ML050970294

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G20050213 - Thomas Saporito Ltr. Re 2.206 Petition for Enforcement Action Against Florida Power & Light Company
ML050970294
Person / Time
Site: Saint Lucie, Turkey Point  NextEra Energy icon.png
Issue date: 03/13/2005
From: Saporito T
National Environmental Protection Ctr
To: Reyes L
NRC/EDO
Brown Eva, NRR/DLPM, 415-2315
Shared Package
ML050970510 List:
References
2.206, G20050213
Download: ML050970294 (38)
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EDO Principal Correspondence Control FROM: DUE: 04/11/05 EDO CONTROL: G20050213 DOC DT: 03/13/05 FINAL REPLY:

Thomas Saporito National Environmental Protection Center Reyes, EDO FOR SIGNATURE OF  : ** GRN ** CRC NO:

Dyer, NRR DESC: ROUTING:

2.206 Petition for Enforcement Action Aganist Reyes Florida Power & Light Company Virigilio Kane Merschoff Silber Dean DATE: 03/28/05 Burns Travers, RII ASSIGNED TO: CONTACT: Cyr, OGC Skay, NRR NRR Dyer Goldberg, OGC SPECIAL INSTRUCTIONS OR REMARKS:

Refs. G20040468 and G20050113

.eap. cbo4 oal 0, ab-66)

NATIONAL ENVIRONMENTAL PROTECTION CENTER Protecting Our Environment and Whistleblowers 11911 U.S. Highway One, Suite 201 North Palm Beach, Florida 33408 Phone/Fax: 561-625-9197 Thomas Saporito Email: nepcusai1gmail.corr Executive Director Internet: www.blow-the-whistle.org March 13,2005 Mr. Luis Reyes U.S. Nuclear Regulatory Commission Washington, D.C. 20555-0001 RE: 2.206 Petition for Enforcement Action Against Florida Power & Light Company

Dear Mr. Reyes:

This letter serves to acknowledge receipt of a March 7, 2005 letter constructed by Mr.

Ledyard B. Marsh, Director, Division of Licensing Project Management, Office of Nuclear Reactor Regulation. In his letter, Mr. Marsh responds to the undersigned's previous letter addressed to you with respect to a 2.206 Petition filed seeking enforcement action by the U.S.

Nuclear Regulatory Commission ("NRC") against its licensee, Florida Power & Light Company

("FPL") for violation of NRC regulations under 10 C.F.R. 50.7 in discriminating against the undersigned for having raised nuclear safety concerns to the NRC about operations at the licensee's Turkey Point Nuclear stations in 1988 and 1989. Notably, the licensee fired the undersigned solely because he informed the NRC of violations of its regulations by the licensee.

Mr. Marsh explains in his March 7, 2005 letter that:

"The PRB determined that there was no need for action to immediately shut down Turkey Point Units 3 and 4 or St. Lucie Units I and 2. A review of NRC activities revealed that you had previously raised these same issues to the NRC staff under the Title 10, Code of FederalRegulations (10 CRF) Section 2.206 Petition process in a letter dated April 23, 1997, as supplemented on May 11 and May 17, 1997. The issued you raised were previously reviewed by the NRC Office of Investigations (OI) in 1988 and inspected by NRC inspectors in 1991. The 0I was unable to substantiate that individuals were terminated as a result of protected activity, nor was an overall atmosphere of intimidation, threats, coercion, harassment or negative evaluations identified by the NRC inspection staff. The Director's Decision 97-20 denying your original petition was issued in a letter to you dated September 8, 1997."

Id. at 1.

EDO - -G2005021-

NATIONAL ENVIRONMENTAL PROTECTION CENTER As can be seen from Mr. Marsh's response, the NRC solely investigated 10 C.F.R. 50.7 violations with respect to other employees at FPL's Turkey Point nuclear station. Notably, the NRC never conducted an investigation regarding the undersigned's employment termination from the licensee's Turkey Point nuclear station as a result of his providing information to the NRC about operations at the licensee's facilities in apparent violation of NRC requirements.

Significantly, the undersigned was cooperating with an 01 investigation during his employment at the licensee's facility'and was subsequently terminated thereafter. However, the NRC never conducted an investigation into the undersigned's employment termination from the licensee's Turkey Point nuclear station. Thus, the undersigned's 2.206 Petition dated July 1,2004, as supplemented on July 4, 2004 requires that the NRC conduct a meaningful investigation of its licensee FPL, to determine if the licensee's conduct in firing the undersigned in December 22, 1988 was due to his raising safety concerns to the NRC and due to his cooperation with NRC 01 in conducting an investigation at the licensee's Turkey Point nuclear'station. As stated above, the NRC never conducted such investigation as the agency was required to due under its own regulations under 10 C.F.R. Part 50, and at other NRC regulations.

Enclose herewith, the undersigned is providing a CD which has a copy of the undersigned's Principal Brief to the U.S. Court of Appeals for the Eleventh Circuit regarding the undersigned's litigation concerning his illegal employment termination from the licensee's Turkey Point nuclear station in 1988. The undersigned herein expressly requests that the NRC immediately act to conduct a meaningful investigation under 10 C.F.R. 2.206 of its licensee, Florida Power & Light Company to determine whether the licensee violated NRC requirements when it terminated the employment of the undersigned in December 1988, and later, when the licensee's employees John Odom and Joseph Kappes lied under oath at hearings held before the U.S. Department of Labor ("DOL") and the licensee's actions and conduct of tainting the DOL hearing record with their own transcripts in an apparent attempt to mislead the NRC about Odom's testimony that the NRC is not technically competent to determine what a nuclear safety concern is at the Turkey Point nuclear station.

Should you have any questions regarding the above please feel free to contact me. Please take notice that any failure on the part of the NRC will most likely result in aggressive legal action taken against the NRC by the undersigned for failure of the agency to investigate and to enforce its own regulations. Please govern yourselves accordingly.

Sincerely, Thomas Saporito cc: Hon. George W. Bush, President of the United States of America 2

IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT 05-10749-D ARB Case No.04-079 ARB Case'No.98-008 ALJ Case Nos. 89-ERA-7, 89-ERA-17 Eleventh Circuit Docket .No. 98-5631 THOMAS SAPORITO Petitioner, versus UNITED STATES DEPARTMENT OF LABOR Respondent.

Petition for Review of the Final Decision and Order of the United States Secretary of Labor.

and Petition for Review of the Decision Denying Petition for Review of the Court of Appeals for the Eleventh Circuit PRINCIPAL BRIEF FOR PETITIONER Thomas Saporito National Environmental Protection Center 11911 U.S. Highway One, Suite 201

.North Palmn Beach, Florida 33408 Tel/Fax: 561-625-9197 Dated: February 2 8th, 2005

NATIONAL ENVIRONMENTAL PROTECTION CENTER U.S. COURT OF APPEALS FOR THE ELEVENTH CIRCUIT CERTIFICATE OF INTERESTED PERSONS AND CORPORATE DISCLOSURE STATEMENT THOMAS SAPORITO vs. U.S. DEPARTMENT OF LABOR Appeal No. 05-10749-D CC: Administrative Review Board CC: James Brammick CC: David K. Colapinto CC: Director, EICS CC: Thomas Kahn CC: Howard M. Radzely CC: Mitchell S. Ross

NATIONAL ENVIRONMENTAL PROTECTION CENTER TABLE OF CONTENTS PAGE TABLE OF AUTHORITIES .............................................. iv REASONS WHY ORAL ARGUMENT SHOULD BE HEARD .............................................. vi STATEMENT OF JURISDICTION............................................................................................I STATEMENT OF ISSUES ....................... 1......................

