ML20234D498
| ML20234D498 | |
| Person / Time | |
|---|---|
| Site: | Comanche Peak  |
| Issue date: | 09/14/1987 |
| From: | Ellis J Citizens Association for Sound Energy |
| To: | |
| References | |
| CON-#387-4416 OL, NUDOCS 8709220108 | |
| Download: ML20234D498 (106) | |
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UNITED STATES OF AMERICA 18 I 8 08 NUCLEAR REGULATORY COMMISSION Gr;~ BEFORE THE ATOMIC SAFETY AND LICENSING BOARD i in the Matter of }{
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TEXAS UTILITIES ELECTRIC - }{ Docket Nos. 50-445-OL COMPANY, et al. }{ and 50-446-OL (Comanche Peak Steam Electric }{ Station, Units 1 and 2) }{ (Application for an
}{ Operating License)
}{
CASE'S PROGRESS REPORT (VII) Pursuant to the Board's June 6,1986, Memorandum and Order (Progress Report and Notice of Available Documents), CASE submits its seventh progress report. As stated in CASE's 6/8/87 fif t h and 7/21/87 sixth progress reports, CASE's efforts in attempting to obtain discovery from Applicants regarding those portions of Applicants' CPRT Plan which were to have been included in the upcoming proceedings d/ had been in effeet placed on hold, pending receipt of additional information from Applicants. As we stated in our 7/21/87 sixth progress report, CASE had received Applicants' 6/25/87 letter from Mr. Counsil to NRC Staff (under subject: Response to Request for Additional Information in Conjunction with Program Plan Update, responding to the 5/12/87 letter from Director Grimes to Applicants' Mr. Counsil under l l l l n / As discussed in the Board's order during 8/19/86 prehearing l conference (TR. 24603-24605); and in CASE's 9/15/86 letter to Board under
Subject:
Memorialization of Changes in Recent Board Orders and/or Filing Dates for Certain Pleadings, item 4, pages 2 and 3. See also 11/21/86 letter from CASE's Mrs. Ellis to Applicants' counsel Mr. Cad. 8709220100 870914 5 I % PDR ADOCK 050 O .. . . - _ _ - _ _ _ _ - _ _ _ - - _ - _ _ _ _ _ _ - _ _ _ _ _ _ _ _ _ _ _ _ _3
l l subject: Request for Additional Information in Conjunction with Program - Plan Update), and Revision 4 to the CPRT Plan; we had reviewed them in antic.ipation of discussion during the July 29 and.30, 1987, meeting between Applicants and the.NRC Staff. However, at that meeting, Applicants in e effect skipped over Revision 4 and discussed something totally different, primarily Applicants' Corrective Action Program (CAP) g /. The situation regarding discovery f rom the NRC Staff has progressed j somewhat f rom what was indicated in our 6/8/87 fif th and 7/21/87 sixth progress reports regarding the difficulties CASE is having in attempting to I obtain discovery f rom the NRC Staff regarding trending and other information l relevant to these proceedings having to do with the recent OIA Report. To j I recap: On 1/21/87, CASE filed its Motion to Compel NRC Staff to Supplement ; l Responses to Question 1 of CASE's 2/10/82 First Set of Interrogatories and i Requests to Produce to N~RC Staff, regarding trending performed by the NRC Staff, as referenced in the recent OIA report (Board Notification No. 86-24). Since that time, there have been several filings regarding this matter p/, including the filing with the Board by Ms. Garde of the testimony of an ! l i i i g/ See transcript of 7/29/87 and 7/30/87 NRC Public Meeting with TU l Electric, sent to the Board under NRC cover letter dated August 4, j 1937 (with September 4, 1987 additional page). 3 i g / See also: CASE's 1/29/87 letter to Board, under subject of j Additional Information Regarding OIA Report, Board Notification i No. 86-24, Report of Investigation by the Office of Inspector and j l 1: Auditor, sent to the Board and Service List under cover letter ] l 12/11/86 from NRC Staff's Mr. Noonan; NRC Staff's 2/17/87 Response to CASE Motion To Compel; NRC Staff's 5/26/87 letter to Board re: questions by Judge Bloch in 3/2/87 telephone call; and NRC Staff (
-Counsel Mr. Chandler's 5/14/87 letter to CASE Attorney Mr. .
l Roisman. I J 2 I
1 o . NRC' resident' inspector at Comanche Peak and an 0IA investigator regarding
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allegations by that inspector.' 'Following hearings before Senator John 1 g 'Glenn's: Senate Committee on Governmental Affairs on April 9, 1987, the NRC , set up's blue-ribbon panel to look into the matters raised; their report, 1 which is referred to as the Arlotto Report, had been complet'd, e but the
.NRC Staff had taken-the position that it was unable to proceed with a further substantive response to CASE's discovery request pertaining to either the OIA Report or the Arlotto Report /4/. Since it appeared that informal efforts had broken down to get the NRC Staf f to release ~ the information which we believe. is critical to our making some kind'of determination of -
exactly how to proceed regarding this matter (e.g., to file a new contention,,etc.), Ms. Garde pursued (and is pursuing) Freedom of Information Act (FOIA) requests by GAP and has now filed, or is in the process of filing, lawsuits on each of the F01A's which the-NRC has not answered regarding Comanche Peak. To date, there have been five FOIA civil suits. filed by GAP (Nos. 1642, 2051, 2052, 2053, and 2054). In addition, CASE has now received ono large box (approximately 3,000 pages) of backup documents to the OIA Psyort, including the Arlotto Report, hopefully with more to come (see 9/1/S7 letter to Board from Billie Garde under subject: Board Notification, No. 87-12, Report of Investigation by the Office of Inspector and Auditor; NUREG-1257; and Memorandum of April 14, 1987 from V. Stello to Chairman Zech). We are currently reviewing this material; it is not clear at this point in time whether or not the material includes information responsive to CASE's 1/21/87 Motion to Compel NRC Staf f to
/4/ NRC Staff Counsel Mr. Chandler's 5/14/87 letter to CASE Attorney ,
Mr. Roisman. j 3 ___ _ ___. _ _ __ _ _ _ _ _.__ __ _ _ _ _ _ _ _ _ _ _ _ __ _ ___J
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, Supplement Responses to Question 1 of CASE's 2/10/82 First Set of Interrogatories and Requests to Produce to.NRC Staff, regarding trending l'
performed by the NRC -Staf f. . In any event, it is certain that we.will have additional questions regarding some of this material. As stated in our 6/&/87 fifth and 7/21/87 sixth progress. reports, Ms. Garde worked on a Section 210 Department of Labor case which has to do.with a former engineer at Comanene Peak who has made allegations of harassment-and intimidation and raised design concerns'which in some instances are . l
.similarato some of the Walsh/Doyle issues but in a later. time-frame (as well as some. additional concerns). ' Hearings were' held 1n that case on June 22
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and 23,1987 (see 7/8/87 letter from CASE's Mrs. Ellis to Board under
. subject oft Notification of Potentially Significant Information). (See also: 5/28/87 letter from Christopher I. Grimes, Director, NRC Comanche Peak Project Division, Office of Special Projects, to Applicants' Executive Vice. President, William G. Counsil; NRC Region IV Inspection Report 50-445/86-31, 50-446/86-25, under cover letter of June 1. 1987, beginning at bottom of page 31, item (4); and Applicants' 7/2/87. letter from Mr. Counsil' to NRC Staff under subject: Allegations of Design and Construction Deficiencies.)
I In our July 8,1987, letter, we informed the Board of what CASE l considers to be potentially very significant information. As we stated in , 3 that letter:
" CASE President Juanita Ellis attended the two days of Mr.
Hasan's DOL nearings in Dallas on June 22 and 23, 1987 . . . . Based on what transpired during those proceedings and related filings and documents, etc., CASE believes that some of the t matters raised are of extreme importance to both the operating j license proceedings and construction permit proceedings. CASE lL also believes that Applicants should now voluntarily provide copies of all pleadings, documents, etc., in that case to the 4 . l L_ _ _ _ _ -. . ____ . _ _ _- __b
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. Licensing'and CPA. Boards.(which are, of course.. composed.of the same.three members).. If Applicants do not voluntarily do so CASE will seek such action-through more formal .means; it should not be i CASE's burden to_haveLthe continue to go to the expense in time, 1 money, and person resources to keep the Board informed and supply documents regarding matters such as this.which are so obviously ,
covered by the Board's oft-repeated and numerous Orders that' l Applicants are to keep the Board informed of potentially i signficiant information." CASE =now has some additional information, which we are providing to the Board.at this time in accordance with the Board's often-stated desire to be kept informed of potentially significant matters. We.are attaching hereto two pleadings.in that DOL case (DOL Case No.186-ERA-24',-S.M.A..Hasan, Complainant, v. Nuclear Power Services', Inc., Stone and Webster Engineering
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Corp., Texas Utilities Electric Co., Inc., Respondents): 8/14/87 Complainant S.M. A. _ Hasan's Post-Trial Brief; and 8/14/87 Complainant ' S.H. A. , Hasan's Proposed Findings of Fact Filed in Support of His Post-Trial , Memorandum of Law. We are currently reviewing the transcript of the June 22 and 23, 1987, DOL hearings and some other related documents received recently. We assume that Applicants will now want to send the Board their post-trial brief and proposed findings of fact as well, and indeed, we encourage ! them to do so. If Applicants do not voluntarily do so, CASE urges that the Board order Applicants to furnish the Board and parties with copies of the transcript, all exhibits, and Applicants' post-trail brief and proposed i k findings of fact. j In addition, we are attaching hereto for the Board's information a copy 1 of the July 21, 1987, letter to the parent company of Gibbs & Hill from the
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U. S. Department of Labor in New York City advising of the initial determination in another DOL case, Lorenzo Mario Polizzi vs. Gibbs & Hill, 4 Inc. In its initial determination, the DOL found that: 5
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. . . In October of 1986, Mr. Polizzi was employed as a i mechanical engineer at the Comanche Peak Steam Electric Station in l Glen Rose, Texas. While employed in that capacity, on October 23,'
1986, Mr. Polizzi wrote a memo to his supervisors, J. Irons and D.' C. Purdy, which was forwarded to the Gibbs & Hill New York office, i outlining specific concerns regarding a potentially reportable i design deficiency in the pipe rupture analysis. Mr. Polizzi's j concerns regarding the pipe rupture analysis, and willingness to l take his complaint outside the firm were well known among Gibbs & Hill employees at Comanche Peak. In his subsequent work locations l in New York and Tennessee, he was vocal about his concerns with the pipe rupture analysis and his increasing dissatisfaction with Gibbs & Hill's response to his complaint.
"Gibbs & Hill's immediate response to Mr. Polizzi's memo was to transfer him to the New York office while all other permanent I Gibbs & Hill mechanical engineers were transferred to different jobs on the Comanche Peak location. No other response to Mr.
Polizzi's memo on the part of Gibbs & hill was provided until late January and early February of 1987 when Mr. Polizzi was visited on i an almost daily basis by an engineer from the applied mechanics l group, Mr. Ted Kosmopoulos. Mr. Kosmopoulos and Mr. Polizzi had heated arguments, many of which were overheard by nearby employees l on the validity of Mr. Polizzi's October 23, 1986 complaint. Mr. ! Kosmopoulos apparently attempted to persuade Mr. Polizzi to accept l
, Gibbs & Hill's position that his complaint was totally without '
merit and withdraw the complaint.
"On 2/19/87 Mr. Polizzi received a memo from D. Purdy and C.
Corban refuting his complaint. On 2/24/87 Mr. Polizzi responded to this memo accepting Gibbs & Hill's Position on two areas and further stating his concerns on two others. In addition, his dissatisfaction with Gibbs & Hill's response and his intention to ! pursue the matter with the NRC were widely discussed among his ' j colleagues. I "On February 27, Mr. Polizzi received a layoff notice in a meeting q with Richard Carr and Joseph Alberti. Mr. Polizzi received a j package f rom Mr. Carr which included a Gibbs & Hill ' proprietary l information' f o rm. Polizzi requested a private meeting with Mr. Carr. In that meeting he informed Carr that he could not sign the form as he was planning to go to the NRC and therefore could not agree not to release potentially confidential information. He also advised Carr of his belief that he was being terminated as a result of his October 23, 1986 memo and subsequent defense of his ; complaint. Carr told Polizzi he would look into his allegations. I "On February 28, 1987 Mr. Polizzi contacted the NRC by phone and letter. Approximately one week later Mr. Polizzi was contacted by , Mr. Carr's of fice offering him a job at the TVA. Mr. Polizzi's resume had been in a group of resumes that were submitted by Gibbs
& Hill to TVA during the period 1/17/87 to 1/20/87 by Paul l
l 6 l I
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JIL ..- [ Giangreco. This Lsubmission of his resume was done' by Mr. Giangreco
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prior to Polizzi's meetings with Ted Kosmopoulos.during which he refused to'. withdraw his complaint. .Mr. Polizzi,also' indicated:he >r
- was not asked! to update ,his resume as were others:who were being p considered for the TVA project. .His subsequent rehire on March 11, 1987 by Gibbs'& Hill to work at.the TVA appears to be the."
i result:of two factors. First,.Gibbs & Hill needed more personnel than'was available to fulfill their TVA commitments; even! . transferring a group'of. people lfrom the Comanche' Peak site. Second,:Mr. Polizzi had' clearly stated.his intention to pursue his claim'with the NRC and his rehire and assignment to Tennessee appears to beLa convenient way of foresta111ng his NRC complaint.-
"On May 14,'1987 Mr.-Polizzi was officially terminated, receiving formal: notification from Richard Carr. While Gibb's & H1112 claims he was advised earlier, a June 3, 1987 letter from Kenneth - , Scheppele, president of Gibbs & Hill to former TVA employees .
7 -) points'out_that meetings were held with the TVA as late asLMay 13, 1987 in an attempt to' renew the contract. Thus, the May- 14, 1987 termination date given by the complainant appears to be
' substantiated by Gibbs & Hill's own documentation.-
"There has never been any indication of poor work performance and
. ~in. fact Mr. Polizzi has consistently received above average
. raises. Thus, the pattern emerges that Gibbs & Hill responded to a' Regulation 10CFR 50.55e complaint from.a competent employee on a troubled project by.first getting him away from the' project, then terminating his employment as-soon as feasibly possible. .His.
subsequent rehire and' termination appear to be an attempt to diffuse Mr.-Polizzi's allegations'and to obscure the actual reason for his dismissal.
"As to Gibbs & Hill's contentions that another employee has filed - .;
similar complaints .without adverse action, our understanding is that these complaints'have been resolved internally without NRC y notification. Therefore, we do not feel the circumstances are the 'l same. . . ." > We believe that the significance of these particular D0L cases will be 1 obvious to the Board when it reviews the attached documents. There are many ] similarities between the cases of Mr. Hasan and Mr. Polizzi, including: harassment and intimidation; attempts by their employers to downplay the importance of'the engineers' concerns; transfers away from the Comanche Peak site followed by eventual layoff or firing; etc. CASE will be pursuing several aspects, including discovery requests, of these DOL cases further in l 7
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I connection bo'th with the operating license proceedings and the construction permit proceedings. , j CASE is also contir ing its analyses of other documents received recently (for example, many of those-listed by Applicants in their 5/18/87 Fif th Progress ' Report, their 6/30/87 Sixth Progress Report, and their , 8/31/87 Seventh Progress Report.und in Applicants' Annotated B.' biographies, i as well as several boxes of deficiency paper). 'We would also point out i
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that, where in some instances the Board receives only cover letters from Applicants, thers are'often several inches of documents attached to the i copies CASE teceives of those letters. We tave been reading, reviewing, and analyzing the, ushy ttmusands of pages we have received recently (and as we ; l previously predic';sd, we are now being deluged with documents, some of which we believe we should have been supplied long ego, as will be discussed in j more detail in our response to Applicants' 8/20/87 Motion fir Establishment I of Schedule). We have been workinf, on discovery requests and attempting to pare t. hen down to what we believe we really want and need; however, we still expect to file additional discovery requests, including requests regarding some of the itens listed in Applicantr' Progress Reports and Annotated l Bibliogt aphies, es well as many questions regarding Revision 4 of the CPRT Flan which were not. discussed durin;; the 7/29/E7 and 7/30/87 Staff //spp?icants meeting, Applicants' various other plans such as their Corredtive Action Plan, etc. As we have stated before, we consider this absolutely essential for CASE to be able to make informed decisions 1 regarding cur next oteps in the case and to bt> able to adequately prepare o'.tr Case . L 8 _ _ _ _ _ h
L [ As discussed in our 6/8/87 fifth and 7/21/87 sixth progress reports, CASE had not at that time received Applicants' response to those interrogatories ordered in the Board's 3/16/87 Memorandum and Order (Motion to Compel: CASE's Set 12) regarding Sampling. On August 10, 1987, Applicants filed their Further Answers to CPRT Interrogatories (Set No. 12), and CASE has it under review. As indicated in the attached'three cover letters from Cygna, there has been what is hopefully a slight delay in CASE's receiving communications reports from Cygna; as stated by Cygna, they "are somewhat behind in processing telecons" "[d]ue to a word processing system conversion," and are attempting to distribute some each week to alleviate the backlog." (See attached letters from Cygna: 9/1/87 letter 84056.115, communications reports associated with the conduit audits, ranging in date from 6/25/87 to 8/14/87; 9/1/87 letter 84056.115, communications reports associated with the cable tray audits, ranging in date from 2/12/87 to 6/24/87; and 9/1/87 letter 84056.117, communications reports associated with the piping / pipe support audits, ranging in date from 4/10/87 to 5/14/87.) There are also still some other discovery requests regarding which Motions to Compel by CASE are in abeyance awaiting results of further informaldiscussionsbetweenCASEandApplicants/_5). 5 CASE is currently reviewing these requests more actively in light of Applicants' 8/20/87 Motion for Establishment of Schedule. In the past, Applicants' and CASE's joint ef forts had appeared to be f ruitful in many areas, and we had mutually
]_5)5 As has been indicated previously, it is the understanding of both CASE and Applicants that, in cases of agreement on enlargements of time, the j
Board does not require that any action be taken by it, but rather is satisfied with notice of the agreement. 9
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[ ? 1 I l agreed on further extensions of time so that these efforts could continue; we will continue to keep the Board advised in this regard. It should be noted that many of the same matters discussed herein will be addressed in more detail in CASE's response to Applicants' 8/20/87 Motion for Establishment of Schedule. CASE believes that the following Applicants' filings will be of special interest to the Board (most, if not all, of which we do not believe the Board has yet): 8/20/87 Applicants to NFC Document Control Desk (DCD), re: Comanche Peak Programs, with attachments: a description of the Comanche Peak Response Team (CPRT) and Corrective Action Program (CAP), and TU i Electric's position on how the two programs interrelate 8/28/87 Applicants to NRC DCD, re: Corrective Action Program (CAP) Description and Flow Diagrams 9/8/87 Applicants to NRC DCD, re: Post Construction Hardware Validation Program (PCHVP) Engineering Evaluation Methodology (supplying i additional detail to 8/29/87 and 8/30/87 meeting) 9/8/87 Applicants to NRC DCD, re: Technical Audit Program and Engineering Functional Evaluation (Corrective Action Program and its results)(supplying additional detail to 8/29/87 and 8/30/87 meeting) 9/8/87 Applicants to NRC DCD, re: response to NRC Bulletin 87-01,
" Thinning of Pipe Walls in Nuclear Power Plants" (of particular interest because of the long-standing and extensive problem at Comanche l Peak with thin-walled pipe)
Respectfully submitted, ! 2D S) ', ) frs. Juanita Ellis, President CASE (Citizens Association for Sound Energy) 1426 S. Polk Dallas, Texas 75224 214/946-9446 Co-Representative for CASE l 10 j i
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A i 1 Attachments: DOL Case No. 86-ERA-24, S.M.A. Hasan, Complainant, v. Nuclear Power Services, Inc., Stone and Webster Engineering Corp., Texas Utilities 1 Electric Co., Inc., Respondents): l 8/16/87 Complainant S.M.A. Hasan's Post-Trial Brief; and 8/14/87 Complainant S.M.A. Hasan's Proposed Findings of Fact Filed l in Support of His Post-Trial Memorandum of Law DOL Case, Lorenzo Mario Polizzi vs. Gibbs & Hill, Inc., July 21, 1987, letter to Dravo Corporation f rom U. S. Department of Labor, New York, N. Y., advising of DOL's initial determination Cygna 9/1/87 letter 84056.115, communications reports associaced with the conduit audits, ranging in date from 6/25/87 to 8/14/87 Cygna 9/1/87 letter 84056.115, communications reports associated with the cable tray audits, ranging in date from 2/12/87 to 6/24/87 . Cygna 9/1/87 letter 84056.117, communications reports associated with the piping / pipe support audits, ranging in date from 4/10/87 to 5/14/87 ..
