ML023640422

Part 2 of 2, Attachments to Tennessee Valley Authority'S 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 3 0 0 (1987)l ...t h e agency correctly asserts that the administrative judge erred by confusing t h e

. requirements for the rating assigned t o the appellant's Individual critical element and t h e summary rating assigned t o t h e appellant's overall performance.

In Byrd, the Board explained that under 5 CFR § 430.204 an agency is required t o 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 2 9 3 (19851, 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 t o 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, w e 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 t o meet statutory requirements and warranted reversal of the action. Although the appellants in Donaldson argued that t h e 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 t h e requirement for objectivity . ..the Board rejected that argument. Rather, it stated:

We find that the agency's system contravenes t h e 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 t o 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, w e hold that an agency may satisfy the employee's rights ... by communicating t o the employee t h e standards he must meet in order t o be evaluated a s demonstrating performance a t 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 t o apprise the employee of t h e requirements against which he is t o 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, t h e Board considered whether t h e agencies had otherwise adequately informed the appellants of the appropriate level of performance that was expected of them. . ..

Thus, t h e initial decision and the Board's decision In Byrdare inconsistent with Donalds4n t o 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 t h e appellant's performance unacceptable, t h e 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 w a s held that the agency may avoid t h e 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 s e t 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 inany 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 t o 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 performancewinthe critical elements. The agency correctly held the appellant t o these standards, however, because St did not have a 'minimally acceptable" levet of ratrng for the critical elements. Rather, t h e 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 t o establish a separate level for "minimally acceptable" performance in t h e 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 t h e appellant's overan performance, including a minimally acceptable level, b irrelevant. Under 5 CFR 9 430.204(h), agencies are required t o develop five summary rating levels for the employee's performance derived fromthe ratings on t h e critical elements and, a t the agency's discretion, fromthe ratings I on the noncridcal elements. Cochren, 35 MSPR at 556. Here, t h e agency had t h e necessary 5-level plan, but it requfred the appellant t o 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 b e removed for failing t o 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 s e t 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, t o 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 t o 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 a s "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 a t 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 a t issue are Invalid. ...

See also Sherrefl v. Dept. of Alr Force, 47 MSPR 534 (19911; Clifford v. Dept. of Agric., 5 0 MSPR 232 (1991).

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 t o 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 t o team members a s 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 t o both external and internal customers. Initiates and responds t o 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 a t 364:

CHAPTER9 PERFORMANCE CASES 1929 ,

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

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

Provide clear concise Instructions t o 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 t o 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, t h e customer questions your competency and will often seek other sources for services.

Provide approved examples for requisitioners t o follow and skeleton (fill in t h e blank) agreements In order t o 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 a t 597-600. in reaching this conclusion, we acknowledge that a two-tier performance 1

system is permitted under the Office of Personnel Management's regulations. S e e 5 CFR § 430.2081dl. We disagree, 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 t h e s p e c i f j 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) h a s provided guidance regarding t h e 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 t h e performance thresholds, requirements, or expectations that employees must meet t o be appraised at particular levels of performance." S e e 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 a t 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, w e find that it is entitled t o weight in construing OPM's regulations concerning two-tier performance appraisal systems. See Sped81 Counsel V.

Malone, 84 MSPR 3 4 2 , 3 5 6 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 a s the fully successful level in the present two-tier system, must not be impermlssibly absolute, and must allow for some error. Id. a t 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 t h e 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," t h a t 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 in the PIP notice. these standards are absolute because t h e appellant must always meet these requirements.

1 I

We further note that the standards a t issue differ from t h e 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 t h e present standards, howeversthose acceptable standards further provide that the employee's supervisor Is "routinely satisfied" that t h e tasks are correctiy performed. It further states that,-to meet tha fully successful standard, t h e employee only need satisfy a majority of t h e specific hems that need t o be accurately performed. In contrast, the standards at Issue in t h e present case do not provide for a supervisofs "routine satisfaction,"

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

Another example of acceptable standards contained in t h e Appendix requires that all of the tasks be accomplished t o be fully successful. The standards, however, also state that t h e supervisor Is "routinely" satisfied that t h e 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 of all 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 t o provide a basis for evaluating an employee as exceeding required performance); see also Bronfmn v.

GeneralSen4cesAdministration, 4 0 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 7 6 8 (1980). 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 a t 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.. 1 0 MSPR 1 2 9 (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 t o offer the appellant an opportunity to participate in the development of established standards prior t o 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 t h e development of standards Is a statutory requlrement that cannot be overlooked by government agencies. Beverly v. DLA, 27 MSPR 600,603-04 (19851. found unobjectionable standards developed 1 0 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 a s requiring that the agency offer appellant an opportunity to participate In the development of established standards prior t o taking an action for unacceptable performance under Chapter 43. Appellant fans t o 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 t o 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 t o comment on proposed performance standards does not amount to veto power. ..." S& v. Dept.

of Agric., 64 MSPR 4 6 - 5 8 (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 t o measure traits such a s 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 t o a reasonable standard and makes the employee aware of the modifications. The agency is not required to alter the employee's positron description t o 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 t o 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 t o Increase the standards of perforinance established a t 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 t o 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, 5 2 MSPR 678 11992) (standard developed for measure of work over one year properly modified t o measure work for t h e 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. a s 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 2 7 1 , 2 7 3 n.* (19851 ("Here, as the presiding official found t h e changes In appellant's performance standards nelther materially changed the performance expected nor posed any additional burdens on appellant."); Boggess v. Dept. o f Air Force, 31 MSPR 461 (19861. post.

If an agency does make acceptable material changes in standards, the employee must be glven an opportunity t o 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 t o support what may become a n unacceptable performance action. In Boggess v. Dept. of Ajr Force, 3 1 MSPR 461 (19861, the appellant, a housing manager, was removed for unacceptable performance after t h e agency presented him with revised performance standards substantially different from prior standards and notified him that his

'performance w a s unacceptable and that he had 30 days t o improve. The Board concluded that the agency w a s 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 a n opportunity t o improve under those standards. The new performance plan did not encompass the one performance standard earlier Identified a s warranting a n unacceptable performance rating: accordingly, it could not be said that the new standards and opportunity pedod canied forward t h e deficiencies noted in t h e prior plan and opportunity period. The Board noted that under regulations then [and no longer) prevailing. 5 CFR 430.204(m) (1986). the agency w a s 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 t o ademonstrate acceptable performance, notwithstanding that standards were changed when she w a s placed on a n improvement

'plan; the changed standards neither materially changed the performance expected nor posed added burdens on t h e employee.

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

o f Treasury, 28 MSPR 227 11985). The appellant w a s 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 t w o 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 t h e six months before appellant received an unacceptable rating. She was then given 30 days t o 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 t h e past the appenant m e t t h e old standard. Of these circumstances, t h e Board concluded that there had been an abuse of discretion,

- holding in Walker, 28 MSPR a t 229:

The agency's numerical performance standard in this case w a s clearly objective and set forth in writing. We d o not believe, however, t h a t 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 s o according t o a reasonable standard s o that its application will not denigrate their rights. Here, under t h e previously acceptable percentage-based standard, the affected employees were held t o 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 t o an approximately 99.5% efficiencystandard. The agency attempted t o 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 t h e 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 t o have error-free work, the Board stated in Walker, 28 MSPR at 230-31:

nnany, t h e 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 f r e e a s possible." However a review of the record does not reveal that the agency was able t o show that the commission of what are essentially clerlcal errors In the performance of thls crttlcal element had nearly a s grave a result a s could b e considered t o warrant t h e imposition of the performance standard at issue. ...

We conclude that the agency abused b discretion in instinning and implementing the particular standard for t h e 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 t o remove an employee, a s h did here, on t h e ' b a s k of an extremely low monthly error rate. We therefore find that thls contravention of 5 USC 5 4302(b)(1I renders t h e performance standard invalid as a basfs for measudng performance, and the appellant cannot be removed based on the Invalid standard.

Revised performance standards cannot b e retroactively applied. To do s o would run afoul of the requirement that t h e 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 (1991) (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 t o 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 t o provide the appellant with a reasonable opportunity to improve. The Board found further that the appelant was entitled t o an appraisal period under the revised standards and to a reasonable opportunity t o 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 ,

a t the beginning of the appraisal period. See Brown v. VeteransAdmln~stration,4 4 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 2 3 2 , 2 3 6 11991):

In Brown v. Vereranshdmjnistretion, 44 MSPR a t 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 t o reduce or to increase the standards of perfomance established a t 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 t o improve. The right t o 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 t o the PIP. Brown v. VA, 44 MSPR 6 3 5 . 6 4 0 4 1 (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 a s a result of his performance under a PIP 1sspeculative 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. S e e Gonzales v. DHUD, 64 MSPR 314 (1994) (a performance lmprovement period plan Involves a threatened personnel action, such a s 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 ("PIPwlas 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 t o determine whether his performance fen short of satisfactory for any targeted crfdcal element of his position, and t o determine whether perfonnance-based action Is warranted. O'Hearn v. GSA, 41 MSPR 280 I1989). But a n agency cannot remove a n 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 t o 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 t o 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 t o 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 J O H N R. SEUE?'S, Petitioner, 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 nand O r d e r 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 j u r F s Z i c t i o n of *is matter p c r s c a n t %o S e c t i o n 2 1 0 ( 3 ) , t h e e z 2 l c y e e p r o t e c t i o n p r o v i s i o n - c2 t h e Enerqy R e o r 5 c n i z a t i c n A c t of 1 9 7 4 (11ES-18o-, "Actn) , as mended, 4 2 U . S . C . 5851(b) . The S e c r e t z r y cf Labor i s s u e e - h e r f i n e l d e c i s i o n and o r d e r on A p r i l 1 6 , 1991, and P e t i t i o n e r h a s f i l e 2 a t i m e l y c p p e a l from t h e S e c r e t a r y ' s o r d e r . Section 2 l O ( c ) (1) o f 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 d e c i s i o n .

clearly n o t proteczed activi-y. Rcllins v . S=ate cf F I o r i 2 a

. C D e ~ z r t a e n to f L a w E n f o r c e a e x t , 6 6 s F.2d 3 9 7 , 400 (11th Cir. 1989)

( 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 p r o v i s i o n s t i e l C s a:. exsloyee r e g a r 8 l e s s of t h e m e r i t s of h e r com?laint, o n l y i C s h e c a n show a goo6 f z i t h , r e e s o n a b l e b e l i e f t h + t the c h a l l e n g e d p r a c t i c e v i o l a t e s ~ i t l VII) e . Thus, r h e ~ e c r e t a r yp r o p e r l y r e s a r d e d January 2 4 , 1 9 8 9 , Yne &ate of the NXC c o n ? l a i n t , z s the c r i t i c a l 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, 1 9 8 9 c o m ~ l a i n twas ~ r o t e c c e da c t i v i t v , t h e r e c o r e skill 2molv d e m o n s t r a t e s 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 l t , e n s l o y e r nzy f i r e an e n ~ l o y e e:cr a good r e a s c n , a bad Teasoa, a r e a s o n based on erroneous f a c t s , o r f o r no r e ~ s o na t a l l a s l o n g a s i t s a c t i o n i s n o t Ecz a C i s c r i m i n a r c r ~= e a s ~ n . ~ ~

-Nix v . hxCY 3 2 2 i o l R z h z l l Coxnur.icacions, 8 2 1 2.187 (11th c i r . 1984) ( c i t a t i o n o i z i t t e 8 ) . A c c ~ r dAE A r t . I n c . V.

3 , 645 F.2d 669, 679 ( 9 t h C i r . 1 9 5 1 ) : L I E a c s P ~ o Z i l c t s . ~ n c -V.

N23, 19 F.2d 1337, 1341 ( 5 t h C l r . 1580). The e r p l c y e e who i s i n c o r i p e t e n t , o r i n s c b o r d i n a t e , cr has beccme i n e f z i c i e n t c z i m o t 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, s u o r a ; L I S a a s P r o d u c t s . ~ n c :v . NL??B, suDra: NLRB v . Red Ton, I n c . , 4 5 5 1.2d 7 2 1 , 726-728 ( 8 t h Cir. 1 9 7 2 ) ; sse a l s o NLRB v. Xncth B r o t h e r s .

I I ~ c 537 F.2d 450, 953 ( 7 t h C i r . 1 9 7 6 ) (The s t e t c t e lldoes n o t imunize an emsloyee from Cisc'ncrge :or a c t s of ... xiiscon8uct.-- .--

merely b e c a c s e t h o s e a c t s were a s s o c i a t e d v i t h p r o t e c t e d

i n s z x c t i o n c f h i s s u p e r v i s o r , S m i t h , a r g ~ i n c jth2: it xzs n c t i n cor;pfi+nce v i t h the v o r k p l a n (T. 3 2 ) . 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 n o t 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; n o r out of t h e o r 6 i n z r y (T. 1 4 4 ) . Yet, i n T i c i w e l l ' s wcrds, S e l l e r s beczne woutragedll and u s e d " a b u s i v e l a n c p a ~ e "becaase Smith had direcied t h e n t o b u i l d t h e i r h z n g z r l i k e 2 hanger a l r e a d y c o n s t r u c t e d by a n o t h e r m e m b e r of t h e crew (DX 12-1) . As alrezdy discussed (see sums p. 23) on t h a t s z n e &y, upon Smith's r e t ~ r nt o t h e work s i t e a f c e r t h e e z r l i e r a r p m e n t , yet another c o n f r o n t a t i o n o c c u r r e d , t h i s t i n e c o n c e r n i n q t h e l a c k o f prosress i n t h e work. S e l l e r s a g a i n b e c z n e b e l l i c e r e n t ane used p r o f a i r y ( T . 1 0 3 , 107, 1s7, ~ss).

The r e c o r e facts r e g z r d i n g t h i s i n c i e e n t a e k e i z very c l e z r Lk-i u r c c r cn chis o c c a s i o n , 2s on many o t h e r s bc=h b e f o r e end aE=er Janc2z-y 1 9 S 9 , S e l l e r s r e s e n t e d s u ? e r v i s i o n (seeT. 166), and t h i s r e s u l t e d in r e 3 e a t e d c o ~ f l i c t swith r;.anacenent. Ln e n e c t i n ~

cnti-discrinination provisions such 2s t h e o n e involved h e r e ,

Conqress Cid n o t s e e k " t o t i e t h e hanCs o f e a p l o y e r s i n t h e -

oSjective s e l e c t i o n anci c o n t r o l of p e r s o n n e l . " h'ochsta8t v.