STATEMENT OF THE CASE ............................................. 2 STATEMENT OF THE FACTS ............................................. 3 STANDARD OF REVIEW ............................................. 8

SUMMARY

OF ARGUMENT ............................................. 8 ARGUMENT ............................................. 8 I. The ARB Has Authority to Reconsider Its Own Order in ARB No.04-079 .8 II. The Secretary's Decision in ARB No.98-008 is Unsupported by Substantial Evidence, is Arbitrary, Capricious, an Abuse of Discretion, Contrary to Public Policy, and Otherwise Not in Accordance With Law ... 12

1. Standard of Review .. 12
2. The ARB Failed to Engage in De Novo Review in ARB 98-008 ... 13 a) Burdens Under the ERA .13
3. The ARB Failed to Apply Controlling Law in Deciding ARB No.98-008 .15
4. The ARB Failed to Properly Apply a Dual Motive Analysis in ARB No.98-008 .18 a) Refusal to Holdover and Attend Meeting With Odom and Refusal to Be Examined by the Company Doctor .19 b) Petitioner Engaged in Protected Activity in Refusing Odom's Order to Attend a Meeting With Odom on November 30, 1988 Solely About Saporito's Safety Concerns .23 iii

NATIONAL ENVIRONMENTAL PROTECTION CENTER c) The ARB Failed to Show in ARB No.98-008 That FP&L Had a Legitimate Reason to Discharge Saporito Separate and Apart From His Protected Activity ............................................................. 24 TABLE OF AUTHORITIES CASES:

Thomas J. Saporito, J1 . v. FloridaPower & Light Company, ALJ No. 89-ERA-7 and 89-ERA-17 ............................................................. 2,17 Mitchell v. APS/ANPP, ALJ No. 91-ERA-9 .............................................................. 7 Nevadav. UnitedStates, 463 U.S. 110, 129-130,103 S. Ct. 2906, 2918 (1983) ......................... 9 Roadway Express, Inc. v. AdministratorReview Board, USDOL, Nos. 03-4074 and 03-4115 (6th Cir. Nov. 22, 2004)(unpublished) .............................................................. 9 Leveille v. New YorkAir Nat'l Guard, ARB No.98-079, ALJ Nos. 94-TSC-3,4 ........................ 9 American FarmLines v. Black Ball FreightServices, 397 U.S. 532, 90 S.Ct. 1288 (1970) ........ 10 C.f N.L.R.B. v. Monsanto Chemical Co., 205 F.2d 763, 764 (8Sh Cir. 1953) ..........................;..... 10 Beliveau v. Dep 't of Labor, 170 F.3d 83, 87-88 (l" Cir. 1999) ................................................ 10-11 Hoffman v. Fuel Econ. Contracting, 87-ERA-33 .............................................................. 10 Accord Rose v. Secretary ofLabor, 800 F.2d 563, 565 (6th Cir. 1986) ......................................... 10 Ruud v. USDOL, 80 Fed Appx 12, No. 02-71742 (9gCir. Oct. 22, 2003) ................................... 11 Stone & Webster Eng'g Corp. v. Herman, 115 F.3d 1568, 1571-72 (I11I Cir. 1997) .................. 12 Berkman v. United States Coast GuardAcad, ARB No.98-056 ................................................ 12 Zinn v. University of Missouri, 93-ERA4-34, 93-ERA -36 (ALJ May 23, 1994) ............................. 14 Mackowiak v. University NuclearSys., Inc., 735 F.2d 1159 (9gh Cir. 1984) ................................ 14 Mount Healthy City School Dist. v. Doyle, 429 U.S. 274 (1977) ................................................. 14 Mandregerv. The Detroit Edison Co. 88-ERA-17 (Sec'y Mar. 30, 1984) .................................. 14 Pogue v. United States Dept ofLabor, 940 F.2d 1287, 1291 (9h Cir. 1991) ............................... 14 iv

NATIONAL ENVIRONMENTAL PROTECTION CENTER Passaic Valley Sewerage Commissioners v. United States Dept. ofLabor, No. 92-3261 (3rd Cir. Apr. 16, 1993) ............................................................. 14-15 Creekmore v. ABB Power Systems Energy Services, Inc ........................................................... 15 Chase v. Buncombe County, NC. Dept. of Community Improvement, 85-S WD-4, Decision and Order of Remand by SOL, (November 3, 1986) .................................................... 15 Dunham v. Brock, 794 F.2d 1037 (5th Cir. 1986) ........................................................... 16 Munsey v. FederalMine Safety and Health Rev. Comm. 595 F.2d 735 (D.C. Cir. 1978) ............ 16 Newkirkv. Cypress Trucking Lines, Inc., Case No. 88-STA-17 .................................................. 17 Ertel v. Giroux Bros. Transp., Inc. Case No. 88-STA-24 slip op.

of SOL at 24-25 (Feb. 16, 1989) ........................................................... 17-18 Priestv. Baldwin Assoc. Case No. 84-ERA-30, slip op. of SOL at 10 (June 11, 1986) ............... 18 Mitchell v. APS/ANPP, Case No. 91-ERA-9, slip op. of ALJ at 36-37 (July 2, 1992) ................ 18 Price Waterhouse v. Hopkins, 490 U.S. 228, 252, 109 S.Ct. 1775, 1791 (1989) ........................ 24 STATUES AND RULES:

Federal Rules of Appellate Procedure, Rule 15 ............................................................. 1 Energy Reorganization Act of 1972, 42 U.S.C. 5851 (1988) ....................................................... 2 29 C.F.R. 18.59 ............................................................ 4 29 C.F.R. 18.57 ............................................................ 4 5 U.S.C 706(2)(A), (E) ............................................................ 8 Federal Rules of Civil Procedure, Rule 60(b)(6) ............................................................ 8 5 U.S.C.A. 557(b)(West 1966) ....................  ; 12 29 C.F.R. 24.8 ................... 12 ADMINISTRATIVE AUTHORITIES:

Att'y Gen. Manual on the Administrative Procedure Act Chap. VII, 8 pp. 8 3 -8 4 (1947) ............ 12 v

NATIONAL ENVIRONMENTAL PROTECTION CENTER REASONS WHY ORAL ARGUMENT SHOULD BE HEARD Petitioner avers here that oral argument in the instant action should be heard by this Court because the adjudication of claims under the Energy Reorganization Act of 1974 ("ERA"), 42 U.S.C. 58511 as in the instant action, the Respondent, U.S. Department of Labor ("DOL") "does not simply provide a forum for private parties to litigate their private employment discrimination suites," but also "represents the public interest." Beliveau v. Dept' of Labor, 170 F.3d 83, 87-88 (1 5' Cir. 1999)(quoting from Hoffman v. Fuel Econ. Contracting, 87-ERA-33 (Sec'y Order Denying Reconsideration, Aug. 4, 1989). Accord Rose v. Secretary ofLabor, 800 F.2d 563, 565 (6t Cir. 1986)(J. Edward concurring). Thus, the instant action priesents issues which bear directly on public health and safety for which oral argument would greatly assist this Court in reaching a decision in this matter, that which is generally a matter of public policy. Moreover, oral argument is required in the instant action to make clear to this Court why Respondent erred procedurally in failing to apply proper legal standards in reaching their decisions in this matter and why this Court failed to apply proper legal standards in reaching its prior decision in Docket No.98-563 1, Thomas Saporito v. US. Department ofLabor (Aug. 3, 1999). In addition, this case involves complex issues of law involving "intent" to discriminate and "intent" to mislead the United States Government (i.e. U.S. Department of Labor and U.S. Nuclear Regulatory Commission) during the taking of witness testimony at two hearings brought by the Petitioner before two Administrative Law Judges ("ALJs") involving the Florida Power & Light Company

("FP & L"), in proceedings which arose under the ERA in ALJ Case Nos. 89-ERA-7 and 89-ERA-17, Thomas Saporito v. FloridaPower & Light Company. Significantly, there exists compelling evidence which proves that an FP & L Vice President, John Odom, lied under oath 1 Cases which arise under the ERA are similar inconstruction and adjudication to those brought under the environmental whistleblower laws and in particular the Clean Air Act ("CAA").

vi

NATIONAL ENVIRONMENTAL PROTECTION CENTER during the taking of his testimony at hearing with intent to deceive and to mislead the U.S.

Department of Labor ("DOL") and the U.S. Nuclear Regulatory Commission ("NRC") about violations of the respective agency statues and/or regulations with respect to discrimination of the Petitioner in raising health and safety issues at the FP & L Turkey Point Nuclear Power Station in 1988. Notably, Mr. Odom's personal calendar was intentionally "whited-out" for the entire day of November 30, 1988, the very day of the norning that Mr. Odom contacted the NRC and learned that Mr. Saporito had not raised any "immediate" health and safety issues with the agency. Mr. Odom later fired, Mr. Saporito for failing to attend a meeting to divulge his safety concerns that he had communicated to the NRC. Mr. Odom also alleged as a reason for firing Mr. Saporito, his failure to be examined by a company doctor, but Mr. Odom testified at hearing that he made the decision to fire Mr. Saporito, pior to ordering Mr. Saporito to be examined by the company doctor. Furthermore, the Respondent failed to properly apply controlling law in reaching their decisions in the instant action and Respondent failed to consider the entire record in reaching their decisions in the instant action as they were required to do by reviewing the case de novo as a matter of law. Finally, Respondent and this Court relied on a record created for the most part, if not in its entirety, by FP & L through their privately hired court reporting agency who was present at the first hearing in the instant action. FP & L's record transcripts were improperly made a part of the official DOL record and improperly relied upon by Respondent and improperly relied upon by this Court in reaching decisions in the instant action. Petitioner contends here that if Respondent and this Court reviewed the instant action de novo as required under the law, and applied the correct legal standards, and considered all record evidence in a light most favorable to the Petitioner, a different outcome would be required from that which was previously reached by Respondent and by this Court as a matter of law. Thus, it is imperative, vii

NATIONAL ENVIRONMENTAL PROTECTION CENTER that this Court allow oral argument in this matter to enable the Petitioner to assist this Court in reaching a meaningful decision in this matter in light of the public health and safety issues involved in ERA whistleblower cases as in the instant action.

viii

NATIONAL ENVIRONMENTAL PROTECTION CENTER STATEMENT OF JURISDICITION This appeal arises from a Final Decision and Order of an administrative agency, the Administrative Review Board, U.S. Department of Labor. Under Title IV, Federal Rules of Appellate Procedure, Rule 15, (Dec.1998), this Court has jurisdiction to review final decisions and orders of the Administrative Review Board.