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UNITED STATES OF AMERICA BEFORE THE DEPARTMENT OF LABOR
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S.M.A. HASAN, ) l ' ) Complainant, ) v.
) Case No. 86-ERA-24
)
NUCLEAR POWER SERVICES, INC., ) STONE AND WEBSTER ENGINEERING CORP., ) TEXAS UTILITIES ELECTRIC CO., INC., )
)
l Respondents. ) I'
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COMPLAINANT S.M.A. HASAN'S POST-TRIAL BRIEF GOVERNMENT ACCOUNTABILITY PROJECT Michael D. Kohn Stephen M. Kohn Thomas J. Mack 25 E Street, Suite 700 Washington, D.C. 20001 (202) 347-0460 Attorneys for Complainant S.M.A. Hasan Dated: August 14, 1987
.oc ,
s 1
~ TABLE OF CONTENTS
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SUMMARY
'OF-CASE........................'................ 1
-ARGUMENT: .
A. COMPLAINANT'S-PRIMA FACIE CASE.......................'7
- 1. Hasan Engaged In Protected Activity....... 8 (A) Internal' Complaints Are Protected... 9 (B) Hasan's Threats To Go To the NRC Are Protected Activity....................... 10-(C)- Complainant's External Protected Activity................................ 12 (D) Contact With A Citizens' Grou Is-Protected Activity...............p.......
13
- 2. Respondents Knew That Complainant Engaged In Protected Activity....................... 13 I 1
- 3. Hasan's. Protected Activities Played at Least "A Part" In Res Decision To Blacklist Him............pondents'
............................... 16 B.
RESPONDENTS FAILED TO MEET THEIR BURDEN OF PROOF OR PRODUCTION......................................... 18
- 1. As A Matter Of Fact, Respondents'Did Not i Meet Their Burden Of Proof Or Production...... 18
- 2. As A Matter Of-Law, Respondents'Did Not
. Meet Their Burden Of Proof or Production...... 21 j
J 1
- 3. As A Matter Of Evidentiary Law, Respondents Did Not Meet Their Burden Of Proof Or Production.................................... 23 J
C. DAMAGES.............................................. 24 l { D .- CONCtUSION.......................................... 2s i I
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I COMPLAINANT'S POST-TRIAL BRIEP' L , i Pursuant to 29'C.F.R. 24.5(e)(3), . Complainant S.M.A. Ehsan p respectfullyfsubmits this. post'-trial brief.. l-l 1 l
.3
SUMMARY
-OF CASE l
.[For a full explication'of the facts, please see Complainant's Findings of Fact.
A number of-documents obtained through discovery and introduced onto the record'were not discussed at the hearing, but are fully-explicated in these findings.].
.From. January, 1982, through August, 1985, Complainant S.M.A.
Hasan was~ assigned by his employer NPSI to work on pipe support designs at the Comanche Peak nuclear facility under construction . by. Texas Utilities in Glen Rose, Texas. During.this time.Mr.
' Hasan raised numerous internal complaints to Respondents' management alleging safety violations in the. design and construction of pipe supports at the Comanche Peak site, and at least.once directly threatened to go to the NRC with these concerns.
These complaints are now characterized by the Nuclear Regulatory Commission (NRC) as "65 quality control concerns," and are part of a major investigation by the NRC of the Comanche Peak nuclear. power plant. Complainant contends that on the basis of . raising these complaints, he was blacklisted from the Comanche 1 Peak site. 1
's ,
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.The unimpeached: testimony at' trial placed the incidents leading to Hasan's blacklisting as follows:
(1) .NPSI's contract at Comanche Peak.was terminated by Texas. Utilities and Stone and Webster was hired to perform pipe support operations. ! (2) Stone and Webster decided to retain a large number of
. .NPSI engineers.
1 (3) In July or early August 1985, Finneran provided. George F
~ Boerum of Stone and Webster a list of engineers that Texas Utilities did not want to retain on site, i (4) Finneran testified that'he based his. decision not to retain Hasan on site only on information received'from Jay Ryan.
(5) Ryan's recommendation not to retain Hasan was based'
, upon Hasan's " disruptions."
. (6). Finneran had the authority to override Ryan's negative -
recommendation of Hasan, but he did not. (7) Stone'and Webster. initially, decided to hire Hasan,'but I did not make him an offer based upon Finneran's decision to keep Hasan off the Comanche Peak site. (8) Stone and Webster decided to reinterview Hasan despite Finneran's " strong" feeling that Hasan and other engineers not be retained on site. Tr. 577.
-(9) Stone and Webster conducted a second interview of !
Hasan. (10) Stone and Webster's decision not to hire Hasan after the second interview, according to Boerum, was based on the i 2
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fact that1Hasan had,been "more concerned with details th'an getting the-product out." Tr. 565.- (ie:- Hasan's: ability-E e to' catch errors other engineers would have missed caused; 1
' delays in theLcertification process of pipe support-
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' ' q packages.)1 4
.(11) Stonefand Webster's reason'for denying Hasan.
employment was identical to Ryan's decision to recommend that~Hasan not be retained on site. Accor. ding to Ryan, Hasan was'the only engineer who-caused delays in the certification process.and th'is'was due to his repeated. ! reject' ion-offpipe supports '(le: concern with detail'over! production), and this repeated rejection resulted in the ,
" disruption" upon which Ryan based his decision not to l recommend Hasan.
, (12) Boerum testified that the only reason for rejecting Hasan's application to Stone and Webster again in January 1986, was the same reason that his application was rejected '!
in August 1985. 1 The critical incident therefore is what motivated Ryan to i give Finneran a negative. recommendation of Hasan. Testimony at trial established three incidents, one contested and two i uncontested, that led to this negative recommendation: (1) In 1982 packages from Ryan's group were transmitted for
. final certification to the group in which Hasan was working.
Hasan rejected many of these packages and Ryan was upset about t h i r, . Around this time, Ryan saw Hasan alone in the corridor at Comanche Peak and gestured obscenely towards l '. i 3 l l l .. 2.
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. 4,
', him. [These activities are contested as Ryan denies them.
However, Hasan' testified that the obscene gesture incident a did occur, and David Rencher, another employee ~of Texas l Utilities,ftestified that Hasan had indeed rejected. packages l l from'Ryan's group.- Whatever motivated'Ryan to lie about Hasan's rejection of packages likewise motivated Ryan to deny making'the obscene gesture.] (2) Ryan testified that Hasan often rejected packages during.his tenure at Comanche Peak and that this often resulted in delays in the certification process. Ryan asserted that Hasan was overly critical of the.other a engineers work, while Hasan believed that he was reporting ' serious safety concerns. (3) The third. incident is Hasan's unimpeached testimony that in December, 1984 or January, 1985, he rejected a package because the computer input STRUDL had not been , i checked. When Hasan's supervisor, Barry Hill, learned that k Hasan was rerunning the computer program, he became very l d annoyed and an argument ensued. Hasan testified he angrily t told Hill, "If you do like this, I will definitely go to NRC. And his face was red. He loked at me very angrily." Tr. p. 260. Ryan testified that he viewed this incident as i the prime example of Hasan's " disruptions" and his inability H to work and cooperate with other employees. Therefore, it is undisputed that Hasan's internal complaints ; about safety violations and his threat to go to the NRC were in part the. reason, if not the sole reason, Ryan recommended to
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-Finneran'that Hasan-not;be retained at.the Comanche Pea'k site.
Such.-internal,complaintsLand threats to report- violations toL government agencies are protected whistleblower= activities under Section 210Jof the Energy Reorganization Act, 42 U.S.C. $5851; ("Section 210")'. Any. decision to blacklist Mr. Hasan based'on lthis protected activity is:a violation of Section 210. On the: basis'of this evidence Complainant established a prima facie case underLSection1210. First, Mr. Ryan testified that it was Mr. Hasan's. supposed
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' " disruptions""that led to the non-recommendation decision. But, ]
t when asked to explicate what he meant by this term, Mr..Ryan defined " disruptions" in the context of protected activit'y. Mr.- g Hasan'.s " disruptions" resulted from his constant rejection of packages and1the.previously discussed incident between Mr. Hasan: 1 J
, -and Mr. Hill when'Hasan threatened to go to theI NRC.! Ryan U articulated no' legitimate business reason for the non-recommendation of Mr. Hasan and thus Respondents did not meet I their burden of proof. l l
Second, once Complainant establishes a prima facie case, the issue becomes whether Respondents can demonstrate a' legitimate business reason for not retaining Mr. Hasan at Comanche Peak. Respondents utterly failed to meet this burden. The Hasan case j is a dual motive case. As a matter of law, in a dual motive case the employer bears the risk that the " influence of legal and illegal motives" for the discharge "cannot be separated." Mackowiak v. University Nuclear Systems, Inc., 735 F.2d 1159, I i 1164 (9th Cir. 1984). Based upon Mr. Ryan's testimony, the 5 '
decision not to recommend Hasan to Stone and Webster was based upon.two factors: Hasan's internal whistleblowing and his threat. to go t'o the'NRC.. Even' assuming that Mr. Hasan's internal whistleblowing was not protected activity, the threats to go to the NRC were protected. ' Respondents had the burden of differentiating between these two factors and they did not' meet this burden. Respondents did not separate a legitimate motive for their action from the illegitimate one. Even if Respondents did produce evidence documenting their contention that personality problems were a legitimate business reason for the negative assessment of Mr. Hasan, Respondents produced no evidence that other employees who committed similar or worse infractions were subject to any discipline. In fact, the record bears the opposite. Respondents stipulated.that Mr.
, Hasan was never disciplined for his alleged personality quirks or !
alleged " disruptions." Even more significant is unrefuted -l
?
documentation,.which Respondents themselves produced in interrogatory answers, that proves that employees with less favorable employment records were offered employment with Stone and Webster and were not blacklisted by Texas Utilities and NPSI. On the basis cf Respondents' failure to refute Complainant's
}
prima facie case, Complainant requests a ruling from the Court in J his favor. !' i 6 i i j l 4 _s
l ', ARGUMENT l A. COMPLAINANT'S PRIMA FACIE CASE. l i In order to establish a prima facie violation of Section 210 of the Energy Reorganization Act, 42 U.S.C. S5851, an employee must demonstrate'that-(l) the party charged with discrimination ! is~an employer subject to the Act, (2) the Complainant was an employee under the.Act, (3) he engaged in, protected activity i under the Act, (4)'the employer knew or had knowledge;that the l employee engaged in protected activity, (5) the complaining '
't employee was discharged or otherwise discriminated against with
' respect to his compensation, terms, conditions, or privileges of l employment, and (6) the retaliation against the employee was-motivated,'at-least in part, by the employee's engaging in .;
protected activity. DeFord v. Secretary of Labor, 700 F.2d 281, - 286 (6th Cir. 1983); Mackowiak v. University Nuclear Systems, Inc., 735 F.2d 1159, 1162 (9th Cir. 1984); Ledford v. Baltimore . Gas and Electric Co., 83-ERA-9, slip op. of ALJ at 9 (Nov. 29, j 1 1983), adopted by SOL. I 1 Items one and two were stipulated to at the hearing. The 1 remaining issues require that the Court perform a two-pronged l I analysis. The first question is whether Hasan's activities were i protected, and, if so, whether Respondent's discriminatory actions were based in part on these protected activities. On the basis of the uncontroverted evidence presented at the hearing, Complainant contends that he established these aspects of the l 7
prima facie case'and therefore the Court's ruling should be in his favor.- ! o l 1
- 1. - Hasan Engaged In Protected Activity.
i
,i i
I Section 210 of the ERA prohibits employer discrimination ! against?an employee who has: (1) commenced, caused to be commenced, or is about to I cause to be commenced a proceeding under this Act or the f Atomic Energy Act of 1954; (2) testified-or is about to. testify in any such j proceeding; l J (3) assisted or participated... in any manner in such a i proceeding or in any other action to carry out the purposes
. of this Act or the Atomic Energy Act of 1954, as amended.
42 U.S.C. S5851. (emphasis added) i Protected activity can be demonstrated in four ways: I (1) The Secretary of Labor recently held in the Fifth Citreuit that internal complaints by an employee to i management are protected activity under Section 210. In the Matter of Donald J. Willy v. The Coastal Corporation and Coastal States Management Corporation, Case No. 85-CAA-1, (June 4, 1987). (2) Employers who fear an employee is about to report 1, safety violations to a government agency are prohibited from discriminating against such an employee. Poulos v. ! Ambassador Fuel, 86-CAA-1, (April 27, 1984); Landers v. l i 8 I i i i l l i 1 L_1__________._ l
4~ ., Commonwealth-Lord Joi'nt Venture, 83-ERA-5, (Sept. 9, 1983). (3) _An employee's direct contact with.a1 competent organ of- l hovernmentisprotected. Brown and Root, Inc. v. Donovan, 747'F.2d 1029 (5th Cir. 1984). .1 (4) Contacts with a citizens' group or NR'C intervenor are i 1 protected activity. Nunn v. Duke Power'Co., 84-ERA-27.,;Dec. . 4
+
- p. and order--of remand by Deputy SOL (July 30, 1987).
I 1
- a. Internal' Complaints Are Protected. '
In a critical recentfcase in the Fifth Circuit the Secretary 3
, of Labor declined to follow Brown and Root, supra., which held 1 l
that purely internal' complaints are not protected. Instead, the l SOL instructed ALJ?s to follow Mackowiak, supra, and Kansas Gas-and Electric v. Brock, 780 P.2d 1505 (10th Cir. 1985), and hold ( that purely internal complaints constitute protected. activity. , J "I respectfully decline to follow the Fifth Circuit's deci~sion in
~
Brown and Root. Should it become.necessary to do so on remand, the ALJ is instructed to follow Mackowiak and Kansas Gas and
}
Electric on the internal complaint issue." In the Matter of Donald J. Willy, supra., at 4. 1 Complainant contends that the Willy decision is dispositive of his case and this Court is required by the SOL to follow it. Lockert v. Pullman Power Products, 84-ERA-15 at 2 (August 19, c l 1985). Under the SOL's interpretation of Section 210, Mr. 1 l Hasan's repeated internal complaints to management are protected activity and any discriminatory behavior of Respondents based on l 9 1 (
r i L
'th[se internal' reports violates the , intent and purposes of the. I whistleblower protection statute. .!
l 1 o e <
- b. 1 Hasan's Activity. Threats To Go To the NRC Are Protected f O- This:dourt must find as a matter of law that an employee who threatens to go to the NRC: has engaged in protected activity.
The Brown and Root decision explicitly did not concern an "about i to" factipattern. Brown and Root, 747 F.2d at 1031. In Poulos
- v. Ambassador Fuel, 86-CAA-1, (April 27, 1984), the Secretary of Labor explicitly made note that employers who fear an employee "is about to cause trouble with the government" because the employer received an internal complaint are prohibited from
'n discriminating against such an employee. Poulos, slip op. at p. l 11.
Poulos follows Landers v. Commonwealth-Lord Joint Venture, 83-ERA-5, (Sept. 9, 1983), in which the SOL held that employees l who are "about to commence or cause to be commenced" a proceeding or action are protected. An employe~e does net have to directly inform management of his intention to report disclosures to the government. Instead, circumstantial evidence indicating this i intention, including internal complaints to management and the ' circumstances surrounding the whistleblowing, can indicate an i intention to report the violation to the government. Landers, at 11. Hasan's conduct at work undoubtedly gave rise to Respondents' belief that he was "about to" go to the NRC. Mr. j l 10 w_-_-----___---- - _ _ __j
i Hasan met his burden under Poulos and Landers in two respects. First, the above-discussed Hill and Hasan argument is a critical incident giving credence to this belief. In this incident, Hasan directly threatened to go to the NRC. Second, the method and manner of Hasan's internal whistleblowing is circumstantial proof that Respondents' truly thought that he was about to go to the NRC. For instance, Hasan made continual references to the fact that the NRC would be very upset when it found out about various miscalculations and omissions in the engineers' pipe support I work. Hasan's pointing out of these miscalculations and omissions was an extensiye occurrence, taking place frequently in the years that Hasan was employed at Comanche Peak. Third, Mr. Krishna Ravada, another engineer at Comanche Peak, testified that he told John Finneran that Hasan was contemplating going to the NRC. And Mr. Ravada also testified that a standing joke at Comanche Peak involved Hasan's threats to go to the NRC. These ' events, taken together, are circumstantial evidence that Respondents thought Hasan was "about to" go to the NRC. The Brown and Root decision explicitly did not concern an "about to" fact pattern. Brown and Root, 747 F.2d at 1031. In fact, in a recent decision of the Deputy Secretary of Labor, which is binding authority on this Court, the Secretary recognized that Brown and Root only interpreted one phrase of the three phrases which define protected activity in Section 210. In Nunn v. Duke Power Co., 84-ERA-27 (July 30, 1987)., the Secretary explicitly held Brown and Root to an interpretation of the "in any other action" clause. Brown and Root is not authority for 11
.a -
~otheraspectsofprotectedactivity,suchas'thrha'tst'ogoto~the
.NRC.: Nunn, at 12, 13.
'}l 4
- c. Complainant's External Protected Activity.
Contrary to Respondents' contentions, Complainant did have contact with a " competent organ of government" prior to his ! removal from the Comanche Peak project. Mr. Hasan reported his safety concerns regarding the Comanche Peak facility directly_to the NRC.on-a number of occassions before his employment with NPSI was terminated in October, 1985. These contacts with the NRC'are- i documented in~ numerous NRC memoranda. In addition, Complainant had a telephone conversation with an employee of the NRC, Mr. Iqbal Ahmed, in February of 1985. In this telephone conversation Hasan voiced concerns about some of the engineering practices being used at the Comanche Peak - facility. The Brown and Root doctrine does not define what is meant by the requirement of " contact with a competent organ of i i the government" and thus "some contact" with the NRC is all that is necessary. Mr. Hasan's conversation with Mr. Ahmed clearly entailed "some contact" with the NRC and thus is sufficient to constitute protected activity under Section 210. Even if this Court upholds Brown and Root, Complainant y maintains that evidence of contacts with the NRC, even if unknown to Respondents, is significant circumstantial evidence of Complainant's engagement in protected activities. The fact that an employee actually went to the NRC gives rise to an inference l [ ! j 12 i l'
that this employee acted in such a manner at work so as to create the suspicion that he would be likely to talk to the NRC. Thus Hasan's contact with the NRC gives rise to an inference that Respondents thought that Hasan might go to the NRC. Brown and Root did not hold that employers must have actual knowledge that an employee went to the NRC. Brown and Root merely held that an employee must have gone to the NBC. Prior to the second incident of blacklisting in January.of 1906, Hasan had not only gone to the NRC, he had given two days of testimony at an NRC proceeding.
- d. Contact With A Citizens' Group Is Protected Activity.
Contacting a citizens' intervenor group in order to assist in an ongoing NRC proceeding is protected activity. Nunn, supra, at 12, 13. Rencher's and Hasan's testimony indicates that management at Comanche Peak suspected that Hasan was such an informant for CASE (Citizens' Association For Safe Energy). Respondents were prohibited from discriminating against Hasan on the basis of this suspicion.
