ML20126K248
| ML20126K248 | |
| Person / Time | |
|---|---|
| Site: | Fermi  |
| Issue date: | 04/21/1992 |
| From: | Slavin E GOVERNMENT ACCOUNTABILITY PROJECT |
| To: | Pederson C NRC OFFICE OF INSPECTION & ENFORCEMENT (IE REGION III) |
| Shared Package | |
| ML20126K160 | List: |
| References | |
| 2.206, NUDOCS 9301070075 | |
| Download: ML20126K248 (18) | |
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5 GOVERNMENT ACCOUNTABILITY PaoitcT 810 First Street, NE
- Suite 630 Washington, DC 20002-3633 202-4084034 w 202-408 9855 April 21, 1992 Ms. Cynthia Pederson Director, Enforcement and Investigations Coordination Staff Huolear Regulatory Commission 799 Roosevelt Road, Building 4 Glen Ellyn, Illinois 60137 via Fax
Dear Ms. Pederson:
On April 17, 1992, the United States Court of Appeals for the Sixrh Circuit upheld the orders of the Secretary of Labor and invidious her Administrative Law Judge finding intentional, discrimination in Larrv v. The Detroit Edison Comnany.
A copy of the Etr EMI1DE Court of Appeals decision is enclosed.
This marks the third time that an independent forum has found that DECO intentionally discriminated against Ms. Larry and deceived her about her rights.
(This finding was also made by the Administrative Law Judge in 1986, and by Secretary of Labor Lynn Martin in 1991.)
Priday's Court of Appeals opinion upheld the DOL finding that DECO intentionally deceived Ms. Larry in apparent hopen of placing any whistleblower complaint beyond the statute of limitations, using a phony EEO scheme.to intercept nuclear whistleblower complaints.
United States Administrative Law Judge Glenn Robert Lawrence was very outspoken about DECO's conduct at the hearing, stating that the Notice to Euployees was --
on its face misleading... it-is deceptive and invites people with whistleblower complaints to see (the EEO officar) who represents the company.
I don't know what happens to all the whistleblowers in that-company.
They may all get thrown into. the sewer. - (Tr. 621).
The Sixth Circuit decision upheld the DOL finding that DECO l
demoted Ms. I4rry from her position as a nuclear security specialist because she had raised concerns about serious breaches The Sixth Circuit,.like of security for safeguards information.
the Secretary and ALJ before it, noted that Mr. Plana, Director of Nuclear Administration, testified-under oath that "it was a (ERA ALJ f
good time to get rid of any -- scratch that please."
Decision and Order at 7, Secretary's Decision and order et 14n.15, and Sixth Circuit Decision at 12).
This is a case of 1
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o intentional diacrimination against a whistleblower, who was transferred to a job walking the Fermi 2 fence at midnight (after having being promined a permanent job as a nuclear security specialist before nar report to NRC).
On behalf of Ma. Larry, we request that the Nuclear Regulatory Commission take vigorous enforcement action against DECO to keep such misconduct from over occurring in the future, to deter other wrongdoing, and to punish DECO's willful deceit and retaliation against a nuclear safety whistleblower.
Such an enforcement action is necessary and proper to effectuate the purposee of 10 C.F.R.
S 50.7 (Employee protection).
For further insight into the facts of this case, we call your attention to the briefs filed for Ms. Larry and the Secretary of Labor in the Sixth Circuit, which we can provide for you upon request.
Ms. Larry and her counsel hereby respectfully request to be a part of any and all NRC enforceme.it meetings of any kind.
Ms.
Larry and her counsel further respectfully request that no private or gx partu phone conversations or meetings of any kind or description be held between any NRC officials and DECO without affording Ms. Larry and her counsel the opportunity to be present in person or by telephone.
No. Larry requests that reasonable expenses incurred by her and her counsel relating to the enforcement action be paid by DECO as part of its civil penalty.
The civil penalty against DECO should be substantial in light of DECO's efforts to mislead Ms. Larry, the Department of Labor, and the Sixth Circuit.
The civil penalty should be large enough to show DECO that its actions to suppresa information about security breaches and to harass a nuclear security whistleblower"will not be tolerated by the NRC.
The civil penalty should be large enough to vindicate the national interest in protecting the integrity of nuclear safeguards information and in halting whistleblower retaliation.
Tnere must be strong economic dinincentives for other utilities not to leave safeguards information open to misuse by potential terrorists.