STATEMENT OF THE ISSUES

1. Whether the Secretary's decision in ARB No.04-079 is unsupported by substantial evidence or arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; and
2. Whether the Secretary's decision in ARB No.98-008 is unsupported by substantial evidence or arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; and
3. Whether the United States Court of Appeals for the Eleventh Circuit Decision in Docket No. 98-5631 is unsupported by substantial evidence or arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; and
4. Whether the adjudication of claims under the ERA whistleblower laws, the United States Court of Appeals for the Eleventh Circuit does not simply provide a forum for private parties to litigate their private employment discrimination suits, but also represents the public interest requiring the Court to consider the instant Petition on review de novo and to allow oral argument to assist the Court in reaching a meaningful decision in the instant matter, a matter of public policy.

I

NATIONAL ENVIRONMENTAL PROTECTION CENTER STATEMENT OF THE CASE The Secretary issued a Decision and Remand Order in ALJ Nos. 89-ERA-7 and 89-ERA-17 on June 3, 1994, holding that it is a violation of the employee protection provision of the Energy Reorganization Act of 1974, as amended (ERA), 42 U.S.C. 5851 (1988), to discharge an employee for refusing to reveal his safety concerns to management. Covered employers who discipline or discharge an employee for such conduct have violated the ERA.' The Secretary further found that, " FP&L's rationale for requiring Saporito to reveal his safety concerns to the Site Vice President disingenuous ... As grounds for dismissal, FP&L also cited Saporito's refusal to stay after his regular work day on November 30, 1988 to attend a meeting at which Odom again wanted to ask Saporito about his safety concerns... and Saporito's refusal to be examined by a company doctor. Odom's decision to require Saporito to be examined by a company doctor grew out of the excuse Saporito gave on November 30 for refusing to stay late for the meeting with Odom... Each of these reasons for discharge is related, at least in part, to Saporito's refusal to reveal his safety concerns to FP&L, an act I have held protected under the ERA. Id. at 3-4.

On August 11, 1998, and ten years after Saporito had been unlawfully discharged by FP&L from his job at the Turkey Point Nuclear Plant ("TPNP") in violation of the ERA, the Administrative Review Board ("ARB") acting on behalf of the Secretary, issued a Final Decision and Order finding that FP&L has proven by a preponderance of the evidence that it would have discharged Saporito for his insubordination in refusing to attend a meeting with Site Vice President Odom and refusing to comply with the order to be examined by the designated

'See, Thomas J. Saporito, Jr. v. FloridaPower & Light Company, Decision and Remand Order (Sec'y June 3, 1994) Id. at p.1.

2

NATIONAL ENVIRONMENTAL PROTECTION CENTER company doctor, even if he had not engaged in protected activity on November 23. The ARB dismissed the case.2 On December 17, 2004, the ARB acting on behalf of the Secretary, issued a Final Decision and Order finding that, "In 1989 Saporito filed an ERA whistleblower complaint against his employer, Florida Power & Light. After investigation by the Labor Department and two hearings on the record, Labor Department Administrative Law Judges (ALJs) twice issued recommended decision dismissing Saporito's complaint on the merits. Saporito exercised his right to appeal the ALJ decision to the Secretary of Labor and subsequently, to this Board. The Board ultimately issued a final agency decision and order dismissing Saporito's complaint for lack of merit. Saporito invoked his right to judicial review and appealed the Board's final decision and order to the United States Court of Appeals for the Eleventh Circuit. The Eleventh Circuit summarily affirmed the Board decision and denied Saporito's request for rehearing en banc." . . .

"The Eleventh Circuit decision is the final adjudication on the merits of Saporito's 1989 complaint. That decision stands as a complete bar to further review of the merits of Saporito's complaint... Saporito casts some of his current objections as motions for

'reconsideration' of our 1998 decision. Whatever authority we had to reconsider our own order was extinguished long ago by the Court of Appeals' conclusive disposition.3 On February 9th 2005, Petitioner Thomas Saporito, filed his notice of appeal in ARB No.04-079, and ARB No.98-008, and the U.S. Court of Appeals for the Eleventh Circuit, Docket No.98-563 1, and AU Nos. 89-ERA-7 and 89-ERA-1 7. On February 11, 2005, this Court enumerated the instant matter as Appeal Number: 05-10749-D.

STATEMENT OF THE FACTS This matter arose from complaints filed by Thomas Saporito ("Saporito") under the whistleblower protection provisions of the ERA. The first of two separate hearings was held in January 1989 before the Hon. Anthony J. lacobo, Administrative Lawv Judge ("AL") in ALJ 2 See, Thomas J. Saporito, Jr. v. FloridaPower & Light Company, Final Decision and Order (ARB No.98-008, Aug. 11, 1988) at p.11.

3 See, Thomas J. Saporito, Jr. v. FloridaPower & Light Company, (ARB Final Decision and Order, Dec. 17, 2004) at p.2.

3

NATIONAL ENVIRONMENTAL PROTECTION CENTER Nos. 89-ERA-7 and 89-ERA- 17 (consolidated) 4 . The ALJ made a significant err by failing to create a true and accurate record of the proceeding over which he presided. Notably, the ALJ allowed FP&L to substitute portions of their own "privately" recorded record transcripts in to the official U.S. Department of Labor ("DOL") record transcripts. Thus, the ALJ failed to comply with 29 C.F.R. 18.59 in maintaining an accurate hearing record by allowing PP&L to taint the official DOL hearing record with their own hearing record transcripts. Moreover, the ALJ allowed such over Saporito's objections through counsel and denied Saporito's motion for a mistrial. The agency's regulations at 29 C.F.R. 18.57 require that, .. . The decision of the administrative law judge shall be based upon the whole record. It shall be supported by reliable and probative evidence. Such decision shall be in accordance with the regulations and rulings of the statue or regulation conferring jurisdiction." Here, in the instant action, the ALJ failed to comply with 29 C.F.R. 18.57 by allowing FP&L to "taint" the official DOL hearing record throughout with its version of the trial record. Therefore the ALJ based his recommended decision on a department record which was not reliable. Moreover, all subsequent reviewing authority including a second ALJ, the Hon. David W. DiNardi who presided over the aforementioned cases in 1997 on a remand order of the Secretary, and later, the review by the ARB in ARB No.98-008 and ARB No.04-079, made decisions based on a "tainted" record, and therefore an "unreliable" record which was not properly certified by the Chief Administrative Law Judge as required under the agency's regulations at 29 C.F.R. 18.59. Thus, Petitioner avers here that on this basis alone, this Court should issue an Order vacating the ARB's final decisions 4 By Order dated Aug. 3, 1999, the U.S. Court of Appeals for the Eleventh Circuit issued a decision in Appeal Number 98-5631, Thomas J. Saporito, Jr. vs. U.S. DepartmentofLabor, FloridaPower & Light Company, denying petition for review. The Court held that "The Secretary says that Saporito's petition seeking review is timely as to both cases; Florida Power & Light Company, intervener, takes the position that the petition is timely only in Case No. 89-ERA- 17. The record reflects that the two cases remained consolidated throughout, and we conclude that the petition to review is timely as to both cases. Id. at p.2.n.1.

4

NATIONAL ENVIRONMENTAL PROTECTION CENTER in ARB No.04-079 and ARB No.98-008 as a matter of law and remand the entirety of the consolidated cases to the agency for a "new" hearing as a matter of law.

The record, as it exists, shows that on May 4, 1988, Saporito complained to two FP&L supervisors, Harley and Tomaszewski, about problems with safety related clearance procedures on a highly visible work order. [T.735-45][1989 record]. Saporito's safety concerns surfaced while the Institute for Nuclear Power Operations ("INPO") was conducting an on-site evaluation at the Turkey Point Nuclear Plant ("TPNP"), and, significantly, INPO investigators observed the very job about which Saporito raised safety concerns. [June 30, 1989 R.D.&O. at 6]. Saporito escalated his safety concerns through a letter to INPO on May 9th, 1988 and copied the same to FP&L management. [RX-5 1]. In his letter to INPO, Saporito questioned whether Harley was properly trained to perform certain safety related clearance procedures. Within days of Saporito's letter to INPO5, which questioned the competence of FP&L supervisors to carry out safety related responsibilities, Harley recommended that Saporito be disciplined. [T.1829-30][1989 record]. The timing of FP&L's disciplinary actions in May of 1988 could not be more obvious.

