ML20127K795
| ML20127K795 | |
| Person / Time | |
|---|---|
| Site: | Palo Verde  |
| Issue date: | 07/20/1992 |
| From: | Colapinto D NATIONAL WHISTLEBLOWER CENTER |
| To: | Selin I, The Chairman NRC COMMISSION (OCM) |
| Shared Package | |
| ML20126K292 | List: |
| References | |
| 2.206, NUDOCS 9211230218 | |
| Download: ML20127K795 (82) | |
Text
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Cys: Taylor
- Sniesek
' Thompson NATIONAL WHISTLEBLOWER CENTER Blaha
$17 Florida Avenue,NW Lieberman Washington, DC 20001 1850 M#I */
(202) 667-7515. Fax (202) 462-4145 Ma n, RV Scinto July 20,1992 Hon. Ivan Selin h( d
- r Chairman M
U.S. Nuclear Regulatory Commission gg N
Washington, D.C. 20555 7 1 m i, CO Re: " Hostile Work Environment" and Harassment & Intimidation at thgalo Verde Nuclear Generating Station.
Dear Chairman Selin:
We are writing on behalf of two employees at the Palo Verde Nuclear Generating Station ("PVNGS" or "Palo Verde"), Linda E. Mitchell and-Sarah C. Thomas, who have over the past several years reported serious safety problems about the operation of Palo Verde.u Unfortunately, as a direct res"It of this aethity, which is protected under the Atomic Energy Act, the Energy Reorgaution Act and NRC regulations, Mrs. Mitchell and Mrs. Thomas have been subjected to continuing and ongoing harassment, intimidation, discrimination and a " hostile work emironment" by Palo Verde manage-ment.
This letter is prompted by a recent decision by U.S. Department of Labor (" DOL")
Administrative Law Judge ("ALJ") Rudolf L Jansen who found that Palo Verde d
management not only condoned but also participated in a ' hostile work environment during _1989 and 1990 in retaliation for Mrs. Mitchell having raised significant V Palo Verde is a standardized triple unit commercial nuclear power facility _ located 55 ' miles west of Phoenix, Arizona. It ranks as the nation's largest nuclear plant and generates enough electricity to serve approximately four-million people. It is owned by.
a consortium -of seven utilities which is also known as the Arizona Nuclear Power Project. The join't owners of Palo Verde are: Arizona Public Service . Co. ("APS"),
Southern California Edison, Salt River Project, Public Service 'Co.' of New Mexico, El Paso Electric Co., the Los Angeles Dept. of Water & Power and the Southern California Public Power Authority. Pursuant to operating licenses issued by the NRC, License Nos.
NPF-41, NPF-51 and NPF 74, APS was authorized to act as an agent for the licensees and has responsibility for the physical construction, operation and maintenance of Palo Verde.
to: Chairman, Comrs, EDO. 92-0612 k 7/22. . anw .To ocC .f orHu Approy,rige@., Action.
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0 Page 2 Hon. Ivan Selin, NRC Chairman July 20,1992 whistleblowing activities. Sn Linda E. Mitchell v. Arizona Public Service Co. and -
Arizona Nuclear Power Proiect. Case No. 91 ERA 9, slip op, of AU (July 2,1992)-
(Enclosure 1).
Mrs. Mitchell began reporting safety problems at Palo Verde to the NRC in late 1985. Since that time she has raised serious safety concerns both internally to Palo Verde management and made allegations to the NRC, inin alia, the operation of the emergency lighting system. In September 1989 the NRC issued a Notice of Violation and Proposed CMI Penalty in the amount $100,000 related to emergency lighting I
deficiencies. In October 1990 the NRC issued another Notice of Violation and Proposed Imposition of Civil Penalty related to emergency lighting. The NRC fined Palo Verde
$150,000 for violations which were reported to the NRC by Mrs. Mitchell.
In a 48 page decision issued July 2,1992, U.S. Department of Labor Judge Rudolf L Jansen found that Palo Verde's attitude toward addressing safety problems was so abysmal that it created a " cancer" which, if allowed to grow, "could be catastrophic" to the public. Mitchell. supra.. slip op, of ALJ at 41.
Among the illegal acts found by the DOL to have created a " hostile work emironment" at Palo Verde were:
angry remarks by the plant's head of Quality of Assurance that Mrs.
Mitchell was a " bitch" and his demand that she "should be fired" for reporting safety problems to the NRC (1 slip op. at 8);
a threat of bodily injury shortly after Mrs. Mitchell became a key witness in a NRC probe of Palo Verde wrongdoing (1 slip op at 21,41,44);
Palo Verde management's instruction that a safety report authored by Mrs.
Mitchell be destroyed (11, slip op. at 13-14);
1 management memoranda which encouraged employees to " initiate peer pressure on the constant complainers" (1 slip op, at 15);
management's know' edge that Mrs. Mitchell was harassed "for a one year l period" and " failed to take" the appropriate " remedial action to stop it"(L l slip op. at' 15).
4 Page 3 Hon. Ivan Selin, NRC Chairman July 20,1992 Palo Verde's " entrenched policy of inaction or denial of existing problems" was so widespread that the Director of Quality Assurance (the number one official responsible for ensuring the safety of the facility and the protection of employee.
whistleblowers) was directly involved as a leading harasser. M., slip op at 43-44 Management's failure to stop the year.long harassment finally resulted in a serious incident in September 1990 when a co-worker pointed to a charred and burned dummy / mannequin and said, "This is what will happen to Linda Mitchell if she doesn't get her act together." M., slip op, at 21.
The Judge concluded that Mrs. Mitchell " encountered a work atmosphere in which harassing conduct was so severe or pervasive" that it "stiDed her liberty to raise safety concerns to the NRC." M., slip op, at 42. Moreover, the Judge found that it caused Mrs.
Mitchell to suffer Post Traumatic Stress Disorder. M., slip op, at 28. Consequently, the Judge ordered the utility to pay Mrs. Mitchell 350,000 in damages for emotional distress.
The utility was also ordered to " cease and desist" all harassment against Linda Mitchell, pay her attorneys fees and costs and issue a plant-wide _ statement to all Palo Verde empicyees stating that all acts of intimidation against Mrs. Mitchell must stop.
M., slip op at 46-47.
Mrs. Mitchell filed her whistleblower complaint with the DOL on September 24, 1990 pursuant to Section 210 of the Energy Reotganization Act,42 U.S.C. 5 5851, the federal nuclear whistleblower protection statute. Due to the DOL administrative process it took almost two years for the DOL to issue a recommended decision in Mrs. Mitchell's Case.
Significantly, the NRC has known for almost 2 years about all of the incidents addressed by the DOL in Mrs. Mitchell's Section 210 case. Yet,-to date, the NRC has not taken any enforcement action to abate the cruel and " ugly" harassment of Palo Verde's most visible and well known whistleblower.v The time has come for the NRC to stop sitting on the sidelines and for it to take prompt and effective enforcement action against Palo Verde.
U These allegations have been fully and thoroughly investigated by the NRC Office of Investigations ("Ol") pursuant to 10 C.F.R. S 50.7. Additionally, the NRC has had full access to the record in Mrs. Mitchell's DOL case since it was filed in September 1990.
Pace
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4 Hon. han Selin, NRC Chairman July 20,1992 l l
What makes the NRC's bystander role troubling is that the Mitchell DOL case l followed a similar case of whistleblower harassment charges brought by Mrs. Thomas in l 1988. In that case, DOL Judge Thomas Schneider found that Palo Verde management i discriminated against Mrs. Thomas in the terms of her employment and that manage-ment had created work place policies and practices which actively discouraged employees from "frealy" contacting the NRC with safety concerns. S.tt, Sarah C. Thomas v Arizona Public Service Co.. Case No. 89 ERA-19, slip op, of AU at 14,1617 (April 13,1989)
(Enclosure 2). In Thomas. the AU found that a management memorandum, which sharply criticized employees who reported concerns to outside agencies as "a few vocal individuals venting frustration" and which described whistleblowers as " unsophisticated",
created a chilling effect on employee rights to report safety concerns. 14. The AU ordered the utility to retract the memo and remind all phnt employees of their right to contact the NRC. 14. Notably, the same managemenf memo condemned by Judge Schneider in Thomas was declared illegal in Mitchell and was even found by Judge .
Jansen to have " prevented" Mrs. Mitchell "from bringing to management's attention a problem concerning the emergency lighting" system. Mitchell. slip op. of AU at 6 7.
Rather than comply with the AU's order in Thomas Palo Verde chose instead to seek its reversal. Unfortunately, the Thomas case has, like many other Section 210 cases, remained backlogged before the U.S. Secretary of Labor (" SOL') awaiting final disposition for 3 years.
As with Mrs. Mitchell's allegations, the NRC has known for more than 3 years all about the Thomas case and Mrs. Thomas' harassment and intimidation allegations.
Likewise, the NRC decided to do nothing in terms of enforcement action against Palo Verde concerning Mrs. Thomas' proven violations of the ERA and AEA. After the Thomas decision was rendered by Judge Schneider in April 1989 the NRC should have taken strong enforcement action against Palo Verde to deter further harassment and intimidation of licensee employees. Instead, shortly after the Thomas decision was issued the NRC sent a letter of inquiry to Palo Verde management asking what the utility intended to do to address harassment and intimidation concerns. Without even acknowledging that a harassment and intimidation problem existed Palo Verde management responded by providing the NRC with a new management " policy statement" regarding employee rights and expectations. Following receipt of this information, which in effect was an informal promise by Palo Verde management not to harass whistleblowers, the NRC unwisely chose to defer any enforcement action in the Thomas matter.
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l Page 5 Hon. Ivan Selin, NRC Chairman July 20,1992 Given the serious nature of the harassment and that these allegations were not only proven but were evidence of a " hostile work emironment," further NRC inaction would be intolerable.
I. THE NRC HAS A LEGAL, MORAL AND ETHICAL OBLIGATION TO TAKE PROMPT ENFORCEMENT ACTION TO PROTECT EMPLOYEES WHO
" BLOW THE WHISTLE' ON SAFETY PROBLEMS.
Unquestionably, the NRC has legal authority to take immediate enforcement action concerning the serious harassment and intimidation allegations which were proven in the Thomas and Mitchell cases. The NRC has authority pursuant to its regulations to revoke or suspend licenses, impose civil penalties or take other enforcement action for licensee conduct which results in discrimination against employees who have engaged' in protected activities under the ERA or AEA. M a 47 Federal Register 30452 (July 14,1982); 10 C.F.R. 5 50.7. The NRC has prohibited licensees from harassing, intimidating, discharging, or otherwise discriminating against nuclear whistleblowers pursuant to these regulations.F Notably, there is no legal requirement that the NRC wait until the DOL has completed its proceedings concerning complaints of employment discrimination brought by whistleblowers. Indeed, the legislative history of Section 210 reDects that Congress did not intend for there to be any delay of NRC enforcement action in such cases. As Sen. Gary Hart commented at the time of Section 210's enactment:
... while new section 210 of the Energy Reorganization Act of 1978 provides the Department of I. abor with new authority to investigate an v h n In te Tennessee Vallev Authority. NRC EA No.89-201, NUREG 0940 Vol. 9, No. 4, I. A-66 ($240,000 civil penalty for retaliatory transfer of 3 employees who reported perceived quality assurance violations to a NRC Commissioner); In re General Elect. Co. 29 N.R.C. 325,334 (1989) (utility fined on basis of DOL administrathe law judge's finding of discrimination under Section 210); In the Matter of Duke Power Co..
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DD-85-9, Docket Nos. 50-413 and 50-414, Director's Decision Under 10 C.F.R. 5 2.206 (June 4,1985) (Duke Power Co. assessed a $64,000 fine for harassing a quality control inspector at the Catawba nuclear plant); In re Toledo Edison Co.. NRC-EA No.88-234 (Nov. 21,1988) ($80,000 fine); In re T.ennessee Vallev Authority. NRC EA No.86-093 (July 10,1986) ($150,000 fine).
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Hon; Ivan Selin, NRC Chairman'
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alleged act of discrimination ,in this context and to afford a remhdy should3 '
the allegation . prove true, it. is not intended 'to in_ any wayl abridge 1 thet Comminzion's ' current authority to investigate an alleged C ination- and -
take appropriate action against a licensee employer, such as a civil penalty, license sitspension or license revocation. Further, theipendency of a . ,
pic-:-:-: ding before the Department of labor pursuantito new section.210 need not delay any action by the Commi== ion to carry out the purposes =of-- ,
the Atomic Energy Act of 1954 ,
Sst, Statement of Sen. Hart,124 Cong. Rec. Part 28 (Senate), .at 29,771-(Oct.14,1978):
(emphasis added).
It would be unconscionable for the NRC to further prolong its decision on enforcement action -against. Palo Verde for its ubiquitouse misconduct. If the NRC:
decides-to defer enforcement-action 'pendingithe' Secretary oflabor's final review.of the Thomas and Mitchell- decisions'the results would be contrary /to Congress'Jintentithat Section 210. not . delay. NRC enforcement ' action. - A: determination to. delay;NRCf enforcement action until the Secretary of labor issues her final decision and ~ order.in these cases would most likely result-in a delay'of three to five years given the:currenti i
backlog of Section 210 cases before the Secretary:of Labor.u-- This'would send precisely.- '
~t he wrong message to Palo Verde's managementiwhich has failed to even acknowledgei that there exists' a harassment and intimidation . problem,= or a " hostile' work environment," -
at the nation's' largest nuclear power plant.1 Undoubtedly, the utility:has counte'd on tfie delay!of the administrative ; process-in order to avoid the consequences _of whistleblower harassment. lt is proven that Palo-Verde has.been harassing' employees for more than 3 years in retaliation 1for1 reporting .
- .# The backlog of environmental whistleblower cases befbre the Secretary of Labor?
-is legion' and represents a " black hole" in federal administrative law. For example,.Mrs.
Thomas' case has been pending before the SOL' for more than 3 years. Moreover, it'is -
not uncommon for such cases to await finalLdisposition by the-SOL for as many as fiv_eL Lycars or. longer. Sgt s&, r arry v."The Detroit Edisori Co.; No.L86-ERA 32, slip 'op. of SOL (June -28,1991)..(almost 5 years before SOL pending finalfreview);icrosby v.
~ Hunhes Aircraft. No. 85-TSC 2'(now pending before SOL for 6 years);' Bauett v; Ninaara Mohawk Power Co.. No.~86-ERA-2 (6 years);1Maloass. et al. v. General- Elect. Co.. No.-
85-ERA-38/39 (6 years); Rex v. Ebasco -Services. Inc.. No. 87-ERA-6/40. (3 years);L Young v. CBI Services. Inc.. No. 88 ERA-8_(3 years),
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i Page 7 Hon. Ivan Selin, NRC Chairman July 20,1992 safety problems, but the utility has not even been cited with a Notice of Violation, let alone a civil penalty or suspension of license, for its misconduct. By delaying the enforcement process the utility can literally walk away scot free. If NRC enforcement action is postponed in these cases for another 3 years or more awaiting a final DOL determination the management officials responsible for the misconduct will probably be retired, promoted or at work at another nuclear facility.
Just as the NRC has a legal responsibility to protect licensee employees from harassment and intimidation it also has an ethical duty to do so. The longer the NRC waits to take action against Palo Verde concerning severe whistleblower harassment the more it discourages other employees from reporting safety concerns to Palo Verde and/or the NRC. For example, in Mitchell the DOL Judge found that Mrs. Mitchell is suffering from Post Traumatic Stress Disorder ("PTSD") as a direct result of licensee harassment. Since Mrs. Mitchell testified in DOL Case No. 91 ERA 9 in the summer '
of 1991 she has been on the receiving end of even more harassment and intimidation by Palo Verde management.u Mrs. Mitchell's emotional and physical condition has only deteriorated since she testified in her first DOL case. The NRC's failure to take action while Mrs. Mitchell continues to be harassed and her health deteriorates is not only unconscionable -- it, in and of itself, helps contribute to a chilling effect on other employees due to the pervasive hostile work environment at Palo Verde.
We are not overstating the effect the NRC's inaction has on Mrs. Mitchell, Mrs.
Thomas and other employees at Palo Verde. After all, the NRC has been aware of Palo Verde's haranment of whistleblowers for more than 3 years, at least since Mrs. Thomas prevailed in her DOL case, and it has done nothing. The NRC's inaction discourages employees from reporting safety concerns since it is obvious that if an employee is harassed or otherwise discriminated against by management and is able to prove it -- a difficult task itself -- nothing will happen to the utility, not even a slap on the wrist.
NRC inaction in the Thomas and Mitchell cases perpetuates the perception among licensee employees that the NRC is soft on utility harassment of whistleblowers and that it is not worth the aggravation to report safety problems.
This would have disastrous effects on public policy and hamper nuclear regulation as we know it. It has long been the linchpin of nuclear regulatory policy to depend on u Since testimony was completed in Case No. 91-ERA-9 Mrs. Mitchell has filed 3 more Section 210 complaints. Sg_q, Mitchell v. APS/ANPP. Case Nos.92. ERA 28/29/35, currently pending.
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. Hon. Ivan Selin, NRC Chairman July 20,1992 the utilities to self. identify and report safety problems at nuclear plants. This policy has been codi5ed by the NRC throughout its regulations. In order to effectuate this policy the NRC has declared that it is the " duty" of employees to inform their management of safety issues and "[i]t is up to licensees to create a work atmosphere in which employees feel conSdent in bringing safety concerns directly to their management." Sn,55 Federal Register at 10402 (Mar. 21,1990). In cases where a licensee employee fears retaliation for reporting safety concerns the NRC has mandated that employees "must be free of any restriction which would prevent their raising the issue with the NRC." id.
As demonstrated by the Thomas and Mitchell decisions, Palo Verde management has turned this regulatory policy on its head by harassing employees who raise safety concerns and by creating a " hostile work emironment" for whistleblowers. In particular, Judge Jansen in Mitchell even noted that employees were wary of Palo Verde's hotline / employee concerns program because of its lack of conGdentiality. Morc ~
troubling is the finding that Palo Verde's OA Director participated in the harassment of Mrs. Mitchc.!! for raising safety concerns.
It is evident that a signi5 cant portion of the system upon which the NRC depends to regulate the safety of Palo Verde has broken down entirely. If employees continue to fear retaliation from management and fail to report safety concerns it is only a matter of time before disaster results. Palo Verde's management is unable to restore the conSdence of its employees and correct the problem because, as evidenced by the Thomas and Mitchell decisions, Palo Verde's management is the problem. The health and safety of the general public is at risk until the NRC takes effective remedial action.
IL REVOCATION, MODIFICATION OR SUSPENSION OF PALO VERDE'S LICENSE AND STIFF CIVIL PENALTIES ARE WARRANTED.
l The nation's largest nuclear power plant should set the industry-standard for safety. Employees who report safety problems should be rewarded, not subjected to l cruel, ugly and abusive treatment, let alone driven to the point of psychological damage.
Although NRC policy mandates that licensees create a work etmosphere which encourages employees to report safety concerns to licensee management, Palo Verde's management has flunked this fundamental test. Management itself has been responsible for the mistreatment of employees who have reported safety problems. After twice being caught in the act of pervasive harassment and intimidation Palo Verde management has arrogantly refused to comply with orders to cease and desist such contemptible conduct.
It has not tried to mitigate its harassment of employees. Moreover, Palo Verde has not l
Page 9 Hon. han Selin, NRC Chairman July 20,1992 even attempted to apologize to the employees whose careers it sought to destroy, whose personal health it has harmed and whose personal safety it 'nas threatened.
Undoubtedly, Palo Verde now has the notorious distinction of having the worst record in the industry regarding employee protection given its abuse of employees who raise safety concerns. This is a scary milestone for the largest nuclear: plant in the country and one which has had a troubled performance record over the last several years.
It is alarming that Palo Verde's Director of Quality Assurance ("QA"), Blaine Ballard, led the retaliation against Mrs. Mitchell after the NRC fined the utility for emergency lighting problems she had reported to the NRC. It is simply disgraceful conduct for the QA Director to call an employee a " bitch" and ask that she be " fired" for-reporting safety concerns. As DOL Judge Jansen noted, Mr. Ballard, as the QA Director, should have set an " impeccable" standard at the plant. Mitchell. slip op. at 42.
However, as the record demonstrates in Mrs. Mitchell's case, Mr. Ballard violated the very QA principles he was expected to enforce. These facts warrant the NRC taking enforcement action directly against Mr. Ballard, in his personal capacity, by revoking any licenses he holds and imposing a civil penalty upon him.
More troubling ~.is that Mr. Ballard's misconduct was condoned by Palo Verde management, a complicity which " evidences a hostile management attitude toward". Mrs.
Mitchell. Mitchell. slip op at 41. These facts warrant the NRC suspending Palo _ Verde's license until it complies with the orders issued by the DOL Judges in Thomas and Mitchell. takes remedial action to cease harassment of employees and submits a detailed plan to the NRC ensuring that Palo Verde management will protect employees who blow the whistle. Additionally, the NRC should impose a civil penalty of at least $200,000 upon Palo Verde for the Ballard incident and of at least $500,000_ for management's condoning of Mr. Ballard's egregious misconduct. These recommended enforcement actions are warranted given t!.e pervasive nature of the harassment against Mrs. Mitchell, the visibility and importance of position of the management officials who participated in and/or condoned the harassment and the fact that Palo Verde was found to violate Section 210 in the Thomas case just a few months before the Ballard incident.
