information sufficient to provide a reasonable expectation that a violation of section 50.7 can be shown by a preponderance of the evidence.

D.

Case No. 1-96-007 01 Case No. 1-96-007 involved three individuals whose employment was terminated in January 1996, along with ninety-nine other employees, as part of a workforce reduction program. Each employee alleged that his indusion in the redudion was brought about by reason of his involvement in protected activity.

Employees under consideration for termination under the workforce redudion program were evaluated and ranked, on a matrix,with their peers in a number of specific areas of competence. Wrth input from their supervisors, managers were responsible for completing the matrices and were to base their scores on the employee's last two performance reviews and a prediction of how the employee was likely to perform in the future organanation. The review procedure in connection with the completed matrices included an examination of those of certain employees who had raised safety concerns..

The purpose was to ensure that they had not been targeted specifically for reduction.

The three allegers were on this so-called 'added assurancem review list.

In the case of the division in which each of the allegers was employed, it was ultimately determined that a total of four employees were to be terminated. On the basis of their low relative rankings on the matrices, the allegers were included in that group.

Because the matrices of the employees not terminated were destroyed in the interim, an inquiry into whether there was invidious disparate treatment of the allegers has been foredosed. The 01 record, however, not only confirmed that the allegers had faired poorly in the evaluation process, but also negated any suggestion that their low rankings might have had discriminatory underpinnings. Thesontent of their matrices was furnished by first and second-level supervisors without any discernible reason to provide the allegers with unjustifiable Iow evaluations in retaliation for their protected activity.

More important, peers of all three allegers confirmed the existence of performance shortcomings that readily justified the rankings that were given to them. There was some suggestion that the vice president in charge of the division in which they worked

- may have acted against them because of his knowledge either of the past involvement of two of the allegers with a well known Millstone whiieblower or as a result of his service on a board that reviewed the other alleger's appeal of his 1994 performance evaluation.

In the totality of circumstances, however, we could not discern a sufficient basis for a finding that the protected activities of one or more of the allegers was a factor involved in their inclusion in the workforce reduction. -

In this regard, we have considered the concems expressed by the NRC Task Force and the 01 investigator with principal respokibifii for this case. On analysis of these concerns, our assessment of the record before us remains unaltered.

Consequently, we have concluded with respect to this case that, based on all the available evidence, there is not information sufficient to provide a reasonable expectation that a violation of section 50.7 can be shown by a preponderance of the evidence.

E.

Case No. 1-97-00?

01 Case No. 1-97-007 involved an electrical engineering supervisor whose employment was terminated in August 1995. The assigned justification for that action was that his performance in that role was unsatisfactory and, under a newly-formulated accountability philosophy, in such circumstances dismissal rather than demotion was required. The employee insisted, however, that his dismissal was in retaliation for his having immediately reported to higher-level management a threat h e had allegedly received from his immediate superior approximately nine months earlier. As he had interpreted the threat, he was being told that, if modifications on a Millstone Unit 2 safety-related system extended a refueling outage then in'effect, he and a subordinate engineer assigned to the project would be fired. Thus, h e was being a t least-implicitly directed to cut corners if necessary to ensure that the project did not hold up resumption of Unit 2 operation.

Our analysis of the record persuaded us that the reason assigned for the employee's termination was pretextua1 and that, in adualii, he was a victim of discriminatory action based upon his protected activity in reporting the threat Two considerations prindpaIly undergird this condusion.

First, the management officials responsible for the termination decision maintained that, in the 1994-95 time period, his supenrisory performance was so poor that resort to a performance improvement plan would have served no good purpose. (Subsequently, a grievance committee ordered his reinstatement on the ground that company and departmental policy had required that he be given an opportunity to improve his performance.) Yet, the employee had become a s u p e ~ s o r in the early 1980s and the Oi investigation revealed that, up to 1994, his performance appraisals were unblemished.

Second, the primary assigned example of assertedly poor supenrisory performance involved a n untoward incident that occurred when the employee was on vacation. The

. explanation given by management for nonetheless holding him accountable for the

-incident was specious. Moreover, the individual found principally responsible for the incident was later given supervisory responsibilities.

Consequently, we have concluded with resped to this case that, based on all the available evidence, there is information sufficient to provide a reasonable expectation that a violation of section 50.7 can be shown by a preponderance of the evidence.

Ill. ENFORCEMENT RECOMMENDATION The question remains as to whether enforcement action should be taken in either or both of the two cases in which we have conduded that NU management personnel discriminated against subordinates because they engaged in proteded activities. If taken, that action could be directed against either or both the licensee and the discn'minating managers.

Manifestly, the question is essentially one of the appropriate exercise of enforcement discretion and, as such, brings policy considerations into play. Moreover, some of those

- considerations - for example,-the best utilization of what are doubtless limited agency resources - dearly are beyond our ability to evaluate. We thus must confine ourselves to what can be said based upon our understanding of the philosophy undergirding the Commission's enforcement policy, as well as of significant developments occurring since the determined discriminatory actions took place in 1993 and 1995, respectively.

A Enforcement Policy Regarding Discrimination Cases A reading of the totalii of the General Statement of Policy and Procedures for NRC Enforcement Actions, NUREG1600, Rev. 1 (May 1998), 63 Fed. Reg. 26,630 (1998)

[hereinafter NUREG1600], confirms the remedial nature of such actions. In the context of discriminatory misconduct such as that found to have occurred in the two cases here, the foundation of the enforcement policy appears to be the recognition that retaliation against employees who have raised safety concerns poses a significant actual or potential threat to the public health and safety. Accordingly, it is important where wrongdoing of that stripe has been uncovered that measures be taken designed to ensure that there is not a repetition on the part of the licensee and its managers.

Further, it is equally important that the message be clearly conveyed to other NRC

licensees and their managers that retaliatory adverse personnel actions are a very serious matter and cannot and will not be tolerated by this agency.

B.

Relevant Factors in implementing Policy tf this understanding is correct, the pivotal inquiry is into whether, in the a'rcumstances at hand, enforcement action against NU andor its offending managers is warranted in the furtherance of the dual purposes at the root of the enforcement policy as it applies to discrimination cases. In approaching this question, we have taken note of three documents of seeming relevance: (1) the previously discussed October 24,1996 Commission order in which NU was directed to take certain specific steps designed to rectify prior misconduct in the treatment of employees who had voiced safety concerns; (2) the transcript of an open Commission meeting held on January 19, 1999, regarding possible dosure of that order; and (3) the March 9, 1999 staff requirements memorandum (SRM) approving the staffs recommendation to close out the October 1996 order.

1.

October 1996 brder As earlier noted, the backdrop of the October 1996 order was a several year history of retaliation by NU managers against employees who engaged in protected activity; as stated in the order, one recurrent finding was to the effect that the management ?ended to punish rather than reward employees who raised safety concems.' This state of affairs prompted the Commission to order NU to put in place an independent, third-party oversight of its implementation of a mandated 'comprehensive plan for reviewing and dispositioning safety issues raised by ri] employees and ensuring that employees who raise safety concerns are not subject to discrimination' See s u m p. 10.

2.

January 1999 Commission Meeting The January 19 Commission meeting - conducted more than two years after the October 1996 order was issued - addressed specifically the matter of the status of the third-party oversight of Millstone Station's Employee Concerns Program (ECP) and safety conscious work environment (SCWE). The participants in the meeting included, in addition to a number of NU officers assigned to the Millstone facility, officiak of Little Harbor Consultants, Inc. (which conducted the independent third-party oversight),

members of the Millstone Ad-Hoc Employee Group, and senior members of the NRC staff.

At the outset of the meeting, Chairman Jackson referred to the October 1996 Commission order and to events in the wake of that order. Among other things, she noted that, with Commission approval, NU had selected Little Harbor Consultants to conduct the third party oversight. Since May 1997, approximately a dozen meetings had been held between NU, Little Harbor, and the NRC staff to discuss the status of the mandated NU comprehensive plan embracing the ECP and the SCWE. The purpose of the January 1999 briefing, she indicated, was to collect information to assist the Commission in deciding Wether to close the October, 1996 order.' Tr. at S-5 to S-8.

After entertaining the views of NU senior management who expressed the belief that the comprehensive plan was achieving the desired results, Tr. at S-8 to S-75, the Commission invited Little Harbor's appraisal. In response, John Beck, its president, first outlined the specific functions that Little Harbor had undertaken in carrying out the assigned mission. Tr. at S-76 to S-78. He then stated categorically that he supported the Iifting of the October 1996 order. Tr. at S-78 to S-79. In his words: 'We genuinely feel that we are no longer needed on a full time basis to assure that Millstone management does the right thing when challenged by those events which occur in everyone's work place. We further believe that Millstone management is committed to keeping it that way in the future.' Tr. at S-79.'

This assessment was essentially The Commission was told that NU nonetheless planned to continue to avail itself (continued...)

endorsed by Billie Garde, a L i e Harbor consultant involved in the oversight activity.

Tr. at S-83.

For its part, the NRC staff concurred in the Liie Harbor judgment that the strictures of the October 1996 order were no longer required. Tr. at S-89 to S-120. And the three representatives of the Milfstone Employees Ad-Hoc Group were generally positive respecting the effectiveness of the corrective measures taken in fufillment of that order.

Tr. at S-128 to S-147:

3.

Closure of October 1996 Order Subsequently, in apparent agreement with the appraisals of NU, the staff, Little Harbor, and the Millstone Employees Ad-Hoc Group, in a March 9,1999 SRM concerning SECY-99-40, the Commission approved the staff's recommendation to close the October 1996 order. In doing so, the Commission directed the staff to be vigilant in monitoring NU'S performance in the ECP and SCWE areas to ensure any performance dedine is detected early on.

C.

Timing of Enforcement Action As is apparent from the foregoing, over two years before the determination of wrongdoing that we now make in Cases Nos. 1-96-002 and 1-97907, the Commission took adion against NU that, in its effect, applied directly to such wrongdoing. This was, of course, a very unusual sequence of events insofar as concerns the customary Commission response to allegations of discrimination flowing from protected a m..

Normally, the consideration of possible Commission enforcement action addressed to a particular alleged violation of the employee protection.provisions of 10 C.F.R 5 50.7 does, as it must, abide a finding that the allegation is meritorious. Only upon such a finding can it be appropriately determined what, if any, sanction against the licensee andfor the offending managers should be imposed in the fulfillment of the purposes underlying the enforcement policy as applied to section 50.7 violations.

As seen, two factors turned the normal piocess on its head in this instance. First, by 1996 it had become dear to the Commission that there had been for many years an unhealthy NU environment respecting the treatment of employees engaged in protected 7(...continued) of Little Harbor's s e ~ c e s on a part-time basis. Tr. at 5-21, S-80.

a Other witnesses, including representatives of the State of Connecticut Nuclear Energy Advisory Council and Friends of a Safe Millstone, expressed the view that it was desirable to continue Little Harbor oversight on an 'on call" part-time basis. Tr. at S-123, S-146.

activities. As a consequence, corrective action in the form of the NU implementation of a broad-scale remedial plan under independent third-party oversight was ordered in that year. Second, while the umbrella of the decreed corrective action extended to the allegations of 1993 and 1995 wrongdoing in Cases Nos. 1-9 6-002 and 1-97-007, respectively, it is not until 1999 that those allegations are being upheld. As of this time, the carredive action has been in progress for over two years and, according to all those -

involved in its implementation (NU), its oversight (Little Harbor), and its regulatory appraisal (NRC staff), has successfully accomplished its intended objective, an assessment with which the Commission seemingly agrees.

D.

Recommendation

1.

Completed NU Remedial Actions Make Enforcement Action Unnecessary In the final analysis, it appears that, with the Commission's apparent acceptance ofthe.

representations made at the January 19 meeting, as a resutt of agency adion taken on the basis of a generic determination of wrongdoing the misconduct found in the two cases under consideration was adequately remedied before those findings surfaced? In that extraordinary circumstance, there is reason to question what worthwhile purpose might be served by taking further, formal enforcement action against either NU or its managers responsible for the 1993 and 1995 discrimination. The October 1996 order conveyed a strong message to NU respecting the unacceptability of the conduct addressed in it and, among other things, put NU to the considerable expense of arranging for independent third party oversight. That message seemingly has had its desired result insofar as regards NU and doubtless was not lost on other reactor licensee^.'^ That bemg so, any additional sanction imposed at this time - such as the imposition of a civil penalty - might be thought to be more punitive in character than remedial.

2.

Enforcement Action if Completed NU Remedial Actions Are Found to be Insufficient as Basis for Foregoing Enforcement Action Should the Commission nonetheless not be satisfed that the misconduct found in the two cases under consideration has already been totally remedied, as we explain below In addition, it should be noted that, in Case No. 1-97-007, an NU grievance committee overturned the termination that we have found had a discriminatory foundation (albeit on other, purely procedural, grounds).

'O With what is an apparently radical change in the NU environment since 1996 with regard to the treatment of employees raising safety concerns, it is a reasonable assumption that the offending managers in the cases we have reviewed who are still employed by NU have been 'given the word" that such conduct is not acceptable and will not be tolerated.

the violations we have idedked do appear to warrant escalated enforcement action against the licensee. Additionally, enforcement action against the utility officials involved in the discriminatory amties may be warranted as well.

a or case No. 1-96-002, given our conclusions about the involvement of two mid-level management officials (a director and a vice president, who were third and fourth-level supervisors, respectively), a Severity Level II civil penalty is potentially involved. See NUREG-1600, at 23,63 Fed. Reg. at 26,652. Moreover, applying the enforcement policy flow chart, @. at 9,63 Fed. Reg. at 26,638; because NU has been the subject of escalated enforcement action within the past two years,=e SECY-98-119, at 13-14, and, in these circumstances, would receive no credit for identification or corrective actionsi1 subject to the exercise of diicretion,l2 the civil penalty amount potentially would be the Severity Level II base amount ($88,000) plus 100 percent.

For Case No. 1-97-007, because one of the NU officials involved was at the time a mid-IeveI management official (a director, who was third-level supervisor),.a Severity Level I1 dvil penalty also potentially is involved. Again, because NU has been the.

subject of escalated action within the past.two years and, in these circumstances, would be entitled to no credit for identification or corredive action,13 subject to the exercise of discretion, the civil penalty amount potentially would be the Severity Level I1 base amount plus 100 percent The identification credit appears inappropriate in Case No. 4-96-002 because the agency, not NU, is identifying the violation. In connection with the corrective action wedirt, the enforcement policy statement indicates that in discrimination cases it should normally be considered only if the licensee IYakes prompt, comprehensive conective action that (1) addresses the broader environment for raising safety concerns in the workplace, and (2) provides a remedy for the partiwlar discrimination at issueem NUREG-1600, at ll,63 Fed. Reg. at 26,640. For Case No. 1-96-002, up to this point

. the licensee has not taken any adion under the second element, and thus does not appear to quari for this credit either.

lZ In both cases, there may be significant questions about the appropriate use of limited enforcement resources. As we have previously noted, this is a matter about which we cannot make an informed judgment.

l3 The identification credit appears inappropriate in Case No. 1-97-007 as well because the agency, not NU, is identifying the violation. The corrective action credit also appears inapplicable because under dement two - provide a remedy for the particular discrimination - although the utility did take action to reinstate the terminated employee through an internal grievance process, that was as a result of a finding unrelated to discrimination. See suura note 9.

Wrth respect to the individuals involved, the agency previously has taken enforcement action against utility officials found to have been involved in discriminatory activities, by issuing either a notice of violation or an order banning the individual from licensed activities for a specified period." A review of significant enforcement actions between January 1990 and June 1998 reveals three instances in which utility supervisors, as individuals, have been subjected to agency enforcement action for being involved in taking discriminatory actions in violation of section 50.7.~~-

As the enforcement policy notes, however, when escalated enforcement action appears to be wananted, the agency may provide the opportunity for a prededs'ional enforcement conference to obtain further information to assist it in making the appropriate enforcement decision. In this instance, particulariy with respect to the individuals inv~hred?~

such a conference should be convened to ensure that the agency can make a fully informed enforcement decision.

l4 Although the enforcement policy also indicates that a Ietter of reprimand may be issued to an individual to identify significant deficiencies in his or her performance of licensed activities, it is our understanding that use of this administrative action is in the process of being discontinued.

In 1995 and 1996 cases - IA 95-042 and IA 96015, respectively - notices of

,.violation for Severity Level II and Severity Level Ill violations were issued to individuals after OIG or 01 and DOL findings of discrimination by their employer based on their

. actions, and, in one case, a federal criminal guilty plea to violating NRC requirements.

..In both cases, the staff did not issue an order removing the individuals from licensed activities. In the one instance, the staff indicated this was based on the employer's

.action removing the individual from such activities, while in the other the staff recognized the significant penalties already imposed, including loss of employment and a felony conviction, as well as the individual's recognition he had acted improperly and understood the importance of the requirements of section 50.7. In the third case, which was brought in 1997 (IA 9&101), an enforcement order was issued against a utility vice president for violating section 50.7 following 01 and DO1 findings of.diswimination by his employer based on his actions. In the enforcement order, which placed a five-year prohibition on his involvement in NRC-licensed activities, it was noted that during a

.predeasional enforcement conference the utility official continued to insist that he had not taken any discriminatory action.

l6 Wdh resped to the individuals involved, based on the cases previously brought by the agency, a significant factor in making an enforcement decision appears to be the extent to which those indiiiduak are willing to acknowledge wrongdoing.

A Lessons Learned Review Process In seeking to draw lessons learned from the investigative and enforcement processes used with respect to these cases, and principally Case No. 1-96-007 that was the focus of the December 1998 OIG report, in addition to review of the individual case information outlined in section ilA above, team personnel reviewed the January 27,1999 memorandum from the Executive Director for Operations (EDO) outlining staff responses to Chairman Jackson's January 7,1999 questions concerning the December 1998 OIG report, and conducted interviews with senior officials fmm 01, OE, and OGC about the general condud of the agency's investigative and enforcement processes. Team personnel also had discussions with an OIG investigator who was involved in the preparation of the December 1998 repot In this regard, the team was given access to the transcribed interviews of various agency employees taken during the OIG inquiry that

!ed to the December 1998 report Based on the information gathered through this process, we provide the following suggestions and recommendations.

B.'

' p s o n s Learned

1.

