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                                                                      '89 tiAR 13'. P4 :15 NUCLEAR REGULATORY COMMISSION                            j GFF!;. &    .  . ;, ,.
GENERAL ELECTRIC COMPANY -    00 E g        w Wilmington, North Carolina Facility Docket No. 70-1113 l                        ISSUANCE OF DIRECTOR'S DECISION UNDER 10 CFR 2.206 L
Notice 'is hereby given that the Deputy Executive Director for Nuclear Materials Safety, Safeguards, and Operations Support has granted in part atid
;    denied in part a petition under 10 CFR 2.206 filed by Anthony Z. Roisman and Mozart G. Ratner on behalf of Vera M. English (Petitioner).      In her petition, Mrs. English requested imposition of a civil' penalty in the amount of
      $40,635,000 upon General Electric (GE), plus $37,500 per day for every day after April 6,1987, that GE does not take corrective action, and imposition            <
of'a license condition upon GE requiring the Licensee.to fully compensate Prs. English for her economic losses in the past and future resulting from GE's alleged discrimination, for medical expenses entailed as a result of the          l alleged discrimination, for expenses incurred in " fighting GE", and for
      " physical and mental pain she has endured" as a result of GE's actions.
The Petitioner's request that enforcement action be taken against GE has been granted. As a result of this decision, a Notice of Violation and Proposed Imposition of Civil Penalty in the amount of $20,000 is also being issued.
However, the Petitioner's requests that the NRC impose a civil penalty in the amount of $40,635,000 plus $37,500 per day for each day after April 6,1987 and that the liRC impose a license condition upon GE requiring the Licensee to kpj4130422890313 c    ADoca o70o1133 f. t5 PDR    h9
 
H compensate Mrs. English for her expenses and losses are denied. Furthermore, the Petitioner's request as set forth in her December 13, 1984 petition that the NRC take enforcement action against GE based upon certain other alleged instances of wrongdoing is also denied.
The reasons for this decision are fully described in the " Director's Decision Under 10 CFR 2.206," issued on this date, which is available for public inspection in the Commission's Public Document Room, 1717 H Street, NW, Washington, DC 20555.                                                    i FOR THE NUCLEAR REGULATORY COMMISSION fk.
Hu h L. Thompso , Jr.
Deputy Executive Director for Nuclear Materials Safety, Safeguards end Operations Support Dated at Rockville, Maryland this  /74        day of March 1989
 
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                      ,                                                                                                                                                                                    DD 8 7-o /                    ,
                't    4                                                                                                                                                                                                                    )
l L AW orriCES                                                            (
MOZART G. RATNER, p c.                                                                                            I 4400 J E NIF E R ST R E CT, N w suite 350 wC2 ant 0 mATNgm                                                                                                wAs MINGTON,0 C 200:5                                                      a.M A C D D C 2 0 4 3 6 2 AJPSC 9
April 6, 1987
                                                                                                                                                                                                                                          )
Mr. James M. Taylor Director of Inspection and Enforcement United States Nuclear Regulatory Commission Washington, D.C.                                                        20555 Re:                  In the Matter of Vera M. English v.
General Electric, Docket No. 70-1113
 
==Dear Mr. Taylor:==
 
l When you rendered your Partial Director's Decision Pursuant to 10 C.F.R.                                                                              5 2.206 on August 29, 1986.(Partial Decision), you speciff,cally deferred any NRC action on Mrs.                                                                                                                                                    f English's request that enforcement action be taken against General Electric Company (GE) as a result of its deliberate
                          . discharge of her from its Wilmington, North Carolina Nuclear Fuel Manufacturing Division (NFMD) for reporting safety violations to the NRC.                                                                                          The stated basis for this deferral of action was the agreement between the Department of Labor (DOL) and NRC to coordinate and cooperate on matters related to the employee protection provision of Section 210 of the Energy Reorganization Act of 1974.                                                                                                                      Department of Labor; Employee Protection, 47 F.R. 54585 (December 3, 1984).                                                                                                                              The Director determined that the agreement "means deferral of NRC consideration until the matter has been determined.by the yh-N.g75$75                                                            . _ 0o27o Q                                                              >
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James M. Taylor April 6, 1987 Page'2 Secretary of~ Labor."                                  Partial Decision,.p.:ll.                                                                                        Reference was also~made to the'NRC likely waiting until the Secretary of-
                                                . Labor had resolved the complaints filed by Ms. Malpass and Mr.
Lewis.        Id.
On January 13, 1987, the Secretary of Labor dismissed Mrs. English's administrative complaint, because, in his view, it'was filed after the 30-day statutory limit.                                                                                                                      The Secretary did not disturb the Administrative Law Judge's substantive findings of illegal' discrimination against Mrs. English by GE.
An appeal to the Fourth Circuit has been filed by Mrs. English f rom the- Secretary's dismissal, but' resolution of that appeal is not expec'ted for some time.
                                                                  .The purpose of this. letter is to request that NRC now move promptly.and vigorously to take appropriate enforcement action against GE for its misconduct against Mrs. English.
Briefly, the bases for this request are:
: 1)    the excuse which was given to justify deferral, i.e., awaiting action.by the Secretary of Labor, is no longer valid;
: 2)    regardle.ss of the technical timeliness of Mrs.
English's comptaint, a DOL Administrative Law Judge held, t.fter an extensive hearing, that GE
                                                                          " discriminated against" Mrs. English because of her
                                                                          " violation of and: participation in NRC proceedings
                                                                        ' investigating" GE's facility (In the Matter of English v. GE, DOL Case No. 85-ERA-00002 Decision and order August 2, 1985, p. 13) and GE has not paid any fine for its conduct nor has Mrs. English been compensated for the wrong done her; l
l I
 
1 s
James M. Taylor April 6, 1987 Page 3
: 3)  the effectiveness of the NRC's program to protect and encourage. workers to report safety violations to it -- a program which exists as the direct result of a Congressional mandate -- is severely hampered, if not destroyed, by any further delay in taking action to demonstrate to all workers in the nuclear industry that they will not suf fer, but in fact will be fully protected, if they carry out their duty to report such violations to the NRC.
It has been almost three years since Mrs. English was fired from her job at NFMD.      Over a year and a half ago the Administrative Law Judge concluded, after extensive hearings, that GE deliberately discharged Mrs. English because she would                                        l not stop insisting that GE comply with NRC safety requirements and reporting their failures to comply to the NRC.                                    Both ~3C's internal inspection and the NRC's inspection confirmed the validity of a number of Mrs. English's charges.            By reporting her concerns to the NRC, Mrs. English was fulfilling the mandate of 10 CFR Part 21, and the Congressional goals and purposes of 42 U.S.C. S 5851.      Nonetheless, to date the NRC                                        i has not taken a single step to show its support for Mrs.
English and her conduct, nor has it taken a single action to show its disapproval of GE for its retaliatory discharge of Mrs. English.
Surely, the NRC must realize that so long as this situation persists, the other employees at NFMD and employees throughout the nuclear industry will be substantially deterred from coming forward and reporting safety violations to the NRC.
 
4 James M. Taylor April 6, 1987 Page 4 The messages that Mrs. English's treatment has sent and is sending to the nuclear industry is loud and clear -- employees who report safety violations to the NRC and suffer retaliation from their employers cannot rely on the NRC to take action to redress the wrongs done them and their employers will not be punished for their misconduct.            In consequence of this message, significant safety problems at nuclear facilities, known only to employees and ignored by management, will be less likely to be discovered and corrected.              The ultimate result in that there is an increased risk to workers and to the public health and safety.
If NRC is to fulfill its statutory duty to protect the
              ~
safety of nuclear workers and the public health and safety, it            j must take forceful affirmative action immediately.              We propose the following steps:
: 1)    Impose on GE the maximum fine permitted by the statute for its willful retaliation against Mrs.
English, which constitutes several on-going violations beginning from the date of Mrs.
English's transfer out of the Chemet Lab and continuing until Mrs. English is fully compensated;
: 2)    Impose, as a condition of an NRC license for GE's NFMD facility, a requirement that GE fully i
compensate Mrs. English for her losses incurred as a result of GE's misconduct, including front and        i back pay, emotional distress and other pain and        '
suffering, medical bills and all costs and fees incurred by her in pursuing her claims against GE.
These enforcement actions would both punish GE for its misconduct and thus hopefully deter it and other NRC licensees
 
i          I l
3                                                                                                              )
James M. Taylor i
April 6, 1987 Page 5                                                        ,
i
                                                                                                                      )
from similar conduct in the future and demonstrate to other workers in the nuclear industry that should they uncover and report violations of the NRC's safety and/or quality assurance rules, the NRC will assure them that any loss they suffer at          \
i 1
the hands of their employers as a result of their reporting, will be fully compensated.          By these actions the NRC will        1 1
substantially advance its statutorily mandated goal of protecting the public health and safety.
As you know, Mrs. English has already filed a 5 2.206 petition.        This filing is neither a renewal of that petition nor an attemot to relitigate the issues already resolved there.
With particular reference to the request made there for enforcement action based upon GE's retaliatory discharge of Mrs. English, it remains our view that the Director erred as a matter of law in deferring NRC enforcement action, at least insofar as imposing a fine on GE, until final action by the DOL.
The present petition focuses on the actions to be taken by the NRC now that the reason given for deferring action no longer exists and DOL has decided for purely technical reasons, which are relevant to its authority, but not to                '
i NRC's, to deny relief to Mrs. English.          This is a new petition which incorporates by reference the material filed in support of the first petition and seeks the specific relief outlined            )
                                                                                                                    )
 
James M. Taylor April 6, 1987 Page 6 l
I                                              above. Your prompt and favorable response to this 5 2.206 petition is essential to re-establish the effectiveness of the NRC's program to encourage and protect nuclear industry workers to' report safety violations to it.
Sincerely yours,
                                                                                  .4              .
                                                                              .'      A                      V
                                                                              /      ,/ Mozart G. Ratner Yo')Kthonyl Z. Roisman M
                                                                                  /
ounsel for Vera M. English l
                                                                                                                                          'l 4
I
______m______    _ _ _ _ _ _ _ _ _ _ _ _ _ _ _
 
go              .
4 UNITED. STATES, NUCLEAR REGULATORY. COMMISSION Before the Director of Inspection and Enforcement In the Matter of                                                                                                                                                                                                        )
                                                                                                                                                                                                                                                    )
VERA M. ENGLISH                                                                                                                                                                                                        )-
y,                                                                                                                                                                                                                Docket No. 70-1113
                                                                                                                                                                                                                                                    )
GENERAL ELECTRIC COMPANY                                                                                                                                                                                                )
PETITION FOR ENFORCEMENT ACTION Q.
I.                        Introduction The Introduction and Purpose of the General Statement of L                          Policy and Procedure for NRC Enforcement Actions (10' CFR Part 2,  Appendix C) (" Enforcement Policy") provides,'in part:
The purpose of the NRC enforcement program is to promote and protect the radiological health and safety of the public, including employees' health and safety,.the common defense and security, and'the' environment by:
Ensuring compliance with NRC regulations and license conditions; Obtaining prompt correction of violations and adverse quality conditions which may affect safety;
* Deterring future violations and occurrences of conditions adverse to quality; and
* Encouraging improvement of licensee and vendor performance, and by example, that of                                                                                                                                                                                                ;
industry, including the prompt identification
  ' ,                                                                          and reporting of potential safety problems.
[Footnctes omitted.)
This                                    enforcement request                                                                                                                            is grounded in that clear policy mandate.                                          It seeks two separate and distinct NRC actions.                                                                                                                                                                        First,                i i
in order to ensure " compliance with NRC regulations and license W                        7 W            ---
nn                                        '
_ _ - . - _ _ _ _ . _ _ _ - - . _ - - - _ - - - _ - _ . - _ - - _ _ - - - - - _ - _ - . - - - _ _ _ - - - _ - - - - - - . - - - - - - - - - - - - - . - - - . - - - - - - - - - - - - - - - - - - - - _ - - - - - - - - - - - - - - - - - - - _ - - - - - - - - -          -------------J 1
 
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conditions," and in order to deter " future violations and occurrences of conditions adverse to quality," it seeks imposition of a substantial I
penalty aga' inst General Electric Company (GE) for having " discriminated    '
against [Mrs. English]" because of her " initiation of and participation in NRC proceedings." In the Matter of Vera M. English v. General Electric Company, DOL Case No. 85-ERA-0002 decided August 1, 1985, reversed on the basis of the statute of limitations on January 13, 1987, appeal pending, United States Court of Appeals for the Fourth Circuit. Second, in order to encourage the " prompt identification and reporting of potential safety problems" and in order to obtain
          " prompt correction of violations and adverse quality conditions which may af fect safety" it seeks imposition of a license condition requiring GE to fully compensate Mrs. English for all her losses incurred as a result of her illegal discharge.        The amount of this i
compensation, omitting attorneys' fees and expenses, is detailed in Attachment A to this petition.
II. _ Imposition of a Fine The Enforcement Policy is grounded in the premise that voluntary compliance with NRC regulatory and licensing requirements will be most likely to occur if the consequences of noncompliance are both prompt and vigorous. Basic guidelines are established for di f ferent categorias of misconduct which reflect a conscious ef fort to distinguish between violations based on conditians et the actual, or potential for, impact on the public. These general guidelines i
are then nodified based upon the extent to which the misconduct occurred as a result of careless disregard or willfulness.      In addition, such considerations as the position of those causing I
l                                                                                        '
t
 
F-4 o    .                                                                                  l the violation, the significance                              of the underlying violation, the intent of the violator and.the economic advantage gained as a result of the violation all may increase the penalty                                imposed.
On virtually every factor which the NRC uses to judge the level of penalty to impose for violations, GE's conduct requires imposition of the highest penalty.                              Its deliberate action in discharging Mrs. English for. pursuing safety concerns with the NRC and its i
refusal to take any corrective steps to remedy the situation even af ter its own internal report confirmed some of Mrs. English's mest serious concerns and even after the Department of Labor Admini-strative Law Judge found for Mrs. English, are evidence of the mest callous and dangerous conduct for which an imposition of a severe penalty is absolutely essential.
Although the Enforcement Policy "is intended to serve as Cermission guidance, rather than as rigid requirements" (Statement of Consideration, 47 FR 9987 ( 3/9/8 2 )), it nonetheless is imposed "upon the Staff and presiding of ficers" and "(a]s a matter of fair notice to ... licensees, the Enforcement Policy must be applied" (In the Matter of Reich Geo-Physical, ALJ-85-1, 22 NRC 941, 958-9 (1985).                              The discretion granted to the Director by the Conmission in the Enforcement Policy is a discretion to act within the confines                                    ;
a of the Policy, not a discretion to ignore er substantially deviate i
  ..                      f r om the policy.                              For instance, in establishing base penalties for violations, the Policy is quite explicit.                                  The discretion
                                                                                                                                    )
is applied in deciding how much to increase or decrease the penalty.                                    )
Similarly, the Poicy declares that "[w]ith very limited exceptions, whenever a violation of NRC requirements is identified, enforcement                                        l l
l i
 
                                                                                                                                            ~
L c                                                                                                                        .
:. .                                                                                                      action is taken," that "lg]enerally, civil penalties are imposed for Severity Level 1 violations" and "are imposed absent mitigating circumstances [which are defined) for Severity Level II violations" and "will normally be assessed . . . for any. willful violation of                                                  a any Commission requirement including those at any severity level."                                                      I 10 CFR Part 2, Appendix C, Paragraphs V and V.B.
The GE misconduct of which Mrs. English is the victim is a Severity Level I or II violation which has continued since her original transfer from the Chemet Lab and her subsequent firing through today.
From the outset, the GE plant manager was fully aware of and participated in the discrimination.against Mrs. English.                                      .
At -least af ter August 24, 1984, when Mrs. English filed her complaint                                                  I with the Department of Labor, the highest levels of GE must be assumed to have been aware of what happened to her and of the wrongs which had been committed against her.                                                  "The Commission expects management to be closely involved in the control of licensed activities ... land i]f management ... condones violations of                                                          q l
regulatory requirements, sanctions will be appropriately escalated."                                                        {
Statement of Consideration, 49 F.R.                                                8583, 8585 (3/8/84). Thus              l from March 15 until August 24, 1984, GE was guilty of at least a Severity II violation since "la }ction by lits) plant management above first line supervision (was) in violation of Section 210 of the ERA' and from August 24, 1984, to today " senior corporate management (has been) in violation of Section 210 cf the ERA."
10 CFR Part 2, Appendix C, Supplement VII A & B. The base civil penalty for those violations is $20,000 per violation from March                                                            j 15 to August 24 and $25,000 per violation from August 24 to today.
 
i
_3                                                        l 10 CFR ' Part 2, Appendix C, Table 1A and 1B.                                                                            Moreover, since GE "is aware of the existence of a condition which results in an engoing violation and [has failed] to initiate corrective action,                                                                                              f each day the condition existed may be considered as a separate                                                                                                    .
violation and, as such, subject to a separate additional civil j
penalty."                          10 CFR Part 2, Appendix C, Paragraph V.B.5.(1).                                                                Thus GE's base penalty for its treatment of Mrs. English is $3,240,000
{
for the Severity Level,II violations and S23,850,000 for the Severity Level I violations, making a total base penalty of $27,090,000.
Additional factors require that this amount be substantially incrersed.
Initially it is important to realize why NRC has decided to classify Section 210 violations at the highest severity levels.
Any action taken by a licensee to deter reporting of safety concerns by discouraging employees from reporting to the NRC is, in effect, an attempt to falsify data since a material omission is as serious as a. material misstatement.                                                        10 CFR Part 2, Appendix C, Supplement VII, fn. 15.
When GE attempted to force Mrs. English to abandon her safety concerns and to not report to the NRC it was seeking to prevent material inf ormation relevant to the NRC's safety review function from reaching the NRC. When she was subsequently transferred and later fired f rom her job in a highly public and demeaning manner for refusing to surrender to these pressures, every worker at the GE facility got a very clear message that reporting to the NRC would be met with severe consequences.                                                                                Without the steady flow of reliable and complete information, the NRC cannot carry out its safety review function.
 
8 In addition, the Enforcement Policy singles out ineffective identification of safety problems-as particularly egregious and explicitly authorizes both administrative orders and civil penalties in such casas. Statement of Consideration, 49 F.R. 8583, 8589 (col. 2) (3/8/84). GE's actions in punishing Mrs. English for reporting safety concerns to the NRC not only sought to prevent her identification of problems but undermined any other employees'                                              i inclination to identify safety problems.
Finally, it is the very nature of Section 210 violations, as opposed to other violations,- that they warrant the most severe classification for enforcement action.                                            Any Section 210 violation is inherently generic.because the workforce learns from management's conduct what is acceptable and unacceptable behavior. This generic impact means that even if a specific Section 210 violation only involves suppressing relatively minor safety concerns, there is a  substantial potential for suppressing significant safety concerns known to other workers who are intimidated by the consequences suffered by their fellow worker.                Thus the test of the safety implications of the Section 210 violation involved here is not merely the safety significance or even the validity of the underlying concerns raised by Mrs. English but rather the potential safety 4
significance of the problems which other workers will be reluctant to raise because of fear of reprisals.l of course that implicates the most serious safety concerns.
1 There is no doubt here that Mrs. English's concern regarding                                                I the proper handling and cleanup of the special nuclear material which GE is licensed to possess itself involves the gravest matters of worker and public health and safety. The potential for mishandling, inadvertent exposure, and leakage of this material is sufficiently serious that the Executive Director for Operations recently concluded that even the procedures designed to safeguard the material could
 
1
                                                    -7 Against this regulatory predisposition to severely punish Section 210 violations is superimposed the fact that GE's conduct here, far from justifying mitigation of any fine, actually requires a substantial increase in the fine. The factors identified in the enforcement policy as warranting an adjustment of the fine are:    prompt identification and reporting (GE has never reported its Section 210 violation to the NRC or even acknowledged that such a violation exists); corrective action to prevent recurrence (not only has GE done nothing to correct the damage done to Mrs.
English, even af ter its own investigator found substantial merit in her quality concerns r (Wieczorek Report (April 26, 1984)),
but it has also done nothing to eliminate the consequences to other employees of its intimidation of Mrs. Inglish or to prevent recurrence of similar events in the future and, in the cases of Ms. Malpass and Mr. Lewis, applied similar pressure to prevent and punish their testimony on behalf of Mrs. English); past performance (Hrs. English had felt pressure to "go along to get along" for several years); prior notice of similar events (licensees have been notified by the NRC of the importance of compliance with Section 210 and of encouraging workers tc freely speak out about safety concerns to management and the NRC); and multiple occurrences
  ,              1 [ continued) not be released under the Freedom of Information Act (5 U.S.C.
5552) because it "would facilitate attempts at theft or diversion of such material and thus pose significant health and safety problemt."  !
Letter of Stello to Ratner, 3/25/87, in response to FOIA-86-704.
Obviously since the diversion of this material is of such grave concern, its careless. handling, frequent spills, and inadequate cleanup with the concomitant exposure of workers, plus the failure to properly control the material and follow safeguard procedures, is an extremely serious matter of which the NRC would have to be advised.
a
 
1
(
I i
(every day that passes without corrective action being taken to undo the damage done to Mrse                                                                                i English reinforces the adverse impact    1 i
on other workers who believe they should report safety. concerns to the NRC).- All these factors taken together warrant at least
{
a 50% increase in the fine to be paid by GE.                                                                .)
In sum, Mrs. English requests that GE be fined a total of
                                $40,635,000 plus $37,500 per day for every day after April 6, 1987, that GE does not take the corrective actions identified in the following paragraphs.                                                                                ;
i III. Modification of License The imposition of the fine proposed above should substantially deter GE and other licensees from violating Section 210 in the future, but that deterrence will never overcome the fear engendered among the workforce by the treatment which Mrs. English has been forced to endure. To the workers at GE the only relevant fact is that someone stood up to management and insisted on pursuing safety concerns with the NRC, many of which were confirmed by GE's ov'    internal report and by NRC inspector reports, and that person is gone, with no career and no future. For the men and women at GE with families and responsibilities, for those who are alone and depend on their job to provide tnem the comforts
+
of life, for all the employees, Mrs. English suffered the ultimate and most severe punishment for her conduct.                                          The impact of that on the remaining workforce cannot be overstated.                                          Each of those workers must now consider that resisting management and insisting on pursuing a safety concern may not only result in a lost job
 
  .                                                                                                                                                        I but  there will not be any remedy to assure that worker that by obeying the law and reporting safety concerns the worker,will not suffer economically -- their capacity to support themselves and their family will be restored and they will be fully compensated for the physical and emotional anguish caused by being escorted from the job site and barred from employment.
Had GE operated its plant without properly functioning and required safety equipment, NRC could and should have fined them.
Had GE still not corrected the problem, NRC would have to issue                                    f an order requiring that corrective steps be taken by a time certain and, failing that, the license would have to be suspended. The safety problem created by GE's action against Mrs. English is disabling a major safety system at the NMFC plant -- i.e., the system which assures that safety concerns are promptly reported to the NRC. GE has refused to repair that system and thus the NRC must issue an order requiring that GE implement repairs at once or have its license suspended.
(
There is only one way to repair the damage done by GE's actions                              '
against Mrs. English.      GE must be required to fully compensate Mrs. English for her economic losses in the past and for the future, for her medical expenses, for the expe.nses she incurred in fighting GE all these years, and must fully conpensate her for the physical
,      and mental pain she has endured as a result of their actions.
Without such co:npensation, she remains a symbol to the GE workferce of the severe consequences which they will suffer if they insist on reporting safety concerns to the NRC.          By requiring GE to provide such compensation, Mrs. English becomes a symbol to the GE workforce that if they report safety concerns to the NRC they will not                                              {
    -- -          --        -        -                                                                        l
 
l l-l    -
r suffer.      In addition, GE will realize that Section 210 violations, even if it is economically possible to justify the fine, will not produce the desired result of inhibiting the workforce from reporting to the NRC.
L                  No amount of new programs to encourage workers to freely                                        ?
express their concerns to the NRC, no amount of management speeches, .                                    ;
1 i
slogans and posters, and no amount of NRC assurances will convince                                        {
the worker that she or he should risk virtually certain loss of i
livelihvad to pursue safety concerns which GE does not want pursued.
The remedyIroposed here, while admittedly unique, is certainly well within the power of the NRC.        The Enforcement Policy recognizes the need to assure that corrective actions are taken promptly.
The NRC has the authority to " establish by .. . order, such standards                                    '
and instructions to govern the possession and use of special nuclear material . . . . as the Commission may deem necessary [or] desirable
        ~
to  ...
protect health or to minimize danger to life or property."
42 U.S.C.      52201(b). In 10 CFR 555.40(b), the NRC specifically declares that it possesses the authority to modify any license                                            1 for "f ailure to observe any of the terms and conditions of the                                            i Act, or the license, or of any rule, regulation or order of the l
Cermii s s i.v    ..."  In 10 CFR 550.7 the Commission specifically                                          !
forbids violations of Section 210 of the Energy Reorganization Act. Thus the NRC has full authority to impose the relief requested                                      I here.
The existence of Section 210 does not bar the NRC from acting independently of the Department of Labor.        The NRC cannot be barred 1
from pursuing its important health and safety functions by the                                              l Department of Labor actions as this case well illustrates.          Here
 
i o .,
1 the Department of Labor found that Mrs. English had been discriminated against for engaging in protected activity but ruled that her claim was time-barred. That technical impediment, even if valid, cannot and does not undermine the validity of the ALJ findings and the implication of those findings for the public health and safety. Even if the Department of Labor had allowed the woefully inadequate compensation which Mrs. English    was awarded to stand, it would still be incumbent on the NRC to. evaluate the remedy to assure itself that the compensation paid    was sufficient to fully correct the problem created by the illegal firing. Finally, Congress itself always intended that the NRC would retain its full authority to act in addition to the processing of Section 210 violations by the Department of Labor.      In floor debate in the Senate, Senator Hart sponsored and spoke for an amendment which was adopted to strengthen the employee protection provisions.
Senator Hart stated (124 Congressional Record 29771 (December 18, 1978):
                    ...  (Section 210] is not intended to in any              s way abridge the Commission's current authority              J to investigate an alleged discrimination and take appropriate action against a licensee-employer, such as a civil penalty, license suspension or license revocation.
Thus NRC has authority to act even before the Department of Labor provides some compensation. In this case, the NRC clearly
  ,    has a duty to act since the Department of Labor has acted      and has not provided any remedy to Mrs. English.
1 i
i
 