On May 11, 1988, Saporito received the first in a series of retaliatory disciplinary actions by FPL. Saporito's co-workers perceived that Harley was trying to get Saporito fired. One employee felt that Harley was out to get rid of Saporito. [T.2160][1988 record]. Another employee testified that Harley made comments that he was out "to get" Saporito and that was common knowledge.

[T.552][1988 record]. In fact, Harley even agreed that employees in the shop "probably interpreted it that way." [T.1863-64][1988 record]. Harley conceded that he considered Saporito to be "an irritant." [T.1864][1988 record]. Notably, it was notjust a perception that Harley was 5As of April 1988, FP&L had received poor performance ratings from the U.S. Nuclear Regulatory Commission

("NRC") ICX-103 and CX-1 18] and FP&L management was concerned that the NRC might impose fines, or, even worse, that FP&L might lose its license to operate TPNP. It isuncontested that the NRC's poor ratings of TPNP resulted inincreased scrutiny of FP&L inthe Spring of 1988 by the NRC and by INPO. [T. 117, T.1390, T.1976].

5

NATIONAL ENVIRONMENTAL PROTECTION CENTER trying to get Saporito fired after he reported safety concerns in May 1988. Harley did request FP&L management to fire Saporito in late May or early June 1988. Odom the FP&L vice president, confirmed that in early June 1988, at the urging of Harley's manager, Kappes, the FP&L Industrial Relations ("IR") department reviewed Saporito's personnel record to determine whether Saporito could be discharged. [T.1513-14][1988 record]. Significantly, the IR department concluded in June 1988, that there was insufficient reason to terminate Saporito's employment. Id.

Odom's testimony on this issue corroborates that Harley was out to get Saporito fired shortly following Saporito's protected activity in May 1988. It further supports that the retaliatory actions taken against Saporito in May and June 1988, had a "chilling effect" on Saporito's co-workers who correctly believed that Harley was trying to get Saporito fired. In an even more disturbing incident following Saporito's May 1988, protected activity, Harley gave Saporito a hazardous job assignment that required Saporito to enter the containment vessel of the nuclear plant (a high radiation area) with protective gear and a respirator. Due to high temperatures of approximately 113 degrees Fahrenheit, and a lack of air in the respirator, Saporito became fatigued and, consequently, went home sick. After Saporito wvent home sick from extreme heat exposure, Harley boasted to other workers about causing Saporito's illness, by stating, "I got him. I got him, I sent him home sick." [T.2159][1988 record]. Notably, Harley admitted that right after Saporito became ill he commented that "Maybe he [Saporitol should have died." [T.1863][1988 record](emphasis added). In other words, Harley wished Saporito had died when he experienced health problems in the containment vessel.

6

NATIONAL ENVIRONMENTAL PROTECTION CENTER FP&L subjected Saporito to further discrimination after he made complaints to the NRC and to the DOL in the fall of 1988, actions which themselves constituted protected activity.6 One harassment incident involved threatening behavior by Koran, an FP&L supervisor, after Saporito engaged in protected activity. In another incident, Boger, FP&L's radiological training instructor, shouted obscenities at Saporito after he asked Boger questions about topics covered in questions on a safety training exam taken by Saporito. [T.1651-52][1988 record]. The Bogar incident, in particular, establishes a prima facie case because Saporito's questions to Boger were protected activity. Notably, the adverse action Sapoonto received in November and December 1988, including his termination in December 1988, occurred immediately after he engaged in additional protected activity. Saporito was in contact with the NRC between September and December of 1988, and he filed complaints under the ERA with the DOL in October and November 1988. FPL learned these facts, which were common knowledge at TPNP, directly from the NRC during these months. Odom's questioning of Saporito on November 23, 1988; FP&L's placing of Saporito to restricted status; demeaning job assignments [T.812-13; T.1760][1988 record], and Odom's attempted interrogation of Saporito on November 30, 1988; related directly to Saporito's protected activity and shortly followed Saporito's contacts with the NRC as well as his filing of ERA complaints with the DOL. In addition, FP&L's order that Saporito see a company doctor on December 16, 1988 and the subsequent discharge of Saporito on December 22, 1988 each closely followed Saporito's protected activity. 7 STANDARD OF REVIEW 6 On September 29, 1988, Saporito sent a letter to the NRC documenting his safety concerns and alleging that he was being harassed for reporting safety concerns. By letters dated October 14, 1988, October 31, 1988, and November 8, 1988, Saporito filed complaints with the DOL pursuant to Section 210 of the ERA, alleging retaliation.

7Collectively, all of the harassment incidents and adverse action that occurred between May and December 1988, satisfy a prima facie case of "hostile work environment." See, Mitchell v. APS/ANPP, AU Case No. 91 -ERA-9, slip op. of AU at 36-37 (July 2, 1992).

7

NATIONAL ENVIRONMENTAL PROTECTION CENTER This Court's review is deferential. This Court may overturn the Secretary's decision only if the decision is "unsupported by substantial evidence" or if it is "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." 5 U.S.C. 706(2)(A), (E).

SUMMARY

OF ARGUMENT The ARB's Final Decision and Order in ARB No.04-079 and in ARB No.98-008 is unsupported by substantial evidence, is arbitrary, capricious, an abuse of discretion, and is otherwise not in accordance with law. Similarly, this Court's Order in Appeal No. 98-5631 is unsupported by substantial evidence, is arbitrary, capricious, an abuse of discretion, and is otherwise not in accordance with law. Notably, Rule 60(b), Federal Rules of Civil Procedure, allows, "upon such terms as are just," a party to be relieved from a final judgment. Rule 60(b)(6) permits a Court to allow such relief for "any ... reason justifying relief from the operation of the judgment." A final judgment has been entered in favor of FP&L. Petitioner is entitled to be relieved from this judgment because of FP&L's discovery abuses; and destruction of evidence; and subomed perjured witness testimony; and because the Secretary and this Court failed to apply proper legal standards in reaching their respective decisions in the instant matter.

Accordingly, Petitioner hereby moves for relief of the judgment against him in accordance with Rule 60(b)(6).

ARGUMENT I. The ARB Has Authority to Reconsider Its Own Order in ARB No.04-079 On December 17, 2004, the ARB issued a Final Decision and Order in response to Saporito's motion for reconsideration of the ARB's earlier Final Decision and Order issued on Aug. 11, 1998 in ARB No.98-008. The ARB held in ARB No.04-079 that "Whatever authority we had to reconsider our own order was extinguished long ago by the Court of Appeals' 8

NATIONAL ENVIRONMENTAL PROTECTION CENTER conclusive disposition." The ARB relied on the doctrine of resjudicataas expressed in Nevada

v. United States, 463 U.S. 110, 129-130,103 S. Ct. 2906, 2918 (1983). Id. atp.2.

However, to the contrary, the ARB is not collaterally estopped from reconsidering its prior decision in ARB No.98-008 as a matter of resjudicata.The ARB has plenary authority to reconsider its earlier decision in ARB No.98-008. In Roadway Express, Inc. v. Administrator Review Board, USDOL, Nos. 03-4074 and 03-4115 ( 6th Cir. Nov. 22, 2004)(unpublished), the ARB had affirmed the AL's granting of summary judgment to the Respondent on the issue of fatigue where the ALJ found that the Complainant had become fatigued though no fault of the Employer. Subsequently, on review before the Sixth Circuit, the ARB moved for remand because it had failed to address an earlier case also involving the Complainant in which it had reversed an AL's grant of summary judgment in favor of Respondent and held that a genuine issue of material fact is raised at the summary judgment stage where the Complainant disputes whether he deliberately made himself unavailable for work due to fatigue. Notably, the Court granted the ARB's motion following precedent to the effect that an agency should be allowed to reconsider its own decision if it has doubts about the correctness of that decision.