Worcester F o u n d a t i o n For Ex~eriinentalZ i o l o c v , 5 4 5 1.2d a t 231.

The l l p r o t e c t i v e mankletl of such p r o v i s i o n s must be 11texpere2by the enployerls right t o e x e c t 2 lay's v o r k f o r e 2 2 y 1 s pay a n l t o nzintain discipline .... l1 Cater~illarT r a c t o r CO. v . FLRS, 230 2 - 2 2 3 5 7 , 35s ( 7 t h C ~ T .1956). See s o ,

-Lnc. V. 3 ~ ~ 654 3 ,

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

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

NOS. 1-96-002,1-96-007, 1-97-007, 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 DeterminingWhether Discrimination Occurred

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

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

4. Case Study - 01Case 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 ' i d n a t i o n 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 discriminationin 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 Illexplain our recommendation regarding appropriate enforcement action.

In addition, based on our review of the 01investigative 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 01cases, in section Iof 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 Investigatorwith 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 GeneralAccounting Office Personnel Appeals Board. He likewise participated in our background interviews and discussions regardingthe 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 01cases, 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 thisis not the equivalent of a determination about whether to actually proceedwith an enforcement action. Although a determination about whether there is an adequate evidentiary basis to sustain a discrimination allegation may be a -

substantialfador 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 Elementsfor Review in DiscriminationCases We discussedwith 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 providedwith 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)lcfordetermining 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.

• ASthe 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 01cases 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-basedreason for the action, with the latter being a scontributinghctor" to the action?

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

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. Circumstantialevidence 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 a r e 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 W d h this background, the question remains about the basis on which a decision should be made whether there is sufficient evidence t o institute a n 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 w a s 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 aco tin.

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 211of the Energy ReorganizationAct of 1974,42 U.S.C. 5 5851, both in making a decision to institute an agency investigation of an employee's discriminationcomplaint and in the initialstages 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-facesin 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 progressivelyto 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 relationshipto 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 ASthe 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~hiaElectric 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 previousviolations, 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 policyand resource considerations are given appropriate consideration.

2. ProtectedAdivity 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 protecteda 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 q u a l i i i e addition that the protectedactivity 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.

'Contributemis 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 &havingor 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 protectedactivity 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 decisionto take the adverse action.

II. ANALYSIS OF CASES A. Case Review Process In accordancehtw i the directive in Chairman Jackson's January 28,1999 memorandum, the review team evaluated three 01cases involving discrimination allegations. Although all the team members and team advisors familiarized themselves with each of the cases, an i n d i i d u a l i i , 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 01case report; all supporting exhibas; the 01investigativefile 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 interviewswith 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 01Investigator memorandum; the investigative report in another 01case, No. 1-90-001, along with two interview reports conducted in connectionwith 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, ProposedStaff Action RegardingAlleged 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, -1998); 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. Discriminationat Northeast Utilities As is noted above, each of the three cases assigned for independent review was evaluated in terms of its individual merits as reffected by the documentary and testimonial evidence obtained in the -courseof 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 Regulationwith 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 u.

not discriminated againstw at 2. The order went on to note the Commission's concern regardingthe manner in which NU 'has treated employees who brought safety and other concerns to the attention of ri] management." I d .

Still further, the order pointed to ~ ~ ~ c o m ~ l e intJanuary ion 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 f a d 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 circumstanceswhere the 01investigation 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'Sunenviable 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 01record 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 providethe following synopsis of our review and conclusions regarding each of the three cases?

C. Case No. 1-96402 01Case 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 rnainwmedthat their demotions, to the positions of senior and principal engineer, respectively, were prompted by the f a d 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 Attachment 1, 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 a s 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 s u p e ~ s o r positions y 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 01record 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 01Case 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 assurancemreview 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 ofthe employees not terminated were destroyed in the interim, an inquiry into whether there was invidious disparate treatment of the allegers has been foredosed. The 01record, 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 retaliationfor their protected activity.

More important, peers of all three allegers confirmed the existence of performance shortcomings that readilyjustified 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 Millstonewhiieblower 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 protectedactivities 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 01investigator 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 w a s 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 h e had interpreted the threat, h e was being told that, if modifications on a Millstone Unit 2 safety-related system extended a refueling outage then in'effect, h e and a subordinate engineer assigned to the project would be fired. Thus, h e was being a t least-implicitly directed t o cut corners if necessary to ensure that the project did not hold up resumption of Unit 2 operation.

Our analysis of the record persuaded u s that the reason assigned for the employee's termination was pretextua1 and that, in adualii, h e 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 t o 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 h e be given an opportunity to improve his performance.) Yet, the employee had become a s u p e ~ s oinr 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, w e 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 undergirdingthe 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 Proceduresfor 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 potentialthreat to the public health and safety. Accordingly, it is importantwhere 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 recommendationto 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 promptedthe Commission to order NU to put in place an independent, third-party oversight of its implementation of a mandated 'comprehensive plan for reviewing and dispositioningsafety 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 Millstonefacility, 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 Commissionwas 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 L i i e Harborjudgment 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 EmployeesAd-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 EmployeesAd-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 EnforcementAction 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 Commissionthat 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 on s 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. 1-96-002 and 1-97-007, respectively, it is not until 1999that 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 intendedobjective, an assessment with which the Commission seemingly agrees.

D. Recommendation

1. Completed NU Remedial Actions Make EnforcementAction 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 considerationwas adequately remedied before those findings surfaced? In that extraordinary circumstance, there is reason to questionwhat worthwhile purpose might be served by taking further, formal enforcement action against either NU or its managers responsiblefor the 1993 and 1995 discrimination. The October 1996 order conveyed a strong message to NU respectingthe 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 impositionof a civil penalty might be thought to be more punitive in character than remedial.

2. Enforcement Action if Completed NU RemedialActions Are Found to be Insufficient as Basis for Foregoing EnforcementAction 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 terminationthat 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 reviewedwho 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 IIcivil 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,l2the civil penalty amount potentially would be the Severity Level IIbase 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 1 I 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 connectionwith 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 l l , 6 3 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 q u a r i for this credit either. .

l Z 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 informedjudgment.

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'ionalenforcement conference to obtain further information to assist it in making the appropriate enforcement decision. In this instance, particulariywith 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 individualto 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 IIand Severity Level Illviolations were issued to individuals

- after OIG or 01and 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 indicatedthis 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 understoodthe 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 01and 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.

l 6 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 informationgathered through this process, we provide the following suggestions and recommendations.

B.' ' p s o n s Learned

1. U t i l i i o n 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, includingthe ~ u n 1998 e 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 01Investigation Atthough as to each of the three cases reviewed, we generally found the 01investigation to be thorough and comprehensive, we were struck by the lack of comment by the investigators regardingtheir 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 discriminationallegations 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 perceivedwas interfering with their abil'i to conduct their prosecutorial assessments.

While the decision not to forward 01summaries 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 01until 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 relativeto Millstone."

The January 27,1999 ED0 response to Chairman Jackson's January 7,1999 memorandum regardingthe December 1998 OIG report indicates that '01 will provide written wndusions and synopses&r DOJ returns the case to NRC.' Jan. 27,1999 Memorandumfrom 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. 01has a policy in its manual that governs the resolution of disputes between investigators and 01managers. See 01Procedures Manual at 32-33 (Aug. 1996). As the OIG report imlicates, however, that policy was not utilized to address the apparent conflict between the 01investigatorand the Field Office

@rectorover 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 reversalthat 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 acausalnexus' betweenthe protected action and the adverse action, these cases require a careful analysis of the factual record determining what the relevant facts are and how-theyare 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 EnforcementAdion (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 discriminationcases.

From the most recent draft of Staff Requirements Memorandum (SRM) M990115, it appears the Commission is considering requestedthat 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 processgat 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 analyticalframework 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 E i n g something along the lines of the case summaries that are set forth in section 1I.C.-E of this report.

The 01investigationreport (with condusions) seemingly could constitutethe 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 01report. 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 implicationsto this approach, to say nothing of the general antipathy to further 'paperingmwhat in may instances are already voluminous records. On the.other hand, given the significance of discrimination cases in the overan investigativecase!oad,=e section IV.B.5 below, this additional 'up frorf work might well provide the benefit of requiring less 'clean upmlabor 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 objectionmto the I

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

-establishedfacts, 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 regionalofficiafs prior to an enforcement conference, which also could continue to be provided for the conference.

l9 In making this recommendation, it should be understoodthat we are not critiquing the way in which OGC enforcement attomeys or supenrisors have performed their duties in any individual case, given the institutionalconstmct 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 reviewedthe 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 consideredjudgment 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 01in 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-believethat, 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 01investigation. 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 informationwe 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 investigativeienforcementprocess will be the attomey responsible for trying the matter should it go to an administrative hearing.22 This undoubtedlywould 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 01and OGC enforcement attomeys, particularly at the outset of the investigative process, would not fall victim to historical concerns about 01independence.

The need to maintain 01independence is clear; however, more collaboration between OGC enforcement attorneys and 01investigators 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 benefdto 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 informationon 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.discriminationactions

.- 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 'comparablewindividuals 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~'sorypositions, 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 interadionis integralto 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 01investigators, 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 reviewingthe allegations in 01Case 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 expectationthat a violation of section 50.7 can be shown by a preponderanceof 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 01Case 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 01Case 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-canbe 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 identifiedfailures 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 investigativeand enforcement processes utilized by the NRC staffwith resped to these 01cases, and in particular 01Case No. 1-96-00?, we make the following recommendations regardingthose processes:

1. At its inception, any bpecial' task force formed to investigate or otherwsi e 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, 01investigator impressions regardingwitness 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. Notwithstandinga DOJ request not to transmit an 01summary and conclusionfor a case sent for pmsecutorial review, the 01summary and conclusion should be prepared at the time the 01case report is assembled and, once the case is returned from DOJ, made a part of the 01report so as to be available as an aid in determiningwhether agency enforcement action is appropriate.

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

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

5. Particularly with res wto 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 01case 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 e n a r e 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 examinationof the voluminous product of the 01investigations, 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 relevantfads disclosed by the 01 investigationthat, 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 recommendationapplicable 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 haSidentified 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, Ioffer a few additional observations of my own. In the main, they serve simply to stress portions of the report that Ifeel warrant additional emphasis.

1. In none of the three cases examined by the review team was it difficult to discern from the 01investigation 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 investigationwould 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 canflict.

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

a 'The first, presumably enjoyed whenever the results of an 01investigation are in hand, stemmed from the comp?etenessof 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 investigationwas Iwould think that employees called upon to perform safety-related functions (as were all the alleges in the cases at hand) inevitablywill 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 01Special gents with considerable thought and consummate thoroughness. Wrthout being overbearing in their probing, the investigators identified and pursuedtenaciously 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 informedjudgment 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 Iencountered hertz2 .

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

.productof 01investigations, the review team - consisting ofthree 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 mte~ew transcripts and documentary exhibits in the 01file; 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 01report of investigation and its documentary foundation, (Indeed, in the Iwould 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 circumstanceswhere 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 a s to the likely appropriate response made an 18wegree turn a s 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 a s diidosed by the 01investigation. 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 a s 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 Gin 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 hthe 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 performanceand capabiries that supposedly was centtal to

. the decision on which employees should be laid off. I I

1 agree with the review team's recommendationthat utilities be required to retain, and i

make availablefo the agency as required, all relevant information regardingthose persons i ji whose positions were implicated in a reorganitationldownsizingprocess. At the same time,

. however, it should be recognked that, even had all of that informationbeen 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 Ofcie.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 assurancenreview list were subsequently (albeit not by the reviewers of that list) removed from considerationfor 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 ifnthey 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 01investigator 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 1996were 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-onthe &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 a s 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 01investigation 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 01investigationin 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-kationwas 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 1996workforce redudion program, M c b brought abo~i'theevaluation 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 subordinatedto a newly-createdsupervisor.

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-nationor workforce reduction but, instead, a termination of a single

indiiidual -the alleger for asserted lack of satisfactory supervisory performance. Although two instances of differenttreatment 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' failurgto 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 circumstancesundermining 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, a n inference that the adverse action was impermissibly motivated (at least in part) both can and should be drawn.

3. Finally, a solid-foundationappears 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 lessthan 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, Iclose this brief statement with a purely personal observation. IweIwmed the opportunity to return, if but for a very short time, to the agency in which Ihad 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 ChlefAdminfstrativeJudge

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 regarding n the Mardt 19, 1999 report of the MilIstone Independent RevkwTeam (MtRf), it became dearthat one aspect of the rekrt'sc T 4 a n requ0aedfurther 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 inthat 6ection, we concludedthat any such need W been obviated by the Northeast UiRes Qsbm (N11) rrtspolrseto the agency's Odober24,.I096 orderas that response had been detailed at

aJanuary 19,11999 Commission briefing. That section was not 'mfended to address tfte entirev separate question of the appropriatenessof agency issuanceof a noficeof violation (NOV) or a letter of reprimandto NU or any of the inbidual supervisors iyotved inthose cases and, aunrdiiiy, 8hwId not be understood as r e m e n d i n g against issuance of an NOV or letter af reprimand.

I cc: thmmsiinerDiaw Commissionw D i i

- Commissioner McOaffigan CommissionerMerrifikld

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 absolute refusal to work on a project because he did not FOR PUBLICATION AND MAY NOT BE CITED TO like the protocol for the performance of that task The OR BY THE COURTS OF THIS CIRCUIT EXCEPT court aflirmed the denial of petitioner's claim because AS PROVIDED BY THE 9TH CIR. R. 36-3. petitioner failed to meet his ultimate burden of proving to the trier of fact that he was the victim of intentional SUBSEQUENT HISTORY: Reported in Table Case discrimination. The court found that the record was filled Format at: 53 E3d 338,1995 US.App. LEXIS 22757. with evidence of incidents of petitioner's supervisors' dissatisfaction with his work, which began long before PRIOR HISTORY: Petition to Review Decision of the petitioner engaged in any of the protected activities at Secretary of Labor. DOL No. 0973-2. issue.