Utiliion of MiIlstone Task Force From what we have been able to gather, the decision to assemble the special task force to begin a review of the 1996 Millstone reorganization apparently was a sound one.

What is less clear, however, is whether there was a clear concept of the way in which that group's work was to be utilized and incorporated into the existing investigative and enforcement processes. The seemingly abrupt decision to halt their work, in combination with the belated direction, =.me five months lafer, to prepare a reporf on -

their conclusions, seems to reflect there was not, at its conception, a plan for integrating the Gsk force into the existing regulatory scheme. This is also reflected by the apparent lack of any concerted effort to include appropriate task force members in all steps of the enforcement process, including the ~ u n e 1998 final conference on Case No. 1-96-00?.

A special task force like that established to review the 1996 NU downsizing effort can se+e a valuable purpose by bringing special expertise and insight into the investigative and enforcement processes. As the circumstances surrounding that task force illustrate, however, failure explicitly to define the group's role in the existing agency processes from the outset can effectively nullify its usefulness by creating unnecessary

.misunderstandings and misperceptions about the validity of any results derived from those processes.

2 01 Investigation Atthough as to each of the three cases reviewed, we generally found the 01 investigation to be thorough and comprehensive, we were struck by the lack of comment by the investigators regarding their obsenrations of witness behavior or demeanor that would be relevant in assessing fhe witness* credibility and veracity. Particularly in the context of these discrimination cases that depend on inferences about motives, witness credibility can be a significant factor in assessing the strength or weakness of evidence upon which inferences about discrimination will be based. In discussions with 01, it was suggested that they are reluctant to put such information in reports, but are always wilting to discuss such matters with OE or OGC personnel involved in case review. To the degree there is a need for doser coordination between OGC and 01 (and perhaps OE as well) regarding case development and analysis, see section IV.B.5 below, we would hope this type of information will be conveyed and affirmatively utilized in making decisions about whether there is an adequate evidentiary basis to proceed with particular discrimination cases.

3. Department of Justice (DOJ) Interaction Another apparently unique aspect regarding the various discrimination cases relating to Millstone is the request from the local United States Attorney's Office that 01 investigative reports relating to referred Millstone discrimination allegations not indude a summary of condusions. The apparent basis for this request was previous leaks of this information coming from within the NRC that the federal prosecutors perceived was interfering with their abil'i to conduct their prosecutorial assessments.

While the decision not to forward 01 summaries for these reports was appropriate, the.

apparent decision not to even prepare those summaries is questionable. The process of analyzing the mass of information generated in the course of investigations such as those at issue here in order to prepare a thorough, reasoned summary and supporting conclusions is a vital part of the process; Notwithstanding the problem of leaks, it does not seem that preparing such a summary, retaining it within 01 until DOJ has finished its review of the report, and then attaching the summary (with any additional supplementation that might be necessary based on the DOJ review) as the report goes fonivard for consideration as part of the agency enforcement process is likely to cause the problem identified by DOJ relative to Millstone."

The January 27,1999 ED0 response to Chairman Jackson's January 7,1999 memorandum regarding the December 1998 OIG report indicates that '01 will provide written wndusions and synopses&r DOJ returns the case to NRC.' Jan. 27,1999 Memorandum from William D. Travers, DO, to Chairman Jackson, attach. I, at I (emphasis supplied). So that the analytical process is complete, we think it is important the conclusions be drafted at the same time the report is prepared, even if they are not

'attached" until later.

i r

I I

Although acknowledged in h e OIG report, it is worth mentioning again that the lack of any investigatory summary here apparently had another, albeit again unintended, detrimental impact on the process. 01 has a policy in its manual that governs the resolution of disputes between investigators and 01 managers. See 01 Procedures Manual at 32-33 (Aug. 1996). As the OIG report imlicates, however, that policy was not utilized to address the apparent conflict between the 01 investigator and the Field Office

@rector over the sufficiency of Case No. 1-96-007 because the report did not contain a written conclusion. See OIG Report at 10. This is unfortunate, since a more direct confrontation of the problems of this case at an earlier stage through this policy might have surfaced at a much earlier point the uncertainties that ultimately led to the position reversal that raised concerns about the overall integrity of the enforcement process.

4.

Enforcement Conference Process As we have noted, because they involve drawing inferences about the generally unexpressed motives of individuals, discrimination cases are among the most d'fiwlt agency enforcement matters. Especially concerning the critical question of whether there is a sufficient acausal nexus' between the protected action and the adverse action, these cases require a careful analysis of the factual record - determining what the relevant facts are and how-they are to be weighted, compared, and contrasted -to reach a conclusion.

Enforcement Guidance Memorandum (EGM) 99-001, which is included as Attachment 2 to the January 27,1999 ED0 response, provides guidance intended to ensure that Enforcement Adion (EA) Request and Enforcement Strategy Forms now used as status and briefing aids at staff enforcement conferences more accurately reflect what occurs during, and the outcome of, these conferences. This certainly addresses the recordkeeping concem identified by the 010 report. There is, however, another, perhaps more substantive concem, that appears to remain regarding the enforcement conference decisional process as it relates to discrimination cases.

From the most recent draft of Staff Requirements Memorandum (SRM) M990115, it appears the Commission is considering requested that in future enforcement papers to the Commission, the staff clearly state (1) the criteria it used to determine whether a violation occurred and the facts and analysis relied on to reach that conclusion; and (2) in the event of differences between OE and 01, the basis for OE's ultimate recommendation, including a supporting analysis. We think, however, that particularly for the concededly diicult discrimination cases, consideration should be given to starting this 'articulated analytical processg at the inception of the enforcement process, not just when these matters reach the Commission.

What we contemplate for discrimination cases is a process, beginning at the enforcement panel stage, in which there is some attempt by the major participants - e.g.,

01, OGC, and OE -to set out bnefiy in writing the analytical framework for their tentative '

conclusions regarding a particular discrimination allegation. The construct we have

described in section IIA above (supplemented to address other relevant factors) could provide a template for such an analysis, with the length Eing something along the lines of the case summaries that are set forth in section 1I.C.-E of this report.

The 01 investigation report (with condusions) seemingly could constitute the articulated analysis for that office.y8 OGC and OE likewise would be expected to provide some concise written explanation of their analysis of the facts provided in the 01 report. These office products arguably would provide a more focused basis for the subsequent enforcement conference discussions. '

To be sure, there are personnel resource and timeliness implications to this approach, to say nothing of the general antipathy to further 'paperingm what in may instances are already voluminous records. On the.other hand, given the significance of discrimination cases in the overan investigative case!oad,=e section IV.B.5 below, this additional 'up frorf work might well provide the benefit of requiring less 'clean upm labor later in the

-. enforcement process.

. 5.

OGC Involvement On the basis of disclosures in the 01G investigation, there may be room for reassessing the OGC role in determining whether to take enforcement action in a particular case of alleged di~crimination.~~

It appears that, at least in the time period relevant to our inquiry, in many instances OGC confined itsetf fo 2 hotation that it had 'no legal objectionm to the

.dution of a particular enforcement action: That notation,.as we have been led to I

i understand it, did not mean'that the OGCenfotcement attorneys who had reviewed the I

case file had concluded that the case for enforcement was strong, Le., that, should it be i

litigated, the proposed penatty would likely be upheld.= All that h o legal objectionm appears to have meant was what was literally stated: whether or not justified on the

-established facts, no illegality would be involved in bringing an enforcement action.

It is our understanding that, at least in some of the regional offices, a separate written case analysis is prepared by regional officiafs prior to an enforcement conference, which also could continue to be provided for the conference.

l9 In making this recommendation, it should be understood that we are not critiquing the way in which OGC enforcement attomeys or supenrisors have performed their duties in any individual case, given the institutional constmct in which they were operating. Rather, what we suggest is a concern about the nature of the framework within which they labor.

"To the contrary, the attomeys might have concluded that the case was so weak that, in the words of one OGC lawyer interviewed during the Office of Inspector General's investigation, bringing an enforcement action would be 'a dumb thing to do."

When so confined, as it hay well have been in connection with the December 1997 enforcement panel meeting in which it was decided to proceed with enforcement in Case No. 1-96407, such OGC participation is not as helpful as it might otherwise be. Given the fact that at least one OGC enforcement attorney has reviewed the entire case file, the role of that office might extend far Gyond simply venturing an opinion on whether an enforcement action would or would not be legally precluded. Rather, we know of no good reason why OGC should not provide OE with its considered judgment as to whether an enforcement action is not only legally permissible, but also warranted under whatever evidentiary standard the Commission has adopted as a basis for taking sucb action?'

On the basis of oral briefings we received with regard to the role OGC attomeys play in giving advice to OE and 01 in cases involving alleged violations of section 50.7, it appears that the sirtuation indicated by the OIG investigation may now have changed.

SpecificaIly, we have been given reason to-believe that, at present, OGC enforcement attomeys may be assuming a more proactive role in providing their views on the strengths and weaknesses of particular cases as illuminated by the record amassed in the course of the 01 investigation. If so, the process.of reaching an informed judgment on whether a section 50.7 violation worthy of enforcement has occurred will have been benefitted.

We also note that, according to the information we were given by 01, approximately forty percent of the office's totat caseload is discrimination cases, with those case types making up sixty-five percent of the high-priority cases.. Because discrimination cases are so Yact intensive,' i.e., they require a careful development and sifting of the facts to determine what reasonable inferences can be drawn, earlier involvement on the part of OGC attomeys (and perhaps OE personnel) may well be useful, arguably from the investigation's inception. In one of our oral briefings, OGC indicated that in the context of a planned office reorgan'kation, it is considering assigning discrimination cases with the anticipation that the attomey who advises on the case during the investigativeienforcement process will be the attomey responsible for trying the matter should it go to an administrative hearing.22 This undoubtedly would help to ensure that OGC would not, of course, be called upon to pass upon such policy questions as whether it would be an appropriate exercise of prosecutonat discretion to forego an enforcement action in the circumstances of the particular case.

In this regard, we hope that the seeming need for enhanced interaction between 01 and OGC enforcement attomeys, particularly at the outset of the investigative process, would not fall victim to historical concerns about 01 independence.

The need to maintain 01 independence is clear; however, more collaboration between OGC enforcement attorneys and 01 investigators to develop the factual construct for enforcement cases, particularly discrimination cases, seems highly desirable.

evidentiary problems are e6lored thoroughly before any decision to bring enforcement action is made.=

6.

Handling of Discrimination Cases Generally As we have already noted, several of those interviewed suggested that the Millstone situation was somewhat unique. It nonetheless seems to us that, with the present state of the elecbic generation industry in which competition and deregulation are hallmarks, massive downsizings like that which occurred in 1996 can be expected at other utilities in the future. It further seems likely that in such instances, as was the case with Millstone, a number of discrimination complaints can be anticipated. It thus may be a benefd to the agency to have in mind a more systematic approach to handling such events.

As we have indicated in our report on Case No. 1-96-007 relative to the 1996 NU

.reorgan'nation, the utility's destrudion of the matrix information on everyone other than those selected for termination has tendered impossible any attempt to analyze the arcumstances based on disparate treatment. Nonetheless, because evidence of

.... disparate treatment may be significant in identifying as-pretextuaI.discrimination actions that otherwise might be discounted as "legitimate business reasons,' a principal agency concern should be that for a reasonable period of time the utility retains, and the agency has access to, all relevant information regarding those whose positions were implicated in a reorgan'nafionfdomizing process. This would indude information on all personnel whose positions were considered as part of the reorgan'nation process, whether or not they.were (1) involved in protected activii or (2) actually subjected to an adverse adion, such as termination or demotion..

Along these same lines, the agency may wish to consider a more standardized approach relative to identifying and interviewing 'comparablew individuals in connedion with the disparate treatment aspects of an investigation into a large reorganization. Admittedly, attempting to get a complete picture of what occurred for the purpose of making a disparate treatment analysis often will be very resource intensive. For instance, in Case No. 1-96-002, to get a complete view of disparate treatment would require intewiews with perhaps thirty people, including those who were demoted in 1993, those who retained their supe~'sory positions, and those who were given supervisory positions for the first time. Nonetheless, without obtaining relevant information on a significant number of these individuals, it may be diicult to reach a concrete conclusion about the In scrutinizing a daim that a federal executive branch "whistleblower" has been subjected to a prohibited personnel practice, an Office of Special Counsel investigator and the OSC attorney responsible for seeking corrective and disciplinary action through litigation before the Merit Systems Protection Board work closely on the case almost from its inception. Based on his 20 years of experience with the OSC, Supe~sory Investigator Hamer has found this interadion is integral to developing and prosecuting such cases successfully.

role of disparate treatment evidence in a particular investigation. Further, although some interviews designed to elicit cornparativ6 infohation were done in Case No. 1-96-002, it does not seem there was a clear idea of exadly what 'comparative' information was needed to provide the best analytical basis to reach a condusion about disparate treatment. Given the similarity of this analysis to that which is regularly used in the EEO context, continuing 'urteradion between those in the agency who handle EEO cases and 01, OE, and OGC enforcement attorneys might provide those on the enforcement side with a better understanding of what is required.

7. Other Matters The MlRT also rece'nred unsolicited suggestions for revisionsfimprovements to the investigative and enforcement processes from an agency employee and a public interest

.group with a stated interest in Millstone. One commenter outlimed a perceived problem with the job classification used for 01 investigators, while the other suggested that 01 should again be made a Commission-level office. These appear to be matters that fall outside of the scope of the 'review we were asked to undertake. Accordingly, absent some further Commission diredive, we plan to offer no recommendations regarding either suggestion.

V. CONCLUSION In reviewing the allegations in 01 Case Nos. 1-96-002, 1-96-007, and 1-97-007 that NU management officials violated the prohibition in 10 C.F.R. § 50.7 on taking adverse adion against an employee for participating in any protected activity, we have sought to determine whether, based on all the available evidence, there is information sufficient to provide a reasonable expectation that a violation of section 50.7 can be shown by a preponderance of the evidence. A case meeting this evidentiary standard of review is a legitimate candidate for enforcement action, subject to the exercise of discretion in accordance with the agency's enforcement policy.

Further, based upon a review of the available evidence for these three cases, we have concluded with respect to 01 Case No. 1-96-007, that there is not information sufficient to provide a reasonable exptictation that a violation of section 50.7 can be shown by a preponderance of the evidence. On the other hand, with regard to 01 Case Nos. 1-96-002 and 1-97607, we have determined there is information sufficient to provide a reasonable expectation that a violation of section 50.7-can be shown by a preponderance of the evidence. We do not recommend that enforcement action be instituted in connection with those cases, however, because of the remedial actions already undertaken by NU to address previously identified failures in management bcesses and procedures for handling safety issues raised by employees, thereby ensuring that employees who raise safety concerns are not discriminated against.

Finally, based on our review $the investigative and enforcement processes utilized by the NRC staffwith resped to these 01 cases, and in particular 01 Case No. 1-96-00?, we make the following recommendations regarding those processes:

1.

At its inception, any bpecial' task force formed to investigate or otherwise review circumstances in which agency enforcement action is a possible outcome should have its role within the agency's existing investigative/enforcement processes clearly delineated.

2.

Particularly with resped to j O C.F.R. 5 50.7 discrimination cases, to the degree practical, 01 investigator impressions regarding witness credibil'i and veracity garnered though observation of the witnesses should be communicated to those making the decision on whether there is sufficient evidence to pursue enforcement action.

3.

Notwithstanding a DOJ request not to transmit an 01 summary and conclusion for a case sent for pmsecutorial review, the 01 summary and conclusion should be prepared at the time the 01 case report is assembled and, once the case is returned from DOJ, made a part of the 01 report so as to be available as an aid in determining whether agency enforcement action is appropriate.

4.

Particularly with respect to 10 C.F.R 5 50.7 discririiination cases, an

'articulated analytical processg should be incorporated into the enforcement conference process to the extent practicable.

5.

Particularly with resw to 10 C.F.R 5 50.7 discrimination cases, OGC enforcement attorneys should take a more proactive role in the investigative process from its inception, with the expectation that, to the extent practicable, the attorney assigned to an 01 case would be responsibIe for handling the case if it is adjudicated.

6.

Anticipating that electric mdustry deregulation and enhanced competition will produce other large scale reorganizationldownsiu'ng efforts, the agency should endeavor to enare that the utility retains all relevant documentary information regarding all those whose positions are implicated in the reorgan'kationfdawnsizing.

Respedfully Submitted by the Millstone Independent Review Team Original Signed by:

G. Paul Bollwerk, Ill Acting Chief Administrative Judge.

Atomic Safety and Licensing Board Panel Original Signed by:

Carolyn F. Evans Regional Counsel NRC Region I1 Original Signed by:

Sara McAndrew Attorney Office of the General Counsel March 12, 'I999

SEPARATE STATEMENT OF ALAN S. RUSENTHAL Advisor to the Millstone Independent Review Team [MIRT'I My independent examination of the voluminous product of the 01 investigations, as well as of the other documentary materials made avalabie to the review team, leaves me in total agreement with the conclusions reached in the three cases addressed in the team's report. As will be discussed in greater detail below, this is not to say that 1 would have deemed a contrary conclusion in one or more of the cases to have been beyond the bounds of reason. In each instance, however, the team has provided an analysis of the relevant fads disclosed by the 01 investigation that, in my judgment, amply sup/;orts the inferences drawn r e s p e w the ultimate question presented: was the adverse personnel adion taken against the particular alleger motivated, in whole or in part, by protected activity in which he had engaged?

My agreement with the content of the report extends to the discussion of the evidentiary standaid of review, as well as to the enforcement recommendation applicable to the two cases in which the review team has concluded that a violation of 10 C.F.R. 5 50.7 had occurred. And it further seems to me that the review team haS identified the principal lessons to be learned from what has transpired with regard to these cases.

Notwithstanding my endorsement of the review team's report in its entirety, I offer a few additional observations of my own. In the main, they serve simply to stress portions of the report that I feel warrant additional emphasis.

1. In none of the three cases examined by the review team was it difficult to discern from the 01 investigation materials the presence of three of the four elements that, as the review team notes, must undergird a finding of a violation of the employee protection provisions

of 10 C.F.R. 5 50.7. Each alleger manifestly had engaged in protected activity;' there was the requisite management aware'ness of that fact; and the allegefs termination or demotion was a classic exampIe of adverse personnel action.