CONCLUSION The central and indisputable fact which underlies tl1s 3 Petition is that over three years ago Mrs. English was discriminated against and eventually fired by GE f9 r reporting safety concerns to the NRC and GE has never been fined for its conduct and Mrs. English has never been compensated for the injuries inflicted upon her by GE. The unavoidable consequence of this situation is to leave the impression with GE and other licensees that such conduct is tacitly acceptable and to leave the impression with the nuclear industry workforce that reporting safety concerns to the NRC will result in discrimination and retaliation which will never be redressed.
It is unacceptable for these conditions to continue. Prompt action is required in the form of adoption of the enforcement proposals in this Petition.
Respectfully submitted, M                / 4:
                                                                            < Anthony Z./Ro 'scin/
Suite 600f          (
1401 New Yo k Ave., NW Washington, D.C. 20005 (202) 628-3500 l
l'    f. bb4' Mozart G. Ratner 5225 Wisconsin Avenue, NW Suite 600                              i Washington, D.C. 20015                '
Counsel for Petitioner Dated:
4f
 
i l
l VERA M. ENGLISH Costs and Damages Incurred As a Result of Discriminatory Discharge Past and future pay, including benefits                                  $ 328,645.00 Mrs. English's out of pocket costs and expenses                          24,026.62 Psychological Service Fees (only through December 10, 1985, and not including additional amounts incurred since then, to be supplemented later)                          2,955.00 l
                                                  $355,626.62 !
i 4
                                                              )
1 ATTACHMENT A l
I l
 
X  '
i r      o.                                                                                                                                                                      ,
UNITED STATES NUCLEAR REGULATOTY COMMISSION Before the Director of Inspection and Enforcement                                                                                                        I In the Matter of                                                                                  )
                                                                                                                  )
VERA~M. ENGLISH                                                                                  )
y,                                                                                      Docket No. 70-1113
                                                                                                                  )
GENERAL ELECTRIC. COMPANY                                                                        )
PETITION FOR ENFORCEMENT ACTION I. . _ Introduction The Introduction and Purpose of the General Statement of Policy and Procedure for NRC Enforcement Actions (10 CFR Part 2,  Appendix C)                    ,
(" Enforcement Policy") provides, in part:
The purpose of the NRC enforcement program is to promote and protect the radiological health and safety of the.public, including employees' health and safety, the common defense and security, and the environment by:
Ensuring compliance with NRC regulations and license conditions; Obtcining prompt correction of violations and adverse quality conditions which may affect safety; Deterring future violations and occurrences of conditions' adverse to quality; and Encouraging improvement of licensee and vendor performance, and by example, that of l                                  industry, including the prompt identification
!"                                  and reporting of potential safety problems.
E                                  [ Footnotes omitted.)
This      enforcement request                                                      is grounded in that clear policy mandate.            It seeks two separate and distinct NRC actions.                                                                                    First, in order to ensure " compliance with NRC                                                          /
regulations and license
                                                                                                          ///          ,
                                                                                                /'?      I
                                                                                                                \h  -
A
 
conditions,"' and in order to deter " future violations and occurrences of conditions adverse to quality," it seeks imposition of a substantial penalty against General Electric Company (GE) for having " discriminated against [Mrs. English)" because of her " initiation of and participation in NRC proceedings."  In the Matter of Vera M. English v. General-Electric Company, DOL Case No. 8 5-ERA-0002 decided August 1,1985, reversed on the basis of the statute of limitations on January 13, 1987, appeal pending, United States. Court of Appeals for the Fourth Circuit. .Second, in order to encourage the " prompt identificatic and reporting of potential safety problems" and in order to obtain
                                            " prompt correction of violations and adverse quality conditions which'may affect safety" it seeks imposition of a . license condition requiring GE to fully compensate Mrs. English for all her losses
                                          -incurred as a result of .her illegal discharge. The amount of this compensation, omitting attorneys' fees and expenses, is detailed in Attachment A to this petition.                                            i' II. Imposition of a Fine The Enforcement Policy is grounded in the premise that voluntary compliance with NRC regulatory and licensing requirements will              '
be most likely to occur if the consequences of noncompliance are both prompt and vigorous. Basic guidelines are established for            i dif ferent categories of misconduct which reflect a conscious effort to distinguish between violations based on conditions of the actual,        ,
or potential for, impact on the public. These general guidelines are then modified based upon the extent to which the misconduct            i occurred as a result of careless disregard or willfulness.      In l
1 addition, such considerations as the position of those causiny
 
the violation, the significance                                                                of the underlying violation, the intent of the violator and the economic advantage gained as a result of the violation all may increase the penalty imposed.
On virtually every factor which the NRC uses to judge the level of penalty to impose for violations, GE's conduct requires imposition of the highest penalty. Its deliberate action in discharging                                                    i Mrs. English for pursuing safety concerns with the NRC and its refusal to take any corrective steps to remedy the situation even after its own internal report confirmed some of Mrs. English's most                                                    serious concerns and even after the Department of Labor Admini-strative Law Judge found for Mrs. English, are evidence of the most callous and dangerous conduct for which an imposition of a severe penalty is absolutely essential.
Although the Enforcement Policy "is intended to serve as Commission guidance, rather than as rigid requirements" (Statement of Consideration, 47 FR 9987 ( 3/9/8 2 )), it nonetheless is imposed "upon the Staf f and presiding of ficers" and "[als a matter of fair notice to ... licensees, the Enforcement Policy must be applied" (In the Matter of Reich Geo-Physical, ALJ-85-1, 22 NRC 941, 958-9 (1985).                                                          The discretion granted to the Director by the Commission in the Enforcement Policy is a discretion to act within the confines of the Policy, not a discretion to ignore or substantially deviate from the policy.                                                          For instance, in establishing base penalties        j for violations, the Policy is quite explicit.                                                                The discretion    l is applied in deciding how much to increase or decrease the penalty.
Similarly, the Poicy declares that "[wlith very limited exceptions,                                                            '
I whenever a violation of NRC requirements is identified, enforcement
 
    ,                                                                                                                                                                                      10 CFR Part 2, Appendix ~ C, Table 1A and 1:B.                                                                                                                                        Moreover, since GE "is aware of the existence of a condition which results in an ongoing violation and [has failed) to initiate corrective action, each day the condition existed may be considered as a separate violation and, as such, subject :to a separate additional civil penalty."                  10 CFR Part 2, Appendix C, Paragraph V.B.S.(1).                                                                                                                            Thus GE's base penalty for its treatment of Mrs. English is S3,240,000 for the Severity Level II violations and- $23,850,000 for the Severity Level I violations, making a total base penalty of $27,090,000.
Additional factors' require that this amount be substantially increased.
Initially it is important to realize why NRC has decided to classify Section 210 violations at the highest severity levels.
Any action taken by a licensee to deter reporting of safety concerns by discouraging employees from reporting to the NRC is, in effect, an attempt to falsify data since a material omission is as serious as a material misstatement.                                                                                                      10 CFR Part 2, Appendix C, Supplement VII, fn. 15.                        When GE attempted to force Mrs. English to abandon-her safety concerns and to not report to the NRC it was seeking i
to prevent material information relevant to the NRC's safety review function from reaching the NRC.                                                                                                                                              When she was subsequently transferred and later fired from her job in a highly public and demeaning manner for refusing to surrender to these pressures, every worker at the GE facility got a very clear message that reporting to the NRC would be met with severe consequences.                                                                                                                                            Without the steady flow of reliable and complete information, the NRC cannot carry out its safety review function.
 
    .e L . .:                                                          In addition, the Enforcement-Policy singles out ineffective identification of safety problems as particularly egregious and explicitly authorizes both administrative orders and civil penalties in such cases. Statement of, Consideration, 49 F.R. 8583,'8589 i
(col. 2) . (3/8/84). GE's actions in punishing Mrs. English for          i reporting safety concerns to the NRC not only sought to prevent her identification of problems but undermined any cther employees' inclination to identify safety problems.
Finally, it is the very nature of Section 210 violations, as opposed to other violations, that they warrant the most severe classification for enforcement action.      Any Section 210 violation
          . is inherently generic because the workforce learns from management's conduct what is acceptable and unacceptable behavior.      This generic impact means that even if a specific Section H 0 violation only involves suppressing relatively minor safety concerns, there is a substantial potential for suppressing significant safety concerns known to other workers who are intimidated by the consequences suffered by their fellow worker.      Thus the test of the safety implications of the Section 210 violation involved here is' not merely the safety significance or even the validity of the underlying concerns raised by Mrs. English but rather the potential safety significance of the problems which other workers will be reluctant to  raise because of fear of reprisals.1    Of course that implicates the most serious safety concerns.
1 There is no doubt here that Mrs. English's concern regarding the proper handling and cleanup of the special nuclear material which GE is licensed to possess itself involves the gravest matters of worker and public health and safety. The potential for mishandling, inadvertent exposure, and leakage of this material is sufficiently i-serious that the Executive Director for Operations recently concluded that even the procedures designed to safeguard the material could
 
        .                                                                                                              Against this regulatory predisposition to severely punish Section 210 violations is superimposed the fact that GE's conduct here, far from justifying mitigation of any fine, actually requires a substantial increase in the fine.      The factors identified in the enforcement policy as warranting an adjustment of the fine are:    prompt identification and reporting (GE has never reported its Section 210 violation to the NRC or even acknowledged that such a violation exists); corrective action to prevent recurrence (not only has GE done nothing to correct the damage done to Mrs.
English, even af ter its own investigator found substantial merit in her quality concerns- (Wieczorek Report (April 26, 1984)),
but it has also done nothing to eliminate the consequences to other employees of its intimidation of Mrs. English or to prevent recurrence of similar events in the future and, in the cases of Ms. Malpass and Mr. Lewis, applied similar pressure to prevent and punish their testimony on behalf of Mrs. English); past performance (Mr s. English had felt pressure to "go along to get along" for several years); prior notice of similar events (licensees have been notified by the NRC of the importance of compliance with I
Section 210 and of encouraging workers to f reely speak out about      !
saf ety concerns to management and the NRC); and multiple occurrences 1 icontinued]                                                          J not be released under the Freedom of Information Act (5 U.S.C.
5552) because it "would facilitate attempts at theft or diversion of such material and thus pose significant health and safety problems." j Letter of Stello to Ratner, 3/25/87, in response to FOIA-86-704.        !
Obviously since the diversion of this material is of such grave        I concern, its careless handling, frequent spills, and inadequate cleanup with the concomitant exposure of workers, plus the failure      !
to properly control the material and follow safeguard procedures, is an extremely serious matter of which the NRC would have to be advised.
 
s I
i (every day that passes without corrective action being taken to                                                                                                                        )
                                                                                                                                                                                                                \
undo the damage done to Mrs. English reinforces the adverse impact                                                                                                                      I l
on other workers who believe they should report safety concerns                                                                                                                        j to the NRC).                                    All these factors taken together warrant at least a 50% increase in the fine to be paid by GE.
In sum, Mrs. English requests that GE be fined a total of 540,635,000 plus $37,500 per day for every day af ter April 6, 1987, that GE does not take the corrective actions identified in the following paragraphs.
l III. Modification of License The imposition of the fine proposed above should substantially deter GE and other licensees from violating Section 210 in the future, but that deterrence will never overcome the fear engendered among the workforce by the treatment which Mrs. English has been forced to endure.                                        To the workers at GE the only relevant fact is that someone stood up to management and insisted on pursuing safety concerns with the NRC, many of which were confirmed by GE 's own internal report and by NRC inspector rey.rts, and that person is gone, with no career and no future.                                                                                                                  For the men and wcnen at GE with f amilies and responsibilities, for those who are alone and depend on their job to provide them the comforts                                                                                                                            !
cf life, for all the employees, Mrs. English suffered the ultimate a..c most severe punishment for her conduct.                                                                                                                  The impact of that on the remaining workforce cannot be overstated.                                                                                                                  Each of those workers must now consider that resisting management and insisting on pursuing a safety concern may not only result in a lost job t____          ._  _ -      ._ ._ _ - _ _ - _ _ - _ _ . _ _ _ _ _ _ _              _ _ _ _ - _ - _ _ _ _ - _ _ _ _ _ _ _ _ _ _ _ _ _ - _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _                    _ _ _ _ .
 
i
_9 but there'will not be any remedy to assure that worker that.by obeying the law and reporting safety concerns the worker Will not suffer economical]y -- their capacity to support themselves and their family will be restored and they will be fully compensated for the physical and emotional anguish caused by being escorted from the job site and barred from employment.
Had GE operated its plant without properly functioning and required safety equipment, NRC could and should have fined them.
Had GE still not corrected the problem, NRC would have to issue an order requiring that corrective steps be taken by a time certain and, failing that, the license would have to be suspended. The safety problem created by GE's action against Mrs. English is disabling a major safety system at the NMFC plant -- i.e., the system which assures that safety concerns are promptly reported to the NRC.              GE has refused to repair that system and thus the NRC must issue an order requiring that GE implement repairs at once or have its license suspended.
There is only one way to repair the damage done by GE's actions against Mrs. English.                  GE must be required to fully compensate Mrs. English for her economic losses in the past and for the future, for her medical expenses, for the expenses she incurred in fighting GE all these years, and must fully compensate her for the physical and mental pain she has endured as a result of their actions.
Without such compensation, she remains a symbol to the GE workforce of the severe consequences which they will suffer if they insist on reporting safety concerns to the NRC.                    By requiring GE to provide                    i i
such compensation, Mrs. English becomes a symbol to the GE workforce                                      '
that if they report safety concerns to the NRC they will not
 
suffer.
In addition, GE will realize that Section 210 violations, even if it is economically possible to justify the fine, will not produce the desired result of inhibiting the workforce from reporting to the NRC.
No amount of new programs to encourage workers to freely express their concerns to the NRC, no amount of management speeches, slogans and posters, and no amount of NRC assurances will convince the worker that she or he should risk virtually certain losstof livelihood to pursue safety concerns which GE does not want pursued.
The remedygroposed here, while admittedly unique, is certainly well within the power of the NRC.
The Enforcement Policy recognizes l
the need to assure that corrective actions are taken promptly.
The NRC has the authority to " establish by . . . order, such standards                            !
and instructions to govern the possession and use of special nuclear material .... as the Commission may deem necessary [or) desirable to  ...
protect health or to minimize danger to life or property."
42 U.S.C. 52201(b).
In 10 CFR 555.40(b), the NRC specifically declares that it possesses the authority to modify any license for " failure to observe any of the terms and conditions of the Act, or the license, or of any rule, regulation or order of the Commi s sion . . . . "        In 10 CFR 550.7 the Commission specifically f orbids violations of Section 210 of the Energy Reorganization Act.
Ohus the NRC has full authority to impose the relief requested here.
The existence of Section 210 does not bar the NRC from acting independently of the Department of Labor. The NRC cannot be barred from pursuing its important health and safety functions by the Department of Labor actions as this case well illustrates. Here
 
    .                                                                                              k 11 the Department of Labor found that Mrs. English had been discriminated againstcfor engaging in protected activity but ruled that her claim was time-barred.                That technical impediment, even if valid, cannot.and does not undermine the validity of the ALJ findings and the implication of those findings for the public health and safety.
Even if the Department of Labor had allowed'the. woefully inadequate compensation which Mrs. English. was awarded to stand, it would still be incumbent on the NRC to evaluate the remedy to assure itself that the compensation paid was sufficient to fully correct the problem created by the illegal firing.                      Finally,- l
        . Congress itself always intended that-the NRC would retain its                          !
full authority to act in addition to the processing of Section 210 violations by the Department of Labor.                      In floor debate'in 1
the Senate., Senator Hart sponsored and spoke for an amendment which was adopted to strengthen the employee protection provisions.
Senator Hart stated (124 Congressional Record 29771 (December 18, 1979):
[Section 210] is not intended to in any                I way abridge the commission's current authority to investigate an alleged discrimination and take appropriate action against a licensee-employer, such as a civil penalty, license                  l suspension or license revocation.
Thus NRC has authority to act even before the Department of Labor provides some compensation. In this case, the NRC clearly has a duty to act since the Department of Labor has acted                      and has not provided any remedy to Mrs. English.                                              I w--_      _ _ - - - _ - - _ _ _ - - -                                                              1
 
                                                                          -la-CONCLUSION The central and indisputable fact which underlies this Petition is that over three years ago Mrs. English was discriminated against and eventually fired by GE for reporting safety concerns to the f
NRC and GE has never been fined for its conduct and Mrs. English has never been compensated for the injuries inflicted upon her by GE. The unavoidable consequence of this situation is to leave the impression with GE and other licensees that such conduct is tacitly acceptable and to leave the impression with the nuclear industry workforce that reporting safety concerns to the NRC will                                                                                  f l
result in discrimination and retaliation which will never be redressed.                                                                            '
It is unacceptable for these conditions to continue.                                                        Prompt action-is required in the form of adoption of the enforcement proposals in this Petition.
Respectfully submitted, M
(Anthony Z ./ho 'sm(n/
                                                                                                                        / AL Suite 600/                                                [
1401 New'Yo k Ave., NW Washington, D.C.                                            20005 (202) 628-3500 1
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Mozart G. Ratner 5225 Wisconsin Avenue, NW Suite 600 Washington, D.C.                                            20015 Counsel for Petitioner Dated:  '
                                        -f . Q 1997 i
E____________________---______----------_------_------_-------------------------------------------  - - - - - - - - - - - - - - - - -        - - - - - - - - -- - -- ------------
 
VERA M. ENGLISH Costs and Damages Incurred As a Result of Discriminatory Discharge
* t Past and future pay, including benefits                                            S 328,645.00 Mrs. English's out of pocket costs and expenses                                      24,026.62 Psychological Service Fees (only through December 10, 1985, and not including additional amounts incurred since then, to be supplemented later)                                        2,955.00
                                                                                          $355,626.62 1
l ATTACHMENT A                  i 1
 
1
                                                                                                        ;l LAW OFFICES                                    j MOZART G. RATNER, P c.                                    i 4400 J E NIF ER STR E ET, N W SulTE 350 MOZART G. RATNER              WAS HINGTON, D. C. 2 0015            AREA CODE 202 362 4060 April 8, 1987 I
Mr. James M. Taylor Director of Inspection and Enforcement United States Nuclear Regulatory Commission Washington, D.C. 20555
 
==Dear Mr. Taylor:==
 
We discovered an omission in Attachment A to the Petition for Enforcement Action filed with you on April 6, 1987. Would you please replace Attachment A with the enclosed.
Thank you for your assistance.
Sincerely,                    -
                                                                            /  h --
y        Anthony).itosman Encl.
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VERA M. ENGLISH Costs and Jamages Incurred As a Result of Discriminatory Discharge Pain and suffering, both physical and mental                      $2,000,000.00 Past and future pay, including benefits                                      328,645.00 Mrs. English's out of pocket costs and expenses                            24,026.62 Psychological Service Fees (only through December 10, 1985, and not including additional amounts incurred since then, to be supplemented later)                            2,955.00
                                                                                        $2,355,626.62 G
 
i.
Docket No. 70-1113 Mozart G. Ratner 5225 Wisconsin Ave, NW Suite 600 Washington, D.C.        20015
 
==Dear Mr. Ratner:==
 
This ' letter is to acknowledge receipt of your Petition dated April 6, 1987, as corrected April 8,1987, in which you request that the Director,
          . Office of Inspection and Enforcement, take action with regard to the General
          -Electric Company (GE) for its alleged illegal discrimination against Ms. Vera English. Your Petition requests that the NRC impose upon GE the maximum fine permitted by statute for its willful discrimination against Ms. English and that it impose a license condition upon OE requiring GE to fully compensate Ms. English for her losses incurred as a result of her alleged illegal -
discharge. You assert as grounds for your request that the reason given to justify deferral of action on- this issue in an earlier Director's Decision. (DD 86-11), i.e. , awaiting action by the _ Secretary of Labor, is no longer valid; that a Department of Labor Administrative Law Judge found that GE had discriminated against Ms. English but GE has not paid any fine for its conduct, nor has Ms. English been compensated for the wrong done her; and that the effectiveness of the NRC's program to protect and encourage workers
  ,      to report safety violations is severely hampered by any further delay in            i l
ta. king action.      Your Petition has been referred to the staff for action        !
pursuant to 10 C.F.R. I 2.206 of the Commission's regulations.          As provided l
              '7 OI4                jff-0
 
by sections 2.206, action will be taken on your request within a reasonable time . I have enclosed for your information a copy of the notice that is being filed with the Office of the Federal Register for publication.
Sincerely, Hugh L. Thompson, Jr. , Director Office of Nuclear Material Safety and Safeguards
 
==Enclosure:==
As stated cc:    General Electric Company
 
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l Docket No. . 70-1113 Anthony Z. Roisman                                                              j 1401 New York Ave, NW Suite 600 Washington, D.C. 20005
 
==Dear Mr. Roisman:==
 
1 This letter is to acknowledge receipt of your Petition dated April 6, 1987, as corrected April 8,    1987, in which you request that the Director, Office of Inspection and Enforcement, take action with regard to the General Electric Company (GE) for its alleged illegal discrimination against Ms. Vera English. Your Petition requests that the NRC impose upon GE the maximum fine permitted by statute for its willful discrimination against Ms. English and that it impose a license condition upon GE requiring GE to fully compensate Ms. English for her losses incurred as a result of 'her alleged illegal discharge. You assert as grounds for your request that the reason given to justify deferral of action on this issue in an earlier Director's Decision' (DD 86-11) 1.e.,    awaiting action by the Secretary of Labor, is no longer valid; that a Department of Labor Administrative Law Judge found that GE had discriminated against Ms. English but GE has not paid any fine for its conduct, nor has Ms. English been compensated for the wrong done her; and that the effectiveness of the NRC's program to protect and encourage workers to report safety violations is severely hampered. by any further delay in taking action.      Your Petition has been referred to the staff for action pursuant to 10 C.F.R. I 2.206 of the Commission's regulations.      As provided by sections 2.206, action will be taken on your request within a reasonable
 
6 time. I has e enclosed for your information a copy'of the notice that is being fUed with the Office of the Federal Register for publication.
Sincerely, Hugh L. Thompson, Jr. , Director Office of Nuclear Material Safety and Safeguards Enclosure :        As stated ec: General Electric Company i.
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[7590-01]
U.S. NUCLEAR REGULATORY COMMISSION Docket No. 70-1113 GENERAL ELECTRIC COMPANY (Wilmington, North Carolina, facility)
(License No.  )
RECEIPT OF PETITION FOR DIRECTOR'S DECISION UNDER 10 C.F.E. I 2.206 Notice is hereby given that by Petition dated April 6,                                                              1987, as corrected April 8,1987, Anthony Z. Roisman and Mozart G. Ratner requested that the Director, Office of inspection and Enforcement, take action with regard to the General Electric Company                                  (GE)      for its alleged illegal discrimination against Ms. Vera English.                          The Petition requests that the NRC impose upon GE the maximum fine permitted by statute for its willful discrimination against Ms. English, and that it impose a license condition upon GE requiring GE to fully compensate Ms. English for her lossee incurred as a result of her alleged illegal discharge.                        The Petition asserts as bases for this request that the reason given to justify deferral of action on this issue in an earlier Director's Decision (DD 86-11), i.e. , awaiting action by the Secretary of Labor, is no longer valid; that a Department of Labor Administrative Law Judge found that GE has not paid any fine for its conduct, nor has Ms.
English been compensated for the wrong done her; and that the effectiveness of the NRC's program to protect and encourage workers to report safety i
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violations is severely hampered by any further delay in taking action.                                                                  The request is being treated pursuant to 10 C.F.R. I 2.206 of the Commission's regulations.                  As provided by section 2.206, appropriate action will be taken on this request within a reasonable time.
A copy of the Petition is available for inspection in the Commission's Public Document Room, 1717 H Street, N.W. , Washington,                                                                        D.C., 20555.
Dated at Bethesda, Maryland, this                                                                        day of    , 1987.
FOR THE NUCLEAR REGULATORY COMMISSION Hugh L.' Thompson, Jr. , Director Office of Nuclear Material Safety and Safeguards
 