Here in the instant action, the ARB acknowledged in ARB No.04-079 that "Saporito argues that the Board's 1998 decision contains errors of law and fact and is based in part on a defective hearing transcript." Id. at 1-2. In Leveille v. ANew YorkAir Nat ' Guard, ARB No.98-079, ALl Nos. 94-TSC-3, 4, slip op. at 3-4 (ARB May 16, 2000), the ABR held that the Board has inherent authority to reconsider its decision arising under the environmental statutes at issue here in appropriate circumstances... In this case reconsideration would not interfere with, delay or otherwise affect the fulfillment of the Acts' safety purposes and goals. Id. Moreover, the ARB 9

NATIONAL ENVIRONMENTAL PROTECTION CENTER has in the past relied upon the general principal articulated by the Supreme Court in American Farm Lines v. Black Ball FreightServices, 397 U.S. 532, 90 S.Ct. 1288 (1970):

It is always within the discretion of a court or an administrative agency to relax or modify its procedural rules adopted for the orderly transaction of business before it when in a given case the ends ofjustice require it. The action of either in such a case is not reviewable except upon a showing of substantial prejudice to the complaining party.

397 U.S. at 539 (citations omitted). This rule should apply with especial force where, as in the adjudication of environmental whistleblower claims, the agency is charged with acting in the public interest. Cf N.L.R.B. v. Monsanto Chenmical Co., 205 F.2d 763, 764 (8th Cir. 1953).

Notably, in the adjudication of claims under the environmental whistleblower laws, the Department of Labor "does not simply provide a forum for private parties to litigate their private employment discrimination suits," but also "represents the public interest." Beliveau v. Dep 't of Labor, 170 F.3d 83, 87-88 (Ist Cir. 1999)(quoting from Hoffman v. Fuel Econ. Contracting, 87-ERA-33 (Sec'y Order Denying Reconsideration, Aug. 4, 1989). Accord Rose v. Secretaryof Labor, 800 F.2d 563, 565 (6" Cir. 1986)(J. Edward concurring).

The present case before this Court arises under the ERA which is similar to cases arising under the Clean Air Act ("CAA") and both acts serve to protect the environment and public health and safety. Thus, the present case before this Court affects a "class" of employees who work in the nuclear industry. This class of employees must feel protected in freely raising health and safety concerns to the NRC in furtherance of the ERA without fear of reprisal for doing so.

To the extent that the ARB contends that they are estopped from reconsidering their prior decision in ARB No.98-008 as a matter of resjudicata, the ARB is incorrect because the present case involves a "class" of workers in the nuclear industry who must feel free and feel protected under the employee protection provisions of the ERA in raising safety concerns at their place of 10

NATIONAL ENVIRONMENTAL PROTECTION CENTER employment at nuclear plants like FP&L's Turkey Point Nuclear Plant. Moreover, the Nevada, Court held that:

To determine the applicability of res judicata to the facts before us, we must decide first if the "cause of action" which the Government now seeks to assert is the "same cause of action" that was asserted in Orr Ditch; we must then decide whether the parties in the instant proceeding are identical to or in privity with the parties in Orr Ditch.

Id.

Here in the instant action, resjudicatais not applicable because the two ALJ's who presided over ALJ Nos. 89-ERA-7 and 89-ERA-17 failed to find that Saporito engaged in protected activity in ALJ No. 89-ERA-7. This error of law was continued later by the Secretary in a Decision and Remand Order (June 3, 1994) and by the ARB in ARB No.98-008 (Aug. 11, 1998). In addition, as articulated above, the instant action presents issues material to a "class of nuclear workers" and presents issues which bear directly on public health and safety. For these reasons, the instant action is distinguishable from the Nevada Court. Because the Government erred in not finding that Saporito engaged in protected activity in ALJ No. 89-ERA-7, the instant action is a different cause of action from that previously adjudicated by the U.S. Court of Appeals for the Eleventh Circuit. Thus, resjudicatais simply not applicable in the instant action.

In addition, because the instant action serves to further the purpose of the ERA in protecting public health and safety, resjudicatais simply not applicable in the instant action where, as here, the public interest is at stake. For these reasons, the doctrine of resjudicatamust yield to the public interest in the adjudication of claims under the ERA and under the environmental whistleblower laws. See, Beliveau v. Dept of Labor, 170 F.3d 83, 87-88 (fit Cir. 1999). In Ruud

v. USDOL, 80 Fed Appx 12, No. 02-71742 (9th Cir. Oct. 22, 2003)(unpublished)(ARB No.99-023, ALT No. 1988-ERA-33), the Ninth Circuit held that the law of the case doctrine did not prevent the ARB from reconsidering its prior decision to disapprove the settlement in the case 11

NATIONAL ENVIRONMENTAL PROTECTION CENTER because the agency's own precedents permitted such reconsideration if the previous decision was erroneous. Here, in the instant action, the ARB is not prevented under the doctrine of res judicata from reconsidering its prior decision in ARB No.98-008 because here, as inRuud, the ARB's prior decision in ARB No.98-008 is erroneous and inopposite with the law. Thus, this Court should remand the instant action to the ARB to reconsider its decision in ARB No.98-008 because the Secretary's decision in ARB No.04-079 and in ARB No.98-008 is unsupported by substantial evidence, is arbitrary, capricious, an abuse of discretion, contrary to public policy and otherwise not in accordance with law.

II. The Secretary's Decision in ARB No.98-008 is Unsupported by Substantial Evidence, is Arbitrary, Capricious, an Abuse of Discretion, Contrary to Public Policy, and Otherwise Not in Accordance With Law"

1. Standard of Review:

The ARB has inherent authority to reconsider its decisions arising under the environmental statutes in appropriate circumstances. See, Leveille v. New YorkAir Natl'Guard, ARB No.98-079, ALU Nos. 94-TSC-3, 4, slip op. at 3-4 (ARB May 16, 2000). The instant action, an ERA claim, is constructed similar to environmental cases and reconsideration by the ARB would not interfere with, delay, or otherwise affect the fulfillment of the Acts' safety purposes and goals. Under the Administrative Procedure Act, the ARB as the Secretary's designee, acts with all the powers the Secretary would possess in rendering a decision under the whistleblower statues. The ARB engages in de novo review of an ALJ's recommended decision.

See, 5 U.S.C.A. 557(b)(West 1966); 29 C.F.R. 24.8; Stone & Webster Eng'g Corp. v. Herman, 115 F.3d 1568, 1571-1572 (I Ih Cir. 1997); Berlmnan v. UnitedStates Coast GuardAcad., ARB No.98-056, ALJ No. 97-CAA-2, 97-CAA9, slip op. at 15 (ARB Feb. 29, 2000). Moreover, the ARB is not bound by an ALJ's findings of fact and conclusions of law because the recommended 12

NATIONAL ENVIRONMENTAL PROTECTION CENTER decision is advisory in nature. See Att'y Gen. Manual on the Administrative Procedure Act Chap. VII, 8 pp. 83 -84 (1947)("the agency is [not] bound by a [recommended] decision of its subordinate officer; it retains complete freedom of decision as though it had heard the evidence itself').

2. The ARB Failed to Engage in De Novo Review in ARB No.98-008 In the consolidated cases, 89-ERA-7 and 89-ERA-17, the ARB failed to engage in de novo review of two ALJs' recommended decisions. Where, as in the instant action, the Complainant is represented pro se, it is incumbent on the ARB to engage in a de novo review of ALJ decisions. However, the ARB's decision in ARB No.98-008 makes clear that the Board failed to conduct a de novo review of the case for the reasons articulated below:

a) Burdens Under the ERA The complainant has the initial burden under the ERA to demonstrate aprimafaciecase of discrimination for protected activity. This burden is met when the complainant shows that he engaged in protected activity, that respondent was aware of the protected activity, and that the respondent took adverse action against the complainant following the protected activity. The evidence proffered by the complainant must raise an inference that the protected activity was the likely motive for the adverse action. The complainant can meet his burden by showing the proximity in timing of the adverse action to the protected activity. Once the complainant establishes a primafacie case, the respondent can rebut the presumption by showing that the adverse action was motivated by a legitimate reason standing alone and completely separate from the protected activity. However, if the trier of fact determines that a respondent's adverse treatment of a complaint was motivated both by illegal and legitimate reasons, then the dual motive analysis is applied in deciding the case. Under the dual motive analysis, the respondent, 13

NATIONAL ENVIRONMENTAL PROTECTION CENTER in order to avoid liability, has the burden of persuasion to show by a preponderance of the evidence that it would have reached the same decision even in the absence of the protected activity. See, Zinn v. University ofMissouri, 93-ERA-34, 93-ERA-36 (ALJ May 23, 1994). See, also, Mackowiak v. UniversityNuclear Sys., Inc. Notably, in Mackowiak the Court of Appeals adopted the Secretary's findings that:

Retaliation was at least a motivating factor in the discharge of Mackowiak, a quality control inspector, and that his employer had legitimate business reason, Mackowiak's bad attitude, to terminate him. The court found appropriate the application of the Mount Healthy City School Dist. v. Doyle, 429 U.S. 274 (1977), test for dual motive discharge cases which the Supreme court approved under the National Labor Relations Act. Once the plaintiff has demonstrated that the protected activity played a role in the employer's decision, the burden shifts to the employer to persuade the court that it would have discharged the plaintiff even if the protected activity had not occurred. The court then recognized that it makes sense to allocate the burden of proof to the employer once the employee has shown that an illegal motive'played some role in the employer's decision.