Furthermore, the NRC should impose a civil penalty of at least $100,000 for each of the acts found to constitute violations of Section 210 in the Thomas and Mitchell DOL cases, respectively. These violations,'which are in addition to the Ballard incident referred to above, include:
l Page 10 Hon. Ivan Selin, NRC Chairman July 20,1992 (1) the reassignment of Mrs. Thomas from the Section XI Pump and Valves group (Thomas. slip op. at 1516);
(2) the failure to promote Mrs. Thomas (1 slip op. at 15);
(3) Gerald Sowers' April 11,1988 memorandum (1 slip op. at 13 14, 16 17);
(4) & (5) Walter Marsh's January 18,1989 memorandum (1 slip op at 13-14, 16 17; Mitchell. 31ip op. at 6 7);
(6) Daniel Smyers' warning to Mrs. Mitchell that she keep a " low profile" (Mitchell. slip op, at 9-10);
(7) interference with Mrs. Mitchell's communication with NRC inspector Charles Ramsey (1 slip op. at 1011);
(8) the order to destroy the February 26,1990 Emergency Lighting Report (1 slip op at 1314);
(9) the 1990 " peer pressure memorandum" (1 slip op, at 15); ,
(10) the failure of Palo Verde management to address Mrs. Mitchell's l harassment concerns in February / March 1990 (1 slip op, at 15-16);
(11) the Gerald Sowers incident (1 slip op, at 16);
(12) the Tim Hall incident (1 slip op, at 2124).
Accordingly, Palo Verde should be assessed a civil penalty of at least $1,200,000 for these acts of harassment and intimidation against Mrs. Thomas and Mrs. Mitchell, and for its creauon of a " hostile work environment."
This is not out of line with fines previously assessed by the NRC against other licensees for harassment and intimidation. In 1990 the NRC fined TVA a total of
$240,000 because it transferred three employees after they reported safety concerns to a NRC Commissioner. Siq, In re Tennessee Vallev Authority. NRC-EA No.89-201, NUREG-0940 Vol. 9, No. 4, I. A-66. In that case, the licensee was fined $80,000 for each act of harassment and retaliation. M. The NRC fined TVA $240,000 "[n]otwith-standing the considerable efforts" TVA took to correct the problem of harassment and I
.Page 11 Hon. Ivan Selin, NRC Chairman July 20,1992 intimidation. Id. More importantly, the NRC issued the civil penalty "to again emphasize to TVA, as well as other licensees. and to TVA's employees and contractors that no individual be discriminated against as a consequence of raising safety concerns."
Id. (emphasis added).
In this case it is apparent from the record in the Mitchell and Thomas DOL cases that the problems are greater and more pervasive than those addressed in the TVA case.
It is equally evident that Palo Verde management has not taken " considerable efforts" to correct the problem of harassment and intimidation. Indeed, it was precisely because -
management failed to take adequate steps that, in DOL Judge Jansen's opinion, a
" hostile work emironment" was created. There having been no effort by Palo Verde to end harassment and discrimination of employees who raise safety concerns, any civil .
penalty assessed against Palo Verde for its misconduct towards Mrs. Thomas and Mrs.
Mitchell raust necessarily be greater than the fines assessed in the TVA case.
Additionally, Palo Verde was aware that a problem existed as early as April 1989 when DOL Judge Schneider found that Palo Verde had violated Section 210 in the nomas case. Notwithstanding that Palo Verde should have recognized its problem of harassment and intimidation of whistleblowers, it also failed to heed the NRC's Notice of Violation in the above referenced TVA case which was issued in April 1990 in the midst of Palo Verde's harassment and intimidation of Mrs. Mitchell. Given that Palo Verde has had several opportunities since 1989 to mitigate its violations of NRC regulations protecting licensee employees and has failed to do so, any civil penalty assessed for this misconduct must be substantially increased.
Finally, the situation at Palo Verde has veorsened rather than improved since Mrs.
Mitchell testified in her DOL case last summer. Notably, the DOL Wage 'and Hour Division has determined that Palo Verde management discriminated - against . Mrs.
Mitchell in violation of Section 210 regarding her April 1992 performance appraisal.
h May 8,1992 letter from Susan P. Nern, DOL, to Janet Hepner, APS Legal Dept.
(Enclosure 3). This recent finding of the DOL Wage and Hour Division, which involves harassment of Mrs. Mitchell subsequent to the events addressed by Judge Jansen in his recent decision, also requires that any civil penalty assessed against Palo Verde management be considerably increased.
Page 12 Hon. Ivan Selin, NRC Chairman July 20,1992 CONCLUSION For the foregoing reasons, the NRC must take prompt and effective enforcement action against Palo Verde in the next 30 days to stop the cruel and ugly harassment and intimidation of licensee employees who raise safety concerns. Given the penasheness of the problem and that it has been determined that a " hostile work emironment" exists, failure on the part of the NRC to take immediate action will endanger the public health and safety as well as the confidence of licensee employees and the general public regarding the protection of employees from retaliation. Additionally, the NRC should initiate show cause proceedings to revoke, modify and/or suspend Palo Verde's operating license.
Sincerely,
.QP .
' V, ,.r
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avid K. lapinto Attorney for Mrs. Mitchell and Mrs. Thomas Enclosures cc: Sen. Bob Graham Rep. Jolm Dingle l
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$S DATE: July 2,1992 CASE NO: 91-ERA-9 In the Matter of LINDA E. MITCHELL Comp 1ainant versus ARI CNA PUBLIC SERVICE COMPANY and ARICONA NUCLEAR POWER PROJECT Respondents APPEARANCES:
David K. Colapinto, Esq.
Stephen M. Kohn, Esq.
Kohn, Kohn and Colapinto, P.C.
Washington, D.C.
Alice L. Bendheim, Esq.
Phoenix, Arizona Attorneys for Complainant George H. Lyons, Esq.
Steve C. Thornton, Esq.
Snell and Wilmer Phoenix, Arizona Attorneys for Respondents BEFORE: Rudolf L. Jansen Administrative Law Judge RECOMMENDED DECISION AND ORDER This proceeding arises out of a complaint of discrimination filed pursuant to Section 210 of the Energy Reorganization Act of 1974, as amended, 42 U.S.C.A. Section 5851, et seq., hereinafter called the ERA. -The implementing regulation T are found at 29 C.F.R. Part 24. The ERA affords protection'from employment discrimination to employees in the nuclear industry who commence, testify'at, or participate in proceedings or other actions to carry out the purposes of the ERA or the Atomic Energy Act of 1954, as amended 42 U.S.C.A. Section 2011 et seq. The law is designed to protect "whistleblower" employliIes from retaliatory or discriminatory actions by the employer.
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.0n: September 24,1990,f Linda: E. Mitchell1(hereinafter?LEM)'.
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_ directed a complaint?against1the. Respondents.- Following~a:ofact-1 Lfinding-investigation, the Acting District 7DirectorrrU.S. i Department of Labor concluded:thaththe!complaintrallegations .;
could not be substantiated becauses i No evidence has been foundLwhich wouldLsupportethe-allegation-ofLdiscriminatory acts takenlagainstiLinda 9
^Mitchell by. Arizona Public Service.: Other factors, '
unrelated to Ms. Mitchell's contact withe the: Nuclear Regulatory Commission regarding safety issues, appear -
to be' the basis for Ms. Mitchell's allegations.
A telegram appeal was taken-by LEM'of that-determinat'ioniwhichi '
gave rise to the proceeding here. - - . - -
Pursuant to notice,ca hearing was held in'this case'from July; '
8 through July 12, 1991-and' August-26 through August 29,11991~.in; Phoenix, Arizona.. Subsequently, on October 21, 19911the' final 4 testimony.was received in Cincinnati,10hio.- Both original and-reply briefs-were1 submitted by the parties and1theirecord of1this ;
case'was finally closed en January. 24,-1992.- cat-the: time ~of- "
' hearing,gthe: parties;were afforded ful14 opportunity _togpresent'
' evidence--and argument.
The findings of-fact and: conclusions of;1aw?which? follow;are
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based upon my' observation of the-appearance and1 demeanor of1the -
many witnesses.who testified at;the. hearing-andlupontmysanalysis-of the: entire r,ecord, arguments of_the parties, andcapplicable regulations ,; . statut es , andicaseilaw._1Each--~ exhibit received \into' evidence, although=perhaps;not specifically; mentioned inithis; '
decision', has'been carefullycreviewed.. <
CREDIBILITY FINDINGS-g The transcriptiof'the hearing?inLthiaccase'containsil,856-pages.: Numerousowitnessesstestified.1LAlthough the1recorc- :
contains someEinconsistenciesLin' testimony,EI finduthe separate. '
L testimoniesr of ; thal twenty-nine individual 1 witnesses !toibe >
L credible with'the exceptionLof those1witnessesespecifically-h enumerated below. ^IEspecifically: find thattthe testimony!of?
Immediately+following-the takingiof :
LLinda Mitchell was7 credible.
the' testimony _oftalliwitnesses,-,I made~ individual'eredibility; P
findingsnas:tofeachswitness. .
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!: .I specifically1findithe testimony _of PatriciatL. Gibbons and-L / Stephen M111ereto havecbeen-less thanJforthright<and. honest.
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with either documentary or other testimonial evidence, and I choose not to believe any of it. I believed none of Miller's i
testimony as it related to a conversation he allegedly had with Abdy Kahnpour. Therefore, no weight will be given to the testimony cf these two individuals.
I also find the testimony of Kerry Johnson to be essentially credible but he seemed to be less than spontaneous with his responses. My impression was that he wanted to give the right answer. Therefore, I discount his testimony accordingly.
Finally, I also give no weight to the testimony of-Blaine Ballard as it rslates to the critical meeting in the office of Jim Reilly. Hic recollection of events is simply not consistent with other testimony in this case. His testimony in other areas, however, appeared to me to have been credible and I so find.
ISSUES
- 1. Whether Respondents discriminated against Linda Mitchell by lowering her 1990 employee performance appraisal in retaliation for having engaged in protected activity.
- 2. Whether Respondents discriminated against Linda Mitchell by subjecting her to a hostile work environment in retaliation for having engaged in protected activity.
- 3. Whether all instances of harassment comprising the hostile work environment claim, excepting the Tim Hall incident, are time barred.
FINDINGS OF FACT AND CONCLUSIONS OF LAW GENERAL BACKGROUND Linda E. Mitchell (hereinaftor LEM) was 46 years of age at the time of the hearing. She is married and has four children.
She is a high school graduate. Prior to commencing work at the Palo Verde Nuclear Generating Station (hereinafter PV) she worked for the Daniel Construction Co., Bechtel Power Corporation and also Vitro Corporation of America. The work with both Daniel and Bechtel was in the nuclear power industry and the work at Vitro involved detailed layout in the drafting of circuits used in the manufacture of missile systems for the United States Navy.
Her work for Daniel took her to the Calloway Nuclear Power Plant in Missouri where she was in a supervisory position and also to the Wolf Creek Nuclear Power Plant in Kansas where she d
held a supervisory position. Her work locat.on for Bechtel was the Calvert Cliffs Nuclear Power Plant in Maryland where she held a variety of engineering related positions.
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Although LEM did not have formal training as an engineer at the college level, she did participate in a variety of corporate training programs. Her work record supports a finding that she had been placed in consistently more responsible positions by each of these companies and that she did perform considerable supervisory-type work.
In January 1985, LEM accepted a position with Arizona Public Service Company (hereinafter APS) as a senior electrical engineer technician in the Operations Engineering Department at PV. She was subsequently promoted to the positions of associate engineer, engineer ICC, engineer-electrical systems, mechanical engineer II-and finally an electrical engineer II. She was hired on January 28, 1985 and ptogressed through these positions receiving her last promotion on August 11, 1990. Her earnings record shows that from the time of the commencement of her employment by APS in 1985 through August 11, 1990, her earnings had increased from
$25,200 to 544,640 in annual compensation. Her record of earning increases was uninterrupted over the years.
The nuclear operation at PV consisted of three separate nuclear power plants. LEM was employed at Unit 3 as a Systems Engineer in the areas of emergency lighting, essential lighting, normal lighting, and security lighting. The Systems Engineer is responsible for initiating documents to take care of plant problems, resolving issues with maintenance, interfacing with the appropriate departments as necessary, initiating design change requests and generally is required to be knowledgeable of all events relating to the operation of the systems. She was personally involved in the maintenance of all lighting systems.
LEM's position broug within the organization.gt her She into contactwith interfaced withthe other groups Quality Assurance Department (hereinafter UA) en numerous occasions and also with the Compliance Department. QA is in charge of assuring.
that the quality of the product is sustained and they also are responsible for the Employees' Concerns Program. Compliance, on the other hand, is in charge of issuing Licensing Event Reports (hereinafter LER's) and they also carry the responsibility of dealing with all of the governmental regulatory agencies.
Additionally, LEM also had contact with the Nuclear Engineering
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Department (hereinafter NED). That was the organization which did the design work.for the nuclear facility. She was involved in coordinating design changes.
CHRONOLOGY OF EVENTS The record of this case contains evidence relating to the activities of LEM from as far back as late 1985 and extending through October of 1990. However, on brief the Complainant-argues that "The record demonstrates that between September 1989
and September 1990 Mrs. Mitchell was subjected to a series of escalating incidents, which taken together, constitute pervasive or severe hostility to her whistleblowing activities." There-fore, it would appear that the Complainant has conceded that all incidents occurring prior to September of 1989 are not actionable either independently or as part of a continuing violation by APS. However, this evidence may be considered as relevant background evidence of past practices which might be useful in analyzing present patterns of behavior. Malhotra v.
Cotter & Co., 885 F.2d 1305 (7th Cir.1989) . Thus for purposes of this decision, I will not make detailed findings of the incidents which occurred prior to September of 1989. I will, however, make summary findings of these events for purposes of evaluating that evidence as being relevant background information.
LEM's initial whistleblowing activity occurred in late 1985 when she reported to the Nuclear Regulatory Commission (hereinafter NRC) a problem at PV involving the failure of emergency lights to burn for a required eight he T period. LEM testified that this was the first occasion in a.1 of her years of employment in the nuclear industry that she had carried a safety' problem to the NRC. Following testing by APS of the emergency lights involved, APS prepared a LER to document the incident. An LER is required by federal regulation to be submitted to the NRC by nuclear utilities when events of some consequence occur at a facility. An LER can result in the NRC imposing civil penalties upon the utility. This record shows that management at APS scrutinize very seriously both the facts relating to the filing of the LER and also the consequences from the filing of an LER.
Following the issuance of the LER concerning the emergency lighting event, LEM testified that she later-questioned waether the content of the LER was entirely accurate. She noted a change in the attitude of some management personnel following this sequence of events.
Also in 1985, LEM questioned the EE 580 Computer Program which maintained the configuration of all' electrical equipment for the entire job site. She previously had experience with the system as a result of her employment with another company prior to arriving at PV. LEM had also expressed concern about vendor manuals not being available at PV and in other instances the manuals were not currently updated.
In 1987, LEM raised concerns with management regarding the configuration control of plant drawings and also once again regarding the EE 580 Computer Program. She authored a letter to management noting frustration with the manner in which the EE 580 concern was being addressed and threatened to take the problem to higher levels of management. The letter was directed to a Mr. E.
C. Sterling, Manager of NED. NED is the Nuclear Engineering Design Department within APS which was responsible for the-design
of the entire PV facility. LEM testified concerning a cooling of the relationship between her group and also that of NED foll: ting the iscuence of this letter. However, approximately o.ne NEuk later she directed a letter to an APS vice president once again raising the configuration control and EE 580 concerns to a higher level. After sending that letter, she attended an'early morning meeting with NED management. She testified to an unfriendly attitudo toward her by management representatives at that meeting. Following that meeting, APS established a task force to study the concerns raised and a written report was later issued by that group. LEM also carried her concern in this area to the NRC.
On March 31, 1988, LEM wrote a memorandum to NED concerning control wiring diagrams (hereinafter CWD). She expressed concern about NED's recommendation for implementing a CWD program at PV.
There was testimony that the NED supervisor involved with responding to the memorandum of LEM was upset with her comments.
The Sowers Memorandum On April 11, 1988, a memorandum was issued by Gerald Sowers (hereinaf ter Sowers) to the entire Engineering Evaluations Department (hereinafter EED) concerning the routing of department-generated correspondence. It required that all correspondence leaving the department must go out at least under the discipline supervisor's signature and that the manager and director were to be copied. (CX 5) This new policy would in effect prevent employees from corresponding with others without obtaining a supervisor's signature on the material. The memorandum itself contains no restrictions as to its appli-cability. LEM interpreted.this memorandum to mean that management would no longer tolerate her having written contacts with the NRC or other groups without first obtaining the approval of her discipline supervisor.
The Marsh Memorandum On January 18, 1989, a memorandum was issued by Walter C.
Marsh (hereinaftir Marsh) who is an APS manager. The memorandum contains two ideas. Initially, he makes a statement concerning his personal management philoaophy and secondly, he directs a method as to:
[A)n appropriate way to interact with outside organizations so that the results of the outsider's efforts are not unduly biased by a few vocal individuals venting frustration. It is unfortunately typical for unsophisticated individuals to believe that some outsider can do more to resolve their frustrations than their own organization can . . . .
7-(CX 7) This memorandum was issued by Marsh'immediately prior to an INPO appraisal of the facility.- INPO stands for the Institute for Nuclear Operations. INPO is a-nuclear industry supported organization which conducts inspections of nuclear power plants to assess plant weaknesses. The reports of INPO are- issued to the utility itself and also to the NRC. As a result of the implementation of policy stated in the Marsh and Sowers memorandums, LEM was later prevented from bringing to management's attention a problem concerning the emergency lighting inverter. (CX 8) LEM later came to believe that management at APS had not properly addressed the emergency lighting inverter problem identified in her written memorandum and she subsequently filed a complaint with the QA Hotline and also with the NRC.
Unit Shutdowns In the latter part of February, 1990, William F. Conway (hereinafter Conway) advised company personnel that Unit 3 may have to be shut down because of emergency lighting problems.
Daniel W. Smyers (hereinafter Smyers) did not believe that the company had a very good understanding of the nature- of the emergency lighting problems. (Tr. 1392) The meeting with Conway followed the AADV event which caused Unit 3 to be closed down.
The concern of management and apparently other employees was that the unit would be held down. That concern was based, at least in part, upon emergency lighting problems.
All three units had previously been shut down. On March 3, 1989, Unit 3 was shut down due to an. interruption of offsite power. (Tr. 373; Holiday Tr. 49) The problems included the steam control bypass system, the atmospheric dump valve operation, the reactor power cutback- system, the load-shedding device, the charging-pump, and the lighting. (Tr. 374-75)
Unit 1 tripped two days later on March 5, 1989 because one of the twelve atmospheric dump valves failed to work. . (Tr. 375-7 6)
On March 15, 1989, Unit 2 was also taken off line because the dump valves had not operated in Unit 3 and one had failed in Unit
- 1. (Tr. 376) Ar was not allowed ~to restart the units until certain actions were completed to the satisfaction of the NRC.
(Holiday Tr.- 54-55)
As of early summer 1989, all three PV. generating units were (Tr. 1091) It was common knowledge that.it was
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not running.
important to APS - from 'a financial standpoint to have PV operating. (Tr. 1092) So, Conway's announcement in February of 1990 concerning a possible shutdown was considered to be a very serious matter.
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EVE ._ OCCURRING BETWEEN SEPTEMBER 1989 and SEPTEMBER 1990 The Blaine Ballard Incident By way of background, on September 5, 1989, Blaine E. Ballard (hereinafter Ballard) received from the NRC a Notice of Violation and Proposed Imposition of Civil Penalty. The asserted penalty amount was $250,000 of which S100,000 related to emergency lighting deficiencies. (CX 24)
LEM used the QA Hotline to raise safety concerns on a relatively regular basis. She had made approximately fifty complaints by September of 1989 and there is evidence that Hotline personnel were hostile toward her. Ballard, who was responsible for ensuring that employees were not harassed or retaliated against lor raising safety concerns, personally met with LEM in April of 1989 concerning some of her complaints.
That was the first occasion that Ballard had met Ms. Mitchell and the meeting related to a complaint that someone had removed material from her desk. They also discussed an LER which LEM did not believe adequately apprised the NRC of the event. During the course of that meeting, LEM questioned the competence of the highest levels of management at APS. Later, Ballard spoke with the Director of Technical Services concerning questions raised by LEM at this meeting. There is also evidence that Ballard telephoned LEM on more than one occasion in 1989 seeking ' to speak with her.
Henry Johnson (hereinafter Johnson) was a co-worker of LEM who shared a cubicle and a phone with her between 1988 and 1989.