- 2. Respondents Knew That Complainant Engaged In Protected Activity. ,
In order to establish a prima facie case, the Complainant must show that Respondents knew he engaged in protected activity. This can be done through direct or circumstantial evidence. NLRB v. Instrument Corp. of America, 714 F.2d 324, 328-329 (4th Cir. 1983); Johnson v. Transco Products, Inc., 85-ERA-7, (March 5, 1985); Frazier v. Merit Systems Protection Board, 672 F.2d 13
i 150,.156 (D.C. Cir. 1982). Testimony at trial established unequivocally that. Respondents did have knowledge of Complainant's protected activities. First, it is not contested that all levels of l management at Comanche Peak were aware that Hasan had threatened , to go or was about to go to the NRC. Second, management thought there were " spies" among the engineers at Comanche Peak. Mr. Rencher testified that he believed that there were spies at the site and that he had discussions about this belief with Finneran, Ryan, Hill, and Chamberlain. Complainant testified that Hill ! repeatedly walked-by his desk with the sole purpose of accusing i him of being a spy. Such testimony, taken together, is strong circumstantial evidence of Comanche Peak management's paranoia i about its engineers.being spies for CASE. Clearly management
. suspected that Complainant was a spy or was about to become one.
Respondents made no attempt whatsoever to deny that Hasan was accused ! being a spy. They did not because they could not. But for thfd testimony of Mr. Rencher, admitting the spy allegations of Texas Utilities' management, Complainant's story would seem incredible. The idea that supervisors in a highly regulated industry would walk around the plant accusing employees of being spies seems ludicrous, or worse, a paranoid delusion. It is not normal conduct. However, Rencher had no reason to lie- l about this. No motive exists to explain his concoting such a seemingly absurd story. Obviously, Mr. Hasan did not suffer from delusions of paranoia; spy allegations were a real occurrence at. Comanche Peak and they were directed at Hasan, particularly while he was assigned to Barry Hill's group. 14 i L_______-----.
4 Further evidence of Respondents' knowledge of Complainant's protected activity is supplied by Mr. Krishna Ravada's testimony that'he told Finneran of Texas Utilities on August 16, 1985, that Hasan had said he would'go to the NRC if management failed to properly address his concerns. Ravada testified that it was standard " shoptalk" at Comanche Peak that Hasan contemplated going to the NRC. Ravada also testified that he often joked with the other engineers and management that Hasan would go to the NRC. {Mr. Ravada is an objective witness who has no stake in the outcome of the case and has no reason to lie about what he told Mr. Finneran.] Circumstantial evidence that Finneran believed the statement of Ravada and was concerned about what Hasan might say to the NRC is evidenced in the meeting that Finneraa requested with Complainant.
, This meeting took place on August'16 and 19,1985, with Finneran, Ryan, Rencher, Chamberlain, Westbrook, and Hasan in attendance. These supervisors were fearful of what Complainant might reveal to the NRC.
Evidence of this is their repeated attempts to get Hasan to discuss his concerns with SAFETEAM, an organization at the plant, and Finneran's asking Complainant to list the concerns he had about the project. The very nature of this meeting shows that Respondents were worried about Complainant's allegations of safety violations. At the very least, Respondents were fearful that Complainant was "about to" engage in protected activity and thus under Section 210 they were prohibited from discriminating against him. Therefore, on the strength of testimony given at trial by 15
_ _ , , _ _ , , _ _ _ _ - _ - - - - - - - - - - - - - - - - - - - ~ -_ ' ' ' - ~ - ' ' ~ ~ ' _ _ _ _ _ - _ - - _ - - _ _ _ - - - - - - - t both Complainant and Respondents' witnesses, Complainant clearly established the elements of his prima facie case. He did engage in protected activity, management knew of this, and their l retaliatory actions were based, at least in part, on knowledge of this protected activity. On the basis of this uncontroverted evidence, Complainant respectfully contends that the ALJ must rule in his favor.
- 3. Mr. Hasan's Protected Activities Played At Least "A Part" In Respondents' Decision To Blacklist Him.
The employee must initially establish, by a preponderance of the evidence, a prima facie case showing that illegal motives
" played some part" in the disciplinary action or discharge.
Mackowiak, supra, at 1163-1164. Protected activitien need not be the sole reason for an employee's dismissal; it is sufficient , that they formed a mere factor in the employer's decision to discipline.or discharge the employec. "If a discharge is motivated in part by an employee's protected concerted activities," the discharge violates the relevant whistleblower statute. Deford v. Secretary of Labor, 700 F.2d 281, 287 (6th Cir. 1933). (emphasis added) The testimony of Jay Ryan unequivocally established that Mr. Hasan's protected activities were at least in part the reason, if not the sole reason, Ryan told Finneran to advise Stone and Webster not to retain Hasan at the site. Ryan's opinion of Hasan as a troublemaker was based on Hasan's continual rejecting of miscalculated packages and on the blow-up oetween Hasan and Hill 16
M^ , 9 h; -
'r" '
1. w
'f '
in December-1984 or:Januaryc1985. . Based.on thisfevidenceLalone,- Hasan established hisrprima facie case.
- Respondents contend that theJreason for: Hasan;being laid off fr'om the Comanche Peak. site was his difficulty in getting.
o along with'other.. employees and with management. However, even if these. contentions are true, the "in part" test renders any 1
' personality problems irrelevant with regards'to Mr. Hasan's- .~
production-of a' prima facie case. .All-that.is required under the.
'"in part" test is a showing-that Complainant's: protected-activities played-at.least=some part in Respondents' decisions to
'tranfer and discharge him. Mackowiak, supra, at 1163-1164; NLRB v.-Associated Milk Producers, Inc., 711 F.2d 627. (5th Cir.1983)..
Mr. Ryan only . recalled incidents of.Mr.' Hasan's-protected activities when'he was asked at trial what led ulm.to give. John !
, Finneran a negative assessment of Hasan. The only two incidents Ryan could recall',.which he based his negative recommendation on,
- were'Hasan's blow-up with Hill and the delays Hasan caused when he rejected Ryan's pipe support packages. .This testimony alone g
is-dispositive of the issue. The fact that Ryan cited Hasan's protected activities, such as the threat to go to the NRC which was made during the argument with Hil], conclusively established u that these protected activities were the basis, at least in part
.. if not solely, for Respondents' failure to recommend Hasan for hire.
i 17
i B.
. RESPONDENTS PRODUCTION FAILED TO MEET THEIR BURDEN OF PROOF OR The Hasan case is a' dual motive case. LMackowiak, supra, at 1163-1164; NLRB v. Wright Line, 662 F.2d 899, 907-908 (1st Cir.
1981), cert, denied, 455 U.S. 989 (1982). In a dual motive case,
-the critical question is whether an improper motive played a part in a termination or an unfair labor practice. Once-the employee establishes his prima facie case by showing that illegal motives ;
played some role in his treatment, the burden of proof shifts onto the employer to persuade the ALJ that it would have. discharged or disciplined the employee even if the protected activity had not occurred. If it cannot be determined whether the employer discharged or disciplined the employee out of
]
legitimate or illegitimate motives, the employee prevails. The
, employer bears the risk whenever "the influence of legal and a illegal motives cannot be separated." Mackowiak, supra, at 1159, !
1164, quoting from NLRB v. Transportation Management Corporation, ! 462 U.S. 393, 403 (1983). In Priest v. Baldwin Associates, 84-ERA-30, Final Decision l and Order of the SOL (June 11, 1986), the SOL reiterated the significance of the respective burdens of production. The SOL l held that it was " reasonable to look to the respondent employer" to produce " specific examples" or corroborating documents to meet its burden of production. Priest, id., at pp. 12-13.
- 1. As A Matter Of Fact Respondents Did Not Meet Their Burden of Proof or Production.
As a matter of fact Respondents did not meet their burden of 18
- c. :
o. y , J
. :e W .
proof or production.; Respondents did not produce evidence
, documenting their contention that personality. problems were the j legitimate business reason for the. decision not to retain Hasan.-
l- 'In' fact, Respondents stipulated that Hasan wasinever discipl'inedl for his alleged. personality quirks. ~ Respondents _did not produce a single co-worker of Hasan'who testified that he was difficult
'to get along with. The-only co-worker. produced at trial was Mr.
Ravada. And Mr. Ravada had nothing but praise for Hasan's
, engineering abilley and likewise found no fault in Hasan's ability to work with.others. Similarly, Ram Hemrajani, who praised Hasan's work as a team leader.as'"brillant," was never .
called by Respondents to contradict this written assessment'of Hasan. Also, Hasan's production as an individual checker and as ! 1 a team leader was always well above average and his last t j l
' supervisor at Comanche Peak, Mr. Chamberlain, provided Hasan with j aigood letter of reference.
Further, there is undisputed evidence that Hasan's supposed inability to get along with others never previously interfered-with his work. Mr. Hasan has over 16 years of experience in the nuclear engineering industry. During this time he received only above average ratings and merit raises. This supposed personality disorder never manifested itself in such a manner as 1 to prevent Hasan from obtaining work. Complainant proved his prima facie case, and thus the burden fell to Respondents to refute it. Respondents applied the harshest sanction available l in labor" cases, termination, for an offense for which Hasan was never reprimanded. And, Respondents never produced a shred of i 19
, , . . . ..,,_,,_._.,.,y
4 ti evidence ~to show that any other employee had.ever been j reprimanded for such an offense. Thus, Respondents. failed to I meet their burden of production.on the issue of Hasan's alleged j inability to get along with other engineers. If Hasan's work record was clean and.his production high, ! i then the only other possible legitimate reason Respondents could deny' Complainant a job would be if he was not as qualified as the other applicants for the position. However, an analysis of i documents obtained through discovery concerning the experience of
~
I i the engineers offered jobs by Stone and Webster shows clearly that Hasan was more qualified in terms of experience and i performance than most of those retained at Comanche Peak. 54 of the 78 Comanche Peak engineers who were extended job offers by Stone and Webster in August 1985 hadiless experience in
, nuclear engineering than Hasan. In other words', approximately 70 i per cent of all Comanche Peak engineers offered a job with Stone '
and Webster in August 1985 were less qualified than Hasan. (See Stone and Webster's interrogatory responses.)' Respondents only provided 1985 job ratings for 28 of the NPSI engineers offered ! employment by Stone and Webster in August 1985. In comparison to { Hasan's " good" rating during this NPSI evaluation period, Stone f and Webster hired 13 engineers who had performance ratings of only " fair," " satisfactory," or average." Therefore, almost half of the NPSI engineers for which Respondents supplied performance information had lower performance ratings than Hasan. Complainant contends that this percentage would be greater if Respondents had fully complied with discovery requests. 20 _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ . _ . _ . . _ _ _ _ i
[a .4 --
. , m
. ,s y
'S'uch statistica1' evidence (1s proo'fLofedisparateitreatment.
Disparate treatment simply means.thatJan' employee.who~ engages in L t.
' protected activity'was[ treated differently, or disciplined-more p
harshly, than an employee who did not engagefin protected', "'
- activity.
L Donovan-on Behalf-of'Chacon v. Phelps Dodge' Corp.,'709 F.2d.86, 93l(D.C.;Cir. 1983). This disparate' treatment is ' furtherfproof-that Hasan's protected activities were-the reason i for his release from the Comanche Peak site. Respondents could not produce a single shred of' evidence, such as negative
-evaluations of Mr. Hasan, to negate the contention that Hasan was, atLleast'in part, discriminated against because of his protected. activities. Rather, a' review of Hasan's~ work .f; 1 'i' evaluationsiindicates,that he was a "brillant" engineer (Cx12)'.
~ ~
According to NPS management,'Hasan was capable of:doing theLwork-
, of-any three engineers-(Cxll). .Hasas n last two evaluations, i compiled by Chamberlain,' rated his. performance as " excellent"'and' 'l
'" good." In fact,'during Hasan's 16 years as an engineer he never
'r.eceived a single written reprimand or. demotion.
- 2. As A Matter Of. Law, Respondents'Did Not Meet Their l
U Burden of Proof or Production. Assuming, arguendo, that Respondents correctly assert that Hasan's manner of raising technical concerns led to personality conflicts with other engineers, and even assuming these personality conflicts occurred independent of Hasan's engaging in protected activity, Respondents were still prohibited from discriminating against Complainant because even " hostile or discourteous" dissent remains protected. Linn v. United Plant i 21 l I l i
4 , g j
.~ :{
g/m RU la
' Guard' Workers of' America' Local'll4,-383.U.S. 53 (1966). ;Also see
- NLRB'v. Washingt'on' Aluminum Co., 370fU.S. 9 (1962), NLRB v. Local Il
' Union No. 1229, International Brotherhood of Electrical' Workers,.
346 U.S.o464 (1953). The Supreme Court expresslyLheld:in Linn that case's i
' involving. speech are to be considered "against theLbackground:of a' profound... commitment to the principle-that debate...should be, 1 j
uninhibited,: robust, and wide-cpen', and that it.may well' include. vehement,1 caustic, and sometimes unpleasantly. sharp attacks."
- Linn, supra,Jat 62, quoting New York Times Co. v. Sullivan, 376 U.S. L254, 270.(1964). If the. Court applies the-Linn precedent-in this case, which.it must~do, Hasan's internal complaints, however unpleasant they_were-to management or his co-workers, remain- '
. protected.
.Recent cases state that whistleblowers are often hard to get
;along with.
Kansas Gas and Electric, supra. This is likely.due *
'to the fact thatLthey are creating a disruption in the normal i routine of the plant or facility. However, this-disruption !
usually benefits the public health and safety. -Only when this ! level'of disruption rises to a level beyond the Linn standard
.does it trigger the loss of whistleblower protection. In Mr. i' Hasan's case, such a level was never reached.
Also see Phillips v. Interior Board of Mine Operation Appeals, 500 F.2d 772, 778 ( D . C '. Cir. 1974), cert. denied 420 U.S.'938'(1975), in whic4 the Supreme Court recognized that
" safety costs money," and that employees who " insist on health and safety rules being followed, even at the cost of slowing down 22 4
I
p.g 3y! Q m lO a
. , p- .
+
i 4
,r . .i r 2
.; 4
- ,' y ,
t;). p (i productio{are[not likeiy:.to be popu} At . . . " . The Phillips , precedest~has'been'cbntinuous19' applied,by'the' SOL.
.[lfdasan's' complaints"ofcafetyviolationsareviewedunder a v: ,
the -Linn and Phillips standard, Ei t.1:rii' ear that Hasan could not E
'I be. disciplined.or dis harged on.the basis of;vbicing these
. complaints'. ~Hasan's?cdmdlaints; consisted cffhis. good faith-att'empir/ to. call certal'rt safety problems to' management's ~
attenI$ ion.! These concerns'are'now-part of a major investigation
, by the:NRC cf the Comanche , Peak facility.- However, regardless of LtheirEgravf.ty, thd concerra Itasan raised whj.1'e at Comanche Peak rapain.prptocted n .,
~
activity under Section 210. Simply.put,
- alh,g2G mui must,bt made in good lalth but, "The employer may not tite.1.t on dtself'to d'etermine'the' correctness or consequences"
;of'alwhistleblower's charges. fettway v. American Cast' Iron Pipe
; compayn,,.411 F.2d 998, 1007 (5th Ci m 1969).: It is the ability i to slow the whistle on wrongdoing that is protected; the specific validity of an allegation-is irtolevant. In fact, the DOL-has no jurisdichtbn to' determine whether,a whistleblower's comp 1 hints to v
tha' NRC .are oc' rrect f rom an engineering standpoint. . Landers v.
-I. ,
.dommon .ea.(th -Lo: Moi,nt Vergurtr, 83-ERA-5, slip op.,of ALJ at 3'
\
(14ay 11,.19 33 ) , adopted by SOL (Sept. 95 1983), stay denied, L Commonwealth-Lord ' Joint Venture v. Donovan, 724 F.2d 67 (7th jCir.1933).
- l. ,0.p, i l
e
- 3. As h Aatter of Evidentiary Law, Reccondents Falled
- Tc., liaet Their Burden of Proct. 7 I As a matter o' law,"P.espondenta did not meet t. heir
'j.
JNidentiary burden of proof. Respondents produced no documents 2'3 i
,f '
[ [l'
, l T' i
7 . - - _ _ _ , _ _ _ O ' in:discoveryfthat tend to. substantiate their. contention'thatIthey would have discharged Hasaniregardless of his protected j, f activities.
.Complainantirequested in' discovery documents'such as resumes and' performance evaluations thatLwould afford.a' comparison between Hasan and other: employees at Comanche Peak. The relevant documents.were not produced'in total by Respondents. Even
'without an order to' compel production of documents, if a respondent failsito voluntarily produce: documents in their '
' possession which would be more probative than oral testimony, an
' adverse inference.is required. International Union (U.A.W.) v.
.NLRBi 459 F. 2d .1329 (D.C. Cir 1972) . - The employment records of other engineers at' Comanche Peak would have'been more probative than~ oral testimony. Since Respondents did not produce these in (total, they did not meet their evidentiary burden.of proof or production.-
C. DAMAGES.. At trial, the ALJ did not allow Complainant to introduce evidence on the issue of compensatory damages. Complainant contends that_not allowing such is a violation of precedent set in the Fifth Circuit. According to Deford v. Secretary of Labor, 700 F. 2d 281, 288 (6th Cir. 1983), compensatory damages are
. . m
'awardable under Section 210. "[A] cursory reading of Section
.5851 (b)(2)(B) (Section 210) discloses that compensatory damages are. allowable in addition to abatement of discrimination, !
d
\
reinstatement with back pay, and restoration of all job-related entitlement such as retirement benefits." i 700 F.2d at 288. The i 24 I _ - _ _ _ _ _ _ _ _ _ _ _ . . . _ _ _ _ _ _ _ __ a
Fifth Circuit has defined compensatory damages to include compensation for emotional distress, pain and suffering, mental anguish, and lost future earnings. Smith v. Atlas Off-Shore Boat Services, Inc., 653 F.2d 1057 (5th Cir. 1981). Accordingly, Complainant respectfully requests that the record remain open on the issue of compensatory damages. 1 In addition to compensatory damages, Mr. Hasan is entitled I to the following actual damages: (1) At the time of his release from NPSI on October 18, 1985, Hasan was earning $23.00 an hour. For almost one year, between October 1985 and October 1986, Mr. Hasan was unemployed. Not including overtime, Hasan's lost salary totaled $47,840, and his lost per diem pay (approximately
$210.00 a week), totaled about $12,600.
(2) Hasan was unable to make monthly mortgage payments on his house in Houston during the period of his unemployment and it was foreclosed. The net monetary loss of this foreclosure was $7,000.00, consisting of a $5,000.00 down payment and $2,000.00 for improvements. (3) Mr. Hasan is entitled to all costs associated with this case. (4) Hasan's damages resulting from the foreclosure, lost salary (not including overtime pay), and lost per diem pay totaled S67,440.00. D. CONCLUSION. Complainant has established the elements of his prima facie case. Correspondingly, the burden of proof shifts to the 25
i' , J ., Respondents. As Respondents failed to fulfill their burden of proof, Complainant is entitled to a verdict in his favor. ' Respectfully submitted,- '
- ;,/s_-
MICHAEL D. KOHN STEVEN M. KOHN THOMAS J. MACK Attorneys for Complainant Government Accountability Project
.25 E Street, NW Suite 700 Washington, D.C. 20001 (202)347-0460 ,
On Brief: . Dave Colapinto Jane Higgins Legal Interns I J L I 26 1 L _ _ _ _ _ _ _ _ . - --- -- - - - - - - - - - - - - '
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[ n . y.;
. Certificate of Service I'
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'I hereby; certify that a copy'of the. attached. document was sent: on rY//h ~7
, by[Nare / 'b/7f t'TI to:
\
The Honorable' Alfred Lindeman Administrative = Law: Judge Office of' Administrative Law Judges United States Department'of Labor 211 Main Street San Francisco, California 94105 I.hereby certify that a copy was sent on (f M[7 , by 0cI [/()/c(I 9
, to:
Harvey J. Wolkoff, Esq. Ropes and Gray '_ 225 Franklin Street Boston, Massachusetts.02110
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,/032al5 cert i
- , , . . . . . . _ _ - _ _ -- - - - - - - - ~' ~~ _ _ _ _ _ _ _ . . . . . . - . . - - -
UNITED STATES OF AMERICA BEFORE THE DEPARTMENT OF LABOR-
)
- S.M.A. HASAN, )
)
Complainant, )
- v. ) Case No. 86-ERA )
' NUCLEAR POWER. SERVICES, INC., )
STONE'AND WEBSTER ENGINEERING CORP., ) ; TEXAS UTILITIES ELECTRIC CO.,.INC., ) !