DISPOSITION: PETITION DENIED. OUTCOME: The court affirmed the denial of petitioner CASE

SUMMARY

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 PROCEDURAL POSTURE: Petitioner employee sought proving to the trier of fact that he was the victim of review of the decision of respondent, the United States intentional discrimination. The record was filled with Secretary of Labor, which a f f i e d the decision of the evidence of incidents of his supervisors' dissatisfaction administrative law judge that petitioner was not with his work.

discriminated against by respondent former employer, in violation of the whistleblower provisions of various CORE TERMS: prima facie case, complain, federal environmental statutes. continuance, discovery, nondiscriminatory, termination, terminated, hear OVERVIEW: Respondent, the United States Secretary of Labor (secretary), affirmed the decision of the CORE CONCEPTS -

administrative law judge that petitioner employee was not discriminated against by respondent former employer- Labor & Employment Law: Discrimination: Retaliation in violation of the whistleblower provisions of the Clean If an employee makes out a prima facie case of Air Act, 42 U.S C.S. § 7622, the Toxic Substances retaliatory discharge, the burden of production shifis to Control Act, I5 U.S.C.S.$2622, and the Comprehensive the employer to show that it has legitimate, Environmental Response, Compensation and Liability nondiscriminatory reasons for its actions. If it does so, Act, 42 U.S.C.S.J 9610. Respondent secretary the production burden shifts back to the plaintiff to show determined that the reasons for petitioneis termination that those reasons were pretextual. Once an employment were that his work was not good and that he was often discrimination case is tried, the only truly relevant insubordinate. Moreover, the final straw was petitioner's 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 provisions of various federal environmental statutes. n l of intentional discrimination The Secretary ruled that Crosby had not shown that Hughes had [*2]te1m1nated him for protected rather than Administrative Law: Judicial Review: Standards of nondiscriminatory business reasons. We deny the Review: Abuse of Discretion petition Administrative Law: Judicial Review: Standards of Review: Arbitrary & Capricious Review nl Originally, Crosby brought his action under the Administrative Law: Judicial Review: Standards of provisions of the Clean Air Act, 42 U S C.J 7622, Review: Substantial Evidence Review and the Toxic Substances Control Act, 15 U S .C.$

The United States Secretary of labor's decision is upheld 2622. The Secretary granted his post-trial motion to unless it is unsupported by substantial evidence or is amend his complaint to include a cause of action arbitrary, capricious, an abuse of discretion or otherwise under the Comprehensive Environmental Response, not in accordance with the law. Compensation and Liability Act, 42 US.C. 9610.

COUNSEL: For PATRICK CROSBY, Petitioner.

Thomas M. Devine, Esq., Government Accountability Project, Washington, DC. Thomas Michael Devine, Government Accountability Project, Washington, DC. If an employee has made out a prima facie case of retaliatory discharge, the burden of production shifts to For UNITED STATES DEPARTMENT OF M O R , the employer to show that it had legitimate, Respondent: Secretary-DOL, UNITED STATES nondiscriminatory reasons for its actions. See St. Mary's DEPARTMENT OF LABOR, Washington, DC. Civil Honor Ctr. v. Hicks, U.S. , ,113 S. Ct. 2742,2747, Division, Appellate Section, U.S. Department of Justice, 125 L. Ed. 2d 407 (1993). If it does so, the production Washington, DC. Solicitor-DOL, Esq., UNITED burden shifts back to the plaintiff to show that those STATES DEPARTMENT OF LABOR, Washington, reasons were pretextual. Id. More to the point for DC. Mary J. Rieser, Attorney, U.S. Department of Labor, purposes of this appeal, once an employment Washington, DC. discrimination case has been tried, as this one has been, the [*3]only truly relevant question is whether the For HUGHES AIRCRAFT COMPANY, Respondent: plaintiff has met his ultimate burden of proving to the Russell F. Sauer, Jr., Esq., LATHAM & WATKINS, Los trier of fact that he was the victim of intentional Angeles, CA. 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 Crosby, however, complains of the procedures used to employee. Wilson v. Bechtel Constr., Inc., Case No. 86- reach a decision in this case. He says that he was entitled ERA-34, at 12 (Sec. Dec. Jan. 9, 1988). The record is to a continuance because certain discovery was delivered filled with evidence of incidents of Crosby's supervisors' late. But though that continuance was denied him, after dissatisfaction with his work, which began long before he two days of hearings[*6] the proceeding was adjourned engaged in any protected activities at issue here. From for five weeks. Thus, he effectively got his continuance the very beginning of his work for Hughes he resisted anyway. He also asked that adverse inferences be drawn completing assignments given to him, refbed to work on against Hughes because of the lateness of the discovery certain projects and even refused to pass on information and because Hughes asserted a privilege as to some to those who were brought in to complete the projects. discoverywhich was sought. But the issue of sanctions is Finally, he was asked to perform work on PUP. His left to the discretion of the ALJ, and we see no abuse of reaction was characteristic. He objected to the whole that discretion here. See 29 C.F.R.J 18.6(4(2)@).

thing and finally said he would not work on the project at Moreover, it is not appropriate to draw adverse all. In short, there is evidence that Crosby fairly bristled inferences from the failure to produce documents with antagonism, complaints, foot dragging, protected by the attorney-client and work product insubordination, and hctiousness. The ALJ and the privileges. See Wigmore on Evidence 8 29 1 (rev. 1979).

Secretary decided that his termination was based upon that. There is substantial evidence to support the Crosby fiuther complains that he did not get to examine

. decision. certain subpoenaed witnesses after the district court refused to enforce a subpoena for them. He said that It is noteworthy that the individuals who[*5] terminated adverse inferences should have been drawn, but the ALJ Crosby did not even know of most of his alleged determined that their testimony would have been protected activity. While they did hear him complain immaterial. Moreover, Crosby did have an opportunity to about PPUP, they did not understand that he was examine the officials who actually frred him. We see no complaining about a possible environmental problem reversible error.

related to a gas detector system if PPUP were used with that system What they did understand was that Crosby Finally, Crosby complains that certain offers of proof was, once again, refusing to do work that he was directed were improperly relied upon. Those were made when the to do. The Secretary did not err when he found that ALJ refused to hear testimony fiom certain Hughes Crosby was discharged for proper reasons. n2 witnesses and[*7] allowed Hughes to protect the record by stating what the witnesses' testimony would have n2 The parties spill much ink over whether Crosby been. The ALJ did not rely upon the offers at all. While spelled out a prima facie case. We, of course, the Secretary did refer to them, those occasional recognize that a prima facie case is the first step in a references were not necessary to the final decision and trial of this kind. However, given the ultimate were accompanied by references to proper evidentmy determination, there is no need for us to delve into matter. We are unable to say that Crosby's substantial the intricacies of prima facie case building. rights were affected by those stray, though improper, references. See 29 C.F.R.J 18.103.

PETITION DENIED.

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

C 7

NOTICE: THIS IS AN UNPUBL;ISHED OPINION. is not supported by substantial evidence. We, therefore, REVERSE that decision.

m e Court's decision is referenced in a "Table of Decisions Without Reported Opinions" appearing in I. Facts the Federal Reporter. Use FI CTA6 Rule 28 and FI CTA6 IOP 206 for rules regarding the citation of Plaintiff Frady was employed by TVA from 1978 unpublished opinions.) until 1992. From 1983 on, he worked as a nuclear inspector at the Sequoyah and Watts Bar nuclear United States Court of Appeals, Sixth Circuit. plants. While working as an inspector, he raised safety concerns with the NRC and TVA h g e m e n t TENNESSEEV-Y AUTHORllY, Petitioner, on several occasions. In December 1990, Frady

v. received notice that he would be terminated due to a Randolph FRADY, United States Department of reduction in force. In response, Frady filed a Labor, Respondents. complaint under the ERA. The complaint resulted in a settlement agreement which extended Frady's No. 96-3831. employment with TVA until January 1992. As part of that agreement, Frady was placed in the Employee Jan. 12, 1998. Transition Program from June 1991 until his '

termination. The program allowed him to seek a Before: RYAN, SUHRHEINRICH, and COLE, new position within TVA, which he did. However, '

Circuit Judges. Frady was not selected for any of the positions he applied for, and he filed ERA complaints challenging PER CURTAM. these non- selections.

• • 1This appeal arises from claims by Randolph After an investigation by the DOL's Wage and Hour Frady under the whistleblower protection provision Division found no merit to Frady's complaints, he of the Energy Reorganization Act of 1974(ERA), as filed a request for a hearing. An admhktrative law amended, 42 U.S.C. 5 5851 (1988), which prohibits judge (hereinafter AU), charged with making licensees of the Nuclear Regulatory Commission recommendations to the Secretary, conducted the (NRC) from discriminating against employees who hearing and thereafter dismissed eight of the fourteen engage in protected activity, such as identifying allegations upon TVA's motion for summary nuclear safety concerns or making complaints under judgment. The AU issued a written opinion the ERA. Pursuant to the ERA, Plaintiff Frady fded discussing the remaining six allegations and complaints with the U.S. Department of Labor recommended that they dl be decided in TVA's 1

(DOL), alleging that his non-selection for fourteen favor. The Secretary adopted the A I J ' s different pdsitions was the result of unlawful recommendations concerning the eight dismissed retaliation for his protected activities while working ,

allegations and three of the six allegations decided on as a nuclear inspector for Defendant Tennessee the merits, but found for Frady on the remaining Valley Authority (TVA). The case ultimately three allegations, which are the only ones contested reached the Secretary of Labor (hereinafter Secretary here. While on remand to the ALJ for

), who found for plaintiff with regard to three of the determination of Plaintiffs remedy, the parties fourteen allegations. reached agreement on the appropriate remedy, contingent upon this appeal. The resulting "Joint Petitioner TVA appeals the Secretary's decision for Stipulation" was recommended for approval by the Plaintiff on those three allegations. The issues ALJ, and the Administrative Review Board of the raised by Petitioner on. appeal ask' whether "the DOL issued an order approving it.

Secretary- was arbitrary and capricious in disregarding the A W ' s crediiity determinations," **2 Two of the three contested allegations concern and whether his "decision was supported by Frady's application for m a c h i & t ' ~ e e positions at substantial evidence." We find that the Secretary's both the Watts Bar and Sequoyah nuclear plants, as decision with regard to the three contested allegations we11 as for a steamfitter trainee position at Sequoyah.

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

134 F.3d 372 (Table) Page 2 (Cite as: 134 F3d 372, 1998 WL 25003, **2 (6th Cir.))

Applicants for each of these three positions were quotes omitted); accord Gm-an v. Dept. of the considered by a different three-person committee, Treasury, 714 F.2d 913, 915 (9th Cir.1983) (

consisting of a TVA representative, a member of the "Specid deference 6 to be given the AL's credibiity applicable union, and Kevin Green, a human judgments"). Given the conflicts in this case resources manager for'TVA. The TVA and union between the conclusions of the ALJ and the Secretary representatives were charged with ranking the , we must examine the record with particular applicants and making the hiring decisions, while scrutiny. Tel Data, 90F.3dat 1198.

Green was assigned to be a faditator. Each of the committees ranked Frady below the applicants who **3 The law governing Frady's proof of his claims were ultimately selected. The third contested . was carefully laid out by the Secretary:

allegation concerns Frady's application for a quality a complainant ... must first make a prima facie control inspector position at the Sequoyah facility. case of retaliatory action by the [defendant], by Shortly after the vacancy for this position was establishing that he engaged in protected'advity, announced, a staffing study conducted by an outside that he was subject to adverse action, and that the consultant recommended that s f f i g levels at the [defendant] was aware of the protected activity facility be reduced. Roy Lumpkin, Frady's former when it took the adverse action. Additionally, a supervisor and the supervisor for the open position, complainant must present evidence sufficient to ultimately decided to cancel the vacancy without raise the inference that the protected activity was hiring anyone for it. the likely reason for the adverse action. If a complainant succeeds in establishing the foregoing,

11. Applicable Law the [defendant] must produce evidence of a legitimate, nondiscriminatory reason for the We review the Secretary's decision to ensure that it adverse action. The complainant bears the is not "arbitrary, capricious, an abuse of discretion, ultimate burden of persuading that the [defendant's]

or otherwise not in accordance with law." Ohio v. proffered reasons ... are a pretext for RuckeIshaus, 776 F.2d 1333, 1339 (6th Cir.1985) discrimination. At all times, the complainant (quoting 5 U.S.C. 6 706(2)(A)(Administrative bears the burden of establishing by a Procedure Act)). As part of our review, "we must preponderance of the evidence that the adverse determine whether [the decision] is supported by action was in retaliation for protected activity.

substantial evidence, which is 'such relevant evidence Frady v. Tennessee Valley Authoriv, Nos.

as a reasonable mind might accept as adequate to 92-ERA-19 & 92-ERA-34, slip op. at 5-6 (Secretary support a conclusion.' " Moon v. Trampon Drivers, of Labor Oct. 23, 1995) (citations omitted)

Znc., 836 F.2d 226, 229 (6th Ci.1987) (quoting (hereinafter Secretary's Opinion); accord Moon, 836 Richardson v. Perales, 402 U.S. 389. 401 (1971)). F.2d at 229. The Secretary went on to state that, as '

The substantial evidence standard requires us to part of the establishment of a prima facie case, consider evidence in the record that is conuary to the "Frady must establish that he was qualified for such Secretary's findings and conclusions. Tel Daza C q . position; that, despite his qualifications, he was

v. Nan'onaILabor Relations Bd., 90 F.3d 1195,1198 rejected; and that TVA continued to s e 4 and/or (6th Ci.1996). select similarly qualified applicants. " Secretary's Opinion at 18 (adopted from McDonnell Dougw Although the ALJ only recommends a decision, the Corp. v. Green, 411 U.S. 792, 802 (1973)). The tvidentiary support for the Secretary's conclusions Secretary concluded that, for each of the three "may be dimhished, however, when the contested allegations, - Frady established all the administrative law judge has drawn different elements of a prima facie case discussed above and conclusions." National Labor Relations Bd. v. met his ultimate burden of proving that TVA's Brm-Graves Lumber Co., 949 F.2d 194, 196-97 proffered reasons for its personnel decisions were a (6th Cir.1991). In particular, this court "will not pretext for retaliation.

normally disturb the credibiity assessments of ... an administrative law judge, who has observed the 111. Trainee Positions demeanor of the witnesses." Linon Microwave Cooking Pro&. Div., Litton Sys., Znc.. 868 F.2d Two of the three contested allegations involve the 854, 857 (6th Ci.1989) (reversing National Labor machinist and steamfitter trainee positions. The Relations Board, which declined to follow ALJ's record contains little to support the 'Secretary's recommendation to dismiss complaint) (iirnal finding that Plaintiff established a prima facie case of Copr. Q West 2002 No Claim to Orig. U.S. Govt. Works

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

retaliation with regard to these positions. As to the Secretary discussed several evidentiary reasons whi knowledge element of a prima facie case, we agree he reached this conclusion, id. at 26-31, but none of with the AW's fmding that there is no evidence that them amount to ibbstantid evidence.