Unsurpiisingly, the difficult assessment concerned the fourth element: whether the required nexus existed between the protected activity and the adverse action. in approaching that question in each case, there was a recognition of the obvious: the of the 01 investigation would not include any acknowledgment of licensee wrongdoing or, in all likelihood, anything that might constitute dired evidence either in support or in refutation of the alleger's daims. Thus, the determination respecting whether the iicensee's proffered explanation for the adverse action was genuine, or instead in whole or in part pretextual, would necessarily hinge upon Ule drawing of inferences from evidentiary disdosures that might well be in substantial canfl ict.

Such was the sikration that confronted the review team as it embarked upon its assigned task. In carrying out that task, it had two marked advantages.

a

'The first, presumably enjoyed whenever the results of an 01 investigation are in hand, stemmed from the comp?eteness of the evidentiary record on which the inferences had to be based. There doubtless is no investigation that could not be taken a step further if time and resources permitted. In the three cases before the review team, however, the investigation was I would think that employees called upon to perform safety-related functions (as were all the alleges in the cases at hand) inevitably will find it necessary to rake safety issues fmm time to t'me in the fulfillment of their responsib'ties.

Of course, the extent to which they might choose to pukue those issues either internally or with the NRC will vary and might well affect the soficitude of superiors regarding a particular protected activii.

conducted by one or more 01 Special gents with considerable thought and consummate thoroughness. Wrthout being overbearing in their probing, the investigators identified and pursued tenaciously the appropriate lines of inquiry; had no hesitancy in confronting a witness with contradictory statements of another witness; and, in general, sought to develop a record that would enable an informed judgment by the ultimate deasion maker on each issue that had to de addressed. In almost 40 years of federal service in three separate agencies, I had occasion to consider and to act upon innumerable investigation reports and their underlying 1

documentation. None surpassed in quality what I encountered hertz2.

Second, and this was an advantage not usually possessed in the assessment of the.

.product of 01 investigations, the review team - consisting of three NRC lawyers - had available.

to it sbc full weeks to analyze these cases and to reach its condusions." As a consequence, its members and advisors were able to spend innumefable hours in examining the wealth of m t e ~ e w transcripts and documentary exhibits in the 01 file; in collegial discussion of the deasional implications of that maten'al; and in the drafting and peer review of the extensive case studies now put before the omm mission. This luxury of time and resources is likely not accorded to OE and OGC personnel who customarily must pass judgment on the merits of allqjed Section 50.7 violations.

Despite these advantages, 1 think that the review team members would agree with me that in none ofthe cases did the answer to the nexus question become obvious from a casual examination of the 01 report of investigation and its documentary foundation, (Indeed, in the I would hope that, either in their reports or in separate documentation, the 01 investigators would supplement the transcripts or summaries of witness interviews with any impressions as to a witness' credibility garnered through observation of his or her demeanor during the interview. Such additional infomation can be most heIpful, particularly in circumstances where there is a dear conflict in the evidence.

This advisor also devoted his entire attention to the project during that period.

case in which I was asked to take an early particularly dose look, my first impression as to the likely appropriate response made an 18wegree turn as I gave the matter additional thought)

And, even after all involved in this enterprise had made full use of the time available for study and reflection, there still was room in the instance of at least some of the allegers to be less than fully confident in the choice that had to be made between conflicting possible inferences.

I do not mean to suggest that the condusions reached by the review team in its case studies are suspect. Once again, I think them totally supported by a cogent analysis based on a

-full consideration of the pertinent facts as diidosed by the 01 investigation. Accordingly, had a like conclusion founded on a like analysis came before me in my time as an adjudicator in this agency and later in the General Accounting Office, I would have had no hesitancy in upholding it. All that 1 do mean to convey is my belief that cases such as these do not lend themselves to certainty. Whenever the drawing of inferences from inconclusive facts is the otder of the day, reasonable minds can and often will differ? Thus, for example, while it may be contrary to the outbme of the review team's analysis (with which I am in full agreemerif), it does not follow that the conclusion reached by the NRC Task F O G in Case No. 1-96-00? is perforce f l a ~ e d. ~

2. In two of the three cases examined (Nos. 1-96-002 and 1-96-007), the adverse action taken against the allegers was part of a broad-based restructuring or reduction-in-force involving a significant number of NU employees. Thus, for example, the three allegers in Case No.

This is especially so where the required inference relates to the state of mind of the management official(s) who took the adverse action alleged to have been discriminatory.

ti Of course, the Task Force may not have had at its disposal the time and resources available to the review team.

1-96-007 were among a total of over 100 individuals (out of a pool of approximately 3,200) who were terminated as part of a 1996 downsiting effort.

In such circumstances, the issue of disparate treatment would appear on the surface to have been of potentially appreciable significance in determining whether their protected a c t i i was a factor h the decision to indude the allegers in the group of employees ultimately selected for termination. Yet, as noted in the review team report (in Sedion N. B. 6.), in the instance of Case No. 1-96407 that issue could not be effedively explored. This was because NU had destroyed the matrix information on all employees other than those terminated - i.e., there was not avaifable the information as to performance and capabiries that supposedly was centtal to the decision on which employees should be laid off.

I 1 agree with the review team's recommendation that utilities be required to retain, and I

make available fo the agency as required, all relevant information regarding those persons i

i j i whose positions were implicated in a reorganitationldownsizing process. At the same time, however, it should be recognked that, even had all of that information been in hand, it might well not have proven particularly useful in reaching a disparate treatment conclusion in Case No.

The data supplied by NU to the Office.of the Inspector General at the latter's request revealed, among other things, that 19 of the 43 candidates for layoff who were on an bdded assurancen review list were subsequently (albeit not by the reviewers of that list) removed from consideration for termination as part of the redudion-in-force? It was also disclosed that, of the approximately 90 employees who were identified by name as having raised safety concerns with That list was comprised of employees who, for one reason or other (such as prior protected am@) were deemed usensitive' and, as such, merited special examination before being included in the layoff.

either the NU Employee Concern Program (ECP) or its equivalent predecessor group at Millstone from January 1990 to January 1996, five were included in the 'added assurance" review list. Of those five, three were selected for termination. In addition, two employees who had raised safety concerns with the ECP were terminated even though they had not been on the

• added assurancea review fist.

Presumably, all 19 of the employees on the 'added assurancea review list who survived the workforce reduction were among the total of approximately 3,200 individuals subject to evaluation by the matrix process. Additionally, it may reasonably be assumed that, & ~ e n if they did not turn up on that fist, most of the retained persons who had brought safety concerns to the -

ECP similarly had been assessed as candidates for possible layoff.

I The short of the matter thus is that, if the matrices of the several thousand employees

\\

- who were evaluated but not terminated had been available to the 01 investigator and then examined, the results likely would not have justified the formidable time aM effort that would have been involved in the examination. The investigator still would have been confronted with the fact that a vast majo*

of the employees who placed safety concerns before the ECP between 1990 and 1996 were not laid off and, in the more select group of employees receiving special 'added assurancea review because oftheir perceived asensit~Nrty,' almost 50% kept their jobs. This being so, it is diicult to see hovi a comparison of the matrices of the three allegers in Case No. 1-96-007 (all of whom were-on the &dded assurance" review fist) with those of some or all of the retained employees might have assisted an informed determination on the likelihood that the allegers had been the victims of disparate treatment because of their protected adivity.

As it turned out, in Case No. 1-96-007, as well as in the other case involving adverse action taken in the course of a large-sdale program involving many employees (No. 1-96-002), it was possible to reach an ultimate conclusion on the Section 50.7 violation issue on bases that did not require an inquiry into the possibility of disparate treatment. In 1-96407, the low matrix

ranking given to all three allegers, which in turn was supplied as the reason for their inclusion in the reduction-in-force, was sufficiently supported by the appraisal of their peers. Beyond that, nothing uncovered by the 01 investigation gave rise to a suspicion that, nonetheless, more probable than not past protected adivity was an influencing factor in their termination. Thus, the review team reasonably conduded that any determination that the allegers' layoff was I i impermissibly motivated would have had a purely conjectural - and therefore unacceptable -

i i

foundation.

1 As the review team found, the situation disclosed by the 01 investigation in 1-96002 was markedly different and called for an opposite resuk There, the process used in determining who should receive positions as first4evel supervisors as part of the 1993 reorgan-kation was both unusual and wide open to the making of choices on bases other than merit. In stark contrast to the m a w process utilized in carrying out the 1996 workforce redudion program, M c b brought abo~i'the evaluation of all candidates for termination, in'the 1993 reorganization existing supervisors were not formally appraised at all. Nor, apparently, were they given any consideration for retention as a supervisor unless, at the meeting convened for the purpose of making the selections, one of the management officials in attendance put their names forward.

In the case of the two supervisor alegers in 1-96-002, no official did so. As a consequence, without any discussion of their-quallcations, both ended up demoted to line positions and, indeed, one of them found himself subordinated to a newly-created supervisor.

Given the fact that the allegers had solid prior performance appraisals in their supenrisor roles -

appraisals that, however, were not made available at the selection meeting -this state of affairs manifestly placed a decided burden upon the management to demonstrate that the demotions had a totally nondiscriminatory basis. This burden was not met The third case examined by the review team (No. 1-97-007) did not involve a broad-scale reorgan-nation or workforce reduction but, instead, a termination of a single

indiiidual -the alleger - for asserted lack of satisfactory supervisory performance. Although two instances of different treatment accorded other employees surfaced in the course of the 01 investigation, the review team found them of no probative value. Rather, the conclusion that the alleger's termination was at least partially motivated by his prior protected activity was founded on the responsible management officials' failurg to provide an acceptable basis for their daim that his supervisory capabilities and performance were poor beyond the possibility of remedy.

Given the totality of the circumstances undermining the explanation offered, the review team found that exNanation pretextual.

As I see it, the analytic ftamework utilized in these three cases has generic value. In a nutshelI,.while there well may be cases in which disparate treatment can be discerned and a Sedion 50.7 violation based thereon, I believe that, in most instances, the more useful '

exploration will be in another area? Specifically, it will be into whether, taking into account all attendant arcurnstances, the masons assigned by the licensee's management as constituting the nondiscriminatory basis for ihe adverse action appear totally credible on their face. If not, and the management is not able to counter successfully the diicuWes that inhere in the assigned reasons, an inference that the adverse action was impermissibly motivated (at least in part) both can and should be drawn.

3. Finally, a solid-foundation appears to undergird the review team's recommendations regarding enforcement action in the two cases in which it found 10 C.F.R. 8 50.7 violations. At first blush, given the unusual step taken by the Commission in chartering an extensive, independent mquiry into these three cases, a failure to pursue found violations might seem anomalous. The fact remains, however, that the Commission addressed in its October 1996 order the hostifii that this licensee had demonstrated over the course.. of years with regard to employees missg safety concerns. If that order has served its intended purpose, as the Commission apparently now believes based on the briefing that took place less than two months As noted above (fn. I),

employees engaged in safety-related adivies can be expected to raise safety issues in the course of the performance of their assigned f'unctions. Any disparate treatment analysis would have to take this fact into account, as well as the equally obvious fact that not all protected activity will be looked upon by licensee management in.

identical fashion. For example, it might turn out that the employee suffering the adverse action had presented a claim to his superiors that the reactor was operating unsafely and, when it was rejected by the management, had renewed the claim before this Commission. In deciding whether that conduct had motivated the adverse adion, it would be quite beside the p i n t that similar action had not been taken against other employees who either had raised safety concerns of less impact upon the licensee's pocketbook or had readib accepted the management's response to the expressed concerns.

Thus, disparate treatment analyses may require a sophisticated determination respecting precisely which employees should be selected for comparison purposes. This is another reason why I believe that, in many Instances, such an analysis might not prove fruitful.

See March 9,1999 SRM regarding SECY-99-010.

agoa, it is difficult to quarrel with the review team's condusion that further enforcement action

\\

would have a punitive, rather than a remedial, flavor.

With the Commission's indulgence, I close this brief statement with a purely personal observation. I weIwmed the opportunity to return, if but for a very short time, to the agency in which I had served for the better part of two decades. And it was a particular pleasure to have renewed my association with Judge Bolhverk, a member of the Atomic Safety and Licensing Appeal Panel during my last years on that Panel, and to have become acquainted with the other members of the review team.

See March 9, 1999 SRM regarding SECY-99-010.

uNrrm STATES NUCLEAR REGULAmRY COMMISSION ATOMIC SAFETY AND UCENSlNG BOARD PANEL WASHINmo.c.-I March 31,1999 MEMORANDUM r0: Chalrman Jadcsofi

o. pard BOW* III h

&&&='

Acting Chlef Adminfstrative Judge

SUBJECT:

ClARIFlCAnON OF ENFORCEMENT DISCUSSION IN MARCH 10,1999 MUSTONE INDEPENDENT REVIEW -

TEAM REPORT As 8 result of the discussions heId with you and the C a m ~ o n regarding the Mardt 19, 1999 report of the MilIstone Independent Revkw Team (MtRf), it became dear that one aspect of the rekrt's c T 4 a n requ0aed further datificatian.

In add-b the enfo&ment options available to fhe Commission rehtiw to Office of Investigations Case Nos. 9EiQ02 and 97907, the diswssion in sadion UI.D.4 of the MlM report was confined to the questfon ofthe need for the 'mpasltion of a c'ntil penalty or an enforcement order 'in those cases. For fhe masons slated in that 6ection, we concluded that any such need W been obviated by the Northeast UiRes Qsbm (N11) rrtspolrse to the agency's Odober24,.I096 order as that response had been detailed at

a January 19,11999 Commission briefing. That section was not 'mfended to address tfte entirev separate question of the appropriateness of agency issuance of a nofice of violation (NOV) or a letter of reprimand to NU or any of the inbidual supervisors iyotved in those cases and, aunrdiiiy, 8hwId not be understood as remending against issuance of an NOV or letter af reprimand.

I cc: thmmsiinerDiaw Commission w D i i Commissioner McOaffigan Commissioner Merrifikld

Page 4 PATRICK CROSBY, Petitioner, v. UNITED STATES DEPARTMENT OFLABOR; HUGHES AIRCMFT COMPANY, Respondents NO. 93-70834 UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT 1995 U.S. App. LEXIS 9164 April 7,1995, Argued and Submitted, Pasadena, California April 20,1995, FILED NOTICE:

[*I]

THIS DISPOSITION IS NOT APPROPRIATE FOR PUBLICATION AND MAY NOT BE CITED TO OR BY THE COURTS OF THIS CIRCUIT EXCEPT AS PROVIDED BY THE 9TH CIR. R. 36-3.

SUBSEQUENT HISTORY: Reported in Table Case Format at: 53 E3d 338,1995 US.

App. LEXIS 22757.

PRIOR HISTORY: Petition to Review Decision of the Secretary of Labor. DOL No. 0973-2.

DISPOSITION: PETITION DENIED.

CASE

SUMMARY

PROCEDURAL POSTURE: Petitioner employee sought review of the decision of respondent, the United States Secretary of Labor, which a f f i e d the decision of the administrative law judge that petitioner was not discriminated against by respondent former employer, in violation of the whistleblower provisions of various federal environmental statutes.

OVERVIEW: Respondent, the United States Secretary of Labor (secretary), affirmed the decision of the administrative law judge that petitioner employee was not discriminated against by respondent former employer-in violation of the whistleblower provisions of the Clean Air Act, 42 U.S C.S. § 7622, the Toxic Substances Control Act, I5 U.S. C.S. $2622, and the Comprehensive Environmental Response, Compensation and Liability Act, 42 U.S.C.S. J 9610. Respondent secretary determined that the reasons for petitioneis termination were that his work was not good and that he was often insubordinate. Moreover, the final straw was petitioner's absolute refusal to work on a project because he did not like the protocol for the performance of that task The court aflirmed the denial of petitioner's claim because petitioner failed to meet his ultimate burden of proving to the trier of fact that he was the victim of intentional discrimination. The court found that the record was filled with evidence of incidents of petitioner's supervisors' dissatisfaction with his work, which began long before petitioner engaged in any of the protected activities at issue.

OUTCOME: The court affirmed the denial of petitioner employee's complaint that he was discriminated against by respondent former employer in violation of the whistleblower statutes of various federal environmental statutes. Petitioner failed to meet his ultimate burden of proving to the trier of fact that he was the victim of intentional discrimination. The record was filled with evidence of incidents of his supervisors' dissatisfaction with his work.

CORE TERMS: prima facie case, complain, continuance, discovery, nondiscriminatory, termination, terminated, hear CORE CONCEPTS -

Labor & Employment Law: Discrimination: Retaliation If an employee makes out a prima facie case of retaliatory discharge, the burden of production shifis to the employer to show that it has legitimate, nondiscriminatory reasons for its actions. If it does so, the production burden shifts back to the plaintiff to show that those reasons were pretextual. Once an employment discrimination case is tried, the only truly relevant question is whether the plaintiff has met his ultimate

Page 5 1995 U.S. App. LEXIS 9164,

• I burden of proving to the trier of fact that he is the victim of intentional discrimination Administrative Law: Judicial Review: Standards of Review: Abuse of Discretion Administrative Law: Judicial Review: Standards of Review: Arbitrary & Capricious Review Administrative Law: Judicial Review: Standards of Review: Substantial Evidence Review The United States Secretary of labor's decision is upheld unless it is unsupported by substantial evidence or is arbitrary, capricious, an abuse of discretion or otherwise not in accordance with the law.

COUNSEL: For PATRICK CROSBY, Petitioner.

Thomas M. Devine, Esq., Government Accountability Project, Washington, DC. Thomas Michael Devine, Government Accountability Project, Washington, DC.

For UNITED STATES DEPARTMENT OF M O R,

Respondent: Secretary-DOL, UNITED STATES DEPARTMENT OF LABOR, Washington, DC. Civil Division, Appellate Section, U.S. Department of Justice, Washington, DC. Solicitor-DOL, Esq., UNITED STATES DEPARTMENT OF LABOR, Washington, DC. Mary J. Rieser, Attorney, U.S. Department of Labor, Washington, DC.