)
Respondents. )
)
i 1 COMPLAINANT S.M.A. HASAN'S PROPOSED' FINDINGS OP FACT FILED IN SUPPORT OF HIS POST-TRIAL MEMORANDUM OF LAW
. GOVERNMENT ACCOUNTABILITY PROJECT Michael D. Kohn Stephen M. Kohn' Thomas .J. Mack 25 E. Street, Suite 700 ,
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Washington, D.C. 20001 j (202) 347-0460 ; Attorneys'for Complainant S.M.A'. Hasan Dated: August 14, 1987 I o w- _ _ _ _ _ _ _ . _ . _ _ _
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- TABLE OF CONTENTS PAGE 1 I.
COMPLAINANT WAS AN EMPLOYEE WITHIN THE MEANING OF SECTION 210, AND RESPONDENTS WERE EMPLOYERS WITHIN THE MEANING OF THE ACT 1 II. S.M.A. HASAN'S PRIOR EMPLOYMENT BACKGROUND AND WORK j RECORD
'l III. .HASAN WAS DISCHARGED OR OTHERWISE DISCRIMINATED AGAINST WITH RESPECT TO HIS COMPENSATION, TERMS, CONDITIONS, OR !
PRIVILEGES OF EMPLOYMENT 3 A. Hasan's Initial Application For Employment to SWEC In July'and August 1985 3 B. TUGCO Blacklisting of Hasan 3 C. SWEC Found Hasan Acceptable For Employment 5 , D. SWEC Participation In the Blacklisting of Hasan In August 1985 and January 1986 6 - E. Hasan's Filing of Complaints 8
- 1. Internal Whistleblowing 8
- 2. Hasan Filed Numerous Complaints About His j
Discharge 10
- a. NRC and DOL complaints 10
- b. EEOC charges 12 IV.
COMPLAINANT ENGAGED IN PROTECTED ACTIVITY 13 l A. Internal Protected Activity 13 B. Threatening Or Stating An Intention To Disclose Violations to the Government 19
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f != . C. Direct NRC Contacts 21 1.- Iqbal Ahmed 12 1
- 2. Contacts.After Hasan's Release '22
- p -D. Suspect As A~ Spy For CASE- 23
'V.
EMPLOYER KNOWLEDGE THAT COMPLAINANT ENGAGED IN PROTECTED ACTIVITY. _ 24-I- A. ' Krishna Ravada 24 B. Finnean Meets'with Ravada on' August 16 To Discuss L. Hasan's Whistleblowing. Activities 26 l C. Hasan's " Flare-up" with Barry Hill 27 D.- Finneran Meets'with Hasan For-the Entire of Day August 19.To Discuss Hasan's Safety Concerns' 28 VI. DISCRIMINATORY MOTIVE 33 A'. Circumstantial Evidence -- Ryan's Animus 33 B. Inherently Discriminatory Conduct 35 C. Dual Motive 38 D. ' Disparate Treatment 43 VII. DAMAGES 47 VIII. RESPONDENTS'-CHAIN OF COMMAND 48 IX. CRITICAL ELEMENTS OF RESPONDENTS' CASE ARE IN CONTRADICTION 50 1
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4, r V l I. COMPLAINANT WAS AN EMPLOYEE WITHIN THE MEANING OF SECTION 210,JAND RESPONDENTS WERE EMPLOYERS WITHIN THE MEANING OF THE ACT Mr. Hasan was an employee within the meaning of Section 210 of the Energy Reorganization Act (ERA). Stipulation of Parties, Tr. 7. Respondents Texas Utilities (TUGCO) and' Nuclear Power. Services, Inc. (NPSI) were employers of Hasan within the meaning of Section 210 of the ERA,=and Stone & Webster Engineering Corporation (SWEC) was an employer within'the meaning of the Act. Stipulation of Parties, Tr. 7-8.
.. NPSI was a contractor for Texas Utilities Generating Co.
(TUGO), the principal owner of the Comanche Peak project. In the summer of-1985 its contract with TUGCO.for pipe' support design services was terminated and transferred to Stone ar.3 Webster Engineering Corp. (SWEC). Tr. 19. SWEC was hired by TUGCO to carry out a pipe ~ support requalification program. Tr. 18-19. II. S.M.A. 1 HASAN'S PRIOR EMPLOYMENT BACKGROUND AND WORK RECORD In September 1979 Syed Mohammed Aziz Hasan was hired by NPSI. Tr. 220. In January 1982 Hasan was transferred to the Comanche Peak project in Glen Rose, Texas where he was assigned i to the NPSI pipe support group under the direction of group leader Pradip Badheka. Tr. 226. l In April 1982 Hasan was promoted by David Rencher to team leader under group leader Ram Hemrajani. Tr. 112, 226, 361. k i i
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1 r r Hasan held the position of team leader in.the_NPSI group at ' Comanche Peak from about April'1982 to May 1984. Tr. 360. Before working at the Comanche Peak project H5 san had been '* continuously' employed as a nuclear engineer in the United States since June 1969, specializing as'a civil / structural / pipe support
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engineer on the structural / pipe support design of nuclear power plants. Tr. 221, 479; CX 10. -+ Hasan worked on the Beaver Valley, North Anna, Catawba, Clinch River Breeder Reactor, and South Texas nuclear power project's before working at Comanche Peak. He received a B.S. 5 degree in Civil Engineering in 1965 and a B.S. in PhysicsLin'1960 from the University of Karachi, Pakistan and also took graduate courses in structural engineering at Cornell University, Ithaca, N.Y. in 1968 and at Northeastern University, Boston, Ma. in 1971. CX 10. i During 16 years as a nuclear engineer Hasan had never been " I, laid of f or denied employment because of an l'nability to get along with co-workers. Tr. 221, 479. In fact, Hasan was never ) reprimanded or disciplined for disruptive behavior or an inability to get along with others by any employer, including the respondents. Tr. 216, 221, 479. Respondents stipulated that no formal reprimand was ever conveyed by Texas Utilities to Hasan for being disruptive. Tr. 216. s At no time prior to his release from Comanche Peak on August 16, 1985, was Hasan even without a job. Rather he received for j_ 16 years constant promotions and pay increases as a nuclear i L engineer. He was never asked to leave by an 1 t
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I I employer and.only resigned'his position at one company for advancement at another. l III. HASAN WAS DISCHARGED OR OTHERWISE DISCRIMINATED'AGAINST' 4 WITH RESPECT TO HIS COMPENSATION, TERMS, CONDITIONS, OR PRIVILEGES OP EMPLOYMENT 'I I q A. 'Hasan's Initial Application For Employment to SWEClIn July and August 1985 ' a Hasan applied for employment with Stone & Webster Engineering Corp.' (SWEC) at an interview arranged by TUGCO at the Comanche Peak site on July 31-to August 1, 1985. Tr. 287. In July or_early August 1985 Finneran'provided George Boerum 3 and Ron Klause of SWEC a list of engineers that TUGCO would not recommend to hire for the requalification effort. Tr. 27. The list of engineers submitted to SWEC had 110 names on it,' which' bore indications next to each person's name as to whether TUGCO was recommending that engineer to SWEC. Tr. 38, 41. Hasan was one of the people on the list that.TUGCO had nob recommended. Tr. 27. B. TUGCO Blacklisting of Hasan Finneran received the recommendation not to hire Hasan for the requalification effort from Jay Ryan which Finneran passed along to SWEC. Tr . : 28, 35, 533. Ryan was the only person t Finnergn consulted regarding the recommendation of Hasan. Tr. 30. l Ryan testified that he. recommended to Finneran that Hasan not be kept on "due to his disruptive nature." Tr. 534. This
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_ _ _ _ __ _- _ -_-- ------------- ----- ------- - - - - ---- - - - ------- - - - - - - - - - - ~^ ~ ~ ~ was Ryan's only basis for not recommending Hasan to SWEC. Tr. 547. However, all of Ryan's knowledge about Hasan's disruptive behavior was received through reports from Chamberlain in early 1985. Tr. 178, 538-539. Chamberlain testified that Ryan did not ask him for input concerning Hasan's capabilities, and Chamberlain was not even aware that Ryan was providing input to Finneran on who should be hired by SWEC. Tr. 156. Ryan testified that Chamberlain told him about a " flare up" between Hasan and Hill, which occurred in January 1985 when Hasan informed Hill that he was going to go to the NRC about a safety concern, and Chamberlain also told Ryan about other " disruptions" in early 1985 regarding numerods " technical issues" Hasan consistently brought to management's and his co-workers' attention. Tr. 538-539. Ryan admitted that he never spoke to Hill about the January incident, and he had no information that
- Hasan "ever incorrectly raised or resolved" technical issues.
Tr. 538-539. Later in his testimony Ryan provided insight into what he meant by " disruption" when he admitted that it was Hasan's one
" flare-up" with Hill as well as Hasan's pointing out of technical flaws during the review of packages that caused disruption and time delays, and which gave him concern. Tr. 538-539, 543-544; Finneran testified that he assumed Ryan had based his negative recommendation about Hasan on knowledge of Hasan's performance in the work area.
Finneran did not review Hasan's personnel file, he did not talk to Chamberlain or any other
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i 1 I engineers about Hasan's performance, nor did he inquire or know whether Ryan had reviewed Hasan's. personnel files. Tr. 29, Finneran'was Ryan's superior and as such had the authority I i I to_ overrule the recommendation not-to hire Hasan at any time.
/ Tr. 28.
i In fact, Finneran did change'at least six of.the negative recommendations that TUGCO sent to Boerum in August 1985,-and SWEC then hired'those engineers. Tr. 564. C. i SWEC Found Hasan Acceptable For Employment i i-It is uncontested that Hasan would have been hired by SWEC ! l in August 1985, but for Finneran's' decision not to recommend 1 ( Hasan. Likewise Finneran would have recommended Hasan, but for j Ryan's negative. opinion of Hasan formed by the Hill incident and l l Hasan's rejection of packages. i In August 1985 Boerum contacted Finneran after SWEC had conducted the first round of interviews of engineers at the site 4 i
.because SWEC wanted to reinterview about 12 engineers. Tr. 5,78. i Hasan was-one of the 12 engineers that SWEC wanted to reinterview. Tr. 42. Hasan was interviewed by SWEC for a second time on August 15, 1985. Tr. 287.
Boerum agreed, through his testimony, that Hasan was one of a group of 12 engineers who SWEC "had earlier found acceptable" in July 1985. Tr. 576. But for Finneran's recommendation not to hire Hasan, SWEC would have offered him b position after the
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first round of interviews at Comanche Peak, because Boerum l followed Finneran's decision for each of the seven engineers ! whose negative recommendations were changed. Tr. 577. f l
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SWEC did'not make job offers until August 20 or August ~21, according to Boerum's testimony, one day after-Finneran's day long meeting with Hasan. Tr. 589. D. . SWEC Participation In the Blacklisting of Hasan.In August 1985 and January 1986 On Saturday January 18, 1986 Hasan applied to SWEC again'at' an open house in Houston,~ Texas, and was interviewed by three-SWEC officials. Tr. 289. After Hasan applied during the SWEC open house in January 1986, the'SWEC personnel manager in Houston, Pat Shields, contacted Boerum. Tr. 568. Boerum testified that Shields { 1
' informed him that SWEC was considering Hasan and he told Shields, "that'back in August we had made a decision not to hire Mr.
Hasan, and I couldn't see any reason why in' January or February
, we would change our mind to hire him." Tr. 568. Boerum's decision not to extend Hasan a formal job offer in January and
' February 1986 was based on "what happened back in August" 1985.
Tr. 569. However, the first SWEC interviewer on January 18th told Hasan that he had good experience in the nuclear industry and asked if he could start work on Monday. Tr. 289. The first interviewer even wrote " hire" on the paper in front of him,
' indicating Hasan's, acceptability. Tr. 301. i
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The second SWEC interviewer asked Hasan about his work history at SWEC, and then asked him to wait in the reception room 4 for his next interview. Tr. 290. Hasan had worked previously for SWEC for a few years at SWEC's Boston office beginning in L.
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~1969. From. June 9, 1969 t'o March 1974 Hasan-received four merit raises'while. working'for SWEC. Tr. 479. i By matter.,of adverse'. inference,iHasan's prior rating by SWEC I
was higher than " fair", Tr. 596-597, and must have been either J "very good" or " good" whe'n'Boerum made his inquiry. Tr.<562. ( 4 , After the second interview was.over Hasan returded to the l 1 waiting room where other engineers were relieved to have also 4 finished their second t.echnical. interviews. It was generally accepted amongst the other interviewees that the only thing remaining to be decided was the question of salary. Tr. 290. i
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For approximately five hours Hasan waited for'his third interview to be conducted by someone from the SWEC personnel
. department, and missed his lunch and s.cheduled airplane back to Fort Worth while waiting. Tr. 291.
, Finally, Hasan was able to see a personnel' officer named i
Shields and inquired ~about his application. Shields asked Hasan 1 into his office and said there was no problem with Hasan working j i for SWEC, but he could only make a verbal offer since it was
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Saturday and only needed to check one more detail -- whether to assign Hasan to Comanche Peak or relocate him to Houston. Tr. ) 292-293. - Hasan left the SWEC open house in Houston convinced he was hired because of Shields' verbal offer, the first two interviews I had gone well, and he had even seen the word " hire" written on a paper by the first interviewer. However, no call offering a job ever came. Hasan attempted to follow-up the interview by phoning the SWEC interviewer but was told that it would take some time l 1
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. t and to wait for a call from SWEC. Tr. 292-293.
In: February ~1986 SWEC sent.Hasan a letter: rejecting his. job
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application taken at the open house'in Houston. Tr. 292. E. Hasan's Filing of Complaints.
- 1. ' Internal-Whistleblowing
, ;Between. January 1982 Land August 1985, on countless- l occasions, Hasan' brought to~his superiors' attention many safety concerns about. Comanche Peak. These concerns are now !
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characterizedLbyLthe NRC as 65 allegations about quality -j 1 assurance. CX 14. 1 Prior to notification of>his release from Comanche Peak on 1 August 16,'1985, Hasan stated his dissatisfaction with many technical problems at_the site and his desire to report safety violations to the NRC. Hasan's very manner.and., method of 4 conveying his intention to go to the NRC was communicated to j plant management by direct confrontation with his supervisor and - ol 1 indirectly through his friend Krishna Ravada. On August 16, 1985 Hasan was informed by Jay Ryan that he g was being laid off from the Comanche Peak' site, and that SWEC !)
'l would not be offering him a job. Tr. 50, 54, 283, 287. Hasan refused to go through a SAFETEAM exit interview on August 16th and Ryan informed Finneran of that by telephone. Tr. 54.
1 i Finneran brought the head of SAFETEAM to Hasan's desk, but Hasan i still refused to tell SAFETEAM anything. Tr. 54. l l Finneran was concerned that Hasan would not reveal to l SAFETEAM his complaints about the plant's safety violations
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which prompted Fihneran to go see Hasan. Tr. 60. After Hasan i refused to participate in a voluntary exit interview with the )
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Comanche Peak SAFETEAM Finneran then requested to meet with Hasan in the afternoon of August-16, 1985. Tr. 55, 283; RX 44. SAFETEAM's primary purpose is to allow anyone an anonymous avenue to bring safety concerns about the plant. Tr. 61. i However, the scope of the Comanche Peak SAFETEAM included
, complaints about cafeteria food. Tr. 60.-
Hasan testified that he never filed a safety complaint with SAFETEAM at the Comanche Peak site due to a lack of confidence' j with SAFETEAM.- Tr.' 284, 357. ! John Beck testified that SAFETEAM l 1 was managed by TUGCO although its investigators are contract employees of Syndeco. Tr. 516. Before meeting with Hasan, Ryan approached Ravada and asked
, him to meet with'Finneran. Tr. 81. Finneran questioned Ravada about Hasan's many safety concerns and of Hasan's stated *!
intention to go to the NRC. Tr. 74-76. ~ Finneran decided to approach Hasan about hl's reluctance to go to SAFETEAM for a brief period on August 16, 1985 and Finneran requested that the meeting be continued on Monday morning, August 19, 1985. Hasan returned to Comanche Peak on August 19th and met with Finneran from approximately 7:30 a.m. until 4:00 p.m. Tr .' 20, 45, 55, 284. At the end of their. day long meeting on August 19th, I Finneran told Hasan that he would not be taken back in the pipe , support group, but arranged an interview for the next day in one of the civil engineering groups at the site. Finneran said he s l
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g o would attach his notes of the August 19th meeting;to Hasan's. , g
= resume for'thatEinterview. Tr. 287, 447; CX7.- .
y y .On3 August 20,E1985 Hasan, appeared?for his interview in one-y of'the Comanche P,eak' civil 1 engineering groups,1but1wa's told that. *. - Lthefonly job:available was for ten weeks. Hasan was informed on: August-27th that he'would not.get that assignment. Tr. 287-288. U The next day, on August'28th, Hasan was informed'by NPSI to
.. I report tofits Chicago office, where'Hasan was told.after four days.that-there was no work for-him. Tr. 288-289,L415. Hasan-qip then reported to the NPSI'home office ~in Secaucus,- New Jersey'and h remained there until receiving his termination notice'in Octobeb
>1985. Tr. 288-289.
w j 2: . Hasan Filed Numerous Complaints About His 4i Discharge i 1
, Hasan testified that he contacted the NRC, DOL and the EEOC
; virtually simultaneously in August 1985 to file complaints about not being selected by SWEC and about his release from the Comanche peak site. Tr. 462. 'l
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i a .- NRC and DOL complaints ' On August 28, 1985 Hasan brought technical allegations and safety concerns about Comanche Peak to the attention of Chet Poslusny of the NRC in a telephone conversation. Tr. 349, 463; CX 15. On September 20, 1985 Hasan again spoke with the NRC's Poslusny by telephone. Tr. 475; CX 17. According to Poslusny's memorandum about the September 20, 1985 call, Hasan complained about a " cover up of poor design 7. .
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r activities or;an~alyses by.TUGCO," that he had been " blackballed
'by1TUGCO",~and that several engineers."less qualified than he" had~receivedLoffers 'f1 o employment. CX.17.
Poslusny's memo states that'heLtold Hasan:on September 20, 1985 to bring.his claim to the DOL. CX-17., Hasan had a case' s l
.pending.with the:EEOC'but was'apparently told that-the DOL "would i
notihandle'his; case.until'the EEOC was finished with theirs." CX17.
.j Hasan made contact with Ms. Billie' Garde of the Government {
LAccounta'litly b Project on October: 14,.1985,'which happened to be ~ a very brief' telephone conversation. lasting hardly'two' minutes because she was calling from the airport.. Tr. 460-461. Ms. Garde'was not'an attorney at the time Hasan first spoke.with her. n Tr. 4'6'1. i
.In December'1985 Hasan told Mr. Griffin of the NRC during a j telephone conversation that he had been released from Comanche i
Peak in part because of reporting techical concerns and in part due_to religious discrimination. Tr. 347; RX 69. A letter dated January 13, 1986 from H. Jack Bluestein, Director, Division of Program Operations for the U.S. Department of Labor (DOL), verifies that on October 16, 1985 Hasan contacted the DOL.and filed a complaint against the Comanche Peak' Nuclear Project. CX16. Mr. Bluestein's letter states that subsequent to the DOL's response to Hasan's October 16, 1985 complaint Hasan called the DOL "concerning alleged safety violations at Comanche Peak Nuclear Project," and that "these allegations are a part of this i 1 1
l complaint."- CX16. Bluestein' informed Hasan that the. DOL did not have "the-authority to investigate occupational safety violations,-and that
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l', his complaint was;being referred to the Occupation Safety and Health Administration.(OSHA) for a determination of jurisdiction under its programs." CX16.