The employer is the wrongdoer who should bear the risk that the influence of legal and illegal motives cannot be separted.

See, Mackoiviak v. University Nuclear Sys., Inc., 735 F.2d 1159 (9h Cir. 1984); and Mandreger

v. The Detroit Edison Co., 88-ERA-1 7 (Sec'y Mar. 30, 1984). In Pogue v. United States Dept. of Labor, the court cited Mackowiak and held that:

[Iun dual motive cases, the employer bears the risk that the influence of legal and illegal motives cannot be separated ...

The court concluded that the Secretary failed to separate adequately the influence of the mixed motives for imposing discipline against petitioner and therefore failed to meet its burden of proving that the Navy's adverse actions would have occurred even if petitioner had not engaged in whistleblower activity. See, Pogue v. United States Dept. ofLabor, 940 F.2d 1287, 1291 ( 9th Cir. 1991). Moreover, the court in PassaicValley Sewerage Commissioners v. United States Dept. ofLabor, held that:

The employer has the burden to prove by a preponderance of the evidence that it would have terminated the employee even if the employee had not engaged in the protected 14

NATIONAL ENVIRONMENTAL PROTECTION CENTER activity. In a dual motive analysis, it is the employer's motivation that is under scrutiny.

The risk that the illegal and legal motives behind employee termination merge and become inseparable is placed on the employer. It is not enough that the evidence proves that the employer, in retrospect, made its employment decision on legitimate grounds.

(emphasis added).

See, Passaic Valley sewage Commissioners v. United States Dept. of Labor, No. 92-3261 (3rd Cir. Apr. 16, 1993). In Creekmore, the Deputy Secretary stated that:

[O]ne way for a complainant to establish that his protected activities were a contributing factor in the adverse employment action is to show that the reason the respondent gave for taking the action was pretextual.

See, Creekmore v. ABB Powver Systems Energy Services, Inc., (citations omitted).

3. The ARB Failed to Apply Controlling Law in Deciding ARB No.98-008 A careful reading of the ARB's decision in ARB No.98-008 clearly shows that the ARB failed to apply controlling law in reaching their decision. The ARB's theory in analyzing ARB No.98-008 was whether the actions of FP&L management, (i.e. the Site Vice President, Odom),

in requiring Saporito to stay late after his normal quitting time to meet about his safety concerns and later, Odom's order that Saporito see the company doctor was responsible or reasonable.

However, the law requires that the ARB's analysis of the case must determine whether the actions of FP&L management were a violation of the ERA. Certainly, it is reasonable and perhaps even responsible for management to insist on internal disclosure of safety concerns.

However, such a requirement is a violation of the ERA when it impedes the flow of information to the NRC and "chills" the work force. See, Chase v. Buncombe County, N.C. Dept. of Community Improvement, 85-SWD-4, Decision and Order of Remand by SOL, (November 3, 1986). Notably, the ARB failed to acknowledge that the ERA does, in fact, disturb the balance of power between management and employees employed at commercial nuclear power plants like the Turkey Point nuclear power plant. While the ERA does not provide a license for 15

NATIONAL ENVIRONMENTAL PROTECTION CENTER impermissible disruptive behavior or blatant insubordination, it does create a sphere of protection which normally acceptable management action may become illegal actions. See, Dunham v.

Brock 794 F.2d 1037 (5h Cir. 1986). Congress intended to protect public safety and health through the ERA by insuring that employees, like Saporito, do not fear reprisals when deciding whether or not to raise safety concerns at nuclear power plants. Indeed, it is the act of disclosing safety concerns that is the protected activity. It simply is not relevant, as a matter of law, whether a complainant's safety concerns were valid or invalid. See, Munsey v. FederalMine Safety and Health Rev. Comm., 595 F.2d 735 (D.C. Cir. 1978).

In the instant action, the Secretary held that:

. . . Saporito's refusal to obey Odom's direct order to divulge his safety concerns on November 23, 1988, was "protected activity" and that FP&L violated the ERA when it later discharged Saporito. The Secretary held that, "I need not decide whether it is appropriate under the ERA to balance Respondent's interests in immediate discovery of potential threats to public health and safety against complainant's right to protection for reporting his safety concerns outside the chain of command because I find FP&L's rationale for requiring Saporito to reveal his safety concerns to the Site Vice President disingenuous. Saporito told Odom on November 23, 1988, when Odom gave him a "direct order" to tell Odom his nuclear safety concerns, T.14381, that Saporito "%would only talk to the NRC." T.1438H. Odom then ordered Saporito to tell the NRC his nuclear safety concerns "at the first available opportunity" and Saporito said he would. T.1438J; 907. At that point, FP&L knew that the NRC, the government agency responsible for nuclear safety, would be notified and it was reasonable to assume the NRC would notify FP&L immediately if there were an imminent threat to public health or safety. I find that FP&L violated the ERA when it later discharged Saporito, among other reasons, for refusing to obey Odom's order to reveal his safety concerns. As grounds for dismissal, FP&L also cited Saporito's refusal to stay after his regular work day on November 30, 1988 to attend a meeting at which Odom again wanted to ask Saporito about his safety concerns, R-104; T.1445-46; 2024, and Saporito's refusal to be examined by a company doctor. Odom's decision to require Saporito to be examined by a company doctor grew out of the excuse Saporito gave on November 30 for refusing to stay late for the meeting with Odom, that Saporito was ill, and Saporito's reason for taking 12 days sick leave after November 30, that Saporito was suffering from stress related medical problems. T.

1455. Each of these reasons for discharge is related, at least in part, to Saporito's refusal to reveal his safety concerns to FP&L, an act I have held protected under the ERA...."

16

NATIONAL ENVIRONMENTAL PROTECTION CENTER See, Thomas .1.Saporito, Jr. v. FloridaPower & Light Company, 89-ERA-7 and 89-ERA-17, Secy'Decision andRemand Order, (June 3, 1994) at 3-4.

At issue in the instant action is whether Petitioner proved that FP&L acted with discriminatory motive in discharging him, at least in part, because of his protected activity in communicating his safety concerns about the Turkey Point nuclear power plant to the NRC.

Here, the ARB was fully aware of the Secretary's directive to the ALJ on remand, to review the record and submit a new recommended decision on whether FP&L would have discharged Saporito for legitimate reasons even if he had not insisted on his right to reveal his safety concerns only to the NRC. See, ARB No.98-008, Final Decision and Order (Aug. 11, 1988) at 1-

2. In other words, the AU and later the ARB were required to decide if FP&L discharged Saporito for legitimate business reasons alone standing separate and apart from Saporito's protected activity. Both the AU and the ARB failed to do so in their respective decisions and they failed to properly apply controlling law in reaching those decisions. First, the Secretary and later the ARB failed to find causation in Saporito's protected activity in contacting INPO in raising safety concerns about operations at Turkey Point in early 1988 and that FP&L's adverse actions in disciplining Saporito closely followed that protected activity. See, ARB No.98-001 at
6. This glaring and fundamental error calls in to question the reliability of entire decision in ARB No.98-008. Notably, the most common fact used to establish retaliatory motive is evidence of timing. See, Newkirk v. Cypress Trucking Lines, Inc. Case No. 88-STA-17, slip op. of SOL at 8 (Feb. 13, 1989)("Adverse action closely following protected activity is itself evidence of a illicit motive.") The fact that an employer takes disciplinary action shortly after an employee engages in protected activity is, unto itself, "sufficient to raise an inference of causation" to establish that element of the prima facie case. Id. See, also, Ertel v. Giroux Bros. Transp., Inc., Case No. 88-17

NATIONAL ENVIRONMENTAL PROTECTION CENTER STA-24, slip op. of SOL at 24-25 (Feb. 16, 1989); Priestv. Baldvin Assoc., Case No. 84-ERA-30, slip op. of SOL at 10 (June 11, 1986). Significantly, the ARB's decision in ARB No.98-008 did not even address the ample record evidence of timing in the instant action, yet the ARB concluded that there was no discriminatory motive established. The record, as it exists, in the present case, amply demonstrates that all the adverse action taken by FP&L against Saporito occurred shortly after he engaged in protected activity.