7 members of the selection committees h e w about Plaintiff's protected activity, including his earlier The most direct reason cited by the Secretary was ERA complaint. (J.A. at 73). As to the inference that he did "not find the testimony indicating that the element of a prima facie case, the Secretary found selectees ... were found by each committee to be that Plaintiff "established an inference of retaliatory better qualified than Frady based on their 'hands on' motive based on temporal proximity." Secretary's experience to be persuasive." Id. at 26. In reaching Opinion at 24. Where adverse employment action this conclusion, the Secretary did not give any follows rapidly after protected activity, common deference, as required, to the AL's implicit finding sense and case law allows an inference of a causal that this testimony was credible. Moreover, the connection. See Moon v. Trampon Drivers, Inc., Secretary substituted his judgment for thai of the 836 F.2d 226, 229 (6th Cir.1987) (stating, in a case selection committees at an inappropriate level of where the plaintiff was fired less than two weeks detail, when he determined that-Frady's experience after making a complaint, that "the proximity in time using calibration tools and building a log home was between protected activity and adverse employment equivdent to other applicants' experience with action may give rise to an inference of a causal automobile engines and heating and air-conditioning connection"). However, because seven or eight equipment. Id. at 20-21.

months elapsed between Frady's most recent protected activity, namely the filing of the earlier The other reasons cited by the Secretary for his ERA complaint, and the decisions by the selections conclusion that Frady proved pretext are speculative committees, the Secretary's inference is a weak one. at best. For example, the Secretary concludes that FN11 "other candidates could have been 'primed' in advance to assist them in answering the standard FNI. The Secretary chose to determine temporal questions that were asked af each applicant." The proximity based on Frady reaching a settlement Secretary bases this hypothesis solely on committee agreement with TVA in June 1991, two or three member Green's off-hand comment during his months before his non-seIection by the cornmitfees. testimony that "I have no knowledge that [the We beIieve that the date of the complaint, January 1991, is the more appropriate date to use, because candidate] was primed or anything." Id. at 27-28.

1) unlike a settIement agreement, a complaint is The Secretary also cites, as evidence of pretext, that clearly a protected activity under the ERA, and 2) eleven of the eighteen applicants selected by the common sense dictates that employees are much committees were from outside TVA, despite a TVA more likely to be retaliated against for filing a policy of filling vacancies from within the ranks of complaint against their employer than for resolving TVA employees. Id. at 29. However, the Secretary the dispute with their employer by reaching a fails to explain how discrimination against Frady can settlement agreement. explain more than one of the eleven selections from outside TVA.

• • 4 Even if we were to overlook the scarcity of .-

evidence supporting the knowledge and inference As further evidence of pretext, the Secretary 6 t . s elements of Plaintiffs prima facie case, we would still the fact that TVA "relied almost entirely on be forced to conclude that the Secretary's decision [committee member] Green's .testimony concerning regarding the trainee positions was not supported by the relevant qualifications." Id. at 30. The substantial evidence. Assuming arguendo that Secretary concludes that this iqdicates that Green was Plaintiff established a prima facie case, Defendant less than honest when he indicated that he was a must produce evidence of a legitimate, facilitator on the selection committees, rather than a nondiscriminatory reason for the non-selection. The decision maker. Even if we ignore the problems Secretary conceded that Defendant met this burden of with citing a defendant's strategy as evidence of .a production by presenting testimony that the people witness's credibility, Defendant's reliance on Green's selected for the trainee positions had qualifications testimony about qualifications can be explained by superior to those of Plaintiff. Secretary's Opinion at the fact that Green was the personnel representative

24. However, the Secretary found that Plaintiff met on the committees and was the only person to serve his ultimate burden of proving that this legitimate on all the relevant selection committees.

4 reason was a pretext for discrimination. The Copr. Q West 2002 No Claim to Orig. U.S. Govt. Works

134 F.3d 372 (Table) Page 4 (Cite as: 134 F.3d 372, 1998 WL 25003, *5 (6th Cir.))

• • S Finally, the Secretary cites evidence "that Frady canceled. Id. at 35 n. 26. Second, Roy Lumpkin,'

was the subject of a considerable degree of animus the manager who canceled the vacancy, moved to an from supervisory personnel ... at TVA" Id. at 31. unrelated position four months before the inspectors However, the Secretary cites no evidence that the returned, (J.A. at 600). and was uninvolved in their animus was clue to Frady's protected activity. In return. Third, the two inspectors returned based on fact, there is evidence pointing in the opposite settlement agreements, whereas Plaintiff sought the direction. For example, TVA employee Michael position through regular application channels. [FN2]

Miller, a witness vouched for by Frady, (J.A. at For all these reasons, Plaintiffcannot show that he 492-93), attnited the animus from one supervisor to was treated any differently than similarly qualified personality conflicts rather than Frady's . candidates. See White v. General Motors Cop.

whistleblowing. (J.A. at 662-4). Without evidence Znc.. 908 F.2d 669, 671 (10th Cir.1990) ("to that the animus was based on protected activity, the maintain an action for wrongful discharge, animus does not suggest retaliation for such activity. Iplaintiffs] must demonstrate that they were treated differently because of their whistleblowing activity").

We also note that one of the two decision makers on each selection committee was a union representative, FN2. Plaintiffs earlier settlement agreement rather than a representative of TVA. Frady never guaranteed only that he would be placed in the alleged, and the Secretary never found, that the there Employee Transition Program.

was any reason why the union representatives would discriminate against Frady. Thus, it is significant **6 The Secretary also concludes that Plaintiff met that the TVA and union representatives ranked Frady the prima facie requirement of raising an inference at about the same level, as he concedes. (J.A. at that his protected activity was the likely reason for 487). This appears to us to be compelling evidence the adverse action, namely the vacancy cancellation.

that the TVA representatives were not biased by The Secretary bases this conclusion on two factors.

Plaintiffs protected activity. Moreover, the fact that One factor is the temporal proximity between the the union representatives gave Plaintiff a relatively cancellation and Frady's protected activity.

low ranking indicates that they too believed there was Secretary's Opiion at 38. However, as discussed a legitimate reason for not selecting him. with regard to the trainee positions, the Secretary's inference based on temporal proximity is a weak one, For all the reason discussed above, we conclude that because seven months elapsed between Frady's the Secretary's decision regarding the machinist and earlier ERA complaint and the cancellation of the st-tter trainee positions is not supported 'by vacancy. 'The second factor cited by the Secretary is substantial evidence. his "conc1u[sion] that Lumpkin strongly suspected, if he did not have certain knowledge, that Frady had IV. Quality Control Inspector Position applied for the position." Id. This is by no means a forgone conclusion, given that Lumpkin canceled the One of the three contested allegations involves a vacancy before he received the applications from

quality control inspector position at the Sequoyah Human Resources. Yet the Secretary explicitly facility. Unlike the trainee positions, this position bases his conclusion on the following summary of was canceled rather than being filled by other Lumpkin's testimony: "although &umpkin] pias applicants. However, after Roy Lumpkin canceled .

unsure whether he had been told .. that Frady had the inspector vacancy, two inspectors "returned to applied for the job, he was 'reasonably certain if their positions as nuclear inspectors at the Sequoyah [Frady] wanted the inspector job at Sequoyah, he plant pursuant to the terms of a settlement would have applied.' " Id. We fail to see how this agreement." Secretary's Opiion at 36. The testimony leads to the conclusion that Lumpkin Secretary, therefore, 'conclude[dl that TVA, in strongly suspected or knew for sure that Frady had effect, filled the announced nuclear inspector vacancy applied.

with similarly .qual5ed candidates," thus establishing one element of a prima facie case. Id. In summary, substantial evidence is lacking with regard to at least two elements of a prima facie case Y

We find, however, that this conclusion is not of retaliation involving the canceled inspector supported by subshtial evidence for a number of position. Plaintiffcannot show that the canceled reasons. First, the two inspectors returned to their vacancy was filled with similarly qualified positions almost a year after the vacancy was 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) Page 5 (Cite as: 134F3d 372, 1998 WL 25003, **6 (6th Cir.))

successfully raised an inference of discrimination (6th Cir.1987), which Plaintiff failed to do here.

lacks adequate support. We bnclude, therefore, that the Secretary's decision regarding the inspector V. Conclusion position fails to meet the substantial evidence standard. In addition, we note that the consultant's The Secretary's decision for Plaintiff with regard to study, which recommended a reduction in staff, each of the three contested allegations is unsupported appears to be the legitimate reason for' the by substantial evidence. We, therefore, REVERSE cancellation, as Defendant contends. However, we that deciion and VACATE the orders of the need not reach this issue, because a defendant's secretary and Administrative Review Board. The obligation to proffer a legitimate reason for an Secretary's decision 'for Defendant regarding adverse employment decision is not triggered until a Plaintiffs other eleven alIegations is undisturbed.

prima facie case of d h h i n a t i o n is established, Moon v. Transpon Drivers, Inc., 836 F.2d 226, 229 END OF DOCUMENT Copr. Q West 2002 No Claim to Orig. U.S. Govt. Work

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

1 NOTICE: THIS IS AN UNPUBLISHED areas on February 12, 1967. In January 1981, FNB 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 Opinionswappearing 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 1981 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. In 1991, William Hoag was assigned as City Executive for Huntington in Burton overseeing the On Appeal from the United States District Court five branches within Geauga County. Also in 1991, for the Northern District of Ohio. Hoag installed Charles Bixler as Manager of retail banking operations, supervising operations in the Before NORRIS, MOORE, and COLE, Circuit Huntington branches. Although Lovas frequently Judges. worked with Hoag, she reported directly to Bixler, who evaluated her performance.

OPINION In 1994, due to the reduction in operations-related COLE, Circuit Judge. work, Lovas was assigned the position of City Office Compliance OfficerIOperations Specialist in

• • 1 Plaintiff, Marie A. Lovas, was terminated in a charge of reports for installment loans and the reduction-in-force by the defendant, Huntington remaining operations' functions in the Burton National Bank ("Huntington"). Lovas alleged that office. On internal Huntington forms, Bixler Huntington discriminated against her based on age designated Lovas's new position as a demotion.

and sex in violation of the Age Discrimination in Although Lovas's salary remained the same, her Employment Act, 29 U.S .C. $ 621 et seq.; Title salary grade was lowered and she considered the VII, 42 U.S.C. 5 2000(e) et seq.; Ohio Rev.Code 5 new position a demotion. Hoag considered Lovas's

$ 4 112 and 4101.17 and alleged several breaches of new duties an alternative to eliminating her position.

Ohio contract and tort law. The district court granted summary judgment in favor of Huntington, In 1995, Huntington moved the installment loan finding that Lovas failed to establish a prima facie compliance process from the Burton branch to a case of age or sex discrimination and also failed to centralized center in Dover, Ohio. Huntington's show that Huntington's proffered reason for the removal of the compliance process eliminated the termination wis pretextual. For the following "city compliancen portion of Lovas's position, reasons, we AFFIRM the district court's grant of leaving only the "operations specialistn duties.

summary judgment in favor of Huntington. 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 Lovas began working at First National Bank of "operations specialist" position due to a lack of Burton ("FNB")in the bookkeeping and operations work.

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• • 2 Hoag spoke with Human Resources Huntington moved for summary judgment on July representative Sandra Clarke about eliminating 17, 1998. The district court granted Huntington's Lovas's position and indicated that he and Bixler motion for summary judgment on January 29, 1999, would assume Lovas's remaining operations finding that Lovas failed to establish a prima facie specialist duties. Although Hoag designated Lovas's case of age discrimination under the ADEA and position for elimination, the human resources Ohio law or sex discrimination under Title VII and department deemed both Lovas and Bixler as Ohio law. Pursuant to 28 U.S.C. 3 1367(c)(3), the candidates for the reduction-in-force ("RIF") district court dismissed Lovas's remaining state-law because they were the employees involved in the claims without prejudice. Lovas filed a timely operations' function of the bank. notice of appeal.

Clarke, following the instructions of Huntington's vice-president of Human Resources, Cheri Webb, used Huntington's method of ranking employees We review de novo a district court's grant of competing for a particular position to determine summary judgment, using the same Rule 56(c) which employee -would be terminated in the standard as the district court. See Godfedrun v.

reduction. Clarke scored Lovas and Bixler in five Hess & Clark, Inc., 173 F.3d 365, 370-71 (6th performance categories, with the scores compiled Cir.1999). Under Rule 56(c), summary judgment is from their two most recent performance appropriate when "the pleadings, depositions, evaluations. The five performance categories were answers to interrogatories, and admissions on file, assigned numbers based on information from the together with the affidavits, if any, show that there performance evaluations. Lovas's performance is no genuine issue as to any material fact and that evaluations used in the analysis had been completed the moving party is entitled to a judgment as a by Bixler prior to the RIF, and no other personnel matter of law." Fed.R.Civ.P. 56(c). In deciding the information was used in the evaluation. After Clark motion, a court must view the evidence and draw all completed the comparison process, Bixler received reasonable inferences in favor of the nonmoving a score of 22 and Lovas received a score of 18.05. party. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). The On September 6, 1995, Clarke presented the results moving party bears the initial burden of to Hoag, who made the final decision to terminate demonstrating the absence of a genuine issue of Lovas and transfer her remaining duties to himself, material fact. See Celotex Corp. v. Carrett, 477 Bixler, and a temporary employee. Later that day, U.S. 317, 323-24 (1986). If the moving par&

Hoag and Webb informed Lovas of her termination. shows this absence, the nonmoving party must come Lovas participated in a transition program offered forward with specific facti showing that there is a by Huntington, but did not obtain a new position genuine issue for trial. See Matsushita, 475 U.S. at within the transition period. Lovas was officially 587. Merely alleging the existence of a factual terminated on March 6, 1995. dispute is insufficient to defeat a summary judgment motion; rather, there must exist in the record a On April 4, 1996, Lovas filed a charge of genuine issue of material fact. See Anderson v.

discrimination with the Equal Employment Liberty Lobby, Inc., 477 U.S. 242,247-50 (1986).