- b. EEOC charges -
Hasan filed a number of pro se EEOC charges against TUGCO, SWEC and NPSI almost immediately after his release from-the-Comanche Peak project. Tr.1338. ~
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After Hasan filed his EEOC charges he went to the EEOC 1 office and brought with him a TUGCO memorandum listing names of- ! Comanche Peak engineers and the dates of-their. scheduled interviews with SWEC. Tr. 352. The EEOC offic,er handling his , case wanted to know the religions of those engineers interviewed by SWEC, so Hasan went through the. list and wrote who was Muslim, I Hindu and Christian next to their. names. Tr. 352; RX 34. 1 Hasan brought his EEOC complaints pro se. .Tr. 487. He then followed up his EEOC charges by writing several letters to public officials, including President Reagan, Vice President Bush, Senators Kennedy and Gramm as well as Congressmen Wright and i Barton, concerning his religious discrimination complaints to the j EEOC in 1985 and 1986. Tr. 337-343; RX 17, 19, 20, 21. ) l
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IV .' COMPLAINANT ENGAGED IN PROTECTED ACTIVITY A. Internal' Protected Activity q Froml January 1982 to'May 1984, Hasan brought many-safety concerns t'o'hisl superiors at the Comanche Peak site. including, Ram .Hemrajani, Dave' Rencher, Harvey Harrison, John Finneran and Q Mike McBay. Tr. 230. These safety concerns are now ! characterized by the NRC as 65 quality assurance allegations , i about Comanche Pedk. CX 14. i
=Hasan also brcught to his superiors' attention his concern that Hemrajani was an incompetent structural engineer after Hasan observed Hemrajani repeated failure to perform basic calculations for computing allowable stress on several packages. Tr. 365.
Hasan believed it was his duty to report this observation about j i Hemrajani to superiors because the NPSI group was working on NRC l packages. Tr. 36'5. l
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In early 1982 Hasan told Hemrajani his concern about 1
" punching shear" calculations not being performed in his group,
'while th'ey were performed in.other groups at Comanche Peak. J JHasan warned Hemrajani that the NRC could ask during the course
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cof an audit why punching shear calculations were omitted. Tr.
- 231.
Hasan brought his concern about punching shear to , BHemrajani's supervisor, Dave Rencher, and finally to John, IFinneran'of TUGCO. Tr. 232-233. On October 18, 1982, Finneran agreed with Hasan that younching shear calculations should be performed by the NPSI w______-____-____
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2 n l s igroupe but.Hasaniwasilater ordered by Hemrajani'and Rencher not4. L to"performLthe' calculations because'it was not addressed in the NPSI design. manual. Tr. 233-234. After being; ordered not to , perform punching shear calculations, Hasan " warned him.(Rencher]'
'that.. . .~one timeuor the other,-NRC.will~ definitely catch this in . . .. packages,fand we shall look bad."'.Tr. 234.
LBetween 1982 and 1984,'Hasan also' brought to Rencher's' attention alsafety concern regarding the' stiffness' computations. of the Class 1 piping system. Hasan' protested the omission of computing thefstiffness'of the hardware by his-group. Tr. 234-235, 237. Hasan's concern regarding stiffness of Class 1 piping were r never> addressed and the packages concerning this error.were certified without being corrected.' Likewise, the. calculations necessary to determine the hardware of Class 1 pipe suports were never performed. These concerns were told to Finneran on August
- 19, 1985 during his meeting with-Hasan. Tr. 118, 148, 236, 285-
'286, 393, John Beck,- TUGCO's highest ranking line manager on quality I
.1 assurance'and safety, testified that he didn't know whether TUGCO
.had ever treated the subject of stiffness values for Class 1 pipe lL . supports.as a reportable violation to the NRC. Tr. 530-531.
Beck, in no uncertain terms, testified that if a problem regarding the stiffness values for Class 1 supports were raised 1 between 1982 and 1985 that it would need to be investigated I. further because it could be a safety concern. Tr. 528-529. Rencher, in his testimony, confirmed that Hasan discussed 1 J l L
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t h the' stiffness of Class l' piping problems to Finneran during the August 19, 1985 meeting. Tr..ll7-ll8, 148-149. In'1982.Hasan raised his safety concern regarding Richmond ' Inserts on several~ occasions to Rencher. Tr. 240. 'While working under Hemrajani, Hasan was concerned that the " analysis of the
- Richmond Inserts were.being done at Comanche Peak in various ways." Tr. 238. Hasan warned that the prob'lem could' result in "a progressive failure of the piping system." Tr. 239.
Hasan was concerned about NPSI's review of pipe support packages that originated in the Pipe Support Engineering Group (PSE) because the two. groups used different criteria to analyze Richmond Inserts. Tr. 239. Hasan's main concern was that once a the PSE packages were' rejected by the NPSI group'they would be returned to PSE and approved, where "they used to change the scope of the package" without solving the problem raised by NPSI. Tr. 241.. This is a key point regarding Hasan's testimony of his internal whistleblowing activities, particularly those concerning the inconsistent criteria.of Richmond' Inserts, because Jay Ryan denied altogether in his testimony that PSE packages could have ever been reviewed by the NPSI group. Tr. 540. In fact, Ryan went so far as to agree for the record that if the NPSI group did indeed review his group's packages then "something would be wrong." Tr. 550. However, Rencher also testified that NPSI reviewed and rejected PSE packages. Tr. 120-121. Furthermore, Rencher even testified to the procedure his group used when they rejected packages from Ryan's group. According to Rencher's
e testimony:- A Ther'e were pipe. supports that were rejected out of I my group, and I am certain'Mr. Hasan had reviewed'some of those. Q (By Mr. Mack] 'And.were they com'ngi from Mr. Ryan's group? A Tes, they were. ' Q And when Mr. Hasan rejected Ryan's pipe support packages, would. .
.Hasan attach a memo to,those_ packages?-
A Yes. Hasan or -- the memo would.be initiated in my group. Yes Q-And he [Hasan) would sign those memos rejecting those [ packages originating out of Ryan's Group]?
, A Yes.
(Tr. 120-121.] Between 1982 and 1984, Hasan was not aware of any attempts by. comanche Peak management to resolve ~the' concerns that he raised regarding Richmond Inserts. Tr. 241. Between 1982 and 1984, Hasan informed Hemrajani, Rencher, e Harrison, McBay, and Finneran of the use of different sets of criteria and that the NRC would probably catch this problem. Tr. 245. The subject of inconsistent criteria was before the ASLB . hearings in which CASE was an intervenor and was one of the-reasons SWEC was hired at Comanche Peak. Tr. 139, 395. But, i t was not until the summer of 1985 that TUGC0 hired SWEC to correct l this problem -- long after Hasan had raised numerous complaints. l. M . (
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i Hasan repeatedly told Rencher between 1982,and April 1984 I
"that the way the same technical problem was being resolved with different criteria, [the] NRC will catch quite a few packages."
Tr. 2472248. l Between 1982 and 1984, Hasan brought to the attention of i Hemrajani and Rencher his safety concern regarding the allowables i of Hilti bolts which were susceptible to vibration problems, i Hasan was concerned that Hilti bolts located near vibrating foundations or any particular pipe support subjected to some shock or transient load was a general safety concern for the entire project. Tr. 243.
.i Between May 1984 until January 1985, Hasan raised numerous safety concerns to both Hill and Chamberlain. Tr. 258. During this period, Hasan brought to his supervisors' attention similar '
concerns as those raised while working for Hemrajani about inconsistent criteria, punching shear, and stiffness calculations of Class 1 pipe supports. Tr. 264-266. While working under Hill, Hasan testified, "I used to make I this remark that NRC shall catch these packages for using i inconsistent criteria." Tr. 272. Once again, Hasan, as a member of thh PSE group, was rejecting packages that originated in Jay Ryan's group. Ryan
' testified that Chamberlain would tell him that Hasan had concerns about Ryans' packages in the course of checking them, and that lHasan was rejecting Ryan's packages. Tr. 543.
Ryan testified he was concerned about the time delays caused t oy Hasan's rejection of packages, and he believed that Hasan's
1 P raising technical problems in the course of the normal review, i process' caused " disruption." Tr. 543-544. According to Ryan's own testimony, his only concern was over the delays associated with the technical problems Hasan would raise. Tr. 549. Ryan testified that he knew Hasan had concerns with many of i the packages coming out of Ryan's group because Chamberlain had informed him'of this fact. Tr. 542.
. In Hill's. group Hasan was under constant pressure to sign off on packages he disagreed with. Tr. 267-268, 379.
Near the end of January 1985, after confronting Hill that he would go to the NRC, Hasan was informed that he was being transferred from Hill's group to Chamberlain's special studies group, where most of the packages were related to licensing hearings. Tr. 276, 277. The special studies group read the
. Walsh and Doyle testimony before the ASLB in order to develop answers to the allegations they raised. Tr. 152-153. -
Including Hasan, there.were.only four engineers in the i special studies group. Chamberlain could keep a close eye on i Hasan per Ryan's instructions after Hasan had confronted Hill with the fact that he would go to the NRC if things didn't improve. Tr. 281. In Chamberlain's group Hasan was'used as a checker, designer, and reviewer. Tr. 277. In 1985 there was a Design Guidelines Committee, which included Finneran, Ryan and Chamberlain as members. Tr. 21-22, 168. The Design Guidelines Committee stopped meeting regularly in or about July 1985. Tr. 168. Chamberlain is not a degreed engineer and holds no formal degrees. Tr. 218.
'\
x . Chamberlain asked Hasan and two other engineers.to'do an d analytical study on the structural stability of Richmond Inserts. The:results of Hasan's analysis on the. Richmond Inserts greatly troubled-him and he informed' Chamberlain of'the results'of his~ portion of the Rich'mond Insert anlaysis he had performed. Hasan warned' Chamberlain that full scale testing "under the guidance of .. some renowned structural engineers"'had to be performed in order to adequately determine the correct 1 allowable loads for Richmond-Inserts during earthquake conditions. Tr. 278. Chamberlain reacted very angrily at Hasan's' suggestion and' took from the engineers.in the special studies group the packages upon which they were conducting the Richmond Insert analysis. Tr. 278. i In 1985 Hasan also raised' concerns to Chamberlain about the minimum frequency criteria and a very thin base plate on a particular package that had been selected byLFinneran and Beck to ' j sati'sfy the NRC at the licensing hearings. Tr. 280. Hasan's- l 1 concern over base plate thickness was verified as valid by Dr. Chang. Nonetheless, Chamberlain took the package away from Hasan without ever addressing Hasan's concern. Tr. 281. Hasan raised a concern about minimum weld reg'uirements for a' f Class 1 support in a memo to Chamberlain dated July 19, 1985. i Tr. 164-165; RX 9. Chamberlain immediately reported Hasan's concern to Ryan as he did with many of Hasan's concerns. Tr. j 168, 190, 542. l B. Threatening Or Stating An Intention To Disclose Violations to the Government l [ ._ __ _ _ _ _ _ _ _ _ - _ _ _ _ _ -
LOn two occasions Hasan. threatened Hill directly that.he-h , would go to'th'e:NRC about' serious. technical problems'in'the STRUDL computer. program. Hasan testified about oneJof'these incidents.where he sa'id "rather: loudly .;. . [that] itils. bec'oming<too much. I will go to NRC, and'some-people did hear." Tr. 273, 378, 443-444.- Both incidents occurred in'or about' January 1985. Tr. 261.
- In or aboutfJanuary 1985,: Hasan brought to Chamberlain's attention a package from Hill's group in'.which a struc't ural design' language.(STRUDL) computer program input had not been-
_,1 checked. Chamberlain allowed Hasan to run a'new STRUDL inp'ut,;but-
.when Hill learned'what Hasan was doing he ordered him.to. work on
. the package based on the unchecked input. Hasan and Hill: argued about the package and Hasan' threatened to go to the NRC if forced
, to use the unchecked STRUDL input. Tr. 260.
- Shortly after this incident Hasan had another difference with. Hill about a package in which the STRUDL input did not reflect additional earthquake loads in a vertical direction as requi. red. Hill wanted Hasan to ignore that design guideline.
. Hasan again threatened loudly that he would go to the NRC if ordered to omit the additional ea'thquake r loads from the package.
Tr. 261. It is uncontested that Ryan knew of Hasan's incident with Hill, because Ryan testified he had been told about the incident
' by Chamberlain as soon as he returned from a vacation he took in I
January of 1985. Tr. 532. Jay Ryan testified that he was away , 4 on vacation in January 1985 when "there was a disruption between
~
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/;4 .p.iTr.f 532 0,lRyan wan.'in(ormed of Hasan's " flare'Iup*' by Chamberlain ,
) ' [ den yhe" ret.urnedito.the;projectLin January 1985 .s Tr. 538. l6 M' t
.J, i' 7 ' Cham!ipriaIn!suggent'edtoRyan<.that'Hasanbetransferredintohis b
.t , -
Npac!N1' p- n. studios, group because of1Hanan'.s incident w'ith Hill. Tr .-
~ . , ' *
~'
'.7532.- ;
( , eIt.was at this timei that Jay Ryan~ asked Chamberlain to 'I
) .rapot.t to him Hasan's activitiesE because Ryan way concerned about, 1
m ' x ,s Twin af ter he twicelhreatened Hill that he would go'to the NRC. r Tr. 3 33. Chamberlain thetified.he "kept-Mr. Ryan appiaised of 7, y, _ t.he, sit.uation" for 2 dr 3 months af ter the Hill incident.
'Tr.
n
~F 1 7 8'.
( Rpan.waslobviouslp concerned with Hasan's'atatements that. V he would go to.the NRC W3th his' technical conceins.let alone Hasan's rejection of pipeLsypport packages, orig'inating out of r L14yan's group. ' Chamberlain's testimony also corroborated Ha' san about;his
,.t
, " flare upf with Hill ..
by. recalling'that Hasan shouted out, "I.
;['wi'llgo'totheNRC." Tr. 192.
{ 0
- C. Direct NPC Contacts
.-.o e i
- 1. 1 ;Iqbi.l Anmed '
I
.On f ebruary 17,.1985 Hasan contacted a former colleague of his who wns then working for the W C, Iqbal Ahmed, about his (
~
technical and safety concerns about Comanche Pear. Tr. 294, 431.- Dasan called Ahmed's home telephc.te numb'r from his apartment. e Tr. 432. i' Hasan recounted to Ahmed how he was being forced by his r 1 _ _ . _ __ _ . _ _ - - _ - 2 = - -
j V'f0h. , y ,
' superiors: toisign off on doedments, that he was afraid he would ,
be fired;because.he wasn't'foll'owing. instr'uctions, Land that those instructions were wrong. Tr. 295.. F Hasan also asked whether Ahmed knew ofEplants that were i hiringLengineers in" case he was laid off. Tr. 295-296, 436-437.- Abned later sent Hasan a note that listed ~the names. of potential . en.ployers in the nuclear engineering industry. Tr. 437.. 44 8: r z Ahmed's-testimony that Hasan never raised.any technical or. 41 . - safetyEconcerns cannot be believed given his hostility against' - Hr.sa n . . Ahmed Otated, "I wish we never knew him. He. dragged me. H ?, irto'such.a stupid' thing." Ahmed Depo. Tr. 27. When1 asked:what e-he meant by " stupid thing", Ahmed went on to say, " Don't drag me into this. I am not hererto be' harassed by you. Do you understand that[?]" Ahmed Depo. Tr. 29. -
- 2. Contacts after Hasan's release
;After'his August. 19, 1985 meeting with Finneran, Hasan made several attempts to contact the NRC. Tr. 297. These NRC contacts resulted in meetings.between Hasan and members of the NRC's Comanche Peak Review Team on January 10 and January 30, 1986. During that time Hasan provided the NRC with two transcribed interviews. All of the problems Hasan brought to the NRC's attention in his testimony had initally been raised with )j l'
his supervisors, but there had been no response to Hasan's numerous concerns in any meaningful manner. Tr. 298, 424. Soon after being released from the Comanche Peak site Hasan { l contacted the NRC and spoke with Brooks Griffin, NRC Region IV ' I _ _ _ _ _ _ _ _ _ - _ _ _ _ _ _ _ _ - - _ - a
=
.J
' Investigator; Chet'Poslusny,'with'th'e NRC. Comanche. Peak Technical Review. Team;fand.a Walter McGee of;the NRC.' Tr. 346-350.
On iugust-28, 1985 Hasan' brought technical allegations and safety concerns'about" Comanche Peak-to the attention of Mr. i Poslusny inia telephone conversation. .Tr. 549,!463; CX 15. On l
]
j i
-September 20, 1985 Hasan~again spoke with.the NRC's Poslusny by.
-1 telephone.. Tr. 475; CX 17. 1 According to Poslusny'1 memorandum about the September 20, 1985= call, Hasan complaine,d about a " cover up of poor design activities or analyses byLTUGCO," that he had been " blackballed by TUGCO", and that several engineersi"less qualified than-he" had' received offers of employment. CXfl7.
In a. December.1985: phone conversation, Hasan told NRC representative'Mr. Griffin that he had been released from Comanche Peak in.part because of reporting techical concerns and in part'due'to religious discrimination. Tr. 347; RX 69. ' On January 10'and 30, 1986 Hasan testified before the NRC Comanche. Peak Review Team. Tr. 306. Hasan's safety concerns about the Comanche Peak project total more tnan 60 in. number, as extracted by the NRC from his January 1986 testimony. Tr. 302- l 303; CX .14. Hasan signed a confidentiality agreement with the NRC to protect his identity as an alleger in January 1986. Tr. 424. D. Suspect As A Spy for CASE While Hasan did not convey information to Citizens p Association for Sound Energy (CASE) about Comanche Peak when he f' l ' L . l l i
. worked on the. site;[Tr. 442), the fact he was suspected by'his i I
supervisors as a spy.for CASE is a form of protected activity.
.Between 1982 and 1985 Rencher-testified he would say in front of his engineering group on a number of occasions, "We'have got spies around'here." Tr. 115. -In April 1984'Rencher went up to Hasan's desk and said very angrily,. "We have got spies here."
T. 245, 246. ' When Hasan.' worked under Barry Hill between May 1984 and
- February 1985, Hill would pass by Hasan's desk and say.at least '
once a week, "You spy." Tr. 270. Hasan testified.that Hill i
.would even stand up in front of the: group and accuse Hasan'of
-being "the' agent of that woman," Juanita Ellis'of CASE. Tr. 270.-
These incidents combined with Rencher's. testimony that'Ryan, Hill and Finneran each agreed there were probably spies for CASE on the' Comanche Peak site [Tr. 116), provide the inference that Hasan was. suspected of being a spy for CASE. " V.. EMPLOYER KNOWLEDGE THAT COMPLAINANT ENGAGED IN PROTECTED ACTIVITY A. Krishna Ravada ' Hasan spoke of reporting flaws in the design of Comanche Peak to the NRC while in his carpool with Mr. Krishna Ravada. ' Tr. 69-70, 90. Hasan and Ravada carpooled to work everyday for a period of about two years when they both worked at Comanche Peak. Tr. 67. i c I Ravada was an engineer in the pipe support engineering large bore group and was released from the Comanche Peak site at the _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ . - - i
r1 i 1 . . 1
+ ; 4 .
C .same time as'Hasan. Tr.H25,_:66, 82.. Ravada'has had seventeen. ) it<
.i
. years _ experience ~as a' civil structural engineerLand worked.at the 1 t'
' Comanche Peak project: between ' October 23, 1979'and Augustil!6,-
1985. _Tr. 66, 79. .He first met'Hasan in September;1979 before.- I L' :either began: working at the Comanche Peak site. Tr.166,_89.-
-While:in_the carpool Hasan.and Ravada had many discussions concerningLtechnical. issues at the plant and Hasan expressed to 3
'Ravada his concerns.- Tr. 67. Ravada' testified thatJHasan was' 2 i
.i concerned aboutithe stability of the pipe supports andithe i
criteria beinglused_by'different groups.at.the plant.= Tr'. 68. t 1 1 i Among the technical' concerns that Hasan.and~Ravada discussed in i the carpool,,the' subject of inconsistent cri,teria concerning."the ; Richmond. Inserts which were used'to supportethe_ structure" came. up as didJthe subject of " punching shear." Tr. 72-73. 1 Ravada testified that in the.carpool Hasan spoke of' : reporting flawsLin the design of Comanche Peak'to the WRC. Tr.. l
;69-70,'90. -After Hasan would make such statements, Ravada used i to joke in his' group at the site that "if he [Hasan) goes to the NRC the' plant may not start." Tr. 102. Ravada said he m&de that joke many times at Comanche Peak.