On September 14, 1989, Johnson was waiting outside the office-of James Reilly (hereinafter Reilly)-who was the Acting Director of EED. Credible testimony shows that Sowers, a manager in EED was in Reilly's office and the door was open. Kerry Johnson, who was a supervisor in.EED, was also waiting in a corridor outside-the office and he later entered the office to converse with Reilly and Sowers. Later, Ballard moved down the corridor and stopped in front of the door leading to Reilly's office and stated "that bitch Linda Mitchell is causing me and my people trouble." He also indicated that LEM was " telling a lot of lies." Ballard demonstrated an angry demeanor when he spoke about.LEM and his voice was loud. Apparently, Ballard indicated that because APS was experiencing so many problems with the emergency lighting system, that the System Engineers in that area "should be fired."
One of the System Engineers was LEM.
Kerry Johnson testified that he was uncomfortable about what was being said by Ballard and he ushered Ballard into his office and closed the door so as to make the conversation private.
Prior to this conversation in Reilly's office, Ballard had just returned from a meeting with senior management officials where NRC violations for emergency lighting had been discussed. The l formal copy of that notice was mentioned earlier and resulted in the fines as indicated. Upon learning of this incident, the record shows that LEM was disturbed by these events.
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-9 Following this incident, Keith Davis (hereinafter Davis), who is the Director of Human Resources at PV, investigated the incident as one of potential employee harassment. He spoke with Ballard and Reilly concerning the events surrounding the discussion in Reilly's of fice and based upon these two interviews, he concluded that allegations of harassment against LEM were unfounded.
Conway first became aware of the Ballard incident by way of word of mouth from one of his subordinates. Apparently later he received a handwritten note from LEM together with an attachment containing her version of the incident which she apparently referred to the NRC. (RX 3) Upon learning of the incident, Conway sought out Ballard and had a discussion with him concerning the incident. He advised Ballard that he did not
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consider the conduct to be professional or acceptable, if in fact it occurred.
He initiated an investigation by a private firm. At the same time, he had Davis, the Human Resources Director, conduct a separate investigation. In his conversation with Ballard, Ballard denied making the derogatory comments about LEM. Ballard was not given a reprimand in writing nor was any type of an oral reprimand given by Conway as a result of this incident. Conway did not speak to any other individual personally about the events concerning the Ballard incident. Conway was aware that LEM was not a party to the conversation at the time it occurred. Davis, who was the Human Resources Director for the PV facility, inter-viewed Ballard and Reilly about the incident but he did not interview Henry Johnson, Kerry Johnson or Gerald Sowers who were also witnesses.
Smyer's Warning to Keen a Low Profile LEM also testified concerning a conversation she had with Smyers concerning her standing with the management of APS.
Smyers was her immediate- supervisor. She initially testified that on January 19, 1990, she had a conversation with Smyers in which he warned her that management was going to get rid of her and she should therefore keep a low profile. (Holiday Tr. 92; CX 11 p. 73) LEM testified that she made handwritten notes of her conversation with Smyers at the time the conversation was transpiring and that she later recorded it in a more readable fashion at lunch time. Therefore, her testimony was that the recording was made contemporaneously with the conversation.
However, following the resolution of an evidentiary problem relating to the admissibility of all of her diary notes, she was once again questioned on her written memorandum and testified that the conversation took place on or around July 13, 1990.-
Additionally, her handwritten note also carries the date July 13, I
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l 1990. (Holiday Tr. 98; CX 11 p. 73) I believe that the i conversation occurred, but the date is uncertain. l Smyers acknowledged advising LEM to " keep a low profile." In fact he did that on several occasions. He was concerned that other employees would be talking about her activities while not fully understanding the nature of what she had been doing.
Therefore, he suggested that she keep a low profile in order to diminish the office conversation concerning her whistleblowing activities. This record contains evidence establishing that there existed substantial newspaper accounts together with radio-talk show appearances by LEM which would have raised her profile in regard to her whistleblowing activities.
Ramsev's Testimony and the Yellow Stickies Charles B. Ramsey (hereinafter Ramsey), a former NRC Investigator, also testified. He is currently employed by the U.S. Department of Energy, Office of Nuclear Safety but was with the NRC from 1982 until July of 1990. His specialty was fire protection and nuclear safety which included responsibility for emergency lighting. Before being employed by the NRC he worked for five years in a position which related to fire protection. I found Ramsey to be a forthright and honest witness. I will give substantial weight to his testimony in view of the fact that he was an outside investigator assigned to an investigatory function at the PV facility, and I believe that his objective view of circumstances at PV as they relate to LEM was perceptive.
As previously noted, in March of 1989, APS had experienced a reactor trip and loss of power, and the unit was unable to establish natural circulation because the emergency lighting needed to open atmospheric dump valves had failed. In 1990, Ramsey was sent to PV to inspect the emergency lighting, modifications made to the atmospheric dump valves, and the emergency diesel generator. He was assigned to PV because he had more background in Appendix R, which relates to an acceptable fire protection system. The regulation is intended to preclude the fire and fission process from becoming simultaneous problems as occurred at Chernobyl.
Ramsey identified the confirmatory action letter, (JX 14),
issued on March 7, 1989 which instructed APS to incorporate lessons learned from the March 3, 1989 avant in Unit 1 before it was restarted. Ramsey explained that APS must conform to the points made in the letter in order to operate the facility. It was his job to see that these things were accomplished.
On February 7, 1990, he conducted an inspection of the emergency lighting system. Following a period of inspection, Ramsey voiced some displeasure at both the quality of and the ability to maintain the emergency lighting system.
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He requested LEM to provide documentation pertaining to the record of failures, the EERs, and-the technical manual-relating to the light operation. This material was accumulatedLin a folder which she provided to Ramsey. The contents of the file provided by LEM contained nothing secretive. Some of the documents contradicted statements by management concerning the emergency lighting. The Compliance Section never acknowledged the existence of those documents. Data concerning the breakdown or failure rates on the emergency lighting was not a company document, but that data was generally highlighted by LEM. She had highlighted one of the documents in the folder by placing a three-by-five inch yellow sticky on the material so as to call his attention to it. That document related to the emergency lights.
Prior to the time that Ramsey left APS following his inspection tour, someone inquired as to whether he could photocopy the inspection documents that Ramsey had accumulated and mail all the material back to him. Ramsey agreed and gave.
the file folder to a representative of the Compliance Section.
In all, thirty to forty people provided information to Ramsey at PV. Many of the documents he was given were not routed through Ccepliance which he indicated frequently happens on inspections. He also. testified that it is not unusual that Compliance at a nuclear power plant will ask for copies of documents that the NRC takes following an inspection. The purpose of this is to allow the company to keep track of what the NRC had been provided.
Several days after the file folder had been given to Ramsey, it was returned to Smyers by Duane Kanitz (hereinafter Kanitz) of APS Compliance. Smyers was asked to review the file contents.
Kanitz expressed concern that the yellow sticky in the folder contained the editorial comments of LEM. Smyers later removed the yellow sticky himself in the presence of LEM and indicated to her that the editorial comments were not necessary. Smyers testified that he told LEM that she didn't need to make editorial comments with the material. The sticky was apparently removed in the presence of LEM by Smyers. A complete copy of the file was retained by Smyers after he returned the original file to Kanit:.
Later LEM advised Smyers that some document or documents had been removed from the folder and Smyers advised her to copy those items and provide Ramsey with the material. (Tr. 1348, 1349)
Later, LEM transmitted' the folder once again to Ramsey.
After Ramsey gave the original file provided to him by LEM to members of management, portions of the file were removed, including the yellow stickies which contained the handwritten notations made by LEM. The data which had been removed from_the file concerned the f ailure history of the emergency lights. The substance of Ramsey's testimony was that the information being
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previded by LEM concerning the inadequacy-of the emergency lights was valid and would have been helpful in arriving at his conclusions. He had observed a problem with the lighting system at PV in hot areas. He thought APS ought to be doing more frequent preventiv. maintenance surveillances. APS believed that they only had a five percent failure rate, but the NRC saw the '
failure problem as being more prevalent and also questioned _the Juitability of the design limitations on the units. In Ramsey's opinion, APS would not own up to the emergency light problem.
The results of the walk-down were codified in an April 24, 1990 letter from the NRC to APS in regard to the inspection of the PV Units 1, 2 and 3.
Following another routine inspection in May and June of 1990, the NRC issued its findings by way of letter dated July 5, 1990.
(CX 30) The condition of some aspects of the emergency lighting system is explained in one of the paragraphs included within the body of that letter. That paragraph reads as follows:
We are concerned about the apparent unreliable performance of the Palo Verde emergency lighting system, as evidenced by numerous failures of emergency lighting system components. Excessive failures and the adequacy of the_ emergency lighting system design .
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implementation were addressed by ANPP in LER 86-059.
Problems have been identified in the emergency lighting system by the NRC and by your staff since 1984. The same problems have continued to exist over a six year period,-and were a topic _of escalated enforcement action and a civil penalty documented in our letter to you dated September 1, 1989 (EA-89-88). Furthermore, emergency lighting failure-data originally provided to NRC inspectors in March 1990, needed to be revised on several occasions, with the most'recent revision -
occurring on June 29, 1990. The need for repeated revision of this data appears to-be another indicator of the need for greater engineering and quality-oversight involvement with the emergency lighting system.
Clearly, the problems associated with the emergency lighting system were serious and were a longstanding concern to both management and the NRC.
Ramseythas known LEM since 1984. Between 1984 and 1990, he only saw LEM about-six or eight times and during that time he spoke to her fewer than six times. He indicated that he had a good working relationship.with LEM and that she had provided him significant information concerning the matters that he was charged with investigating. He found her to be an enthusiastic employee who would inquire about even minor problems. Ramsey He had only no personal knowledge of LEM's alleged harassment at PV.
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observed LEM-once or-twice a year in the presence of_her co-workers. He was aware of allegations of harassment: directed against her, and although the NRC was investigating those allegations, he did not pay much attention to them. However, he believed that there were times when LEM had misconceptions about the jurisdictional limits of the NRC. Ramsey thought that she had perceptions of technical issues that wereinot relevant to his investigative role at APS.
Ramsey also testified that most of the contacts he had-at PV were favorable. He had found management to be cooperative but was surprised that despite the overwhelming ~ objective evidence, they still denied having a problem with the emergency lighting system. He was suspicious of things that he was being told by company representatives.
Ramsey also testified concerning tensions which existed between the NRC-and APS. APS management did not believe that the NRC had given them credit for some of the corrective actions which they had taken in the area of fire protection. Ramsey indicated that APS should not have been surprised by the NRC findings since he briefed management daily-on his activities.
APS had indicated that Ramsey was aggressive, reviewed-issues in detail-disproportionate to their safety: significance, and-lacked interpersonal skills. Obviously, Ramsey disagreed with these contentions.
Order to Destroy Emergency Lighting Report On February 26, 1990, LEM and Smyers-concluded a? report entitled "PVNGS Lighting' System Evaluation." One of Ramsey's -
stated purposes for conducting his inspection during this same month was to inspect the condition of the. emergency lighting system. The report contains a_ basic introduction, a paragraph dealing with an initiating event-which refers to the Unit 3? trip on-March 3, 1989, a problems section, an evaluation oficorrective actions 1taken and recommendations made by the authors. Ramsey.
- .ndicated that there was truth'in the-problems identified in this report.- The report served ~as a basis for a second NRC inspection of the emergency lighting and fire protection-systems at:PV in March of 1990.
Smyers considered the report as being a " cover your ass" or "C.Y.A." document.- He was concerned with problems associated with the emergency lighting system identified by'the NRC and-feared they would be blamed upon-him. The document discussedLa' variety of safety _ issues alsoJrelated to emergency lighting at PV. The document also expressed concern that APS may be in' potential violation of its Final Safety Analysis Report-(hereinafter FSAR), which is a licensing document that also relates to safe-shutdown procedures. These are extremely serious matters in that an FSAR is required to be submitted to the NRC by a licensee before an NRC license can be issued.
On February 26, 1990, Smyers presented a copy of the report to management. He was directed to limit the distribution of the dc:ument because there was too much information out on problems associated with the emergency lighting system already.
Immediately following the meeting with his superiors, Smyers l directed his subordinates to erase the document from the computer ;
and to get rid of all excess copies. Both Smyers and Mitchell retained a copy which Smyers suggested was his "C.Y.A."
memorandum.
At the time that this report was submitted to management, APS was conducting testing on emergency lighting on all three units.
As was evidenced by Ramsey's presence at the facility during this period, the NRC was interested in these test results. Smyers had retained a copy because he believed that the subject of emergency ,
Itghting was not concluded and that he probably would have an '
opportunity to present the document to management at a later date. 1 Peer Pressure Memorandum l
For many years, APS had in place at PV a Quality Assurance Hotline Program which was primarily an employee program for use when an individual felt he had a concern with safety and that concern _was not being addressed by either his immediate supervision or management generally. The program had as many as twelve investigators and supervisors but when Ballard arrived in March of 1989, only three employees were involved. The QA Hotline only took safety concerns from employees. Ballard had full responsibility for_this program.
In late 1989, APS introduced a new Employee Concerns Program which was a broader version of the QA Hotline Program. The Employee Concerns Program replaced the QA Hotline. This Program was implemented in order to incorporate management into the resolution of questions raised by employees. Concerns raised in this program were not investigated by an employee's immediate supervisor but rather a management individual who was a level or two above. Management was directly involved in resolving questions raised through this program and that distinguished it from the old QA Hotline Program. An effort was made by APS to maintain the confidentiality of employees who called either the QA Hotline or the Employee Concerns Program. However, there is evidence that the confidentiality was being compromised.
Conway introduced the Employee Concerns Program by way of a video which was shown to employees. (RX 1 p. 164) Conway's comments indicate that any concern involving safety or quality at PV should be reported, and the employees were advised that they were protected against harassment, intimidation or retaliation for identifying safety concerns. Conway suggests that APS be given the first opportunity to hear and respond to the concerns
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units. (JX 36) On October 13, 1989, Levine issued a policy statement which indicates in parts (W)e failed to achieve the degree of excellence necessary in the areas of vigorous self-criticism, of creating a work environment where criticism is eagerly sought, analyzed and acted upon, of creating a work atmosphere that encourages thoughtful, critical assessment of all phases of plan operation, and one in which operations are conducted in a formal, conser/a-tive manner. Our failure to do the aforementioned things acceptably resulted in the problems we had in the early part of this year. We are now embarked upon a vigorous effort to improve our performance in these critical areas.
On Oct:bar 25, 1989, another memorandum was issued by A.N. Howard in the Contracts Department which was directed to companies providing contract labor assistance to Palo Verde. The subject of the memorandum was the company policy on employee communi-cations and concerns. A copy of the company policy was attached to this memorandum and distributed to employees performing contract labor to APS.
The Tom Berlin Incident on February 28, 1990, an incident allegedly occurred involving a Thomas W. Berlin (hereinafter Berlin) in the Unit 3 work control trailer. The incident relates to a conversation which Berlin had' with Patricia Gibbons and which involved LEM.
Ms. Gibbonr prepared a written memorandum of this alleged conversation. (CX 21) As was noted earlier, I did-not fx..d the testimony of Ms. Gibbons to be credible in any way and, there-fore, I will not consider it as it relates to this alleged incident.
Berlin testified concerning a conversation that he had with Ms. Gibbons on approximately this date. He denied using the type of profanity included in the memorandum written by Ms. Gibbons and indicated that Ms. Gibbons was agitated at the time she entered the work trailer. He acknowledged kidding her about certain aspects of her job. The conversation lasted no more than a couple of minutes and apparently only incidental remarks about LEM were made. The record does not indicate that any of those remarks ware derogatory.
The Gerald Sowers Incident Gregg R. Overbeck (hereinafter Overbeck) testified at some length concerning the budgetary problems being experienced by APS during.this period. He noted that the PV facility was experiencing large overtime rates on the order of twenty-five
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percent and high absenteeism. It also became necessary to l release some of the large contingency of contract engineers which had been hired to resolve the numerous problems they had experienced. He testified that in the early summer of 1990, the APS cperation was moving into a new phase. Following the shutdowns of the three units, the company was looking forward to having all three units operating. Unquestionably, based upon the Overbeck testimony, APS was experiencing a significant financial drain from this operation. However, he denied that there existed any linkage between the financial problems experienced by APS and the whistleblowing activities of LEM.
On July 5, 1990, NRC Region V issued an inspection report for PV Units 1, 2 and 3. (JX 89) The report notes that the NRC inspection found that several of the PV activities were not conducted in full compliance with NRC requirements. The report notes concern that the PV emergency lighting system was apparently unreliable based upon numerous failures of components, and that the problems dated bac4 to 1984. ,
LEM first saw a copy of this report on July 6, 1990 as a result of her participation in a conference at APS corporate headquarters. Also participating were Craig Cooper, Gerald Sowers and Dan Smyers. The purpose of the conference was to assist Sowers in preparing for a presentation at the NRC enforcement conference to be held on July 10, 1990. After spending some time reading Joint Exhibit 89 in the presence of LEM and Cooper, Sowers made a comment about "we shot ourselves again" and at the same time he made his fingers into the shape of a gun and pointed it at his own head. Sowers conceded that the content of the inspection report was not favorable to APS.
Lowerina of Linda Mitchell's 1990 Employee Performance Appraiscl The record contains LEM's employee performance appraisal reports for the period extending from January 1985 through August 1990. (JX 49-55) Each of these appraisal reports tends to confirm my suspicion that LEM was a competent, dedicated, conscientious and questioning employee who cared about her work product as well as her company. The first six of these reports carry an overall rating of either " superior" or " exceeds most standards" which appears to be an equivalent rating. These six appraisals contain numerous superlatives associated with the manner in which LEM discharged her responsibilities. They indicate that her work is superior and that her knowledge of her l job is exceptional. There are indications, however, that she i experienced attitude problems giving rise to a depression which could have negatively impacted herself and also those around her.
(JX 49, 50, 51, 52, 54)
LEM filed a 10 C.F.R. Section 2.206 petition with the NRC which alleged serious misconduct by APS officials on May 22,
1990. That filing could have resulted in a revocation, suspension or modification of APS' license to operate PV. In response to the petition filing, the IIRC Office of Inspector General and the Office of Investigations investigated her a13egations of wrongdoing on the part of APS. That matter was still pending as of the time of the hearing in this case. The entire matter became one of high visibility at the PV facility.
LEM received a performance appraisal in August of 1990. In basic content, that appraisal would appear to be no different from the others in that it contains numerous superlatives related to her job performance and it also mentions her attitude problem.
However, the appraisal gives her an overall rating of " standards met consistently." That rating is in contrast with the superior or exceeds most standards ratings which had been given in prior years. Therefore, although the content of the individual sections of the evaluation would appear to be generally the same as had been given in earlier years, the overall evaluation rticing was reduced by one category.
This last evaluation which was made by Smyers who was her supervisor at the time, contains the notation in his handwriting that:
This review reflects a change in the policy in doing reviews. Linda continues to perform at the same level as last year.
The rating of " standards met consistently" represents a one-level downgrade from the ratings which she had earned in earlier years.
Smyers, who was the electrical supervisor in the Site Engineering Department, testified that the company implemented a change in the manner in which employee performance appraisals were to be performed. The change was addressed in a President's series meeting and also was later reaffirmed by his immediate supervisor in a staff meeting. (Tr. 1328) It was his understanding that management desired to tighten up the appraisals because throughout the company they were too high and not everybody I should be rated above average. Smyers indicated that he had told i the members of his group about the change in policy which sparked multiple conversations and critical commentary among the workers he supervised.
Smyers testified that LEM was not singled out in any way as a result of her performance appraisal in that all of the employees i in his group received.the same treatment. It was his testimony l that of the 13 employees he supervised, 12 of the individuals were downgraded one performance level and the other individual l retained the same overall performance rating. Smyers himself was downgraded two levels by his management as a result of the policy change.
l
e 20 -
The testimony of Smyers, who authored the appraisal report over which the compicint was filed, was verified by other members of management. Conway, testified concerning changes in management evaluation procedures which took place following his arrival in May of 1989. He reviewed a large number of the performance evaluation reports of employees. He discovered that the evaluations were contradictory to the competency which he found in the overall operation of the nuclear facility. He discovered that appraisal reports were generally very high whereas the overall operation of the nuclear facility was average at best. Conway, who is responsible for the nuclear operation of APS at PV, in turn, communicated those concerns to his subor-dinates. He requested that the supervisors be advised that the employees were to be fairly and honestly evaluated based upon their true job performance.
Conway's testimony was supported by his subordinates.
Although there did not appear to be a defined company policy requiring ratings to be lowered to conform to a bell shaped curve, and although there were no written directives implementing this policy, it was clear from the testimony of the APS managers that a policy change had, in fact, occurred. James M. Levine, the Nuclear Production Vice President, Ballard and Smyers, all verified the change in management policy. Sowers, who is the technical assistant to Levine, testified that he was aware of the Conway change in policy and that he interpreted that change as requiring the managers to raise the expectations that they had for their employees and to evaluate employees fairly against those expectations. He also implemented this policy in engineering evaluations beginning in 1990.
Conway also testified concerning the status of the PV operation at the time of his arrival on May 8, 1989. Apparently all three of the separate nuclear generating power units were shut down. He identified numerous problems associated with the operation of the facility including emergency lighting, valves, maintenance, hardware problems, and overall training programs for employees. Generally speaking, there were problems related to ownership's ability to properly manage the facility. In evaluating Conway's testimony, I am left with the distinct impression that the operation of the facility was apparently a mess at the time he assumed control.