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      .-                                                                          DD M-c / -
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                                                                                  'u'- I L' GENGRAL.,          ELECTRIC.                                  -
NUCLEAR FUEL & COMPONENTS MANUFACTURING      O[ ~
GENERAL ELECTRIC COMPANY
* P.O. BOX 780
* WILMINGTON. NORTH CAROUNA 28402 2*2d 5'jd 2. 3Fe June 10, 1987 4
James Lieberman, Esquire Director Office of Enforcement Maryland National Bank Building 7735 Old Georgetown Road Room 8203 Bethesda, Maryland    20555
 
==Dear Mr. Lieberman:==
 
I am enclosing herewith General Electric Company's - Response to Vera English's " Petition for Enforcement Action" dated April 6,                1987.
Copies of GE's Response have been provided to the persons noted on the attached service list.
Sincerely, GENERAL ELECTRI        CO  ANY Aa& 51-                auyul ~
Charles M. Vaugh n, Manager Regulatory Comp iance
          /sbm Enclosure
 
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SERVICE LIST                                              i i
Hugh L. Thompson, Jr.                                                              ,
l Director Office of Nuclear Material Safety and Safeguards                                                          l U.S. Nuclear Regulatory Commission Mail Stop SS-958 Washington, D.C. 20555 J. Nelson Grace Regional-Administrator Region II 0.S. Nuclear Regulatory Commission 101 Marietta Street Suite 3100 Atlanta, GA  30303 Richard J. Goddard
          . Regional Counsel Region II U.S. Nuclear Regulatory Commission 101 Marietta Street Suite 3100 Atlanta, GA  30303 Mozart G. Ratner Suite 600 5225 Wisconsin Ave., N.W.
Washington, D.C. 20015 Anthony Z. Reisman Suite 600 1401 New York Ave.,  N.W.
Washington, D.C. 20005 l
i I
_ _ _ _ _ _ _ ________ _ __ _-_ - __ _ _ a
 
., .'                                                                        )
4 RESPONSE OF GENERAL ELECTRIC COMPANY                      l TO VERA ENGLISH'S SECTION 2.206 PETITION FOR ENFORCEMENT ACTION INTRODUCTION On April 6, 1987, Petitioner, Vera M. English,' renewed her earlier request under 10 CFR S 2.206 that the Nuclear Regulatory Commission ("NRC" or " Con: mission") initiate action against General Electric Company ("GE'') for allegedly discharging her in violation of Section 210 of the. Energy Reorganization Act of 1974, as amended (" ERA"), 42 U.S.C. S 5851 (1982). Petitioner urges the NRC to impose penalties against GE based on the non-binding, non-final decision of a Department of Labor (" DOL")
Administrative Law Judge ("ALJ") which recommended that the Secretary of Labor find that GE's removal and layoff of Petitioner violated Section 210 of the ERA.
At the outset GE denies that it discriminated in any way in its treatment of Petitioner. In addition, as will be shown i
below, the recommendations of the ALJ were not adopted by the Secretary of Labor and have no legal significance.      Moreover, the record developed before the Department of Labor conclusively establishes that the Petitioner, by her own adm'esion, deliber-ately and willfully violated a safety requirement imposed under the Atomic Energy Act, thus precluding any action on her Petition as a matter of law. Accordingly, her Petition should be summarily denied.
 
p,  .
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Alternatively, if the NRC decides not to deny Petitioner's request at this time, GE respectfully submits that consideration of Petitioner's pending 2.206 Petition should be deferred until the related DOL proceedings are completed.                                    In this regard, it is GE's understanding that for policy reasons and in accordance with the terms of the DOL-NRC Memorandum of Understanding, the NRC normally defers acting on alleged 210 violations pending the final outcome of related Department of Labor administrative proceedings including any appellate review.
This is clearly a case for such deferral unless the Petition is immediately dismissed as a matter of law.
Finally, GE submits that the NRC should reject Petitioner's suggested relief out of hand. According to Petitioner, a civil penalty 'n excess of $40,000,000 should be assessed against GE based primarily on Petitioner's claim that GE is guilty of a " continuing violation" of Section 210.                                    Not only is Petitioner's claim contrary to law, but it is also directly i
contrary to the final decision of the Under Secretary of Labor that GE's treatment of Petitioner, whether discriminatory or not, represented a single act which was not continuing in nature.
Petitioner also requests that the NRC, under the guise of a license condition, usurp the role of the Department of Labor and
  . provide Petitioner compensation in an amount in excess of                                              q J
S2,000,000. As will be shown below, Petitioner's request is                                          i beyond the authority of the NRC and should be rejected.
I 1
 
  -r    4
                                                      --3_
BACKGROUND Petitioner's request that the NRC initiate enforcement action against GE centers around her claim that she.was unlawfully-removed from her job in the Chemet Laboratory at GE's Wilmington,        l North Carolina fuel manufacturing facility and subsequently laid        l off because she complained to the NRC about GE's alleged failure to comply with safety standards. Never mentioned by Petitioner, however, is'the fact th'at she has repeatedly admitted that she          ;
1 deliberately and willfully violated GE safety standards, thus endangering not only her own health and safety but the health and safety of other GE employees.      Set forth below is a brief state-i ment of the circumstances surrounding Petitioner's removal from the Chemet Laboratory.
A. Factual Backaround By Petitioner English's own account, the following events occurred during the period March 9-11, 1984. On Friday night, March 9,1984, while employed as a techniciar. by GE, English found radioactive contamination on a table in the labora-tory. Although English knew that no supervisor would be present until Sunday night (Tr. 1497), 1/ and although she also knew that leaving the contamination would result in violation of safety 1/    "Tr.        " cites to transcript pages before the Labor Department's ALJ.    "Exh.      " cites to exhibits submitted at that ALJ hearing. "ALJ Decision          " cites to pages of the ALJ Decision and " SOL Decision        " cites to pages of the Final Decision and Order of the Under Secretary of Labor.
 
I,  .
i                                            requirements (ALJ Decision, p. 11; Exh. C-47',    2/          Snglish purposely and deliberately left the radioactive contamination in place allegedly in an attempt to prove that GE management and her co-workers were lax about safety matters (ALJ Decision, pp.                                                        4, 5, 11; Exh. E-12 (English Dep.) 43-49; Tr. 1497, 2397, 2450-2452).
As a consequence, English, by her own admission, engaged in a violation of known laboratory procedures endangering her own health and safety as well as the health and safety of her fellow employees (Exh. E-12 (English Dep.) 48; Tr. 2397), and she did so deliberately. 3/  On Sunday night, March 11, she eninted out to her supervisor the radioactive contamination she had left in place since Friday night (Tr. 1497-1500, 2280; Exh. E-12 (English Dep.)
69-72) and advised him that she did not intend to clean it up (Tr.
1499, 2280-2281; Exh. E-12 (English Dep.) 72).
      /  During an inspection conducted between November 13 and 16 and December 3 and 7, 1984, NRC cited GE for a similar violation in which uranium contamination had evidently not been cleaned up immediately. NRC Inspection Report 84-15. According to the NRC Report, "[t]he fact that contamination within the room was visible, indicated that the licensee had failed to follow approved procedures" which require, among other things, that (1) spills be cleaned up immediately, and (2) equipment be wiped clean of visible contamination.                                                        See letter from J. Phillip Stohr to Eugene Lees (February 8, 1985).
3/  There is  no question in this case that English deliberately left the  radioactive contamination without any attempt to clean it  up as required by safety regulations.                              She plainly admitted  it:  "I deliberately  left it there  because                                                    this was the only way I could get management to see what was going on." Exh. E-12 (English Dep.) 46.
1
 
  ;U  i Company officials were justifiably upset with English's admitted deliberate violation of safety' standards.    (Exh. C-18, p.
2;1Tr. 1683, 1821-1823). Accordingly, they met with her on March 16, 1984 to discuss the matter. During that meeting English again admitted that she deliberately left a contaminated spill in the
          . laboratory (Tr.:831(b)-834, 1937, 1978). As a result, she was advised that she was being removed from the Chemet Lab and would no longer be permitted to work in a controlled area of the facil-ity (Tr. 1926-1927). She was also given a Disciplinary Action Notice (Exh. C-5) which included the following:
It has been brought to my attention that your recent conduct has been in serious viola-tion of WMD radiological health and industrial safety rules and conduct standards. Your actions have included:    (1) the unauthorized removal of the personal survey instrument from the entrance to the laboratory, (2) the deli-berate contamination of a table, (3) failure to clean-up the contamination knowing it existed, (4) the continued distraction of other labora-tory employees and (5) disruption of normal laboratory activities . . . .
                          . . . The deliberate contamination and failure to clean up promptly is detrimental to the safety of you and your fellow workers in the laboratory. In addition, this~ sort of conduct is a serious violation of plant rules and standards; disciplinary action is in order.
Violation of work and conduct standards such as that which you have committed as described herein is considered to be a serious offense of a magnitude that a mere warning is not sufficient. Willful, deliberate disregard of specific standards set in the interest of l                    both employee and employer and of which the f                    employer has the right to expect compliance from the employee will not be tolerated.
Disciplinary action for this offense will be five days of disciplinary time off without pay and a period of 12 months probation, during i
 
q which time any additional violation serious j
                                                                              ~1 enough to warrant disciplinary action will 1 result in discharge .  ...                                .!
In light of_these recent incidents, you are being removed from your current assignment.
Your unprecedented disregard of safety rules
            .      . demands that you will no longer be allowed to work in a controlled area. Effective 03/16/84, you will be temporarily assigned to other work.
During this temporary assignment, you will continue to be paid at your current hourly rate            j (H-22) and will normally work on Day Shift,                i Monday'through Friday. The duration of this temporary assignment is indefinite.
Pursuant to established GE procedurec, English appealed    !
that action on April 13, 1984 (Exh. C-15,_C-21).      English's appeal was heard by the General Manager of the Wilmington facility on May 1, 1984. In a written, final decision rendered on May 15, 1984    _
(Exh. C-20), the General Manager declined to consider three of the alleged actions on the part of English which had led to her removal from the Chemet Lab and all controlled areas. 4/      Instead, 4/    Allegations 4 and 5, dealing with her distraction of other lab employees and her disruption of lab activities, were not deemed pertinent to safety, which was management's primary concern (Tr. 693-694; Exh. C-20). Allegation 1 was dropped because English established that she may have been granted permission to use the survey instrument (ALJ Decision, p. 6; I
Tr. 6799; Exh. C-20).
In addition, the General Manager declined to base his deci-      4 sion on English's alleged deliberate contamination of the lab table. English's original statement to her supertrisor that she had " smeared" contamination on the table gave GE offi-cials reason to believe that radioactive material had been deliberately deposited as well as deliberately left (Tr.
1011-1012, 1022-1023, 1076, 1546). However, English later denied this, so the General Manager based his decision only on English's admitted violation (Exh. C-20).
I
 
    , e                                                                                    l 1
l l
he based his decision on the proven and admitted safety violation
        -- English's deliberate failure to clean up spilled radioactive                      {
contamination.      The written decision on appeal stated (Exh. C-20):
As for Items (2) and (3), we have deter-mined that, while the contamination of your lab table may or may not have been deliberate, you knowingly and intentionally failed to clean up this spill of radioactive material.
Your knowledge of the contamination coupled with your decision not to clean it up consti-tutes a very serious and significant violation                            ,
i of the Wilmington plant's health and safety standards and procedures.
Based on the foregoing, you will not be allowed to return to work in the control]ed access areas of our plant site, or to any position that would require your involvement with, or access to, nuclear material. Your probation period will be reduced from one year to six months.
Your current placement in a temporary assignment will be continued for a period up to ninety (90) days from May 1, 1984 at the same pay rate as the job that you left in the laboratory . . . .      During this ninety (90) day period, Employee & Community Relations will review open positions for which you meet minimum requirements and offer you placement according to established practices and proced-ures.      Hopefully, by July 30, 1984, you will have found permanent, suitable work through the use of the job posting system and assis-tance from Employee & Community Relations
                  . . . . If you have not secured permanent placement by July 30, 1984, you will be considered as involuntarily placed on lack of suitable work as defined by our personnel practices.
English did not find another position, and worked her last day on July 27, 1984. She was laid off from the active payroll on July 30, 1984.      She was subsequently placed on leave of absence status with full employee benefits, including GE life and l
l i                                                        _  _    - - _ _ _ - _ _ _ _ _ -
 
j  . n medical insurance coverage, and is eligible at any time to claim a full GE pension, substantial continuing insurance and other bene-fits.
B. Procedural Backaround, On August 24, 1984, Petitioner filed a complaint with the Labor Department under Section 210(a) of the ERA and its implementing regulations alleging that she was unlawfully removed from her job in the Chemet Laboratory facility and subsequently laid off because she complained to the NRC about GE's failure to comply with safety standards. Formal hearings were held on Petitioner 's claim before Administ.rative Law Judge Robert J.
Brissenden. 5/  In a decision and order dated August 1, 1985, the ALJ recommended that the Secreta 7y of Labor find that Petitioner had been the subject of unlawful removal and layoff by GE and that the Secretary order that GE () ; reinstate Petitioner to her former position; (2) pay Petitione'. compensatory damages of $70,000 for mental suffering and for past and future medical expenses; and (3) pay Petitioner's lawyers $73,007.50 in attorneys' fees and expenses. 6/
5/    During the course of the hearing before the ALJ Petitioner's counsel inappropriately sought to subpoena Labor Department investigators through the Federal District Court in North Carolina and also commenced actions and appeals in the Federal District Court and Court of Appeals for the District of Columbia to mandamus the DOL to grant Petitioner a default  3 judgment. The actions and appeals were, of course, promptly dismissed by the courts. Heg, e.g., ALJ Decision, p. 15.
6/    English and her counsel had sought significantly greater amounts than those recommended by the ALJ. Before the          !
(footnote continued) l l
 
  ,                            i The Under Secretary of Labor, acting for the Office of the Secretary of Labor', did not adopt any of the ALJ's recommenda-tions.        Instead he found that GE's reassignment of English, if a violation at all, was not a continuing violation and he therefore dismissed English's Section 210 complaint on the ground that it was untimely.                                  The Under Secretary also seemed to question whether English's reassignment violated Section 210 (see note 9, infra),
but he did not reach a substantive determination on that question.
Petitioner has appealed the Labor Department's final decision to the United States Court of Appeals for the Fourth Circuit.
On December 13, 1984, counsel for Petitioner submitted to the NRC a " Motion to Institute Proceeding Pursuant to 10 C.F.R.
5 2.202 for Imposition of Civil Penalties and to Vacate and Reverse Inspection Reports and to Schedule Hearings Thereon."
This motion requested that the Commission review and withdraw five NRC inspection reports which allegedly failed to identify devia-tions from procedures and violations of NRC regulations in connec-tion with GE's operation of the Wilmington facility.                                                                                        Petitioner also requested that new inspection reports be issued correctly documenting the alleged violations and deviations, that notices of violation be issued, and that the NRC commence appropriate (footnote continued from previous page)
Secretary of Labor, English claimed that she was entitled to
                $295,909 in back pay and front pay, $2,630 in psychological medical expenses, $2,000,000 in damages to punish GE and compensate English for her alleged emotional pain and suffering, $82,254.81 in out-of-pocket expenses, and over
                $1,000,000 in attorneys' fees. Egg English's Briefs and Attachments to the Secretary of Labor in Case No. 85-ERA-2.
 
enforcement action against GE, including the imposition of civil penalties. Petitioner further requested that the NRC institute  )
proceedings pursuant to 10 C.F.R. S 2.202 and schedule hearings on the matters raised in her motion.
Petitioner supplemented her request for enforcement action by letters dated February 28, 1985, March 12, 1985, April 11, 1985, and June 20, 1985, which raised additional allega-tions concerning the adequacy of NRC's inspection activities, the conduct of NRC inspectors, the willfulness of GE's alleged viola-tions at the Wilmington facility and GE's alleged discrimination against Petitioner and others in violation of Section 210 of the ERA. A variety of relief was requested, including a request that the NRC investigate, or cooperate with the Labor Department in its investigation of, the alleged violations of Section 210 and that the NRC take independent action against GE.
On August 29, 1986, the Commission's Director of the Office of Inspection and Enforcement  (" Director") issued a
                                    " Partial Director's Decision Pursuant to 10 C.F.R. S 2.206" denying that part of Petitioner's request concerning the accuracy of NRC inspection reports and GE's alleged violations of NRC regulations at the Wilmington facility. Most of the allegations made by Petitioner were found to be without any factual substance 4
whatsoever and those that could be substantiated were found not to present any health or safety concerns. The Director also stated l
 
a          .
that the discrimination allegations raised by Petitioner were                                                                                                                                                i i
being deferred pending further determinations by the Secretary of                                                                                                                                            i i
Labor.
Thereafter, on September 23, 1986, Petitioner submitted a " Petition for Clarification and Reconsideration of Partial Directot's Decision."                                                            By letter dated September 29, 1986, the
                                      . Secretary of the Commission advised counsel for Petitioner that the' Commission had declined to review the Director's Decision and that the decision had become " final agency action" on September 23, 1986.                                                          (Letter from Samuel J. Chilk to Mozart G. Ratner, September 29, 1986).
On December. 22, 1986, Petitioner filed a petition for review of the Director's Decision in the U.S. Court of Appeals.for the District of Columbia Circuit.                                                            Enolish v. U.S. Nuclear Reculatory Comm'n, No. 86-1714 (D.C. Cir. filed December 22, 1986).                                                          In addition, Petitioner and her counsel filed five other actions in the D.C. Circuit, most of which ihvolved the review of NRC actions in response to numerous requests for documents
;                                        allegedly relied upon and considered in preparation of the Director's Decision.                                                            Egg Vera M. Enolish and Mozart G. Ratner v.
U.S. Nuclear Reculatory Comm'n, No. 87-1019 (D.C. Cir. filed Jan.
14, 1987); Efra M.                                                        Enolish and Mozart G. Ratner v. U.S. Nuclear Reculatory Comm'n, No. 86-1635 (D.C. Cir                                                                                filed Nov. 24, 1986); in re Vera M. Enolish, No. 86-1485 (D.C. Cir. filed Aug. 28, 1986);
Mozart G. Ratner and Arthur M. Schiller v. U.S. Nuclear Reculatory Comm'n and Victor Stello, Jr., No. 86-1307 (D.C. Cir. filed May
 
                                                                          ?
28, 1986); Mozart G. Ratner v. U.S. Nuclear Reaulatory Comm'n and Herzel H.E. Plaine, No. 86-1013 (D.C. Cir. filed Jan. 7, 1986).      i l
All six of the proceedings, including the appeal of the Director's Decision denying the request for enforcement action, were dismissed on March 31, 1987.
l On March 13, 1987, Petitioner' filed an action for wrongful termination in the U.S. District Cou'rt of for the Eastern District of North Carolina. The complaint requested that the Court (1) award Petitioner compensatory damages of $328,645 for lost wages and fringe benefits; (2) award Petitioner compensatory damages of at least $1,000,000 for medical expenses and pain and suffering; (3) award Petitioner punitive damages of approximately
      $2.3 billion (5% of GE's net worth); and (4) award Petitioner out-of pocket costs and expenses incurred in pursuing her various actions against GE. Enclish v. General Elec. Co., No. 87      Civ.-7 (E.D.N.C. filed March 13, 1987). GE's motion to dismiss is currently pending before the Court.
Finally, on April 6, 1987, Petitioner filed the instant Petition requesting the imposition of penalties and the award of compensation in an amount in excess of $42,000,000.
i
 
l l                                                                                          i                                                                                        &RQUMENT I. THE INSTANT PETITION SHOULD BE DISMISSED BY THE NRC Petitioner's request for enforcement action is based solely upon the recommended decision of the Labor Department's Administrative Law Judge.                                            Petitioner apparently believes that the ALJ decision represents a conclusive and final determination that GE violated Section 210 which is somehow binding on NRC and that all that remains to be done is for NRC to impose a civil penalty against GE. 7/
That is not the case.                Rather, there are at least three reasons why the instant Petition should be promptly dismissed.
First, as shown in Section A below, the ALJ's non-binding recom-mended decision, which was not adopted by the Under Secretary of Labor, has no legal significance and cannot form the basis for any decision to assess a penalty against GE.                                                          Second, as shown in Section B(1) below, the ALJ's decision is fatally flawed by a number of factual and legal findings and conclusions that are                                                                                                            l simply wrong.                                            Finally, as shown in Section B(2) below, the undisputed evidence before the Labor Department requires the conclusion, as a matter of law, that GE's removal of English was an act sanctioned by Congress in the interests of nuclear safety, that GE therefore did not violate Section 210 and, accordingly, that the instant Petition must be dismissed.
7/              Indeed, in her latest Section 2.206 Petition, Ms. English does not even address $32 issue of whether Section 210 has been violated but instead discusses at length her view of the appropriate penalty.
 
a .
L                                                                        A. The ALJ Decision Is Of No Lecal Significance Petitioner's basic position is that the issue of whether-l.
GE violated Section 210 of the Energy Reorganization Act'in removing Petitioner from the Chemet Lab has already been decided by the Department of Labor and thus the only issue before the NRC is-the amount of'the civil penalty that should be imposed on GE.
Contrary to Petitioner's position, the decision of the ALJ is merely a non-binding recommendation which has never been adopted by the Secretary of Labor.              Rather, the Under Secretary of Labor-rejected the ALJ's recommendation and denied Petitioner's complaint under Section 210.                                                                                        l Under the Administrative Procedure Act, 5 U.S.C. S 551 gt agg., the initial decision of an administrative law' judge has no binding effect on either the agency or on the parties to the proceeding. Egg 5 U.S.C. S 557(b) (1972). 8/                                Rather, the agency is always free to accept or reject an ALJ's findings and con-clusions of law. Egg Starrett v. Soecial Counsel, 792 F.2d 1246, 1252 (4th'Cir 1986); Alcoa Steamshio Co. v. Federal Maritime i
        .Comm'n, 321 F.2d 756, 758 n. 5 (D.C. Cir. 1963).                                Unless the ALJ's                    1 i
findings are adopted by the agency in its final decision they can have no collateral estoppel or res judicata effect.                                                Egg Anthan v.
Professional Air Traffic Controllers, 672 F.2d 706 (8th Cir. 1982)                                                  3 1
t 1
8/  "On appeal from or review of the initial decision, the agency has all the powers which it would have in making the initial decision except as it may limit the issues on notice or by rule."  5 U.S.C. S 557(b) (1982).
1
 
l (collateral estoppel or res judicata apply only to final agency                                                                                  .
I decisions); International Harvester Co. v. OSHRC, 628 F.2d 982                                                                                    l (7th Cir. 1980).
This same principle applies in proceedings brought under                                                                i Section 210 of the Energy Reorganization Act, 42 U.S.C. S 5851                                                                                    3 l
(1982).                Under that Act, only the Secretary of Labor has the                                                                      j authority to issue an order finding a violation of Section 210 on l
a complaint lodged with the Department of Labor under the ERA.                                                                                By i regulation, an administrative law judge is assigned the responsi-i bility of presiding over a hearing to develop a record upon which                                                                                  l the Secretary of Labor may rely and to provide the Secretary with a " recommended" decision.                                                      29 C.F.R. S 24.6 (1986).                    It is the          e sole responsibility of the Secretary, however, to " issue a final order."                Id. S 24.6(b) (1986).
In this case, there has been no " final order" of the Secretary of Labor that GE violated Section 210.                                                                          As noted earlier, the Under Secretary dismissed Petitioner's complaint as untimely and did not adopt the ALJ's factual findings or conclu-sions of law. 9/                                                        Thus, unless adopted by DOL as its final deci-                            ,
sion, the recommended decision of the administrative law judge is not binding on the parties and has no legal significance to DOL, to the parties to the proceeding before DOL, or to any other                                                                                      l agency.
i
                                                                                            -9/    The Under Secretary did signal that he questioned whether GE had violated Section 210 when, in dismissing Petitioner's complaint, he stated that "[t)he only violation, 11 any,                                                                                    i occurred when (Petitioner) was put on temporary assignment on                                                                            (  '
May 15, 1984 . . . .                                                      SOL Decision p. 8.
 