Opportunity Commission. The EEOC issued a notice of right to sue on April 11, 1997. Lovas filed 111.

suit in federal court on July 8, 1997, alleging that **3 The McDonnell DouglasBurdine framework is Huntington: (1) violated the Age Discrimination in applicable to claims brought under Title VII, the Employment Act ("ADEA"), 29 U.S.C. 621 et ADEA, and claims of discrimination under Ohio seq.; (2) discriminated on the basis of sex in state law, Ohio Rev-Code 5s 4112.02 and 4112.99.

violation of Title VII, 42 U.S.C. 5 2000(e) ef seq.; See Mitchell v. Toledo Hosp.,964 F.2d 577, 582 (3) discriminated on the basis of sex and age in (6th Cir.1992) (applying McDonnell Douglas C o p .

violation of Ohio Rev.Code 4s 41001.17, 4112.02 v. Green, 411 U.S. 792 (1972) and Tam Dep 'Z of and 4112.99; and (4) violated Ohio law by breach Community Agairs v. Burdine, 450 U.S. 248, 256 of implied contract, promissory estoppel and (1981)); Linle Forrest Med. Ctr. of Akron v. Ohio infliction of emotional distress. Civil Rights Comm'n, 575 ~ . ~ . 1164, 2 a 1167-68 (Ohio 1991) (same). Thus, the plaintiff's ADEA, Copr. O West 2002 No Claim to Orig. U.S. Govt. Works

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Title W and Ohio state-law discrimination claims termination is sufficient to establish a prima facie all arising from the same set of facts, can be case. The evidence, however, also shows that the properly analyzed together. 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 "A plaintiff who brings a claim under the [ADEA] operations-related duties withim the Huntington must prove that age was a determining factor in the branches. Lovas has offered no evidence showing adverse employment action taken against him or that the elimination of her operations' duties was her. " See Phelps v. Yale Sec., Inc., 986 F.2d 1020, motivated in part by age or that she was singled out 1023 (6th Cir.1993) (citing Kraus v. Sobel for impermissible reasons. Although Lovas contends Corrugared Containers, Znc., 915 F.2d 227, 229-30 that Hoag made derogatory comments about her (6th Cir.1990)). To establish a prima facie case of age, we find no reference to ageist comments by age discrjmination the plaintiff must show by a Hoag in our review of the record. Further, the preponderance of the evidence that (1) she was a comments noted by the district court-such as "your member of the protected class, (2) she was pension will be jeopardized if you don't shape up"-

subjected to an adverse employment action, (3) she do not establish circumstantial evidence that age was qualified for a patticular position, and (4) she motivated Lovas's termination or that .she was was replaced by a younger person. See Godfredson, singled out for termination. Accordingly, the district 173 F.3d at 365; see aLro O'Connor v. Consolidated court correctly found that Lovas failed to establish a Coin Caterers Corp., 517 U.S. 308, 311 (1996); prima facie case of age discrimination under the Skalka v. Femld Envtl. Restoration Mgmt. Cop., ADEA.

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, **4 Huntington contends that even if Lovas replaced. See Godfredson, 173 F.3d at 365 (citing established a prima facie case of age discrimination, Scon v. Goodyear Tire & Rubber Co., 160 F.2d she failed to show that Huntington's non-1121, 1126 (6th Cir.1991)). Instead, the fourth discriminatory reason for the termination was element of the prima facie case requires that a pretextual. We agree. Once a plaintiff has plaintiff discharged due to a RIF offer some "direct, established a prima facie case of age or sex circumstantial, or statistical evidence tending to discrimination, the burden of production shifts to indicate that the employer singled out the plaintiff the defendant to articulate legitimate, for discharge for impermissible reasons." Skalka, nondiscriminatory reasons for the adverse 178 F.3d at 420 (quoting Barnes v. GenCorp. Inc., employment action. See Kline v. Tennessee Valley 896 F.2d 1457, 1465 (6th Cir.1990)). Authority, 128 F.3d 337, 346 (6th Cir.1998).

Huntington contends that the employee comparison In the present case, the district court correctly process administered by the human resources determined that Lovas failed to establish the fourth department determined the employee to be element of a prima facie case of age discrimination. terminated after Hoag eliminated Lovas's position.

Lovas contends that as "the only forty-eight year old Because Huntington has set forth a legitimate, non-officerw who was demoted in 1994 and later discriminatory reason, Lovas must show that their terminated in 1995, she established the fourth proffered reasons are pretextual. See Saint Mary's element of the prima facie case. Huntington's Honor Czr. v. Hicks, 509 U.S. 502, 511 (1993).

evidence, however, shows that five employees older There are three ways a plaintiff may establish that a than Lovas in the bank's Geauga County branches proffered explanation is pretextual. See Kline, 128 were retained in the RIF. Thus, the fact that Lovas F.3d at 346. A plaintiff can establish pretext by was the "only forty-eight year old officerwdemoted showing by a preponderance of the evidence that the or terminated does not establish that she was singled given reason is factually false, by showing that the out because of her age when placed in context. stated reason is insufficient to explain the adverse employment action or finally, by showing that the Lovas does not dispute that older employees were stated reason was not the actual reason. See id. In retained, but contends that the isolated nature of her cases in which the employer's explanation is Copr. O West 2002 No Claim to Orig. U.S. Govt. Works

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challenged as not being the actual or true reason for terminated in the RIF. Huntington folIowed internal the adverse action, the plaintiff cannot rely on procedures to determine the candidates for evidence used to make a prima facie showing, but termination and the comparison of those candidates.

must introduce 'additional evidence of Lovas has not shown that the employee comparison discrimination. See Manzer v. Diamond Shamrock process was influenced or controlled by Hoag's Chemicals Co.. 29 F.3d 1078, 1084 (6th Cir. 1994). input or past disciplinary action. Lovas's evaluations used in the comparison process were Lovas failed to show that Huntington's employee completed by Bixler prior to the RIF and no comparison process was not the motivating cause of evidence shows that the evaluations were biased.

her termination. Lovas contends that Hoag's alleged Finally, as the district court noted, interviews are derogatory statements and the 1993 memorandum not required in RIF terminations. See Kline, 128 indicate that Huntington's reason was pretextual. F.3d at 351. Huntington has also established that the Although Hoag's alleged comments are indicative of human resources employee, Clarke, had limited distinctions on the basis of sex, and the discretion to assign scores based on information in memorandum indicates that Hoag clearly Bixler's and Lovas's employee evaluations. The disapproved of Lovas's past performance, the scores assigned to each employee were determined evidence does not support that the comparison by current job descriptions and performance process was pretextual. The memorandum did not evaluations. The employee comparison process has address Lovas's sex or age and only discussed not been shown to be false or tainted.

Lovas's failure to report to work during a 1993 weather-related outage and potential discipline for Without further evidence showing that the RIF was the infraction. Moreover, the comments and not the true reason for Lovas's termination, the memorandum lack any temporal proximity to the district court correctly determined that Lovas failed steady reduction in operations' personnel and to rebut Huntington's proffered reasons for her Huntington's elimination of Lovas's compliance termination.

duties. Lovas has not shown that Huntington's elimination of her position and its employee comparison process were false, or motivated by age. Lovas claims that she was terminated because of her sex in violation of Title W. A prima facie case Lovas also contends that Hoag's statements to of sex discrimination under Title W requires a Clarke that he and Bixler would assume Lovas's plaintiff to demonstrate by a preponderance of the duties constituted bias in the RIF comparison evidence that (1) she was a member of a protected process. Lovas argues that her performance class, (2) she was qualified for the position, (3) she evaluations used in the ranking process were suffered an adverse employment action, and (4) she conducted by Bixler, her supervisor, and were was replaced by a person outside of the protected inherently biased. In addition, the process was class. See Mitchell, 964 F.2d at 582-83 (citing tainted because there was no interview or other McDonnell Douglas, 411 U.S. at 802). "[A]

evaluation of the employees' skills. Although it is plaintiff can also make out a prima facie case by troubling that Hoag appears to have assumed that showing ... that a comparable non-protected person Lovas would be terminated prior to the human was treated better," in a claim of disparate resource process of eliminating her position, it treatment. Mirehell, 964 F.2d at 582; see also remains unchallenged that the decision to eliminate Hollins v. Atlantic Co., Inc., 188 F.3d 652, 658 Lovas's compliance officer duties was not made by (6th Cir.1999).

Hoag .

In a RIF, this court stated that an employee is not

• • 5 In addition, Huntington's human resource replaced when their duties are assigned to others department determined the candidates for the RIF doing related work in addition to the plaintiff's based upon the position eliminated. Hoag's duties. See Barnes, 896 F.2d at 1465. rnl]In the statements assuming that the position e l i t i o n present case, Lovas contends that no other male was meant that Lovas would be terminated did not alter demoted and terminated. "To prevail on a claim of Huntington's formulaic approach to comparing disparate treatment a plaintiff must show that her employees and determining who would be employer intentionally discriminated against her."

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Lynch v. Freeman, 817 F.2d 380 (6th Cir.1987); inference that the workforce reduction was not the see also Huguley v. General Motors Cop., 52 F.3d reason for the discharge. See id. at 1464-65.

1364, 1370 (6th Cir. 1995). Intent can be established by proof of "actions taken by the employer from **6 Because Lovas has failed to rebut Huntington's which one can infer, if such actions remain proffered reasons for her termination, however, we unexplained, that it i s more likely than not that such need not reach Lovas's prima facie case of sex actions were 'based on a discriminatory criterion discrimination. See Kline, 128 F.3d at 346.

illegal under the Act." ' Furnco Constr. C o p . v. Assuming that Lovas established a prima facie case Waters, 438 U.S. 567, 576 (1978) (quoting of sex discrimination, she has failed to show that International Brotherhood of Teamsters v. United Huntington's reasons were not the actual or true States, 431 U.S. 324, 358 (1977)); see aLro Shah v. reasons for her termination. The alleged comments General Elec. Co., 816 F.2d 264, 267 (6th by Hoag--"there's a woman for you" and "what do Cir. 1987) (stating that proof of discriminatory you expect from a womanw--donot demonstrate that motive can be inferred from differences in Huntington's reduction of operations' personnel and treatment). Accordingly, Lovas must show that comparison process were not the reasons for similarly situated individuals were treated Lovas's termination. In addition, Hoag's differently, producing evidence that the comparable memorandum does not refer to Lovas's sex at all, employees are similarly situated with regard to but merely addresses a potential disciplinary action relevant aspects of employment. See Ercegovich v. arising from a particular incident three years prior Goodyear lire & Rubber Co., 154 F.3d 344, 352 to Lovas's dismissal. Moreover, Hoag's (6th Cir.1998) (discussing similarly situated in memorandum and comments are not temporally context of employment and position). connected to the elimination of Lovas's position in the RIF or Huntington's comparison process.

FNI.In Barnes, this court explained: Because Lovas has failed to demonstrate that A work force reduction situation occurs when Huntington's reasons were not the actual or true business considerations cause an employer to reasons for the termination, we affii the district eliminate one or more positions within the court's grant of summary judgment on Lovas's sex company. An employee is not eliminated as part of discrimination claim in favor of Huntington.

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 For the foregoing reasons, we AFFIRM the d i i c t other existing employees already performing court's grant of summary judgment in favor of related work. A person is replaced only when Huntington on Lovas's discrimination claims.

another employee is hired or reassigned to perform 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 was subjected to an adverse employment action, and PUBLICATION. SIXTH CIRCUIT RULE 24 LIMITS there was a causal connectionbetween the protected CITATION TO SPECIFIC SITUATIONS. PLEASE activity and the adverse employment action. The court SEE RULE 24 BEFORE CITING IN A PROCEEDING found that a reasonable jury could have supported a IN A COURT IN THE SIXTH CIRCUIT.IF CITED, A conclusion of a pretext but that because the employer had COPY MUST BE SERVED ON OTHER PARTIES no knowledge of the protected activity, an inference of AND THE COURT. THIS NOTICE IS TO BE unlawful retaliation where the basic question of PROMINENTLY DISPLAYED IF THIS DECISION IS knowledge itself was in doubt could not have been made.

REPRODUCED. There was no evidence that the employer knew of the employee's protected activity. Thus,the employee failed SUBSEQUENT HISTORY: Reported in Table Case to make out a prima facie case sufficient to create a jury Format at: 124 F.3d 199,1997 US.App. LEXlS 30684. question as to the ultimate fact of un1awfi.d retaliation.

PRIOR HISTORY: On Appeal fiom the United States OUTCOME: The judgment of the district court granting District Court for the Eastern District of Tennessee. the employer's motion for surmnaryjudgment was a&rmed.

DISPOSITION: AFFIRMED.