Odom's questioning of Saporito about his safety concerns on November 23, 1988; FP&L's placing of Saporito on restricted status; demeaning job assignments [T.812-13; 1760; Odom's attempted interrogation of Saporito about his safety concerns on November 30, 1988 and later FP&L's requiring Saporito to see the company doctor and Saporito's discharge, shortly followed Saporito's contacts with the NRC as well as his filing of ERA complaints with the DOL. 8 Thus, the ARB's conclusion that Saporito failed to establish aprimafaciecase in ALU No. 89-ERA-7 must be vacated and reversed as a matter of law. In addition, because the ARB in reaching their decision in ARB No.98-008 failed to consider Petitioner's primafacie case in AU No. 89-ERA-7 in deciding whether FP&L was motivated by Petitioner's protected activity in AU No. 89-ERA-17, the ARB's decision in ARB No.98-008 must be found by this Court to be unsupported by substantial evidence, arbitrary, capricious, an abuse of discretion, and otherwise not in accordance with law.

4. The ARB Failed to Properly Apply a Dual Motive Analysis in ARB No.98-008 The instant consolidated action unquestionably presents questions of dual motive. FP&L alleged it fired Saporito for three reasons: (1) for refusing to Obey Odom's order to reveal his safety concerns on November 23, 1988; (2) Saporito's refusal to stay late after his regular work s Taken together, all of the harassment incidents and adverse action that occurred between May and December 1988, satisfy a prima facie case of "hostile work environment." See, AMitchell v. APS/ANPP, Case No. 91-ERA-9, slip op.

of AL at 36-37 (July 2, 1992).

18

NATIONAL ENVIRONMENTAL PROTECTION CENTER day on November 30, 1988 to attend a meeting at which Odom again wanted to ask Saporito about his safety concerns, R-104; T. 1445-46; 2024, and (3) Saporito's refusal to be examined by a company doctor. Each of these reasons for discharge is related, at least in part, to Saporito's refusal to reveal his safety concerns to FP&L, an act the Secretary has held to be protected under the ERA. See, Sec 'y Decision and Remand Order at 3-4, (June 3, 1994). Here, all of FP&L's alleged reasons for discharging Saporito are inextricably intertwined with Saporito's protected activity and simply cannot be divorced from that protected activity. Thus, the ARB erred in not finding FP&L's rationale for discharging Saporito to be pretextual and that the real reason and motivation for discharging Saporito was his engagement in protected activity.

a) Refusal to Holdover and Attend Meeting With Odom and Refusal to Be Examined by the Company Doctor In deciding ARB No.98-008, the'ARB failed to consider substantial record evidence which clearly shows that Odom, the FP&L Site Vice President over Turkey Point lied under oath at trial when Odom testified that [h]e required Saporito's attendance at a meeting on November 30, 1988 to learn if there was any immediacy about any of Saporito's safety concerns that Saporito had communicated to the NRC about the Turkey Point nuclear plant. The ARB further erred in failing to consider substantial record evidence which clearly shows that Odom's order that Saporito see a company doctor was pretextual insofar as Odom made the decision to discharge Saporito prior to requiring Saporito to see the company doctor. Therefore, FP&L's alleged legitimate business reason for discharging Saporito because [h]e refused to be examined by the company doctor must be found by this Court to be pretextual and not true and that the real reason for FP&L's discharging Saporito was his protected activity. Likewise, to the extent that this Court finds FP&L's ordering' Saporito to be examined by a company doctor to be a pretext, this Court must also find FP&L's alleged legitimate business reason requiring Saporito to attend 19

NATIONAL ENVIRONMENTAL PROTECTION CENTER a meeting with Odom on November 30, 1988 to reveal his safety concerns to be a pretext and not true and that the real reason for FP&L's discharging Saporito was his protected activity.

In deciding ARB No.98-008, the ARB simply chose to ignore the substantial record evidence that clearly shows that FP&L's suspension and discipline of Saporito was not consistent with discipline (including discharge, suspension, and demotion) it had meted out to other employees under similar circumstances. The ARB relied on RX-I 11 in finding that Saporito's suspension was consistent with discipline FP&L had meted out to other employees; however, to the contrary, RX- 111 actually supports the fact that FP&L treated Saporito more harshly than other employees accused of disobeying management orders. Kappes, a subordinate manager to Odom, conceded at trial that another employee who refused [h]is direct orders on numerous occasions (and more times than Saporito allegedly refused orders) was not fired T.2058-63. Unlike Saporito, this other employee was afforded a meeting with union stewards and management to discuss his repeated failures to comply with direct orders before discipline was imposed. Id. Significantly, this other employee was only suspended rather than fired.

Moreover, PP&L maintained a company policy requiring discipline of its employees, like Saporito, to be handled at the lowest level of management. In contrast, Saporito's immediate supervisor, Verhoeven, was not permitted My role in the disciplinary actions taken against Saporito. Rather, FP&L failed to utilize its progressive discipline policies in Saporito's case which provided for lesser penalties other than discharge. FP&L deviated from its own disciplinary policies and gave Saporito the harshest discipline when company policies called for less penalties. Notably, FP&L did not provide Saporito any rights to contest or to challenge his discipline pursuant to the union contract maintained between FP&L and the International Brotherhood of Electrical Workers.

20

NATIONAL ENVIRONMENTAL PROTECTION CENTER In deciding ARB No.98-008, the ARB erred by standing in the shoes of the NRC in considering whether or not Odom needed to know if there existed any "immediacy" about any of the safety concerns that Saporito had communicated to the NRC. As the Secretary held in his June 3, 1994 Decision and Remand Order, the NRC is . . . the government agency responsible for nuclear safety. . . " Id. at 3. Instead, the ARB found in their Aug. 11, 1998, Final Decision and Order that:

". . . Here Odom clearly had a valid purpose in wanting to question Saporito about his safety concerns: to learn whether any of those concerns had immediate significance for public health and safety. .

Id. at 9.

In contrast, the Secretary in his June 3, 1994, Decision and Remand Order held that:

"I need not decide whether it is appropriate under the ERA to balance Respondent's interests in immediate discovery of potential threats to public health and safety against Complainant's right to protection for reporting his safety concerns outside the chain of command because I find FP&L's reason for requiring Saporito to reveal his safety concerns to the Site Vice President disingenuous. Saporito told Odom on November 23, 1988, when Odom gave him a "direct order" to tell Odom his nuclear safety concerns, T.14381, that Saporito 'would only talk to the NRC.' T.1438H. Odom then ordered Saporito to tell the NRC his nuclear safety concerns 'at the first available opportunity' and Saporito said he would. T. 1438J; 907. At that point, FP&L knew that the NRC, the government agency responsible for nuclear safety, would be notified and it was reasonable to assume the NRC would notify FP&L immediately if there were an imminent threat to public health or safety. I find that FP&L violated the ERA when it later discharged Saporito, among other reasons, for refusing to obey Odom's order to reveal his safety concern. ..

Id. at 2-4.

Thus, it was incumbent upon the ARB in deciding ARB No.98-008, to consider whether Odom clearly had a valid purpose in wanting to question Saporito about his safety concerns and whether Odom's rationale for requiring Saporito's attendance at a meeting about [h]is safety concerns was disingenuous and therefore a pretext to later discharge Saporito. In ARB 98-008, the ARB failed to properly analyze the instant action under a dual motive analysis as the law 21

NATIONAL ENVIRONMENTAL PROTECTION CENTER requires. Notably, the ARB simply chose to ignore substantial record evidence which clearly shows that Odom lied under oath about his purpose in ordering Saporito to meet with Odom about his safety concerns, to learn whether any of Saporito's concerns had immediate significance for public health and safety. On the morning of November 30, 1988, Odom placed a telephone call to NRC Region II headquarters in Atlanta, Georgia seeking information about Saporito's safety concerns about operations at Turkey point. NRC records show that:

.. . ODOM said his reason for calling was to report that ... [Saporito] has not provided any safety concerns... .ODOM said that... Saporito said that the NRC has instructed.-.

.[Saporito] not to provide safety concerns to the licensee. . . ODOM said 'has he given you people any safety concerns.' JENKINS responded that we do not divulge information that is exchanged between an individual and the NRC. ODOM said that he understood."

"ODOM said he needed to know if... [Saporito] had provided any information of significant safety and JENKINS responded the we are currently unaware of any immediate significant safety issues. ODOM said that if we were to at any time gain any information of an immediate safety significance to please notify him immediately as he said, 'I need to know that information.' JENKINS said that we would certainly cooperate if that were the case."

See, Attachment One, at pages entitled "Memorandum for Case File" dated (November 30, 1988), included with Petitioner's June 29, 2004, Answer to Respondent's Memorandum in Opposition to Complainant's Supplemental Motion for Reconsideration.