B. The Labor Department's Evidentiary Record                                                                    i Recuires Dismissal of the Petition                                                                          '
As pointed out in the Factual Background, GE rem'oved Petitioner English from the Chemet Lab because she made a cons-
                                                                                                                                                  ~
clous, deliberate decision to commit a nuclear safety violation by leaving a radioactive spill in the laboratory.                    Although the                                      i i '
ALJ recognized that English deliberately violated important safety standards (ALJ Decision, pp. 10, 11, 13), he cited two alternative and equally insupportable rationales for his conclu-sion that her removal nevertheless violated Section 210.                                  First, the ALJ found that GE's stated reason for removing English was but a pretext, and that the real reason GE removed her was because she had complained to the NRC about alleged safety violations on February 13, 1984 (ALJ Decision, pp. 1-2,                      3,                  6, 7, 10, 13). Second, the ALJ apparently concluded that even if GE did remove English because of her deliberate violation of safety rules, the Company nevertheless violated Section 210 because her deliberate action was simply her " unorthodox" means of
                            " reporting" safety violations and such " reporting" was protected by Section 210 (ALJ Decision, p. 11).
As shown below, neither of the ALJ's alternative rationales withstands analysis. More importantly, however, the undisputed record establishes that GE's actions in removing a deliberate safety violator were consistent with Congress' notion of the way in which a nuclear employer should act, that those actions cannot violate Section 210 and, accordingly, that the NRC should, as a matter of law, dismiss the instant Petition.
: 1.        The ALJ's " Pretext" Conclusion Is Based Upon Critical Srrors of Fact And A Faulty Lecal Conclusion The ALJ relied upon two findings for his conclusion that GE's stated reason for removing English from the Chemet Lab was pretextual and that the "real" reason was English's safety complaints to NRC.      First, he found that-the investigation of English's NRC complaints caused a cessation of work in the Chemet Lab and was an embarrassment to GE which culminated in English's removal from the lab.      ALJ Decision, pp. 6-7. Second, he concluded that English's deliberate safety violations could not have prompted GE's actions because there was no evidence before him that GE had ever removed other lab employees who neglected to follow safety rules.      ALJ Decision, pp. 6, 9-10.
Initially, the ALJ was simply wrong on the facts when he        I found that English's removal from the Chemet Lab was prompted by GE's annoyance and embarrassment at the supposed wholesale disruption in the Chemet Lab caused by the investigation of English's February 1984 NRC complaints. 1S/        In fact, GE did not know that English had submitted those safety complaints to NRC 10/  The ALJ also noted that English had made similar safety complaints to NRC in 1982. See ALJ Decision, p. 3. However,      4 GE did not know that English had reported any alleged safety    i violations to the NRC in 1982 until at least the fall of 1984    l l,
                -- well af ter Er.glish was removed f rom the Chemet Lab. Tr.
2049-2052. Indeed, the NRC itself is well aware that it          ;
never advised GE that its earlier investigations of GE's facility were based upon a 1982 English complaint.
Furthermore, because NRC's inspections occur regularly, there was no reason for GE to know or even suspect that any inves-
!                tigation was based upon any employee's complaint, let alone English's.
 
l                                          until GE officials were advised sometime after the week of March 26, 1984, that NRC was aware of the complaints English had submitted to GE and that GE, in turn, had previously disclosed to NRC. 11/  But that was a number of weeks after English had been removed from the Chemet Lab on March 16, 1984 and thus could not possibly have prompted her removal. Moreover, the NRC's investi-gation of English's safety complaints did not cause a disruption or cessation of work in the Chemet Lab, as the ALJ found.
Indeed, that investigation did not even commence until March 26, 1984, or 10 days after English had been removed from the Chemet Lab. In sum, GE could not possibly have been motivated to remove English from the Chemet Lab because it was upset with the work disruption caused by the NRC's investigation of her safety complaints, because GE took those actions at a time when the Company did not know she had complained to the NRC and there had been no NRC investigation at all.
The ALJ made an even more critical error, however, when he concluded that English's deliberate safety violations were not the "real" reason for GE's actions because there was no evidence in the record showing that other GE employees who had failed to 11/  English had submitted a list of alleged safety problems to GE management in late February 1984. After that list came to the attention of the Manager of Regulatory Compliance in        i March 1984, he notified NRC that GE had received allegations of safety violations from an employee. When the NRC inspected the Wilmington facility the following Monday, March 26, GE officials gave NRC inspectors a copy of English's safety allegations. Sometime after March 26, 1984, GE learned that English had made safety complaints to NRC.
Egg Tr. 2037-2038, Exh. ALJ-6.
i i
I
 
_ 19 _
follow safety rules were similarly removed from their jobs (ALJ Decision, pp. 6, 9-10).      Specifically, the ALJ indicated that GE's stated reasons for removing English from controlled areas could be given.no credence because the Company had imposed less stringent punishment on employees who unthinkingly failed to
                    " frisk" before leaving the Chemet Lab and on other employees who apparently failed to clean up visible contamination (ALJ Decision, pp. 9-10).12/      Thus, according to the ALJ, this dispar-ate, more severe " punishment" meted out to English must have been motivated by GE's concern about English's complaints to the NRC and the disruption caused by NRC's investigation of those complaints. Id.
There are at least two reasons why the ALJ was wrong in concluding that GE's stated reasons for removing English were pretextual because English was disparately punished.      First, the ALJ erroneously viewed Enq;ish's removal from nuclear-sensitive areas as a disciplinary measure.      It was not. English's disci-oline for leaving the contaminated spil3 was six months' proba-tion and a five-day suspension, the latter of which was the same discipline imposed on other employees who failed to " frisk" with personal survey devices as the ALJ recognized.      Egg ALJ Decision,
  .                12/  It was especially inappropriate for the ALJ to find that GE's            i safety concerns regarding English's violation were belied by the Company's response to employees' failure to frisk before leaving the Chemet Lab. During the hearing before the ALJ, GE tried to adduce testimony regarding steps the Company had taken to deal with this problem, but the ALJ ruled such evidence irrelevant and refused to permit the testimony. Egg Tr. 2094-2098
: p. 10 n.6. In English's case, the suspension was forgiven.                                                                          Her removal from nuclear-sensitive areas, without loss of pay or l
benefits, was deemed a necessary safety precaution prompted by management's fear that English might go to even more dangerous lengths in the future to support her safety complaints.                                              Egg, e.a., Tr. 1683, where English's supervisor testified that his primary concern was that an employee who would deliberately leave contamination for an extended period to " test" GE's safety procedures would likely take even more drastic measures in the future if those did not work; Tr. 1798-1799, where the manager of the Chemet Lab testified that English's action in deliberately leaving radioactive contamination in order to discredit GE's safety procedures caused him to question where English would stop and whether "the next step [might be] taking uranium out of the operation deliberately to discredit the ongoing operation." 13/
i 13/    Management had good reason to question whether English could always be counted on to think and act rationally. For exam-ple, the record reflects that shortly before March 1984,                                                                                  I several Chemet Lab employees had complained to GE management                                                                            I because English was c'.:nstantly accusing them of trying to                                                                                )
turn others in the Chemet Lab against her and of sabotaging                                                                                i her equipment and work projects in order to lower her produc-                                                                              )
tion and make it appear that she was making mistakes (Exh.
C-19; Tr. 927-928). In additien, English had previously told GE personnel that she thought Prv supervisor was responsible
    ,                                                          for a 1980 burglary at her house (Tr. 627, 222). She also had asserted that if anyone at GE knew when she made appoint-ments, they would try to intercept her (Tr. 1544). Finally, she had stated that she believed that Company offices were bugged and that her conversations in management offices were being recorded (Tr. 220.0, 2343).            No evidence was adduced to substantiate any of these " beliefs," of course, because there                                                                            ]
was none.
l
 
Second, even if English's removal from the Chemet Lab had been strictly a disciplinary measure, there is no reason in law, fact or logic to equate English's actions with those of other employees who were not so " disciplined."    GE did not take its action removing English from the Chemet Lab simply because she (like other employees) may have carelessly or even negli-gently committed a safety violation.      GE took its action because English made an admitted, conscious, intentional and deliberate decision to allow a safety hazard to exist allegedly in order to prove that GE was lax on safety matters.      There is a world of difference between English's deliberate actions and those of an employee who absent-mindedly runhes from the lab without frisking or who is guilty of untidy housekeeping.      The latter actions may assuredly be worthy of punishment in order to impress upon the violators the need to take more care in following safety rules.
However, similar punishment of deliberate, conscious violators such as English is not likely to change their behavior since such violators are acting with full knowledge that they are creating safety hazards but feel they are justified in doing so in a misguided attempt to establish that their employers permit such safety hazards to exist.
In short, a vigilante employee who consciously creates safety hazards to prove that her employer is not sufficiently safety conscious, even if motivated by the best of intentions, evidences an attitude which poses a far more significant threat to nuclear safety, and is manifestly more culpable, than an
 
unknowing, negligent violator. Liverett v. Tennessee Vallev Authority, 82-ERA-1, slip op. of ALJ at p. 9 (Secretary's Decision, July 21, 1982) (no disparate treatment is established when a S 210 complainant is fired because of "knowina" safety violations while other employees who "unknowinalv" committed similar violations were not discharged (emphasis in original)).
Accordingly, the ALJ simply erred when he concluded that the Company's reasons for removing English were a pretext because other safety violators had not been similarly removed.
More importantly, however, from a nuclear safety perspective, the only acceptable way of dealing with such vigil-antism is to remove the individual, as GE did here, from areas where such reckless acts may be repeated or even more dangerous ones committed. Indeed, that conclusion is confirmed by Congress' judgment, expressed in Section 210(g), that employers must be free to deal with such deliberate violators without fear of incurring liability under Section 210. As shown below, the proper construction of Section 210(g) requires prompt dismissal of the instant Petition, and demonstrates that the ALJ misinter-preted and misapplied that provision when he concluded that English's deliberate violation of safety requirements somehow constituted a protected means of " reporting" safety violations.
l l
i
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u                                                                                                  l
 
23 -
l I
: 2. Section 210(g) Requires that English's Petition be                                                  1 '
Dismissed by the NRC and Compels the Conclusion that English's Deliberate and Purposeful Violation of Nuclear                                              .
Safety Rules Was Not a Permissible or " Protected" Means of                                          !
Reportino Safety Violations As pointed out in the preceding section, logic and common sense dictate that a distinction must be drawn between careless or negligent violators of safety rules and vigilante employees who consciously and deliberately create safety hazards to support their own contention that their employers are lax in applying safety rules. However, the NRC need not rely only on common sense, for Congress itself expressly dictated this dis-tinction when it enacted Section 210(g) of the Energy Reorganization Act. That statutory provision explicitly singles out deliberate violators by removing all Section 210 projections for employees who deliberately violate safety rules that are required by federal nuclear statutes:
Subsection (a) of this section shall not apply with respect to any employee who, acting without direction from his or her employer (or the employer's agent), deliber-ately causes a violation of any requirement of this Chaoter or of the Atomic Enercy Act of 1954, as amended....    [ Emphasis added.)
42 U.S.C. S 5851(g) (1982). 14/
14/  See also the Department of Labor's implementing regulations, which provide:
This part shall have no application to any employee alleging activity prohibited by this part who, acting without direc-                                                  ,
tion from his or her employer (or the                                                  '
I employer's agent), deliberately causes a violation of any requirement of a Federal                                              i l
statute listed in S 24.1, above.
(footnote continued)                                  ,
 
Importantly, however, Section 210(g) has greater impact on the present Petition than merely confirming the foregoing distinction. In fact, it requires, as a matter of law, that the NRC dismiss the Petition because English, by her own admission, caused deliberate violations within the meaning of 210(g),
l because the language and policy behind that provision show that                                      l GE responded properly, and because the ALJ's contorted construc-tion of 210(g) would turn the rules governing nuclear safety on their head.
Initially, English's actions plainly fall within Section 210(g) and, as a consequence, GE had the right, if not the obligation, to remove her from the lab without fear of being challenged with a violation of Section 210.                Specifically, she purposely and intentionally left a radioactive spill in the laboratory during the week of March 5, 1984.                          That she did so deliberately in indisputable -- she freely admitted doing so, allegedly in a misguided attempt to prove that GE was violating (footnote continued from previous page) 29 C.F.R. S 24.9 (1986).
The NRC's regulations contain a similar provision:
This section has no application to an employee alleging discrimination prohib-ited by this section who, acting without direction from his or her employer (or the employer's agent), deliberately causes a violation of any requirement of the Energy Reorganization Act of 1974, as amended, or the Atomic Energy Act of 1954, as amended.
10 C.F.R. S 70.7(a)(3) (1987).
I              _
 
the safety requirements of the law (ALJ Decision, p. 11).                                                                                                                                                              She thus established that she not only deliberately committed an act which violated the Atomic Energy Act, 15/ but also that she did so knowing she was violating the Act (ALJ Decision, p. 8).
In light of Petitioner's admitted and deliberate i
violation of a safety standard required by GE's NRC license, the NRC is presented with a clear legal issue:                                                                                                                                                Whether an employee who, by a deliberate act, causes a violation of a license condi-tion which could endanger the health and safety of herself and her fellow workers may nonetheless claim the protection of 15/                                                      The standards, regulations and requirements adopted by the NRC pursuant to its powers under the Atomic Energy Act are essential to the protection of the public health and safety in connection with the development and use of nuclear energy.
A crucial element of these regulations is that all NRC licen-sees are required to comply with the conditions of their licenses in order to ensure that each facility licensed by the NRC will be operated in accordance with the requirements of the Atomic Energy Act. Egg, e.o., 10 C.F.R. SS 70.31, 70.32(a), (b) (1987). License Condition 9 of GE's fuel manufacturing facility license requires that licensed special nuclear material be used in accordance with statements, representations and conditions of Part I of the NFMD license application.                                                                                  Part I, Section 2.2.1.1 of the license appli-cation requires that the Area Manager establish and approve written operating procedures incorporating radiation safety controls. These procedures, which are contained in the Chemet Laboratory Nuclear Safety Release Requirement 6.1.0, require, among other things, the immediate clean-up of                                                                                                                              )
I radioactive material spills.                                                                                      Approval of a radiation protection procedure was a necessary element in the NRC's decision to grant GE a license to operate the Wilmington facility.                                                      Egg 10 C.F.R. 55 70.22(a)(8), 70.23(a)(4) (1987).
Consequently, violation of the procedures amounts to a violation of a license condition and thus a violation of a
                                                                                " requirement of the Act" within the meaning of Section 210(g) of the ERA. Cf.                                                                                    NRC v. Radiation Tec., Inc., 519 F. Supp.
1266, 1292 (D.N.J. 1981) (a license condition operates in the same manner as a regulation and should be so construed).
Indeed, as explained in note 2, suora, GE has previously been cited by NRC for a violation of the clean-up procedure.
 
l                                                                                                                                                ;
I Section 210 of the ERA when she is removed from positions which I
permit access to nuclear materials.          GE submits that the clear answer is "No" and that English's present Petition must be denied as a matter of law.
1 Initially, it is clear that the ALJ missed the point of.          I 210(g) when he reasoned that English's actions did not constitute a deliberate safety violation under 210(g) because she allegedly committed the violation in an effort to demonstrate her conten-i tions that GE used lax safety procedures.          Indeed, the ALJ further distorted 210(g) by apparently viewing her violations as somehow constituting protected activity under Section 210(a).
However, if Section 210(g) means anything, it must mean that an employee who deliberately commits safety violations in order to support safety complaints is not protected by Section 210(a).
And it certainly means that employees are not privileged to
                                                                      " report" alleged safety violations by purposefully ignoring safety hazards to " prove" that such violations occur.
These conclusions, as well as the conclusion that 210(g) requires dismissal of the instant Petition, are confirmed by the overall purpose of the statutory scheme embodied in the            !
Atomic Energy Act and the ERA.          Both have the ultimate goal of protecting the health and safety of the general public and of            l employees engaged in the nuclear industry.          Egg, e.c., 42 U.S.C. ;
                                                                                                                                                )
55 2012(d) and (e), 2201(b), 2232(a), 5846(a) (1982); General            ,
Statement of Policy and Procedure for Enforcement Actions, 49 Fed. Reg. 8583 (March 8, 1984); Wood and Yearoin Construction              l
 
1 l
C22, 79-ERA-3 (Secretary's Decision, November 8, 1979), affirming the ALJ's Recommended Decision (October 5, 1979).          One of the ways this concern for safety is effectuated by the statutes is by i
encouraging the reporting of safety violations.        For example,                        j employers are encouraged (under penalty of a fine) to promptly I
notify the NRC of any safety violations (42 U.S.C. S 5846), and                              1 employees are encouraged (by protection frem retaliation by their                          i employer) to promptly report any safety violations to the NRC (42 U.S.C. S 5851).
But reporting of violations to the NRC is not the only safety objective of these statutes.      Indeed, the major purpose of the ERA is safety, not' reporting, and the latter is but a means                            .
1 of achieving the overriding purpose of the Act which is the protection of the health and safety of the public and nuclear industry workers. 16/    Thus, employers and employees are both clearly expected to comply with safety requirements 17/ and, in i
16/  "[S]ection 5851 (210(a)) is primarily designed to serve the                          {
major purposes of the ERA . . .      nuclear safety." Brown &
Root Inc. v. Donovan, 747 F.2d 1029, 1033 (5th Cir. 1984);
see also General Statement of Policy and Procedure for Enforcement Actions, 49 Fed. Reg. 8583 (March 8, 1984), where
            " reporting of potential safety problems" is listed as but one example of the ways in which the NRC enforcement program is to be directed at promoting health and safety.
17/  See 42 U.S.C. 5 2282 (1982), which imposes a fine against persons who do not comply with NRC licensing requirements.
Egg also Wood and Yeargin Construction Co., 79-ERA-3, slip op. pp. 8-9 (Secretary's Decision, November 8, 1979),
affirming the ALJ's Recommended Decision (October 5, 1979):
(The Company) is engaged in an industry (the nuclear industry] which has great potential for catastrophe (sic] . . . . The security of (footnote continued)
{
 
this light, it was reasonable for Congress to withdraw from those who do not comply any employment projections that would otherwise exist under the ERA.      Accordingly, Section 210(g) is a simple recognition of the fact that protection of employee and public safety is too important to be jeopardized by employees' deliber-ate safety violations -- and that includes deliberate violations by an ostensibly well-meaning employee who claims that her violations of important safety requirements are committed in order to " report" safety violations. 18/
In short, nothing would be more inimical to the goal of nuclear safety than a determination that Petitioner could legiti-mately, and with Section 210(a) protection, attempt to " report" (footnote continued from previous page) the plant is only as good as the reliability of each employee in his judgments during the workday . . . . The Complainant was fired .  . . because he violated NRC regulations . . . . In view of the risk to the plant and public offered by (his]
propensities, his discharge was overdue when it occurred.
18/  Courts and federal agencies have reached similar conclusions under other employee protection statutes. See NLRB v. Local 1229, International Bhd. of Electrical Workers (Jefferson Standard Broadcasting Co.), 346 U.S. 464, 477-478 (1953)
(even if the subject of the employees' handbills was protected concerted activity under Section 7 of the National                      j Labor Relations Act, "the means used by the (employees)                          1
        . . . have deprived (them] of the protection of that section
        . . . .  "); Hochstadt v. Worcester Found., 545 F.2d 222, 231                    ,
(1st Cir. 1976) (employees lose similar statutory job protec-                    l tions "for conduct aimed at achieving even proper objectives through the use of improper means . . . .      "); Fort Smith Chair Co., 143 NLRB 514, 518 (1963), aff'd on other arounds, 336 F.2d 738 (D.C. Cir. 1964) (employees who engage in an illegal strike in violation of Section 8(d) of the National Labor Relations Act "ferfeit their rights to protection of the Act").
l
 
nuclear safety violations by committing or causing such viola-tions.                        As reflected in 210(g), Congress itself concluded that deliberate violations of required safety standards by vigilante employees constitute such a potential danger to public and employee safety that an employer must be free to remove them without contest. 19/                          The NRC should follow that mandate, reject 19/          The Fourth Circuit Court of Appeals recently recognized precisely the same concerns when it dismissed a state law claim for wrongful discharge.                      In Guy v. Travenol Laboratories, 812 F.2d 911, 916-917 (4th Cir. 1987), the court stated:
(A] wrongful discharge action may also have undesirable effects. There is a risk that many employees who are properly terminated will try to claim the exception (to an employer's right to discharge employees at will], particularly those in sensitive . . .
industries. There is a danger that the always uncertain prospects of litigation will deter er?l oyers in those industries from legitimate personnel decisions, even with respect to those employees whose .    . .  (actions] in the workplace pose () a variety of public risks.
Those same considerations prompted a federal district court in Iowa recently to vacate an arbitration award which required the reinstatement of an employee who had committed nuclear safety violations.                  Iowa Electric Light & Power Co.
: v. Local Union 204,                      F. Supp.          ,  Case Nos. C 85-0135 and 85-0137 (N.D. Iowa, March 11, 1987).                      In vacating the award, the court stated (slip op, at 17-18):
(G]iven the deliberate action of      . . .    [the discharged employee) in intentionally disabling a safety mechanism . . .,          the court is of the view that his reinstatement to his former position . . . is violative of the dominant public policy requiring strict adherence to safety standards in the operation                  l of nuclear facilities. He is no longer to be trusted to work in such a critical environment when he shows no respect for the safety impli-cations of his actions and when he is willing (footnote continued)
 
l Petitioner's claim, and find that GE acted in a lawful, responsi-ble manner in dealing with an employee wno defiantly violated nuclear safety rules.
In summary, the existing record compels the conclusion that GE did not unlawfully or impermissible remove English from nuclear-sensitive areas in its Wilmington facility. She purpose-fully and deliberately violated safety requirements and GE would have been subject to far more justified criticism had it over-looked her actions and left her employed in areas where such violations might be repeated. To quote a3 in the Secretary of Labor in an analogous ERA decision, "(iln view of the risk to the plant and public offered by (her) propensities, [her] discharge was overdue when it occurred."  Wood and Yearcin Construction Co., 79-ERA-3, slip op. pp. 8-9 (Secretary's Decision, November 8, 1979), affirming the ALJ's Recommended Decision (October 5,    j 1979).
I f
(footnote continued from previous page) to jeopardize the safety of the public by deliberately disabling a st.gnificant protec-tive system.
 