Tr. 70, 102. ' In fact, Ravada used to make the joke so frequently between-1982 and August 1985 he testified that he probably "made the joke
~
one month before we were laid off" from Comanche Peak. Tr. 102. According to Ravada's testimony, his joke apparently made its way around the plant. Ravada's direct supervisor James Sherrer was also present in the group a couple of times when Ravada made his joke about Hasan going to the NRC. Tr. 70-71. L
'Sherrer's supervisor, Gary'Griswold, reported directly to Jay Ryan,'and,in the course of his duties.Sherrer used to. meet with Ryan on a daily basis. Tr. 72. '
Infaddition, Ravada used'to tell his. joke' periodically about Hasan going to:the NRC to friends at the plant who.Were outside-of his workgroup.' 'Tr. 71. B. Finneran' Meets with Ravada On August 16th to Discuss Hasan's Whistleblowing Activities On August 16, 1985'Ryan approached Ravada and told him-that
.Finneran wanted to see him in Finneran's office.. Tr. 81. Ravada complied with Ryan's' request and met with Finneran for three hours. An entire hour of this meeting was devoted to Finneran quizzing Ravada about Hasan. Tr. 26, 74, 78.
In that one. hour Ravada and Finneran discussed Hasan's enginering ability, the safety concerns Hasan had raised, and whether Ravada thought Hasan had already gone or might go to the NRC. Ravada testified that Hasan was "an exceptionally good engineer" and that there is "no doubt about that." Tr. 76. Finneran asked Ravada specifically whether Hasan "was very concerned about the safety of the plant or the safety of the i structures." Tr. 74. Ravada testified that he told Finneran that Hasan had mentioned safety concerns to him several times, and he related Hasan's concerns about the inconsistency of the Richmond Inserts, punching shear, and about some other packages Hasan refused to sign. Tr. 75. According to Ravada's testimony, Finneran was very much aware that Hasan had threatened to go to the NRC with safety
, . +
f I
,. , <3 , "t.
concerns':- "I. told Mr. Finneran specifically that'he-may. report to'NR'C." .Tr. 75. Ravada'further. stated to Finneran thatLhe had-no way of* knowing whether Hasan'had already done so.because he
~
had not' spoken to:Hasan since-their.carpool disbanded some two months earlier. . Tr. 75,.79, 108. Finneran absolutely denies that'he and-.Ravada ever spoke about. Hasan going to the NRC. or about: Hasan's safety-related concerns during-their. August.16th meeting. Tr. 26. Finneran's. credibility must be ca,lled into question when'he denied discussing with Ravada.both Hasan's safety-related
. concerns and Hasan's propensity to go to the NRC when Ravada y
unequivocally testified.that they had had such. discussions. ~ Finneran's denial is not. believable when'one considers the large-amount of_ time he devoted to Hasan during his meeting.with q
.Ravada, Finneran's vague recollection of the details of his discussion,with Ravada, that it was.Ryan who asked Ravada to' meet J
with Finneran after Hasan had refused to speak to the SAFETEAM, and that Ravada had been telling jokes around the plant that if 4 Hasan ever went to the NRC the plant would never be. licensed when there is no doubt that members of management were aware of Ravada's " joke." C. Hasan's " Flare-up" With Barry Hill On two occasions in January 1985 Hasan warned Hill that he "will go to [the) NRC" (Tr. 273) with problems concerning the 1 STRUDL computer program. During one of these incidents Hasan i said that he would go to the NRC "rather loudly" such that other I l
li' - . 7 9, . r D : engineers.had-to.have overheardithe comment. Tr. 261', 273,?378,
~
l 1443--444..
- . Chamberlain was immediat'ely told about Hasan's threat.to go ,
l to;the.NRC. Chamberlain then told Jay Ryan about'Hasan's threa't- ' , to Hill!that he would go'to the.NRC. 'Ryan testified shat:Hasan's comment to Hill'about going to the NRC was a " flare up" between~ ; HillLand Hasan.and that although-it occured why he~was away from. the site,'he learned ofiit immediately upon his return from a vacation in January 11985. Tr.L538.
.After telling Ryan of Hasan's threat to go to the NRC, Chamberlain suggested that Hasan be transferred out of. Hill's-group and into Chamberlain's special. studies group. Tr.1532.
-Ryan agreed to'the transfer as long as Chamberlain agreed ~to keep.
Ryan abreast.of Hasan's activities,'which Chamberlain did for 2. or.3 months after;Hasan told Hill he would go to' the NRC. Tr. 178, 533.- - Notably, Hasan's testimony about his incident with Hill threatening to go to the NRC was uncontested, and Respondents did not call Hill to refute this account. Between February and August 1985, Chamberlain brought Hasan's concern about the weld requirements as well as other technical concerns directly to Jay Ryan. Tr. 168, 190. D. Finneran Meets With Hasan for The Entire Day of August 19th To Discuss Hasan's Safety Concerns k On August 19, 1985, between 7:30 a.m. and 4 p.m., Finneran l !l met with Hasan. This meeting, for the most part, continued throughout the day, with different members of management joining l-j
9 l from time'to time. Tr. 45. Present during the entire time of the August 19, 1985 meeting was David Westbrook. .Rencher, i i Chamberlain, and Hill were summoned to attend only, portions of the meeting. Tr. 45, 117, 133. During this August 19th meeting Finneran discussed with Hasan the numerous technical concerns Hasan had raised whileat the plant, retaliation Hasan suffered'for raising these' technical I concerns, Hasan's ability to get along with people, and religious
' discrimination conducted against Hasan.. Tr. 285.
i
.Finneran took contemporaneous notes during the day-long {
meeting of August'19th which total ten pages. Tr. 31, 46; RX 45. ' On August 19th Hasan also raised his concern over Rencher's instruction to his-group not to compute stiffness values-for Class 1 pipe supports. Tr. 117-118, 148, 286, 393. Rencher's testimony confirmed Hasan's account of the August 19th meetin.g. Both testified that Hasan raised stiffness of
- Class 1 pipe supports as paramount safety concern raised by Hasan d'uring the August 19, 1985 meeting. During his direct exam ( tr. !
117-118) and during his deposition (tr. 148), Rencher was i I unequivocal about.Hasan raising stiffness of class one pipe supports: O (By Mr. Mack) In that meeting (August 19th] in your presence, did Mr. Hasan raise c. concern over the stiffness of Class 1 pipe supperts? ! l A (By Mr. Rencher) Yes, he did, i Q In the presence of Mr. Finneran? i A Yes. 1
77 - g , [i ,
)
-i ,
e -
;OL p,
LDid the.two of them-[Hasan and Finneran].hol'dJa '~ '
' discussion about that?
JA, It'was discussed in that meeting, yes d Q. Land Mr. Finneran was a participant in that. j l discussion. ' 1 3 4 i A Yes,: sir. Q Do you recall whether Mr. Hasan in_that meeting 1 was concerned that the stiffness values of the hardware had j i not been calcu'l ated for NPS Cla'ss l' pipe supports? 1 A Yes. Q And.did he express.that concern to Mr. Finneran? A .Yes, he did.
, Q And Mr. Finneran understood the concern?-
A Yes, he did. ! (Tr.-117-118)~ Rencher's testimony over class l' pipe. support stiffness values was corroborated by Hasan who likewise testified that he explicitly told Finneran of this concern during the August 19th
, meeting in the pressence of Da.ve Rencher (and Westbrook). Tr.
289. I When asked whether Hasan's concern over class 1 pipe support stiffness was safety related, Rencher testified that it was: Q (By Mr. Mack) How would you characterize that concern (stiffness of class 1 pipe supports)? Would you % characterize that as a technical issue?
[
~- ~
- A.[ByLMr..Rencher]Yes, Ifwould; Do youLthink ittis safety-related?
~
Qi
' AL Well,jthe. pipe-supportsaboutwhichMr.Nasan1wasu speaking"are safety-related pipe supports.
m.
-QL And if-there is aitechnical. issue, doesn't'how1
- {hatiissue.is?resolvedrelate'tosafety?'
A .I would say so. Yes. (Tr..ll8.). Hasanilikewise testified that he pleaded with Finneran to recall.certain pipe support packages so that'Hasan could show Finneran where'the improper. stiffness' values had been transmitted to Westinghouse. As Mr..Hasan testified:' Q _ (By Mr. Mack) And what~is it that'you said (to E
.Mr. Finneran concerning stiffness values of Class 11 pipe ,
l l supports)?
- o A I explained to him at length -- at tremendous length that what happened in that period when Rencher-told-me or told us not to include the stifness'of the hardwares
.for computing the stiffnesses of the Class 1 piping system.
And after listening to all this'-- and then I
-told him that, why don't you recall those particular j packages to look for yourself....
(Tr. 286) , Finneran refused to recall the specific packages Hasan knew
- to contain false stiffness values for class 1 pipe supports. Tr.
389, 484-485. ! Hasan's concern over NPSI's failure to properly calculate __2-_-
_ . _ _ _ _ _ -_ - ------------- - ----- --- - --- - - - - - - ^ - ~- stiffness values for class 1 pipe supports was that the improperly calculated values ~would be sent to Westinghouse. Westinghouse would then use these improperly calculated stiffness j values to calculate the actual load each specific piping system could withstand. Westinghouse then would transmit the actual load values back to the Comanche Peak site where engineers would use them to design the Class 1 piping supports. In other words, improperly calculated stiffness values were being used, by Westinghouse, to determine the actual loads of Class 1 piping supports. In turn, these loads were incorporated into the design of Comanche Peak's Class 1 pipe support system. Tr. 235, 238, 263-264. Hasan brought very serious technical concerns to Finneran's attention throughout the course of the August 19th meeting.
. Nonetheless, it was not until Hasan was about to' leave that Finneran told Hasan to enumerate his safety concerns. At this point, Hasan retreived a list of from his wallet, and began to read off items from that list. Tr. 389, 482-483.
It is inconceivable, however, that Finneran, one of TUGCO's highest ranking engineers on-site, would spend an entire work day devoted entirely to the Hasan personnel matter *if Hasan never gave an indication of safety concerns, as Finneran testified at Tr. 49. After the meeting with Hasan had ended, Finneran wrote an additional two pages. Finneran attached these two additional pages as a cover letter to his August 19th ten page memorandum. Tr. 391, 484. Finneran testified that the ten technical items he
listed in.the two pageLeover. letter to his ten page August 19th' memorandum incorporated every. technical point'Hasan mentioned during their~ August.19th' meeting. LAccording.to Finneran's two Page memorandum', Hasan "did not have any concerns which he' felt were important to safety at the plant." CX 7; RX 31. Finneran's assertion that Hasan.did not raise a single-
~
technical concern.touching on, safety.is inconsistent with Hasan's 1 and Rencher's testimony.of what' occured during the August 19th-meeting. . Clearly, Hasan's belabored explanation of the' improper stiffness values sent.to Westinghouse is safety related;'acfact that even Rencher readily admitted.' Tr. 118. Nonetheless, it was.not listed by Finneran.as one of the ten' safety concerns enumerated in Finneran's two page August 19th cover letter or 10 page memorandum. To be sure, the words "stiffn'ess" and the term
, ~" Class 1" are not found enywhere in these two documents. CX 7; RX 31, RX 45. *'
Finneran's outright denial that Hasan raised stiffness.of. g Class l' piping during their August 19th meeting (Tr. 21) 1 contradicts both Hasan's and Rencher's detailed testimony that such a discussion did occur on Augu.st 19th. , l VI. DISCRIMINATORY MOTIVE j 1 l A. Circumstantial Evidence -- Ryan's Animus j In 1982 the PSE packages were transmitted to the NPSI group I j in which Hasan was working for final certification. Tr. 88, 120-121, 125, 130, 239. When NPSI group engineers rejected a PSE 1 a
package in 1982 it was returned to PSE with a memo written by a NPSI group engineer. Tr. 240. ! { Rencher specifically recalls Hasan rejecting PSE packages from Ryan's group and attaching a signed memo to the rejected package. Tr. 120-121. This directly contradicts Ryan's testimony because Jay Ryan. denied altogether that PSE packages could have ever been reviewed by the NPSI group. Tr. 540. In fact, Ryan went so far as to agree for the record that if the NPSI group did indeed review his group's packages then "something would be wrong." Tr. 550. However, Rencher, Ravada, and Hasan each testified about NPSI's review of PSE packages. Tr. 88, 121, 239-240. The facts establishing that Ryan lied when he denied knowing that his group (PSE) attempt to certify packages in NPSI's group
, are conclusive. Respondents' own counsel established through !
questioning of Mr. Rencher that it was general knowledge that Ryan sent Rencher PSE packages but that those packages were reviewed under PSE guidelines and not NPSI guidelines. Tr. 127 { Prior to this Rcncher had already testified to the administrative ! procedure used in the transfer of the pipe supports from NPSI l 4 back to PSE. Tr. 120-121. Additionally, Hasan testified that Rencher complained to him about "being pressured" about rejecting so many of the packages Ryan transfered to his NPSI group and that Rencher told the group an a whole that Ryan was "not happy" with his group's rejecting too many PSE packages. Tr. 275.
]
l i In 1982, two weeks after Rencher told Hasan's group that i. Ryan was pressuring him because NPSI was rejecting too many f l w___ - _.
r:'
. packages,'.Ryan saw Hasan~alone in the corridor and gestured obscenely'toward Hasan. At the time this: occurred Hasan didn't even know Ryan by sight and'it was'not untill a few' days later
- l that'.Hasan asked'Mr. Ravada to identify the individual who had.
made the obscene. gesture towards Hasan. Tr. 274-275. I Ryan denied ever. gesturing obscenely at Hasan. 'Tr. 535-536. ) Ryan's. credibility is lacking for the same reason he chose to-r i vehemently deny even the possibility that PSE. packages'had been reviewed by NPSI. Tr. 540, 544, 550. j j Hasan was transferred to Hill's PSE design group in May 1984 j i but he continued to reject many PSE packages. This is l I corroborated by Ryan's testimony that Chamberlain told him Hasan i i had concerns about Ryan's packages in the course of checking them) which resulted in Hasan's repeated rejechion of Ryan's PSE
, packages. Tr.-543.
f 1 Ryan admitted that Hasan raised more technical' problems and ' rejected more PSE packages than anyone.else while he was assigned 1
.to Hill's group. According to Ryan, this caused " disruption" to j his production schedule. Tr. 543-544, i i
B. Inherently Discriminatory Conduct In April 1984 Rencher approached Hasan's desk and said very angrily, "We have got spies here." Tr. 245, 246.
, Hasan testified that he felt intimidated by Rencher's statement about spies because, just prior to that incident, i
Hemrajani had stated that Hasan would not be in his group very long. Hasan was also fearful that by using the term " spies"
1 , i .
.w 3 ;
Rencherithought'that-he was conveying information:aboutethefplant'
'to CASE.' Tr.o246. l
.i CASE stands'for-Citizens-Association for SoundfEnergy and is. I an intervenor'in'the ongoing Comanche Peak. licensing hearings
.before'thelAtomic Safety Licensing Board (ASLB). Tr.~18, 113.
iIn or about 1982 two former Comanche ~ Peak engineers,; Mark Walsh
.and Jack Doyle, were witnesses for CASE before'the ASLB- 5Tr.'114.
After Doyle and Walsh made public their' safety allegations ' 4 in-the ASLB proceedings Rencher testified that he suspected other q engineers on the Comanche Peak site'might be going to CASE with information and he considered "any. engineer.who might do that to- -l be a. spy." Tr.'114. Rencher-stated that he thought Pradip Badheka, Hasan's first supervisor.at Comanche Peak, was~a spy-for CASE.- Tr. 129, 136-137. Badheka was released from the Comanche-Peak. site at the same time as Hasan on August.16, 1985. Tr. 137.
;Like'Hasan, Badheka.had been recommended for hire by SWEC's '
5 initial' interview but after Finneran recommended to SWEC that h e I not be hired', SWEC did not offer Badheka a job. Finneran testified he " thought there were probably some 1 1
' n people'on the staff who were" spies for CASE. Tr. 25. l 1
Rencher started to talk openly about spies being on the l l Comanche Peak site after the Walsh and Doyle allegations
-{
surfaced, and he meant " spies" to refer to " engineers who were 1 i y . currently working on our project and going to CASE, . . . or who might be going to CASE," with information. Tr. 114-115. j Rencher testified that between 1982 and 1985 he used to say, "We have got spies around here," in front of his engineering 1 l _
l I 1 group on a number of occasions, which, he testified, his. group i took to understand as' spies for CASE. Tr.- 115.
-{
Rencher testified that he discussed the: subject of spies for .; CASE with Ryan, Hill,.D'Errico, Finneran, Chamberlain and. o
. Harrison between 1982 and.1985, and-that Ryan, Hill, and Finneran.
each agreed with Rencher that there were.probably spies for CASE on the Comanche Peak site. Tr. 116. I Between'1982 and May 1984, Hasan brought many safety )
'l concerns to Hemrajani, who would tell.Hasan to stop bringing his )
\
concerns to Rencher and other supervisors at the plant. On ] 1 numerous occasions Hemrajani told Hasan in his native language, Urdu,'that he could do whatever he wanted because he had the confidence of Rencher and Harrison. Tr. 250. i Hasan testified about an incident that occurred while i 1 working for Hill's group in which Hill and Chamberlain came up to l Hasan's desk and Chamberlain told Hill that a package from his group had been conveyed to Juanita Ellis, president of CASE. Tr. 268-269. This corresponds with Chamberlain's testimony that he once used the term " spy" on the Comanche Peak site because somebody had given the interveners information on a package that had just been analyzed and rejected the previous day. Tr. 163. At least once a week Hill would pass by Hasan's desk and say "you spy." Sometimes Hill would stand up and repeatedly accuse him of being "the agent of that woman," Juanita Ellis of CASE. Tr. 270. Notably, Respondents did not call Barry Hill as a witness to
- refute Hasan's testimony, nor did Respondents notice Hill for a I
)
'i deposition.
While, working at the Comanche Peak site Hasan never conveyed any information concerning the project to CASE or any other intervenor in the.ASLB licensing proceedings. Tr. 442. C. -Dual Motive During 16 years as a nuclear engineer Mr. Hasan had never l been laid.off or denied employment because of an inability to get i j j along with co-workers. Tr. 221, 479. Mr. Hasan was never l reprimanded or disciplined for disruptive behavior'or an
-inability to get along with others by any employer. Tr. 216, 221, 479.
Respondents even stipulated that no formal reprimand was ever conveyed by Texas Utilities to Hasan for.being disruptive. Tr. 216. i While working on the South Texas projec'. for NPSI in October 'l
'j 1981, Hasan was rated by his supervisor, Dr.'Brombolich, as able, ,
to do the work of three engineers. Tr. 229, 473; CX 11. Dr. Brombolich was the NPSI project manager at the South Texas j 1 Project in the Houston office in 1981. Tr. 314, 473. In 1980 and 1981 some engineers at the South Texas Project l were attacking and insulting Hasan's religion and culture, which I 1 Hasan reported to Dr. Brombolich. Tr. 316. Thoroughout Hasan's employment history at various projects 4' he was subjected to remarks by co-workers against his religion and culture, but it never affected his production or quality of work. Tr. 321, 386. o l While working as a team leader at Comanche Peak between l I
April 1982 and May 1984 Hasan was responsible for coordinating l the design review activities of seven engineers. CX 10. In April 1982, Rencher evaluated Hasan as average or good in every category. CX 8. Rencher remarked in the Apr!1 1982 evaluation that "Hasan is very good and very productive. He has i provided many constructive ideas to improve the design review ' process. He has the potential to advance to a more responsible position." CX 8. In October 1982, Hasan was evaluated by'his supervisor, l Hemrajani, and given a rating of outstanding in 14 out of 15 categories. CX 13. On August 1, 1983 Hemrajani wrote a letter to NPSI assistant project mananger Herman D'Errico stating that Hasan was i "doing a brilliant job, leading a team of 9 Engineers" and that
, he was " instrumental in getting the supports finished on schedule...." Hemrajani recommended Hasan for promotion. Tr.