For HUGHES AIRCRAFT COMPANY, Respondent:

Russell F. Sauer, Jr., Esq., LATHAM & WATKINS, Los Angeles, CA.

provisions of various federal environmental statutes. nl The Secretary ruled that Crosby had not shown that Hughes had [*2]te1m1nated him for protected rather than nondiscriminatory business reasons. We deny the petition nl Originally, Crosby brought his action under the provisions of the Clean Air Act, 42 U S C. J 7622, and the Toxic Substances Control Act, 15 US. C. $

2622. The Secretary granted his post-trial motion to amend his complaint to include a cause of action under the Comprehensive Environmental Response, Compensation and Liability Act, 42 US. C.

9610.

If an employee has made out a prima facie case of retaliatory discharge, the burden of production shifts to the employer to show that it had legitimate, nondiscriminatory reasons for its actions. See St. Mary's Honor Ctr. v. Hicks, U.S.,,113 S. Ct. 2742,2747, 125 L. Ed. 2d 407 (1993). If it does so, the production burden shifts back to the plaintiff to show that those reasons were pretextual. Id. More to the point for purposes of this appeal, once an employment discrimination case has been tried, as this one has been, the [*3]only truly relevant question is whether the plaintiff has met his ultimate burden of proving to the trier of fact that he was the victim of intentional discrimination. See id. at, 113 S. Ct. at 2747-48.

JUDGES: Before: McKAY, ** REINHARDT, and The Secretary's decision should be upheld unless it is FERNANDEZ, Circuit Judges unsupported by substantial evidence or is arbitrary, capricious, an abuse of discretion or otherwise not in

• • Hon. Monroe G. McKay, Senior United States accordance with the law. 5 U.S.C. $706(2)(A), (E)

Circuit Judge, United States Court of Appeals for the (Administrative Procedure Act); Lockert v. United States Tenth Circuit, sitting by designation.

Dep't of Labor, 867 F.2d 513, 516-1 7, 520 (9th Cir.

1989).

Here the Secretary determined that the reasons for Crosby's termination were that his work was not good OPINION: MEMORANDUM

• and he was often insubordinate. Moreover, the frnal straw was his absolute refusal to work on the PPUP project

• This disposition is not appropriate for publication because he did not like the protocol for the performance and may not be cited to or by the courts of this circuit of that task. We understand that he sought to retract the except as provided by Ninth Circuit Rule 36-3.

refusal; alas, the decision had already been made.

Crosby does not contend that the actual working conditions related to the PPUP project were unsafe or unhealthy. "Employees have no protection... for Patrick Crosby appeals the Secretary of Labor's refusing to work simply because they believe another adoption of an administrative law judge's recommended method, technique, procedure or equipment would be decision and order to the effect that Crosby was not better[*4] or more effective." Pensyl v. Catalytic, Inc.,

discriminated against by his former employer, Hughes Case No. 83-ERA-2, at 8 (Sec. Dec. Jan. 13,1984).

Aircraft Company, in violation of the whistleblower When an employee's refusal to work does not meet the

Page 6 1995 U.S. App. LEXIS 9164,

• Pensyl test, an employer may legitimately terminate the employee. Wilson v. Bechtel Constr., Inc., Case No. 86-ERA-34, at 12 (Sec. Dec. Jan. 9, 1988). The record is filled with evidence of incidents of Crosby's supervisors' dissatisfaction with his work, which began long before he engaged in any protected activities at issue here. From the very beginning of his work for Hughes he resisted completing assignments given to him, refbed to work on certain projects and even refused to pass on information to those who were brought in to complete the projects.

Finally, he was asked to perform work on PUP. His reaction was characteristic. He objected to the whole thing and finally said he would not work on the project at all. In short, there is evidence that Crosby fairly bristled with antagonism, complaints, foot dragging, insubordination, and hctiousness. The ALJ and the Secretary decided that his termination was based upon that. There is substantial evidence to support the decision.

It is noteworthy that the individuals who[*5] terminated Crosby did not even know of most of his alleged protected activity. While they did hear him complain about PPUP, they did not understand that he was complaining about a possible environmental problem related to a gas detector system if PPUP were used with that system What they did understand was that Crosby was, once again, refusing to do work that he was directed to do. The Secretary did not err when he found that Crosby was discharged for proper reasons. n2 n2 The parties spill much ink over whether Crosby spelled out a prima facie case. We, of course, recognize that a prima facie case is the first step in a trial of this kind. However, given the ultimate determination, there is no need for us to delve into the intricacies of prima facie case building.

Crosby, however, complains of the procedures used to reach a decision in this case. He says that he was entitled to a continuance because certain discovery was delivered late. But though that continuance was denied him, after two days of hearings[*6] the proceeding was adjourned for five weeks. Thus, he effectively got his continuance anyway. He also asked that adverse inferences be drawn against Hughes because of the lateness of the discovery and because Hughes asserted a privilege as to some discovery which was sought. But the issue of sanctions is left to the discretion of the ALJ, and we see no abuse of that discretion here. See 29 C.F.R. J 18.6(4(2)@).

Moreover, it is not appropriate to draw adverse inferences from the failure to produce documents protected by the attorney-client and work product privileges. See Wigmore on Evidence 8 29 1 (rev. 1979).

Crosby fiuther complains that he did not get to examine certain subpoenaed witnesses after the district court refused to enforce a subpoena for them. He said that adverse inferences should have been drawn, but the ALJ determined that their testimony would have been immaterial. Moreover, Crosby did have an opportunity to examine the officials who actually frred him. We see no reversible error.

Finally, Crosby complains that certain offers of proof were improperly relied upon. Those were made when the ALJ refused to hear testimony fiom certain Hughes witnesses and[*7] allowed Hughes to protect the record by stating what the witnesses' testimony would have been. The ALJ did not rely upon the offers at all. While the Secretary did refer to them, those occasional references were not necessary to the final decision and were accompanied by references to proper evidentmy matter. We are unable to say that Crosby's substantial rights were affected by those stray, though improper, references. See 29 C.F.R. J 18.103.

PETITION DENIED.

134 F.3d 372 (Table)

Unpublished Disposition Page 1 (Cite as: 134 F.3d 372, 1998 WL 25003 (6th Cir.))

C 7

NOTICE: THIS IS AN UNPUBL;ISHED OPINION.

m e Court's decision is referenced in a "Table of Decisions Without Reported Opinions" appearing in the Federal Reporter. Use FI CTA6 Rule 28 and FI CTA6 IOP 206 for rules regarding the citation of unpublished opinions.)

United States Court of Appeals, Sixth Circuit.

TENNESSEE V-Y AUTHORllY, Petitioner,

v.

Randolph FRADY, United States Department of Labor, Respondents.

No. 96-3831.

Jan. 12, 1998.

Before:

RYAN, SUHRHEINRICH, and COLE, Circuit Judges.

PER CURTAM.

• • 1 This appeal arises from claims by Randolph Frady under the whistleblower protection provision of the Energy Reorganization Act of 1974(ERA), as amended, 42 U.S.C. 5 5851 (1988), which prohibits licensees of the Nuclear Regulatory Commission (NRC) from discriminating against employees who engage in protected activity, such as identifying nuclear safety concerns or making complaints under the ERA. Pursuant to the ERA, Plaintiff Frady fded complaints with the U.S. Department of Labor 1

(DOL), alleging that his non-selection for fourteen different pdsitions was the result of unlawful retaliation for his protected activities while working as a nuclear inspector for Defendant Tennessee Valley Authority (TVA).

The case ultimately reached the Secretary of Labor (hereinafter Secretary

), who found for plaintiff with regard to three of the fourteen allegations.

Petitioner TVA appeals the Secretary's decision for Plaintiff on those three allegations.

The issues raised by Petitioner on. appeal ask' whether "the Secretary-was arbitrary and capricious in disregarding the A W ' s crediiity determinations,"

and whether his "decision was supported by substantial evidence."

We find that the Secretary's decision with regard to the three contested allegations is not supported by substantial evidence.

We, therefore, REVERSE that decision.

I. Facts Plaintiff Frady was employed by TVA from 1978 until 1992. From 1983 on, he worked as a nuclear inspector at the Sequoyah and Watts Bar nuclear plants. While working as an inspector, he raised safety concerns with the NRC and TVA h g e m e n t on several occasions.

In December 1990, Frady received notice that he would be terminated due to a reduction in force.

In response, Frady filed a complaint under the ERA. The complaint resulted in a settlement agreement which extended Frady's employment with TVA until January 1992. As part of that agreement, Frady was placed in the Employee Transition Program from June 1991 until his termination.

The program allowed him to seek a new position within TVA, which he did. ' However, Frady was not selected for any of the positions he applied for, and he filed ERA complaints challenging these non-selections.

After an investigation by the DOL's Wage and Hour Division found no merit to Frady's complaints, he filed a request for a hearing. An admhktrative law judge (hereinafter AU), charged with making recommendations to the Secretary, conducted the hearing and thereafter dismissed eight of the fourteen allegations upon TVA's motion for summary judgment.

The AU issued a written opinion discussing the remaining six allegations and recommended that they dl be decided in TVA's favor.

The Secretary adopted the A I J ' s recommendations concerning the eight dismissed allegations and three of the six allegations decided on the merits, but found for Frady on the remaining three allegations, which are the only ones contested here.

While on remand to the ALJ for determination of Plaintiffs remedy, the parties reached agreement on the appropriate remedy, contingent upon this appeal.

The resulting "Joint Stipulation" was recommended for approval by the ALJ, and the Administrative Review Board of the DOL issued an order approving it.

• • 2 Two of the three contested allegations concern Frady's application for machi&t'~ee positions at both the Watts Bar and Sequoyah nuclear plants, as we11 as for a steamfitter trainee position at Sequoyah.

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(Cite as: 134 F3d 372, 1998 WL 25003, **2 (6th Cir.))

Page 2 Applicants for each of these three positions were considered by a different three-person committee, consisting of a TVA representative, a member of the applicable union, and Kevin Green, a human resources manager for'TVA. The TVA and union representatives were charged with ranking the applicants and making the hiring decisions, while Green was assigned to be a faditator.

Each of the committees ranked Frady below the applicants who were ultimately selected. The third contested allegation concerns Frady's application for a quality control inspector position at the Sequoyah facility.

Shortly after the vacancy for this position was announced, a staffing study conducted by an outside consultant recommended that s f f i g levels at the facility be reduced.

Roy Lumpkin, Frady's former supervisor and the supervisor for the open position, ultimately decided to cancel the vacancy without hiring anyone for it.

11. Applicable Law We review the Secretary's decision to ensure that it is not "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." Ohio v.

RuckeIshaus, 776 F.2d 1333, 1339 (6th Cir.1985)

(quoting 5 U.S.C.

6 706(2)(A)(Administrative Procedure Act)).

As part of our review, "we must determine whether [the decision] is supported by substantial evidence, which is 'such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.' " Moon v. Trampon Drivers, Znc., 836 F.2d 226, 229 (6th Ci.1987) (quoting Richardson v. Perales, 402 U.S. 389. 401 (1971)).

The substantial evidence standard requires us to consider evidence in the record that is conuary to the Secretary's findings and conclusions. Tel Daza C q.

v. Nan'onaILabor Relations Bd., 90 F.3d 1195,1198 (6th Ci. 1996).

Although the ALJ only recommends a decision, the tvidentiary support for the Secretary's conclusions "may be dimhished,

however, when the administrative law judge has drawn different conclusions."

National Labor Relations Bd. v.

Brm-Graves Lumber Co., 949 F.2d 194, 196-97 (6th Cir.1991).

In particular, this court "will not normally disturb the credibiity assessments of... an administrative law judge, who has observed the demeanor of the witnesses." Linon Microwave Cooking Pro&.

Div., Litton Sys., Znc.. 868 F.2d 854, 857 (6th Ci.1989) (reversing National Labor Relations Board, which declined to follow ALJ's recommendation to dismiss complaint) (iirnal quotes omitted); accord Gm-an v. Dept. of the Treasury, 714 F.2d 913, 915 (9th Cir.1983) (

"Specid deference 6 to be given the AL's credibiity judgments").

Given the conflicts in this case between the conclusions of the ALJ and the Secretary

, we must examine the record with particular scrutiny. Tel Data, 90F.3dat 1198.

• • 3 The law governing Frady's proof of his claims was carefully laid out by the Secretary:

a complainant... must first make a prima facie case of retaliatory action by the [defendant], by establishing that he engaged in protected'advity, that he was subject to adverse action, and that the

[defendant] was aware of the protected activity when it took the adverse action.

Additionally, a complainant must present evidence sufficient to raise the inference that the protected activity was the likely reason for the adverse action.

If a complainant succeeds in establishing the foregoing, the [defendant] must produce evidence of a legitimate, nondiscriminatory reason for the adverse action.

The complainant bears the ultimate burden of persuading that the [defendant's]

proffered reasons... are a

pretext for discrimination.

At all times, the complainant bears the burden of establishing by a

preponderance of the evidence that the adverse action was in retaliation for protected activity.

Frady

v. Tennessee Valley Authoriv, Nos.

92-ERA-19 & 92-ERA-34, slip op. at 5-6 (Secretary of Labor Oct. 23, 1995) (citations omitted)

(hereinafter Secretary's Opinion); accord Moon, 836 F.2d at 229. The Secretary went on to state that, as part of the establishment of a prima facie case, "Frady must establish that he was qualified for such position; that, despite his qualifications, he was rejected; and that TVA continued to s e 4 and/or select similarly qualified applicants. "

Secretary's Opinion at 18 (adopted from McDonnell Dougw Corp. v. Green, 411 U.S. 792, 802 (1973)).

The Secretary concluded that, for each of the three contested allegations, - Frady established all the elements of a prima facie case discussed above and met his ultimate burden of proving that TVA's proffered reasons for its personnel decisions were a pretext for retaliation.

111. Trainee Positions Two of the three contested allegations involve the machinist and steamfitter trainee positions.

The record contains little to support the 'Secretary's finding that Plaintiff established a prima facie case of Copr. Q West 2002 No Claim to Orig. U.S. Govt. Works

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(Cite as: 134 F.3d 372, 1998 WL 25003, **3 (6th Cir.))

Page 3 retaliation with regard to these positions.

As to the knowledge element of a prima facie case, we agree with the AW's fmding that there is no evidence that 7

members of the selection committees h e w about Plaintiff's protected activity, including his earlier ERA complaint. (J.A. at 73).

As to the inference element of a prima facie case, the Secretary found that Plaintiff "established an inference of retaliatory motive based on temporal proximity."

Secretary's Opinion at 24. Where adverse employment action follows rapidly after protected activity, common sense and case law allows an inference of a causal connection.

See Moon v. Trampon Drivers, Inc.,

836 F.2d 226, 229 (6th Cir.1987) (stating, in a case where the plaintiff was fired less than two weeks after making a complaint, that "the proximity in time between protected activity and adverse employment action may give rise to an inference of a causal connection"). However, because seven or eight months elapsed between Frady's most recent protected activity, namely the filing of the earlier ERA complaint, and the decisions by the selections committees, the Secretary's inference is a weak one.

FN11 FNI. The Secretary chose to determine temporal proximity based on Frady reaching a settlement agreement with TVA in June 1991, two or three months before his non-seIection by the cornmitfees.

We beIieve that the date of the complaint, January 1991, is the more appropriate date to use, because

1) unlike a settIement agreement, a complaint is clearly a protected activity under the ERA, and 2) common sense dictates that employees are much more likely to be retaliated against for filing a complaint against their employer than for resolving the dispute with their employer by reaching a settlement agreement.

• • 4 Even if we were to overlook the scarcity of evidence supporting the knowledge and inference elements of Plaintiffs prima facie case, we would still be forced to conclude that the Secretary's decision regarding the trainee positions was not supported by substantial evidence.

Assuming arguendo that Plaintiff established a prima facie case, Defendant must produce evidence of a

legitimate, non discriminatory reason for the non-selection. The Secretary conceded that Defendant met this burden of production by presenting testimony that the people selected for the trainee positions had qualifications superior to those of Plaintiff. Secretary's Opinion at

24. However, the Secretary found that Plaintiff met his ultimate burden of proving that this legitimate 4

reason was a pretext for discrimination.

The Secretary discussed several evidentiary reasons whi he reached this conclusion, id. at 26-31, but none of them amount to ibbstantid evidence.

The most direct reason cited by the Secretary was that he did "not find the testimony indicating that the selectees... were found by each committee to be better qualified than Frady based on their 'hands on' experience to be persuasive." Id. at 26. In reaching this conclusion, the Secretary did not give any deference, as required, to the AL's implicit finding that this testimony was credible.

Moreover, the Secretary substituted his judgment for thai of the selection committees at an inappropriate level of detail, when he determined that-Frady's experience using calibration tools and building a log home was equivdent to other applicants' experience with automobile engines and heating and air-conditioning equipment. Id. at 20-21.

The other reasons cited by the Secretary for his conclusion that Frady proved pretext are speculative at best.

For example, the Secretary concludes that "other candidates could have been 'primed' in advance to assist them in answering the standard questions that were asked af each applicant."

The Secretary bases this hypothesis solely on committee member Green's off-hand comment during his testimony that "I have no knowledge that [the candidate] was primed or anything." Id. at 27-28.

The Secretary also cites, as evidence of pretext, that eleven of the eighteen applicants selected by the committees were from outside TVA, despite a TVA policy of filling vacancies from within the ranks of TVA employees. Id. at 29. However, the Secretary fails to explain how discrimination against Frady can explain more than one of the eleven selections from outside TVA.

As further evidence of pretext, the Secretary 6t.s the fact that TVA "relied almost entirely on

[committee member] Green's.testimony concerning the relevant qualifications."

Id. at 30.

The Secretary concludes that this iqdicates that Green was less than honest when he indicated that he was a facilitator on the selection committees, rather than a decision maker.

Even if we ignore the problems with citing a defendant's strategy as evidence of.a witness's credibility, Defendant's reliance on Green's testimony about qualifications can be explained by the fact that Green was the personnel representative on the committees and was the only person to serve on all the relevant selection committees.

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(Cite as: 134 F.3d 372, 1998 WL 25003, *5 (6th Cir.))

• • S Finally, the Secretary cites evidence "that Frady was the subject of a considerable degree of animus from supervisory personnel... at TVA" Id. at 31.

However, the Secretary cites no evidence that the animus was clue to Frady's protected activity.

In fact, there is evidence pointing in the opposite direction.