l    .
1 l
l      II. IF THE NRC DOES NOT DENY THE INSTANT PETITION AS A l            MATTER OF LAW, IT SHOULD DEFER CONSIDERATION UNTIL FINAL ACTION IS TAKEN ON PETITIONER'S SECTION 210 COMPLAINT TO DOL The preceding sections make clear that the NRC should reject Petitioner's 2.206 Petition as a matter of law based on Petitioner's own testimony in the proceedings before the Department of Labor. If the NRC decides not to do that, however, GE submits that the Commission should defer any other action on the Petition until the DOL proceeding is ultimately and finally resolved. As shown below, that course would be consistent with the Congressional intent expressed in Section 210, the NRC's own stated policies and practices, and principles of administrative efficiency.
As pointed out in I.A. above, there is presently no final DOL decision on the merits of Petitioner's Section 210 claim and the matter is now pending before the Fourth Circuit.          If the Fourth Circuit concludes that dismissal of Petitioner's complaint on procedural grounds was improper, DOL will consider the merits of Petitioner's complaint to the Secretary of Labor, thus provid-ing NRC with the benefit of a final DOL decision. Only if the Fourth Circuit determines that the Secretary of Labor was justi-fied in dismissing Petitioner's complaint as untimely will the NRC have to investigate this matter, evaluate the DOL record and other relevant facts, and ultimately determine whether English has made a justifiable claim under Section 210. Moreover, at that point the NRC would be in a position to evaluate this matter without i
                                                                                                            )
 
running the risk of making a determination that conflicts with one reached by the agency given the primary responsibility in this area under the statute.
In view of this possible future DOL action on Petitioner's Section 210 complaint, it is clearly appropriate for NRC to defer action on the instant Petition unless the Petition is dismissed as a matter of law. Such deferral is consonant with the Congressional judgment in Section 210 that the Department of Labor is the federal agency with the special competence and expertise to weigh the evidence and ultimately determine whether unlawful employment discrimination has occurred.            Reflecting that judgment, the " Memorandum of Understanding" between NRC and DOL, 47 Fed.
Reg. 54,585 (Dec. 3, 1982), recognizes that DOL enjoys broad authority under Section 210 "to investigate employee complaints of discrimination and .  .  ., after an investigation and hearing, (to) order a violator to take affirmative action to abate the viola-tion, reinstate the complainant to his or her former position with backpay, and award compensatory damages, including attorney fees."
47 Fed. Reg. at 54,585; see also Duke Power Co., 21 NRC at 1764.
By contrast, the Memorandum recognizes, as do decisions of the NRC, that the Commission is "without direct authority to provide a remedy to an employee" who is the victim of discriminatory conduct. Id. at 54,585; Duke Power Co. (Catawba Nuclear Station Units 1 and 2) DD-85-9, 21 NRC 1759, 1767 (1985) (the Commission's responsibilities under the Energy Reorganization Act and under the Memorandum of Understanding do not extend to "immediate remedial
 
l action to the person affected"); ggg also Houston Lichtina & Power l
Cgt (South Texas Project, Units 1 and 2), CLI-81-28, 14 NRC 933, 938 n. 2 (1981) (Ahearne, Commn'r, concurring).
Thus, the Memorandum of Understanding recognizes that matters concerning employment discrimination are within the special competence and expertise of the Labor Department.                  The commencement of any action by NRC before final action is taken in connection with the Department of Labor's proceeding, including the completion of appellate review, would deprive the Commission of the Labor Department's expertise in addressing and resolving allegations of unlawful discrimination.                Indeed, the pendency of two concurrent proceedings in two separate agencies would be directly contrary to the policies underlying the Memorandum of Understanding, namely that " administrative efficiency and sound enforcement policies will be maximized by cooperation and the timely exchange of information in areas of mutual interest."                  47 Fed. Reg. at 54,585. 20/
20/            Deferral of NRC action pending final action by the Department of Labor would also be consistent with the Commission's sound policy disfavoring duplicate litigation of the same issues.      ,
As the Commission explained in General Public Utilities Nuclear Corp. (Three Mile Island Nuclear Station, Units 1 and 2, Oyster Creek Nuclear Generating Station), CLI-85-4, 21 NRC 561, 563 (1985), "[t]he principle is now firmly established that parties must be prevented from using 10 C.F.R. 2.206 procedures as a vehicle for reconsideration of issues previ-ously decided, or for avoiding an existing forum in which they more logically should be presented."      Seg algo Rockford I
League of Women Voters v. NRC, 697 F.2d 1218, 1222 (7th Cir.
1982); Pacific Gas & Electric Co. (Diablo Canyon Nuclear Power Plant, Units 1 and 2), CLI-81-6, 13 NRC 443, 445-46 (1981); Consolidated Edison Co. of New York (Indian Point,      l Units 1, 2 and 3), CLI-75-8, 2 NRC 173, 177 (1975); Duke          j' (footnote continued)
 
q Finally, deferral would be consistent with both judicial and NRC practice.
Courts have long recognized that deference to the expertise of an administrative agency is appropriate          when the commencement of a second proceeding, simultaneous with the first          ,
would result in unnecessary duplication of resources and threat            en-inconsistent judgments.
Inc., 426 U.S.
Egg, gtg., Nader v. A11echenv Airlines _,_
290, 303-304 (1976); Weinbercer v.
Bentex' Pharmaceuticals. I n c ._ , 412 U.S.                                                {
645, 654 (1973); United Gtates v.
{
Western Pacific Railroad      Co._, 352 U.S. 59, 63-65 (1956). 21/
Similarly, the NRC routinely awaits the entry of a final decision by the Department of Labor on an employee Section 210 complain            ,
including any necessary appeals, before deciding whether to initiate an enforcement action against one of its licensees.
Sea Letter from James M. Taylor, Director of Office of Inspecti on          and Enforcement, Kansas Gas and Electric Company (Wolf Creek (footnote    continued from previous page)
Power Co.
21 NRC 1759,(Catawba Nuclear Station Units 1 and 2), DD-85-9, 1762 n. 1 (1985).
an " existing forum," the Department of Labor, Petitioner  presently in which  to      enjoys her removal by GE.present her claim for relief from the incidents surrou the Commission or GE with a duplicative enforcement action that arises out of the same set of facts confronting the Department of Labor and the Fourth Circuit, issues, and seeks many of the same remedies raises the same 21/
On several occasions the NRC has recognized the doctrine of primary the  final jurisdiction decisions ofand  theagencies.
other  need to await and perhaps apply Co.                                            Egg Consumers Power 924-27(Midland (1977);Plant, Units 1 and 2), ALAB-452, 6 NRC 892, Station, Units 1 and 2),Public Service Co. of New Hampshire (Seabrook ALAB-422, 6 NRC 33, 69-71 (1977);
Alabama Power Co. (Joseph M. Farley Nuclear Plant, Units 1 y                                                and 2), LBP-77-24, 5 NRC 804, 872-75 (1977),
l 13 NRC 1027 (1981), aff'd, 692 F.2d 1362 (11th Cir.aff'd, ALAB-646, 1982).
l
_ _ _ _ _ _ _ _ - - - - _ _ . - - _ -                                                                                        I
 
l Generating Station), Docket No. STN 50-482 (July 30, 1986) (initi-                                                    i ating civil penalty proceedings); Notice of Violation and Proposed                                                    !
Imposition of Civil Penalty, Illinois Power Co. (Clinton Power Station, Unit 1), Docket No. 50-461 (Dec. 17, 1986); Notice of Violation and Proposed Imposition of Civil Penalty, Commonwealth Edison Co.                                                                                                            i (Byron Nuclear Power Station, Units 1 and 2), Docket No. 50-454, 50-455 (June 25, 1986); Notice of Violations and Proposed Imposition of Civil Penalties, Texas Utilities Electric Co.
(Comanche Peak Steam Electric Station), Docket Nos. 50-445, 50-446 (May 2, 1986).
In the Wolf Creek proceeding, for example,                                                    ,
the Director of Inspection and Enforcement decided to suspend civil penalty proceedings against Kansas Gas and Electric Company while the utility appealed to the federal courts the Secretary of Labor's decision that the utility unlawfully discriminated against an employee for engaging in protected activity.                                                        The case for deferral of NRC enforcement action pending judicial review is at least as strong here, where the Secretary of Labnr's dismissal of Petitioner's Section 210 claim is on appeal.
In short, there is simply nothing to gain, and much to lose, from the institution of enforcement action by NRC prior to final completion of the DOL proceedings.                            Unless the instant 2.206 Petition is dismissed as a matter of law, all of the circumstances                                                          I present here militate in favor of recognizing the Department of Labor's primary jurisdiction and deferring action by NRC until                                                              I final action is taken in connection with the DOL proceedings.
Accordingly, because Petitioner's insistence that the NRC penalize
 
o .
l GE before the final outcome of the DOL proceedings and related appeals is contrary to the Commission's practice and the sound policies underlying that practice, the NRC should either dismiss the Petition as a matter of law or defer action on the Petition until the DOL proceedings are complete.                          ]
III. PETITIONER'S REQUEST FOR RELIEF IS PLAINLY IMPROPER AND MUST BE REJECTED Based on her view that GE is guilty of a continuing violation of Section 210 and that the base penalties set forth in NRC's policy statement should be adjusted upward, Petitioner demands that the NRC assess a civil penalty against GE in the amount of $40,635,000 plus an additional penalty of $37,500 for every day after April 6,  1987 until GE takes the " corrective actions" also demanded by Petitioner. In addition, Petitioner claims that she is entitled to compensation in the amount of
      $2,355,626.62 for her " economic losses," " medical expenses,"
      " expenses incurred in fighting GE" and for "the physical and mental pain she has endured," and she urges the NRC to condition  '
GE's license for its Wilmington facility upon payment of these damages. For the reasons which follow, GE submits that Petitioner's request for relief is both completely unsupported by the fc;ts and wholly without legal foundation.
t
 
A. Continuina Violation Petitioner's argument that GE committed a " continuing violation" when it removed Petitioner from the Chemet Lab is premised upon contorted logic and a studied disregard of the fact I            that this precise issue was decided adversely to Petitioner by the Under Secretary of Labor. 22/
Before the Department of Labor, Petitioner claimed that GE's alleged discrimination against her continued after her transfer from the Chemet Lab and her temporary assignment to other work and that GE's violation was thus ongoing.      In a thorough and well reasoned opinion, the Under Secretary rejected Petitioner's claim. 23/ Citing Delaware State Collece v. Ricks,      ..
449 U.S. 250 (1980), and Chardon v. Fernandez, 454 U.S. 6 (1981),
the Under Secretary noted that the focus must be on when the " violation" took place, not on when its effects were felt. The alleged violation here was the decision to place Mrs. English on 90 day temporary assignment. If a suitable position did not become available, it was clear that Mrs. English would be discharged. As in Ricks, the discharge here was the " delayed" but inevitable consequence, 449 U.S. at 257-258, of the 90-day temporary assignment.
Here, Mrs. English has not shown that she was treated any differently from any other employee on temporary assignment subject to 22/  It is ironic that Petitioner would have the NRC rely upon the non-binding recommendation of the ALJ to find that a viola-tion occurred and yet ignore the final decision of the Department of Labor that no continuing violation occurred.
23/ A copy of the Under Secretary's Decision is attached hereto as Appendix A.
 
s ..
being placed on " lack of suitable work" status as a suitable assignment cannot be found. The only violation, if any, occurred when she was put on temporary assignesnt on May 15, 1985. . . .
Quoting from Corbin v. Pan American World Airways, 432 F. Supp.
939 (N.D. Cal. 1977), the Under Secretary concluded that
        "(c]ompleted acts such as termination through discharge or resignation,  . . . a job transfer  . .  . or discontinuance of a particular job assignment are not acts of a ' continuing' nature."
The Under Secretary of Labor was clearly correct in holding that there is absolutely no legal or factual basis upon which a continuing violation can be found here.      Simply put, a single act of termination like that alleged by Petitioner can never give rise to a continuing violation under any statute that                          ,
i provides for the imposition of additional penalties for ongoing violations. Indeed, GE is unaware of any instance in which the NRC has found such a violation to be continuing. 24/      Rather, in order to constitute a " cont.inuing violation," the discriminatory or retaliatory acts themselves must be ongoing, and it is not 24/  See Notice of Violation and Proposed Imposition of Civil Penalty, Philadelphia Electric Co. (Peach Bottom Nuclear Power Station), Docket No. 50-278, EA 87-05 (February 9, 1987); Notice of Violation and Proposed Imposition of Civil Penalty, Commonwealth Edison Co. (Byron Nuclear Power Station, Units 1 and 2), Docket Nos. 50-454, 50-455, EA 86-87 (June 26, 1986); Notice of Violation and Proposed Imposition of Civil Penalty, Illinois Power Co. (Clinton Power Station, Unit 1), Docket No. 50-461, EA 86-87 (Dec. 17, 1986); Notice                        ,
of Violation and Proposed Imposition of Civil Penalty, Duke                          {
Power Co. (Catawba Nuclear Station, Units.1 and 2), Docket                            I Nos. 50-412, 50-414, EA 84-93 (Aug. 13, 1985); Notice of Violation and Proposed Imposition of Civil Penalty, Kansas Gas and Electric Co. (Wolf Creek Generating Station), Docket No. STN 50-482, EA 84-87 (Sept. 27 1984).
l l
: s. 4
                                                                      )
l l
l L      enough that a complainant merely alleges, as here, that the l
effects of a single act are still being felt. See Prochet v.
Armco Steel, Inc., 575 F.2d 579 (5th Cir. 1978) (discharge is not a continuing violation); Daucherty v. Kina's Deoartment Stores, Inc., 608 F.2d 906 (1st Cir. 1979) (layoff is not a continuing i      violation); Corbin v. Pan American Airways, 432 F. Supp. 939 (N.D. Cal. 1977) (discharge, job discontinuance, job transfer are not continuing violations); United Air Lines, Inc. v. Evans, 431 U.S. 556-(1977). As the First Circuit stated in Goldman v.      l Sears, Roebuck & Co.,    607 F.2d 1014 (1st Cir. 1979):            !
A continuing violation is not stated if all that appears from the complaint is that the plaintiff continues to suffer from the ongoing effects of some past act of discrimination.
Id. at 1018; see also Delaware State Collece v. Ricks, 449 U.S.
250, 258 (1980); Velazauez v. Chardon, 736 F.2d 831 (1st Cir.
1984).
Nor is this result changed by Petitioner's contorted and illogical interpretation of the NRC's General Statement of Policy and Procedure for NRC Enforcement Actions, 10 C.F.R. Part 2, App. C, t V.B.5(1). That section provides:
(1) If a licensee is aware of the existence of a condition which results in an ongoing violation and fails to initiate corrective action, each day the condition existed may be considered as a separare violation and, as such, subject to a separate additional civil            i penalty.
l 1
 
n e 10 C.F.R. Part 2, App. C.                                                          1 V.B.5(1) (1987).      Based on this language, Petitioner argues that a continuing violation is established and daily penalties may be assessed because GE management was aware of its termination of Petitioner as well as Petitioner's allegation of discrimination and failed to provide her with compensation.
This construction of Paragraph V.B.5(1) is absurd.
Under that provision a continuing violation can be found only if there is an existina condition which results in an onaoina violation, not when management is aware of an alleaed (or even real) past violation that is not itself ongoing.                                                                Indeed, the net result of Petitioner's argument would be that any alleaed Section 210 violation of which management is aware would necessarily constitute a continuing violation and subject a licensee to a daily penalty.                                                          Yet, to GE's knowledge the NRC has never so acted. 25/                                                          Moreover, the logical extension of this argument highlights its absurdity.                                                          If a licensee exercises its right to contest a complaint charging a violation of Section 210 and ultimately is found liable, the licensee would automatically be guilty of a continuing violation for the entire period of time the complaint was being litigated, thereby effectively depriving a licensee of its right to contest the complaint in the first place. 26/
25/                                                      See note 25 suora.
26/                                                      Moreover, this would also violate the established principle                                    ]
that the failure to take corrective actions to remedy the                                    1 (footnote continued)                          j 1
_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ . _ . _ _ _ _ _ _ _ _ _ _ . _ _ _ _ _ . _                    _ _ _        _ _ . _ _          _        _ . _ _ _ . . _ _ _______m
 
In sum, as the Under Secretary of Labor'specifically found, the only alleged violation of Section 210 in this case occurred, if at all, on May 15, 1984 when Petitioner's removal 1
from her. job in the Chemet Lab.was finally confirmed by the GE General Manager. That single past act, even if found to be retaliatory within the meaning of Section 210, could not and does not amount to an existing condition "which results in an ongoing violation."    10 C.F.R. Part 2, App. C.,  H V.B.S.(1) (1987).
Accordingly, Petitioner's claim that the daily penalty contem-plated by NRC's General Statement of Policy is applicable here must be rejected in its entirety.
B. Increased Penalty Apart-from her assertion that GE is somehow guilty of a continuing violation, Petitioner also contends that any civil penalty assessed against GE should be increased by "at least" fifty percent based on Petitioner's contrived analysis of the five factors set forth in 10 C.F.R. Part 2, Appendix C, Paragraph V.B.
First, Petitioner states that GE failed promptly to identify and report its " violation," complaining that "GE has never reported          i 1
its Section 210 violation to the NRC or even acknowledged that such a violation exists."    Petition at 7. Petitioner apparently believes, however illogically, that once an employee merely alleges that an NRC licensee has violated Section 210, the licen-(footnote continued from previous page) effects of past discrimination or retaliation does not give rise to a continuing violation. Cf. United States v. Davis,      i 533 F.2d 421 (5th Cir. 1976).
i l
i
 
          .o                              h~
i
                                                                                                                                                                                                                                          .I see may not contest the allegation but must immediately "acknow-ledge the. violation" and " report" it to NRC or face the possibil-ity of an increased penalty.                                                              In fact, neither GE nor any NRC licensee may be punished for contesting allegations that Section-210 has been violated.- Although never mentioned by Petitioner, it is presumably for this reason that the NRC Enforcement Policy
                                                                  .provides that the identification and reporting of a violation can serve only to decrease a civil penalty; it may not, however, serve as the basis _for an increase.                                                              Seg 10 C.F.R. Part 2, App. C, H V.B.l.                                                    (1987). 27/          Finally, on this point, it should also be noted that GE did'promptly report Petitioner's safety concerns to the NRC, although not legally required to do so.
Second, Petitioner states that GE failed to take
                                                                      " corrective action to prevent recurrence."                                                              According to Petitioner, not only has GE done nothing to correct the damage done to Mrs. English, even after its own investigator found substantial merit in her quality concerns (Wieczorek Report (April 26, 1984)), but it has also done nothing to eliminate the consequences to other employees of its intimidation of Mrs. English or to prevent recurrences of similar events in the future and, in the cases of Ms. Malpass and Mr. Lewis, applied similar pressure to prevent and punish their testimony on behalf of Mrs. English.
27/                            Part 2, Appendix C,                                Paragraph V.B.(1) of the Commission rules of practice provides only that the prompt identification and reporting of a violation may result in the "(rladuction of up to 50% of the base civil penalty.                                . . ." No provision is made for an increased penalty under this factor.                                  10 C.F.R.
Part 2, App. C, t V.B.(1) (1987).
 
:.                s I
43 -
Petition at 7.
Petitioner's argument on this point is disingenuous for  )
a number of reasons.      As a preliminary matter, the only issue        J l
before the NRC is whether GE violated Section 210 in its treatment of Petitioner.      As to that issue, GE is under no obligation and could hardly be expected to " correct the damage done to" Petitioner unless.and until a final order of the Department of        f Labor is issued finding GE liable.        GE cannot be penalized for contesting Petitioner's allegations that Section 210 was violated.
As to Petitioner's other allegations, not only are they of no relevance to Petitioner's Section 2.206 Petition, or to the amount of any civil penalty which might be assessed against GE, but they      !
misrepresent the actual facts.      Petitioner's " quality-concerns" were not found to have any safety significance in the Wieczorek Report. 28/      Moreover, Petitioner's allegations of safety problems were found to have no merit in the Hendry Report (see ALJ Decision, p. 4) and were previously and finally resolved against Petitioner in her earlier Section 2.206 Petition. 29/        As to the alleged " intimidation" of other GE employees, the Department of Labor investigation found that GE employees were not intimidated in any way as a result of GE's transfer of Petitioner, and several of those employees provided affidavits attesting that they were i
28/    Even the Wieczorek Report's " quality" conclusions have been largely discredited.
29/    Petitioner's appeal of the NRC Director's Decision of August 29, 1986, was dismissed by the D.C. Circuit on March 31, 1987.
 
never discriminated against by GE for their role in the DOL proceeding. 30/  Finally, as to Ms. Malpass and Mr. Lewis, the DOL ALJ assigned to hear that case has recommended that their complaints be dismissed with prejudice.
Third, Petitioner argues that GE's past performance warrants an increase in the penalty because Petitioner " felt pressure 'to go along to get along' for several years."                                                    Petition at 7. Although Petitioner's subjective and unsubstantiated
                                            " feelings of pressure" can hardly form the basis for an increased penalty, Petitioner's assertion that she felt pressure to "go along" is belied by the fact that Petitioner has not hesitated in the past to make numerous safety complaints to NRC and GE -- none of which, however, was ever found to have substantial merit.
Fourth, Petitioner takes the position that GE had prior notice of similar events because " licensees have been notified by the NRC of the importance of compliance with Section 210 and of encouraging workers to freely speak out about safety concerns to management and the NRC."    Petition at 7.                                                  While GE is aware of the importance of compliance with Section 210 and actively encourages its employees to speak out about safety concerns, it is difficult to understand how GE's awareness of its obligations under Section
!                                            30/  Counsel for Petitioner filed complaints with the Department I
of Labor alleging that GE had discriminated against Robert Hudson, Gary Coronado, Robert Carpenter, Billy R. Bullard, l                                                  Mike Norris, John Sutton and Lewis Brown -- all GE employees.
l                                                  All these employees provided affidavits that they had never authorized counsel for Petitioner to represent them before the Department of Labor.                  Egg Appendix B.
 
o i 210 can result in " prior notice of similar events."                                                                              Were Petitioner's position adopted by the NRC,.every violation of NRC regulatory. requirements would. result in an increased penalty.-31/
: Finally, Petitioner claims that the penalty 1should be
                    ' increased based on Paragraph V.3.(5) of NRC's Enforcement Policy, which provides for an increase "where multiple examples of a particular violation are identified during the inspection period."
In support of her-claim, Petitioner makes the bootstrap-argument that there have been multiple occurrences because "every day that passes.without corrective action being taken to undo the damage done to Mrs. English reinforces the adverse impact on other workers who believe they should report safety concerns to the NRC."              Petition at 7-8.                                                                  Petitioner's argument is nothing more than a restatement of the baseless claim that English's removal somehow constitutes a day-by-day continuing violation.                                                                              For the reasons stated earlier, it must be rejected.
In sum, Petitioner's demand that GE be assessed a penalty in an amount exceeding $40,000,000 is patently absurd.
                    'Even assuming that GE violated Section 210 of the Energy 31/              Part 2, Appendix C,                                                                Paragraph V.B.(4) of the Commission regulations is concerned with instances in which a generic safety problem is discovered and made known to an NRC                                                                        l' licensee or a licensee discovers a problem during an audit and yet takes no preventive action, which results in its reoccurrence.                                                                  See 10 C.F.R. Part 2, App, C., t V.B.(4)
(1987). Clearly, neither instance applies here.
 
; o                  +
l l                      Reorganization Act when it removed Petitioner from her laboratory position, the maximum penalty which could be assessed against GE would be $25,000. 32/
C. The NRC Is Without Authority To Condition GE's License For The Wilmington Facility On The Paveent of Petitioner's Claim For Damaces Having so far failed to obtain any compensation before either the Department of Labor or the United States District Court in North Carolina, Petitioner now requests that the NRC, under the guise of a " license modification," order GE to pay Petitioner damages in the amount of $2,355,626.62 for alleged medical expenses, pain and suffering, lost wages and out-of-pocket expenses. Thus, in effect, Petitioner requests that the NRC usurp the role of the Department of Labor and the courts and provide her with compensatory damages.                                      Adequate remedies for Petitioner exist elsewhere and Petitioner is availing herself of those remedies.
Accordingly, even if the NRC could award such damages, and it cannot, it should not entertain a petition for damages from English.
32/  The NRC has usually classified violations of its employee protection standards as Level II and Level III violations, resulting in penalties substantially less than the maximur accant permitted by NRC's Enforcement Policy. In the case of pcwer reactors where the maximum penalty is 5100,000, NRC normally assesses penalties in the range of $50-75 thousand.
In the case of fuel facilities, the maximum penalty is
                            $25,000 for a Level I violation. The maximum penalties for Level II or Level III violations are $20,000 and $12,500 respectively. Eeg Appendix C. In this regard, it should be noted that, even if a violation occurred, it could not rise                                                                            ,
higher than a Level II violation because only plant manage-                                                                            i ment was involved in the decision to remove Petitioner from the Chemet Lab.
 