Here, the substantial record evidence shows that Odom ordering Saporito to stay late after his normal quitting time on November 30, 1988, to attend a meeting with Odom about his safety concerns, to learn whether any of those safety concerns had any immediacy about them was a lie, because the NRC had assured Odom on the very morning of November 30, 1988 that Saporito had not raised any safety concerns that had any immediacy about them. 9 Significantly, at the 9 During the first hearing in the instant action held in January 1989, FP&L withheld and failed to produce Odom's calendar that he maintained at his position at Turkey Point. Odom's calendar was clearly required to be produced under the rules of discovery but FP&L withheld that evidence. However, during discovery in the second hearing held in 1997, FP&L produced Odom's calendar. Notably, the day of November 30, 1988, was completely whited-out by Odom and Odom had no reasonable explanation for whiting-out that particular page in his calendar.

22

NATIONAL ENVIRONMENTAL PROTECTION CENTER remand hearing, Odom conceded that on November 30, 1988, he was told by Jenkins of the NRC that the agency was not aware of any immediate significant safety issues raised by Saporito, and that if there were concerns that the NRC thought he [Odom] needed to know, they would tell him. Odom believed in good faith that the NRC would tell him if there was an immediate nuclear safety concern. T. 520-22 (remand hearing). Thus, it was incumbent upon the ARB in ARB No.98-008 to find, as did the Secretary in his June 3, 1994 Decision and Remand Order, that:

".F.. FP&L knew that the NRC, the government agency responsible for nuclear safety, would be notified and it was reasonable to assume the NRC would notify FP&L immediately if there were an imminent threat to public health or safety. I find that FP&L violated the ERA when it later discharged Saporito, among other reasons, for refusing to obey Odom's order to reveal his safety concerns. . .

Id. at 3-4.

The ARB in deciding ARB 98-008 failed to properly apply a dual motive analysis to the instant action and the ARB's decision is unsupported by substantial record evidence, is arbitrary, capricious, an abuse of discretion, and otherwise not in accordance with law. Therefore, this Court must vacate the ARB's decision in ARB No.98-008 as a matter of law and issue a make-whole ruling in Petitioner's favor.

b) Petitioner Engaged in Protected Activity in Refusing Odom's Order to Attend a Meeting With Odom on November 30, 1988 Solely About Saporito's Safety Concerns Here again, the ARB simply chose to ignore substantial record evidence that shows that Saporito's refusal to meet with Odom on November 30, 1988 about his safety concerns was protected activity. First, FP&L managers Harley and later Kappes, each told Saporito that the sole reason that Odom wanted to meet with his was to ask [h]im about his safety concerns.

T.1793, 2023-24, R.T. 1946. Harley located Saporito in the I&C shop and told Saporito about Petitioner avers that Odom intentionally whited-out the day ofNovember 30, 1988 in his calendar to mislead the DOL and the NRC about his intent and motivation to retaliate against Saporito because of Saporito's protected activity in bringing safety concerns to the attention of the NRC and in filing ERA complaints against FP&L.

23

NATIONAL ENVIRONMENTAL PROTECTION CENTER Odom's order to meet with Odom about his safety concerns. T.1794, R.T. 1408, 1411. Kappes later repeated Odom's order to Saporito. Notably, FP&L's own exhibit RX-95 shows that Harley told Saporito that Odom wanted to meet with him about his safety concerns and for no other reason. Thus, FP&L clearly put Saporito on notice that the sole reason for Odom's ordering him to stay late past his normal quitting time on November 30, 1988, was to again be questioned by Odom about his safety concerns.

c) The ARE Failed to Show in ARE No.98-008 That FP&L Had a Legitimatc Reason to Discharge Saporito Separate and Apart From His Protected Activity The instant action, is a matter comparable to Price Waterhouse, in which the Court discussed the dual motive analysis and held that:

. .. The employer should be able to present some objective evidence as to its probable decision in the absence of an impermissible motive ... The legitimate reason must be both sufficient to warrant the employer's action and it must have motivated the employer at the time of the decision ... It is not enough that the decision was motivated in part by the legitimate reason. The employer instead must show that its legitimate reason, standing alone, would have induced it to make the same decision. .

See, Price Waterhouse v. Hopkins, 490 U.S. 228, 252, 109 S.Ct. 1775, 1791 (1989)(emphasis added). In the instant action, Odom's reason for wanting Saporito's attendance at the meeting on November 30, 1988, that .... Odom clearly had a valid purpose in wanting to question Saporito about his safety concerns: to learn whether any of those concerns had immediate significance for public health and safety. . . " is disingenuous on the part of Odom and FP&L for the very reason found by the Secretary in his June 3, 1994 Decision and Remand Order. Notably, there exists overwhelming and substantial record evidence which clearly shows that Odom did not have a valid purpose in wanting to question Saporito about his safety concerns on November 30, 1988, that Odom was told by the NRC on the morning of November 30, 1988 that none Saporito's safety concerns had any immediacy about them and that the NRC would immediately advise 24

NATIONAL ENVIRONMENTAL PROTECTION CENTER Odom if Saporito later brought such concerns to the agency's attention. Odom knew a lot of people at the NRC because he was in the Navy with them and they certainly had people who were technically competent. R.T. 523.

In sum, the substantial record evidence clearly shows that 1) Odom was told by NRC authorities on the morning of November 30, 1988 that Saporito had not raised any safety concerns that had any immediacy about them and the NRC assured Odom that the agency would certainly contact FP&L immediately if such concerns were later brought by Saporito; 2) Odom lied at the first hearing testifying under oath that he needed to meet with Saporito late in the day on November 30, 1988 to learn if any of Saporito's safety concerns had any immediacy about them; 3) FP&L intentionally attempted to mislead the DOL and the NRC by failing to produce Odom's calendar at the first hearing because the calendar clearly shows that Odom whited-out the entire day of November 30, 1988 which leads one to believe that Odom did not want the Government agencies to learn about his intent to retaliate against Saporito for his protected activity; 4) Odom also lied at the first hearing about discharging Saporito for refusing to be examined by a company doctor, that Odom actually made the decision to fire Saporito prior to Odom's order to Saporito to be examined by the company doctor; and 5) The record transcripts are "tainted" with FP&L's privately obtained transcripts in direct violation of the Department's rules. Because the ARB and this Court relied on the "tainted" record transcripts in reaching prior decisions (ARB No.98-008) and (Eleventh Circuit Appeal No. 98-5631) in the instant action, those decisions are erroneous and must be vacated by this Court as a matter of law.

For all the foregoing reasons, this Court must find that the ARB's decision in ARB No.98-008 is unsupported by substantial record evidence, arbitrary, capricious, an abuse of discretion, and otherwise not in accordance with law and issue an Order vacating said decision 25

NATIONAL ENVIRONMENTAL PROTECTION CENTER and providing a make-whole remedy to the Petitioner. To the extent that this Court finds the ARB's decision in ARB No.98-008 to be inconsistent with law, so must it reverse its own decision in the Eleventh Circuit Appeal No. 98-5631 and find that FP&L violated the ERA when it illegally discharged Saporito for engaging in protected activity at the Turkey Point nuclear plant in raising safety concerns to the NRC in 1988.

Respectfully submitted, National Environmental Protection Center Thomas Saporito Petitioner, pro se CERTIFICATE OF SERVICE This is to CERTIFY that a copy of the foregoing document, Petitioner's Principal Brief, was provided to those named below at their last known address on this 28th day of February 2005 by means indicated:

Thomas Kahn United States Court of Appeals for the Eleventh Circuit Elbert P. Tuttle Court of Appeals Bldg.

Office of the Clerk 56 Forsyth Street, N.W.

Atlanta, Georgia 30303

{Express Mail}

Administrative Review Board United States Department of Labor Room S-4309 Frances Perkins Building 200 Constitution Avenue, N.W.

Washington, D.C. 20210

{Regular U.S. Mail}

26

NATIONAL ENVIRONMENTAL PROTECTION CENTER CERTIFICATE OF SERVICE - continued James Brammick Akerman Senterfitt One S.E. Third Avenue, 28th Floor Miami, Florida 33131-1714

{Regular U.S. Mail)

David K. Colapinto Kohn, Kohn & Colapinto 3233 P Street, N.W.

Washington, D.C. 20007

{Regular U.S. Mail)

Director, EICS U.S. Nuclear Regulatory Commission Region II - Suite 23T85 Atlanta Federal Center 61 Forsyth Street, S.W.

Atlanta, Georgia 30303-3415

{Regular U.S. Mail)

Howard M. Radzely Office of the Solicitor U.S. Department of Labor 200 Constitution Avenue, N.W.

Room S-2002 Washington, D.C. 20210

{U.S. Regular Mail)

Mitchell S. Ross Florida Power & Light Company 700 Universe Boulevard Juno Beach, Florida 33408

{U.S. Regular Mail) 27

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