For example, TVA employee Michael Miller, a witness vouched for by Frady, (J.A. at 492-93), attnited the animus from one supervisor to personality conflicts rather than Frady's.

whistleblowing. (J.A. at 662-4).

Without evidence that the animus was based on protected activity, the animus does not suggest retaliation for such activity.

We also note that one of the two decision makers on each selection committee was a union representative, rather than a representative of TVA. Frady never alleged, and the Secretary never found, that the there was any reason why the union representatives would discriminate against Frady.

Thus, it is significant that the TVA and union representatives ranked Frady at about the same level, as he concedes. (J.A. at 487).

This appears to us to be compelling evidence that the TVA representatives were not biased by Plaintiffs protected activity. Moreover, the fact that the union representatives gave Plaintiff a relatively low ranking indicates that they too believed there was a legitimate reason for not selecting him.

For all the reason discussed above, we conclude that the Secretary's decision regarding the machinist and st-tter trainee positions is not supported 'by substantial evidence.

IV. Quality Control Inspector Position One of the three contested allegations involves a quality control inspector position at the Sequoyah facility.

Unlike the trainee positions, this position was canceled rather than being filled by other applicants.

However, after Roy Lumpkin canceled the inspector vacancy, two inspectors "returned to their positions as nuclear inspectors at the Sequoyah plant pursuant to the terms of a settlement agreement."

Secretary's Opiion at 36.

The Secretary, therefore, 'conclude[dl that TVA, in effect, filled the announced nuclear inspector vacancy with similarly.qual5ed candidates," thus establishing one element of a prima facie case. Id.

Y We find, however, that this conclusion is not supported by subshtial evidence for a number of reasons.

First, the two inspectors returned to their positions almost a year after the vacancy was Page 4 canceled. Id. at 35 n. 26. Second, Roy Lumpkin,'

the manager who canceled the vacancy, moved to an unrelated position four months before the inspectors returned, (J.A. at 600). and was uninvolved in their return. Third, the two inspectors returned based on settlement agreements, whereas Plaintiff sought the position through regular application channels. [FN2]

For all these reasons, Plaintiff cannot show that he was treated any differently than similarly qualified candidates.

See White v. General Motors Cop.

Znc..

908 F.2d 669, 671 (10th Cir.1990) ("to maintain an action for wrongful discharge, Iplaintiffs] must demonstrate that they were treated differently because of their whistleblowing activity").

FN2.

Plaintiffs earlier settlement agreement guaranteed only that he would be placed in the Employee Transition Program.

• • 6 The Secretary also concludes that Plaintiff met the prima facie requirement of raising an inference that his protected activity was the likely reason for the adverse action, namely the vacancy cancellation.

The Secretary bases this conclusion on two factors.

One factor is the temporal proximity between the cancellation and Frady's protected activity.

Secretary's Opiion at 38.

However, as discussed with regard to the trainee positions, the Secretary's inference based on temporal proximity is a weak one, because seven months elapsed between Frady's earlier ERA complaint and the cancellation of the vacancy. 'The second factor cited by the Secretary is his "conc1u[sion] that Lumpkin strongly suspected, if he did not have certain knowledge, that Frady had applied for the position." Id. This is by no means a forgone conclusion, given that Lumpkin canceled the vacancy before he received the applications from Human Resources.

Yet the Secretary explicitly bases his conclusion on the following summary of Lumpkin's testimony:

"although &umpkin] pias unsure whether he had been told... that Frady had applied for the job, he was 'reasonably certain if

[Frady] wanted the inspector job at Sequoyah, he would have applied.' " Id. We fail to see how this testimony leads to the conclusion that Lumpkin strongly suspected or knew for sure that Frady had applied.

In summary, substantial evidence is lacking with regard to at least two elements of a prima facie case of retaliation involving the canceled inspector position.

Plaintiff cannot show that the canceled vacancy was filled with similarly qualified candidates, and the Secretary's finding that Plaintiff Copr. 0 West 2002 No Claim to Orig. U.S. Govt. Works

134 F.3d 372 (Table)

(Cite as: 134 F3d 372, 1998 WL 25003, **6 (6th Cir.))

successfully raised an inference of discrimination lacks adequate support.

We bnclude, therefore, that the Secretary's decision regarding the inspector position fails to meet the substantial evidence standard. In addition, we note that the consultant's study, which recommended a reduction in staff, appears to be the legitimate reason for' the cancellation, as Defendant contends. However, we need not reach this issue, because a defendant's obligation to proffer a legitimate reason for an adverse employment decision is not triggered until a prima facie case of dhhination is established, Moon v. Transpon Drivers, Inc., 836 F.2d 226, 229 Page 5 (6th Cir.1987), which Plaintiff failed to do here.

V. Conclusion The Secretary's decision for Plaintiff with regard to each of the three contested allegations is unsupported by substantial evidence.

We, therefore, REVERSE that deciion and VACATE the orders of the secretary and Administrative Review Board.

The Secretary's decision 'for Defendant regarding Plaintiffs other eleven alIegations is undisturbed.

END OF DOCUMENT Copr. Q West 2002 No Claim to Orig. U.S. Govt. Work

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Unpublished Disposition Page 11 (Cite as: 215 F.3d 1326, 2000 WL 712355 (6th Cir.(Ohio)))

NOTICE: THIS IS AN UNPUBLISHED areas on February 12, 1967. In January 1981, FNB 1

OPINION.

merged with Huntington and Lovas was promoted to Operations Manager, an officer position. As (The Court's decision is referenced in a "Table of Operations Manager, Lovas managed accounting Decisions Without Reported Opinionsw appearing in employees and created operational plans and audits.

the Federal Reporter. Use FI CTA6 Rule 28 and FI Lovas received consistent performance evaluations CTA6 IOP 206 for rules regarding the citation of of "meets expectations" throughout her employment unpublished opinions.)

at Huntington.

+

United States Court of Appeals, Sixth Circuit.

Following the 198 1 merger, Huntington transferred operations-related functions from the individual Marie A. LOVAS, Plaintiff-Appellant, bank branches to centralized centers, reducing the

v.

need for operations-related staff at each branch. In HUNl7NGTON NATIONAL BANK, Defendant-addition, computer systems reduced the need for Appellee.

processing staff at each branch. By 1991, the necessary operations' staff in the Burton office fell No. 99-3213.

from over a dozen employees to one--Lovas.

May 22,2000.

On Appeal from the United States District Court for the Northern District of Ohio.

Before NORRIS, MOORE, and COLE, Circuit Judges.

OPINION COLE, Circuit Judge.

• • 1 Plaintiff, Marie A. Lovas, was terminated in a reduction-in-force by the defendant, Huntington National Bank ("Huntington"). Lovas alleged that Huntington discriminated against her based on age and sex in violation of the Age Discrimination in Employment Act, 29 U.S.C. $ 621 et seq.; Title VII, 42 U.S.C. 5 2000(e) et seq.; Ohio Rev.Code 5

$41 12 and 4101.17 and alleged several breaches of Ohio contract and tort law. The district court granted summary judgment in favor of Huntington, finding that Lovas failed to establish a prima facie case of age or sex discrimination and also failed to show that Huntington's proffered reason for the termination wis pretextual. For the following reasons, we AFFIRM the district court's grant of summary judgment in favor of Huntington.

Lovas began working at First National Bank of Burton ("FNB")

in the bookkeeping and operations In 1991, William Hoag was assigned as City Executive for Huntington in Burton overseeing the five branches within Geauga County. Also in 1991, Hoag installed Charles Bixler as Manager of retail banking operations, supervising operations in the Huntington branches. Although Lovas frequently worked with Hoag, she reported directly to Bixler, who evaluated her performance.

In 1994, due to the reduction in operations-related work, Lovas was assigned the position of City Office Compliance OfficerIOperations Specialist in charge of reports for installment loans and the remaining operations' functions in the Burton office. On internal Huntington forms, Bixler designated Lovas's new position as a demotion.

Although Lovas's salary remained the same, her salary grade was lowered and she considered the new position a demotion. Hoag considered Lovas's new duties an alternative to eliminating her position.

In 1995, Huntington moved the installment loan compliance process from the Burton branch to a centralized center in Dover, Ohio. Huntington's removal of the compliance process eliminated the "city compliancen portion of Lovas's position, leaving only the "operations specialistn duties.

Huntington also instructed Hoag to reduce salary, advertising expenses, and charitable contributions within the Geauga County offices. As part of this reduction, Hoag entirely eliminated Lovas's "operations specialist" position due to a lack of work.

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(Cite as: 215 F.3d 1326, 2000 WL 712355, **1(6th Cir.(Ohio)))

• • 2 Hoag spoke with Human Resources representative Sandra Clarke about eliminating Lovas's position and indicated that he and Bixler would assume Lovas's remaining operations specialist duties. Although Hoag designated Lovas's position for elimination, the human resources department deemed both Lovas and Bixler as candidates for the reduction-in-force ("RIF")

because they were the employees involved in the operations' function of the bank.

Clarke, following the instructions of Huntington's vice-president of Human Resources, Cheri Webb, used Huntington's method of ranking employees competing for a particular position to determine which employee -would be terminated in the reduction. Clarke scored Lovas and Bixler in five performance categories, with the scores compiled from their two most recent performance evaluations. The five performance categories were assigned numbers based on information from the performance evaluations. Lovas's performance evaluations used in the analysis had been completed by Bixler prior to the RIF, and no other personnel information was used in the evaluation. After Clark completed the comparison process, Bixler received a score of 22 and Lovas received a score of 18.05.

On September 6, 1995, Clarke presented the results to Hoag, who made the final decision to terminate Lovas and transfer her remaining duties to himself, Bixler, and a temporary employee. Later that day, Hoag and Webb informed Lovas of her termination.

Lovas participated in a transition program offered by Huntington, but did not obtain a new position within the transition period. Lovas was officially terminated on March 6, 1995.

On April 4, 1996, Lovas filed a charge of discrimination with the Equal Employment Opportunity Commission. The EEOC issued a notice of right to sue on April 11, 1997. Lovas filed suit in federal court on July 8, 1997, alleging that Huntington: (1) violated the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C.

621 et seq.; (2) discriminated on the basis of sex in violation of Title VII, 42 U.S.C. 5 2000(e) ef seq.;

(3) discriminated on the basis of sex and age in violation of Ohio Rev.Code 4s 41001.17, 4112.02 and 41 12.99; and (4) violated Ohio law by breach of implied contract, promissory estoppel and infliction of emotional distress.

Page 12 Huntington moved for summary judgment on July 17, 1998. The district court granted Huntington's motion for summary judgment on January 29, 1999, finding that Lovas failed to establish a prima facie case of age discrimination under the ADEA and Ohio law or sex discrimination under Title VII and Ohio law. Pursuant to 28 U.S.C. 3 1367(c)(3), the district court dismissed Lovas's remaining state-law claims without prejudice. Lovas filed a timely notice of appeal.

We review de novo a district court's grant of summary judgment, using the same Rule 56(c) standard as the district court. See Godfedrun v.

Hess & Clark, Inc., 173 F.3d 365, 370-71 (6th Cir.1999). Under Rule 56(c), summary judgment is appropriate when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). In deciding the motion, a court must view the evidence and draw all reasonable inferences in favor of the nonmoving party. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). The moving party bears the initial burden of demonstrating the absence of a genuine issue of material fact. See Celotex Corp. v. Carrett, 477 U.S. 317, 323-24 (1986). If the moving par&

shows this absence, the nonmoving party must come forward with specific facti showing that there is a genuine issue for trial. See Matsushita, 475 U.S. at 587. Merely alleging the existence of a factual dispute is insufficient to defeat a summary judgment motion; rather, there must exist in the record a genuine issue of material fact. See Anderson v.

Liberty Lobby, Inc., 477 U.S. 242,247-50 (1986).

111.

• • 3 The McDonnell DouglasBurdine framework is applicable to claims brought under Title VII, the ADEA, and claims of discrimination under Ohio state law, Ohio Rev-Code 5s 4112.02 and 4112.99.

See Mitchell v. Toledo Hosp., 964 F.2d 577, 582 (6th Cir.1992) (applying McDonnell Douglas Cop.

v. Green, 41 1 U.S. 792 (1972) and Tam Dep 'Z of Community Agairs v. Burdine, 450 U.S. 248, 256 (1981)); Linle Forrest Med. Ctr. of Akron v. Ohio Civil Rights Comm'n, 575 ~. ~. 2 a 1164, 1167-68 (Ohio 1991) (same). Thus, the plaintiff's ADEA, Copr. O West 2002 No Claim to Orig. U.S. Govt. Works

215 F.3d 1326 (Table)

(Cite as: 215 F.3d 1326, 2000 WL 712355, **3 (6th Cir.(Ohio)))

Page 13 Title W and Ohio state-law discrimination claims all arising from the same set of facts, can be properly analyzed together.

"A plaintiff who brings a claim under the [ADEA]

must prove that age was a determining factor in the adverse employment action taken against him or her. " See Phelps v. Yale Sec., Inc., 986 F.2d 1020, 1023 (6th Cir.1993) (citing Kraus v.

Sobel Corrugared Containers, Znc., 915 F.2d 227, 229-30 (6th Cir.1990)). To establish a prima facie case of age discrjmination the plaintiff must show by a preponderance of the evidence that (1) she was a member of the protected class, (2) she was subjected to an adverse employment action, (3) she was qualified for a patticular position, and (4) she was replaced by a younger person. See Godfredson, 173 F.3d at 365; see aLro O'Connor v. Consolidated Coin Caterers Corp., 517 U.S. 308, 311 (1996);

Skalka v. Femld Envtl. Restoration Mgmt. Cop.,

178 F.3d 414, 420 (6th Cir.1999). When the employee is discharged in the context of a RIF, however, the final requirement of a prima facie case is modified because the employee is not, in fact, replaced. See Godfredson, 173 F.3d at 365 (citing Scon v. Goodyear Tire & Rubber Co., 160 F.2d 1121, 1126 (6th Cir.1991)). Instead, the fourth element of the prima facie case requires that a plaintiff discharged due to a RIF offer some "direct, circumstantial, or statistical evidence tending to indicate that the employer singled out the plaintiff for discharge for impermissible reasons." Skalka, 178 F.3d at 420 (quoting Barnes v. GenCorp. Inc.,

896 F.2d 1457, 1465 (6th Cir.1990)).

In the present case, the district court correctly determined that Lovas failed to establish the fourth element of a prima facie case of age discrimination.

Lovas contends that as "the only forty-eight year old officerw who was demoted in 1994 and later terminated in 1995, she established the fourth element of the prima facie case. Huntington's evidence, however, shows that five employees older than Lovas in the bank's Geauga County branches were retained in the RIF. Thus, the fact that Lovas was the "only forty-eight year old officerw demoted or terminated does not establish that she was singled out because of her age when placed in context.

Lovas does not dispute that older employees were retained, but contends that the isolated nature of her termination is sufficient to establish a prima facie case. The evidence, however, also shows that the operations' positions within the Geauga County offices were declining. Moreover, Huntington eliminated Lovas's city compliance duties. Lovas's isolated position was due to the reduction in operations-related duties withim the Huntington branches. Lovas has offered no evidence showing that the elimination of her operations' duties was motivated in part by age or that she was singled out for impermissible reasons. Although Lovas contends that Hoag made derogatory comments about her age, we find no reference to ageist comments by Hoag in our review of the record. Further, the comments noted by the district court-such as "your pension will be jeopardized if you don't shape up"-

do not establish circumstantial evidence that age motivated Lovas's termination or that.she was singled out for termination. Accordingly, the district court correctly found that Lovas failed to establish a prima facie case of age discrimination under the ADEA.

• • 4 Huntington contends that even if Lovas established a prima facie case of age discrimination, she failed to show that Huntington's non-discriminatory reason for the termination was pretextual. We agree. Once a plaintiff has established a prima facie case of age or sex discrimination, the burden of production shifts to the defendant to articulate legitimate, nondiscriminatory reasons for the adverse employment action. See Kline v. Tennessee Valley Authority, 128 F.3d 337, 346 (6th Cir.1998).

Huntington contends that the employee comparison process administered by the human resources department determined the employee to be terminated after Hoag eliminated Lovas's position.

Because Huntington has set forth a legitimate, non-discriminatory reason, Lovas must show that their proffered reasons are pretextual. See Saint Mary's Honor Czr. v. Hicks, 509 U.S. 502, 511 (1993).

There are three ways a plaintiff may establish that a proffered explanation is pretextual. See Kline, 128 F.3d at 346. A plaintiff can establish pretext by showing by a preponderance of the evidence that the given reason is factually false, by showing that the stated reason is insufficient to explain the adverse employment action or finally, by showing that the stated reason was not the actual reason. See id. In cases in which the employer's explanation is Copr. O West 2002 No Claim to Orig. U.S. Govt. Works

215 F.3d 1326 (Table)

(Cite as: 215 F.3d 1326, 2000 WL 712355, **4 (6th Cir.(Ohio)))

Page 14 challenged as not being the actual or true reason for the adverse action, the plaintiff cannot rely on evidence used to make a prima facie showing, but must introduce

'additional evidence of discrimination. See Manzer v. Diamond Shamrock Chemicals Co.. 29 F.3d 1078, 1084 (6th Cir. 1994).

Lovas failed to show that Huntington's employee comparison process was not the motivating cause of her termination. Lovas contends that Hoag's alleged derogatory statements and the 1993 memorandum indicate that Huntington's reason was pretextual.

Although Hoag's alleged comments are indicative of distinctions on the basis of sex, and the memorandum indicates that Hoag clearly disapproved of Lovas's past performance, the evidence does not support that the comparison process was pretextual. The memorandum did not address Lovas's sex or age and only discussed Lovas's failure to report to work during a 1993 weather-related outage and potential discipline for the infraction. Moreover, the comments and memorandum lack any temporal proximity to the steady reduction in operations' personnel and Huntington's elimination of Lovas's compliance duties. Lovas has not shown that Huntington's elimination of her position and its employee comparison process were false, or motivated by age.

Lovas also contends that Hoag's statements to Clarke that he and Bixler would assume Lovas's duties constituted bias in the RIF comparison process. Lovas argues that her performance evaluations used in the ranking process were conducted by Bixler, her supervisor, and were inherently biased. In addition, the process was tainted because there was no interview or other evaluation of the employees' skills. Although it is troubling that Hoag appears to have assumed that Lovas would be terminated prior to the human resource process of eliminating her position, it remains unchallenged that the decision to eliminate Lovas's compliance officer duties was not made by Hoag.