The civil penalty should high enough make clear to all nuclear employees ovarywhere that the NRC will protect their rights to report safety and security concerns to NRC, and that the NRC is serious about protecting nuclear employees.
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employee free speech cust be punished severely.. Anything lessf in-this case-would-be a threat to national security.:--
Ms.1 Larry-and I both look-forward to hearing from you,-and:
will-be happy to assist your office.=
With kindest regards, I am, 8
e oly u s, s.
ard A.
Slavin, J.
Legal counsel for natitutional-Rights cc: Ms. carolyn Larry Hon. Ivan Selin, chairman, NRC Mr. Ben Hayes Mr. Jeff Hodges j
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NO. 913737 E I l.' E D-UNITED STATES COURT OF APPEALS -
-FOR THE SIXTH CIRCUfT APR-171992'..
1 ILEONARD GREEN, Cle i^
THE DETROIT EDISON COMPANY, Pethioner,-
On Petition for Review v.
of the Final Order of :
- the Scoretary of ubor.
SECRETARY UNITED STATES DEPARTMENT OF LABOR, NOT RSCOAUMNDID POR mal..TFXT PUBUCAfloN CAROLYN LARRY,
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5 Before:
JONES, QUY, and BATCHELDER, Circuit Judges.
PER CURIAM. The petitioner apposis the Secretary's determination that:iti violated the "whistleblower' protection provision of the Energy _ Reorganization 'Act,-'42:
U.S.C. 5 5851, by. demoting an employee after she reported alleged security violations _ to -
the Nuclear Regulatory Commission. Finding that the employee's complaint was timely-and that the Secretary's decision was supported by substantial evidence, we affirm.
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This petition arises out of an administrative complaint filed _with the Department off 1.-.
L Labor by the Intervonor, Carolyn Larry, against the petitioner, The Detroit: Edison
- Company. The complaint alleged that Detroit Edison had retaliated against Larry's protected actMty, in violation of 42 U.S.C. 5 5851,'by demoting her after_ learning that she had reported security prob 6 ems to the Nuclear Regulatory Commission (NRC).
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No. 913737 2-Although the facts in this dispute are contested, we shall summarize the evidence upon which an soministrative law judge end the Secretary rolled in finding for Larry, in 1982, Detroit Edison hired Larry as a nuclear security officer at the company's Fermi 2 Nuclear Power Plant in Monroe, Michigan. As a nuclear securtty officer, Larry worked as a member of the plant's armed, uniformed security force, in January 1964, Larry received a temporary promotion, not to exceed six months, to background investigator. Detroit Edison extended her promotion three times at six. month Intervals, in September 1985, Lanys title was changed from background investigator to nuclear security specialist. In December 1985, Larry rec &sd a six month extension as a nuclear security specialist, her fourth such extension. This last extension was to expire in June 1986. The background investigator and nuclear security specialist positions are non-uniformed and pay more than the nuclear security oMcer poshion.
According to Samuel Thompson, Lanys immediate supervisor, Larry's promotion was extended repeatedly because she performed very well. Thompson also recalled that, in the summer of 1965, Stu Leach, the plant's director of nuclear security, promised Lany a permanent position as a nuclear security specialist. According to Larry, Leach told her that he was waiting on the paperwork to make the appointment final in the fall of 1985, Leach left his position and was replaced by L Wayne Hastings. Larry testified that, after Hastings assumed Leach's position, Thompson assufod her that Hastings was favorably impressed with her work and that the permanent appcAWnent would be forthcoming soon.
In November 1985, Larry observed Cindy Cody, Hastings' secretary, using the Comprehensive Eim.hunic Omco computer system (CEO) as a word processor to prepare a " safeguards' report about a safety violation that had occurred at the plant.
Two months earlier, at a meeting with Larry, Thompson, and Hastings, an NRC inspector had explalned that the CEO was not secure for use with safeguards information. Larry discussed the matter with Cody, who told Larry that Hastings had ordered her to prepare
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the report on the CEO.
Both Hastings and Thompson eventualty teamed of the conversation between Cody and Larry.
A few days later, Larry discussed the CEO Incident with an NRC inspector. After telling Larry that he would look into the matter, the inspector qucstioned several other employees about the incident.
Hastings and Larry enjoyed a cordial professional and social relationship until November 1985.1 Larry testmed that the relationship became strained in late November after she reported the CEO incident to the NRC inspector.