The record establishes that although Conway sought to implement a more objective evaluation process, his new approach was not implemented uniformly among all groups. Apparently, only Smyers downgraded the evaluations of employees throughout his entire group. The other systems engineering groups may not have been subjected to the same process. In 1990, Site Technical Support was headed by Overbeck. LEM was in one of che Systems Engineering Groups which comprised the Site Technical Support Group. (JX 95) Systems Engineering was headed by Jeffry S.
1
l 21 -
Summy (hereinaf ter Summy) . Summy had five different groups reporting to him. One of these groups was the Electrical Systems Group of which LEM was a member, and that group was supervised by Smyers. The record shows that insignificant changes were made to the individual evaluations of the 25 Systems Engineers who worked in groups other than complainant's for the year 1990 appraisal .'
period. (JX 93) The overall changes between 1989 and 1990 indicate that five individuals were actually upgraded but six individuals were downgraded. Fourteen others retained the same overall evaluation. (CX 20) The statistical data would seem to indicate that there were variations in the way in which the company's evaluation policy was administered within Systems Engineering.
The Tim Hall Incident on September 18, 1990, Tim Hall (hereinafter Hall), an APS employee, made a comment to Sarah Thomas during a break in a training class. Hall motioned for Ms. Thomas to come over to where he was standing and when she approached, he pointed to a fire protection dum=y/ mannequin that was laying on a stack of fire hoses. (JX 5) The dummy was not in very good condition in that its arms and legs were twisted and appeared to be burned from previous training sessions. Hall acknowledged that he said to Ms. Thomas something to the effect that "[t]his is what will happen to Linda if she doesn't do her job." (CX 1 p. 35) The reference to Linda was to LEM. LEM was also attending the same
, training session. Hall was aware that Ms. Thomas and LEM were friends.
In the written statement given shortly after the incident, Hall indicated that he was not upset with LEM for any reason and that he did not understand the implications of his comment until later. He considered the comment to have been a joke and later apologi:ed to LEM for the incident.
Hall's deposition was taken on August 16, 1991. (RX 15) i Hall was initially employed by APS in May of 1985 in the Systems Engineering Group. He knew LEM on a casual basis from his early l
years with APS and on occasion, in later years, he did visit with her in her cubicle. The same was true with Ms. Thomas. The comment made by Hall to Ms. Thomas was to the effect that "that l could happen to Linda if she doesn't get her act together." (RX 15 p. 11) The day after the incident, Hall attempted to meet with Smyers who was LEM's supeJvisor because he apparently detected that LEM was upset over the incident. Smyers suggested he not talk to LEM immediately but rather wait until after the company commenced its investigation. Hall testified that he believed he knew both LEM and Ms. Thomas well enough that he could joke around with them. He was unaware that anyone else might be attempting to harm LEM, and it was-not his intent to hurt or harm her. He did not consider the consequences of the remark at the time it was made. Following the company
i investigation of the incident, Hall sought out LEM and apologized to her.
t As a result of the company's investigation of the incident, Hall received a written reprimand from the Director of his division. A written reprimand is a second level of discipline under the positive discipline program. The written reminder indicates that it is management's expectation that no empicyee shall discriminate or intimidate any other employee, particularly one who may have addressed a safety related concern at PV. The written reminder also expresses confidences that Hall would immediately correct his conduct deficiency. (JX 84)
Prior to the dummy incident, Hall had voluntarily gone to the APS Employee Assistance Program for the purpose of seeing a counselor for job stress. (RX 15 p. 37) He saw a psychologist or counselor for approximately six months and was apparently moved to a less stressful job for a period of time.
The day following the incident, LEM went to the office of Smyers and told him that she was very upset about what Hall had said to her the previous day. Smyers attempted to contact Hall immediately. However, he did not speak with Hall until the next day at which time he told him that he considered what had happened to be very serious and that the issue would be taken to management. An internal investigation which was carried out by Kerry Johnson followed. Overbeck, on September 20, 1990, had directed him to conduct a fact-finding meeting and if necessary to get security help to investigate the threat. Overbeck monitored the development of the investigation. (RX 1 p. 138)
On September 21, 1990, Johnson submitted a written report to Overbeck concerning the Hall incident. (RX 1 p. 131) The report indicates that on September 20, he interviewed both Hall and Ms.
Thomas and on September 21, he interviewed LEM and Hall for a second time. His conclusions and recommendations it.clude the following:
- 1. I believe Tim's comment was purely spur of the moment and was not intended to mean any harm towards Linda Mitchell in any way. I do not believe that Tim's comment was based on a fear (f rom Tim's perspective) for Linda's well-being.
I don't think Tim was trying to ' warn' her of impending dangers.
- 2. I believe Tim's comment was in poor taste and showed a definite lack of common sense and good judgment.
- 3. I believe Linda Mitchell was genuinely concerned about physical threats because of her situation with the I.G. office and APS. I can certainly
understand why she is concerned about threats and ;
their seriousness since by her admission she has been on the receiving and of several. I believe she acted properly in bringing up the situation to her supervisor as soon as possible.
- 4. I believe Jim Samuels and Dan Smyers acted properly when contacted by Linda.
- 5. I believe that Linda thinks the message from Mr.
Conway with respect to the Linda Mitchell case has not been implemented throughout APS/ANPP organization, rollowing receipt of the written report, Overbeck called Levine and Davis to apprise them of the results of Johnson's '
fact-finding and also to advise them of Overbeck's recommendation to issue a written warning to Hall. (RX 1 p.139) On September 24, 1990, overbeck, together with Johnson, met with Hall for the '
purpose of reviewing the incident and the results of the fact-finding. Hall was apparently apologetic and understood that a written warning to him would be issued. Subsequently, Overbeck met with.LEM and Smyers to discuss the incident. She apparently was told that management found the incident regretable and totally unacceptable. Reportedly, LEM recommended that manage-ment go easy on Hall so as not to make the situation worse.
LEM also apparently told overbeck in conjunction with other incidents-of harassment that some managers and supervisors counsel their employees to avoid her rather than maintaining a professional attitude about her activities. During a manager's meeting held on September 26, 1990, overbeck mentioned to them that the message had not gotten across that all employees be treated as professionals and not be segregated because of their beliefs. (RX 1 - p . - 14 0) On--September 27,-1990, Hall was issued the written letter of reminder.
The record also contains avidence that APS management did not believe that it had-gotten_its message across that all employees-were to be treated as professionals and were not to be harassed for whistleblowing activities. (Tr. 905,-906, 907)- Following the Hall incident, overbeck met with approximately 250 of_his-management team to convey that message. Kerry Johnson,-who conducted the Tim Hall investigation, concurred in the belief that it was necessary to remind management that all employees must be treated professionally. (Tr.1971) Overbeck believed, as a result of the Hall incident, that-although he_had communicated the company message-concerningLthe-no harassment policy, the workers:had not really-gotten the message. Both LEM and management believed that some workers had been trying to avoid -
her. Following the Hall incident there was no written statement issued to all_ employees _at PV. The oral statement was made by'
Overbeck in his group meetings with his personnel. Additionally, top level canagement was apprised of the incident.
Narrative Psychological Reports The record also contains a report written by Dr. William F.
Amberg who is a certified psychologist and a Diplomate in Industrial and Organizational Psychology. (RX 5) His doctorate is in Counseling Psychology. Dr. Amberg's report is very narrowly constructed in that it is based upon his evaluation and conclusions "regarding normal co-worker reactions to Ms. Linda Mitchell's high profile activities." His report, therefore, does not constitute a full person psychological profile of LEM. The report addresses four main points. Initially, the fact that LEM is a highly visible whistleblower; secondly, on the behavior of a single group member whose views are in marked contrast to those of the majority; thirdly, that it is an entirely normal, expected human reaction that such an individual would generate negative reactions; and fourthly, based on the material that he reviewed, APS management supported LEM to the maximum.
The report notes a variety of documents which he considered in arriving at the conclusions stated. The documents basically relate to legal proceedings involving LEM and APS. In addition he considered newspaper clippings and the transcript of a radio talk show appearance by LEM and a deposition given by LEM. He also mentions the " document list" of the law firm representing APS in this matter, but I am not certain to which list he makes reference. Dr. Amberg also notes that he has reviewed the most relevant psychological research pertaining to the organizational dynamics of this case and then lists six published works on which he apparently consulted.
l He concludes that the name Mitchell is virtually synonymous l with conflict when it comes to her relationship with APS. She is extremely high profile and enjoys the publicity which results from that activity. He concludes that LEM is a " group deviant" i which directly leads to her rejection and ostracism by I co-workers. He states that when APS is being attacked l externally, as the media has done for a lengthy period.of time, l the tendency of other employees is to fight the critics. Dr.
( Amberg concludes that common sense, personal experience, and l research show that deviants are naturally ostracized and excluded from the group. He also concludes that APS management, in general, and human resource personnel in particular, responded in a timely and professional manner to the activities of LEM. He I bases that conclusion on APS' investigation, reports, discipline, l
education, and employee communication as evidenced by a report written by another individual. The specific factual data upon which that conclusion is based is not stated.
1 L
I accept the report of Dr. Amberg as being exactly what it is stated to ce. It represents his conclusions as to normal co-worker reactions to LEM's high profile activities. In other words, it is his conclusion that those reactions are negative.
His conclusions in that regard are accepted since they were not severely tested at the time of his testimony. His report is not received as a psychological profile of LEM. He testified that he has never met LEM or spoken to any of her co-workers or to any of APS management concerning her activities. He knew nothing of LEM's medical or psychological histories. His conclusion that she is a " group deviant" is based upon an examination of documents provided to him by representatives of APS, his perspective as a consulting industrial / organizational psychologist to many business organizations, and as an expert on organization dynamics. Since I do not know what his
" perspective" is as a consulting industrial / organizational psychologist and his own expertise, whatever that may be, I must question his opinion in that regard. His data base for arriving at this conclusion was something considerably less than what I would hope a disinterested psychologist would require to arrive at the conclusion stated. -
Once again, I give weight to his report for the narrow purpose of considering normal co-worker reaction to LEM's high profile activities. He finds that reaction to be negative. I do not find his report to be overwhelmingly useful in any sense, but since it has not really been tested, I do give it some weight.
The record also contains a psychological report of LEM which was prepared by Dr. C. Brady Wilson. Dr. Wilson is a Clinical Psychologist who devotes about half of his practice to working with clients who have experienced some traumatic event at work or within a group setting. Dr. Wilson holds a Ph.D. in psychology from Boston University and a Master of Theology, Psychology and Religion from Boston University School of Theology. His undergraduate degree was in Psychology. He is a Certified Psychologist within the state of Arizona. He also holds membership and offices in a variety of state and national organizations. He is in private practice in Arizona and that practice is based upon direct patient referral and professional referrals from physicians, corporations and attorneys. He specializes in the employment area, including employee stress, cumulative workplace trauma, employment correction, counseling, terminations and adjustment.
Dr. Wilson examined the Complainant in October, 1990. He prepared his psychological evaluation on March 22, 1991. (CX 17)
Based on symptomatology, a psychological history, a social history, a work history, a mental status examination, the
! Minnesota Multiphasic Personality Inventory-2 (MMPI), a Symptom j Checklist 90 Revised (SCL-90-R), and an Occupational Stress Inventory (OSI), he diagnosed post traumatic stress disorder (PTSD) and a somewhat dependent personality style.
r He noted that her attitude during his evaluation was of a person motivated to restore herself professionally and emotionally. He found her to have good psychological integration and little global psychological distress. In his opinion, her reported history of distress and her history do not constitute sufficient cause for her present symptomatology. He diagnosed PTSD because her physical and anxiety symptoms were determined to be a true condition and not under her voluntary control. He described PTSD as a maladaptive reaction to the psychosocial stressors she reports. These stressors, he indicated, were the acts of harassment to which reportedly she had been subjected to ,
at APS.
He recommended that she pursue a course of therapy including stress inocculation therapy and supportive group intervention.
He found that a medical referral may be warranted if her sleep disorder persists. He further recommended a multiplicity of therapeutic services for all the symptoms due to PTSD. He opined that if LEM were unable to pursue therapy and reestablish herself emotionally and in an appropriate work environment, her prognosis-was guarded. However, he found her long-term prognosis to be good. He anticipated that she would require one therapy session a week for six to twelve months.
Dr. Wilson testified that he had personal contact with LEM on three different occasions. She terminated the therapy. He had given her written questions to take home to answer because she was not a continuing client and, therefore, he could not evaluate her response-consistency. It was his belief that her responses are reliable.
It was the conclusion of Dr. Wilson that LEM perceived the Tim Hall incident as a threat to her personal safety. She interpreted that sequence of events as being a message to back away from her whistleblowing complaints. Her reaction to that event would be the same as any other individual who was severely threatened. He does not consider her to be a group deviant, nor did he believe that she was faking any of the responses to questions posed in order to make her condition appear worse than it actually was.
Dr. Wilson related LEM's problems to stress but did not know to what the stress was attributable or how long she had experienced it. (Tr. 230) He disagreed with the MMPI computerized results even though it was the only test he used which was not capable of being subjectively influenced. He disagreed with the diagnosis but not the personality traits which it assigned her. He believes that she has exhibitionistic traits.
I find Dr. Wilson to have been a credible and knowledgeable witness. He was forthright in his responses. Although his l
l l
l personal contact with LEM was limited and he did not include her medical history in his evaluation, I am impressed with his testing and also the other objective data on which he relied in arriving at his conclusions. He has good credentials and is published. I will give significant weight to his opinion.
Finally, the record also contains an opinion submitted by Dr.
Dar:1d L. Shutt. (RX 6) Dr. Shutt holds a B.A. in Pre-Medicine from the University of Illinois and an M.A. and doctorate in Education in Counseling / Clinical Psychology also from the University of Illinois. He has held a variety of positions in both the academic and private sectors. He is a Certified Psychologist within the state of Arizona and is a Diplomate of the American Board of Professional Psychology. He is a Fellow and Diplomate of the American Board of Medical Psychotherapists.
He also holds membership in a variety of psychological associa-tions in both the state of Arizona and nationally. His report is limited to a discussion of whether LEM was damaged as a result of the APS work environment and secondly, if she was not damaged, then what evidence was discovered which led to that conclusion.
He concluded that she was not damaged as a result of the APS work environment and that the material presented to him did not support her complaint of work-induced injury.
Dr. Shutt reviewed Dr. Wilson's deposition, case notes, and test results. (RX 6) Based also on medical records, LEM' s performance appraisals, and current resserch data, he opined that LEM was not damaged as a result of the APS Work environment.
He criticized Dr. Wilson's notes as skimpy, inadequate, and evidence of a cursory effort.
He feels LEM's answers to questions could be invalid since she completed the tests at home and could have been coached. He feels LEM did not complete the self-report under proper supervision. He criticized Dr. Wilson in that he did not consider LEM's medical, intellectual, academic, emotional, or behavioral functioning levels, which could have impacted his conclusions. He feels the evaluation was not comprehensive or even minimally adequate. He opined that the data does not support a diagnosis of PTSD. The only objective test was the MMPI-2 and Dr. Wilson chose to ignore the computerized findings of conversion disorder or somatization disorder, and assigned his own diagnosis, which Dr. Shutt thinks may have differed if Dr.
Wilson had reviewed her medical history. For example, her medical history may reveal that she was anxious or had chronic stress due to having survived cancer and the possibility of facing it again. She had a breast biopsy in June, 1990. A person with conversion or somatization disorders tend to make up physical symptoms, and such disorders are not unusual for a cancer survivor. He believes LEM has a need for secondary gain
! as evidenced by her complaints and lawsuits. He also added that
! the OSI does not tell much as it has only been used on hundreds of people, as opposed to the thousands who have taken the MMPI.
1 - _ _ .
l At the hearing, Dr. Shutt testified that he never actually saw Dr. Wilson's report. He never saw LEM, although he had wanted to. In drawing his conclusions, he considered that LEM was a heavy coffee drinker which was information provided by APS' legal representative. The record does not show what is meant by l "a heavy coffee drinker." He stated that Dr. Wilson's notes were int,dequate for him to ascertain what happened in Dr. Wilson's meeting with LEM. Dr. Shutt also revealed that an ethics complaint concerning his use of the HMPI has recently been raised against him. Otherwise, his report was not discredited on cross-examination.
Dr. Shutt's criticism of Dr. Wilson for not noting LEM's medical and other histories is probably valid. His conclusions, however, are based neither on a personal interview with LEM nor Dr. Wilson's final report. His criticism of Dr. Wilson's use of the MMPI-2 results is questionable ss he himself has been charged with misusing the MMPI. I also note in reading his report that many of the conclusions stated are couched in terms of "could,"
"may have differed," "may suggest" or other terminology which tends to diminish the conclusions stated. Additionally, his report was also written strictly from the perspective of responding to the referral question, that being, as to whether LEM was damaged as a result of the APS work environment. His report is not intended to be a psychological profile but rather strictly a critique of Dr. Wilson's work product. I accept it for what it is. I also note that many of the conclusions stated by Dr. Shutt, which are couched in terms of "could," "may suggest," etc.,;have not been proven by him based upon any other objective data or test results. Although his report is entitled to some weight, I do not consider it to be of sufficient value to materially dispute the conclusions stated by Dr. Wilson.
In evaluating the psychological evidence included within the three reports, I conclude that LEM is an exhibitionist who receives a negative reaction from co-workers in the form of rejection and ostracism. LEM perceived the Tim Hall incident as a threat to her personal safety. She suffers from PTSD which was caused by stresses in her life potentially related at least in part to the work environment experienced at APS. LEM is not a group deviant.
9 CONCLUSIONS OF LAW Whether Respondents Discriminated Against Linda Mitchell by Lowering Her 1990 Employee Performance Appraisal in hetaliation for Having Engaged in Protected Activity This action arises under the Energy Reorganization Act of 1974, Section 210 (a), as amended, 42 U.S.C.A. Section 5851 (hereinafter referred. co as ERA), which provides, in pertinent part, as follows:
(a) Discrimination against employees No employer, including a Commission licensee, an applicant for a Commission license, or a contractor or a subcontractor of a Commission licensee or applicant, may discharge any employee or otherwise discriminate against any employee with respect to his compensation, terms, conditions, or privileges of employment because the employee (or any person acting pursuant to a request of the employee) --
(1) commenced, caused to be commenced, or is about to commence or cause te be commenced a proceeding under this chapter or the Atomic Energy Act of 1954, as amended (42 U.S.C.A. Section 2011 et seq.), or a proceeding for the administration or enforcement of any requirement imposed under this chapter or the Atomic Energy Act of 1954, as amendedi (2) testified or is about to testify in any such proceeding ori (3) assisted or participated or is about to assist or participate in any manner in such a proceeding or in any other manner in such a proceeding or in any other action to carry out the purposes of this chapter or the Atomic Energy Act of 1954, as amended (42 U.S.C.A. Section 2011 et seq.).
This case arises in the Ninth Judicial Circuit which has yet to determine the allocation of proof burdens in an Energy
. Reorganization Act whistleblower case. The evaluation issue requires application of the " dual motive theory" in establishing violations under.the Act. In these cases, the evidence provides two possible motives for the termination of the Complainant, one being a legitimate management reason, and the other being an impermissible motive of reta*iation for a protected activity.
The applicable burden of pr of standards adopted by the Secretary in " dual motive" cases are chose expressed by the National. Labor Relations Board in Wright Line, a Division of Wright Line, Inc.,
1980 CCH NLRB #17,356 (1980), affirmed sub. nom. NLRB v. Wright-Line, 662 F.2d 889 (1st Cir. 1981), cert, denied 455 U.S. 989
(1982), and approved by the Supreme Court in NLRB v.
Transportation Management Corp., 103 S.Ct. 2469 (1983). The stancarcs set forth in Wrignt Line have been made applicable to proceedings arising under Section 5851 of the ERA. Consolidated Edison Company of New York, Inc. v. Donovan, 673 F.2d 61 (2d Cir.
1982). A vartecy of otner Circuits have also applied these same standards in disposing of dual motive cases.
In applying Wright Line to this case, it was incumbent upon the Complainants to initially establish a prima facie case of discrimination against Respondents by way of proof of the following:
- 1. That the party charged with discrimination is an employer subject to the Act (s);
- 2. That the complainant was an employee under the Act (s) ;
- 3. That the complaining employee was discharged or otherwise discriminated against with respect to his or her compensation, terms, conditions, or privileges of employments
- 4. That the employee engaged in " protected activity;"
- 5. That the employer knew or had knowledge that the employee engaged in protected activity; and
- 6. That the retaliation against the employee was motivated, at least in part, by the employee's engaging in protected activity.
Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 101 S.Cc. 1089, 67 L.Ed. 2d 207 (1981); Dean Dartey v. Zack Company of Chicago, 82-ERA-2, final Decision and Order of the Secretary issued April 25, 1983, slip op, at 6-9. Once the
-Complainants have established a prima facie case, the burden of production then shifts to the Employer to show that the discharge or other adverse action would have occurred in any event regardless of the forbidden motivation. If the Employer satisfies this intermediate proof burden, then the burden shifts back to the employee to establish that the preferred legitimate business reasons for the termination were merely pretextual in explaining the discharge. Although both parties bear proof burdens under this standard, the burden of proving by a preponderance of all of the evidence that retaliation for protected activities was a motivating factor in the employee's action always remains with the Complainant and never shifts to the Employer. Dean Dartey v. Zack Company of Chicago, supra.
Wricht Line makes it clear that the empicyee must prove the empicyer's guilt by a preponderance of the evidence. NLRB v.
Great Dane Trailers, 388 U.S. 26, 87 S.Ct. 1792 (1967). The opinion by the Circuit Court in Wright Line explained that the only burden which could acceptably be placed upon the employer is a " burden of production" which was described as a responsibility of going forward with credible evidence to rebut or meet the prima facie case. That responsibility has been characterized as an ocligation upon the employer to "come forward with enough evidence to convince the trier-of-fact that, under the circumstances, there is no longer a preponderance of evidenca establishing a violation." NLRB v. Amber Delivery Service, 651 F.2d 57 (1st Cir. 1981). The court, in Wright Line, concluded that the " burden" referred to in making reference to the Employer's obligations is merely a burden of going forward to meet the prima facie case, not a burden of persuasion on the ultimato issue of the existence of a violation.
The parties have stipulated that the subject matter of the complaint confers jurisdiction upon this office. It has also been stipulated that LEM and the Respondents were in an employee / employer relationship at the time of the incident. (JX 94, par. 2) The stipulation also contains the employment history of LEM with APS up to the date of the hearing. (JX 94,-par. 3,
- 4) on brief, Respondents acknowledged that the Complainant engaged in protected activity in May of 1990 as the result of the filing of a 10 C.F.R. Section 2.206 petition with the NRC. In addition, Respondents concede that the fact of that filing was widely publicized by the news media and also by Complainant, and therefore, the Employer knew or had knowledge of the protected activity of LEM. The Employer contends that the Complainant has failed to establish that she was discriminated against with respect to her compensation, terms, conditions or privileges of employment. It is also contended that LEM has failed to show that the alleged discrimination was motivated, even in part, by her engaging in protected activity.
l There is no question that the overall appraisal r '!cg of LEM i
was downgraded in 1990 from one of either " superior" . s. " exceeds most standards" to one of " standards met consistently." The
! standards met consistently rating appears to be an average rating i
in terms of those offered by the rating form. Therefore, LEM's
'overall appraisal rating was clearly downgraded from the one which she had earned the prior year. I find that action to be ';
evidence of discrimination against her with respect to the terms, 3 I f
conditions or privileges of employment. Under whistleblower l laws, unlawful discrimination io given an inclusive definition, d /j l Deford v. Secretary of Labor, 700 F.2d 281 (6th Cir. 1983); Ellis l Fischel State Cancer Hospital v. Marshall, 629 F.2d 563 (8th Cir.
l 1980).
I
F
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It is next incumbent upon LEM to prove that the downgrading in her evaluation was motivated, at least in part, by her having engaged in protected activity. Improper motive car, be established by circumstantial evidence. Ellis Fischel State Cancer Hospital v. Marshall, 629 F.2d 563 (8th Cir. 1980), c'e rt ,
dentec 450 U.S. 1040 (1981). An inference of retaliatory motive can arise strictly as a result of the proximity of the protected activity to the date of the discriminatory action. Couty v.
Dole, 886 F.2d 147 (8th Cir. 1989); Keys v. Lutheran Family and Children Services of Missouri, 668 F.2d 356 (8th Cir. 1981);
Womack v. Munson, 619 F.2d 1292 (8th Cir. 1980); cert. denied 450 U.S. 979 (1981); Davis v. State University of New York, 802 F.2d 638 (2d Cir.1986) .
The record shows that LEM, on May 22, 1990, filed a 2.206 petition with the NRC to institute formal proceedings which could result in a revocation, suspension or modification of APS' license to operate PV. The employee evaluation of LEM was signed by Smyers on August 14, 1990 and by LEM on August 23, 1990.
Therefore, the downgrade in her evaluation took place between two to three months immediately following her filing of the petition with the NRC. Th6 proximity of these actions, I find, raises an inference of retaliatory motive on the part of Respondents. In addition, this record shows a long history of other protected activity engaged in by LEM over a period of years. That activity, all of which is fully described in the discussion relating to the hostile work environment issue, was also well known to management employees of APS. Taken together, I conclude that the Complainant has established a prima facie case of discrimint-lon by Respondents as a result of their having lowered her employee performance appraisal.
Since the Complainant has established a prima facie case, the burden of production now shifts to the Employer to show that the downgrading in the overall evaluation of LEM in 1990 would have occurred regardless of any forbidden motivation.- It is incumbent upon the employer to move forward with credible evidence to rebut or to meet the prima facie case. Following an evaluation of the Employer's evidence, it is my' conclusion that evidence has been produced, under the circumstances of this case, so that there would no longer exist a preponderance of evidence establishing a violation.
In listening to the testimony of Conway, there was no question in my mind of his sincerity or of his credibility in
- elaborating upon his attitude toward the overall evaluation of employees at APS. I believe that he did, in fact, communicate a policy change to the APS management employees. The record demonstrates that tne policy as implemented at the employee level was inequitably applied. It seems fair to say that Smyers accepted his instruction from his superiors at face value whereas other managers did not. It seems equally clear to me that with
respect to this question, as I will conclude with respect to other questions, that communication problems existed within the management of APS.
This record contains no evidence that management intended to discriminate against the entire working group of which LEM was a member. There is no evidence that LEM was singled out in any way for purposes of her evaluation. In fact, the opposite is true in that she was treated identically as the other members of her group including Smyers with the exception of one individual.
LEM's evaluation form contained numetaus positive comments as had been given in prior years. There is no evidence that her immediate earnings had been impacted by this evaluation downgrade.
When Conway assumed control in May of 1989, the operation of the PV f acility could charitably be characterized as being a mess. All three of the reactors were shut down. The facility was experiencing problems with certain valves, training programs were inadequate, there were management problems as well as maintenance and hardware problems. Consistent with his findings in that regard, I would consider a new employee evaluation program as being entirely reasonable. Changes were clearly warranted. Conway, I believe, attempted to make those changes.
The change in evaluation approach represents one step. I find no evidence that his policy of evaluation change was made applicable only to individuals or to groups because they had been com-plainers or had approached the NRC. The evaluation policy was changed because it needed to be changed.
For all of these reasons, I conclude that the Respondents have demonstrated a legitimate non-discriminatory reason for the downgrading in the evaluation of LEM. Respondents have demon-strated that the evaluation downgrade would have occurred in any event, regardless of any forbidden motivation.
Since the Employer has now established that there is no longer a preponderance of evidence establishing a violation, it is now incumbent upon LEM to produce evidence of " disparate treatment McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973); Wr2cht Line, supra; Mt. Healthy City School District v.
Doyle, 429 U.S. 274 (1977). Disparate treatment simply means that an employee who engages in protected activity was treated differently, or disciplined more harshly, than an employee who did not engage in the protected activity. Donovan o.b.o. Chacon
- v. Phelps Dodce Corp. , 709 F.2d 86 (D.C. Cir. 1983).
In considering this record as a whole for purposes of the evaluation issue, I find no evidence that disparate treatment was afforded any employee. LEM was treated no differently than any of the other employees within her group including her supervisor.
The impression that I glean from considering the record as a
l whole is that Conway initiated a new policy which was to have been equitably and fully implemented by the managers beneath him.
There is evidence that the policy was not equitably administered by all managers. LEM appears to have been in the unfortunate circumstance of being a member of a group which was managed by an individual who followed the directions that were given to him.
Rather than consider that action to be detrimental to the company's interest, I suspect that Conway would have hoped that the rest of his management team were as competent.
In my judgment, the action initiated by Conway was demanded by his best business judgment. The mess which he inherited demanded decisive action to save a sinking ship and perhaps to avert disaster. The picture was not pretty and the change in evaluation policy was but one small step in righting an intoler-able situation. I find no evidence of disparate treatment in this record as it relates to the over411 evaluation of LEM for the period ending in the middle of the year in 1990.
Based upon my findings in this regard, I conclude that Respondents did not discriminate against LEM by lowering her evaluation.
Whether All Instances of Harassment Comprising the Hostile Worn Environment Claim, Excepting the Tim Hall Incident, are Time Barred and Whether Respondents Discriminated Against Linda Mitchell By Sub3ecting Her to a Hostile Work Environment in Retaliation for Having Engaged in Protected Activity The Energy Reorganization Act requires that complaints of retaliati:- for protected activities must be filed "within thirty days after such violation occurs." 42 U.S.C. Section 5851(b) (1) .
The record of this case contains evidence relating to events occurring as early as the latter part of 1985 and extending through October of 1990. Complainant argues that the facts alleged support a finding that Respondent has committed a continuing violation which would support the consideration of events occurring outside of the 30-day statute of limitations.
This contention is based upon the respondents' having created a
" hostile work environment" which gave rise to discriminatory conduct against complainant. On brief, Complainant argues that "all of the incidents alleged here which occurred between September 1989 and September 1990 are related rather than separate acts. Taken as a whole, these incidents formed a single act of a hostile environment. All of the alleged incidents should be treated as timely filed under the continuing violation theory given that it is conceded the last act falls within the limitations period." Therefore, Complainant has conceded that the evidence in this case relating to events extending from the latter part of 1985 through August of 1989 are not to be considered as a part of the continuing violation.
Evidence of discriminatory actions which pre-date the filing date of a complaint under this rection, but found not to be -
continuing in nature, nevertheless may constitute relevant background evidence suggesting present patterns of behavior.
Malhotra v. Cotter & C o .,, 885 F.2d 1305 (7th Cir. 1989).
Therefore, some events relating to potential discriminatory conduct by APS will be considered only as relevant background evidence. Thus, evidence relating to events occurring between the latter part of 1985 and August of 1989 will be considered only within that context.
Complainant argues that a series of events occurring between September of 1989 and September of 1990 constitute the basis for a finding of a continuing violation against Respondent. Any number of those events occurred outside of the statutory 30-day period for filing a claim under this Act. Respondent raises the question as to whether any of those acts should be considered.
Complainant argues that since a continuing violation has been established that all of those acts should be considered in weighing the continuing violation theory.
In disposing of the statute of limitations issue, it is first necessary to consider whether the actions of respondent might constitute a continuing violation. Egenrieder v.
Metropolitan Edison Company /G.P.U., 85-ERA-23, (Secretary's Order of Remand issued April 20, 1987). The Secretary cites with approval the cases of Erdmann v. Board of Education Union County Regional High School District No. 1, 541 F.Supp. 388 (D.C. H.J.
1962) and Tyson v. Sun Refining and Marketing Company, 599 F.Supp. 136 (E.D. Pa. 1984).
Courts have generally recognized an equitable exception to the statutory limitations period for continuing violations "where the unlawful employment practice marifests itself over time, rather than as a series of discrete acts." Waltman v. Int'l Paper Co., 875 F.2d 468 (5th Cir.1989) . In order for Complainant to invoke the exception, she must show that an ongoing violation, and not just the effects of a previous violation, extended into the statutory period. Bruno v. Western Electric Co., 829 F.2d 957 (10th Cir. 1987); see English v.
Whitfield, 858 F.2d 957 (4th Cir. 1988); see also Held v. Gulf oil Co., 684 F.2d 427 (6th Cir. 1982). The Secretary has 61so citeo approvingly the case of Van Heest v. McNeilab Inc.,- 624 F.Supp. 891 (D. Del.1985) in which it is indicated that the continuing violation theory recognizes that past discriminatory acts have occurred outside the limitations period and that the Complainant's awareness of those acts is irrelevant. What is important is that the plaintiff-file her complaint within the statutory period of the-last discriminatory act in a course of conduct. In that event, Complainant will be allowed to litigate all claims that are part of that continuing violation, because she filed within the statutory period of the end of the violation.
r 36 -
The following three factors have been identified as bearing on the determination as to whether'a continuing violation has occurred. See Berry v. Board of Sumervisors of LSU, 715 T.2d 971 -
(5th Cir. 17ET), cert. denied, 479 J.S. 868 (1NFITT (1) Identity of Subject Matter. Do the acts " involve the same type of discrimination, tending to connect them in a continuing violation?" See also Graham v. Adams, 640 F.Supp. 535 (D.D.C. 1986) which concludes that continuing violation allegations must connect remote claims to incidents addressed by claims timely filed.
(2) Frequency of Incidents Alleged. Are the acts " recurring
. . . or more in the nature of an isolated work assignment or employment decision?"
A complainant can establish a continuing violation either through a series of discriminatory acts against an individual or a respondent's policy of discrimination against a group of individuals. Green v. Los Angeles City Su?erintendent of Schools, 883 F.2d 1472 (9th Cir.1989) . Tae distinction to be made here is between a sporadic outbreak of discrimination and a dogged pattern. Bruno, 829 F.2d at 957.
(3) Quality of Permanence. Does the act have the degree of permanence which should trigger an employee's awareness of and duty to assert his or her rights, or which should indicate to the employee that the continuing existence of the adverse consequences of the act is to be expoeted without being dependent on a continuing intent to discriminate?
In considering this item, the court in Waltman, 875 F.2d at 468, stated that:
Acts of harassment that create an offensive or hostile environment generally do not have the same degree of permanence as, for example, the loss of a promotion.
If the person harassing a plaintiff leaves his job, the harassment ends; the harassment is dependent on a continuing intent to harass. In contrast, when a person who denies a plaintiff a promotion leaves, the plaintiff is still without a promotion even tnough there is no longer any intent to discriminate. In this latter example, there is an element of permanence to the discriminatory action, which should, in most cases, alert a plaintiff that her rights have been violated.
However, before I can determine whether a continuing violation-has occurred, I must first determine whether any
l r
4 violation has occurred. Complainant contends that she experi-enced discrimination in violation of Section 210 of the ERA by being subjected to a hostile work environment. To establish a prima facie case of hostile work environment, LEM must establish the following elements:
- 1. Membership in a protected category or in a Section 210 case evidence of protected activity;
- 2. Unwelcome harassment;
- 3. The harassment resulted from having engaged in protected activity;
- 4. That the harassment effected a term, condition or privilege of employment; and
- 5. That the Employer knew or should have known of the harassment and failed to take prompt, effective remedial action.
See Meritor Savings Bank v. Vinson, 477 U.S. 57, 106 S.Ct. 2399 TIT 86) ; Henson v. City of Dundee, 682 F.2d 897 (11 Cir. 1982);
English v. Whitfield, 858 F.2d 957 (4th Cir.1988) . In Meritor, the Court recognized under the third element that a complainant could establish that certain pervasive acts were so severe that they created an environment which altered the terms, conditions and privileges of employment. LEM's case was heard in the Ninth Federal Judicial Circuit. That circuit has not addressad the question as to whether a " hostile work environment" is an independent claim of discrimination under Section 210 of the Energy Reorganization Act. Only the Fourth Circuit has considered this type of claim. English v. Whitfield, 858 F.2d 957 (4th Cir.1988) .
The Ninth Circuit has applied the standards enunciated in Meriter, to claims of sexual harassment. Vasconcelos v. Meese, 907 F.2d 111 (9th Cir. 1990); Ellison v. Brady, 924 F.2d 872 (9th Cir. 1991). As Complainant pointed out in her brief, the law in the hostile work environment area is still evolving and the Federal Courts have yet to determine a uniform concept of what constitutes a hostile work environment. Since there are no Ninth Circuit cases applying Section 210 of the ERA to a hostile work environment theory, we are left with attempting to glean a theory for that circuit from cases decided under Title VII. In considering the arguments of counsel made on brief, clearly different interpretations were given to the Ninth Circuit's approach in Ellison. Ellison represents a 1991 pronouncement by the Ninth Circuit in a hostile work environment case. Therefore, I feel compelled to follow the principles enunciated in that case even though it relates to Title VII.
Ceeplainant argues that a subjective approach should be given to the evidence in this case whereas the Respondent contends that ,
an objective approach to the evidence should be taken. Com-plainant also contends that Section 210 of the ERA recuires the Respondent to encourace employees to raise safety concerns. I find that argument to be imaginative but not the law. While employers do carry some legal obligations under the anti-discrimination statutes, encouraging employees to raise safety concerns has never been raised to the dignity of a legal duty.
Therefore, I reject Complainant's contentions in that regard.
The Court in Ellison adopted a reasonable victim standard as observed from the perspective of the victim. I agree with Respondent that the reasonable victim standard is comparable to a
" reasonable person standard" applied in other areas. I also believe that the standard should be gender neutral. Respondent argues that Complainant must show that she encountered a work atmosphere in which harassing conduct was so severe or pervasive that a reasonable nuclear power plant worker would have believed it stifled her liberty to raise safety concerns to the NRC and altered the terms, conditions or privileges of her employment. I agree with that summary of the law. It is not necessary that the harassers realize that their conduct creates a hostile working environment.
The Ninth Circuit in Ellison also made an expression concerning how it will determine what conduct unreasonably interferes with working conditions. The Court stated:
The required' showing of severity or seriousness of the harassing conduct varies inversely with the pervasiveness or frequency of the conduct . . . .
Although a single act can be enough, . . . generally, repeated incidents create a stronger claim of hostile environment, with the strength of the claim depending on the number of incidents and the intensity of each incident.
William F. Conway, who is the Executive Vice President in charge of Nucles at APS arrived at PV in May of 1989. I found him to be an hon -*, forthright and impressive witness. He had excellent experi e in the nuclear field prior to his arrival.
The Complainant is alleging that the discrimination is based upon events occurring batween September 1989 and September of 1990.
Thus, Conway had only been employed by APS a short period of time prior to the first event in September of 1989. By way of background, the record shows that in September of 1989, all of the top managers at PV had only short periods of service with the
! company. Conway arrived in May of 1989, Levine, who was the Vice 1 President of Nuclear Production arrived in September of 1989, Ballard who was the Director of Quality Assurance commenced i
l L- _ _ . . _. . .
employment in March of 1989 and Overbeck the Director of Site Technical Support was hired in April of 1990. Smyers who was LEM's immediate supervisor in the Electrical Systems had been with the company since 1981. Thus, none of these individuals with the exception of Smyers had any longevity in dealing Jith LEM prior to September of 1989.
When Conway arrived, the picture produced by this record as to circumstances ht PV was critical to say the least. In March of 1989, all three of the reactors had been shut down due to mechanical problems. Levine indicated that all of the employees at PV were aware of a financial strain placed upon the company as a result of the shutdowns. The units remained inoperable as late as the early part of summer 1989. The problems were apparently not being solved. This record contains a substantial amount of evidence devoted to the question of emergency lights. Conway characterized the emergency lights as being " garbage" and considered that problem area to be serious. The NRC notes that the problems had persisted since 1984. Conway also makes reference to communication problems and perhaps some of this difficulty can be directly related to his re-evaluation of the Employee Evaluation Program. It is always difficult to point fingers, but obviously the individuals running this operation were new at this time and thus, top APS management must have believed when Conway was hired that serious problems existed in the operation of this facility.
I believe that the record shows that APS had a codified nondiscrimination policy in effect at the time Conway arrived but I que7ti:n whether that policy had been properly implemented.
The C. Hotline, which was to have been used to permit employees to express their concern with potential safety problems, was replaced by Ballard with an Employee Concerns Program. The record shows that some employees believed that the QA Hotline did not protect the confidentiality of the caller. I suspect that it was that problem in part which caused the implementation of the New Employee Concerns Program.
Complicating matters even further for APS, was the extent to which the PV facility was receiving adverse newspaper publicity.
The record documents negative newspaper publicity and, in addition on June 5, 1990, Complainant, her husband and her attorney appeared on a radio talk show in Phoenix which gave considerable adverse publicity to the PV operation. Suffice it to say that during the period from March of 1989 through 1990, that things were not going well for APS at the PV operation.
LEM arrived at the PV f acility in January of 1985. Her performance appraisal reports demonstrate that she was a competent, dedicated, conscientious and questioning employee.
They also demonstrate that she did experience attitude problems giving rise to a depression which could have negatively impacted
herself and also those around her. My feeling is that LEM was an outstanding employee of APS who wanted to do things right but who could not get the attention of management to properly correct problems in her area of jurisdiction. Ballard testified that in his personal conversation with LEM, that she indicated that it was her opinion that upper management at APS was incompetent. I believe that to be a fair appraisal of her feelings.
Since she was unable to correct the problems that she perceived to be threatening the facility by way of management action, LEM then turned to the NRC for redress. As a result of that action, she not only got the attention of the NRC but also of the management of APS together with the attention of her co-workers. Unquestionably, and based upon the testimony of numerous witnesses, a hostility developed at the PV facility against LEM since the possibility existed that the financial strain caused by the reactor shutdowns could also cause other employees to lose their jobs. That possibility gave rise to the creation of hostile feelings toward LEM by a significant number of PV employees. LEM's exhibitionist tendencies and high profile throughout the facility only exacerbated the situation. She was a small fish in a big pond and it was her intention to close the place down as evidenced by the filing of the 10 C.F.R. Section 2.206 petition with the NRC. Her profile was enhanced by the fact that she went on practically every walk-down with the NRC team throughout this period. Other employees saw that and some made negative comments concerning her relationship with the NRC officials. The 2.206 petition alleged serious misconduct by APS officials and could result in a revocation, suspension or modification of APS' license to operate PV.