• • 5 In addition, Huntington's human resource department determined the candidates for the RIF based upon the position eliminated. Hoag's statements assuming that the position e l i t i o n meant that Lovas would be terminated did not alter Huntington's formulaic approach to comparing employees and determining who would be terminated in the RIF. Huntington folIowed internal procedures to determine the candidates for termination and the comparison of those candidates.

Lovas has not shown that the employee comparison process was influenced or controlled by Hoag's input or past disciplinary action.

Lovas's evaluations used in the comparison process were completed by Bixler prior to the RIF and no evidence shows that the evaluations were biased.

Finally, as the district court noted, interviews are not required in RIF terminations. See Kline, 128 F.3d at 351. Huntington has also established that the human resources employee, Clarke, had limited discretion to assign scores based on information in Bixler's and Lovas's employee evaluations. The scores assigned to each employee were determined by current job descriptions and performance evaluations. The employee comparison process has not been shown to be false or tainted.

Without further evidence showing that the RIF was not the true reason for Lovas's termination, the district court correctly determined that Lovas failed to rebut Huntington's proffered reasons for her termination.

Lovas claims that she was terminated because of her sex in violation of Title W. A prima facie case of sex discrimination under Title W requires a plaintiff to demonstrate by a preponderance of the evidence that (1) she was a member of a protected class, (2) she was qualified for the position, (3) she suffered an adverse employment action, and (4) she was replaced by a person outside of the protected class. See Mitchell, 964 F.2d at 582-83 (citing McDonnell Douglas, 411 U.S. at 802). "[A]

plaintiff can also make out a prima facie case by showing... that a comparable non-protected person was treated better," in a claim of disparate treatment. Mirehell, 964 F.2d at 582; see also Hollins v. Atlantic Co., Inc., 188 F.3d 652, 658 (6th Cir.1999).

In a RIF, this court stated that an employee is not replaced when their duties are assigned to others doing related work in addition to the plaintiff's duties. See Barnes, 896 F.2d at 1465. rnl] In the present case, Lovas contends that no other male was demoted and terminated. "To prevail on a claim of disparate treatment a plaintiff must show that her employer intentionally discriminated against her."

Copr. O West 2002 No Claim to Orig. U.S. Govt. Works

215 F.3d 1326 (Table)

(Cite as: 215 F.3d 1326, 2000 WL 712355, **5 (6th Cir.(Ohio)))

Page 15 Lynch v. Freeman, 817 F.2d 380 (6th Cir.1987);

see also Huguley v. General Motors Cop., 52 F.3d 1364, 1370 (6th Cir. 1995). Intent can be established by proof of "actions taken by the employer from which one can infer, if such actions remain unexplained, that it i s more likely than not that such actions were 'based on a discriminatory criterion illegal under the Act." ' Furnco Constr. Cop. v.

Waters, 438 U.S. 567, 576 (1978) (quoting International Brotherhood of Teamsters v. United States, 431 U.S. 324, 358 (1977)); see aLro Shah v.

General Elec. Co., 816 F.2d 264, 267 (6th Cir. 1987) (stating that proof of discriminatory motive can be inferred from differences in treatment). Accordingly, Lovas must show that similarly situated individuals were treated differently, producing evidence that the comparable employees are similarly situated with regard to relevant aspects of employment. See Ercegovich v.

Goodyear lire & Rubber Co., 154 F.3d 344, 352 (6th Cir.1998) (discussing similarly situated in context of employment and position).

FNI. In Barnes, this court explained:

A work force reduction situation occurs when business considerations cause an employer to eliminate one or more positions within the company. An employee is not eliminated as part of work force reduction when he or she is replaced after his or her discharge. However, a person is not replaced when another employee is assigned to perform the plaintiffs duties in addition to other duties, or when the work is redistributed among other existing employees already performing related work. A person is replaced only when another employee is hired or reassigned to perform inference that the workforce reduction was not the reason for the discharge. See id. at 1464-65.

• • 6 Because Lovas has failed to rebut Huntington's proffered reasons for her termination, however, we need not reach Lovas's prima facie case of sex discrimination. See Kline, 128 F.3d at 346.

Assuming that Lovas established a prima facie case of sex discrimination, she has failed to show that Huntington's reasons were not the actual or true reasons for her termination. The alleged comments by Hoag--"there's a woman for you" and "what do you expect from a womanw--do not demonstrate that Huntington's reduction of operations' personnel and comparison process were not the reasons for Lovas's termination.

In

addition, Hoag's memorandum does not refer to Lovas's sex at all, but merely addresses a potential disciplinary action arising from a particular incident three years prior to Lovas's dismissal.

Moreover, Hoag's memorandum and comments are not temporally connected to the elimination of Lovas's position in the RIF or Huntington's comparison process.

Because Lovas has failed to demonstrate that Huntington's reasons were not the actual or true reasons for the termination, we affii the district court's grant of summary judgment on Lovas's sex discrimination claim in favor of Huntington.

For the foregoing reasons, we AFFIRM the d i i c t court's grant of summary judgment in favor of Huntington on Lovas's discrimination claims.

the duties.

8% F.2d at 1465. The court required direct, 215 F.3d 1326 (Table), 2000 W L 712355 (6th circumstantial or statistical evidence in a RIF Cir.(Ohio)), Unpublished Disposition termination because without such evidence the plaiiffs prima facie case has not raised an END OF DOCUMENT Copr. O West 2002 No Claim to Orig. U.S. Govt. Works

Page 12 MARTHA J. PETERSON, Plaintiff-Appellant, v. DIALYSIS CLINIC, INC., Defendant-Appellee.

NO. 96-6093 UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT 1997 U.S. App. LEXIS 26254 September 18,1997, Filed NOTICE:

[*I] NOT RECOMMENDED FOR FULGTEXT PUBLICATION. SIXTH CIRCUIT RULE 24 LIMITS CITATION TO SPECIFIC SITUATIONS. PLEASE SEE RULE 24 BEFORE CITING IN A PROCEEDING IN A COURT IN THE SIXTH CIRCUIT. IF CITED, A COPY MUST BE SERVED ON OTHER PARTIES AND THE COURT. THIS NOTICE IS TO BE PROMINENTLY DISPLAYED IF THIS DECISION IS REPRODUCED.

SUBSEQUENT HISTORY: Reported in Table Case Format at: 124 F.3d 199,1997 US.

App. LEXlS 30684.

PRIOR HISTORY: On Appeal fiom the United States District Court for the Eastern District of Tennessee.

DISPOSITION: AFFIRMED.

CASE

SUMMARY

PROCEDURAL POSTURE: Plaintiff employee filed an action against defendant employer in the United States District Court for the Eastern District of Tennessee alleging she was fired in retaliation for a decision to testify against the employer in an unrelated matter in violation of 42 U.S.C.S. 5s 2000e-2000e-17. The employer filed a motion for summary judgment, which was granted. The employee appealed.

OVERm The district court concluded the employee did not establish a prima facie case of unlawful retaliation or prove that the employer's proffered reason for the discharge was a pretext for such retaliation. The employee claimed that there was su&cient evidence to permit a reasonablejury to find the elements of a prima facie case. The court affirmed the judgment. To establish a prima facie case of unlawfid retaliation the employee had to prove that she was engaged in a protected activity, the protected activity was known to the employer, she was subjected to an adverse employment action, and there was a causal connection between the protected activity and the adverse employment action. The court found that a reasonable jury could have supported a conclusion of a pretext but that because the employer had no knowledge of the protected activity, an inference of unlawful retaliation where the basic question of knowledge itself was in doubt could not have been made.

There was no evidence that the employer knew of the employee's protected activity. Thus, the employee failed to make out a prima facie case sufficient to create a jury question as to the ultimate fact of un1awfi.d retaliation.

OUTCOME: The judgment of the district court granting the employer's motion for surmnary judgment was a&rmed.

CORE TERMS: retaliation, protected activity, prima facie case, appointment, pretext, nurse, summary judgment, reasonable jury, permission, quit, discharged, fired, proffered reason, direct evidence, agreed to testify, causal connection, deposition, friendship, vacation, attend, circumstantial evidence, race discrimination, produced evidence, preponderance, favorable, paradigm, termination, suspension, scheduled, afternoon CORE CONCEPTS -

Civil Procedure: Summary Judgment: Summary Judgment Standard Civil Procedure: Appeals: Standards of Review: De Novo Review The appellate court reviews a district court's grant of summary judgment de novo, examining the record and drawing all inferences in the light most favorable to the non-moving party.

Constitutional Law: Civil Rights Enforcement: Civil Rights Act of 1 9 64 Labor & Employment Law: Discrimination: Title VII

1997 U.S. App.

In order to establish a prima facie case of unlawfid retaliation under Title W of the Civil Rights Act of 1964, a plaintiff must prove, by a preponderance of the evidence that: 1) she engaged in a protected activity; 2) this protected activity was lcnown to defendant; 3) she was thereafter subjected to an adverse employment action; and 4) there was a causal connection between the protected activity and the adverse employment action.

The central inquiry in evaluating whether the plaintiff has met her initial burden is whether the circumstantial evidence presented is sufficient to create an inference of unlawful retaliation.

Labor & Employment Law: Discrimination: Disparate Treatment Once the plaintiff establishes a prima facie case, the burden shifts to the employer to articulate a legitimate, nondiscriminatory reason -for the challenged employment action. The plaintiff then has the opportunity to prove by a preponderance of the evidence that the legitimate reasons offered by the defendant were not its true reasons, but were a pretext for unlawfid retaliation.

Evidence sufficient to permit a reasonable jury to conclude that the defendant's proffered reasons were not its true reasons, together with evidence sufficient to establish the elements of the prima facie case, is

&cient to create a jury question as to the "ultimate factn of unlawful retaliation.

COUNSEL: For MARTHA J. PETERSON, Plaintiff -

Appellant: Robert D. Bradshaw, Chattanooga, TN.

For DIALYSIS CLINIC INC, Defendant - Appellee: Tim K. Garrett, Bass, Berry & Sims, Nashville, TN.

JUDGES: BEFORE: NELSON and RYAN, Circuit Judges; QUIST, District Judge. *

• The Honorable Gordon J. Quist, United States District Judge for the Western District of Michigan, sitting by designation.

OPINIONBY: RYAN OPINION: RYAN, Circuit Judge. Martha J. Peterson filed suit against Dialysis Clinic, Inc. (DCI), pursuant to 42 U.S.C. §$2000e-2000e-17, Title W of the Civil Rights Act of 1964, alleging that DCI fired her in retaliation for her decision to testify on behalf of a coworker who had fded a charge of race discrimination.

DCI moved for and was granted summary judgment. [*2]

The district court concluded that Peterson could neither establish a prima facie case of u n l a a retaliation nor Page 13

, LEXIS 26254,

• prove that DCI's proffered reason for the discharge was a pretext for such retaliation. We agree that Peterson has not produced evidence sufficient to permit a reasonable jury to find the elements of the prima facie case.

Accordingly, we will affirm.

DCI is a not-for-profit corporation which provides dialysis treatment at multiple locations. Pam Bethune is the administrator of several DCI facilities, including the "Broad Street" facility in Chattanooga, Tennessee.

Mickey Chumley is the head nurse at the Broad Street location. As head nurse, Chumley supervises daily operations and reports to Bethune.

Peterson, a registered nurse, was hired by DCI in June 1993. After completing training, Peterson was assigned to the Broad Street facility. According to Peterson, almost immediately after she began working at Broad Street, Chumley made racially hostile remarks regarding a blacknurse, Sharon Parks. Peterson stated in her deposition that Chumley indicated that Bethune had "gotten rid of' or "run off" two other black employees.

In October 1993, Parks filed[*3] a charge of race discrimination in response to a suspension. According to Parks, she asked Peterson to testify on her behalf several times, beginning in November 1993. Both Peterson and Parks agree that it was sometime in Deceniber when Peterson agreed to testify for Parks.

Explaining her decision to testify, Peterson stated that, although she had initially complained to Chumley about Parks's attitude and work ethic, she eventually came to think of Parks as a good worker and a fiiend. Peterson added that she had been goaded into complaining about Parks by Chdey. According to Peterson, Chumley was aware that Peterson and Parks became friends, and Chumley was "fiuious" about the friendship.

On January 2 1, 1994, Peterson was permitted to take time off from work in order to attend a meeting regarding Peterson's plan to donate a kidney to her sister. After returning to work that same day, Peterson told Chumley that she had a second appointment with a transplant coordinator at 1:00 p.m, on February 23,1994. Peterson asked Chumley for permission to attend the appointment, and offered to give up one of her vacation days, scheduled for February 18-22,1994. Accordmg to Peterson, Chdey[*4] told her that she did not need to give up a day of vacation, and that they would "work it out" so that Peterson could keep the appointment.

1997 U.S. App.

Chumley testified, however, that she subsequently told Peterson that, although Peterson could keep her scheduled vacation, she would have to reschedule her February 23 appointment because the Broad Street facility was experiencing uneqected staffing shortages.

Peterson does not dispute that Chumley made some statement to this effect, but Peterson contends that, in context, Chumley appeared to be joking.

Peterson and Chumley apparently continued to have B c u l t y communicating about the February 23 appointment. According to Peterson, although Chumley made vague statements suggesting that Peterson's appointment was an inconvenience, Chumley never told Peterson that she could not keep her appointment or that she would be fired if she did so. Chumley testified in h a deposition, however, that she made it clear to Peterson that Peterson did not have permission to leave, and that, if Peterson left, she would not have a job when she returned. Peterson left for her appointment sometime shortly before 1:00 p.m. After consulting with Bethune, Chumley[*5] fired Peterson when Peterson returned to work later that afternoon.

Peterson went immediately to Bethune's office to dispute her termbation. Bethune agreed to place Peterson on suspension and conduct an investigation.

Upon review, however, Bethune concluded that Peterson had left work without permission and she informed Peterson that her termination would not be rescinded.

Louise Roberson, a nurse who works at the DCI facility where Bethune's office is located, testified in her deposition that she was asked at 8:40 a.m., on February 23,1994, by the head nurse at her facility, if she would be able to fill in at the Broad Street facility the following week Roberson explained that she asked, "Who's quit now?" because Broad Street "has had a bad reputation for many years of not being able to keep staff." Roberson was told that "Martha [Peterson]" had quit. When Peterson arrived to speak to Bethune later that afternoon, Roberson told Peterson that she was sorry to hear that Peterson had quit. Roberson testified that Peterson told her that she had not quit, but, rather, had been fired.

On July 12,1995, Peterson filed a complaint, pursuant to 42 U.S.C. $5 2000e-2000e-17, [*6] alleging that she had been discharged in retaliation for agreeing to testify on behalf of Parks. On April 22,1996, DCI moved for summary judgment, arguing that Peterson could neither establish a prima facie case nor prove that DCI's reason for firing Peterson was a pretext for unlawful retaliation.

With specific regard to the prima facie case, DCI argued that Peterson could not prove that DCI h e w of Page 14 LEXS 26254,

• Peterson's intent to testify for Parks, or that there was a connection between Peterson's protected activity and her discharge.

Both Bethune and Chumley denied having knowledge of Peterson's decision to testify on behalf of Parks.

Peterson herself acknowledged that she had not shared her decision with any representative of DCI, because she "did not think that [it] was in [her] best interests" to do so. Parks likewise testified that she did not tell anyone about Peterson's decision.

However, both Parks and Peterson submitted &davits in which they averred that they had discussed Peterson's decision to testify "on several occasions in the breakroom at DCI's Broad Street facility." They explained that the employees at Broad Street were prone to gossip, and that "once one[*7] employee learned information about another employee, it was repeated until all of the elnployees knew about it." Another nurse, Connie Bedwell, who was herself discharged for excessive absenteeism, submitted an affidavit in which she averred that she overheard two other employees discussing the fact "that Martha Peterson was going to support [Parks's]

complaint with her testimony."

On May 16,1996, the district court concluded that Peterson had failed to establish a prima facie case of udawfid retaliation under Title VII, and it granted DCI's motion for summary judgment. Specifically, the district court concluded that Peterson had failed to submit evidence sufficient to establish either that DCI knew she had engaged in protected activity or that there was a causal connection between her protected activity and her discharge. The district court also concluded that Peterson could not succeed at the pretext stage because "she has utterly failed to produce evidence that DCI was motivated to fire her for her involvement with Parks rather than because of her Ieaving the facility without permissio~~"

Peterson filed a motion for reconsideration, relying heavily on Roberson's testimony, [*8] which the district court had not discussed in its opinion. The district court denied Peterson's motion, stating that she had failed to present any evidence, direct or indirect, that DCI knew that she had agreed to testify on Parks's behalf.

Peterson argues that the district court erred when it granted DCI's motion for summary judgment.

Specifically, Peterson argues that the totality of the circumstances, including: the "gossip$ work environment; Bedwell's testimony; Chumley's hostility to Peterson's fiendship with Parks, Chumley's awareness

1997 U.S. App.

Page 15 L.EXIS 26254,

• that Peterson knew of racial hostility directed at Parks; Peterson's otherwise unblemished work record; the timing of Peterson's discharge; and Roberson's testimony, is sufficient to permit a reasonable jury to conclude that DCI h e w of Peterson's decision to testify and that DCI discharged Peterson because of this knowledge. We disagree.

This court "review[s] a district c o d s grant of s

u m

judgment de novo, examining the record and drawing all inferences in the light most favorable to the non-moving party." Woythal v. Tex-Tenn Corp., 112 F.3d 243, 245-46 (6th Cir. 1997).

In order to establish a prima facie case[*9] of udawfid retaliation under Title W, a plaintiff must prove, by a preponderance of the evidence that: 1) she engaged in a protected activiv, 2) this protected activity was known to defendant; 3) she was thereafter subjected to an adverse employment action; and 4) there was a causal connection between the protected activity and the adverse employment action. Caniiia v. Yellow Freight Sys., Inc.,

903 F.2d 1064, I066 (6th Cir. 1990). The "central inquiry in evaluating whether the plaintiff has met per]

initial burden is whether the circumstantial evidence presented is sufficient to create an inference" of unlawful retaliation. Shah v. General Elec. Co., 816 F.2d 264, 268 (6th Cir. 1987); see EEOC v. Avery Dennison Corp., 104 F.3d 858, 861 (6th Cir. 1997).