CASE

SUMMARY

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, PROCEDURAL POSTURE: Plaintiff employee filed an causal connection, deposition, friendship, vacation, action against defendant employer in the United States attend, circumstantial evidence, race discrimination, District Court for the Eastern District of Tennessee produced evidence, preponderance, favorable, paradigm, alleging she was fired in retaliation for a decision to termination, suspension, scheduled, afternoon testify against the employer in an unrelated matter in violation of 42 U.S.C.S. 5s 2000e-2000e-17. The CORE CONCEPTS -

employer filed a motion for summaryjudgment, which was granted. The employee appealed. Civil Procedure: Summary Judgment: Summary Judgment Standard OVERm The district court concluded the employee Civil Procedure: Appeals: Standards of Review: De did not establish a prima facie case of unlawful Novo Review retaliation or prove that the employer's proffered reason The appellate court reviews a district court's grant of for the discharge was a pretext for such retaliation. The summary judgment de novo, examining the record and employee claimed that there was su&cient evidence to drawing all inferences in the light most favorable to the permit a reasonablejury to find the elements of a prima non-moving party.

facie case. The court affirmed the judgment. To establish a prima facie case of unlawfid retaliation the employee ConstitutionalLaw: Civil Rights Enforcement: Civil had to prove that she was engaged in a protected activity, Rights Act of 1964 the protected activity was known to the employer, she Labor & Employment Law: Discrimination: Title VII

Page 13 1997 U.S. App., LEXIS 26254,

• In order to establish a prima facie case of unlawfid prove that DCI's proffered reason for the discharge was a retaliation under Title W of the Civil Rights Act of pretext for such retaliation. We agree that Peterson has 1964, a plaintiff must prove, by a preponderance of the not produced evidence sufficient to permit a reasonable evidence that: 1) she engaged in a protected activity; 2) jury to find the elements of the prima facie case.

thisprotected activity was lcnown to defendant; 3) she Accordingly, we will affirm.

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 DCI is a not-for-profit corporation which provides unlawful retaliation. dialysis treatment at multiple locations. Pam Bethune is the administrator of several DCI facilities, including the Labor & Employment Law: Discrimination: Disparate "Broad Street" facility in Chattanooga, Tennessee.

Treatment Mickey Chumley is the head nurse at the Broad Street Once the plaintiff establishes a prima facie case, the location. As head nurse, Chumley supervises daily burden shifts to the employer to articulate a legitimate, operations and reports to Bethune.

nondiscriminatoryreason -forthe challenged employment action. The plaintiff then has the opportunity to prove by Peterson, a registered nurse, was hired by DCI in June a preponderance of the evidence that the legitimate 1993. After completing training, Peterson was assigned reasons offered by the defendant were not its true to the Broad Street facility. According to Peterson, reasons, but were a pretext for unlawfid retaliation. almost immediately after she began working at Broad Evidence sufficient to permit a reasonable jury to Street, Chumley made racially hostile remarks regarding conclude that the defendant's proffered reasons were not a blacknurse, Sharon Parks. Peterson stated in her its true reasons, together with evidence sufficient to deposition that Chumley indicated that Bethune had establish the elements of the prima facie case, is "gotten rid of' or "run off" two other black employees.

&cient to create a jury question as to the "ultimate factn of unlawful retaliation. In October 1993, Parks filed[*3] a charge of race discrimination in response to a suspension. According to COUNSEL: For MARTHA J. PETERSON, Plaintiff - Parks, she asked Peterson to testify on her behalf several Appellant: Robert D. Bradshaw, Chattanooga, TN. times, beginning in November 1993. Both Peterson and Parks agree that it was sometime in Deceniber when For DIALYSIS CLINIC INC, Defendant Appellee: Tim Peterson agreed to testify for Parks.

K. Garrett, Bass, Berry & Sims, Nashville, TN.

Explaining her decision to testify, Peterson stated that, JUDGES: BEFORE: NELSON and RYAN, Circuit although she had initially complained to Chumley about Judges; QUIST, District Judge.

• Parks's attitude and work ethic, she eventually came to think of Parks as a good worker and a fiiend. Peterson

• The Honorable Gordon J. Quist, United States added that she had been goaded into complaining about District Judge for the Western District of Michigan, Parks by C h d e y . According to Peterson, Chumley was sitting by designation. 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 OPINIONBY: RYAN Peterson's plan to donate a kidney to her sister. After returning to work that same day, Peterson told Chumley OPINION: RYAN, Circuit Judge. Martha J. Peterson that she had a second appointment with a transplant filed suit against Dialysis Clinic, Inc. (DCI), pursuant to coordinator at 1:00 p.m, on February 23,1994. Peterson 42 U.S.C.§$2000e-2000e-17, Title W of the Civil asked Chumley for permission to attend the appointment, Rights Act of 1964, alleging that DCI fired her in and offered to give up one of her vacation days, retaliation for her decision to testify on behalf of a scheduled for February 18-22,1994. Accordmg to coworker who had fded a charge of race discrimination. Peterson, Chdey[*4] told her that she did not need to DCI moved for and was granted summary judgment. [*2] give up a day of vacation, and that they would "work it The district court concluded that Peterson could neither out" so that Peterson could keep the appointment.

establish a prima facie case of u n l a a retaliation nor

Page 14 1997 U.S.App. LEXS 26254,

• Chumley testified, however, that she subsequently told Peterson's intent to testify for Parks, or that there was a Peterson that, although Peterson could keep her connectionbetween Peterson's protected activity and her scheduled vacation, she would have to reschedule her discharge.

February 23 appointment because the Broad Street facility was experiencing uneqected staffing shortages. Both Bethune and Chumley denied having knowledge Peterson does not dispute that Chumley made some of Peterson's decision to testify on behalf of Parks.

statement to this effect, but Peterson contends that, in Peterson herself acknowledged that she had not shared context, Chumley appeared to be joking. her decision with any representative of DCI, because she "did not think that [it] was in [her] best interests" to do Peterson and Chumley apparently continued to have so. Parks likewise testified that she did not tell anyone B c u l t y communicating about the February 23 about Peterson's decision.

appointment. According to Peterson, although Chumley made vague statements suggesting that Peterson's However, both Parks and Peterson submitted &davits appointmentwas an inconvenience, Chumley never told in which they averred that they had discussed Peterson's Peterson that she could not keep her appointment or that decision to testify "on several occasions in the breakroom she would be fired if she did so. Chumley testified in h a at DCI's Broad Street facility." They explained that the deposition, however, that she made it clear to Peterson employees at Broad Street were prone to gossip, and that that Peterson did not have permission to leave, and that, "once one[*7] employee learned information about if Peterson left, she would not have a job when she another employee, it was repeated until all of the returned. Peterson left for her appointment sometime elnployees knew about it." Another nurse, Connie shortly before 1:00 p.m. After consulting with Bethune, Bedwell, who was herself discharged for excessive Chumley[*5] fired Peterson when Peterson returned to absenteeism, submitted an affidavit in which she averred work later that afternoon. that she overheard two other employees discussing the fact "that Martha Peterson was going to support [Parks's]

Peterson went immediately to Bethune's office to complaint with her testimony."

dispute her termbation. Bethune agreed to place Peterson on suspension and conduct an investigation. On May 16,1996, the district court concluded that Upon review, however, Bethune concluded that Peterson Peterson had failed to establish a prima facie case of had left work without permission and she informed udawfid retaliation under Title VII, and it granted DCI's Peterson that her termination would not be rescinded. motion for summaryjudgment. Specifically, the district court concluded that Peterson had failed to submit Louise Roberson, a nurse who works at the DCI facility evidence sufficient to establish either that DCI knew she where Bethune's office is located, testified in her had engaged in protected activity or that there was a deposition that she was asked at 8:40 a.m., on February causal connection between her protected activity and her 23,1994, by the head nurse at her facility, if she would discharge. The district court also concluded that Peterson be able to fill in at the Broad Street facility the following could not succeed at the pretext stage because "she has week Roberson explained that she asked, "Who's quit utterly failed to produce evidence that DCI was now?" because Broad Street "has had a bad reputation motivated to fire her for her involvement with Parks for many years of not being able to keep staff." Roberson rather than because of her Ieaving the facility without was told that "Martha [Peterson]" had quit. When permissio~~"

Peterson arrived to speak to Bethune later that afternoon, Roberson told Peterson that she was sorry to hear that Peterson filed a motion for reconsideration, relying Peterson had quit. Roberson testified that Peterson told heavily on Roberson's testimony, [*8]which the district her that she had not quit, but, rather, had been fired. 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.

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 Peterson argues that the district court erred when it summaryjudgment, arguing that Peterson could neither granted DCI's motion for summaryjudgment.

establish a prima facie case nor prove that DCI's reason Specifically, Peterson argues that the totality of the for firing Peterson was a pretext for unlawful retaliation. circumstances, including: the "gossip$ work With specific regard to the prima facie case, DCI argued environment; Bedwell's testimony; Chumley's hostility to that Peterson could not prove that DCI h e w of Peterson's fiendship with Parks, Chumley's awareness

Page 15

- 1997 U.S.App. L.EXIS 26254,

• that Peterson knew of racial hostility directed at Parks; excuse to fire her. In other words, this testimony could Peterson's otherwise unblemished work record; the support the conclusion that DCI's proffered reason for timing of Peterson's discharge; and Roberson's testimony, discharging Peterson was a pretext-the critical question is sufficient to permit a reasonable jury to conclude that being: "a pretext for what?" If Peterson[*l 11has DCI h e w of Peterson's decision to testify and that DCI produced sufficient evidence to prove the elements of the discharged Peterson because of this knowledge. We prima fatie case, a reasonable jury could conclude that disagree. DCI's proffered reason was a pretext for udawfid retaliation.

This court "review[s] a district c o d s grant of s u m judgment de novo, examining the record and After a careful and thorough consideration of all the drawing all inferences in the light most favorable to the evidence in the record, however, we find that we are in non-moving party." Woythal v. Tex-Tenn Corp., 112 agreement with the district court's conclusion that F.3d 243, 245-46 (6th Cir. 1997). Peterson has not produced evidence sufficient to establish the third or fourth elements of a prima facie In order to establish a prima facie case[*9] of udawfid case of unlawful retaliation On the record before us, we retaliation under Title W, a plaintiff must prove, by a sirnply cannot conclude that it would be reasonable, as preponderance of the evidence that: 1) she engaged in a distinguished fiom speculative, for a jury to conclude protected activiv, 2) this protected activity was known to that DCI lcnew of Peterson's protected activity and that defendant; 3) she was thereafter subjected to an adverse this knowledge was causally connected to Peterson's employment action; and 4) there was a causal connection discharge.

between the protected activity and the adverse employment action. Caniiia v. Yellow Freight Sys., Inc., Although the paradigm established by McDonneZZ-903 F.2d 1064, I066 (6th Cir. 1990). The "central Douglas Corp. v. Green, 411 U.S. 792,36L. Ed. 2d 668, inquiry in evaluating whether the plaintiff has met per] 93 S. Ct. 1817 (1973), was designed to accommodate initial burden is whether the circumstantial evidence discrimination claims based on circumstantial evidence, presented is sufficient to create an inference" of unlawful see Bums v. City of Columbus,Dep't of Pub. Safety, Div.

retaliation. Shah v. General Elec. Co., 816 F.2d 264, 268 of Police, 91 F.3d 836, 843 (6th Cir. 1996), a plaintiff (6th Cir.1987); see EEOC v. Avery Dennison Corp., 104 relying on this paradigm to prove unlawfid retaliation F.3d 858, 861 (6th Cir. 1997). typically has direct evidence that the defendant was aware of the plaintiff's [*12]protected activity. See, e.g.,

Once the plaintiff establishes a prima facie case, the Hamison v. Metropolitan Gov't of Nashville and burden shifts to the employer to articulate a legitimate, Davidron County, Tenn., 80 F.3d 1107,1118 (6th Cir.),

nondiscriminatoryreason for the challenged employment cert. denied, 136 L. Ed. 2d 111,117S. Ct. 169 (1996);

action. St. Maly's Honor Ctr. v. Hicks, 509 U.S.502, Jackson v. RKO Bottlers of Toledo, Inc.. 743 F.2d 370, 506-07,125 L. Ed. 2d 407,113 S. Ct. 2742 (1993). The 377 71.3(6th Cir. 1984). In such cases, the dficult plaintiff then has the "opportunity to prove by a question is whether the defendant's knowledge of the preponderance of the evidence that the legitimate reasons plaintifl's protected activity motivated the adverse offered by the defendant[*101were not its true reasons, employment ation.

but were a pretext for" unlawful retaliation. Id. at 515 (quoting Texas Dep't of CommunityAfairs v. Burdine Hek, however, there is no drrect evidence that DCI 450 US.248,253,67 L. Ed. 2d 207,101 S. Ct. 1089 knew that Peterson had agreed to testify on behalf of (1981)). Evidence sufficient to permit a reasonable jury Parks. Although we do not intend to suggest that such to conclude that the defendant's proffered reasons were direct evidence is always necessary, this case highIights not its true reasons, together with evidence sufficient to how di&cult it is to create an inference of unlawful establish the elements of the prima facie case, is retaliation where the basic question of knowledge is itself sufficient to create a jury question as to the "ultimate in doubt.

fact" of unlawfid retaliation. Id. at 5 11; EEOCv. Yenkin-Majestic Paint Corp., 112 F.3d 831,834 (6th Cir. 1997). Both Peterson and Parks indicated that they endeavored to keep their arrangement secret, and both Bethune and In the light most favorable to Peterson, Roberson's Chumley denied that they were aware of Peterson's testimony that she was told that Peterson had quit several decision to testify. Although Bedwell's testimony might hours before Peterson committed the act which allegedly establish that Peterson's decision became grist for the led to her discharge, and Peterson's testimony that she office rumor mill, and Peterson's testimony might was led to believe that she had permission to attend her establish that Chumley was aware of and hostile to appointment, could permit a reasonablejury to conclude Peterson's friendship with Parks, there is nothing[*13] in that DCI manipulated Peterson so that it would have an 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 that DCI knew of Peterson's decision to test@ and an activity. inference that there was a causal connection between such knowledge and Peterson's discharge.

Any inference of un1awfi.d intent which &ght arise fiom the timing of Peterson's discharge, an inference In the end, then, although we accept that Roberson's which is of questionable strength to begin with, see, e.g., testimony may suggest that something was afoul, we Cooper v. City of North Olmted, 795 F.2d 1265,1272- cannot conclude that the evidence permits the reasonable 73 (6th Cir. 1986), is significantly blunted by the fact inference that this something was DCI's knowledge of that there is no evidence that DCI knew of Peterson's Peterson's decision to testify on Parks's behalf.

protected activity, cf. Polk v. YellowFreight 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 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: the employee's speech was not protected activity under

[**I] NOT RECOMMENDED FOR FULL-TEXT the civil rights statutes, Title W of the Civil Rights Act PUBLICATION. S E T H CIRCUIT RULE 28(g) of 1964,42 U.S. CS.§ 2000e et seq., and 42 U.S.C.S.