The NRC sent Detroit Edison a copy of the inspector's report concerning the CEO incident in early February 1968. Larry disagreed wtth some of the report's findings, and sent NRC Inspector Gary Pittle a letter expressing her concerns on Febraary 24,1906.
Two weeks later, Pirtle returned to the plant. While in Hastings' office, Plrtle received a phone call from his supervisor at the NRC. Pictle took the call at Cody's desk.
Two security employees, Maxim Agge and James Bielaniec, testified that they overheard portions of Plrtle's corwcsation. Both testmed that they heard Pirtle speak about L.arry's letter to the NRC. Agge testified that he also overheard Pirtle mention something about a
" safeguards inspection.' Bielar%c was sitting approximately six feet from Cody's desk, while Agge was 10 to 15 feet away. Agge testmed that he observed that Hastings was standing by his desk, approx}metety 15 foot away, during Pittle's conversation. Hastings testified that he did not know that Larry had sont a letter to the NRC until this litigation began.
Larry testmed that she became " completely invisible
- to Hastings after she sent the letter. (App. 300). AGOs testmed that he notlood during this period that Hastings displayed a ' lack of trust towards the staff members." (App. 487).
Two weeks later, Hastings met with James Plana, general director of nuclear operation se< vices, and decided to reassign Larry and another employee, Keith l in fact. at Hastings' trwitation, Larry accompanied Nrn to a company pesty.
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Johnson, to nuclear security officer positions. Hastings and Plana testrfied that they made the reassignments as part of an enrichment program, in which uniformed officers received temporary promotions to non uniformed positions.
According to Hastings and Plana, the decision was unrelated to any
'whistleblowing' activity of Larry and Johnson.2 Hastings testified that, although Larry's promotion had been re-extended until June, the extension periods were ceilings so that the promotion could be canceHed before the end of the period. Plana testified that "Mr.
Hastings and I met and decided it was a good time to enact our plan to get rid of any ~
scratch that, please.... [To) bring people in from the Nuclear Security force itself, the uniform force, and give them this experience....* (App. 651).
Hastings and Plana made their decision while Thompson, Larry's immediate supervisor, was on vacation. When Thompson retumed on April 1,1966, he asked for time to argue against the reassignments, in a memo to Plana dated April 7,1986, he expressed his belief that the reassignments would ' seriously impair the security staffs ability to adequately implement the proactive compilance end evaluation program....'
(App. 99). He explained that replacing Larry and Johnson with less wperienced staff members would be ' counter productive' to rr.rdag security objectives, 'not to mention the concems the NRC may have.' (App.100), He concluded by recommending that Larry and Johnson retain their positions until at least the end of September 1986.
On April 9,1988, Thompson verbatty informed Larry that she would become a nuclear securtty of6cer as of April 25. Lany requested an exp!anation for tha change, but Thompson provided none. Thompson showed Larry the memo he had written two days eariier. Lnny began her new assignment as a uniformed security omeer on April 27, 1966.
in an internal gdevancs proceeding. Johnoon adeged that he was reseakped because be had 2
spoken out about safety and management concems to a safety Iruoothpation team managed by a oetros Ed son subsMlary.
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Pursuant to the Michigan Whistleblowers' Protection Act, Detroit Edison was required to post a notice informing empK)yees of their rights under the statute. Mich.
Comp. Laws Ann. I 15.368. Detroit Edison's posted notice advised employees to repod violations to the company's Equal Employment Opportunity (EEO) DMslon.
On April 10, the day after Thompson informed Larry of her imminent reas6ignment, Larry visited Detrort Edison's EEO office in Detroit and spoke with EEO Specialist Denise O'Keefe. Larry expressed doubts to O'Keefe about whether she was in the right place or whether she should file a complaint with a federal or state agency.
O'Keefo testified that she assured Larry that she was in the right place, but that her effons on Larry's behalf would cease if Larry filed a fortnal complaint. O'Keefe did not tell Larry that 9,he represented the interests of Detroit Ediaca in employment discrimination and whistleblower cases. O'Keefe also testified that Larry was concerned about missing a 30-day deadline for filing a complaint with the Department of Labor and that she was unsure when the 30 days began to run. O'Keefe did not inform Larry when the period began to run.