113, 227; CX 12. In 1984, NPSI group engineers would review packages that had already been certified or approved in order to take care of NRC licensing problems. Tr. 252-253. l Without warning, in the second week of May 1984, Hasan was told by Herman D'Errico that Harrison no longer wanted him at Comanche Peak and that he was being transferred to NPSI's Secaucus office. Tr. 250, 376-377. The transfer occurred after i Hasan raised a serious problem in a technical package, and not as l a result of a personality clash. Tr. 251. Rencher recommended to Harrison that Hasan be removed from the site and returned to 1 1 t
c Secaucus._ Tr. 132, 251. It is interesting that Rencher chose to transfer Hasan after a technical incident and never accepted Hasan's many requests to be removed as team leader. Tr. 254-256. Hasan learned'he was to be transferred from the site hours-Lbefore he brought to Rencher's attention a serious error contained in a package already. certified by Hemrajani. The drawings in.the package showed a Hilti bolt passing.through the' tubular steel, which was never permitted on NPSI packages at Comanche Peak. Tr. 251. Within 90 minutes after giving Rencher the package showing the Hilti bolt-passing through the. tubular steel Hasan received D'Errico's phone call transferring him to Secaucus, New Jersey.. Tr. 252. Soon after speaking with D'Errico, Hasan appealed to McBay to reverse his May 1984 transfer to Secaucus. Tr. 253. McBay called Hasan into Harrison's office, where Rencher and Finneran were present, and Hasan was told by Harrison that he was being retained at Ctaanche Peak but would be transferred to the PSE design squad under Barry Hill. Tr. 131-132, 254, 256, 376. While in Harrison's office, Hasan told his superiors about the problems he was experiencing as team leader, that his group did not want to cooperate with him due to technical differences and that his technical differences were compounded by the fact that most of his co-workers belonged to a rival religion. Tr. 254-255. ' 1 There was no doubt that an undercurrent of religious i animosity existed amongst certain engineers on the site; however, l 1
~
It was~not Hasan's. personality _or religion that caused Comanche Peak superisors concern just as it had never' caused one of his' supervisors' concern during~the 15 years he had been an engineer.- What caused concern at Comanche Peak on the part of management was Hasan's raising serious technical problems with the design of-the plant. Hasan'had become an echo inside the plant of'Walsh and Doyle's allegations. On several occasions between 1982 and 1984 Hasan had pleaded with Rencher to remove him as Team Leader to alleviate the problems-that were_ developing in the group; however, Rencher-o- 1 refused. Tr. 131, 143,,254-256, 366, 373. Despite an alleged
" people problem", Hasan was kept on as team leader by Rencher for more than two years because he was such a' good engineer. His !
inability to.get along never prevented him from successfully serving in a quasi-supervisory position that required a high degree of interaction with others. ' Hasan belonged to the religion of Islam and the majority of his co-workers were of the Hindu faith [Tr. 255); however, Hasan d j was leading a team of about seven engineers between April 1982 ) and May 1984 that included Mr. Hazari and Mr. Harwani, and Hasan spent a lot of time training these engineers because they had very little engineering experience. Tr. 256, 368, 481. , In 1982, Hazari had only two years experience, while both . HarwanA and Hemrajani had only five years experience in pipe , t support engineering for nuclear power plants. CX 2, SWEC l Interrogatory 20, Attachment D, supplemental Answer. l When Hasan, as team leader, would instruct these engineers 1
- r. ,
i i 1
. under his supervision.to correct. problems'they would sometimes I
~
!get offended. Tr. 481. Hazari, Harwani, and~even.Hemrajani- -
l would. openly attack Hasan's religion while speaking'in their. native. language Urdu. Tr. 363. Hasan was only fulfilling his duty to " assure that structural-engineers are using correct methods and latest codes'or. specifications," as stated in the. NPSI job' description for Structural Team Leader. CX 5, NPSI Answer to Interrog. No. 15. Hasan.was no' longer a Team Leader in Barry Hill's' group and 4 began his new duties as a designer and sometimes as a checker or reviewer in or about May 1984. Tr. 257. In February 1985 Chamberlain evaluated Hasan's performance j as good. RX 6. On, July 19, 1985 Chamberlain provided Hasan with a' good letter of recommendation. Tr. 156; RX 16.
., While. working in Hill's group Chamberlain. evaluated Hasan in October 1984 that rated Hasan's performance in the good to excellent range. Tr. 354; RX 5.
Despite Hasan's alleged inability to get along with others Chamberlain still provided the July 19th recommendation because Hasan was good at " crunching out numbers -- producing packages." l Tr. 180. In fact, Chamberlain thought so. highly of Hasan's technical abilities that when he received the new manual for the STRUDL program he asked Hasan to go over it "because he [Hasan) was extremely articulate in that area." Tr. 188. Finneran was of the opinion that Chamberlain should not have written Hasan the July 19th letter of recommendation. Tr. 159.
W. *
. O w / ;
i 4
, , D. Disparate: Treatment ia George'Boerum'was; personnel manager of'SWEC'in.the New' York-
' office 11n 1985..' Tr. 553. Boerum put together the
~
l effort to'- a
,r i 1 11nterview, evaluate,. hire or not to hire 110 ComanchelPeak'
' ' )
W engineers inithe' summer'of 1985. 'Tr. 554. SWEC.actually
' l '
conducted theselinterviews' on the Comanche Peak site betweenf Julyc
]^ .o$ c 31 and. August.1, 1985. Tr. 558. >
1 Finneran was theLonly person at Comanche Peak contacted by. j Boerumiregarding'the decision of hiring particular engineers.
.T r . 555.- Finneran'sent~Boerum a: list of. engineers indicating-
'whichtengineers to'hireLor;not hire be' fore any ofEthe interviews i 4
were: conducted.' Tr. 555-556.. -i 1 i
,. Hasan was. interviewed.on July 31~and the SWEC: interviewer.
.gave him'a rating of'" hire." Tr. 560;-RX 68..
1 About a week' later, Boerum recorded the SWEC interviewer's recommendation on a ] i spread sheet listing the.results of each interview. Tr. 558, '
. 1 j
560; RX 68.. .the spread sheet'also recorded TUGCO's ( recommendation for each' engineer. Tr. 584. l
.i j
Around the time Boerum prepared his spread sheet he inquired 1
-{
about Hasan's rating at the time Hasan left SWEC in 1974. Tr. l 561,'562. By matter of adverse inference, Hasan's prior rating i by.SWEC-was higher than " fair" (Tr. 596-597), and must have been
.either "very good" or " good" when Boerum made his inquiry. Tr.
562. Boerum called Finneran when he discovered a difference of opinion between the recommendation of TUGCO and the SWEC interviewer concerning 19 of the 110 engineers. Tr. 563. Boerum 1 I
._----__--- - _ D
1
) 'I i
"went ov'er'the 19 names with him !Finneran) one by one as they appeared on the list, asked him . '. . did he feel strongly about 4 those. ratings.
In seven cases, Mr. Finneran admitted that maybe the ratings that he had given them were too.strongly'against l them. In those seven cases we made offers to the people."- Tr. 1 564, 577. i However, Hasan was one of the 12 cases where Boerum testified that Finneran said, "No, our ratings stand. These guys are not good performers." Tr. 564. Although SWEC reinterviewed 1 Hasan and the other engineers in the group of 12, none were hired by SWEC. Tr. 578. i The second round of interviews occurred at the site on August 14 and.15, 1985. Tr. 582. Of the 78 or so' Comanche Peak engineers who were offered ! j jobs at SWEC in August 1985, 24 did not accept a position with J'
. SWEC. Tr. 580. 'l Notably, Pradip Badheka was included in the group of 19 who were given a negative TUGCO recommendation but were acceptable to
-SWEC in August 1985. RX 68. According to Rencher's testimony, Badheka had been branded as a spy for CASE back in 1984, but Badheka was released at the same time and in the same fashion as i Hasan in August 19.85. Tr. 136-137; RX 68. Like Hasan, Budheka had more than 15 years experience and had received a rating of
" good" from NPSI in 1985. CS 2, SWEC Answer to Interrog.,
Attach. B and G; CX 5 and 6, NPSI Answer to Interrog., Attach 3. Whatever personality problem, if any, that Hasan exhibited ! on the Comanche Peak site, it never adversely affected his production, performance ratings, resulted in any formal l ! I
.a
W w , 9 reprimands, suspensions, terminations, decreased pay or any~ type'
+:
'of[ discipline. 'Inifact,. Respondents stipulated that Hasaninever
.i treceive'd any kind of formal discipline:for-insubordination while employedLat Comanche Peak. Tr. 216.- ...,
.If Hasan's work' record,was clean and production:high, thenL the~only otherl legitimate reason'he was not offered a-job was
< because he was not-as. qualified as the'other applicants.for the. position. ;However; after analyzi'ng.the experience of the engineers who were offered SWEC jobs'it.i,s clear that Hasan was more qualified in terms of experience and pe.rformance Ehan~most of.those hired. According to:Boerum's spread sheet [RX 68),'the following engineers who received' job offers as welltas a conflicting TUGCO
. negative recommendation and SWEC. positive'recomm'ndation e were:-
. Felix Abreu, SteveLLahijl, R.C. Mathew,'Mahendra'Prikh, D.K.
Suri, and John Varaska.. Abreu was rated by NPSI on August 23, 1985 as." average", and had only.7 years experience. .CX 5 and CX 6, NPSI Answers to
- Interrog. No. 3, Attach. 3.
Hasan was rated in the same evaluation as " good", and was listed as having 10 years experience. CX 5 and 6, NPSI Answers to Interrog. No. 3, Attach. 3. According to Abreu's SWEC application and resume provided to Complainant in discovery, he had no college degrees in 1985, which is far less educational experience than Hasan. CX 2, SWEC Answers to Interrog., Attach. B and D. , Likewise, Lahiji, Suri, and Varaska had only 7, 6, and 5 _._..a
1
. years' experience inLnuclear engineering, respectively, but each were offered a job by SWEC after Finneran changed his negative recommendations in August 1985. CX 2, SWEC Answers to Interrog.,
Attach. B and.D. Respondents did not supply information on Mr. Mathew. Mr. - Paikh appeared to be the only one of the group with experience and education commensurate with that of Hasan. CX 2, SWEC Answer to Interrog., Attach B and D. In addition, of the 78 Comanche Peak engineers who were extended job offers by SWEC in August 1985 [RX 68], 54 applicants i' had less experience in nuclear engineering than Hasan. CX 2, SWEC Answer to Interrog., Attach. B and D. These engineers were: F. Abreu, N. Ahmad, M. Ahmed, N..Badrous, A. Banerjee, N. Bonacci, H. Crockett, B. A. .Florentino, Darji,.S. Das, J. Desai, L. Desai, G. Griswold, R. B. Garshum, M. Gerges, A. Gharai, R. Ghattas, Hemrajani, T. Kuo, Gupta, R. Harwani, M. Hatam,-N. Hazari, R. S. Lahip, J. Lazarovich, R.' Mays, S. Mazumder, N. Mohammad, E. Nacipil, M. Naik, V. Nath, Chandra Patel, Mahendra Patel, C. Rancho, M. Salek, R. Sales, M. , Savalia, D. Schultz, M. Shafi, D. Shah, S. Sharan, S. Shenouda, J. Sherrer, D. Smith, U. Solanki, A. Tahmassian, J. Varaska, T. Yazhari, and Y. Yang.Vashi, G. Wilson, A. Wong, A. Wu, S. Wing, F. CX 2, SWEC Answer to Interrog., Attach. B and D; RX 68. In other words, approximately 70 per cent of all Comanche Peak engineers offered a job with SWEC in August 1985 were less experienced { nuclear engineers than Hasan. Notably, only about 54 of the 78 interviewees offered jobs l accepted employment with SWEC. RX 68. It is likely that almost i all of the engineers whom SWEC actually hired were less { experienced than Hasan. I
m
~
s , i 1 Respondents 2provided.in discovery the'1985: job ratings' afor 1 128 ofLthe NPSIfengineers offered jobs by.SWEC in August 1985. i i (Hasan'wasirated as:" good" during the same NPSI evaluation . CX'5 l' and 6, NPSI' Answers 1to Interrog., Attachment 3. Nonetheless,- j SWEC hired 131 engineers who had performance ratings of onl'y 'I
'" fair", " satisfactory", or " average". These engineers were rated '
j as:follows by NPSI'and' offered;j'obs by.SWEC:/ l L. Desal-(Fair); F. Abreu, R. .Das, S.'Das, R. Pyne, and R. Harwani-(Average); and H. Bounse, B. Darji~, M. Naik, V.. Nath, Chimandal Patel, S. Patel, and B.'Sankaran (Satisfactory). CX 5. and 6, 'NPSI ' Answers to Interrog. ,J Attachment 3; RX 68.- In
]
otherfwords,Lalmost half of the NPSI-engineers for which .
-l respondents supplied performance'information and were, offered a. i h
job by SWEC in August 1985 had lower perfomance rathngs than 4 Hasan. VII. DAMAGES Between1 August 19, 1985 and October 18, 1985 Hasan received his salary from NPSI, but no longer got his per diem pay which .1 j was about $210 per week'at the time of his release from the 1 Comanche Peak site. Hasan also stopped receiving overtime hours during this period. Tr. 453. At the time of his release from NPSI on October 18, 1985 ! Hasan was earning $23.00 an hour. Tr. 408; CX-5, NPSI Answer to Interrog. No. 20, Atach. 20. For almost one year, between October 1985 until October 1986, Hasan was unemployed. Tr. 289, i l 452. Not including overtime, Hasan's lost salary totalled l 1 l l 1 _ - _ - _ - . _ _ _ _ _ _ _ . _ _ - - - _ - . _ . .-. . . --.. - .- A
9 1 i
.f j
$47,840, and'his lost per diem pay totalled approximately 12,600. -
Hasan' diligently looked for work after being laid off-from
~
l NPSI. Tr. 452. Finally, on October 13,'1986, Hasan began working.as a Senior Engineer for the Bechtel Corp. in its Houston l AL office of South Texas Nuclear Project. Tr. 410. 1 Hasan was unable to make monthly mortgage payments on his house.in Houston during'the period of his unemployment and it was foreclosed. Tr. 454. The net monetary loss resulting'from the ! j foreclosure was $7,000, consisting of a $5,000 down payment and 1 i
$2,000 for improvements. Tr. 455-456. i 1
Hasan's damages on his foreclosure, lost salary (not 'i R including. overtime' pay)-and lost per diem pay totalled $67,440. VIII. RESPONDENTS' -CHAIN OF COMMAND During the period between April 1982 and May 1984, NPSI j group leader Ram Hemrajani reported to David Rencher. Tr, 112,
- l 361. Rencher reported to Harvey Harrison, Vice President, 1 i
Technical Services,.TUGCO. Tr. 111, 361. Harrison reported to Mike McBay, Manager of Engineering, TUGO. Tr. 361-362. In May 1984 Hasan's new supervisor, Barry Hill, reported to Mike Chamberlain, who in turn reported to Jay Ryan. Tr. 257, 377. Jay Ryan was lead engineer for the Large Bore Pipe Support l Engineering Group between 1982 and 1985. Tr. 532. Hasan worked under Chamberlain in the special studies group from February 1, 1985 until August 16, 1985. Tr. 282, 382. i l l Chamberlain reported to Jay Ryan between February and August 1985, and he was in contact with Ryan on a daily basis. Tr. 153. (
- - - - - _ _ - ~
l
-e -
, , lg)/ e '
, % ;s ]
y ;y y
,s.. ' :p;:; x,1 '
J.- P, '-
./
g , j'
,[& .
,[ m):%3eginning in~ January l1985 Chamberlain'kept Ryan apprise'd of I y b
+5 tO. e Hasan- while he wan working i.nj, u11'l's, . group la nd' then < in ' the
;y L ! . 1 spec!al studies group,.- .bucaus;ejtyaniwas par. t icularly concerned f,'
in #& ,-
)
~with MasaS's activit'tes.
t Tr.r.(78, 532.
-1 i
,, a . .t ..
j
/ W... He:ck wa3 TUGCO;ylce president for' nuclear \
,0 . iJohn 8
,.,1 u, ,. ].
7 // engineeplr4.and v . i. responsible for quality assurance and- plant
.t. ,
v. safety (b'etwran 1984 and 1965; Tr. 510. Jolib'lC.',Finndan,.Jr. was employed by TOGCOias-the Comanche it. .
, }. Pef,k1proj5ct d.iocipline supervisor for the pipe support
;p <
engineer'ing 9thup in 198d. irU18. 4, gr
< [ Finneran antU ChambeklainJ were in frequent contact and
,4 -
3,j
'sometimes" met lr;n a $aily', basis. .Tr.'154.
e i Finneran asked.far.and received input'from Jay Ryan in July I Ind' August ^1985 concerning which engineers to hire for the SWEC l
.,; _ .+ , i-reqtalificab.lon. ef fort. 'Tr. 2 C1.
9 Finneran communicate'd..Ryan's recommendations about.each 1 engine..a-er ito CMorge Boerum personne.l manager of SWEC during the
;)
July / August -1985i SWbC interview process. Tr. 27. e , James Gherrer, group leader of.the pipe support engineering large bore occup reported to Gary Griswold. Griswold reported di r e c t 3 y' t'c , Ja y 1Ryan'. Tr. 72. In:.the course of his duties, i Sherrer use'd.to meet with Ryan on a daily basis. Tr. 72. Al Mdellenbach was president of NPSI between 1985 and 1982. , Tr. 508. Herman D'Errico was the assistant project. manager of NPSI at Comanche Peak. Tr. 113, 231. NPSI engirieering groups reported to Bruce Goldman, NPSI l
. 49 l j 4 L. _ n. _ ____.__._.m_ _ _ _ _ _ _ _ _ _ _ - -
m I 4 .. engineering manager, when finished with assignments on projects. Tr. 494.- Goldman was Hasan's' direct supervisor when he was transferred ~to'the'NPSI Secaucus, New Jersey' office. Tr. 499. IX. CRITICAL ELEMENTS OF RESPONDENTS' CASE ARE IN CONTRADICTION ~ CriticalDfacts of Respondents' case are in complete contradiction. These factual discrepancies go to the heart of the credibility of the two key decisionnakers, Finneren and Ryan. Below are the key contradictions of Respondents' two central witnesses. 4 A. Finneran
- 1. Spies Finneran could not recall any conversation he had with
, Rencher about " spies" at the Comanche Peak faci'lity (Tr. 24],
whereas Rencher testified that he and Finneran had:had such conversations. Tr. 116.
- 2. Stiffness of Class 1 supports Finneran denied ever discussing stiffness of Class 1 supports wtih Hasan during their August 19, 1985 meeting. Tr.
- 21. But Finneran's denial was thoroughly contradicted by Rencher. On direct exam Rencher was asked whether during the August 19th meeting "in your presence, did Mr. Hasan raise a concern over the stiffness of Class 1 pipe supports?" Rencher replied: "Yes, he did." Tr. 117. Finneran's denial was likewise contradicted by Mr. Hasan, who testified that he
c .# discussed stiffnese of Class,1 pipe-supports withIFinneran "at' tremendous. length" and that he went so far as to' plead with
'Finneran to recall the pipe support packages Hasan' worked on so:
tue could 'show Finneran the critical errors in those packages. 1 Tr.'289.
- 3. Minimum weld' requirements Finneran denied discussing minimum weld requirements with Hasan during their' August 19th meeting. Tr. 21. But Rencher testified that he believed the subject had:been' discussed because reference.to it is contained-in Finneran's notes of the August 19th meeting. Tr. 119.