LIMITS CITATION TO SPECIFIC STTUATIONS. 1983, it held that summary judgment was nonetheless PLEASE SEE RULE 28(g) BEFORE CITING IN A proper because the employee could not establish a causal PROCEEDING IN A COURT IN THE SMTH connection between her conversation with the state CIRCUIT. IF CITED, A COPY MUST BE SERVED officer, which could be protected speech, and her firing, ON OTHER PARTIES AND THE COURT. THIS based on the supervisor's testimony that her tennination NOTICE IS TO BE PROh4DENTLY DISPLAYED IF was already contemplated. She therefore could not prove THIS DECISION IS REPRODUCED. that her speech was a substantial or motivating factor in the decision to terminate her employment.

PRIOR HISTORY:

On Appeal from the United States District Court for the OUTCOME: Summary judgment was affirmed on a Southern District of Ohio. 97-00460. Marbley. 3-28-00. different ground, that the employee failed to show the requisite causal connection between her activity and her DISPOSITION: tennination.

AFFIRMED.

CASE

SUMMARY

JUDGES:

Before: GUY and MOORE, Circuit Judges; and HULL, PROCEDURAL POSTURE: Discrimination plaintiff, a District Judge.

• terminated employee, appealed from a grant of summary judgment by the United States District Court for the

• The Honorable Thomas G. Hull, United States Southern District of Ohio in favor of defendants, District Judge for the Eastern District of employer and supervisor, and held that she had not Tennessee, sitting by designation.

participated in protected activity, it was causally unrelated to her termination, and her speech in issue did OPINIONBY:

not address a matter of public concern under U.S. Const. RALPH B .GUY, JR.

amend. I.

OPINION:

OVERVIEW. The employee was the senior Equal Employment Opportunity compliance officer and Chief of co an ~ L o u r c e sf o r employer. As such, she RALPH B. GUY, JR, Circuit Judge. Plaintiff, participated in other employees' discrimination claim Florence A. Warren, appeals from the order granting investigations. Defendant supervisor testified that he summary judgment in favor of defendants, Ohio terminated the employee because of complaints about the Department of Public Safety (ODPS) and William L.

ineffectiveness of the Human Resources division and Vasil. Plaintiff argues that the district court erred in lack of confidence in her judgment and reliability, and finding (1) that she did not participate in protected had planned to do so before she engaged in her alleged activity under the retaliation provisions of Title VII, (2) protected speech to a state official. Although the court of that there was no causal connection between protected appeals questioned the district court's detennination that 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 that Vasil acted illegally in his direct handling of several under the First Amendment. n l For reasons different discrimination issues, including the Julie Smith matter.

than those given by the district court, we &m the grant In the afternoon of that same day, Vasil gave plaintiff of summary judgment. 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 n l Plaintiff does not pursue and, therefore, the afternoon of the day that plaintiffs employment was has abandoned on appeal the dismissal of her terminated.

other 42 U.S.C. § 1983 and state law claims. 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.

Plaintiff was the senior EEO compliance officer and Defendants offered evidence that Vasil decided to Chief of Human Resources at ODPS. At the relevant discharge plaintiff and took steps to initiate the discharge times in this case, plaintiff reported to defendant Vasil, before plaintiffs meeting with Armstrong. In anticipation the Assistant Director of ODPS. of discharging plaintiff, Vasil discussed transferring plaintiffs duties to another employee. Vasil talked to Plaintiffs duties included supervising personnel Warren Davies about having John Demaree assume matters; providing advice to the Director and the responsibility for all human resource matters for ODPS.

Assistant Director regarding personnel matters; drafting Davies [**5] stated in his affidavit that this discussion pamphlets and handbooks concerning work rules, occurred approximately two weeks before November 9.

disciplinary procedures, and other matters related to EEO While they did not specifically discuss plaintiffs compliance. Plaintiff also investigated or supervised the termination, Davies understood that Vasil was going to investigation of sexual discrimination [*263] &d transfer all of plaintiffs responsibilities to Demaree. The harassment complaints by ODPS employees. transfer of those responsibilities became effective on There were a large number of sexual discrimination November 9.

and harassment complaints within ODPS during [**3] Vasil did specifically discuss plaintiffs termination plaintiffs tenure. Three specific intemal investigations with Armstrong. Armstrong testified in her affidavit and were the focus of plaintiffs Title VII claim. The first during her deposition that Vasil told her several weeks involved Bessie Smith, a Human Resources employee, before the November 9 meeting that Vasil intended to who was disciplined in May 1995 for neglect of duty and discharge plaintiff and restructure the Human Resources malfeasance. As a result of Bessie Smith's mishandling functions within ODPS. Finally, Demaree testified that of the termination of another employee, the terminated several days before November 9, 1995, Vasil asked him employee was awarded back pay. There were no to prepare the paperwork for terminating plaintiffs allegations of discrimination under Title W in that employment.

internal investigation. In the second, Rebecca Gustamente complained of sexual harassment by her The district court granted summary judgment in supervisor. In November 1994, the supenisor was favor of defendants. Plaintiff appealed.

reassigned within ODPS. Gustamente testified that she was not subjected to further harassment thereafter.

Warren testified that her last involvement with the [HNI] We review de novo the district court's grant Gustamente complaint was in mid to late 1994 and no of summary judgment. See, e.g., [*264] Smith v.

later than February 1995. Julie Smith was the subject of Ameritich, 129 F.3d 857, 863 (6th Cir. 1997). We may the third investigation. Julie Smith was disciplined in a f f i the grant of summary judgment on other grounds, August 1995, after she was charged with sexual even one not considered by the district court. Boger v.

harassment by another female employee. Wayne County, 950 F.2d 316, 322 (6th Cir. 1991). [*,*a Summary judgment is appropriate when there are no Plaintiff subsequently heard that the union was issues of material fact in dispute, and the moving party is considering filing an unfair labor practices complaint or entitled to judgment as a matter of law. FED. R. CIV. P.

class action litigation with respect to discrimination 56(c). In deciding a motion for summary judgment, the complaints. She then arranged to meet with Maria J. court must view the factual evidence and draw all

[**4] Armstrong, the Deputy Chief Legal Counsel for reasonable inferences in favor of the non-moving party.

the Governor of Ohio, on the morning of November 9, See Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,

1995. Plaintiff states that she informed Armstrong of the 475 U.S. 574, 587, 89 L Ed. 2d 538, 106 S. Ct. '1348 threatened union action and discussed plaintiffs concerns (1986).

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

With respect to the Julie Smith and Rebecca A. Title W Retaliation Gustamente internal investigations, the district court found that there was no protected activity under the

[HN2] Title W prohibits an employer from participation clause because plaintiff did not participate retaliating against an employee who has "opposed any in an EEOC proceeding. Plaintiff argues on appeal that practice by an employer made unlawful under Title W. internal investigations by an employer's EEO compliance It also prohibits retaliation against an employee who has officer are protected activity under the [*265]

"participated" in any manner in an investigation under participation clause. This Court has not directly Title W. 42 U.S.C. 3 2000e-3(a).These two provisions addressed the question of whether participation in are known as the opposition clause and the participation internal [**9] investigations constitutes protected clause. See Johnson v. Univ. of Cincinnati, 215 F.3d 561, activity under the participation clause. n2 Other courts, 578 (6th Cir.), cert. denied, 531 U.S. 1052, 121 S. Ct. however, have held that protected activity under the 657,148 L Ed. 2d 560 (2000). participation clause does not include participation in

[HN3] To establish a claim under either the internal investigations. See EEOC v. Total Sys. Servs.,

opposition or the participation clause, plaintiff must Znc.. 221 F.3d 1171, 11 74 (11th Cir. 2000); Brower v.

show that (1) she engaged in activity [**7] protected by Runyon, 178 F.3d 1002, 1006 (8th Cir. 1999); and Title W, (2) this exercise of protected activity was Vasconcelos v. Meese, 907 F.2d 111, 113 (9th Cir.

known to defendants, (3) defendants took an adverse 1990).

employment action, and (4) there was a causal connection between the protected activity and the adverse employment action. If plaintiff establishes this n2 See Davis v. Rich Prods. C o p , 2001 U.S.

prima facie case, the burden shifts to defendants to App. LEXIS 7114, 2001 WL 392036 (6th Cir.

articulate legitimate, nondiscriminatory reasons for Apr. 9,2001) (unpublished disposition).

plaintiffs discharge. Plaintiff must then demonstrate that the proffered reasons were a mere pretext for discrimination. Id. The plaintiff bears the burden of These decisions comport with the plain language of persuasion throughout the entire process. See Morris v. 42 U.S.C. 2000e-3(a):"because he has made a charge, Oldham County Fiscal Court, 201 F.3d 784, 793 (6th testified, assisted, or participated in any manner in an Cir. 2000). investigation, proceeding, or hearing under this subchapter." (Emphasis added.) They also are consistent Plaintiff argues that she was retaliated against in with our decision in Booker v. Brown & Williamson violation of both the participation and the opposition Tobacco Co., 879 F.2d 1304, 1313 (6th Cir. 1989).

clauses because she complained about Vasil to where we stated that [**lo] the purpose of the Armstrong at the November 9 meeting. The district court participation clause is "to protect access to the machinery in this case found that plaintiff did not engage in available to seek redress for civil rights violations and to protected activity under the participation clause and that protect the operation of that machinery once it has been she failed to show a causal connection between her engaged." In Booker, we examined the participation aIIeged opposition activities and her termination. We clause under Title VII in interpreting similar provisions find that summary judgment was appropriate on both under the Michigan Elliott Larsen Civil Rights Act. We plaintiffs opposition and participation [**8] claims concluded that the language must be read literally and, because she failed to show a causal connection between therefore, the instigation of proceedings leading to the the alleged protected activity and her termination.

filing of a complaint or a charge, including a visit to a

1. Participation Claim government agency to inquire about filing a charge, is a prerequisite to protection under the participation clause.

The district court concluded that plaintiff failed to Id.

establish a claim of retaliation with respect to the Bessie Smith internal investigation because there were no It is not necessary, however, for us to decide allegations of violation of Title VII rights. We agree. whether an internal investigation is protected activity Section 2000e-3(a) requires participation in proceedings under the participation clause. To do so would not fully under Title VII or opposition to unlawful employment resolve the case because plaintiffs participation in the practices under Title W. HoMen v. Owens-Illinois, lnc., internal investigations and her meeting with the 793 F.2d 745, 748 (6th Cir. 1986). There were no Title Governor's office may have been protected activity under VII allegations involved in the Bessie Smith matter, and the opposition clause. See Booker, 879 F.2d at 1313 n.3; it cannot form the basis of a retaliation claim under Title Laughlin v. Metro. Wash. Airports Auth., 149 F.3d 253, W. 259 (4th Cir. 1998). Whether plaintiffs participation in the Julie Smith [**I11 and Rebecca Gustamente internal

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

investigations is considered protected activity under the responsive to the testimony of Vasil, Armstrong, and participation clause or the opposition clause, as discussed other employees that Vasil took steps to transfer in the next section, plaintiff failed to show the requisite plaintiffs duties to Demaree and asked Demaree to causal connection. prepare paperwork to terminate plaintiffs employment before Vasil learned of the meeting with Armstrong.

2. Opposition Claim. Employers need not suspend previously contemplated m 4 ] Under the opposition clause, the person employment actions upon learning of protected activity opposing apparently discriminatory practices must have by the employee. See Alexander, 121 S. Ct. at 1511 (no a good faith belief that the practice is unlawful. There is evidence of causality where employer planned to transfer no qualification on who the individual doing the employee before learning Title W suit had been filed).

complaining may be or on who the party to whom the Here, plaintiff offered no evidence, other than mere complaint is made. Thus, the fact that the plaintiff is a temporal proximity, that she was terminated because of human resource diiector who may have a "contractual the Armstrong meeting. Plaintiff has failed to raise a duty to voice such concerns" does not defeat a claim of genuine issue of material fact of causation. Accordingly, retaliation; and the complaint may be made to a co- she has failed to establish [**I41 a prima facie case of worker, a newspaper reporter, or anyone else. Johnson, retaliation under Title W,and summary judgment in 215 F.3d at 579-80. favor of defendants is appropriate.

[HN5] To defend against summary judgment, plaintiff was required to show the existence of a causal n3 The issue of causation as it related to the connection between her protected activities and her internal investigations was briefed by the termination. Temporal proximity alone in the absence of defendants before the district court and on appeal.

other direct or compelling circumstantial evidence is Plaintiff, therefore, has not been denied the generally not sufficient to support a finding of causal opportunity to respond, and it is appropriate for connection. See Nguyen v. City of Cleveland, 229 F.3d us to affirm summary judgment on this other 559, 566 (6th Cir. 2000). [**I21 Cases addressing this ground. See Carver v. Dennis, 104 F.3d 847,849 issue have said that temporal proximity may establish a (6th Cir. 1991). Plaintiffs involvement in the prima facie case only if the temporal proximity is "very Gustamente sexual harassment investigation was

[*266] close." Clark County Sch Dist. v. Breeden, 532 resolved by November 1994, or at the latest U.S. 268, 121 S. Cr. 1508, 1511, 149 L Ed. 2d 509 February 1995; and the Julie Smith internal (2001). See also, Hafford v. Seidner, 183 F.3d 506, 515 investigation was completed by August 1995.

(6th Cir. 1999) (absent additional evidence, two to five Plaintiff offered no evidence to show a causal months insufficient to create a triable issue of causation);

connection between these investigations and her Cooper v. City of North Olmsted, 795 F.2d 1265, 1272 termination. In the absence of any other evidence (6th Cir. 1986) (four months insufficient to support an of retaliatory conduct, the single fact that plaintiff inference of retaliation). was discharged two to eleven months after she The district court found that plaintiff failed to show was involved in internal discrimination a causal connection between her alleged oppositional investigations does not establish a causal activity and her termination because the Gustamente connection between protected activity and her matter had been resolved almost 11 months before termination.