I will now consider whether LEM has established a prima facio case of hostile work environment. Initially, there is no question but that she has engaged in protected activity.
Respondents had acknowledged this item. Secondly, there is no question but that she has been the subject of unwelcome harassment from both management and co-workers. Ballard's reference to her as a " bitch" and his suggestion tnat she be fired occurred in September of 1989. In January of 1990, Smyers gave LEM a friendly reminder that APS was interested in getting rid of her. Therefore she should keep a low profile. I don't think that Smyers' personal intention was to harass,.but rather to warn. However, the conveyance of the impression that manacement was out to get her is intimidation and that constitutes harassment. The yellow sticky incident involving Inspector Ramsey occurred in February of 1990. That incident represents a deprivation by a member of management of a disclosure right of LEM to assist the NRC in its inspection process. A deprivation of that right constitutes harassment.
The Tom Berlin incident I do not find to be meaningful for purposes of this case. The incident involving Sowers occurred on July 6, 1990 and I interpret Sowers' mannerism as conveying the
possible impression that LEM was partly responsible for the negat:ye inspection report. That action constitutes harassment.
The Tim Hall incident occurred on September 18, 1990 and that clearly represents employee harassment. In summary, this record contains obvious evidence of unwelcome harassment.
Thirdly, LEM is required to establish that the harassment resulted from her having engaged in protected activity. Unques-tion ably, that is the case here. As was noted earlier, LEM maintained a very high profile at the APS facility due to her activity in reporting safety concerns. The record is replete with comments from management and workers alike to the effect that LEM was held, at least in part, responsible for a potential shutdown of the entire PV operation due to her having expressed safety concerns to the NRC. The Ballard incident evidences a hohwile management attitude toward her. There is evidence that management was ignoring some safety concerns and LEM and her group were trying to push things forward as best they could. (CX 3, 4) I recognize that the psychologist has indicated that LEM is an exhibitionist and enjoys the personal exposure that goes with that territory. However, that personality characteristic cannot diminish the fact that the harassment has occurred and it resulted from LEM's protected activity. Her supervisor, Smyers, told her to " keep a low profile" and I interpret that comment not as being harassment by Smyers, but rather as an indication of the company attitude toward her during this period.
Fourthly, LEM is required to establish that the harassment effected a term, condition or privilege of employment. An actionable hostile work environment claim requires a showing by the complainant that the harassment was severe enough to interfere with LEM's ability to work effectively, thus creating an abusive or hostile working environment. The hostility which existed during the one year period extending from September of 1989 to September of 1990 had begun to develop prior to that twelve month period. The record contains evidence as background relating to LEM's activities concerning the emergency lighting proble.as which date back to the latter part of 1985. I find compelling the testimony of Ramsey that some data provided him by APS was not accurate. He felt uncomfortable with this informa-tien because he knew it was wrong. Something is amiss here.
There is a cancer growing which if allowed to continue could become catastrophic. The Walter Marsh memorandum was issued in January of 1989 which was critical of complaining employees, and there is evidence that LEM met with Ballard in April of 1989 concerning safety concerns with respect to the QA Hotline. I suspect that her reputation as a whistleblower had long preceded her prior to September of 1989.
The test under this section may be satisfied by a showing that the harassment was sufficiently severe or persistent to seriously effect LEM's psychological well-being. Sparks v. Pilot
42 -
rreicht carriers, Inc, 830 F.2d 1554 (11th Cir. 1987). This is a 4 question to ce determined with regard to the totality of the circumstances. Henson v. City of Dundee, 682 F.2d B97 (11th Cir.
This recoro does contain evidence that LEM visited a 1982).
psychologist in October of 1990. Although that visit came after the Tim Hall incident, I think it is evidence of her mental frame as of September 18, 1990. There is evidence in the record that LEM refrained from going to the separate units by herself after February of 1990. At that time, she was concerned for her personal safety. Conway was made aware in late February or early March of 1990 about LEM having expressed concern for her personal safety. T. H. Cogburn and Sowers met with her on March 5, 1990 to discuss her concerns relative to her personal safety.
Although many of the comments that she may have received came to her second hand, none-the-less, her awareness was raised as to potential safety concerns existing. The Tim Hall incident which frightened her, and justifiably so, represented the culmination of a series of events which made the atmosphere in her work place hostile. In weighing the totality of the evidence under this i standard, I believe that LEM has demonstrated that she encoun-cered a work atmosphere in which the harassing conduct was
~
so severn or pervasive that a reasonable nuclear power plant
- worker would have believed that it stifled her liberty to raise safety concerns and thus altered the terms, conditions or privileges of her e..iployment.
Finally, it is also incumbent upon LEM to establish that the Employer knew or should have known of the harassment and failed to take prompt, effective remedial action. This case is inter-esting because it presents facts demonstrating harassment by both co-workers and management. As was noted earlier, the atmosphere toward LEM at APS during this twelve month period was ugly. Management was aware of that atmosphere. Ballard had met with LEM in April of 1989 because of her safety concerns. She again met in March of 1990 with Sowers and Cogburn for the same reason. The remedies effectuated by management should have been reasonably calculated to end the harassment. Katz v. Dole, 709 F.2d 251 (4th Cir. 1983); Ellison v. Brady, 924 F.2d 872 (9th Cir. 1991). When harassment pervades the workplace, or is condoned by supervisory personnel, it becomes illegal and a discriminatory condition of employment that poisons the work environment. Katz v. Dole, supra. The Employer's remedy should have persuaded individual harassers to discontinue unlawful conduct even though dismissal may not have been warranted. The penalties should have been sufficient to assure a work place which was free from the harassment. Blaine Ballard was the Director of Quality Assurance. He was directly involved with the Employee Concerns Program and the QA Hotline. His example should have been impeccable. Although the Ballard incident in which he referred to LEM as a " bitch" was investigated by management, that action was wholly inadequato and did not serve to set a proper example for other employees. Conway testified that he gave
l l
. l Ballard a verbal lashing but that was simply not enough considering the volatile circumstances that existed.
The record shows that the company and Conway, in particular, had in place series of written memoranda which expressed APS' position with regard to the harassment of whistleblowers. As compelling as the written memoranda may be, the testimony of the powers that be at APS indicated to me that there existed a serious communication problem within the company and I attribute a part of the harassment attitude to that problem.
Conway issued a memorandum on safety on September 21, 1989 probably as a result of the Ballard incident, but basically that memorandum was too little too late. With all of the problems being experienced by the PV facility in regard to each of the reactors during the twelve month period involved in this case, I would have expected management to assume a more pronounced position in regard to protecting those individuals who exercise their right to express safety concerns. I find no fault with the way in which the "im Hall incident was handled and resolved by management. There is testimony that management was aware that there existed a feeling among the workers at PV that.LEM was being held responsible for keeping the units shut down as a result of emergency-lighting problems. If that attitude was prevalent, management had an obligation to address it in a much more vocal way. The company investigation of circumstances which gave rise.to LEM meeting with cogburn and. Sowers in March of 1990 was also wholly inadequate. The investigator did not seek to determine the identity of.the: person or persons who made any of the alleged threats against LEM. Although there is evidence of a company complaint procedure and a policy against discrimination, I suspect that due to the communication problems which existed within APS-during this period, that some ccmplaints were not properly investigated and the overall hostile attitude problem was never addressed. The record is clear.that APS knew of the harassment of_ LEM during this tone year period and failed to take prompt; affectivelor remedial action to stop it..
In view of the above findings, Complainant has established a prima facie case of discrimination against her based upon the presence of a hostile work environment. We must draw a fine line between the need under the law to foster openness in the workplace as to the NRC for safety purposes and the need to follow some internal organizational procedures for voicing -
concerns. APS had NED, Compliance, the LER group and memoranda issued by management.to express the safety concerns and to define the guidelines. But better organization in coordinating these activities was needed. Conway recognized the severity of the problems that existed when he arrived in May of 1989. He
' acknowledged that APS did not do very well in the areas of problem resolution and communication. He attempted to implement an open door policy and positive attitude development. However,
I reversing an entrenched policy of inaction or denial of existing problems could not be accomplished overnight. I do not fault Conway for the attitudes which have given rise to the violations here. Respondents have not rebutted Complainants evidence establishing discrimination in this case.
I must now consider whether a continuing violation has l occurred based upon the law as stated earlier. I find that the I identity of the subject matter is the same with respect to all of ,
these incidents. Each of the incidents relate to some activity l which was caused by the pervasive negative attitude toward LEM which was present at PV, The Tim Hall incident was a subtle reminder that her protected activities were unappreciated. The Blaine Ballard incident was provoked by the same activity.
Harassment based upon the rer. oval of information which she had provided to the tiRC also arjse as a result of her protected activity. Her numerous meetings with management concerning safety cor.cerns were all directly related te her concern for safety at the plant. I find there exists an identity of subject matter during this twelve month period.
Also, I do not view these activities as being sporadic in nature but rather there is a pattern to them. That pattern developed as a result of the pervasive nature of the atmosphere at the plant toward LEM. This series of discriminatory acts coupled with management's inadvertence in dealing with the problem causes them to be recurring. Finally, the incidents involved in this case lack the quality of permanence which could have placed LEM on notice and created a duty on her part to file her claim at an' earlier date. As was noted in the evaluation discussion, LEM was not denied promotions nor was her pay interrupted in any way during these periods. The discrimination involved in this case was subtle and although the incidents are clearly related due to che pervasiveness of the discriminatory atmosphere that persisted at PV, I find that none of these incidents should have alerted LEM that a complaint should have been flied. The Tim Hall incident basically represents the icing on the cake. At that point, she was frightened, concerned for her personal safety and needed to take some action. The acts involved here were not of a permanent nature but rather served to perpetuate the scheme of discrimination that preceded her complaint filing.
In view of the findings in this regard, I conclude that LEM has established that a continuing violation occurred. Therefore, each of the events extending from September 14, 1989 through September 18, 1990 should be considered in determining whether LEM was discriminated against as the result of the presence of a hostile work environment at the PV facility. She did file her compleint within the statutory period of the last discriminatory act in a course of conduct. Thus, she is allowed to litigate all claims that form a part of the continuing violation.
DAMAGES .
Since LEM has prevailed on the hostile work environment issue, t + is entitled to damages. The law provides the f o l l e .. /.t. tmedies:
- 1. o abatement of the discrimination;
- 2. Rastoration of an employee to her job with all Letendant benefits, _ including backpay;
- 3. An award of compensatory damages; and
- 4. All reasonable expenses incurred in pursuit of the claim.
Deford v. Secretary of Labor, 700 F.2d 281 (6th Cir. 1983); 29 C.F.R. Section 24.6(b) (3) . Since LEM did not lose her position at APS, she is not entitled to backpay.
In her petition, LEM requests the following remedies:
- a. To have her 1990 EPA ratings restored to those received in her 1989 EPA and to have her 1990 EPA expunged;-
- b. One million dollars in compensatory damages;
- c. That APS be ordered to inform its employees not to harass, intimidate, retaliate, or threaten LEM;
- d. Reasonable attorn9y foes and costs;
- e. To order the Respondents to take' affirmative action to abate the harassment c4 .hreats against LEM; and
- f. Any further relief as deemed appropriate.
Concerning these requests, Item (a) can not be granted since LEM did not prevail on the evaluation issue.-
The request for one million dollars in-compensatory damages is totally unreasonable and out-of-line with all precedent in this area. In non-discharge discrimination cases, an award of approximately $40,000 to $50,000 appears to be' appropriate.
Forty-thousand dollars was awarded for emotional distress in Fleming v. County of Kane State of Ill., B98 F.2d 553 (7th Cir.
1990). In Wulf v. City of Wichita, 883 F.2d 842 (10th Cir. 1989)
S50,000 was awarded where the Complainant was under emotional strain and experienced significant financial difficulties.
Fifty-two thousand dollars was found reasonable for emotional
distress and suffering in the case of Muldrew v. Anheuser-Busch, Inc., 728 F.2d 989 (8th Cir. 1984). However, that was a discharge case.
LEM offers as evidence of the emotional' distress that she has suffered each of the following items:
Relationships with co-workers have deteriorated; She became upset and nervous over the warnings that she keep a low profiles She has become physically ill and nervous over several of the incidents involved; Dr. Wilson has indicated that she responded like someone who has been severely threatened, and it was his opinion that she suffers from post traumatic stress disorder. Complainant contends that she is less involved in life, that work is a serious problematic life event for.her, that she has less enjoyment for food and sex, that she has a sleep disorder and that she has trouble remembering events and finds it difficult to concentrate. .The record shows that she has suffered emotional pain and suffering, mental anguish, emotional distress, and her prof -'tenal reputation has been damaged as a direct 7- :L . of the discrimination established in this catr.,
In view of 1e above, I concluded that LEM is entitled to $50,000 in compensatory damages. Punitive damages are not included as a remedy available under the Energy Reorganization Act. Norris v. Lumbermen's Mutual Casualty Co., 681 F.2d 1144 (1st Cir. 1989).
ATTORNEY FEES AND COSTS Attorney fees which are reasonably incurred by Complainant in connection with bringing the complaint upon which the order was issued will be awarded. Deford v. Secretary of Labor; 42 U.S.C.
Section 5851(b) (2) (B) . A reasonable fee is not necessarily that agreed to by the Complainant and her counsel. Blanchard v.
Bergeron, 489 U.S. 87 (1989);- Blackburn v. Metric Constructors, Inc., 86-ERA-4 (Sec'y October 30, 1991.
Factors to be considered in awarding fees are:
- 1. Time and labor required;
- 2. Customary feet
- 3. Novelty and difficulty of the questions;
- 4. The skill requisite to perform the legal service properly;
j u
48'- c; Emade upon the Respondents and Complainant;must accompany i 7the '
, - application. Each-other party:will then'have-fifteen' days following. receipt of.the: application within which3to. file <
objections.
,W, .
M RUDOLF L. EN--
Administr iv L udge 1 In this decision, "JX" refers to the Joint Exhibits,'"CX" refers to Complainant Exhibits, "RX" refersito the. Respondenti Exhibits, and "Tr." refers to the Transcript of Hearing. The' a transcript of testimony heard in the afternoon.;of July;8, 1991?is:
not paginated to conform with the other volumes of the transcript. The transcript"was prepared by. Holiday & Associates-' .
. and will be referred; to -as: Holiday Tr.
2 Attached as Exhibit'A is an APS Organizational Chart. ~The chartflists the positions held by individuals.who were involved-in one way or;another-'with the events giving rise toithe! -
- complaint being; filed by LEM.
1 4
0
'?
e
, ii Yb4 3 4 1( 4 y -- .-,h -am y- 1 r-
- 5. Preclusion of other employment by the attorney due to acceptance of the case;
- 6. Limitations imposed by the client or the legal circumstances. Priority work that delays the lawyer's other legal work -is entitled to some premium; 7 Amount involved and the results obtained;
- 8. Experience, reputation, and ability of the attorney;
- 9. " Undesirability" of the case;
- 10. Awards in similar cases;
- 11. Whether the fee is fixed or contingent; and
- 12. Nature and length of the professional relationship with the client. -
Johnson v. Georgia Highway ExDress, Inc., 488 F.2d 714, 718 (5th Cir. 1974). .
In addition, litigation costs and expenses are also reimburseable including monies reasonably spent in pursuing the cause of action. Goldstein v. Ebasco Constructors, Inc. No.
86-ERA-36 (May 17, 1968). This includes lodging, paralegal expenses, and the Complainant's transportation expenses to and-fron the hearing.
ORDER Accordingly, IT IS ORDERED that:
- 1. Respondents pay to Complainant compensatory _
damages'in the amount of $50,000 in compensation for distress suffered as a result of the harassment and discrimination endured.
- 2. Take affirmative action to! cease and desist from any discrimination against Complainant including acts to harass, intimidate, retaliate against, or threaten her.
- 3. Inform all employees-that they are to cease and desist from any discrimination against Complainant including any acts to harass, intimidate,.
retaliate against, or threaten her. This company statement is to be released only with the full participation and consent of Complainant.
- 4. Pay to Complainant, all costs and expenses, including reasonable attorney fees incurred by her in connection with this proceeding.
Counsel for Complainant will have thirty days from the date of this Order in which to submit an application for attorney fees and expenses reasonably incurred in connection with this proceeding. A service sheet showing that proper service has been l
l l
_ --Nuclect >
William F.'Conway; i
-Executive VP j
- Nuclear = Production- Quality. Assurance 4 James'M.-Levine Ballard E. Blaine .
Vice President- Director Nuclear Prod OPS- Site Tech Support
- Gregg R. Overbeck Walter C.-Marsh Director Director.
1 Unit 3-Plant Oswald Zeringue Manager Tecnnical Support . Systems-Engineer .
Thomas-M. Cogburn Jeffrey.S. Summy:
Deputy Director- Manager:
, Electrical System BOP Mechanical- System -
3 Daniel;W. Sayerse-
-Kerry _M.: Johnson' .i Supervisor <' supervisor Lead Electrical Eng James Samuels 5
Systems = Engineer Systema _. Engineer
-Tim Hall- Linda ~E.-Mitchell' APS ORGANIZATIONAL CHART January, 1989
~
_ July,.1990~
(JX;44, 46-48; RX 1,.-P. 126)'
EXHIBIT-A.
, . . :. . . .: - - , . - . . - . - . = - -. . . . .. - , . . - . - - - -
SERVICE SHEET Case No 92-ERA-9 Case Name Linda E. Mitchell Title of Document: RECOMMENDED DECISION AND ORDER A copy of the above document was sent to the following:
District Director Linda E. Mitchell U.S. Department of Labor c/o David K. Colapinto, Esq.
Employment Standards Admin. Kohn, Kohn & Colapinto, P.C.
Wage and Hour Division 517 Florida Avenue, N.W.
3221 North 16th Street, #301 Washington, DC 20001 Phoenix, Arizona 85016 David K. Colapinto, Esq.
Monica Gallagher Kohn, Kohn & Colapinto, P.C.
Associate Solicitor 517 Florida Avenue, N.W.
U.S. Department of Labor Washington, DC 20001 Office of the Solicitor Division of Fair Labor Standards Alice L. Bendheim, P.C.
Room N-2716 1542 West McDowell Rd.
200 Constitution Avenue, N.W. Phoenix, AZ 85007 Washington, DC 20210 Steve C. Thornton, Esq.
Administrator Snell and Wilmer Wage and Hour Division One Arizona Center Employment Standards Admin. Phoenix, AZ 85004-0001 U.S. Department of Labor Room S-3502, PPB USNRC 200 Constitution Ave., N.W. 1450 Maria Lane Washington, DC 20210 Suite 210 Walnut Creek, CA 94596 Cornelius Donoghue Deputy Associate Solicitor George H..Lyons U.S._ Department of Labor One Arizona Center Room N-2620, FPB Phoenix, A%. 85004-0001
-200 Constitution Avenue, ILW.
Washington, DC 20210 Director Office of Enforcement Environmental Protection Agency U.S. Nuclear Regulatory Commissior 401 M Street, S.W. Wasington, D.C. 20555 Washington, DC 20460 Deputy Assistant General
, Arizona Public Service Company / _ Counsel For~ Enforcement Palo Verde Nuclear Generating Station Office of the General Counsel P. O. Box 53999 U.S. Nuclear Regulatory _ Commissio:
Phoenix, Arizona 85072-3999 Washington, D.C. 20555
' U.E Department of Labor - ona. o 4 vam i . u .. .. .
+
21t Men street sm 600 %
5en Francisco, Camems 84105 - %
s
/
- Commercial-(415) 974-0514' Suite 600 '" '
. Government 8-454-0514 DATE: A CASE NO.'pt 13 1989 ERA-19
~
IN THE MATTER OF SARAH THOMAS Complainant V.
ARIZONA PUBLIC SERVICE CO.,
Respondent Appearances Stephen M. Kohn, Esq.
Michael D. Kohn,. Esq.
- 526 U Street, NW Washington, D.C. 20001 For the Claimant Janice-Harrison Moore, Esq.
Arizona Public Service Co.
P. O. Box 53999 '
Phoenix, A2- 85072-3999 Before: Thomas Schneider- .
Administrative Law Judge RECOMMENDED DECISION AND ORDER l This case arises under 5210 of the Energy Reorganization Act of
!. 1974 (the Act), 42 USC 55851, the Employee Protection,~or.
"whistleblower," provisions, and the implementing _ regulations in 29-CFR Part 24. A trial was held in Phoenix, Arizona, on February; 28
.cnd March 1 and 2,'1989. Both parties appeared with counsel.
Timeliness l
On October 21,_ 1988: Complainant-(" Thomas") mailed a letter, L certified' mail, return receipt requested, to the Office of the Administrator of the Wage and Hour-Division, Employment Standards-Administration, U.S. Department of Labor, complaining against the-respondent employer for -the following reasons:
l l
t
-3
- 1. Withdrawal of LLRT certifications.
- 2. Failure to promote.