Section 210 of the Energy Reorganization Act vests exclusive jurisdiction in the Department of Labor, and more particularly in the Secretary of Labor, to redress retaliatory employment practices in the nuclear industry.        Kansas Gas & Elec.
Co.      v. Brock, 780 F.2d 1505, 1508 (10th Cir. 1985), cert, denied, 106 S. Ct. 3311 (1986); See Snow v. Bechtel Const., Inc., 647 F. Supp. 1514, 1517-19 (C.D. Cal. 1986); Duke Power Co. (Catawba Nuclear Station, Units 1 and 2), DD-85-9, 21 NRC 1759, 1764 (1985).        Under Section 210 and the implementing regulations, the Secretary has the sole responsibility to restore an employee to his job with all attendant benefits and back pay, and to award compensatory -damages, including medical expenses and damages to reputation resulting from the prohibited discrimination, and al.
reasonable costs and expenses incurred in connection with brina .;
the Section 210 action.        See 42 U.S.C. 5 5851(b)(2)(A) and (B)
(1982); 29 C.F.R. SS 24.6(b)(2), (b)(3) (1986); see also DeFord v.
Secretary of Labor, 700 F.2d 281, 288-89 (6th Cir. 1983).        Even a cursory reading of Section 210 and the implementing regulations discloses that jurisdiction to award the damages requested by Petitioner for pain and suffering, bac< and future pay, and out-of pocket costs and medical expenses rests solely with the Department of Labor.
The remedies available to an aggrieved employee are                            !
comprehensive.and provide adequate relief (and all that is availa-                              !
I ble) for the projections established under Section 210(a).
Refereace to the clear and unambiguous language of Section 210                                  !
4 I
 
N      * ,
48 -
demonstrates that Congress.neither' authorized nor contemplated that-the NRC would provide additional remedial relief to an-employee.                                      Significantly, in setting forth their views of their respective roles in matters arising under Section 210, the Labor Department and the NRC have agreed that the NRC_does not have authority to. provide individual remedies to an employee subject to impermissible discriminate ~on.                                                                            See 47 Fed. Reg. at 54,585. In short, the NRC has no authority in employment discrimination matters to' provide compensation to an employee. . Egg'id.; sgg also Duke Power                                    Co.',                DD-85-9, 21 NRC at 1767.
Finally, even assuming arauendo that NRC had authority
                        .to award dameges to Petitioner, her claim for damages,-like her proposed penalty assessment, is grossly inflated and not supported by the evidence in the DOL proceeding.                                                                                We will not belabor that point here because it is so clear that NRC does'not award such damages.                                                                      However, 51 there is any doubt about the nature of Petitioner's damages, we would refer NRC to the attached excerpts from GE's briefs to the Secretary of Labor (see-Appendix D) which show that Petitioner's alleged damages are at best unsupported and at worst illusory. 33/
33/                For example, the overwhelming bulk of Setitioner's personal damages claim before the NRC is re> ten nted by her assertion that she should be paid 52 million *c ;over her alleged men-tal and physical pain and suffering, which is coupled with a claim for $2,955 in psychological medical expenses. However, this alleged suffering is belied by evidence in the DOL record.                              At transcript pages 1227-1297 in that proceeding, English's psychologist-(Dr. Peter Boyle) testified that he saw English only once; that her appointment was made not by a sick and distraught English but by someone from the office of (footnote continued)
___1_____
 
e o CONCLUSION In summary, the present 2.206 petition is but one small part of a concerted but baseless effort by Petitioner and her counsel to harass GE, the Department of Labor, the courts and NRC with the sole objective of extracting hundreds of thousands or millions of dollars from GE.                                    Petitioner and her counsel have initiated two proceedings before the Department of Labor, have by now been before the United States Courts of Appeals on eight different matters, have sought the aid of the federal district courts on at least four occasions, and have previously flooded the NRC with petitions, demands, requests and various other documents, all without success.                                    Petitioner is row back before the NRC again seeking compensation.                                    However, Petitioner's request is ground-less.                                  The relief sought here is not now, nor will it ever be, available or warranted.                                    Thus, we respectfully submit that the NRC (footnote continued from previous page) her lawyer (Mr. Ratner) who was handling her case before the Department of Labor; that English's appointment with him was not made until November 1984 (or about eight months after English's allegedly traumatic removal from the Chemet Lab and shortly before her hearing opened before the Department of Labor's Administrative Law Judge); and that he (Dr. Boyle) did not treat her but only evaluated her condition. He further testified that English needed once-a-week psycho-therapy sessions and medication for the following six months.
However, medical bills submitted by English in that proceeding revealed that English did not seek any such                                      i prerpribed treatment until almost five months later, on March                                I 7 and Merch 15, 1985, which just happened to be the two consecutive weeks preceding the resumption of Labor Department hearings on March 19, 1985. Finally, English's medical bills revealed that those trial preparation visits cost English approximately S2,000 out of the $2,955 she now claims in psychological services.
 
7-t should promptly dismiss the instant Petition.                                                                    The law, the facts,                                                                            j common sense and the legitimate interests of exhausted parties and                                                                                                                                              a tribunals require no less.
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No. 87 3520
_                                                                                                                  ~
IN THE Entteh 6tates Eaurt of Appeals FOR THE FOURTH CIRCUIT VERA M. ExcL!sH, y,                        Petitioner, DENNIS E. WHITFICLo, Deputy Secretary of Labor.
United States Department of Labor.
Respondent, and GENERAL ELECTRIC COMPANY, Int m enor.
On Petition for Review of an Order of the Deputy Secretary of Labor United States Department of Labor BRIEF FOR INTERVENOR GENERAL ELECTRIC COMPANY PETra G. NASH Dix!E L. ATWATER OcLETaEE, DEAKINS, NASH, SuoAK AND STEWART 1200 New Hampshire Avenue, N.W.
Washington, D.C. 20036 (202) 887-0855
            ,                                    WILLIAM W. STtTRcES WEINSTEIN AND STtincts 810 Baxter Street Cul de Sac
            .                                    Charlotte, North Carolina 28202 2772 (704) 377-4784 Counsel 1or intervenor General Electric Company                                                  j
                . ,6. . a n . .. ... . . . c . . . .. . , . . . oo . . . . . .. .. . . . , o . c . o o o i I
 
5 111 '
l TABLE OF AUTHORITIES-Continued Page'                              l Price v. Litton Business Systems, Inc., 694 F.2d 963 (4th Cir. 1982) ....................... passim -
Shehadeh v. Chesapeake & Potomac Tele. Co.,595 F.2d 711 ( D.C. Cir. 1978) .. .. . .... .. ..... . . 22, 24 Taylor v. Home Insurance Co., 777 F.2d 849 (4th Cir.1985), cert. denied,90 L Ed. 2d 695 (1986). passim United States v. Larionof,431 U.S. 864 (1977)..                                                10 Valentino v. United States Postal Service,674 F.2d 56 ( D.C. Cir. 19 8 2 ) . . . . . . . . . . . . . . . . . . . . . . . .                    19                          .
Vuksta v. Bethlehem Steel Corp.,540 F. Supp.1276 (E.D. Pa.1982), c/f'd,707 F.2d 1405 (3d Cir.),
cert. denied. 464 U.S. 835 (1983) ............                                                11 Womack v. Munson,619 F.2d 1292 (8th Cir.1980),
cert. denied, 450 U.S. 979 (1981) ............                                              29 Woodard v. Lehman,717 F.2d 909 (4th Cir.1983).                                                26 STATUTES National Labor Relations Act, 29 U.S.C. Il151 etaeq......................................                                                  11 Age Discrimination in Employment Act,29 U.S.C.
I 6 621 63 4 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11,15 4 2 U. S . C. I 19 81 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .                11 4 2 U.S. C. I 19 83 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .                  11 4 2 U.S.C. I 19 8 5 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .                    11 42 U.S.C. ll 2000e et seq. ..... ... . .. . ......... . 11,15 Energy Reorganization Act, 4 2 U.S.C. I 5851... . .... ..... ...... . . .. . . .pa4sim 4 2 U.S.C. I 5851 ( a ) .. . . . . . . . . . . . . .. . .. . . . .                                  6 42 U.S.C. I 5851 (b) ... .......... .... .. 2, 8,13,16 4 2 U.S.C. I 5851 ( g ) ... .... ..... .. . . .. . . . . .                              78 REGULATIONS 29 C. F.R. Pa rt 18 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 10                                          ,
29 C.F.R. Part 2 4 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 9 10 MISCELLANEOUS 6 Wigmore, Evidence i1907 (Chadbourn Rev.
1976) ....................................                                                      27 Rule 56(e), Federal Rules of Civil Procedure....                                                    29 Rule 801(d)(1), Federal Rules of Evidence .....                                                    30 Rule 804(b), Federal Rules of Evidence ........                                                    30 n >
l n
                                                                                                                                              ?
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b.
r 6    .
TABLE OF CONTENTS Page TABLE OF AUTHORITIES .._ _...................                                                                il STATEMENT OF THE CASE ....................                                                                    1 STATEMENT OF FACTS ................... ...                                                                    2 THE DECISIONS BELOW ..... __....... .......                                                                  6 ARGUMENT                                                                                                                                                -
I. THE SECRETARY CORRECTLY HELD THAT ENGLISH'S COMPLAINT IS BARRED BY THE STATUTE OF LIMITATIONS IN SEC.
TI O N 210 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .                      9 A. The Supreme Court's Chardon/Ricka Rule Requires Dismissa! In This Case..........                                        11 B. English Has Not Established A Continuing Violatio n . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .        21
: 1. The Additional Alleged Discriminatory Acts Do Not Establish a Continuing Vio.
la ti o n . . _ _ . . . . . . _ _ . . _ _ _ _ _ _ . . . . . . . . . . .      21
: 2. A Demotion or Transfer is Not Per Se a Continuing Violation .................                                      25 II. ENGLISH HAS NOT BEEN DENIED DUE PRO C E SS . .. . . . . . . . . . . .. . . . . . . . . . . . . _ _ . .. .                        27 CO NCLUSIO N . . _ _ _ _ .. .. _ _ . . _ _ . . . . . . . _ _ _ _ _ .. . . . .                              32 I
i
                                                                                                                                                                                                                                                  )
                                . .. _ _ =, m 1
.      . - ____ _ _ - - - - . -              - - . - - - - -  - . - - _ - - _ _ _        --      - - - . - - -                                                    -          - - - . _ _          _ _ - - - - - - -                    -    J
 
                                                                                                                                ~'
11
                                              ' TABLE OF AUTHORITIES CASES                                                                                                        .Page
            - Ashcraft v. University of Cincinnati, 83-ERA-7 (Secretary's Decision, November 1.1984).....                                                          28 Bezemore v. Friday, 478 U.S.                            , 92 L. Ed. 2d -
315 (1986)................................                                                            22 Bowles v. Seminole Rock & Sand Co.,325 U.S. 410 (1945)....................................                                                            10 Chardos v. Fernandez, 454 U.S. 6 (1981) ....... passim Delaware State College v Ricks, 449 U.S. 250 (1980) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . p a s sim                      ,
First National Maintenance Corp. v. NLRB, 452 U.S . 6 6 6 ( 19 81 ) . . . . . . . . . . . . . . . . . . . . . . . . . . . .                          10 Flaminio v. Honda Motor Co., 733 F.2d 463 (7th Cir. 1984 ) .. .. ... . . ... . . . . . . ... . . . . . . . . 27, 31 Glass v. Petro.Tez Chemical Corp.,757 F.2d 1554
( 5th Cir. 1985) . .. . .... . . . . . . . .. . . . . . . . . . . .                                    25 :
Heier v. Crawford County, Wis., 746 F.2d 1190 (7th Cir.1984), cert, denied, 472 U.S.1027 (1985)....................................                                                            11 Hill v. AT&T Technologies, Inc., 731 F.2d 175
( 4 th Cir. 1984 ) . . ... . . .. . . . . . . . . . .. . . . . . . . .                                20 Jenkins v. Home lasurance Co.,635 F.2d 310 (4th Cir. 1980 ) . . . . . . . . . . .. . . . . . . . . . . . . . . . . . . . .                            22 Krzytewski v. Metropolitan Government, Etc.,584 F.2d 802 (6th Cir.1978) ...................                                                            15 Lawson v. Burlington Industries, Inc., 683 F.2d 862 (4th Cir.), cert. denied,459 U.S. 944 (1982) .                                                    22 Lippert v. General Electric Co., 27 FEP 1427 (W.D. Ky. 1982) ..... ... .. .. ........ . 11,14 15,17 MCl Communication v. American Te!, & Tel. Co.,
708 F.2d 1081 (7th Cir.), cert. denied,464 U.S.
891 (1983)...............................                                                          27,31 Meritor Savings Bank v. Vinson,                                        U.S.                        ,
91 L. Ed. 2d 49 (1986) .. ..... .. .. . . . .. ....                                                    20 NLRB v. PipsAtters,429 U.S. 507 (1977) ........                                                            10 Nolder v. Raymond Kaiser Engineers, Inc., 84 ERA.5 (Secretary's Decision, June 28, 1985)..                                                          10 Patterson v. American Tobacco Co.,634 F.2d 744 (4th Cir.1980), vacated,456 U.S. 63 (1982) ...                                                        24 Postal Service Marina Center, 271 NLRB 397 11        ;
(1984)....................................
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IN THE Enitch 9tates Gourt of Appeals FOR THE FOURTH CIRCUIT No. 87 3520 -
VERA M. ENGLISH, y,
Petitioner, DENN!s E. WHITFIELD, Deputy Secretary of Labor, United States Department of La'uor, Respondent, and GENERAL ELECTRIC COMPANY, Intervenor.
On Petition for Review of an Order of the Deputy Secretary of Labor United States Department of Labor BRIEF FOR INTERVENOR GENERAL ELECTRIC COMPANY STATEMENT OF THE CASE This is a proceeding by a single employee under Sec-tion 210 of the Energy Reorganization Act (" ERA")
(42 U.S.C. I 5851) and its implementing regulations (29 C.F.R. Part 24). In her August 24, 1984 complaint to    ,
the Department of Labor (" DOL"), Petitioner English claime- that cn March 16, 1984 she was unlawfully removed from her job in the Chemet Laboratory (and ultimately laid off for lack of work) at General Elec-tric's ("GE's") facility in Wilmington, North Carolina
 
                                                                                                                                  =
2 l                                                      because she complained to the Nuclear Regulatory Com-mission ("NRC") about GE's alleged lack of adherence to safety standards. Hearings were held on English's                        i claim before Administrative Law Judge Robert J. Bris-senden ("the ALJ"I from December 17 to December 19, 1984 and from March 19 to March 28, 1985. In a deci-sion and order dated August 1,1985, the ALJ recom-mended that the Secretary of Labor ("the Secretary")
find that GE had discriminated against English. In so                        '
doing, the ALJ rejected GE's contention that English's                '
complaint was barred by the 30 day statute of limitations                  3 in Section 210lb) of the ERA, 42 U.S.C. i 5851ib).
After remanding the case to allow English to present additional evidence, which her counsel failed to do, the Under Secretary of Labor reversed the ALJ on this point and dismissed the complaint.* English's present petition                    '
to this Court seeks review of that statute of limitations issue, as well as review of the Secretary's refusal to order a second remand of this case for additional testimony.
1 STATEMENT OF FACTS English's August 7,1987 brief to this Court embroiders a very nice picture, but it is one that bears little relation to the facts of this case. Accordingly, a restatement of the facts, based on undisputed evidence before the ALJ, is set forth below.
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General Electric Company's fuel manufacturing facil-ity in Wilmington, North Carolina is licensed by the Nuclear Regulatory Commission to process special nuclear materials, including uranium powder, in the course of fabricating fuel bundles to be used at nuclear reactor sites. Areas of the facility in which employees              .
q a
* During W esurse of these proceediass, the Secretary of Iabor rosased Manself and delegated his authority under Section 210 to          j ths.Under Secretary of I4bor, Dennis E. Whit 6 eld. For esse of reference, this brief will refer to Under Secretary WhitSeld merely      ,
as "the Secretary."
                                                                                                                                    !l
                                                  - _=
 
3 work with uranium and thus are exposed to radiati safety hazards are designated " controlled areas."
Chemet Laboratory (short for Chemical Metallurgu Laboratory) is such a " controlled area" (J.A. 509; ALJ Decision (hereafter "ALJ D.") at 2-3 (J.A. 57 58)).
It was in this Lab that English worked from November 13, 1972 until she was removed from that area on March            !
16,1984,                                                          i The record reflects that English had made a number of    ,
safety complaints to both the Company and the. NRC since 1982 without any repercussions on her employment              )
( ALJ D, at 3 (J.A. 58) ; J.A. 327-33, 338, 41718). On          i February 21,1984, English sent the NRC a list of alleged          !
GE safety violations in the Chemet Lab (Exh. E 10; J.A. 338 ). Although che gave these same written allega-tions to GE management on February 24,1984 (J.A.
338; see ALJ D. at 3-4 (J.A. 58 59)), GE management              i did not learn that English had also submitted the allega-tions to the NRC until just before the NRC conducted an          1 investigation on March 26,1984 (J.A. 391-92, 438).
According to English's own testimony, the following events took place on March 9 11, 1984. On Friday night,          j March 9, knowing that no supervisor would be present until Sunday night (J.A. 340), English found a radio-active conta;..    .s  7ill on a table in the Laboratory but, in violation of the Atomic Energy Act safety re-          ;
i quirements (ALJ D. at 11 -(J.A. 66); J.A. 487 91), she purposely and deliberately left the radioactive contamina-      !
tion in place in order to prove that GE management and          j her co-workers were lax about safety matters (ALJ D.
at 4, 5,11 (J.A. 59-60, 66) ; J.A. 340, 415, 430-32, 508, 510-16). As a consequence, she, by her own admission, endangered her own health and safety as well as the health and safety of her fellow employees (J.A. 415, 515), and she did so deliberately: "I deliberately !:'ft it there because this was the only way I could get manage-ment to see what was going on." J.A. 513. On Sunday            .
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4 night, March 11, she pointed out to her supervisor the radioactive contamination she had left in place since Fri-day night (J.A. 340 43, 408, 517-20) and advised him that she did not intend to clean it up (J.A. 342, 408-09, 520).
Company officials were understandably upset with Eng-lish's admitted deliberate violation of safety standards which created a potential safety hazard for others (J.A.
358, 377-79, 483).2 Accordingly, they arranged to meet                                        ,
with her on March 16,1984 to discuss the matter.2 Dur-ing that meeting English admitted that she deliber-tely left a contaminated spill in the Laboratory (J.A. 21b-31, 385,889). As a consequence, she was advised that she was behg removed from the Chemet Lab and would no longer be permitted to work in a controlled area of the facility (J.A. 38183). She was also given a Dis-ciplinary Action notice (J.A. 470-71) which imposed a                                                  i 8GB '=A=s===t depoeiipd              also thought that F,nglish had deliberately because                      spill, as well as deliberately leaving it, "esmeared" contamination on the table                (J.A. originally told her espervisor th 246-47, 250 55, 265, 354, 482-83). Management considered these " direct actions to promote her [ safety) concerns" as " bordering on being subversive" (J.A. 483) since they evidenced a willingness to create safety hazards in order to prove that safety hazards existed. Although English's brief repeatedly cites this " subversive" statement to suggest that GE considered English's safety complaints to the NRC " subversive" (e.g., Pet. Br. at 14,15), it is clear from the context of the statement (J.A. 482 83) that it was English's deliberate safety violations, not her complaints to the NRC, that concerned management.
8 English's brief to this Court attempts to suggest that GE took this opportunity to harass English. Specifically, at page 15 of that brief, English states that "in effectuating this plan (to " humiliate and frighten" English), Mrs. English was ' awakened from [her)
* sleep' during the night of Thursday. March 15 (Tr. 2298) by a telephone call from Mr. Sheely. . . ." In point of fact, English's 7:00 affidavit own    p.m. makes clear that this phone call occurred around J.A. 501. In addition. Sheely did not " cloak () the matter in secrecy" (Pet. Br. at 16), but merely and reasonably told in    English perron. Seehe'd  prefer to discuss it with her the next morning J.A. 502.
w 2                                                                                                            ?
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5 12 month probationary period and a five-day suspension, although the actual five days without pay, as opposed to the disciplinary status following a suspension, was waived by the same document. The notice (J.A. 470 711 also reiterated that:
In light of these recent incidents, you are being re-moved from your current assignment. Your un-precedented disregard of safety rules demands that you will no longer be allowed to work in a controlled area. Effective 03'16/S4, you will be temporarily                                    -
assigned to other work.
During this temporary assignment, you will continue to be paid at your current hourly rate iH 221 and will normally work on Day Shift, Monday through Friday. The duration of this temporary assignment is indefinite.
Pursuant to established GE procedures, English appealed these actions on April 13,1984 (J.A. 486).
English's appeal was heard by the General Manager of the Wilmington facility on May 1,1984. In a written, final decision rendered on May 15,1984 tJ.A. 484 85),
the General Manager concurred in the discipline imposed on English, but reduced her probationary period to six months. He also concurred that English's deliberate safety violations required that she be removed from all                                        i controlled areas, and informed her that she would be con-                                      >
I tinued in the temporary assignment for 90 days to give her an opportunity to bid on a permanent job in a non-controlled area:
Based on the foregoing, you will not be allowed to return to work in the controlled access areas of our
* plant site, or to any position that would require your involvement with, or access to, nuclear material. . . .
Your current placement in a temporary assignment will be continued for a period of up to ninety (90) days from May 1,1984 at the same pay rate as the l
I
 
6                                      .
job that you left in the laboratory. . . . If you have not enousedyreement I d      amamant by July 80, 1984, you wHi be eonsidered as involuntarily placed on lack of suhsble work (i.e., laid off] as defined by our                  ,
personnel practices.
English did not find a suitable permanent position, so she worked her last day on July 27, 1984 and was laid off from the active payroll on July 30, 1984. At the time of the hearing before the ALJ in this case, she remained                  ;
in layoff status, with income extension payments totaling              ,  !
      $5,437.20, comprehensive medical coverage and recall l
rights (J.A. 494 99). She filed her complaint with the Department of Labor under Section 210(a) of the ERA on August 24, 1984 and amended that complaint on August 27,1984 ( ALJ D. at 1 (J.A. 56)).
l THE DECISIONS BELOW Despite the foregoing facts, the ALJ found that GE had discriminated against English by, in the ALJ's words, " banishing" her from the Chemet Lab and " dis-charg[ing]" her from employment.' ALJ D. at 13 (J.A.
68). The ALJ reasoned that English's deliberate safety violations could not be the "real" reason for GE's deci-                  !
sion regarding English because there was no evidence in the record showing that other GE employees were simi-
* The AIJ insisted on calling English's termination a " dis-charge," even though the severance of Eng!!sh's active employment on July 30,1984 was actually a layo# occasioned by her failure to bid on and obtain another job prior to t'ae expiration of her tem-porary,90-day job. However, whether her termination is called a
        " discharge" or "layoR" is not really dispositive of the issues        ,
herein. As recognized by the Secretary, the pertinent question is whether English's ultimate termination was a separate. Independ-ent discriminatory decision that was made within the limitations period, or whether it was merely the delayed result of GE's May 15 final decision to remove English from her job in a controlled ares, place her in the 90-day temporary job in the warehouse, and lay her of on July 30.
1 i
 
f  .'
7 4
larly disciplined for fa!!!ng to' follow safety rules.' With              -
respect to the statute of limitations issue, the ALJ ruled that English's complaint was. timely filed because English
                                              ' " alleged in her complaint continuing acts of _discrimina-
                                              - tion by GE . . . from December 15, 1983,- culminating in her transfer out of the Chemet Lab on March 15,1984, and her discharge on July 30, 198-4." ALJ D. at 12 (J.A.
                                                - 67).* Thus, he concluded that "Mrs. English has estab-
                                              - lished a continuing violation" and, as a consequence,-did not have to file' her complaint prior' to her termination.
ALJ D. at 12 (J.A. 67).
The Secretary, who seemed to question whether there had, in fact, been any discrimination against English' s In so ruling, the AU failed to recognize that the actual dis-cipline imposed on English (suspension and probation) was no more stringent than that imposed on other safety violators.. See AU D. at 10 n. 6 (J.A. 65). More impor+antly. the AU failed to appreciate the distinction between an employee who may carelessly violate safety standards and the vigilante employee who makes a .
conscious and deliberate decision to create a safety hazard or allow one to exist allegedly in order to prove that his or her employer is lax about safety matters. See J.A. 358, 375-76 where English's supervisors testined that their primary concern was that an em-ployee who would deliberately leave contamination for an extended period to " test" or discredit GE's safety procedures would likely take even more drastic measures in the future such as "taking uranium out of the operation deliberately to discredit the ongoing operation." Indeed, as GE argued to the Secretary. Section 210(g) of the ERA itself recognizes this distinction between careless and deliberate violators by removing all Section 210 protection for an employee "who deliberately causes a violation of any requirement of . . the Atomic Energy Act." 42 U.S.C. 6 5851(g). The Secre-tary never reached these issues because he found that English's complaint was time-barred.
e English had also alleged that GE discriminatorily harassed and surveilled her after her removal from the Chemet Lab. However, the evidence did not establish those allegations and the AU made no such findings. See AU D. at 13 (J.A. 68),
t In discussing English's complaint, the Secretary stated that                      -i
                                                      "[t]he only violation, if any, occurred when iEnglish] was put on                            j' temporary assignment on May 15, 1984 . . . " Final Decision and Order (hereafter " SOL D.") at 8 (J.A.145) (emphasis added).
 