Once the plaintiff establishes a prima facie case, the burden shifts to the employer to articulate a legitimate, nondiscriminatory reason for the challenged employment action. St. Maly's Honor Ctr. v. Hicks, 509 U.S. 502, 506-07,125 L. Ed. 2d 407,113 S. Ct. 2742 (1993). The plaintiff then has the "opportunity to prove by a preponderance of the evidence that the legitimate reasons offered by the defendant[* 101 were not its true reasons, but were a pretext for" unlawful retaliation. Id. at 515 (quoting Texas Dep't of Community Afairs v. Burdine 450 US.

248,253,67 L. Ed. 2d 207,101 S. Ct. 1089 (1981)). Evidence sufficient to permit a reasonable jury to conclude that the defendant's proffered reasons were not its true reasons, together with evidence sufficient to establish the elements of the prima facie case, is sufficient to create a jury question as to the "ultimate fact" of unlawfid retaliation. Id. at 5 11; EEOCv. Yenkin-Majestic Paint Corp., 112 F.3d 831,834 (6th Cir. 1997).

In the light most favorable to Peterson, Roberson's testimony that she was told that Peterson had quit several hours before Peterson committed the act which allegedly led to her discharge, and Peterson's testimony that she was led to believe that she had permission to attend her appointment, could permit a reasonable jury to conclude that DCI manipulated Peterson so that it would have an excuse to fire her. In other words, this testimony could support the conclusion that DCI's proffered reason for discharging Peterson was a pretext-the critical question being: "a pretext for what?" If Peterson[*l 11 has produced sufficient evidence to prove the elements of the prima fatie case, a reasonable jury could conclude that DCI's proffered reason was a pretext for udawfid retaliation.

After a careful and thorough consideration of all the evidence in the record, however, we find that we are in agreement with the district court's conclusion that Peterson has not produced evidence sufficient to establish the third or fourth elements of a prima facie case of unlawful retaliation On the record before us, we sirnply cannot conclude that it would be reasonable, as distinguished fiom speculative, for a jury to conclude that DCI lcnew of Peterson's protected activity and that this knowledge was causally connected to Peterson's discharge.

Although the paradigm established by McDonneZZ-Douglas Corp. v. Green, 411 U.S. 792,36 L. Ed. 2d 668, 93 S. Ct. 1817 (1973), was designed to accommodate discrimination claims based on circumstantial evidence, see Bums v. City of Columbus, Dep't of Pub. Safety, Div.

of Police, 91 F.3d 836, 843 (6th Cir. 1996), a plaintiff relying on this paradigm to prove unlawfid retaliation typically has direct evidence that the defendant was aware of the plaintiff's [*12]protected activity. See, e.g.,

Hamison v. Metropolitan Gov't of Nashville and Davidron County, Tenn., 80 F.3d 1107,1118 (6th Cir.),

cert. denied, 136 L. Ed. 2d 111,117S. Ct. 169 (1996);

Jackson v. RKO Bottlers of Toledo, Inc.. 743 F.2d 370, 377 71.3 (6th Cir. 1984). In such cases, the dficult question is whether the defendant's knowledge of the plaintifl's protected activity motivated the adverse employment ation.

Hek, however, there is no drrect evidence that DCI knew that Peterson had agreed to testify on behalf of Parks. Although we do not intend to suggest that such direct evidence is always necessary, this case highIights how di&cult it is to create an inference of unlawful retaliation where the basic question of knowledge is itself in doubt.

Both Peterson and Parks indicated that they endeavored to keep their arrangement secret, and both Bethune and Chumley denied that they were aware of Peterson's decision to testify. Although Bedwell's testimony might establish that Peterson's decision became grist for the office rumor mill, and Peterson's testimony might establish that Chumley was aware of and hostile to Peterson's friendship with Parks, there is nothing[*13] in these circumstances which suggests that DCI actually

Page 16 1997 U.S. App. LEXIS 26254,

• learned of and acted on the basis of Peterson's protected activity.

Any inference of un1awfi.d intent which &ght arise fiom the timing of Peterson's discharge, an inference which is of questionable strength to begin with, see, e.g.,

Cooper v. City of North Olmted, 795 F.2d 1265,1272-73 (6th Cir. 1986), is significantly blunted by the fact that there is no evidence that DCI knew of Peterson's protected activity, cf. Polk v. Yellow Freight Sys., 876 F.2d 527, 531 (6th Cir. I989). The fact that Peterson was discharged roughly two months after deciding to testify is hardly su&cient to reasonably raise both an inference that DCI knew of Peterson's decision to test@ and an inference that there was a causal connection between such knowledge and Peterson's discharge.

In the end, then, although we accept that Roberson's testimony may suggest that something was afoul, we cannot conclude that the evidence permits the reasonable inference that this something was DCI's knowledge of Peterson's decision to testify on Parks's behalf.

Accordingly, we AFFIRM the judgment of the district[* 141 court.

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Page 1 24 Fed. Appx. 259, *; 2001 U.S. App. LEXIS 21664, **

FLORENCE A. WARREN, Plaintiff-Appellant, v. OHIO DEPARTMENT OF PUBLIC SAFETY, WILLIAM L. VASIL, Defendants-AppeUees.

No. 00-3560 UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT 24 Fed. Appx. 259; 2001 U.S. App. LEXIS 21664 October 3,2001, Filed NOTICE:

[**I] NOT RECOMMENDED FOR FULL-TEXT PUBLICATION. SETH CIRCUIT RULE 28(g)

LIMITS CITATION TO SPECIFIC STTUATIONS.

PLEASE SEE RULE 28(g) BEFORE CITING IN A PROCEEDING IN A COURT IN THE SMTH CIRCUIT. IF CITED, A COPY MUST BE SERVED ON OTHER PARTIES AND THE COURT. THIS NOTICE IS TO BE PROh4DENTLY DISPLAYED IF THIS DECISION IS REPRODUCED.

PRIOR HISTORY:

On Appeal from the United States District Court for the Southern District of Ohio. 97-00460. Marbley. 3-28-00.

DISPOSITION:

AFFIRMED.

CASE

SUMMARY

PROCEDURAL POSTURE: Discrimination plaintiff, a terminated employee, appealed from a grant of summary judgment by the United States District Court for the Southern District of Ohio in favor of defendants, employer and supervisor, and held that she had not participated in protected activity, it was causally unrelated to her termination, and her speech in issue did not address a matter of public concern under U.S. Const.

amend. I.

OVERVIEW. The employee was the senior Equal Employment Opportunity compliance officer and Chief of co an ~Lources for employer. As such, she participated in other employees' discrimination claim investigations. Defendant supervisor testified that he terminated the employee because of complaints about the ineffectiveness of the Human Resources division and lack of confidence in her judgment and reliability, and had planned to do so before she engaged in her alleged protected speech to a state official. Although the court of appeals questioned the district court's detennination that the employee's speech was not protected activity under the civil rights statutes, Title W of the Civil Rights Act of 1964,42 U.S. CS. § 2000e et seq., and 42 U.S. C.S.

1983, it held that summary judgment was nonetheless proper because the employee could not establish a causal connection between her conversation with the state officer, which could be protected speech, and her firing, based on the supervisor's testimony that her tennination was already contemplated. She therefore could not prove that her speech was a substantial or motivating factor in the decision to terminate her employment.

OUTCOME: Summary judgment was affirmed on a different ground, that the employee failed to show the requisite causal connection between her activity and her tennination.

JUDGES:

Before: GUY and MOORE, Circuit Judges; and HULL, District Judge. *

• The Honorable Thomas G. Hull, United States District Judge for the Eastern District of Tennessee, sitting by designation.

OPINIONBY:

RALPH B. GUY, JR.

OPINION:

RALPH B. GUY, JR, Circuit Judge. Plaintiff, Florence A. Warren, appeals from the order granting summary judgment in favor of defendants, Ohio Department of Public Safety (ODPS) and William L.

Vasil. Plaintiff argues that the district court erred in finding (1) that she did not participate in protected activity under the retaliation provisions of Title VII, (2) that there was no causal connection between protected activity and her termination, and (3) that plaintiffs

Page 2 24 Fed. Appx. 259, *; 2001 U.S. App. LEXIS 21664, **

speech did not address [**2] a matter of public concern under the First Amendment. nl For reasons different than those given by the district court, we &m the grant of summary judgment.

nl Plaintiff does not pursue and, therefore, has abandoned on appeal the dismissal of her other 42 U.S.C. § 1983 and state law claims.

Plaintiff was the senior EEO compliance officer and Chief of Human Resources at ODPS. At the relevant times in this case, plaintiff reported to defendant Vasil, the Assistant Director of ODPS.

Plaintiffs duties included supervising personnel matters; providing advice to the Director and the Assistant Director regarding personnel matters; drafting pamphlets and handbooks concerning work rules, disciplinary procedures, and other matters related to EEO compliance. Plaintiff also investigated or supervised the investigation of sexual discrimination [*263]

&d harassment complaints by ODPS employees.

There were a large number of sexual discrimination and harassment complaints within ODPS during [**3]

plaintiffs tenure. Three specific intemal investigations were the focus of plaintiffs Title VII claim. The first involved Bessie Smith, a Human Resources employee, who was disciplined in May 1995 for neglect of duty and malfeasance. As a result of Bessie Smith's mishandling of the termination of another employee, the terminated employee was awarded back pay. There were no allegations of discrimination under Title W in that internal investigation.

In the second, Rebecca Gustamente complained of sexual harassment by her supervisor. In November 1994, the supenisor was reassigned within ODPS. Gustamente testified that she was not subjected to further harassment thereafter.

Warren testified that her last involvement with the Gustamente complaint was in mid to late 1994 and no later than February 1995. Julie Smith was the subject of the third investigation. Julie Smith was disciplined in August 1995, after she was charged with sexual harassment by another female employee.

Plaintiff subsequently heard that the union was considering filing an unfair labor practices complaint or class action litigation with respect to discrimination complaints. She then arranged to meet with Maria J.

[**4] Armstrong, the Deputy Chief Legal Counsel for the Governor of Ohio, on the morning of November 9, 1995. Plaintiff states that she informed Armstrong of the threatened union action and discussed plaintiffs concerns that Vasil acted illegally in his direct handling of several discrimination issues, including the Julie Smith matter.

In the afternoon of that same day, Vasil gave plaintiff notice of termination of her employment with ODPS.

While he did not have prior knowledge, Vasil learned of the morning meeting between plaintiff and Armstrong in the afternoon of the day that plaintiffs employment was terminated.

Vasil stated that he terminated plaintiffs employment because of complaints about the ineffectiveness of the Human Resources division and lack of confidence in her judgment and reliability.

Defendants offered evidence that Vasil decided to discharge plaintiff and took steps to initiate the discharge before plaintiffs meeting with Armstrong. In anticipation of discharging plaintiff, Vasil discussed transferring plaintiffs duties to another employee. Vasil talked to Warren Davies about having John Demaree assume responsibility for all human resource matters for ODPS.

Davies [**5] stated in his affidavit that this discussion occurred approximately two weeks before November 9.

While they did not specifically discuss plaintiffs termination, Davies understood that Vasil was going to transfer all of plaintiffs responsibilities to Demaree. The transfer of those responsibilities became effective on November 9.

Vasil did specifically discuss plaintiffs termination with Armstrong. Armstrong testified in her affidavit and during her deposition that Vasil told her several weeks before the November 9 meeting that Vasil intended to discharge plaintiff and restructure the Human Resources functions within ODPS. Finally, Demaree testified that several days before November 9, 1995, Vasil asked him to prepare the paperwork for terminating plaintiffs employment.

The district court granted summary judgment in favor of defendants. Plaintiff appealed.

[HNI] We review de novo the district court's grant of summary judgment. See, e.g., [*264]

Smith v.

Ameritich, 129 F.3d 857, 863 (6th Cir. 1997). We may a f f i the grant of summary judgment on other grounds, even one not considered by the district court. Boger v.

Wayne County, 950 F.2d 316, 322 (6th Cir. 1991). [*,*a Summary judgment is appropriate when there are no issues of material fact in dispute, and the moving party is entitled to judgment as a matter of law. FED. R. CIV. P.

56(c). In deciding a motion for summary judgment, the court must view the factual evidence and draw all reasonable inferences in favor of the non-moving party.

See Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,

475 U.S. 574, 587, 89 L Ed. 2d 538, 106 S. Ct. '1348 (1 986).

Page 3 24 Fed. Appx. 259, *; 2001 U.S. App. LEXIS 21664, **

A. Title W Retaliation

[HN2] Title W prohibits an employer from retaliating against an employee who has "opposed any practice by an employer made unlawful under Title W.

It also prohibits retaliation against an employee who has "participated" in any manner in an investigation under Title W. 42 U.S.C. 3 2000e-3(a). These two provisions are known as the opposition clause and the participation clause. See Johnson v. Univ. of Cincinnati, 215 F.3d 561, 578 (6th Cir.), cert. denied, 531 U.S. 1052, 121 S. Ct.

657,148 L Ed. 2d 560 (2000).

[HN3] To establish a claim under either the opposition or the participation clause, plaintiff must show that (1) she engaged in activity [**7] protected by Title W, (2) this exercise of protected activity was known to defendants, (3) defendants took an adverse employment action, and (4) there was a causal connection between the protected activity and the adverse employment action. If plaintiff establishes this prima facie case, the burden shifts to defendants to articulate legitimate, nondiscriminatory reasons for plaintiffs discharge. Plaintiff must then demonstrate that the proffered reasons were a mere pretext for discrimination. Id. The plaintiff bears the burden of persuasion throughout the entire process. See Morris v.

Oldham County Fiscal Court, 201 F.3d 784, 793 (6th Cir. 2000).

Plaintiff argues that she was retaliated against in violation of both the participation and the opposition clauses because she complained about Vasil to Armstrong at the November 9 meeting. The district court in this case found that plaintiff did not engage in protected activity under the participation clause and that she failed to show a causal connection between her aIIeged opposition activities and her termination. We find that summary judgment was appropriate on both plaintiffs opposition and participation [**8]

claims because she failed to show a causal connection between the alleged protected activity and her termination.

1. Participation Claim The district court concluded that plaintiff failed to establish a claim of retaliation with respect to the Bessie Smith internal investigation because there were no allegations of violation of Title VII rights. We agree.

Section 2000e-3(a) requires participation in proceedings under Title VII or opposition to unlawful employment practices under Title W. HoMen v. Owens-Illinois, lnc.,

793 F.2d 745, 748 (6th Cir. 1986). There were no Title VII allegations involved in the Bessie Smith matter, and it cannot form the basis of a retaliation claim under Title W.

With respect to the Julie Smith and Rebecca Gustamente internal investigations, the district court found that there was no protected activity under the participation clause because plaintiff did not participate in an EEOC proceeding. Plaintiff argues on appeal that internal investigations by an employer's EEO compliance officer are protected activity under the [*265]

participation clause. This Court has not directly addressed the question of whether participation in internal [**9]

investigations constitutes protected activity under the participation clause. n2 Other courts, however, have held that protected activity under the participation clause does not include participation in internal investigations. See EEOC v. Total Sys. Servs.,

Znc.. 221 F.3d 1171, 11 74 (11th Cir. 2000); Brower v.

Runyon, 178 F.3d 1002, 1006 (8th Cir. 1999); and Vasconcelos v. Meese, 907 F.2d 111, 113 (9th Cir.

1990).

n2 See Davis v. Rich Prods. C o p, 2001 U.S.

App. LEXIS 7114, 2001 WL 392036 (6th Cir.

Apr. 9,2001) (unpublished disposition).

These decisions comport with the plain language of 42 U.S.C.

2000e-3(a): "because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter." (Emphasis added.) They also are consistent with our decision in Booker v. Brown & Williamson Tobacco Co., 879 F.2d 1304, 1313 (6th Cir. 1989).

where we stated that [**lo]

the purpose of the participation clause is "to protect access to the machinery available to seek redress for civil rights violations and to protect the operation of that machinery once it has been engaged." In Booker, we examined the participation clause under Title VII in interpreting similar provisions under the Michigan Elliott Larsen Civil Rights Act. We concluded that the language must be read literally and, therefore, the instigation of proceedings leading to the filing of a complaint or a charge, including a visit to a government agency to inquire about filing a charge, is a prerequisite to protection under the participation clause.

Id.

It is not necessary, however, for us to decide whether an internal investigation is protected activity under the participation clause. To do so would not fully resolve the case because plaintiffs participation in the internal investigations and her meeting with the Governor's office may have been protected activity under the opposition clause. See Booker, 879 F.2d at 1313 n.3; Laughlin v. Metro. Wash. Airports Auth., 149 F.3d 253, 259 (4th Cir. 1998). Whether plaintiffs participation in the Julie Smith [**I1 1 and Rebecca Gustamente internal

Page 4 24 Fed. Appx. 259, *; 2001 U.S. App. LEXlS 21664, **

investigations is considered protected activity under the participation clause or the opposition clause, as discussed in the next section, plaintiff failed to show the requisite causal connection.

2. Opposition Claim.

m 4 ] Under the opposition clause, the person opposing apparently discriminatory practices must have a good faith belief that the practice is unlawful. There is no qualification on who the individual doing the complaining may be or on who the party to whom the complaint is made. Thus, the fact that the plaintiff is a human resource diiector who may have a "contractual duty to voice such concerns" does not defeat a claim of retaliation; and the complaint may be made to a co-worker, a newspaper reporter, or anyone else. Johnson, 215 F.3d at 579-80.

[HN5] To defend against summary judgment, plaintiff was required to show the existence of a causal connection between her protected activities and her termination. Temporal proximity alone in the absence of other direct or compelling circumstantial evidence is generally not sufficient to support a finding of causal connection. See Nguyen v. City of Cleveland, 229 F.3d 559, 566 (6th Cir. 2000). [**I21 Cases addressing this issue have said that temporal proximity may establish a prima facie case only if the temporal proximity is "very

[*266] close." Clark County Sch Dist. v. Breeden, 532 U.S. 268, 121 S. Cr. 1508, 1511, 149 L Ed. 2d 509 (2001). See also, Hafford v. Seidner, 183 F.3d 506, 515 (6th Cir. 1999) (absent additional evidence, two to five months insufficient to create a triable issue of causation);

Cooper v. City of North Olmsted, 795 F.2d 1265, 1272 (6th Cir. 1986) (four months insufficient to support an inference of retaliation).