- 3. Harassment"on the job.
- 4. Back vages.
(CX 32.1 /) d the This prgcedure constituted a filing of a complaint un erIf a Act. 524.3.4/ occurred within thirty daysAs discrimination ofdescribed the filingbelow, of theI the filing is timely. 524.3(b).
complaint the withdrawal of LLRT certifications find that The complaintonwas September therefore29, 1988 constituted discrimination. on DOL Form WH-3 dwas dated k 12/2/88 by the timely. Another document ( ALJ 2 )
and apparently was the basis of the investigation un erta enIt does not serve Wage and Hour Division (ALJ 1).
earlier complaint.
Substantive issues six items establish a prima facie case of It has been said that discrimination under the whistleblower statutes: l r 1) that the party charged with discrimination is an emp oye subject to the Act; the complainant was an employee under the Act;
- 2) that i
3) that the complaining employee was discriminated aga nst with respect to a condition of employment; 4) that the employee engaged in protected activity; the employee the employer knew or had knowledge that
- 5) that and engaged in protected activity; least
- 6) that the discrimination was retaliation, motivated, at in part, by the employee's engaging in protected activity.
Stephen Kohn, Protectina Environmental & NuclearA Litigat "Whistleblowers:
and Resource Service - Government Accountability Project (1985), p. 17.
t respondent's, RX;
- 1. Complainant's exhibits are designated CX;TR refers to the transcript by Administrative Law Judge's, ALJ.
page.
- 2. Section references are to 29 CFR.
In this' case there li no question.that theNuclear. respondent,-ArizonaGenerating _
~
Public Service (APS) operates;the Palo: Verde:
Station, and; is; aniemployer under the Act;and that! the; ' The complainant other-
'is _ an employee 'and Lwas such at all relevant- times.
- olements areJthe ones litigated here.
Background
r Sarah Thomas testified that sheD is 41 years told,..has been. '
parried for 19 years, and -has two children aged L 15- and 12. (TR147.)
She moved ~ to Phoenix when her husband was transferred there .in--
1981. (TR 52. ) She worked for in a1983 timewas - for hired si contractor directly at by' thethe. Palo Verde Nuclear Power Plant andl respondent as a radiation waste aide. . (TR 54-55. ) ~ She . bid c for1984.- and.
got the job of " Engineering Technician.- Nuclear":on June-6, (TR 35. ) One of the reasons she - wanted the. job'in Engineering was that it very rarely required night shif t work, in contrast- to the radiation waste work which called for night shift work regularly.
(TR 56.)_She disliked night shift work because of her family ,
responsibilities.
' As an engineering technician she nderworked:with the supervision an engineer:by of Ronald the
-name of Gary Irick ("Irijck"-)=agd ries of- employee performance -
Kropp ("Kropp").- Th three s
- Kr pp:(EX16, 7, 8) for each of=the first z
appraisal filled-outtwo-and-a-half years-of her; employment =in engineering: rated he
" superior" on-a scale thatjwent down.from "toexceptional" to " acceptable" " marginal."'toThere _ was
~
" superior" to " competent" testimony from another supervisor that he only' ra ;
seven employees " exceptional." (TR-624.-)
In addition to the overall' ratingiof " superior," the appraisals included highly complimentaryf comments such f as "Her : files / proved to-be invaluable."~" Shen cted independently with the: Licensing "Overall,dept.Lto:
Sarah-- '
close out items'.. 4 two months-ahead of' schedule'."
isihardworking, inte111 -Her gent,7and strongapointiis:
fastelearner. LShe requires that Eshe= stick (sic),with minimum-supervision.
p a-job until'its done." -
(CX 6.)_
"Very helpful during the program development--... She'became= ' ~
l very knowledgable of- the computer programs' on TSO and in .
to disposition-many of the control room concerns-without engineering:
assistance. .. . She interf aces L well with all engineering- personneli and otheridepts. She'is-currently training =the Engineering Aide;to take over this. responsibility. ..'.iSarahlhas trained the' Aide sufficiently;to permit:the Aide tofindependently: work on the' IBM-PC-to enter datai and ; assist the engineers as needed . . ...her performancej of action' as a data taker, Jor' lead : technician' of a procedure readfly accepts" responsibility and performs 'in ' a superior. manner..
6 i
e v -, .--
[ A. mv , ,e-- ,-r - , ,, ~w,w ,=-,,+,--m. ,m . 5 . = E- . . 5 J e- ,
^
' ' 4 She excells- (sic) . at ; testing and data' works management--andX11kes wollt with: all the engineers to get __ _ _
out: in thel fieldf and test. iShescnd noted: '
interfaces;well with other departm .
.* career development plan
- Kropp ? fully diversify;and needs~to' work ,
XI, Snubbers and LLRT testing. tof the technical basis for the testing.
5with engineers- and learn more o programs"_(CX 7.)-
In requesting a salary increase for ThomasLin 1985, Kropp (CX SF TR 63.).
wrote *She gives 150% to her job."
c In short, until the Fall of 1986, the middle of her third '
i} There was evidence that performance appraisals are truthfu
. (Tr_625.)_
k aken seriously by supervisory personnel.
t The events leading up to.the= activity!that; complainant contends is protected activity began in the Fall of 1986. ,
Complainant's job was part of so-called Section.XI-testing.
Section XI refers to a section ofValve the regulations-that
_ stroke times indicate the governs -
testing of valve stroke times. _ Valves are essential to the speed with which valves open and close.
safe critical.
operation of the plant and their proper functioning isValves are. -
When a valve's stroke times show a-certain dearadation the valve must then be tested every 30- days.' It is obvious that recorded.
such testing has significant safety implications.
ALLEGED PROTECTED ACTIVITY In discussing the two controversies that are the focus itois of the not-alleged protected -activities, it must be remembered that '
my function;to_ determine whether complainant's positionion-a..An-activity.is ~
j protec technical matter is correct.in any: manner ...:in any act on to carry i part of purposes "particip[(ation) . of : the Act) ." 524.2(b)(3).; .A good faith or out the
+
-reasonable belief that-a problem related!to the'Act exists:is-
" The merits of a charge made against an employer"is.
sufficient. to its protected status."' Womack v. Munson;: 619' F.2d irrelevant 1292, 1298'(8th Cir. 1980.)-Respondent-does:not question Thomas' - -
good-falth. (TR 37.)
TSO-PC Controversy
.The first; cluster.of events involves the.TSO-PC controversy.
Until;;the falls of 1986 the'. valve data .was tracked on a' mainf rame computer, referred to as TSO (Time Sharing Option) . _. - He' At wrote that -atimei Supervisor Kropp had : installed . an IBM' PC ; computer. ~
Thomas'and-program for the.-PC to track the' data (TR .78,ItJwould'~
~
434, -559).. e
.a b
4 e w w N
- v- ~E+
y - -g gr -p % ve-*,.,-tev=g'*** ---w e A-@se *-e we w-vr"c*-a**'a 'wwave'-+-v*rr s--er= ewe'- 's in = au -- ne v -re-v- amm- - - - - v-e= +=- -'e--**8--m
. : l
~ -
. 5 c q
+
j Mometimes.loseidat'a: Tit did rsot'-easily display previous valve stroke -
I itimes -input was. slow;1andilt' failed to-disclose defects:that'it--
t chould have' caught.: (TRi 78-80, - .272. ) - Kropp; testified 1that the PC 2 worked well,-but that-ThomasJand11 rick refused to learn-the- -
j program.- (TR 366.) Tom-Weber,:the-lead: engineer, shared that . a epinion.- J(TR 500-501,: 618.)J Irick> testified that Kropp;had pride of- ;
- authorshiVi n the'PC program and did1notLwant to1believe:it'didn't- ;
work. (TR 274.) Thomas insisted.that she did her best?and knew perfectly well how to operate the PC. _( TR_684.)
In'any event, Irick and Thomas met with Kropp on October-8,-
1986 to discuss the-problem and again on November.25. On December 2 .
Kropp instructed them no longer to use the old TSO system-and to use. !
the PC exclusively, although Thomas and Trick reiterated their -
cbjections. (TR 77,:82, 271,.368: CK 9.) >
On February 18, 1987 Irick, Thomas and;an engineer from another-
-(surveillaneettracking) <
group were discussing problems with "S.T."Kropp case in during this packages produced with tho'PC computer. >
- discussion and, according to credible testimony, became -very : angry and told Thomas and Irick "to-throwAs 5.T. packages-in complainant understood the garbage"':if:
this they were not properly completed.
remark,'it would violate regulations,-in..that it called for, destroying documents that were required to be kept (TR 175),.that w ere not,blan M (TR 646.) According..to Kropp, all?he meant;was tol (TR 373. ) ..But he: was " upset" when Thomas zdestroy blank ~ documents; failed "to clear-the control room out.";(TR1372.):Six months 21 ster, in a meeting with Thomas and Mr.;Rodrigues;from Personnel', Kropp -
c cpologized to Thomas for having: raised his' voice'at her.in
^
R February. (TR 375.')
h
.In any event,.Irick and Thomas were disturbed by!Kropp'.sfremark -
R and'immediately went to see Gerald Sowers,-Kropp's-supervisor.-
r 4 L
Sowers told them to~ resume use.of:theLTSO'and to feed ittthe data
-thatihad only.been fed into the.PC. (TR^ 86,f 276 7 -.CK .9. )o Complainant .
L contends thae this appeal to-Sowers was one:instanceiof protected; _ -
activity. Kropp_ referred to-this; appeal to Sowers;asJ"goingibehind.
- my back." (TR 369.}"He: testified,he was--" hurt" ratherethan-angry.-
.(TR 371, 374.) I Sowers did not testify, but?there.wa'sl evidence that the.' primary '
a
. reason for' ordering the=use:of-the TSO-was-that'italdata'were: L(TR-j ' accessible to more people in the facility than the._PC'sidata'. y
- 619, 685.)' .
1 . - - ,
Complainant 7immediately; By March began to feed the-data into TSOEasz31,1198 instructed"by; Unit 1. Sowers.-(The Palo Verde, facility has 3funits'.)-JIn: completing this:
task, complainant founds that three valves:'which :had:been cleared ._by ~ '
i the PC programtactually-required:being'put on a:30' day 1 testing:In other wo schedule. . (TR 80,;90.)
had discovered defects, which~ reflected' violations of regulations,-
.i L = n e,+ y v+,-mw--r+ .-,%..r.r.-.c..w.e m.,m s ,.w . er+s+,-#s.-,.m ---+-rw4c.me.-w .~.m.-.-w_-. w.,w-.*~6,r.n,a-.h -.+e-<
the PC. Irick and Thomas that she had not discovered by using (TR 91.) Kropp told them to reported this problem to Kropp.
" engineer it away." (CX 9; TR 92.) Irick and complainant understood this order to mean that they should (TR go over the work carefully to 92, 178.) Finding no cee if they had made any mistakes.
mistakes, they again met with Sowers. He told them to write a PRO (Potentially Reportable Occurrence) immediately, which they did.
(CX 9, CX 10.) A PRO is a document that must be filed if a problem comes up that may indicate a violation of a regulation, whether or The significance not further investigation shows an actual problem.
of complainant's testimony is that Kropp should have told her to write a PRO, but that he did not want a PRO filed, and that Sowers (TR 93-94, 255.)
again overruled his subordinate, Kropp.
Thomas testified that Kropp was "very livid" and upset when he found out that Irick and Thomas had again gone to Sowers. (TR 94.)
Irick described it as Kropp's "just incredible outward show of enger." (TR 281.)
After the PRO was filed the matter was further investigated and a so-called LER (Licensee Event Report) (CX 11) was filed with the NRC on April 27, 1987. It was prepared on the basis of the PRO written by Thomas and Irick and with input from Kropp and others, but the final version was not seen by complainant or Irfck before it was filed. (TR 100.) In their view the LER did not accurately state who and what was responsible for the incident. It blamed "a cognitive personnel error by the test engineer,"-(that would be Irick) rather than Kropp's failure to heed Thomas' and Irick's complaints (TR 101), and three other similar statements (TR 101-103) which counsel referred to as " massaging the language" (TR 379) to deflect the blame. Complainant called this to the attention of 1987. (CX 9).
Kropp's supervisor in a memo dated May 6, Complainant and Irick decided that they need not call this LER incident to the attention of the NRC (TR 330), but had performed their duty by calling it to the attention of management. (TR 171, 340.)
Date of valve review The second cluster of events alleged As to be protected activity mentioned, valves have revolves around the date of valve review.
to be tested regularly, at 90 day or 30 day intervals, with a 25%
leeway. If valves are tested individually it is clear when the However, in 1986 valves were scheduled for period begins testing in groupstto run.and the testing period could extend for as long as six weeks. All valves in the groupIn that passed the test were this way it was possible for a then accepted on the same day.
valve that was " exercised" (tested) at the beginning of a six week schedule, to be accepted six weeks later, and to then be scheduled for retesting 30 or 90 days from the date of acceptance, which would
I be more than 30 or 90 days from the date it was exercised. (TR 268-269.) Since the APS procedure was to calculate the next scheduled test on the basis of the date of acceptance, complainant was concerned that some valves would be tested less frequently than required by regulation. (TR 72-75.) !
Complainant testifiedinstructed that she discussed this matter with Kropp to use the acceptance review in October 1986, and was date. (TR 75.) She also testified that she raised this concern with an on-site inspector from the NRC (Nuclear Regulatory Commission.)
(TR 76, 96-97.) The NRC did investigate this concern, and Kropp was aware of the investigation. (TR 356, 361; RX 4, p. It CX 12.)
Although Kropp denied knowledge that Thomas had complained to the NRC (TR 405 ) he admitted that Thomas (TR and 431.)
Irick had discussed And he knew the that valve review date question with him.
Jay Ball of the NRC was also concerned about this question. (RX 4.)
He further testified that the question had never been raised before Thomas and Irick raised it. (TR 352.) I therefore infer that Kropp believed that Thomas had raised the question with the NRC.
Thomas and Irick also discussed this concern with Sowers at the same meeting in which they discussed the TSO-PC problem, on Febraary 18, 1987. Sowers instructed them to use the exercise date of the valve. (TR 86.)
Other alleaed protected activity complainant also reported to the NRC that her engineer, Jim Cantrell, her lead engineer, Tom Weber and her supervisor, Kropp, may not be qualified to supervise LLRT technicians because they allegedly have less than the required four years of experience in the discipline of LLRT. (CX 13, TR 647.) She also complained to NRC about being asked to use acceptance procedure that had not been approved. (TR 135-138: CX 13.) Since these activities apparently took place after the last incident of alleged discrimination,I or do not af te.- the complaint was filed with the Department of Labor, consider them further here.
SUPERVISOR RON KROPP'S MOTIVATION AND KNOWLEDGE I find that Thomas embarrassed Kropp repeatedly. She complained to Sowers about Kropp insisting on the exclusive use of l
the PC, about his order to destroy S.T. packages, and about the practice of using acceptance review dates in scheduling tests.
Sowers apparentlyswas generally diplomatic and tried to " keep the family happy" (TR 592), but he unquestionably countermanded Kropp's order about using the PC, and apparently implicitly supported i Thomas' other points.- Sowers further ordered a PRO to be written about an event that Kropp hoped could be " engineered away," which that something went wrong was followed by an LER, which is a reportThe fact that the LER was worded to minimize in Kropp's department.
blame suggests that it is an embarrassing document, l
l 1
- e
As explained, Kropp also knew that Thomas discussed her c:ncerns about valve review dates with the NRC, and this question rcmained an active concern for Kropp as late as March 15, 1988. (RX 4, p. 2.) .
One of the reasons I believe Kropp had a retaliatory motive is bocau'se that is very understandable and human.. Thomas was a mere tochnician with a high school education," attempting to get. an ,
cosociate degree in her spare time. Kropp was an engineer with two epsters' degrees and at least 11 years engineering experience. (RX 2). In these circumstances it was embarrassing and annoying to have hor report what she considered his mistakes to his supervisor and to the NRC, and then to have those people give them serious cansideration and make more work for him.
The discriminatory treatment here was not as egregious as that in many of the reported cases. Thomas was not fired or suspended, or overtly disciplined. In fact, it is to respondent's credit that canagement, as personified by Sowers, responded quickly and docisively to her complaints, and, except for Kropp, appears not to have discriminated against her. But, of course, K nonagement, and his conduct taken as a whole, evid,ropp is part ofthat ences conduct would chill the freedom to bring compi 31nts either to management (cee Ma'ekowiak v. University Nuclear Systems, Inc. , 735 F2d 1159 (9th Cir.1984 ) or to the NRC. This conduct is what-Section 210 of the Act is designed to prevent.
ALLEGED DISCRIMINATORY TREATMENT Complainant felt that Kropp's attitude towards her changed citar she. complained to Sowers. (TR 87.) Before, Kropp had been friendly and communicative. (TR 57-58.) Afterwards he became unfriendly and would avoid any unnecessary conversation. (TR 88, 95, 108. ) Thomas felt she could not talk to him at all. (TR 238.) ,
Irick corroborated this change in attitude. (TR 277.)
This basic change of attitude permeated all subsequent rolations between Thomas and Kropp and manifested itself in several specific instances of discrimination, as well as being generally unpleasant. That attitude continued until af ter the filing of _the
'c:mplaint and is the basis for a claim of continuing discrimination. (TR 669.)
Each of the following. items,,by itself, would not support a finding of discrimination or disparate treatment. Only when view'ed together, when"each'. item is viewed in light of al1~ other items and in light of Kropp's understandable hostility to Thomas does each item appear as an item of discrimination.
The specific instances of discrimination alleged are these: (1)
Complainant was reassigned to LLRT (Local Leak Rate Testing) without 4
i
- i. 1 i level 1
- o foJapecific limitationshe in was;notipromoted terms of; time:orLachievingna certa n (3) to SenioroTechnicient
~
- cf competence;.(2)olthough the claim of discrimination'respecting-Thomas' clack
' promotion' to: associate engineer was dropped, the evidence s ii ,
not disqualifying for the person who was appointed to. the pos t ons '
-(4) Complainant was assigned to be retrained on;the PC for several= -i weeks,- which was demeaning- since she_ did not need Lthe training and j had herself trained the aide ~ who was then assigned to train:hort- -
y and (5).on September 29, 1988 all her certifications for doing?only.
certain tests were suspended, even though she had trouble with one test.
Complainant alleged that she was discriminated: against af ter that as well. For- example, she was denied aiday off to' go'to the Nowever, I shall not consider events af'terf doctor in December 1988.
the complaint was - filed' with the Department, of: Labor on October 21,;,*
~
1988. (CX 32.).
Cross-trainino in LLRT on October 1, 19871Kropp issued a memo reassigning Thomas'from Section XI testing-to LLRT-and reassigning an.LLRT technician,=LarryL Trouy, to Section -XI testing, ;ef fective Januaryc1,c 1988. -(CX 14.)_ '
The reasons given for this reassignment were: * (1): Reduction in department exposure if a member of the LLRT or. Pump.and-Valve: team were to depart. Thora are currently no'back-ups:within ANPP
_[another acronym for respondent) for either Technician position.
[2] Diversification of training :andlesperienceifor both _
Technicians.*-(CX 14. )' As recently as the time; of trial, Kropp +
testified: "The only way I-could surv ve was to have,the three-i technicians under Tom Weber fully. cross trained with LLRT and:
'Section XI." (TR 410.) Yet that rationale is questionable.
For Thomas this reassignmenthmeant;doing1 heavier-work-night shif ts, - being exposed. to' more radiation, etc. (TR 126-t c
- =
- 616.)}!She contends:the motives:for the-reassignmentEwere -
or, Eat best,Jaixed. 'shepoints?outthatnotother=technicanshf 'Jo been-reassigned in this-.way before"or'since;(TRx124,1294'.}i n
- has never been cross-trained i t '
Kern, Janother LLRT ; technician, ion at bid ' sheet ' for - test -
Section XI' testing. (TR.448.)
. technician / senior test Etechnician that' was; posted in? December ?(CX 28.) 1987~-
I-Tlo mention. is made ,of a cross' training requirementi,,nfer that technicians:underthis supervision. '
-Larry Trouy,_whoLwas performingfwelliin-LLRT'has;1 earned:
~
- Section XI and has not:been reassigned back,:even though Thomas is allegedly not qualified;for LLRT,Jand even though Kern has not' beenBefore trained in-Section XI.-
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10-roassignment,fon aniinformal; basis.- (TRL233,1236, 436-437,7 1642-643.)1 Sandra; Henry,=arsenior: technician in;Kropp's department, '
hasinot--been-: trained 11n either LLRT or-Section'XI.; -(TR.111-112.): 1 An " outage" occurs when atunit is-shut'down,1usuallyLfor__
rofuelling. Much'maintenanceland testing 11sidone:during outages. . .
=For the outage scheduled for April 1989, allithe-LLRT technicians'-
work will ~be done by outside: contractors. (TR 128,?293,E450.) The ;
inp11 cation is,3 and I find,. that the back-ups mentioned inL thei Kropp como are not needed.