8 found it unnecessary to decide "the merits" of the case or the legal issue raised by GE's 210(g) argument-(see
: n. 5, supra) . Instead, the Secretary held that English's complaint was barred by Section 210(b) of the ERA, which requires that complaints alleging violations of Sec-tion 210 be filed within 30 days of the alleged discrimi-natory employment action. In so holding, the Secretary ruled that the Supreme Court's Ricks and Chardon doc-trine ' required dismissal of English's complaint because there was one, and only one, GE action affecting Eng-                                ,
lish's employment tenure, and that action occurred on May 15,1984 when GE made and communicated to Eng-lish its final decision to remove her from controlled areas and place her on a 90-day temporary assignment.
If a suitable position did not become available, it was clear that Mrs. English would be discharged. As in Ricks, the discharge here was the " delayed, but inevitable, consequence" of the 90 day temporary assignment.
SOL D. at 6 (J.A.143), citing Ricks, supm, 449 U.S. at 257-58. Thus, since English's complaint was filed on August 24,1984-over 100 days after GE's actions-it was barred by the 30-day statute of limitations.
The Secretary also specifically rejected'ths ALJ's con-clusion that Ricks and Chardon were not applicable be-cause English had etablished a " continuing violation."
Although recognizing that English "did allege and at-tempt to prove" additional acts of discrimination (sur-veillance and harassment) within the statutory period (SOL D. at 7 (J.A.144) (emphasis added)), the Secre-tary rejected any notion that those acts could establish
* a continuing violation regarding English's termination even if they had been proven. The Secretary reasoned s Delaware State College v. Ricke,449 U.S. 250 (1980); Chardon
: v. Fernandes,454 U.S. 6 (1981).
  & 2 a
i
                - _                  - _ _ - - _ _ _ _ _ _ _ _ _ _ _ - _ _ _ _ _ _ _ ___ _m
 
9 that in o'rder to establish a continuing violation regard-                            l ing her termination, English would have had to prove that she was treated differently from other employees placed on temporary assignment and subject to being placed on " lack of suitable work" status if permanent assignments could not be found. SOL D. at 8 (J.A.1451                                i This she did not do. Id. Accordingly, even if English                                {
had proven her additional allegations regarding surveil-                              I lance, etc., such violations would not have resurrected her                          !
termination claim.
As we show below, the Secretary of Labor was abso-lutely right in holding that English's Section 210 com-plaint was time-barred, and this Court should affirm that decision and uphold the dismissal of English's complaint.
ARGUMENT L THE SECRETARY CORRECTLY HELD THAT ENG-LISH'S COMPLAINT IS BARRED BY THE STAT.
UTE OF LIMITATIONS IN SECTION 210 -
In her brief to this Court, English attacks the Secre-tary's timeliness decision on basically two fronts.' First,
* English also argues in her brief, as she did before the AIJ and the Secretary, that GE waived its statute of limitations de-fense by not asserting it in a timely answer to her complaint. Pet.
Br. at 47-50. She contends that because the DOL regulations                          !
governing Section 210 whistleblower actions (29 C.F.R. Part 24)-
are silent with respect to requiring an answer she should have been granted a default judgment when GE failed to file an answer within the 30-day period for answering a complaint established in 29 C.F.R. Part 18, the general rules of practice and procedure be-fore DOUs administrative law judges.
This argument is wholly without merit Initially, although Eng-lish claims that her waiver argument " raises questions of statutory construction" (Pet. Br. at 47-48), her argument, in fact, involves only the Secretary's interpretation of his own procedural regula-tions. As such, the AIJ's and Secretary's determination that the                  ~l regulations governing Section 210 do not require an answer within                    1 30 days is entitled to " controlling weight" unless it is plainly er.              'l roneous or completely without reason. E.g., United States v.                          ]
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l                                                                                                  l 1
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10 I
she argues that the Secretary read the Chards / Ricks-doctrine "overbroadly" and that there are controlling dis-tinctions in the instant case which the Secretary ignored.
l              Second, English argues that, aside from the Chardm/ -
Ricks issue, GE's alleged additional violations during the limitations period establish a continuing violation which permits her to challenge her termine*.lon. Neither of these arguments has merit."
l Lariono#, 431 U.S. 864. 872 (1977); Bowlee v. Seminole Rock &                                                                                  ,
Sand Co., 325 U.S. 410. 414 (1945).
Moreover, it is clear that the Secretary's interpretation of those                                                                                i regulations is not only reasonable, but correct. Unlike 29 C.F.R.
Part 18, where the complaint immediately activates the adjudica-tive machinery of the Department of I.4bor, a complaint under the                                                                                    ,
whistleblower regulations in 29 C.F.R. Part 24 activates the in-                                                                                      l vestigative and prosecutorial functions of the Agency. Upon the niing of a complaint under Part 24, DOL investigates the charges                                                                                    ,
contained in the complaint and, within 80 days, issues what will                                                                                      1 constitute the anal order of the Secretary unless a hearing is                                                                                      i requested within Ave days. 29 C.F.R. { 24.4. Thus, if Parts 18 and                                                                                  '
24 were meant to apply contemporaneously, the andings of the investigation and the respondent's answer would each come due on the same day. Indeed, an answer would be required before it was known whether there would be an adjudication. This illegical out-come clearly could not be the result intended by the DOL regula-tions. Instead, a respondent's request for a hearing, which is required within nye days of the nndings of the investigation has been found to be the " equivalent of an answer." See Nolder v.                -
Raymond Kaiser Engineers, Inc., 84 ERA-5, 8. Decision of the Secretary (June 28,1985)-the very case that English incorrectly cites for the proposition that DOL regulations require that an answer be aled within 30 days of a Section 210 complaint.
M Similarly baseless is English's suggestion that this Court may decide the merits of this case and romand to the Secretary only for purposes of entering a remedial order. See Pet. Br. at 8-9, 50.
Even if the Court could conclude that English's complaint was timely, the proper course would be for the Court to romand the case to the Secretary for consideration on the merits in light of                                                                                .
that Anding. Eig., NLR8 v. Pipelitters, 429 U.S. 507, 522 n. 9 (1977). See also First National Naistenance Corp. v. NLRB,452 U.S. 666,672 n. 6 (1981). Moreover, the Court could not even rule Ent;lish's complaint timely under the second theory advanced in English's brief. Although English argues that a continuing viola-                                                                                    ,
tion can be predicated on GE's alleged discriminatory acts of                                                                                        i surveillance and harassment during the limitations period, neither i
E E -emur -m
 
11 A. The Supreme Court's Chardon/ Ricks Rule Re-                                            !
quires Dismissal In This Case The Secretar'/ was clearly correct in concluding that                                          j the Supreme Court's Chardon/ Ricks doctrine requires the                                            1 dismissal of English's complaint. Those cases and their                                            j progeny establish that a statute of limitations in an em .
ployment discrimination statute begins to run on the date the complainant receives notice of the operative employ-ment decision that is alleged to be discriminatory rather than on the subsequent date that the decision manifests itself in an employee termination or separation from ac-                                            ,
tive employment. Chardon v. Fernandez, 454 U.S. 6,                                                  -
7-8 (1981) ("Chardon") (action under 42 U.S.C.
i 1983); Delaware State College v. Ricks, 449 U.S. 250,                                            j 257 59 (1980) (" Ricks") (claims under Title VII, 42                                                    l U.S.C. Il 2000e et seq., and 42 U.S.C. I 1981); Price v.
Litton Business Systems, Inc., 694 F.2d 963, 965 (4th Cir.1982) (action under Age Discrimination in Employ-ment Act ("ADEA"), 29 U.S.C. ll 621-634); Heiar v.
Crawford County, Wis., 746 F.2d 1190,1194 (7th Cir.                                                  j 1984), cert. denied, 472 U.S.1027 (1985) (claim under                                              i ADEA): Vuksta v. Bethlehem Steel Corp., 540 F. Supp.
1276 (E.D. Pa.1982), af'd, 707 F.2d 1405 (3d Cir.),                                                l    l cert, denied, 464 U.S. 835 (1983) (claims under Title VII, ADEA, and 42 U.S.C. Il 1983,1985); Lippert v.
General Electric Co., 27 FEP 1427,1429 30 (W.D. Ky.
1982) (claim under ADEA); Postal Service Marina Cen-ter, 271 NLRB 397, 399 - (1984) (discrimination com-plaint under National Labor Relations Act ("NLRA"),
29 U.S.C. Il 151 et seq.).
the AIJ nor the Secretary found that those alleged acts occurred,
* much less.that they occurred and were discriminatory. Thus, even                                  j if the Court rejected the Secretary's rationale that proof of those                                ;
allegations would not render English's " discharge" claim timely, the Court would have to romand the case to the Secretary for addi-                                    i tior_al factual and legal findings regarding those allegations before                            ]
it could be concluded that such " violations" support a " continuing violation."
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12 Both Chardon and Ricks involved alleged racial dis-crimination against educators who were denied tenure and given one-year non-renewable contracts. ~~And in both Chardon and Ricks, the Supreme Court rejected the plain-tiffs' contention that the statute of limitations should begin to run on the date their employment ceased rather than on the date they were notified of these actions.
Thus, in both cases the Court held that for purposes of the commencement of the limitations period, "[t]he proper focus is upon the time of the discriminatory acts,      ,
not upon the time at which the consequences of the acts              ;
became most painful." 449 U.S. at 258; 454 U.S. at 8.
Since the termination of employment in Ricks was merely a delayed " consequence of the denial of tenure," the effee-tive commencement date of the limitations period was "the time the tenure decision was made and communi-cated to Ricks." 449 U.S. at 258. "That is so even though one of the efects of the denial of-tenure-the eventual loss of a teaching position-did not occur until later."              ,
l Id. (emphasis in original).
The Chardon Court rejected the contention that plain-tiffs could avoid the impact of Ricks by alleging that the termination rather than the denial of tenure constituted the alleged discriminatory practice. 454 U.S. at 7 8.
The proper approach, the Court emphasized, is to look beyond the plaintiffs' conclusionary allegations and deter-mine the actual date of the " operative decision" affecting .
plaintiffs' ultimate employment status. 454 U.S. at 8.
Since the termination was not an IIIegal act in itself but a direct consequence of the earlier tenure decision, the Court concluded that " mere continuity of employment"              j during the period between the operative decision and sub-sequent termination was "insuscient to prolong the life" of the discrimination claim. Id. Accordingly, the Court held that the limitations period commenced when the tenure decision was made and communicated to plaintiffs.          ,
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13 l ..                          The Chardon/ Ricks rule is dispositive of this case, and                                      ;
its application here requires dismissal of the complaint.
Even assuming arguendo that English's removal from the Chemet Lab and other controlled areas was discrimina-tory, this action was final and unequivocal and English was notified of this fact on May 15, 1984. She was also informed on that date that her current temporary ware-house assignment would be terminated and that she would be placed on layoE if she failed to secure another position l                          by July 30, 1984. GE made no further employment deci-sions affecting English after May 15--her subsequent layoff (which she calls a " discharge") was nothing more than a direct, albeit delayed, consequence of GE's May 15 determination. Indeed, English's counsel acknowledged that her layoff was a direct consequence of her removal from the Chemet Lab rather than an independent act of discrimination:
But for her transfer out of the lab, she would not have been subjected to the " risk" of losing her job for lack of work. .Her socalled " involuntary layoff for lack of work" on July 27 was, therefore, a con-sequence of the transfer, Brief for Plaintiff to ALJ, p. 30. Accordingly, English's complaint, which was not filed until August 24,1984, or 101 days following the final removal and layoff decision, was time-barred by the 30 day limitations provision of Section 210(bh Any conceivable doubt that the Chardon/ Ricks prin-ciple governs the disposition of this case is dispelled by this Court's decision in Price v. Litton Business Systems, Inc., supra, 694 F.2d 963. There the complainant was notified on February 5 that he would be removed from his position as branch manager effective February S.
Thereafter, he was retained temporarily in a sales posi-tion and then placed on leave of absence until he was terminated on May 30. Applying the rule of Chardon/                                              1 Ricks, the Court held that " Price's claim did not arise, i
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                                                                                          \
j 1
14 as he suggests, on May 30 when he finally left the com-
        ' pany; rather, the [ limitations) period began to run on                          4 i
February 5 when he was told he would be relieved of his
_ position. . . ." 694 F.2d at 965.                                                ]
The Court reached this determination notwithstanding                    -)
the fact that on February 5, and throughout the period                          j ending May 30, Price was told that Litton " wanted him                        .l j
to stay with the company," that "other opportunities
[with Litton] would be investigated for him" and "that                          l Litton 'was making every effort to find another oppor-                  .        (
tunity in the (company) which would be acceptable to                              !
i
[him).'" Id. at 964-65. Indeed, prior to May 30 Litton                        '
advised Price of several available job opportunities, al-though in lesser positions than that of branch manager.
Id. at 965.
This Court's Price -decision plainly requires dismissal of English's complaint. That English may not have known for certain that she would be laid off until her last day of work at the end of July does not present a different circumstance from that confronting Price, who did _not know until May-30 whether Litton would find him an acceptable position prior to termination. How-ever, as in Price, English's " hope for . . . a continuing employment relationship" after her removal from the Chemet Lab is insufficient to postpone the running of the statute of 11mitations. Id. at 965; see also Lippert v.
General Electric Co., aupra, 27 FEP at 1429 30." Just as Price knew that his removal as branch manager could result in termination if another suitable position was not found for him, so too' English knew on May 15 that her removal from the Chemet Lab was final and would result 81In Lippert, the court held that the statute of Ilmitations under ADEA began to run when GE made and communicated its decision to place the plaintif on lack of work statue--the same decision that GE made and communicated to English on May 15,1984. The court reached that conclusion despite the fact that in Lippert, as here, the plaintif might ultimately have been retained if he had found other suitable work prior to the actus!!ayof date.
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(p 15-in layoff if she did not find another job in a non controlled area prior to July' 30.58 In any event, the ' May 15 re-
                                                                                                  . moval decision, which eventually resulted in her non-employment, triggered the statute of limitations. Accord-i ingly, English's failure to file her complaint by June 14, 1984, and.her ultimate filing over 70' days thereafter on August 24, 1984, precludes a determination. of violation against GE.
English obviously recognizes the impact of the Cherden/                          ,
L Ricks line of cases on her ' claims because she has at-tempted to. distinguish those cases on a -number. of grounds. Her asserted distinctions'are baseless, however.
First, on a broad scale, English' attempts 'to resurrect the ALJ's discredited theory that the Chardon/ Ricks rule -                              -
                                                                                                  . does not apply to whistleblower case.S.--i.e., that a com -                            I plaint filed within 30 days of a discriminatory discharge is "per se timely" because~ discharge is " independently illegal" under Section 210. -See Pet. Br. at' 33 37, As ~
recognized by the Secretary (SOL D. at 5-6 .(J.A.142-43)), a discharge is not unlawful per se under Section 210 but is merely p ohibited (like any other adverse ac-tion) where it is based upon an impermissible motivation.
In this respect it is no different from the multitude of other federal employment discrimination statutes, includ-ing Title VII and ADEA, under which courts routinely hold that the Chardon/ Ricks rule is fully applicable. See 12 If GE had placed English on layoff immediately after'its deci.
sion of May 15, 1984, as it could have done. there is no question but that her August 24,1984, complaint would have been untimely.
Instead, GE extended her temporary assignment in order to maxi.
mise her chances of nading an alternative permanent position. This
                                                                                                    " mere continuity of employment" was insufHelent to extend the                          ,
limitations period. Chardon,464 U.S. at 8; Ricke 449 U.S. at 257;                      1 Lippert v. General Electric Co., supra, 27 FEP at 1480.~ Moreover, GE should not be penall ed for conferring a beneat on English by -
providing her additional time in which to salvage her employment.
Price, 694 F.2d at 965; Krsysewski v. Metropolitan Government, Etc.,584 F.2d 802,805 (6th Cir.1978); Lippert v. General Electric Co., supra,27 FEP at 1430.
m                          =
 
16 cases cited'supre. Thus, contrary to English's contention, the Secretary correctly concluded that the Chardon/ Ricks rule applies to Section 210(b) in precisely the same man-ner that it is applied to other statutes of limitations.
Second, English attempts to portray GE's May 15 deci-sion as' equivocal and conditional. She does this primarily by lifting facts, words or quotes out of context and at-tempting to portray those items as indicative of equivoca-                  i tion or uncertainty in GE's decision. See Pet Br. at                      j 26 28." That, however, is not the case. As recognized by                      )y 88 For example, English emphasizes nrst that the May 15 notice stated that her assignment in the warehouse would be " temporary,"
thus attempting to suggest that English could reasonably believe
                                                . that she might later be returned to her former job in the Chemet Lab. See Pet. Br. at 14, 19, 27, It is clear, however, that all par-ties understood the temporary nature of Eng!!ah's warehouse job to mean she would be laid off on July 30 unless she bid on and secured a position outside the controlled areas prior to that date.
And given this clearly understood anal decision, it is irrelevant, and in any event not inconsistent, that GE's earlier March 15,1984 notice to English indicated that her warehouse job would be of '
                                                  "indennite" duration. See Pet. Br. at 27.
Second, English suggests that GE's expression of hope that she would and a suitable position before July 30 was evidence of un-          i certainty or equivocation in GE's decision. That, too, is not the case. The fact that English might have avoided one of the ##ects of GE's May 15 decision (i.e., layoff) by securing other employment does nothing to make that decision equivocal or uncertain. See n.14, infra.
Third. Englich contends that placing her on probation was in-consistent with any intent to terminate her on July 30 and hence -
was evidence of the equivocal and conditional nature of GE's deci.
sion. This argument also is unavalling. Both GE and English recognized that English could have remained in active, but still probationary, status had she secured another position prior to the time her temporary job expired. Thus, imposition of a probationary      l period was in no way inconsistent with GE's unequivocal, ex.
* 1 pressed decision to lay her off on July 30 unless she had secured a permanent position by then.
Finally, English rolles on her aHidavit assertion that on May 1, 1984, she was assured by former plant manager Eugene 14es that "No Vera, we're not going to are you." Pet. Br. at 28. However, GE did not intend to, and did not in fact, ever discharge Vern English. Rather, it removed her from controlled areas and as-
                                      -      _                                                                            j I
 
a 17 the Secretary of Labor, GE made only one dechien af-fecting - English's tenure of employment-the - May 15 decision to remove her from the Chemet Lab and place                                '
her on a 90 day temporary. assignment-and. there was nothing tentative, uncertain or equivocal about that deci-sion. Thus, that is when "[t]he only violation, .if any,"                          i occurred (SOL. D at 8 (J.A.1451), and it is simply of no consequence, under the Chardon/ Ricks doctrine, that some of the efects of that decision might. ultimately be-                    ,    i ameliorated by subsequent events."                                                  '
Finally, English argues that this Court's Price decision is not applicable to the instant case because the only dis-criminatory act alleged in Price was the plaintiff's re-moval as branch manager, which 'later resulted in his termination. See Pet. Br. at 32. By' contrast, English asserts, she has also alleged that she was discriminatorily terminated. - There are two things wrong with this argu.
ment. First, as specifically found by the Secretary, Eng-                          '
lish may have alleged discriminatory termination but sne adduced no proof to support s' finding that the termina-tion itself was a discriminatory act, rather than merely                            ,
the delayed effect of. GE's actions of May 15. Second,                              !
this argument is nothing more than English's attempt to overcome Price in precisely the same way the Chardon plaintiff tried to overcome Ricks-i.e., by asserting that signed her to a job that all knew would be only of limited duration.
More importantly, whatever one wishes to call GE's actions with respect to English, these actions were taken completely, unequiv.
ocally, and unconditionally on May 15,1984.
H In Ricks itself, for example, the ?vpreme Court emphasized that even the possibility of reversal of the allegedly discriminatory          ,
decision through a grievance procedure "does not suggest that the earlier decision was in any respect tentative." 449 U.S. at 261.
The same rationale applies to the possibility that some of the ad-                  4 verse erects of the allegedly discriminatory act may somehow be                    )
lessened. See Price, supra: Lippert v. General Electrie, supra                      i (where an employee was allegedly laid of in violation of the ADEA, the possibility of recall does not afect the running of the statute of limitations).
                                                                                                                        'l m =
i J
: h. _ _ _ _ - _-._____m_____.__
 
18 she is complaining about a discriminatory " termination" rather than about an earlier decision that resulted in that termination. The Supreme Court rejected that "distine-tion" per curism,28 and this Court should do likewise.
In sum, the Chardon/ Ricks / Price doctrine is plainly applicable in this case, and its application admits of only one conclusion: English's complaint under Section 210 is barred by the statute of limitations.
B. English Has Not Established A Continuing Viola.    '
tion                                                                          l English argues that even if the Chardon/ Ricks doc-trine would otherwise apply to establish May 15,1984 as the date of the " discriminatory act" regarding her em-ployment termination, she may nevertheless challenge that termination because she has established a "continu-l ing violation" that extends into the 30-day period preced-                                '
ing the date she filed her complaint. She premises this                                  i argument on a contention that her allegations of post-transfer surveillance and harassment create a continuing violation which permits her to challenge her termination, and/or on the concomitant contention that a discrimina-tory transfer or demotion is per se a continuing violation.
Neither of these contentions is viable.
: 1. The Additional Alleged Discriminatory Acts Do Not Establish a Continuing Violation In support of her first contention, English asserts that the Secretary's continuing violation analysis was funda-mentally flawed by his characterization of the alleged violation herein as the May 15 decision to remove English 38 In Chardon, the Court stated:                                                    i The Court ot Appeals . . . distinguished Ricks on the ground                      l that Ricks had alleged that denial of tenure was the " unlawful l
employment practice." whereas here respondents allege that termination of their employment . . . was the " unlawful em-ployment practice." 'We think Ricks is indistinguishable.
Chardon,454 U.S. at 7-8 (emphasis in original).
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    "4."
19
                                                        . from the Chemet Lab and place her in the 90-day tem-parary assignment. Pet. Br, at 37. According to English,.
[tlhat narrow characterization of the alleged vio!a-tion is belied by the (original and amended) com-plaints, which enumerated such acts as "(clompany.
surveillance, harassment, entrapment, ridicule, ' in-timidation and discrimination . . not only up ' to the time of Mrs. English's transfer out of the Lab on March 15th, but continuing to.- and even persist-ing after, , , , the date of her discharge.-                                                                      .
Id. And this " foregoing proof" (id.), English asserts, established a continuing violation by showing a " series of related acts, one or more of which falls within the lim-itations period." Id. at 38, citing Valentino v. United States Postal Service, 674 F.2d 56, 65 (D.C. Cir.1982),
The major problem with this argument, of course, is that none of these allegations of surveillance, harassment, etc., has ever been proven," and the ALJ properly re-fused to find any such violations ( ALJ D. at 13 (J.A.
68)). Accordingly, this Court cannot predicate a " con-tinuing violation" on those allegations. See n.10, eupra.
Equally important, however, the Secretary of Labor was correct in concluding that English's additional alle-gations, even if they had been proven, would not establish a continuing violation that would revive her termination claim. In this regard, English seems to argue that any violation during the limitations period will automatically resurrect prior time-barred claims so long as an em-ployer's actions emanate from the same alleged discrimi-is English seems to believe that more allegations are suscient to affect the running of the statute of limitations. This misconcep-tion apparently derives from the fact that many statute of limita-tions cases are decided on motions to dismiss or for summary judgment, and hence the decisions often speak in terms of the dis-criminatory acte that have been " alleged" by the plaintiffs. After trial on the merits, however, the plaintiff's allegations become irrelevant since, at that stage. the evidence must establish that a discriminatory act has occurred.
l I
 
1 20 natory animus. See Pet. Br. at 33, 38." However, con-trary to English's apparent belief, an allegation of a
        " continuing violation" does not constitute "a talismanic or shibboleth term automatically relieving a claimant of any obligation to comply with the statutory time require-ment for the filing of a charge." See Hill v. AT&T Tech-nologies, Inc., 731 F.2d 175,179-80 (4th Cir.1984)."
Rather, the stringent standards for establishing a con-tinuing violation in this Circuit were set forth in Taylor
: v. Home Insurance Co., 777 F.2d 849, 856 (4th Cir.                      .
1985), cert. denied,              U.S.      , 90 L. Ed. 2d 695 (1986):
A claimant . . . is entitled to relief from an unlaw-ful practice, although he did not file a charge within (the limitations period applicable to) its first occur-rence, if . . . the unlawful practice has continued
            " For example. In an imaginative use of a partial quotation, English makes the following representation about this Court's
      - Price decision:
If Price had alleged, or had the record showed "any seperste acts of discrimination against him between February 6 and his departure from the Company on May 80" . . . , the claim that his removal as branch manager was barred by limitations would have been rejected.
Pet. Br. at 88 (emphasis in brief). That is plainly not what this Court held in Pries. Although the Court found the absence of such allegations sufBelent to end its inquiry in Pries, it does not follow that the Court would have found that any separate acts of dis-crimination would revive Price's time. barred removal claim. In other words, discriminatory acts within the limitations period are necessary, but not sufBelent to revive time-barred claims.
ts Nor can the allegation of a " hostile work environment" be deemed to have any such taHa=amic signiassace. See Tot. Br.
at 40-41. citing Meriter Savinas Bank v. Finson,        U.S.        91 L. Ed. 2d 49 (1944). In Meriter, the Supreme Court merely held          ,
that sexual harassment in the workplace ran violate Title VII by creating a "bostile work environment" even though the harassment has not resulted in economic injury to the plaintif. Nothing in that decision either relieves a plaintif from establishing dis-eliminatory acts within the limitations period or permits a plain-tiff to recover for otherwise time-barred discriminatory acts that have resulted in economic or other injury.
1 J
1
 
a 1
21 i
into the limitation period, the claimant has Sled a      j charge alleging the unlawful practice within (the          i limitations period applicable to) its last occurrence, and the proof sustains the charge.
                                            'Under these standards a plaintiff cannot obtain relief for an otherwise time barred claim unless the plaintiff          I can show that: (1) an act identical or at least substan-tially similar to the prior act occurred within the limita-    f tions period: (21 each of the acts was the rest.4 of a discriminatory policy or practice which- continued into the limitations period: I3i a timely charge was Sled -
a!!eging the most recent act; and i4 6 the set which was the subject of the timely charge is supported by adequate evidence. These criteria were met in Taylor because the evidence established that: (1) the plaintiff's employer had an ongoing, systematic, and repeatedly applied policy of demoting older workers and replacing them . with younger workers which continued into the limitations period: (2) the plaintiff himself had been discrimina-torily demoted during the limitations period pursuant to this policy; and (3) the claim the plaintiff sought to revive involved an earlier demotion that was the same kind of act challenged in his admittedly timely claim and that was made pursuant to the same systematic, dis-criminatory demotion program.-
By contrast, however, English cannot meet any of this Court's requirements for establishing such a continuing violation. First, English cannot meet the third and fourth Taylor criteria listed above because, as previously shown, she has not established any violations at all dur-ing the limitations period.
Second,- the alleged discriminatory acts that English says occurred during the limitations period are com-pletely dissimilar from the alleged violations that English seeks to resurrect.' Even assuming for the sake of argu-ment that English, as she alleges, was subjected to sur-vaillance and was harassed by being sent home for safety i
 