The district court found that plaintiff failed to show a causal connection between her alleged oppositional activity and her termination because the Gustamente matter had been resolved almost 11 months before plaintiff met with Armstrong. Plaintiff does not argue that there was a causal connection between her involvement with the internal investigations and her termination under the participation or the opposition clauses. She relies wholly on the temporal proximity of her meeting in the morning with Armstrong and her termination in the afternoon of November 9 to establish causation. n3 Defendants [**I31 claim that there was no causal comection because Vasil decided to terminate plaintiffs employment before the meeting. Plaintiff argues that Vasil's statements should be discredited because in his deposition he could provide little detail about his reasons for terminating her employment, and he did not ask that complaints about plaintiffs performance be made in writing. This is not relevant or responsive to the testimony of Vasil, Armstrong, and other employees that Vasil took steps to transfer plaintiffs duties to Demaree and asked Demaree to prepare paperwork to terminate plaintiffs employment before Vasil learned of the meeting with Armstrong.

Employers need not suspend previously contemplated employment actions upon learning of protected activity by the employee. See Alexander, 121 S. Ct. at 1511 (no evidence of causality where employer planned to transfer employee before learning Title W suit had been filed).

Here, plaintiff offered no evidence, other than mere temporal proximity, that she was terminated because of the Armstrong meeting. Plaintiff has failed to raise a genuine issue of material fact of causation. Accordingly, she has failed to establish [**I41 a prima facie case of retaliation under Title W, and summary judgment in favor of defendants is appropriate.

n3 The issue of causation as it related to the internal investigations was briefed by the defendants before the district court and on appeal.

Plaintiff, therefore, has not been denied the opportunity to respond, and it is appropriate for us to affirm summary judgment on this other ground. See Carver v. Dennis, 104 F.3d 847,849 (6th Cir. 1991). Plaintiffs involvement in the Gustamente sexual harassment investigation was resolved by November 1994, or at the latest February 1995; and the Julie Smith internal investigation was completed by August 1995.

Plaintiff offered no evidence to show a causal connection between these investigations and her termination. In the absence of any other evidence of retaliatory conduct, the single fact that plaintiff was discharged two to eleven months after she was involved in internal discrimination investigations does not establish a causal connection between protected activity and her termination.

B. First Amendment

[HN6] A public employee has the constitutionally protected right to comment on matters of public concern without fear of reprisal from the government as employer. n4 See Connick v. Myers, 461 US. 138,

[*267] 147, 75 L Ed. 2d 708,103 S. Ct. 1684 (1983). A public employee does not forfeit his protection against governmental abridgement of freedom of speech if he decides to express his views privately rather than publicly. Givhan v. W. Line Consol. Sch Dist., 439 U.S.

410,412,58 L Ed. 2d 619,99 S. Ct. 693 (1979).

Page 5 24 Fed. Appx. 259, *; 2001 U.S. App. LEXIS 21664, **

sveech. Dambrot v. Cent. Mich. Univ., 55 F.3d 1177.

n4 Defendants argue that plaintiffs Q 1983 il86 (6th Cir. 1995)-

action is precluded by Title VII. The district court Plaintiff argues that her discussion with Armstrong did not address this argument. m 7 ] An about improper handling of discrimination claims was employee may sue a public employer under both protected speech, and that she was terminated because of Title W and 5 1983 when the 3 1983 violation that speech in violation of the First Amendment. The rests on a claim of infringement of rights district court found plaintiffs discussion with Armstrong guaranteed by the Constitution. Day v. Wayne was not protected speech because it was nothing more.

County Bd. of Auditors, 749 F.2d 1199, I205 (6th than the "quintessential employee beef: management has Cir. 1984). See also. Johnson. 215 F.3d at 583.

acted incompetently."

~efendank also argue that Gaintiff abandoned her First Amendment claim by not briefing it in

[HNlO] Allegations of racial and sexual [**I81 discrimination are inherently matters of public concern response to the motion for summary judgment.

even if they are tied to personal employment disputes.

The district On the First See, Connick, 461 U.S. at 148 n.8 (allegations of racial Amendment claim, and plaintiff is not relying on facts or arguments that were not considered by discrimination by a public employer are a "matter the district court in making that ruling.

inherently of public concern" discussing Givhan, 439 U.S. at 415-16); Strouss v. Mich. Dept. of Corr., 250 To establish a $ 1983 claim for violation of -her right to free speech, plaintiff must frst establish that her speech was protected because it was directed toward an issue of public concern, and her interest in making the speech outweighs the public employer's interest in promoting the efficiency of the public services. See Mt.

Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S.

274, 287, 50 L Ed. 2d 471, 97 S. Ct. 568 (1977); Bailey

v. Floyd County Bd. of Educ., 106 F.3d 135, 144 (6th Cir. 1997). Matters only of personal interest are not afforded constitutional protection. Speech upon matters of public concern relates to "any -mtter of political, social, or other concern to the community." Connick, 461 U.S. at 146. It is a question of law for the court to decide whether an employee's speech is a matter of public concern. Johnson. 215 F.3d at 583. "Whether an employee's speech addresses a matter of public concern must be determined by the content, form, and context of a given statement, as revealed by the whole record."

Connick, 461 U.S. at 14748.

[HN9] Once she establishes that her speech is protected,

[**I71 plaintiff must present sufficient evidence to create a genuine issue that her speech caused her discharge. The speech must have been a substantial or motivating factor in defendants' decision to terminate her employment. See Mt. Healthy, 429 U.S. at 287.

While causation ordinarily is a question of fact for the jury, a court may "nevertheless grant summary judgment on the issue of causation when warranted." Bailey, I06 F.3d at 145.

If the protected speech was a substantial or motivating factor in an employee's termination, the employer may present evidence that the employee would have been terminated in the absence of the protected F.3d 336,346 n.5 (6th Cir. 2001) (sex& hksment is a matter of public concern); Boger. 950 F.2d at 322 (response - to reporter's question about racial discrimination addressed matter of public concern);

Matulin v. Vill. of Lodi, 862 F.2d 609, 612-13 (6th Cir.

1988) (sexual and handicap discrimination in the workplace are matters of public concern). Whether the motive behind complaining of discrimination is civic

[*268] mindedness or an individual employee concern is not relevant. What is relevant is the subject of the complaint, discrimination, which is a matter "inherently of public concern." Perry v. McGinnis, 209 F.3d 597, 608 (6th Cir. 2000).

While plaintiff offered somewhat differing accounts of her meeting with Armstrong, at one point in her deposition she testified [**I91 that she informed Armstrong of a potential problem relating to the handling of discrimination complaints, that Vasil had told plaintiff not to be concerned because they were "just passing through," and that the Governor's office needed to do something about it. On this record, plaintiff presented sufficient evidence that her discussion with Armstrong was about the improper handling of sexual discrimination complaints, which is inherently a matter of public concern. The district court erred, therefore, in finding that the discussion with Armstrong was not protected speech under the First Amendment.

Defendants nonetheless are entitled to summary judgment. In order for plaintiff to prevail on her 5 1983 claim. she must prove that her speech was a substantial or motivating factor in 'defendants' decision to terminate her employment. As discussed in the previous section, the evidence clearly shows that Vasil decided and took steps to effectuate plaintiffs termination before the meeting with Armstrong occurred and before he learned of the meeting. There being no material fact in dispute on

Page 6 24 Fed. Appx. 259, *; 2001 U.S. App. LEXIS 21664, **

causation, defendants were entitled to summary judgment on plaintiffs First Amendment claim.

[**20] AFFIRMED.

Page 1 44 Fed. Appx. 592, *; 2002 U.S. App.,LEXIS 16524, **

BARBARA WILLIAMS, Appellant V. DONALD RUMSFELD,Secretary, Department of Defense No. 014016, t

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT 44 Fed. Appx. 592; 2002 U.S. App. LEXlS 16524 July 16,2002, Submitted Pursuant to Third Circuit L.A.R 34.l(a)

August 13,2002, Opinion Filed NOTICE:

[**I1 RULES OF THE THIRD CIRCUIT COURT OF APPEALS MAY LIMIT CITATION TO UNPUBLISHED OPINIONS. PLEASE REFER TO THE RULES OF THE UNITED STATES COURT OF APPEALS FOR THIS CIRCUIT.

PRIOR HISTORY:

On Appeal from the United States District Court for the Middle District of Pennsylvania. (D.C. Civ. No. 1: CV-00-1283). District Judge: The Honorable Sylvia H.

Rambo.

DISPOSITION.

Affmed.

COUNSEL:

For Barbara Williams, Appellant: Andrew J. Ostrowski, Harrisburg, PA.

For Secretary Defense, Appellee: Joseph J. Terz, Office of United States Attorney, Harrisburg, PA.

JUDGES:

Before: SCIRICG ALITO and FUENTES, Circuit Judges.

OPINIONBY:

Fuentes OPINION:

[*593] OPINION OF THE COURT FUENTES, Circuit Judge:

Plaintiff Barbara Williams appeals the district court's grant of the Defendant's summary judgment motion.

Williams, an African-American female, had aIIeged that she was separated from federal service based on her race, in violation of Title VII. She also claimed that she was terminated in retaliation for pursuing administrative EEO remedies, a protected activity under Title VII. Because we agree with the district court that Williams' claim raised no genuine issues of material fact, we affirm.

Barbara Williams brought the instant lawsuit after

[**2] having been separated from federal service in September 1999. nl Williams had been employed by the Defense Logistics Agency @LA), a component of the United States Department of Defense, since 1985. At all times relevant to this case, Williams held the position of Administrative Assistant, GS-05.

nl The background and factual allegations underlying this case are well known to the parties, and therefore, they are not detailed here, except to the extent that they diiectly bear upon the analysis.

In 1997, the DLA was re-organized and two of its distribution regions were consolidated as part of a "Most Efficient Organization" plan ("MEOW). As a result, fifty-seven positions within the newly created Defense Distribution Center ("DDC") (including all GS-05's in Williams' office) were slated to be eliminated. However, because of the two-year differential between the proposal of the ME0 and the implementation of the force reduction, many of the DLA employees in positions that the ME0 had identified as 'excess' were able to take advantage of either Voluntary Early Retirement (VERA) andor Voluntary Separation Incentive Payment (VISP) initiatives. In addition, others applied [*594] and were selected for promotion or reassignment to positions that became vacant prior to September 1999 (the MEO's

Page 2 44 Fed. Appx. 592, *; 2b02 U.S. App. LEXlS 16524, **

implementation date). Together, these groups constituted that it had conducted the RIF in accordance with the the majority of the employees whose positions were procedure prescribed by the OPM. See App. Br. at 16;

[**3] slated to be eliminated by the MEO.

Fuentes v. Perskie, 32 F.3d 759, 763 (3d Cir. 1994)

Nevertheless, by July of 1999, the voluntary staffing reductions of the ME0 had not been fully realized, and a mandatory Reduction-in-Force was initiated.

Although sixteen employees in the DDC headquarters were still employed in positions targeted by the RIF in (instructing that, [HN4] in order to satisfy its burden of production, defendant need only "introduce evidence which, taken as true, would permit the conclusion that there was a nondiscriminatory reason for the unfavorable employment decision.").

July, the employees whi were ultimately

[HN5] Once the defendant has proffered a involuntarily separated in September were Williams and legitimate, non-discriminatory reason for its actions, the one Hispanic female.

burden then shifts back to the plaintiff. Fuentes, 32 F.3d at 763. In Fuentes, we instructed that; I..

m l ] We exercise plenary review over an order granting summary judgment, applying the same standard that the lower court should have applied. Armbruster v.

Unisys Cop., 32 F.3d 768, 777 (3d Cir. 1994).

Therefore, we must grant summary judgment "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56. In making this determination, "a court must view the facts in the light most favorable to the nonmoving party and draw all inferences in that party's favor." Armbruster, 32 F.3d at 777. Our jurisdiction to review summary judgment [**4]

orders is based upon 28 U.S.C. j 1291.

Williams first claims that the district court erred in granting summary judgment because there existed sufficient evidence to create a genuine issue of material fact, nameIy whether three non-protected employees were treated more favorably through the FUF. [HN2] The Supreme Court has set forth a three-step, burden-shifting framework for the presentation of evidence in discriminatory treatment cases litigated under Title W of the Civil Rights Act of 1964. See McDonnel-Douglas

v. Green, 411 U.S. 792 (1973). In the first step, the plaintiff must make out a prima facie case of race discrimination. See In re: Carnegie Center Assoc., 129 F.3d 290, 294 (3d Cir. 1997). The district court below found, and the defendant stipulates on appeal, that Williams has met her threshold burden. See Id. at 294-95 (determining that, m 3 ] "in a Title W case... involving a reduction in force... to make out a prima facie case the plaintiff must show that (1) she belonged to a protected class, (2) she was qualified for the position from which she was terminated, (3) she was terminated and (4) persons outside [**5]

of the protected class were retained."). ~urthermooie, we agree with the District Court that the defense has clearly met its intermediate burden of articulating a facially legitimate non-discriminatory reason for williamsr termination, namely W 6 ] To defeat summary judgment when the defendant answers the plaintiffs prima

[*595] facie case with legitimate, nondiscriminatory reasons for its action, the plaintiff must point to some evidence, & i t or circumstantial, from which a fact finder could reasonably either (1) disbelieve the employer's articulated legitimate reasons; or (2) believe [**a that an invidious discriminatory reason was more IikeIy than not a motivating or determinative cause of the employer's action. In other words... a plaintiff who has made out a prima facie case may defeat a motion for summary judgment by either (i) discrediting the proffered reasons, either circumstantially or directly, or (ii) adducing evidence, whether circumstantial or direct, that discrimination was more likely than not a motivating or determinative cause of the adverse employment action.

Id.

This thiid and final stage of the McDonnel-Douglas test is the only one at issue here. On appeal, Williams claims that the district court erred in granting the defendant's summary judgment motion because "conflicting and misleading evidence of Williarnsq seniority status" created a genuine issue of material fact.

App. Br. at 19. She identifies three different documents that appear to indicate three different tenure ranking dates for her. She alleges that, if the DDC had relied on the highest of her three tenure rankings (and the one which Williams alleges is correct), she would have been listed ahead of three "excess" employees who were retained, even though none of them were members [**3 of a protected class. App. Br. at 19-20.

Nevertheless, Williams offers no evidence that any of the three non-protected employees were hired based on their seniority. As Fuentes makes clear, [HN7] at this stage of the proceedings, the burden of proof is on Williams. Fuentes, 32 F.3d at 763. Specifically, she must offer some material evidence that casts doubt on the DDC's proffered, facially non-discriminatory explanation of its reasons for separating her from Federal service.

However, Williams' evidence that she may have had a higher seniority status than the three retained employees

Page 3 44 Fed. Appx. 592, *; 2002 U.S. App. LEXIS 16524, **

is not material if it was a non-factor in the King process.

See Gray v. York Newspapers, Znc., 957 F.2d 1070,1078 (3d Cir. 1992) ( [HN8] "[a] disputed fact is 'material' if it would affect the outcome of the suit as determined by the substantive lawn). Therefore, Williams' attempt to discredit the DDC's facially legitimate claim for separating her from federal service based on her proffered conflicting and misleading evidence of her seniority status must fail as a matter of law. Id.

(instructing that [HN9] a party attempting to avoid a motion for summary judgment must offer "sufficient evidence [**a] for jury to return a verdict in favor of the nonmoving party; if the evidence is merely colorable or not significantly probative, summary judgment should be granted").

Williams also claims that "a position for which Williams had] interviewed and was qualified, was available exclusively to her as of September 30, 1999,"

and the fact that she was not offered the position is evidence that Defendant's proffered legitimate non-discriminatory purpose was actually a pretext for racial discrimination. The District Court rejected Williams' claim, indicating that the position that Williams claims was available "exclusively" to her on September 30, actually did not become open until October 12, 1999.

Since Williams had already been separated by that time, the Court reasoned that the Defendant's refusal to offer the position to Williams is not evidence that Defendant's non-discriminatory reason for separating Williams was a pretext for racial discrimination. App. at 10.

On appeal, Williams claims that since the availability date given for the job opening,

[*596l October 12th, is not "a sworn and verified date" the District Court resolved a material fact issue against a non-moving party, and therefore [**9] its decision to grant summary judgment should be reversed. See Armbruster, 32 F.3d at 777 (instructing that, [HNlO] in reviewing a motion for summary judgment, a court must view the facts in the light most favorable to the nonmoving party and draw all inferences in that party's favor). Nevertheless, there is evidence in the record that a previously selected employee did not refuse the position until October 12th, 1999, See App. at 131 (DDC's Referral and Selection Register), and Williams offers no evidence to the contrary. While this Court must, on Defendant's motion for summary judgment, view the facts in a light most favorable to Williams' claim, we are not obligated to accept Williams naked assertions contrary to evidence that exists in the record.

Williams further claims that there was a "legitimate opportunity to avoid the impact of the RIF as it relates to Williams]," citing a recommendation made by the chief union steward to the DDC that Williams "could be placed in the Dispatcher position" once the previously selected employee had declined. App.

at 132.

Nevertheless, this information is clearly not "significantly probative" as to the' Defendant's alleged pretext for [**lo] Williams' separation, since Williams had already been separated once the previously selected employee had declined the position in question.

Therefore, Williams has failed to meet her burden of proof to show that Defendant's proffered legitimate reason was actually a pretext for racial discrimination, and we find that no genuine issue of material fact exists with regard to this claim.

Williams also offers evidence that three non-protected DDC employees each held two jobs simultaneously with the Department of Defense during the period in question, and that this evidence is "alone dispositive" of her racial discrimination claim. In addition, she also alleges that she has presented sufficient evidence of a discriminatory workplace atmosphere and that her separation was retaliation for earlier EEOC claim. With regard to each of these issues, we find the reasoning of the district court to have been thorough and persuasive. We therefore a f f m substantially for thk reasons stated in that opinion.

Is1 Julio M. Fuentes Circuit Judge