Complainant ecatends that from the viewpoint of overall' plant safaty and proper functioning the transfer makes no'sensei -Before the transfer Thomas was doing superior work in~ Section'XI , testing _
cnd Trouy was apparently happy in LLRT. After the; transfer Thomas- -
wes not doing nearly as well. - There was some evidence that Trouy -
wcs not doing perfectly =in-LLRT. (TRi295-297.). Why not-move Thomas:
back to wheret she'was-doing so well,1 and wasjhappy?- Ifithis were~ ant icolated-incident, or if I did noti find thatL Kropp' had : strong discriminatory' motives (kee above, pp. ' 7-8) I'would consider the -
roassignement a rational management decision which ILshould.not cocond guess. But inLthe whole context of this case Io am, persuaded that Krope was motivated, at least in- part, by;a desire - to give .
Thomas a dirtier job, or at least, not - to havei her- back L in Section XI-where-she embarrassed him significantly.
Not only wasLLLRT more -disagreeable work than Section -XI, ~ but Thomas was-transferred to it without being told a time when the-transfer might end.- She asked whetherLit was-temporaryJor -
parmanent, but was_not given an answer.,-(TR 237,~410.)
Fa'ilure to promote to Senior Technician- '
-The engineer who worked most closely withiThomas incSection XIx ,
was Gary.Irick.: He knew her work.- In Spring 1987'he'thoughtLthat-she was a' Senior Technician. -(TR 120,.287.) Apparently, so did'Ms.-
Robinson,: a woman c from Personnel whom: complainant _ consulted.- (TR
~
-120, 184=.) fin--fact,--Irick'had;enough confidencetin ThomasEto-haveL har be-the person for others to' consult when he was not:available.
- _(TR 120-121, 266.)- Tom' Weber, the leed engineer.1 testified that .he
, .did-not-know<of this arrangement (TR: 544 ),1 butL IJ eredit : complainant when she . testified that he must .have. known. 8(TR -672-673. ) Irick o'
- cuggested that she = apply for the position of: associate ! engineer,-
- which' would ~ have been -the nextl step up; from Seni D r: Technician. - (TRL 288. ); She did { apply, and was ranked .fif th' cut ot1 seventeen-applicants.- (TR 384. ) This fact 'alon* Esupports, the : proposition: that- '
che was well- qualified ~ to be a senior Technician, a step,below e -ossociate engineer. (TR 640-641.)
t y J v y r-- y-- wyv p e~w o ne s- > -v+ e-tb1-m w -*,re.,gwa,.wrw-- m+ sese.=-se----E-w~.*=-wa-- ----- +-- - - - - - - - - - - - - - - ' '
Kropp testified that Thomas was not yet qualified to be a
~
Senior Technician because she lacked initiative, diversification, competence, willingness to work overtime, and similar intangibles.
(TR 385, 400.)'This testimony is suspect because Kropp had attributed these very qualities to her in 1985 and 1986, before the protected activities. (CX 5, 6, 7.) Kropp also said (TR Thomas had done 401.) This no physical testing before her tratisfer to LLRT.
was not correct. (TR 642-643.) Thomas testified that she had more education and experience than any other technician on site. (TR 109, 187.)
There was uncontradicted testimony that Sandra Henry, a senior technician under Kropp's supervision, was less qualified than Thomas. (TR 111-112, 189, 290, 456-457.) Kropp testified that she was already a Senior Technician when he took over. (TR 348.) The implication is that since Kropp did not promote Henry he did not discriminate by not promoting Thomas.
It is difficult to label a failure to promote as discriminatory, just as, (in the words of the playwright, Athol But, by Fugard) it is impossible to name the day a drought began.
the time complainant clearly asked to be promoted, in a meeting in October 1987 with her, Kropp and Mr. Rodriguez from Personnel (TR 384), Kropp was angry, or hurt, or cold vis-a-vis complainant. I t.
is a reasonable inference that, absent Thomas' protected activity, i.e., embarrassing Kropp before his supervisors, she would have been granted the promotion to Senior Technician by October 1987.
Absenteeism Thomas applied for the position of Associate Engineer, was ranked 5 out of 17, and therefore did not get the job. (TR 384.) At one point she alleged that the failure to give her the job was discrimination but she withdrew this claim at trial. (TR 180.)
However, in discussing the " matrix" (a form for evaluating applicants for a position) prepared for Thomas and the one prepared for Mr. Raf ferty, the person who was chosen for the position, Kropp revealed actual discrimination.
RX 5 is the matrix for Thomas. CX 41 is the matrix for Rafferty. Both matrixes show a minus sign (-) for the line labeled
" attendance." Kropp,..when questioned about the minus sign on Thomas' matrix, testified that it meant that Thomas was disqualified on the ground of her absenteeism. (TR 425.) Be was then shown Raf ferty's matrix, and he attempted to explain the significance (TR 428.)
differently.
I find that Kropp judged complainant's absenteeism to be disqualifying, but judged Raf ferty's .relatively similar absenteeism record not to be disqualifying.
! Training-on the-PC
~
On october 7, ,1987 Kropp directed . that Thomas be trained on the -
IBM-PC. He. wrote a' follow up memo on November 1 5, 1987h because,-
apparently, nothing had happened in response to the first: memo.. (CX
-23.)'The program required'2' hours of supervisedotraining.per= week: r for-four weeks, with.10 hours1.157407e-4 days <br />0.00278 hours <br />1.653439e-5 weeks <br />3.805e-6 months <br /> of practice and-actual data input the last week. Thomas testified that these requirements' were silly for She knew how to do all the: things required,Lhad
. hor and demeaning. .
done them for a long time,: and was to be trained by the Aide she had "
i trained on the.same equipment. . (TR 658-661;! CX 7 (16) ,- CX 23. )'
Nothing:in the record' explains this except a retaliatory motive.
Withdrawal of certifications on september 29, 1988 Kropp issued a memorandum-notifying complainant that "your certifications:for all LLRT procedures are temporarily suspended. All tests performed in the future will-require the presence of a qualified technician or Engineer until your certifications are re-validated." .(CX 32.).
This action.resulted from an incident on September. 26, 1988.
On that day Thomas was. assigned by .her engineer,. Jim Cantrell, to
. conduct a-certain test, referred to at the hearing- as CLo-6..
< - According to Thomas, she requested Cantre11 to; assign 1 one of: the -
-other technicians to her as "back up," and this. request wasE" treated-lightly and denied." (CX 32.) She later testified: that she:mede the0 rcquest because she felt lightheaded -and- 1111(TRL 139, '252), although-che. did not mention this. feeling in her meno .to Kropp' of October 4,. -
.1988. -(RX-1.) Her lead' engineer, Tom Weber,-testified that he thought she wanted back up in caseLthe test failed. -(TR 540.) Ne-also1 testified:that,he found out she felt ill; on the- day;of, the - '
incident (TR 623), dr the next4 day. (TR 624.)?IEfindcthat'she.
really felt ill on thatEday, before'the test: began.. Since cantrell '
.did not. testify, I.do noteknow:his-reasonaforinotrassigning. help-
.from the beginning. ~His memoi(RXJ14) does not mention-hercroquest.
All. witnesses agreed that the' mechanics'who hooked'up'the test- ,
did'so in'a manner that was not the preferred manner 1(RX.14 TR-529 ), .and :one that' Thomas _ asked them toichange. An argument censued, l:-
cnd Thomas : callede centre 11: and~ Weber, who f ailed ito answer / their .
L phones. .(TR 650.) She, reached John Miller,Jan experienced-o technician.- In response, Weber,c the lead engineer, contacted Thomas, and then ' dispatched engineer: Cantre11oand technician Kerni to the-scene. (TR 523.)? Kern instructed the' mechanics'to connectLthe-i F hoses'in the: standard way'(TR 473-474 RX114),:and:the test was:
I: successfulyo completed (TR ~ 524 ), with - Thomas' signing off v
'on it. . (TR
" 667.) Apparently, during1this-controversy,;the pressure in one of
-the-valves went4 as high'as 72 psigior pgig,4 when s the : proper.-
pressure is 50 psig.- No damage wasfdone.
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- Weber, the lead engineer, believed that Thomas' certification !
to do this test (CLO-6) should be withdrawn, but not that her (TR 533, 541, 594; i certificates for all tests should be withdrawn.
RX 15.) (The other tests are designated CLO-1, 3, 5, and 7. (TR 130-134.)) Weber testified that he thought that Thomas confessed a lack of confidence in her ability to do all tests involving "the.
panel." (TR 536.) Thomas denied this (TR 666, 692); however she had only done the CLO-6 test twice before. (CX 32.)
Kropp testifed that he suspended all of Thomas' certificates because of this lack of confidence and because all the tests are similar in that they all involve the panel. (TR 414-415, 467, 478.)
However, this rationale is discredited because not all the tests involve the panel (TR 645), and furthermore, Thomas had used the panel hundreds of times (TR 488, 645) and was very familiar and comfortable with it. Thus, Weber's thought that Thomas' certification for CLO-6 should be suspended is reasonable. Kropp's action in suspending all her certifications is less so, and is oest explained by his hostile attitude.
As a result, Thomas was required to be retrained in all the tests (TR 419-420), even though she was fully qualified in almost all of them. (TR 412.) This retraining, like the PC retraining, was humiliating. (TR 135.)
Furthermore, if Thomas' testimony is believed, and I believe it, the net effect;of this. incident is to discourage people from asking for help if they need it. Thomas had been hoping to complete her training in LLRT, and to be retransferred to Section XI. By September 1988, just before this incident, she had been certified in CLO-3 through 7, with the exception of the door adjustment on CLO-3. (TR 208. ) .On the day of the incident she felt ill, asked for back up in advance, which was denied, and when she had dif ficulties she was sent back to square one in her training in LLRT. Her hope for early transfer back to Section XI was dashed.
FREEDOM 'IO CONTACT THE NRC The record contains two memoranda that I do not- find were aimed at Thomas specifically, but which could be interpreted
" as discouraging free contact with the NRC.
The first is dated April 11, 1988 and is directed to all
" Engineering Evaluations Department Personnel." (CX 18.) This memorandum expressly states that all correspondence leaving the department must have the supervisor's signature, and the Manager and the Director must receive copies. Obviously, if this directive includes correspondence to the NRC, it inhibits free contact with the NRC.
i
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S* 1 1
4 The'second o is c a .;three page memo,L dated' January 18, 19890to !
' Distribution" . andfis: entitled ?" Setting the Tone." 1(CXL 17. ). 'It- -
- .c:ntains the . following E statements:-
.. -m The second'-[ enclosure) isJa briefing =paperfIlhave used in the past to: calibrate personnel on an: appropriate _
-way to interact with-outside organizations sosthatethe'.
~
results- of the outsider's - efforts are z not unduly- biased '
by a few vocal individuals venting- frustration.. It is D 4 unfortunately typical for! unsophisticated-individuals -
to believe that some. outsider cancdo-more to resolve: ~
)
their' frustrations that--[ sic _than)- theirl.own= - -
organization-can. Thev-are inevitably surprised when the results' turn out to be very differentithan they had l hoped for and not personally helpful at alli-
-e *
- Be sure to debrief your supervisor' carefully of your - '
b y
interface activities with an outside group. :Be 1 sensitive to their-reactions especially_when they seem I to be surprised or question you closely about'your M actions or: procedural requirements.
J Again,--it is obvious that-if "outside organizations" includes ithe NRC, this memorandum discourages personnel from contacting the NRC freely about perceived problems,land: requires personnel.to.._ .
report contacts with the NRC: to 'a supervisor.:
RELIEF -
Thomas-requests-the,following relief"(TR 30,[725, 745-746):-
(1) Promotion to Senior ' Technician, retroactively 'with L b'ack L pay.
.(2) Reassignment _to Section XI. .
4 (3) Damages for emotional distress. ,
(4):That an order--issue guaranteeing free ~accessito the.NRC.
-(5) Modification.of her evaluations:to eliminate:referenceJ to- '
- cbsenteeism. s
" (6) S6aling' her 1988) performance- review,1 erb having iher..1989 -
performance ' review include- only' work she: will' have .donel in Section::
'XI. -
Section 201 of the Act provides that the_ Secretary shall give; the:following relief for violations of the section:-
s
...-.~~-. _.. ,,, _____,_ __
- 0
" order the person who committed such violation to (i) take affirmative action to *ste the violation, and (ii) reinstate the complainant to his farmer position-together with the compensation (including back pay),
terms, conditions, and privileges of his employment, and the Secretary may order such person to provide compensatory damages to the complainant." (42 USC 55851(b)(2)(B).)
Requests for relief (1)(Promotion) and (2)(Reassignment) seem to be contemplated by the statute, inasmuch as I have found both the transfer to LLRT and the f ailure to promote to be discrimination based on Kropp's desire not to have Thomas work in Section XI where she embarrassed him.
Although the Secretary may order compensatory damages, I find-the evidence insufficient in this case to recommend such an award.
Therefore, request for relief (3) is denied.
Request fcr relief (4 )(order re contact with NSC) is coctemplated by the " affirmative action" clause in the Act.
Requests for relief (5) and (6) (modification of evaluations) is denied. Thomas' 1988 evaluation (CX 16) contains her explanation of all negative items, including the reference to absenteeism, which, together with this recommended decision and order, should suf fice to set the record straight.
Promotion and back pay I have found that absent her protected activity Thomas would have been promoted.to Senior Technician no later than October 1987.
She should now be promoted retroactively to October 1, 1987.
Thomas calculated that she would have earned S6,500 more by the time of trial had she been promoted. (TR 111ff, 211ff.)-This calculation was based on the assumption she would have been promoted in May of 1987. The parties should confer immediately and attempt to arrive a at the appropriate pay level within that job classification and at figure for the amount Thomas would have earned had she been promoted to Senior Technician on October 1, 1987. If they cannot agree within 15 days, they should separately state their respective positions on this point to the undersigned or to-the Secretary, whoever shall have jurisdiction, within ~ 20 days.
Reassionment I have found that Kropp was motivated, at least in part, to transfer Thomas to LLRT because of Thomas' protected activity.
She can continue to be fully trained in LLRT by temporary assignments in that section, but she should be reassigned back to Section XI as a Senior Technician.
4 t- _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ . _ _ _ _ _ _ _ _
i l
Freedom to contact the NRC CX 17 and CX 18 were the only- documents introduced to indicate that anyone higher than Kropp had discouraged complainant, or anyone oise, from freely contacting the NRC. To remedy this " chilling" the following should be done (1) A memorandum written and distributed to the same
" distribution" as the memorandum of January 18, 1989 (CX 17) from an official occupying a position at least at the level of W.C. Marsh, referring to the memorandum of January 18, 1989, and stating:
"Nothing in that memorandum or in the ' Guidelines for Conduct of Plant Personnel During Visits by Outside Agencies' that were attached to the memorandum should be construed to discourage any personnel from freely discussing their concerns with representatives of the NRC, nor is there any requirement that a supervisor be informed of any contact you may have with the NRC or its representatives."
(2) A memorandum written and distributed to the same distribution as the memorandum of April 11, 1988 (CX 18) from an of ficial occupying a position at least at the level of G.W. Sowers, referring to the memorandum of April 11, 1988 and stating:
"Regardless of anything contained in that memorandum, all personnel are free to correspond with representatives of the NRC without knowledge or approval of anyone in management."
RECOMMENDED ORDER
- 1. Respondent is ordered to promote complainant to the position of Senior Technician, retroactively to October 1, 1987.
The parties are ordered immediately to confer and attempt to arrive et the appropriate pay level within that job classification and at a figure for the amount Thomas would have earned had she been promoted to Senior Technician on October 1, 1987, 'and to implerent such cgreement. If they cannot agree within 15 days, they should ceparately state their respective positions on this point to the cdministrative law judge or to the Secretary, whoever shall have j urisdiction, within 20 days.
- 2. Respondent is ordered to transfer complainant to Section XI testing.
6.
- 3. Respondent is ordered to issue memoranda as described'in the recommended decision of-.the administrative law judge at page 16
- under- the heading " Freedom to ' contact the NRC.."
. l flu A * , eft' Ml
-Thomas-Schneider Administrative Law Judge-i F
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1 Sarah Thomas SERVICE SHEET 7438 W. Carol Avenue Pcoria, Arizona 85345 89-ERA-19~
Administrator Wage & Hour Division USDOl - ESA Room S-3501, FPB Jcnice Moore, Esq. 200 Constitution Ave., N.W.
Arizona Public Service Law Washington, D.C. 20210 Department 2100 Valley Bank Center 201 North Central Cornelius Donoghue Phoenix, AZ 85073 Deputy Associate Solicitor O/ Solicitor - USDOL Suite N-2620, FPB 200 Constitution Ave., N.W.
Michael D. Kohn, Esq. Washington, D.C. 20210 026 "U" St., Northwest Wcshington D.C. 20001 Nuclear Regulatory Commission O/ Inspection & Enforcement Washington, D.C. 20555 Monica Gallagher, Assoc. Solicitor
\\ Richard V. Habura U.S. Department of Labor
-Director of Enforcement O/ Solicitor, Division of Fair Employment Standards Labor Standards, Room N-2716 Administration ,
200 Constitution Ave., N.W.
Wage and Hour Division Washington, D.C. 20210 3221 N. 16th Street, Suite 301 Phoenix, Arizona 85016 Elizabeth Culberth, Director Elizebeth H. Dole Office of Administrative Appeals Secretary of Labor U.S. Department of Labor O/ Secretary - USDOL Room S-4309 Room S-2018, FPb 200 Constitution Ave., N.W.
200 Constitution Ave., NW WaJhington, D.C. 20210 Washington, D.C. 20210 ,
y s* p y w g a J p pim ygg 22 y b4 a r 4 %
(Name)
APR 131509 (Date) j
.-. -~
2
( (
Employment Stancares Acmmiwuon ,.-
- U.d. Department of Lab:r Wage anc Hour Division j- g 3221 North 16th Street, #301 e .
Phoenix, Arizona 85016 \ '-
A.
(602) 640-2990 Hay 8, 1992 CERTIFIED MAIL: P330-911-457 Ms. Janet Hepner RETURN RECEIPT REQUESTED Ari:ona Public Service Law Depart =ent P.O. Box 53999 Station #98-20 85072-3999 Phoenix, Arizona -
Dear Ms. Hepner:
This letter is to notify youAs of you theknow,results of our compliance Ms. Linda Mitchell filed actions in the above case.Secretary of Labor under the Energy a complaint with the Reorganization Act on29April 9, 1992. A copy of the complaint; a copy of Regulations, CFR part 24; and a copy of the pertinent section of the statute were furnished to y'ou in a previous letter from this office. 7, Our initial ef forts to conciliate the matter did not result in a mutually agreeable settlement. A fact-finding investigation was then conducted. Based upon our inve.stigation,' the weight of evidence to date indicates that Linda Mitchell was a protected employeo engaging in a protected activity within the scope of the Energy Reorgani:ation Act and that discrimination as defined and ,
prohibited by the statute was a factor in the actions which comprise her complaint. The following information supported this determination.
Linda Mitchell received differential treatment with respect to her April 1992 performance appraisal and the differential treatment was due at least in part, to her protected activities.
This letter is notification to you that the following actions are required to remedy the violation:
Dan Smyers shall prepare a performance appraisal for Ms. Mitchell which conforms to his original draft version.
This appraisal shall be ef fective April 1, 1992 and shall ,
supercede the earlier appraisal of that date.
This letter is also notification to you that, if you wish to appeal the above findings and remedy, you have a right to a formal hearing on the record. To exercise this right you must, within five (5) ~
for a calendar days of receipt of this letter, file your request hearing by telecram to:
a
- , (
4 The Chief Administrative Law Judge U.S. Department of Labor 800 K Street, N.W.
Washington, D.C. 20001-8002 Unless a telegram is received by the Chief Administrative Law Judge within the five-day period, this notification of findings and remedial action will become the Final Order of the Secretary of Labor which =ust be implemented within 30 days. By copy of this letter, Linda Mitchell is being advised of the determination and the right to a hearing. A copy of this letter and complaint have also been sent to the Chief Administrative Law Judge. If you decide to request a hearing, it will be necessary for you to send copies of the telegram to Linda Mitchell and to me - at U.S.
Department of Labor, Wage & Hour Division, 3221 North 16thAfter 640-2990.
Street,I Suite 301, Phoenix, Arizona 85016; (602) receive the copy 'of your request, appropriate preparations for the hearing can be made. If you have any questions, do not hesitate to call me. ,
It should be made clear to all parties that the U.S., DepartmentThe of Labor does not represent any of the parties in a hearing.
hearing is an adversarial proceeding in whien the parties will be allowed an opportunity to present their evidence for the record.
The Administrative Law Judge who conducts the hearing will issue a recommended decision to the Secretary based on the evidence, testimony, and arguments presented by the parties at the hearing.
The Final Order of the Secretary will then be issued after consideration of the Administrative Law Judge's recommended decision and the record developed'at the hearing and will either provide for appr'opriate relief or dismises the complaint.
Sincerely, is[Mw Susan P. Nern Assistant District Director cc: Ms. Linda Mitchell David Colapinto, Kohn, Kohn & Colapinto, P.C.
517 Florida Avenue, N.W., Washington, DC 20001 Nuclear Regulatory Commission Regional Solicitor, Dept. of Labor Chief Administrative Law Judge Regional Administrator, Wage-Hour Div.
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