After O'Keefe assured Larry that she would keep any disclosures in confidence, Larry explained her complalnt to her. O'Keefe promised to investigate. A few days later, Larry provided O'Keefe with documents supporting her complaint. After a few weeks, Larry began calling OWefe frequently to determine how the investigation was proceeding. O'Keefe testmed that she tried unsuccessfully to schedule a meeting with Plana and that she discussed the matter with a member of Detrdt Edison's legal staff.
She took no other action on Larry's behalf. She also stopped retuming Larry's phone calls.
Larry filed her complaint wtth the Department of Labet on May 19,1998. In her handwritten conplaint, Larry explained that she had hoped to obtain relief through O'Keefe but had decided to file because "the 30 day time limit mentioned in the NRC's
' Notice to Employees' is fast approacning and I have not received any assistance from
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Detroit Edison's EEO person.' (App. 90). O'Keefe tumed over Larry's documentation to Detroit Edison's legal department after learning that Larry had Aled a formal complaint.
l A hearing was held before an administrative law judge in July 1986.
Ahor summarizing the testimony and documents,) resented by the parties, the AU first concluded tls t Larry's complaint was timely because Thompson's verbal notice of the reassignment was not unequivocal. After finding that Larry had estabilshed a prima facie case of retaliation, the AU found that I.arry had shown that Detroit Edison's explanations were pretextual.
Specifically, the AU found evidence of retellatory animus a9ainst whistleblowers in the testimony of both Plana and Hastings and in the timing of Larry's reassignment. The AU found *less than credible' Hastings' testimony that he was j
unaware of Lanys communications to the NRC. (App. 36).
Accordingty, the AU ordered Detroit Edison to reassign Larry to a nuclear security specialist position.
The order left open the question as to whether the assignment would be permanent.
The Secretary uphold the ALJe decision in July 1991.8 The Secretary afRrmed the-t AU's determination that Lanys complaint was timely because Thompson's notloo was not unequivocal. Altematively, the Scoretary found that the 3D4ay period was equitably tolled by OKeefe's 'mieleeding and confusing' conduct which distracted Lany from filing her complaint earfier. (App. 28). lThe Soorotary ordered Detroit Edison to reinstate Lany as a nuclear scourity spoolellet on a permanent basis, Anding from Thompson's and Larry's testimony that she would have receiveo a permanent promotion but br Detioit Edison's retalletion. Detroit Edloon then filed this petition for review of the Secretary's order.
-I hhe recon $ le uncieer as to why #m years etapeed between the AlJe decision and the Secretarys rev6ew.
No. 913737 7.
44.
l Detroit Edison first argues that the Secretary erred in finding that Larrys compielnt was timefy. The Whtleblower' protection provision of the Energy Reorganization Act i
provides:
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Any em loyee who believes that he has been discher ed or otherwise discriminated against by any person in of
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subsection (a) of this secton moy, ivlihin thinv dan afer *%
i ylotation ooGuts, file... a complaint witi the Secretary o La )or...,
42 U.S.C. t 5851(b)(1) (emphaels added). Thompson Informed Larry of her imminent reassignment on April 9,1988. However, Larry did not retum to uniform until April 27.
j Larry filed her complaint with the Department of Labor on Mey 19.
l The Secretary concluded that Larrys complaint was timely boosuse Larry did not receive unequivocal and final notice of her reassignment untN she actually retumed to the uniformed position and because Detroit Edison's conduct equitably toted the limitations period.
When reviewing these two conclusions, we must necept the Secretarys y
determination of the underfying facts if supported by substantial ev6dence. Moon v.
Trananort Drivers. Inc., 838 F.2d 220, 220 (6th Cir.- 1987). Evidence is substantial if a-reasonable mind could scoopt it as adequate to support a concluelon. E Since the applicability of a limitations period to a given set of facts _Is a question of law, we review the Secretarys application of the limitations period.dtabs. Age Roma v. Dole,945 F.2d 1331,.1334 (9th Cir.1991).-
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i The Secretary and Larry first argue that Lany fled her complaint within 30 days of the alleged violation. The date the empeyse receives notice of the adverse employment l
decision,- not the date the consequences are first felt, marks the beO rWg of the 304ey period. English v. Whitfleid,858 F.2d 967,961 (4th Cir.1900); age.aboIlelm. ara 3 tate College v. Ricks, 449 U.S.- 250, 258 (1980) (reeching same result beood on similar l
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limitation provision in Title Vil). However, to start the clock running. the notice must be unequivocal and Anal.10glisb 858 F.2d at 961.