- 4. Punching shear Finneran denied ever having discussed with Ravada on April 16, 1985.any safety-related concerns of Hasan.. Whereupon Ravada
-testified that'he did tell Finneran about Hasan's. concerns about '
punching shear and inconsistent criteria during their August 16th meeting. Tr. 75.
- 5. NRC 1
Finneran also denied having a discussion with Ravada about Hasan going to the NRC. Tr. 26. Nonetheless, Ravada testified that he was absolutely certain he had told Finneran during their August 16th ineeting that Hasan may go or might have already gone to the NRC. Tr. 75. I
^l 1
I t
1 l [ B. Ryan
- 1. PSE pipe support packages
i Ryan testified on at least three occasions that PSE pipe support packages were never sent to NPSI for certification. Tr. 540, 544, 550. Ryan's denial was contradicted by the testimony of Rencher, Ravada and Hasan. Tr. 88, 120-121, 125, 130, 239, 275. Furthermore, Respondents' own attorney implied in his questioning of Rencher that it was common knowledge that Ryan would send his PSE packages to NPSI for certification. Tr. 127. Ryan's absolute denial compared to Rencher's, Hasan's and Ravada's unyielding testimony to the contrary is so glaring that, ' beyond any reasonable doubt, Ryan lied under oath. C. Chamberl'ain Chamberlain absoulutely denied that he dis, cussed " spies" with Rencher between 1982 and August 16, 1985. Tr. 159-160.
.This denial was completely contradicted by Rencher who testified that not only did he have conversations with Chamberlain about spies, but that Chamberlain had agreed with him that spies for CASE were on the Comanche Peak site. Tr. 116.
1 D. Rencher i Rencher's testimony that Hasan was removed as team leader in- 1 I May 1984 because "he was not able to get along with the other ! engineers," [Tr. 134), does not hold water for several reasons. $ l First, in 1982 Rencher rated Hasan's performance as average to l l good in every category. CX 8. Second, he kept Hasan in a quasi- l t supervisory position as team leader for more than two years. 1 __ ___ ,. --__e- : ==_m
I' 1
' Third,,he had numerous. opportunities to remove Hasan as team-
[leEder'because'Hasan repeatedly pleaded with Rencher to.do so.' Tr. 131,: 143,.254-256, 366,:373. ' Fourth,:Rencher' waited'until a major' quality. control issue arose before recommending that Hasan; Ebe transferred to NPSI's home office.- Tr. 251. And, f;!th,-
'Rencher.gave Hasan lesser evaluations after'Rencher accusedLHasan of~being a spy for CASE in 1984. Tr.'141, 245, 246.
' Respectfully submitted,
~
i Michael D. Kohn Stephen M.'.Kohn Thomas J. Mack GOVERNMENT ACCOUNTABILITY PROJECT 25 ELStreet-N.W. -- Suite 700 Washington, D.C. 20001 (202) 347-0460 , Attorneys for Complainant On Brief: David Colapinto Jane Higgins Legal Interns Dated: August 13,.1987
/032a30
. _ - - - _ - - - - _ - _ = - - - - _ - - - - - - - - - - - - - - - - - - - - - - - -
Certificate of Service I hereby certify that a, copy of the attached document was sent on /[ I Y , by /kbv '[1A to: The Honorable Alfred Lindeman AdministrativeJLaw Judge-Office of Administrative Law Judges United States Department of Labor 211 Main Street .{ San. Francisco, California'94105' I'hereby certify that a copy was sent on E' 7 , by'
#b) [AGvff V
;, to:
Harvey J.'Wolkoff, Esq. Ropes and Gray 225 Franklin Street Boston, Massachusetts 02110 l A l n -
/032a15 cert L_ _ _ _ _ _ _ _ _ _ _ . _ _ _ _ . _ _ _ ._:
.-- oced
p V c;, .s . L j Enwment Standarcs Acminaradon j'p ~ , , %, l i 'U.S. Departracnt of Labor. Way and H ur Dmsi0r. ' l 26 Pederal Plaza Rm. 2251 i : ; New York, NY '0278 % "*'M' /. ' I Telephone: (212) 264-8185 l' i Rep:y 13 the Almnhan of: CERTIFIED MAIL - RET'.!RN RECEIPT PECL'ESTED July 21, 1987 Michael D. McDowell, Senior Counsel Dravo Corporation One Oliver Plaza Pittsburgh, PA 15222 Re: Loren c Mario Polizzi vs. Gibbs & Hill, Inc. .. Daar Mr. McDowell:
'This letter is to notify you of the results of our compliance actionsLin the above case. As you know, L. Mario Polizzi filed a complaint with the Secretary of Labor under the i Energy Reorganization Act an June 12, 1987. A copy of the !
j complaint, a copy of Regulation 29CFR Part 24, and a copy of j the pertinent sections of the statute were furnished in a i previous letter from this office. 1 I
)
Our initial efforts to conciliate the matter revealed that I the parties would not at that time reach a mutually agreeable settlement. An investigation was then conducted. Based on l our investigation, the weight of evidence to date indicates l that L.M. Policci was a protected employee engaging in pro-l tected activity within the ambit of the Energy Reorganization J Act, and that discrimination as defined and prohibited by the statute was a factor in the actions which comprise his complaint. The following disclosures were persuasive in
- nis determination.
Mr. Pol'izzi's status as a protected employee is clear. In October of'1986, Mr. Poli :i was employed as a mechanical j engineer at the Comanche Peak Steam Electric Station in Glen Rose, Texas. While employed in that capacity, on October 22, 1986, Mr. Polizzi wrote a memo to his super-visors, J. Irons and D.C. Purdy, which was forwarded to the Gibbs & Hill New York office, outlining specific concerns regarding a potentially reportaole design deficiency in the pipe rupture analysis. Mr. Polizzi's concerns regarding the pipe rupture analysis, and willingness to take his complaint (' outside the firm were Well known among Gibbs & Hill employees at Comanche Peak. In his subsequent work locations in New York and Tennessee, he was vocal about his concerns l--------------_____-- -- - - _ - - - - - - _ _ - _ - - - - - - _ _ _ _ _ - - - . _ -.
,y .e with the pipe rupture analysis and his increasing dissatis-faction.with Gibbs & Hill's response to.his complaint.
Gibbs"& Hill's immediate response to Mr. Polizzi's memo was to transfer-him to the New York office while all other per-manent Gibbs & Hill mechanical engineers were transferred to different jobs on the,. Comanche Peak location. No other response to Mr. Poli::i's memo on the part of Gibbs & Hill-wra.provided until late January and early' February of 1987
~when Mr. Polizzi was visited on lui almost daily basis by an engineer from.the applied mechanics-group, Mr. Ted Kosmopoulos. Mr. Kosmopoulos and Mr. Poliani had heated arguments,.many of which were overheard by nearby employees on the validity of Mr. Poli::i's October 23. 1986 complaint.
Mr. Kosmopouloa.apparently attempted to persuade Mr. Polisti
.to accept Gibbs & Hill's position that his complaint was totally without merit and withdraw the complaint.
On 2/19/87'Mr. Poli:21 received a memo from D.'Purdy and C. Corban refuting his complaint. On 2/24/87 Mr. Poli :i l responded to this memo accepting Gibbs & Hill's position on two areas and further stating his concerns on two others. In addition, his dissatisfaction with Gibbs & Hill's re-
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sponse and his intention to pursue the matter with the NRC were widely discussed among his colleagues. On February 27, Mr. Polizzi received a layoff notice in a meeting with Richard Carr and Joseph Alberti. Mr. Polissi received a package from Mr. Carr which included a Gibbs & Hill " proprietary information" form. Poli :i requested a private meeting with Mr. Carr. In that meeting he informed Carr that he could not sign the form as he was planning to go 'l to the NRC and therefore could not agree not to release i potentially confidential information. He also advised Carr of his belief that he was being terminated as a result of his October 23, 1986 memo and subsequent defense of his complaint. Carr told Poli::i he would look into his allegations. On February 28, 1987 Mr. Polizzi contacted the NRC by phone and letter. Approximately one week later Mr. Polisti was-contacted by Mr. Carr's office offering him a job at the TVA. Mr. Poli::i's resume had been in a group of resumes that were submitted by Gibbs & Hill to TVA during the period 1/17/87 to 1/20/87 by Paul Giangreco. This submission of his resume was done by Mr. Giangreco prior to Poli :i's meetings with Ted Kosmopoulos during which he refused to withdraw his complaint. Mr. Poli :i also indicated he was not asked to update his resume as were others who were being considered for the TVA - ! project. His subsequent rehire on March 11, 1987 by Gibbs & ! Hill to work at the TVA appears to be the result of two fLetors. First, Gibbs & Hill needed more personnel than was l available to fulfill their TVA commitments; even transferring t. I
K - V- ; , i _3 I u i f 1 a grouplof pecple from the' Comanche Peak site. Second,- I Mr. Policci had clearly stated his intention to pursue his j
' claim with the NRC and his rehire and assignment to Tennessee ;
appears to be a. convenient way of forestalling his NRC ) comolain* i on'May 14,. 1987 Mr. Polizzi'was officially terminated, receiv-ing formal notificati.on from Richard Carr. While Gibbs & Hill = claims he'was advised earlier, a June 3, 1987 letter from~ a Kenneth Scheppele, president of Gibcs & Hill to former TVA ) employees points out that meetings were held with'the TVA-as j late as May 13, 1987 in an attempt to renew the contract. 1 Thus, the.May 14, 1987 termination date given by the complain-ant appears to be substantiated by Gibbs & Hill's own- o documentation. j There has never been any indication of poor work performance' 3 and in fact Mr. Pol'zzi i has consistently-received above ' average raises. Thus, the pattern emerges that Gibbs & Hill . responded to a Regulation 10CFR 50.55e complaint from a compe-tent employee on a troubled project by first getting him away from the project, ther terminating his employment as soon as feasibly possible. His subsequent rehire and termination appear to be an attempt to diffuse Mr. Polizzi's allegations and to obscure the actual reason for his dismissal.
, As to Giobs & Hill's contentions that another employee has filed similar complaints without adverse action, our under--
standing is that these complaints have been resolved internally without NRC notification. Therefore, we do not feel the circumstances are the same. This letter will notify you that the following actions are required to abate the violation and provide appropriate relief: Mr. Poli :i is requesting the sum of $150,000 (three years salary) plus attorney fees. Mr. Polizzi has been unemployed since May, 1987 and contends that because of this action he will have difficulty in obtaining employment in the industry. This letter will also notify 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) calendar days of receipt of this letter, file your request for a hearing by telearam to: The Chief Administrative Law Judge U.S. Department of Labor Suite 700 - Vanguard Building 1111 20th Street, NW Washington, DC 20036
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_4_ i Unless a' telegram request is received by the Chief Adminis-trative Law Judge within the five day period, this notice of determination and remedial action will become the final order of the Secretary of Laber. By copy of this letter, I am advising Mr. Polizzi of the. determination and right to a hearing. A copy of this letter and the complaint have also been sent to the. Chief Administrative Law Judge. If you decide to request a hearing it will be necessary to send .l copies of the telegram to fir. Poli::i and to me at i 26 Federal Plaza, Room 2251, New York, NY 10278,-(212) 264-8185. After :: r"eceive the copy of your request, appro-priate preparations for the hearing can be made. If you have any questions do not hesitate to call me. i It should be made clear to all parties _that-the role of the Department of Labor is not to represent the parties in any hearing. The Department would be neutral in such a hearing which is simply part of the fact-developraent process, and only allows.the par, ties an opportunity to present evidence for the record. If there is a hearing, an Order to the Secretary shall be based upon the record made at said hear-ing, and shall either provide appropriate relief or deny the complaint. i Sincerely,
,/ , f -
Thomas Kelly Area Director TK/cbm cc: Mr. Lorenzo Mario Poli::i - 100 Spring Street Metuchen, NJ 08840 Betty St. Clair, Esquire Rabinowitz, Boudin, Standard, Krinsky & Lieberman, PC 740 Broadway .; New York, NY 10003-9518 , The Chief Administrative Law Judge I j U.S. Department of Labor j Suite 700 - Vanguard Building I 1111 20th Street, NW Washington, DC 20036 1 Mr. Phil McKee, Deputy Director for 1 Comanche Peak Project i l Office of Special Projects I i
, Nuclear Regulatory Commission -
! Washington, DC 20555 I
. l l
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i , l l
l Nvr$s 2121 N. California Blvd., Suite 390. Walnut Creek. CA 94596 415/934 5733 I
' September 1,1987 '
]
84056.115 .1 l 1 Mrs. Juanita Ellis President, CASE 4 1426 S. Polk
. Dallas, TX 75224
Subject:
Communications Report Transmittal #27 3 Independent Assessment Program - Phase 4 Comanche Peak Steam Electric Station TU Electric Job No. 84056 Dear Mrs Ellis-1 Enclosed please find communications reports associated with the conduit audits. Due to a word processing system conversion, we are somewhat behind in processing telecons. We are attempting to distribute some each week to alleviate the backlog; we apologize for the delay. If you have any questions or desire to discuss any of these documents, please do not hesitate to call. < Very truly yours, WR4.%)h~m N. H. Williams
)
Project Manager i NHW/jlw , Attachments cc: Mr. J. Redding (TU Electric) l Mr. L Nace (TU Electric) Mr. W. Counsil (TU Electric) Mr. D. Pigott (Orrick, Herrington & Sutcliffe) Ms. A. Vietti-Cook (USNRC) < Mr. C. Grimes (USNRC) Mr. E. Siskin (SWEC) 1 San Francisco Boston Chicago
\
ueness 2121 N. California Blvd.. Suite 390. Walnut Creek CA 94596 415/9344733 September 1,1987 84056.115 . Mrs. Juanita Ellis President, CASE ~ l 1426 S. Polk Dallas, TX 75224
Subject:
Communications Report Transmittal #28 Independent Assessment Program - Phase 4 Comanche Peak Steam Electric Station TU Electric' I Job No. 84056 s Dear Mrs Ellis-Enclosed please find communications reports associated with the cable tray audits. Due j to a word processing system conversion, we are somewhat behind in processing telecons. We are attempting to distribute some each week to alleviate the backlog; we apologize for the delay. ! If you have any questions or desire to discuss any of these documents, please do not hesitate to call. Very truly yours, _ j N. H. Williams i Project Manager j NHW/jlw Attachments cc: Mr. J. Redding (TU Electric) Mr. L Nace (TU Electric) Mr. W. Counsil (TU Electric) i Mr. J. Muffett (TU Electric) ; Mr. D. Pigott (Orrick, Herrington & Sutcliffe) ' Ms. A..Vietti-Cook (USNRC) j Mr. C. Grimes (USNRC) Mr. E. Siskin (SWEC) i Mr. R. Alexandru (Ebasco) San Francisco Boston Chicago b____________________________
s was 2121 N. Cabfornia Blvd . Suite 390. Walnut Creek, CA 94596 415/934 5733 September 1,1987-84056.117 l l I Mrs. Juanita Ellis President, CASE ' 1426 S. Polk Dallas, TX 75224
Subject:
Communications Report Transmittal #29 Independent Assessment Program - Phase 4 Comanche Peak Steam Electric Station .I TU Electric ' ! Job No. 84056
Dear Mrs Ellis:
i Enclosed please find communications reports associated with the piping / pipe support audits. Due to a word processing system conversion, we are somewhat behind in processing telecons. We are attempting to distribute some each week to alleviate the backlog; we apologize for the delay. If you have any questions or desire to discuss any of these documents, please do not hesitate to call. Very truly yours, , 3 O N. H. Williams Project Manager 4 NHW/jlw Attachments cc: Mr. J. Redding (TU Electric) Mr. L Nace (TU Electric) Mr. W. Counsil (TU Electric) Mr. J. Muffett (TU Electric) Mr. D. Pigott (Orrick, Herrington & Sutcliffe) Ms. A. Vietti-Cook (USNRC) Mr. C. Grimes (USNRC) Mr. E. Siskin (SWEC) Mr. B. Ramsey (Impell) I San Francisco Boston Chicago
i 1 1 nat<rr
!! dis i )
'87 SEP 18 A8 :08 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION Ora j DOC r?. ,
j BEFORE THE ATOMIC SAFETY AND LICENSING BOARD 1 In the Matter of ,
}{ l
}{ j TEXAS UTILITIES ELECTRIC }{ Docket Nos. 50-445 i COMPANY, et al. }{ and 50-446 !
(Comanche Peak Steam Electric }{ j Station, Units 1 and 2) }{ CERTIFICATE OF SERVICE i 1 By my signature below, I hereby certify that true and correct copies of CASE's Progress Report (VII) have been sent to the names listed below this 14th day of September ,198,]_, by: Federal Express where indicated by
- and First Class Mail elsewhere.
Administrative Judge Peter B. Bloch Thomas G. Dignan, Jr., Esq. U. S. Nuclear Regulatory Commission Ropes & Gray Atomic Safety & Licensing Board 225 Franklin Street Washington, D. C. 20555 Boston, Massachusetts 02110 Judge Elizabeth B. Johnson Oak Ridge National Laboratory Geary S. Mizuno, Esq. P. O. Box X, Building 3500 Office of Executive Legal Oak Ridge, Tennessee 37830 Director U. S. Nuclear Regulatory Dr. Kenneth A. McCollom Commission 1107 West Knapp Street Washington, D. C. 20555 Stillwater, Oklahoma 74075 Dr. Walter H. Jordan Chairman, Atomic Safety and Licensing 881 W. Outer Drive Board Panel Oak Ridge, Tennessee 37830 U. S. Nuclear Regulatory Commission Washington, D. C. 20555 1
Chairman Renea Hicks, Esq. Atomic Safety and Licensing Appeal Assistant Attorney General Board Panel Environmental Protection Division U. S. Nuclear Regulatory Commission Supreme Court Building Washington, D. C. 20555 Austin, Texas 78711 Mr. Robert Martin Anthony Z. Roisman, Esq. Regional Administrator, Region IV 1401 New York Ave., N.W., Suite 600 U. S. Nuclear Regulatory Commission Washington, D. C. 20005 611'Ryan. Plaza Dr., Suite 1000 Arlington, Texas 76011 Mr. Herman Alderman Lanny A. Sinkin Staff Engineer Christic Institute Advisory Committee for Reactor 1324 North Capitol Street Safeguards (MS H-1016) Washington, D. C. 20002 U. S. Nuclear Regulatory Commission Washington, D. C. 20555 Dr. David H. Boltz j 2012 S. Polk Dallas, Texas 75224 Robert A. Wooldridge, Esq. Worsham, Forsythe, Sampels William Counsil, Vice President & Wooldridge Texas Utilities Generating Company 2001 Bryan Tower, Suite 3200 Skyway Tower Dallas, Texas 75201 400 North Olive St., L.B. 81 Dallas, Texas 75201 Robert A. Jablon, Esq. Spiegel & McDiarmid Docketing and Service Section 1350 New York Avenue, N.W. (3 copies) Washington, D. C. 20005-4798 Office of the Secretary U. S. Nuclear Regulatory Commission Ms. Nancy H. Williams Washington, D. C. 20555 Project Manager l Cygna Energy Services 1 Ms. Billie P. Garde 2121 N. California Blvd., Suite 390 Government Accountability Project Walnut Creek, California 94596 Midwest Office 104 E. Wisconsin - B William H. Burchette, Esq. Appleton, Wisconsin 54911-4897 Heron, Burchette, Ruckert & Rothwell 1025 Thomas Jefferson Street, N. W., Mr. Christopher I. Grimes, Suite 700 Director, Comanche Peak Washington, D. C. 20007 l I Project Division, Office of Special Projects James R. Bailey Mail Stop EWW 302 P. O. Box 7000 U. S. Nuclear Regulatory Commission Bryan, Texas 77805 Washington, D. C. 20555 2Mmb fR '.,) l g,ts.)JuanitaEllis, President l VCASE (Citizens Association for Sound Energy) 1426 S. Polk Dallas, Texas 75224 214/946-9446 2 L__-_______-______ __ ._ __ _ _ _ _ _ _ _ _ _ _ _ _ _ _ . _}}