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 B. First Amendment clauses. She relies wholly on the temporal proximity of her meeting in the morning with Armstrong and her [HN6]A public employee has the constitutionally termination in the afternoon of November 9 to establish protected right to comment on matters of public concern causation. n3 Defendants [**I31 claim that there was no without fear of reprisal from the government as causal comection because Vasil decided to terminate employer. n4 See Connick v. Myers, 461 US. 138, plaintiffs employment before the meeting. Plaintiff [*267] 147, 75 L Ed. 2d 708,103 S. Ct. 1684 (1983). A argues that Vasil's statements should be discredited public employee does not forfeit his protection against because in his deposition he could provide little detail governmental abridgement of freedom of speech if he about his reasons for terminating her employment, and decides to express his views privately rather than he did not ask that complaints about plaintiffs publicly. Givhan v. W.Line Consol. Sch Dist., 439 U.S.

performance be made in writing. This is not relevant or 410,412,58L 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.

i l 8 6 (6th Cir. 1995)-

n4 Defendants argue that plaintiffs Q 1983 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."

~efendankalso argue that Gaintiff abandoned

[HNlO] Allegations of racial and sexual [**I81 her First Amendment claim by not briefing it in 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 discrimination by a public employer are a "matter facts or arguments that were not considered by inherently of public concern" discussing Givhan, 439 the district court in making that ruling.

U.S. at 415-16); Strouss v. Mich. Dept. of Corr., 250 F.3d 336,346 n.5 (6th Cir. 2001) (sex& h k s m e n t is a matter of public concern); Boger. 950 F.2d at 322 (response - to reporter's question about racial To establish a $ 1983 claim for violation of -her discrimination addressed matter of public concern);

right to free speech, plaintiff must frst establish that her Matulin v. Vill. of Lodi, 862 F.2d 609, 612-13 (6th Cir.

speech was protected because it was directed toward an 1988) (sexual and handicap discrimination in the issue of public concern, and her interest in making the workplace are matters of public concern). Whether the speech outweighs the public employer's interest in motive behind complaining of discrimination is civic promoting the efficiency of the public services. See Mt. [*268] mindedness or an individual employee concern is Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. not relevant. What is relevant is the subject of the 274, 287, 50 L Ed. 2d 471, 97 S. Ct. 568 (1977); Bailey complaint, discrimination, which is a matter "inherently

v. Floyd County Bd. of Educ., 106 F.3d 135, 144 (6th of public concern." Perry v. McGinnis, 209 F.3d 597, Cir. 1997). Matters only of personal interest are not 608 (6th Cir. 2000).

afforded constitutional protection. Speech upon matters of public concern relates to "any -mtter of political, While plaintiff offered somewhat differing accounts social, or other concern to the community." Connick, 461 of her meeting with Armstrong, at one point in her U.S.at 146. It is a question of law for the court to decide deposition she testified [**I91 that she informed whether an employee's speech is a matter of public Armstrong of a potential problem relating to the handling concern. Johnson. 215 F.3d at 583. "Whether an of discrimination complaints, that Vasil had told plaintiff employee's speech addresses a matter of public concern not to be concerned because they were "just passing must be determined by the content, form, and context of through," and that the Governor's office needed to do a given statement, as revealed by the whole record." something about it. On this record, plaintiff presented Connick, 461 U.S. at 14748. sufficient evidence that her discussion with Armstrong was about the improper handling of sexual

[HN9] Once she establishes that her speech is discrimination complaints, which is inherently a matter protected, [**I71 plaintiff must present sufficient of public concern. The district court erred, therefore, in evidence to create a genuine issue that her speech caused finding that the discussion with Armstrong was not her discharge. The speech must have been a substantial protected speech under the First Amendment.

or motivating factor in defendants' decision to terminate her employment. See Mt. Healthy, 429 U.S. at 287. Defendants nonetheless are entitled to summary While causation ordinarily is a question of fact for the judgment. In order for plaintiff to prevail on her 5 1983 jury, a court may "nevertheless grant summary judgment claim. she must prove that her speech was a substantial on the issue of causation when warranted." Bailey, I06 or motivating factor in 'defendants' decision to terminate F.3d at 145. her employment. As discussed in the previous section, the evidence clearly shows that Vasil decided and took If the protected speech was a substantial or steps to effectuate plaintiffs termination before the motivating factor in an employee's termination, the meeting with Armstrong occurred and before he learned employer may present evidence that the employee would of the meeting. There being no material fact in dispute on have been terminated in the absence of the protected

Page 6 24 Fed.Appx. 259, *; 2001 U.S.App. LEXIS 21664, **

causation, defendants were entitled to summary [**20] AFFIRMED.

judgment on plaintiffs First Amendment claim.

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: she was separated from federal service based on her race,

[**I1 RULES OF THE THIRD CIRCUIT COURT OF in violation of Title VII. She also claimed that she was APPEALS MAY LIMIT CITATION TO terminated in retaliation for pursuing administrative EEO UNPUBLISHED OPINIONS. PLEASE REFER TO remedies, a protected activity under Title VII. Because THE RULES OF THE UNITED STATES COURT OF we agree with the district court that Williams' claim APPEALS FOR THIS CIRCUIT. raised no genuine issues of material fact, we affirm.

PRIOR HISTORY:

On Appeal from the United States District Court for the Barbara Williams brought the instant lawsuit after Middle District of Pennsylvania. (D.C. Civ. No. 1: CV- [**2] having been separated from federal service in 00-1283). District Judge: The Honorable Sylvia H. September 1999. nl Williams had been employed by the Rambo. Defense Logistics Agency @LA), a component of the United States Department of Defense, since 1985. At all DISPOSITION. times relevant to this case, Williams held the position of Affmed. Administrative Assistant, GS-05.

COUNSEL: nl The background and factual allegations For Barbara Williams, Appellant: Andrew J. Ostrowski, underlying this case are well known to the Harrisburg, PA. parties, and therefore, they are not detailed here, except to the extent that they diiectly bear upon For Secretary Defense, Appellee: Joseph J. Terz, Office the analysis.

of United States Attorney, Harrisburg, PA.

JUDGES: In 1997, the DLA was re-organized and two of its Before: SCIRICG ALITO and FUENTES, Circuit distribution regions were consolidated as part of a "Most Judges. Efficient Organization" plan ("MEOW).As a result, fifty-seven positions within the newly created Defense OPINIONBY: Distribution Center ("DDC") (including all GS-05's in Fuentes Williams' office) were slated to be eliminated. However, because of the two-year differential between the proposal OPINION: of the ME0 and the implementation of the force reduction, many of the DLA employees in positions that

[*593] OPINION OF THE COURT the ME0 had identified as 'excess' were able to take advantage of either Voluntary Early Retirement (VERA)

FUENTES, Circuit Judge: andor Voluntary Separation Incentive Payment (VISP)

Plaintiff Barbara Williams appeals the district court's initiatives. In addition, others applied [*594] and were grant of the Defendant's summary judgment motion. selected for promotion or reassignment to positions that Williams, an African-American female, had aIIeged 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)

(instructing that, [HN4] in order to satisfy its burden of Nevertheless, by July of 1999, the voluntary staffing production, defendant need only "introduce evidence reductions of the ME0 had not been fully realized, and a which, taken as true, would permit the conclusion that mandatory Reduction-in-Force was initiated. there was a nondiscriminatory reason for the unfavorable Although sixteen employees in the DDC headquarters employment decision.").

were still employed in positions targeted by the RIF in 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..

W 6 ] To defeat summary judgment when the m l ] We exercise plenary review over an order defendant answers the plaintiffs prima [*595] facie granting summary judgment, applying the same standard case with legitimate, nondiscriminatory reasons for its that the lower court should have applied. Armbruster v. action, the plaintiff must point to some evidence, & i t Unisys Cop., 32 F.3d 768, 777 (3d Cir. 1994). or circumstantial, from which a fact finder could Therefore, we must grant summary judgment "if the reasonably either (1) disbelieve the employer's pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, articulated legitimate reasons; or (2) believe [**a that an invidious discriminatory reason was more IikeIy than show that there is no genuine issue as to any material fact not a motivating or determinative cause of the employer's and that the moving party is entitled to a judgment as a . action. In other words...a plaintiff who has made out a matter of law." Fed. R. Civ. P. 56. In making this prima facie case may defeat a motion for summary determination, "a court must view the facts in the light judgment by either (i) discrediting the proffered reasons, most favorable to the nonmoving party and draw all either circumstantially or directly, or (ii) adducing inferences in that party's favor." Armbruster, 32 F.3d at evidence, whether circumstantial or direct, that 777. Our jurisdiction to review summary judgment [**4] discrimination was more likely than not a motivating or orders is based upon 28 U.S.C. j 1291. determinative cause of the adverse employment action.

Id.

Williams first claims that the district court erred in This thiid and final stage of the McDonnel-Douglas granting summary judgment because there existed test is the only one at issue here. On appeal, Williams sufficient evidence to create a genuine issue of material claims that the district court erred in granting the fact, nameIy whether three non-protected employees defendant's summary judgment motion because were treated more favorably through the FUF. [HN2] The "conflicting and misleading evidence of Williarnsq Supreme Court has set forth a three-step, burden-shifting seniority status" created a genuine issue of material fact.

framework for the presentation of evidence in App. Br. at 19. She identifies three different documents discriminatory treatment cases litigated under Title W that appear to indicate three different tenure ranking of the Civil Rights Act of 1964. See McDonnel-Douglas dates for her. She alleges that, if the DDC had relied on

v. Green, 411 U.S. 792 (1973). In the first step, the the highest of her three tenure rankings (and the one plaintiff must make out a prima facie case of race which Williams alleges is correct), she would have been discrimination. See In re: Carnegie Center Assoc., 129 listed ahead of three "excess" employees who were F.3d 290,294 (3d Cir. 1997). The district court below retained, even though none of them were members [**3 found, and the defendant stipulates on appeal, that of a protected class. App. Br. at 19-20.

Williams has met her threshold burden. See Id. at 294-95 Nevertheless, Williams offers no evidence that any (determining that, m 3 ] "in a Title W case...involving of the three non-protected employees were hired based a reduction in force...to make out a prima facie case the on their seniority. As Fuentes makes clear, [HN7] at this plaintiff must show that (1) she belonged to a protected stage of the proceedings, the burden of proof is on class, (2) she was qualified for the position from which Williams. Fuentes, 32 F.3d at 763. Specifically, she she was terminated, (3) she was terminated and (4) must offer some material evidence that casts doubt on the persons outside [**5] of the protected class were DDC's proffered, facially non-discriminatory explanation retained."). ~urthermooie,we agree with the District of its reasons for separating her from Federal service.

Court that the defense has clearly met its intermediate However, Williams' evidence that she may have had a burden of articulating a facially legitimate non- higher seniority status than the three retained employees discriminatory reason for williamsr termination, namely

Page 3 44 Fed. Appx. 592, *; 2002 U.S. App. LEXIS 16524, **

is not material if it was a non-factor in the K i n g process. favor). Nevertheless, there is evidence in the record that See Gray v. York Newspapers, Znc., 957 F.2d 1070,1078 a previously selected employee did not refuse the (3d Cir. 1992) ( [HN8] "[a] disputed fact is 'material' if it position until October 12th, 1999, See App. at 131 would affect the outcome of the suit as determined by the (DDC's Referral and Selection Register), and Williams substantive lawn). Therefore, Williams' attempt to offers no evidence to the contrary. While this Court discredit the DDC's facially legitimate claim for must, on Defendant's motion for summary judgment, separating her from federal service based on her view the facts in a light most favorable to Williams' proffered conflicting and misleading evidence of her claim, we are not obligated to accept Williams naked seniority status must fail as a matter of law. Id. assertions contrary to evidence that exists in the record.

(instructing that [HN9] a party attempting to avoid a Williams further claims that there was a "legitimate motion for summary judgment must offer "sufficient opportunity to avoid the impact of the RIF as it relates to evidence [**a] for jury to return a verdict in favor of the Williams]," citing a recommendation made by the chief nonmoving party; if the evidence is merely colorable or union steward to the DDC that Williams "could be not significantly probative, summary judgment should be placed in the Dispatcher position" once the previously granted"). selected employee had declined. App. at 132.

Nevertheless, this information is clearly not Williams also claims that "a position for which "significantly probative" as to the' Defendant's alleged Williams had] interviewed and was qualified, was pretext for [**lo] Williams' separation, since Williams available exclusively to her as of September 30, 1999," had already been separated once the previously selected and the fact that she was not offered the position is employee had declined the position in question.

evidence that Defendant's proffered legitimate non- Therefore, Williams has failed to meet her burden of discriminatory purpose was actually a pretext for racial proof to show that Defendant's proffered legitimate discrimination. The District Court rejected Williams' reason was actually a pretext for racial discrimination, claim, indicating that the position that Williams claims and we find that no genuine issue of material fact exists was available "exclusively" to her on September 30, with regard to this claim.

actually did not become open until October 12, 1999.

Since Williams had already been separated by that time, Williams also offers evidence that three non-the Court reasoned that the Defendant's refusal to offer protected DDC employees each held two jobs the position to Williams is not evidence that Defendant's simultaneously with the Department of Defense during non-discriminatory reason for separating Williams was a the period in question, and that this evidence is "alone pretext for racial discrimination. App. at 10. dispositive" of her racial discrimination claim. In addition, she also alleges that she has presented sufficient On appeal, Williams claims that since the evidence of a discriminatory workplace atmosphere and availability date given for the job opening, [*596l that her separation was retaliation for earlier EEOC October 12th, is not "a sworn and verified date" the claim. With regard to each of these issues, we find the District Court resolved a material fact issue against a reasoning of the district court to have been thorough and non-moving party, and therefore [**9] its decision to persuasive. We therefore a f f m substantially for thk grant summary judgment should be reversed. See reasons stated in that opinion.

Armbruster, 32 F.3d at 777 (instructing that, [HNlO] in reviewing a motion for summary judgment, a court must Is1 Julio M. Fuentes view the facts in the light most favorable to the Circuit Judge nonmoving party and draw all inferences in that party's