The ALJ concluded that the 30 days did not begin to run on April 9 because Thompson's verbal notice did not set forth the specMos of the transfer. The Secretary j
reached the same conclusion, adding that Thompson's memo opposing the reassignment may have led Larry to believe that the decision was reversible.
Detroit Edison arguss that Thompson's notice was unequivocal and 5nal. Detroit i
Edison points to Larry's testimony, in which she acknowledged that she understood from Thompson that the decision was final, and to her complaint to the Department of Labor in which she wrote: 'On 4 9-86 Sam Thompson, my immediate supervisor, informed me I was going back to untform as [ sic) nuclear security omcor. He said he wrote a memo trying to prevent this but was unsuccessful.' (App. 94).
The Secretary and Larry do not point to any evidence that would support the Secretary's conclusion that Thompson's notice to Larry was equivocal or open to modification.
Since the onty evidence in the record indicates that the notice was unequivocal and final, we find that the Sectstarys conclusion was not supported by substantial evidence.
N.
The Secretary and Larry argue that Lanys complaint was nevertheless timely because of equitable toning. The doctrine of eq1sbie tolling applies when an employee misses a filing deadlinc because of 'mittleading conduct by the employer or ineffective but diligent conduct by the employee.' Andrews v. Orr, 851 F.2d 146,150 (8th Cir.
1988),
in Andrews, we discussed in some detail the two types of circumstances that would justify equkeble tolling. First, tolling is appropdate if the employer engaged in af5rmettve conduct that caused the employee to miss the deadline..ld.,851 F.2d at 151.
Second, even in the obsence of misleading employer conduct, equRable tolling may be
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j appropriate if the employee missed the deadline despite reasonable efforts to comply, in Andrews, we identified five factors to consider in such cases:
R(1) look of actual notice of filing requirement; (2) lack of constructive i
le of filing requirement; diligence in pursuing one's righte; ( > absence of prejudios to th(3) defendant; and (5) a peint e
reason s in remain 6ng ignorant of the notice requirement.
851 F.2d at 151.
The Secretary found that misleading conduct by Detroit Edison caused Larry to delay filing her complaint. We find that this factual conclusion is supported by substantial evidence.
Larry and O'Keefe both testified that Larry indicated on April 10 that the would i
immediately file her complalnt unless O'Keefe assured her that she had come to the I
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'right pleoe' to resolve her dispute. O'Keefe told Larry that she had come to the right pleos, but that all efforts on Larry's behalf would cease if Larry filed a complaint. This evidence amply supports the conclusion that O'Keefe's assurances caused Larry.to delay fliing her claim.
However, Detroit Edloon denies that its conduct was mioiceding. The Sooretary found that Detroit Edison's representations to Larry were deceptive in several material ways. First, O'Keefe admitted that she never explained to Larry that she represented the Interests of Detroit Edleon, l.arry's testimony supports the findng that, although Lany.
knew O'Keefe worked in Detroit Edison's EEO offloe, Larry did not know that O'Keefe represented Detroit Edloon in employment discriminellon and retalladon cases.
Second, O'Keefe esaured Larry that - she would keep any dieciosures in confidence, in fact, O'Keefe admitted that she_ docussed Larry's case with Detroit Edloon's legal department, and O'Keefe tumed over Larry's documents to the legal department after O'Keefe fled her compialnt.4 -
4 Detroit Edloon strenuounty argues that any actions tg OMeefe that occurred ener Larry fled her-complaint are irreiemnt to determine whether t.arry wee misied. We and this consenmon to be mermees if OKeefe had told Larry on Apri 10 that she woHd diecioso Larrye conAdences to Detrot sdison's legal departmort. Larry almost cenairdy would not have delayed flin0 her complaint. Therefore, O'Keefe's 1
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No. 9b3737 10, Third, O'Keefe promised to pursue Larry's grievance. However, O'Keefe made almost no disoemible progress in the four weeks after Larry contacted her. O'Keefe did not discuss the matter wtth Plana or Hastings, and she falled to return numerous phone calls from Larry.
Fourth, OKoefe testified that she was aware that Larry was confused as to when the 30 day limitation period began to run. However, despite discussing Larry's case with Detroit Edison's legal department, O'Keefe did not attempt to clear up Larry's confusion.
These facts are sufficient to support the Secretary's conclusion that Detroit Edison's conduct caused Larry to delay her filing. From the outset, Larry made it clear that she would file immediately unless O'Keefe could provkte her satisfaction. The evidence amply supports the finding that O'Keefe misled Larry by concealing her role as a representative of Detroit Edison's interests, by making false promises to keep Lany's disclosures in confidence and to pursue the matter diligently, and by allowing Larry to labor under a confusion as to the proper timing of a complaint. The Secretary could reasonably conclude, as she did, that Larry would not have attempted to resolve the matter Intemalty had O'Keefe not misled her.
Accordingly, we find that substantial evidence supports the Secretarys determination that Detron Edison's conduct caused Larry to delay her filing. Since that factual determination is sumcient to support equitable tolling, we affirm the Secretary's decision to equitably toll the limitations period.
Ill.
Detroit Edison next argues that the Secretary erred in finding that it demoted Larry because of her protected whistlebiowing actMty. The parties agree that retaliatory discharge claims are govemed by a modified version of the framework set forth in broken promise or conndentiaHty woe nkvart mieleeding conduct regardlese of when she actually txoke the promlee.
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Y,2c6 $W6h CQro. v. Green, 411 U.S. 792 (1973). The employee bears the hdef, '
r;.tblishing the three elements of a prima facle case: (1) that he or she FQ:.gd ia actMty protected by the Energy Reorgan!Zation Act; (2) that he or she was subjected to adverse employment action; and (3) that the adverse employment 9Ction was caused by the protected activrty..See Moon,836 F.2d at 229 (setting forth elements of prima facle whistleblower retallation case under Surface Transportation Assistance Act).
If the employee establishes a prima facie case, the burden of production then shifts to the employer to articulate a leg}timate reason for the adverse employment action..MDQD. 836 F.2d at 229. If the employer meets that burden, the employee bears the ultima's burden to prove that the articulated reason is pretextual. E The Secretary found that Larry had established a prima facie case of retallatory employment action and that Detroit Edison's articulated reason for the action was pretextual. Detron Edison challenges both haives of the Secretarys finding. Our review is limited to determin.no whether the Secretarys findings are supported by substantial evidence. M in making that determination, we 'may not reikigate the case de novo, resolve conflicts in evidence, or decide questions of credibility," E Detroit Edison does not deny that Larry engaged in protected activity by expressing her concerns to the NRC about Hastings' use of the CEO system. There ls also no real dispute that Lanys loss of her promotion to nuclear security specialist constituted an adverse emp6oyment action. However, Detroit Edison does dispute the SecretarYs finding that there was a causal link between the protected actMty and the adverse action.
We find substantial evidence to support the Secretafys finding that Lany met her burden of establishing a causal link. In Part I of this opinion, we summarized the evidence produced before the ALJ !n some detail. That evidence tends to demonstrate (1) that Larry had performed very well in her assignment as a nuc6 ear securtty specialiot j
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l and had been promised a permanent promotion; (2) that her relationship with Hastings began to deterlorete shortty after she alerted an NRC inspector to Hastings' misuse of the CEO system, and that the relationship worsened funher after she wrote a letter to the NRC in February 1986; (3) that Hastings and Plana decided to rescind her promotion two weeks after NRC Inspector Pittle disclosed Lanys whistleblowing while speaking on the phone a few yards from where Hastings was standing; and (4) that Hastings and-Plana made the decision while Thompson, Lanys supcch, was on vacation and implemented the dociolon over Thompson's vigorous objection.
This evidence produced by Larry is clearty sufRcient to establish a prima facie case of retaliatory discharge. The testimony of Hastings and Plane strengthened Larrys caso even further. Hastings admitted that he 'didnt went any employee to be unduly helpful
- to the NRC (App. 290). This testimony was consistent with LanYs testimony that Hastings had displayed hostility toward the NRC Plane's testimony that Lany and Johnson were demoted because 'It was a good time to enact our plan to get rid of any..'
also suggests retaliatory animus. (App. 661).
Detroit Edison takes issue with much of this evidence. For example, Detroit Edison points out that Hastings denied overheering Pirtiet phone conversation.
However, issues of credibility are for the ALJ The ALJ chose not to credit Hastings' testimony. Since there is substantial evidonos supporting a f% ding that Hastings could hear Pirtie's conversation, we may not overtum the ALJs credibitty determination.
As we have indicated, the ALJ and the Secretary rolled on substantial ev6dence to find that Lany established a prima facio case of retaliatory action. We therefore omrm that Anding.
We now tum to Detroit Edison's articulated reason for Larrys demotion. Hastings and Plane testifled that they reassigned Larry and Johnson so that other nuclear secunty ofnoers could recew temporary promotions. There is no dispute that this explanation would serve as a legitimate reason for the employment action.
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However, the ALJ and the Secretary found that Lany had established that Detroit Edloon's articulated reason was pretextual. Detroit Edison now challenges this finding.
Larry and the Secretary point to several pieces of evidence that w~ypt the finding of pretext.
First, Larry and the Secretary point to the timing of the decision. Plana and Hastings decided to act only two weeks after Pirtle's phone call. Temporal proximity is s highty probative factor in retaliatory action cases.. San Ca*v v. %,888 F.2d 147,148 (8th Cir.1980)' Moon,836 F.2d at 229.
4 Second, Larry and the Secretary polnt to the fact that Detroit Edison roccinded Larry's promotion several months before it would have expired. Hastings testified that the six month temporary promotion term was only a ceiung so that a promotion could be rescinded before the end of the term.
However, the ALJ did not orodit Hastings' explanation, and Detroit Edison did not present any evidence that it had terminated the temporary promotions of other employees before the end of their terms. Thompson testified that the normal practios was to wait untd the end of the term before rescinding a temporary promotion. The failure to follow normal procedure is evidence of retallation.
jigg DeFord v. Aarrdarv of I h,700 P.2d 281,287 (6th Cir.1983).8 Third, Hastings and Plana acted while Thompson was on vecadon end R
implemented their decision over his strenuous diesent. Thompson's memo explaining how the move would undermine security is evidence from which a factfinder could infer I
that Detroit Edloon did not make the decision for leglemets business reasons.
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Fourth, the teollmony of Hastings and Plans tends to support a finding of pretext.
The ALJ tound evidence of animus tcrF4 whistleblowers in the testimony of both men.
We again stress that such credibility dettirminations are the province of the ALJ.
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80stros Edloon relies heedy on the testimony of Joseph Demedome, who, eher a temporary promotion to nuoleer escursy specialist, wee retumed to the rank of nuclear enoursy osiner e low morate L
l before Larr/s promotion wee remainded. Detroit Edloon presente no evidonos, homover, that somedotte was reseeigned during the midee of his promot6on term.
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5 AJ.
TEL:202-409-9855 Apr 21 92 13:52 w.00' 14.
No. 913737 We find that the ALJ and the Secretary relied on substantial evidonoe to and that Detroit Edison's artloulated reason for Larry's r:r:'; vrst was pretextual. We therefore omrm the Soorotary's finding that Detroit Edison uniewfuh retellated egelnet Larry because of her protected whistleblowing motivity, in violation of 42 U.S.C. 5 5851.
IV.
Having effIrmed the Secretary's finding of liability, we now tum to the remedy. The -
Secretary ordered Detroit Edison to retum Larry to the position of nucieer securhy specialist on a permanent basis. Detroit Edison argues that the Secretary exceeded her powers because Larry onh held the nucieer security spoolebst position on a temporary basis.
Upon a finding of retellatory motion against a whistleblower, the Secretary'is authorized to order the employer to ' reinstate the complainant to his Ibrmer position together with the compensation (including back pay), terms, conditions, and piM:;r of his employment.' 42 U.S.C. I 5851(b)(2)(8)(ll). At the time of the v6cletion, Larry held a temporary oppointment as a nuclear security speciellet.
Therefbre, Detroit Edison contends that, et most, the Secretary could onder it to reinstate Larry on a temporary basis.--
Detroit Edison's argument overlooks the Scoretary's finding that Leny had been promised the nuclear security spooienet poeh6on on a permanent beels.1het IInding was supponed by substantlei evidence, spoolliceh the testimony of Larry and Thompson, her supervisor.
A promles of permanent employment et e certain levelis en example of the types of wms, condsons, and privueses that may ensch to a posson. Therefore, the Soorstery's order was consistent with her authority to retum Larry to the position she occupied et the time of the vloietion. Anything less would atow Detroit Edloon to once again remove Larry's promotion and would not make Lany whole. Therefore, we amrm-i g iii igig g
ti it ig i
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G.4.P.
TEL 202-409-9955 Ace 21 92
'13:52 W.007 P.;
No. 913737 15.
the Secretary's order to Detron Edison to reinetste Larry as a nuclear security specialist 3
- on a permanent basis.
Accor%, the decision of the Secretary is AFFIRMEO.
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