22 shoes, those acts bear no similarity to, and obviously had no bearing upen, English's removal from the Chemet Lab and ultimate layoff. Thus, the acts alleged here are in stark contrast to the identical acts involved in Taylor, and are even more dissimilar than those'in the case that Taylor distinguished on the " similarity" issue (Latuson
: v. Burlington Industries, Inc., 683 F.2d 862 (4th Cir.),
cert. denied,459 U.S. 944 (1982)):
Lateson held that an illegal layoff does not encompass          '
an allegation of illegal failure to rehire. Unlike Tay-lor's claims of two similar acts, the claims in Lateson were dissimilar.
Taylor,777 F.2d at 857."
Moreover, there are sound reasons for strict adherence to the Taylor test's similarity requirement. That require-ment serves the purpose of ensuring that the continuing violation doctrine remains the exception, rather than the rule, in matters involving statutes of limitations. Where -
the acts complained of are dissimilar, the first act cannot "The cases upon which English relies also satisfy this similarity requirement and are thus distinguishable from this case. The wage discrimination cases in particular provide ths, classic exemple of a
            . continuing violation in which the identical discriminatory act is continually repeated. For example, Basemore v. Friday, 478 U.S.
                    ,92 L. Ed. 2d 315 (1986), simply reiterates that the mere fact that an errricyer instituted a discriminatory wage policy prior to the passau of the controlling legislation does not justify its core tinuing wage discrimination. Jenkins v. Home Insurance Co., 635 F.2d 310 (4th Cir.198o), another wage discrimination case, is to the same eNect. Finally, in Shehadsk v. CAssapeake & Potomae Tels. Co., 595 F.2d 711_(D.C. Cir.1978), the court found that the plaintiff's charges alleging discrimination in providing negative employment references were timely, where the plaintiff alleged        .
numerous similar instances of such references extending into the limitations period. 595 F.2d at 724 25. Importantly, however, the court did not permit this alleged " continuing violation" to revive the plaintiff's claims regarding dissimilar acto-l.e., her discharge and the employer's refusal to rehire her-which the plaintiff said resulted from the very same discriminatory animus. See Sir 5 F.2d          !
at 714,718.
[
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23 be resurrected merely by showing some other discrimina-tory act within the limitations period. But in the egre-l i                                                                                                          gious case where the defendant has repeatedly committed the same discriminatory act against the plaintiff pursu-ant to the same discriminatory policy, prior identical applications of that policy will not necessarily be immune from review. Here, of course, the acts alleged to have occurred within the limitations period were thr.: English was sent home for safety shoes or was watched. English might have some claim for relief related to those events, if proven, but they cer:ainly do not revive her time-barred claim that she was improperly removed from the Chemet Lab and subjected to layoff. Indeed, allowing the revival of English's termination claim based on these .
alleged, unproven and dissimilar acts would permit ex-actly the result the Taylor test is designed to prevent:
the bootstrapping of the otherwise time barred substance of the complaint back to life through the use of allega-tions of minor and dissimilar acts about which the plain-tiff is essentially unconcerned.
Third, Eng;ish has not established the kind of dis-                                                          '
criminatory program or policy necessary to support a finding of a continuing violation. In this regard, al-though hardly a model of clarity, English seems to be contending that GE had a " policy" of discriminating against her.2' This hardly represents the kind of policy or practice that this Court has heretofore recognized as 28 We can't *. ell precisely what the " policy" is that English pur-ports to be challenging. At times she seems to suggest that the
                                                                                                      " policy" was GE's reliance on pretextual reasons for causing her layoff. See Pet. Br. at 39 (GE's actions against English "were in furtherance of its illegal policy, a policy which .                                                      'was a pretext for getting rid of an employee who would not stop reporting viola-tions to the NRC/"). At other times she seems to suggest that any group of multiple acts motivated by the same improper animus automatically constitutes a " policy." Pet. Br. at 38-39.
And at still other times (Pet. Br. at 44), she seems to be stating that the " policy" "was to 'get rid of' Mrs. English."
w                        ^
 
o                                                                          .
                                          .24 a predicate for a continuing violation. Indeed, outside of            I the wage discrimination context, no case has been found which permitted an individual plaintid to proceed on a continuing violation theory without evidence of some broad based policy involving class discrimination. Cer-tainly the cases relied upon by English, other than those involving wage discrimmation, involved plaintids who had shown that their employers had systematic policies or practices of discrimination'against a class of workers.
See Taylor v. Home /naurance Co., supra, 777 F.2d 849 (endemic age discrimination); Patterson v. American Tobacco Co., 634 F.2d 744 (4th Cir.1980), vacated on other grounds,456 U.S. 63 (1982) (systematic policy of racial discrimination in promotion).
Finally, even if English could convince this Court to recognize that a " policy" of discrimination against a sin-gle individual can form the predicate for a continuing violation determination, that does not mean that her claims regarding GE's May 15 actions should be revived.
Indeed, the D.C. Circuit case upon -which English pri-marily relies (Shehadeh v., Chesapeake & Potomac Tele.
Co., supra) compels this conclusion. There the plaintid alleged that she had been discriminatorily terminated, refused reemployment, and given bad employment refer-ences Although the court was willing to recognize a con-tinuing violation in the form of a discriminatory refer-encing policy directed at plaintis, it refused to hold that that continuing violation revived her discharge and refusal to hire claims. 595 F.2d at 718-19. Thus, this case teaches that even if English had established a GE
                " policy" of harassment and surveillance against her dur-ing the limitations period (which she did not), such a showing would not revive her claims regarding her ter-mination which arose outside the period.
In sum, this Court should reject English's argument that additional alleged discriminatory acts within the i
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4 25 limitations period create a continuing violation which revives her claims regarding GE's May 15 actions.
Ur. der English's theory, virtually any discrimination:
claim by an individual could be turned into a " continuing violation" merely by alleging more than one act of dis-crimination, asserting that those acts establish a " policy" of discrimination against that individual, and then using that ." policy" to resurrect claims regarding all prior alle-gedly discriminatory acts no matter when they occurred.
As a consequence, " continuing violstions" would.become the rule rather than the exception, and statutes of limita-tions would inevitably be sapped of all their vitality. This Court should foreclose that possibility by rejecting Eng-lish's novel and limitless theory of continuing violations.
: 2. A  Demotion tinuing        or Transfer is Not Per Se a Con-Violation English also contends that discriminatory demotions and transfers are per se continuing violations because an employer's. illegal policy. is applied to and felt by demoted and transferred employees every day they work' in' the lesser position. See ' Pet. Br. at 42. Accordingly, she argues, her May 15 allegedly discriminatory transfer (with its consequent layoff) extended into the Section 210 limitations period and was properly the subject of her belated complaint. This argument, too, cannot stand in light of this Court decisions.28 One need look no further than Taylor v. Home insur-ance Co., supra, to conclude that this Court does not con-21It is also worth noting that the Fifth Circuit case upon which English primarily re11es (Class v. Petro Ter Chemical Corp., 757 F.2d 1554 (1985)) does not support her per se argument. As is plain from the passage English quotes (see Pet. Br at 42), the Fifth Circuit stated that a system of unlawful promotions or transfers might create a continuing violation: it did not state or imply that              i any    individual promotion or transfer decision is per se a continuing violation.
i
 
26 sider demotions, transfers, and similar employment ac-tions to be per se continuing violations. In that case the plaintif was seeking, inter alia, relief for a demotion
                                    ' that occurred more than 180 days prior to his EEOC charge. This Court permitted the recovery for that demotion, but only after requiring the plaintiff to estab-lish that his employer had an ongoing policy and practice of discriminatory demotions and that plaintiff himself had been again demoted under this policy during the            -
limitations period. 777 F.2d at 856-57. Obviously, these additional showings would not have been required if,-
as English contends, a demotion or transfer is per se a continuing violation. See also Price v. Litton Business          ;
Systems, Inc., supra (removal as branch manager and placement in a sales position and, thereafter, on leave of absence obviously was not considered a " continuing vio-lation"); Woodard v. Lehman, 717 F.2d 909 (4th Cir.
1983) (charge alleging discriminatory failure to pro-mote is time barred where, despite allegation of continu-ing discriminatory promotion policy, plaintiffs could not show a specific denial of promotion during the limits-tions period).
In short, this Court considers demotions, transfers, refusals to promote and similar employment actions to be completed acts on the date they are taken, rather than
                                          " continuing violations" which remain actionable so long as they continue to afect the employees who have been subjected to the actions. This is clearly the correct ap-proach, since virtually all employment decisions, includ-ing terminations and refusals to hire, have continuing effects and could hence be characterized as " continuing      -
i violations" under English's analysis. Accordingly, this Court should rule that English's second theory of con-tinuing violation, like her first theory, is without merit and that the Secretary of Labor properly dismissed her complaint.
                                - =
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.9 1
27 II. ENGLISH HAS NOT BEEN DENIED DL'E PROCESS English contends that she was denied due process by the Secretary's failure to enforce his remand order of May 9,1986. Pet. Br. at 45 47. In that order, the Secre-tary remanded this case to the ALJ because " Complain-ant did not have an opportunity to complete her testi-mony or to present several witnesses she had intended to call to testify in her behalf" (J.A. 83i. As shown below.                      ,
however, there was never any need to remand this case in the first place, much less a need now to remand the case yet again.
English's " remand argument" is premised, i.t the first instance, on a contention that the ALJ placed ' arbitrary" limits on the amount of trial time that she initially was given to present her case. Contrary to English's sugges-tion, however, plaintids are not entitled to decide for themselves either how much trial time should be devoted to a case or what types of evidence are relevant to the case. Flaminio v. Honda Motor Co., Ltd., 733 F.2d 463,                          ,
473 (7th Cir.1984) (trial judge's time limitations of 33                        i hours-18 for plaintids and 15 for defendants--held not a violation of due process): MCI Communications v.
American Tel & Tel. Co., 708 F.2d 1081,1171 (7th Cir.), cert. ~ denied, 464 U.S. 891 (1983), quoting teith approval, 6 Wigmore, Evidence i 1907 (Chadbourn Rev.
1976) ("(I]t has never been supposed that a party has an absolute right to force upon an unwilling tribunal an unending and superfluous mass of testimony limited only by his own judgment and whim. . . ."). Accordingly, a plaintis who has been given a reasonable amount of hear-ing time to complete his or her case can hardly claim a deprivation of due process merely because the plaintiR's attorney choo:es to spend that time pursuing matters that are not relevant or helpful in proving that case.
 
1 l
l 28 l
The record in the instant case plainly shows that that
'                      is exactly what happened here. English's two trial coun-sel were afforded over seven days to present their case,22 and they were effectively given considerably more trial time because the ALJ improperly permitted them to intro-duce substantial parts of their case during cross-examination of GE's witnesses.88 This amount of trial time was more than sufficient to permit any trial lawyer to marshal and present all evidenec genuinely relevant to
* a single employee's rather straightforward claim of                                                                                      i retaliation.
Rather than applying themselves to that task, however,                                                                              '
English's counsel chose to squander the bulk of their time attempting to establish that GE had, in fact, committed the nuclear safety violations that English had reported to the NRC-a claim which, even had it been established, would haw been completely irrelevant to proving Eng-lish's Section 210 retaliation claim. See AU D. at 9,                                                                                    i 15-17 (J.A. 64, 70-72); J.A.182-86, where the AU noted the irrelevancy of counsel's pursuits.** For exam-28 In her statement of facts agarding this issue, English refers only to the March 1985 hearings, leaving the impression that she was aiYorried only four trial days to present her case. See Pet. Br.
at 5. However, she conveniently ignoree the fact that she also had three days of hearings in December 1984. See AIJ D. at 2 (J. A. 57).
:: Counsel thereby not only increased their own a!!otted trial time, but also decreassd GE's trial time. In fact, an examination of the record reflects that English's counsel consumed over 1,900 of the total 2,464 transcript pages of hearing during their own examination and cross exr6minatkn of witnesses, thus leaving GE only about 500 transcript pages for direct and cross-examination.                                                                    .
84 As with other statutes prohibiting retaliation against em-ployees for engaging in protected activities, employees need not prove that their safety complaints to the NRC were correct or justified in order to prevail on a claim that they were discriminated against for making those safety complaints. See Ashcroft v. Uni-versity of Cincinnati, 83 ERA 4 (Secretary's Decision, Nov.1.
                  = -m
 
f *'
i.
29 ple, at least one and one half days of trial were spent in witness Malpass elaborating, in painful and utterly use-less detail, the layout of the Chemet Lab, the building in which it was housed, and the types of processes that were carried out in areas dat were both inside.cnd outside l
the Chemet Lab where English worked. Whether this endeavor was undertaken to buy time because English's counsel were not prepared, or whether it was intended to lay a foundation for attempting to establish that Eng-                                                                                          ,
lish's safety complaints to the NRC were well founded.                                                                                              '
it (like much of counsel's efforts (see ALJ D. at 1517 f J.A. 70 72) i had no relevance to proving that GE had
                                                              ' discriminated against English.
Thus, if counsel found themselves on the seventh trial day with "insumelent time" to complete their case-or, indeed, with allegedly "insuscient time" to fully examine their most crucial witness 28-it was a situation entirely 1984). See also, e.g., Womack v. Munson,619 F.2d 1292.1298 (8th C!r.1980), cert. denied. 450 U.S. 979 (1981) (interpreting Title
                                                              ' VII's similar non retaliation provisions in the same manner).
:s Incredible as it may seem, English's counsel consumed vir.
tually all of their seven trial days without calling Mrs. English-the complaining party-to testify before the AU. Instead, in what appeared to be an effort to avoid English's " live testimony" inas-much as counsel knew of the AU's time limitation well in advance, counsel attempted to place in evidence a 28-page amdavit, pre-pared by counsel, setting forth English's version of the events relating to GE's alleged discrimination against her. The AU Quite properly refused to countenance this tactic, and he himself called English to the stand to testify. See J.A. 314.
Before this Court English contends that the AU improperly excluded this proffered amdavit, and she relies on that amdavit throughout her brief as if it were properly in evidence. However, none of the federal rules of evidence or civil procedure cited by English (see Pet. Br. at 46-47) would permit any witness, much less the complaining party to submit an amdavit in lieu of trial testimony just because a party has not used his or her trial time wisely. See Fed. R. Civ. P. 56(e), which permits the submission of amdavits in support or opposition to motions for summary judg.
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1 30 of their own making and hardly constitutes a denial of due process. Accordingly, it was unnecessary in the first instance to remand this case for further proceedings.
Moreover, even if one assumes arguendo that a remand was appropriate when ordered by the Secretary, Eng.
lish's failure to provide additional evidence on remand forecloses her present due process claims In this regard, the ALJ-responded to the Secretary's remand order by allowing English 30 days to present additional testimony                                                  e by way of deposition. J.A. 91-92. English made no attempt to comply with the ALJ's order, but rather, filed a motion to amend that order on June 2,1986. ' There-ment, but which obviously has no relevance to the submission of amdavits as substantive evidence in lieu of testimony at trial:
Fed. R. Evid. 801(d)(1), which provides that prior statements of available witnesses are not barred by hearssy rules, but only under specified conditions not present here (i.e., prior inconsistent statements, statements offered to dispel assertions of recent fab-rication, or statemente identifying a person); and Fed. R. Evid.'
804(b), which provides that hearsay rules do not bar prior state-ments by unavailable witnesses (English was not only available, she was present at the hearing) in certain specified circumstances                                            ,
not present here (e.g., prior testimony under oath, statement made under belief of impending death, etc.).                                                                        j Finally,' of course, permitting English to now blithely rely on her rejected amdavit would encourage the type of tactics utilized                                            i by counsel herein. That is, trial lawyers would be encouraged to                                              ;
exhaust their trial time pursuing irrelevancies so that they can carefully craft amdavita that will substitute for the testimony of crucial witnesses who the lawyers believe may not perform well on the stand. Accordingly, this Court should reject English's attempts to rely on such an affldavit.
88 GE also filed with the AU a motion for reconsideration of the deposition format prescribed by the AW's May 21 order (J.A. 93-96). However, the primary basis for GE's motion was                                            -
its concern that in the absence of judicial control in the deposition frwat, English's counsel would inevitably go well beyond the sub-stantive areas that could he deemed even marginally relevant to English's case. That concern, of course, could not possibly have been shared by English's counsel. Indeed, the deposition format gave them a '' blank check" in terms of having witnesses testify to c ,
I
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            '?
4 01 after, the ALJ reamrmed his order on June 11. 1986 (J.A.11113), leaving English's counsel 16 days to :ake additional testimony. See J.A.115. Again, English's counsel paid no attention to the ALJ's order bu:. ins:ead of proceeding to take testimony,. filed ano:her motion with :he Secretary protesting the ALJ's order governing remand. In these circumstances, where English stub-bornly refused to supplement the record unless she could dic:a:e the forma:. she should not now be heard :o complain that the record is incomplete.
In sum, English has been given all the " process" she was "due" in these proceedings. She was afforded more than sufficient time to present any and all relevant evi-dence in the initial proceedings, but her counsel chose, despite warnings from the ALJ, to expend their generous time allotment pursuing matters irrelevant to their case.
They also specifically declined the opportunity to supple-ment the record in the 30 days allotted by the ALJ.                                    1 Accordingly, any due process claims by English at this                                ;
point are utterly without merit (Flaminio                        t. Honda              ;
                                                                                                  .L'otor Co., Ltd., supra: MCI Communications t..                    A mer.
ican Tel. & Tel. Co., supra), and this Court should there-                            j fore uphold the Secretary's decision to dismiss her core plaint.
whatever counsel wished, and thereafter arguing to the AU and/or the Secretary that such evidence was admissible.
These same circumstances also provide an additional reason why this Court should foreclose English's attempt to rely on her am.
davit that was Arst proffered during the hearings before the AU.
Aside from the fact that that amdavit was properly rejected by the AU (see n. 25, supra). English could have testined on remand to all matters addressed in the amdavit and preserved for the AU and/or Secretary any argument relating to the admissibility of that testimony. She declined to do so, however, because she was unwilling to submit to the deposition format ordered by the AU.
As a consequence, this Court should reject her present reliance on that self-serving and untested "amdavit testimony."
                              <                                                                2 l
 
                                                                                                                                                          , 1 32 CONCLUSION For the foregoing reasons, GE respectfully submits that this Court should affirm the Secretary's decision in all respects and dismiss the present Petition for Review.
Respectfully submitted, I
PETER G. NASH Dtx!E L. ATWATER OcLETREE, DEAKINs, NASH, SMoAK AND STEWART 1200 New Hampshire Avenue, N.W.
Washington, D.C. 20036 (202) 887 0855 Wn11AM W. STURGES WEINsTEIN AND STURCES 810 Baxter Street Cul de Sac Charlotte, North Carolina 28202-2772 (704) 377-4784 CounselforIntervenor GeneralElectric Company Dated: October 8,1987 1
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                                                                                                                                                                        , bD W4 i
                                                                                                                                                                                ~
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L AW OFFICES                                ,,
MOZART G. RATN ER, P. c.
52 25 WI SCO N SIN AV E N U E, N. W.
l SUITE 600 WAS HINGTON. O. C. 20 015 MC2 ART G. A ATHER ARCA COOC 202 CFCbNStk                                                                                      T                      362*4062 ANTMONY 2. mOISM AN M ann A.v C N uti October 14, 1987 Hugh L. Thompson, Jr., Director Office of Nuclear Material Safety and Safeguards United States' Nuclear Regulatory Commission 7915 Eastern Avenue Silver Spring, Maryland Re:  2.206 Petition of Vera M. English
 
==Dear Mr. Thompson:==
 
I am enclosing herewith five complete copies of the English reply (with the last five pages corrected). The Appendices have.already been delivered to you. You may disregard the partial reply which I delivered on Friday, October 9, 1987.
Thank you very much for yoar cooperation and kindness.
Very truly yours, M
Mozart G. Ratner MGR/hej Enclosure l
4 s-1 I
 
En.      11!
UNITED STATES NUCLEAR REGULATORY COMMISSION Before the Director Office of Nuclear Material Safety and Safeauards In the Matter of                                  )
                                                                )
VERA M. ENGLISH                                  )
                                                                )  Docket No. 70-1113
: v.                                          )
                                                                )
GENERAL ELECTRIC COMPANY                          )
REPLY OF VERA ENGLISH TO GENERAL ELECTRIC'S OPPOSITION TO PETITION FOR ENFORCEMENT ACTION Introduction        -
s Mrs. English's initial petition pursuant to 10 CFR 52'.206 sought enforcement action to punish, and thus deter, GE from continuing-to discriminate against employees'who report safety and quality concerns and to correct GE's alleged quality-and safety violations.                GE does not contest the premise that if it is found to have discriminated against Mrs. English it should be punished, although this multimillion-dollar corporation believes any punishment should be at most twenty-five thousand dollars --
in effect something on the order of a minor five-dollar parking ticket. We believe, Congress perceives, and the NRC has
    ,.        recognized that the significance of anti-informant discrimination is far too great to tolerate GE's self-serving attempt to emasculate the statute by denigrating its violation.                  GE also  j
                                                                                                )
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n  i i
challenges the authority of the NRC to impose any license condition to correct the obstacle to reporting and proving safety i
and quality problems ereated by the wrongful discharge of Mrs.
English. Such a crabbed interpretation of the NRC's a.ithority under the Atomic Energy Act to take whatever action is necessary to protect the public health and safety would, if accepted here, severely cripple the NRC's regulatory mission.
The central fact, which GE ignores, is that once a wrongful discharge has occurred, not only the dischargee but the entire work force is intimidated, even to the point of denying that it is intimidated. This truism was recognized by the Appeal Board    i in Union Electric Company (Callaway, Units 1 and 2), ALAB-527, 9 NRC 126 (1979), where it observed that "[clommon sense tells us that a retaliatory discharge of an employee for 'whistleblowing' t
is likely to discourage others from coming forward with information about apparent safety discrepancies."    Thus the NRC must decide what steps it will take to overcome the discouragement created by Mrs. English's wrongful termination.
While it is true that under one set of possible but unlikely    i l
future events GE could be found innocent of the charges made by        I r
Mrs. English, the fact is that at this time the only definitive ruling on the issue, reached after an adjudicatory hearing, is        j that she was wrongfully discharged. Giving due deference to the l
expertise of the Department of Labor (DOL) Administrative Law Judge (ALJ) in discharge matters under $210 (GE Response, pp. 32-36), the NRC should concur in his supported findings. Giving due 2
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l deference to human nature, the NRC must accept the fact that the GE workforce believes, at least since his decision, that Mrs.          ,
English was f' ired because she reported safety and quality'          !
concerns. It is unacceptable f or the NRC to simply ren.ain on the sidelines awaiting final resolution of DOL and court processes while " common sense" tells us that GE workers are likely to be discouraged from reporting safety problems so long as they              !
believe that Mrs. English is an example of the consequences of such reporting. Indeed, the chilling effect on other workers is so great that they are discouraged not only from themselves reporting safety and quality problems, but even from associating with others, such as Mrs. Malpass, who by her testimony supported Mrs. English at the hearing before the ALJ. Thus, the expurgated ERA Narrative Report on the Malpass-Lewis complaint against GE, issued 8/28/85,8 quotes a worker (p. 4,  last para.) (name deleted) as stating that, in approximately May, 1985, Malpass told him that people were not talking to her. He informed Malpass that she could expect this because she supported Mrs. English.
According to [ deleted] there has been a change in co-workers' attitude toward Lewis and Malpass because the majority of the work force at GEC believes their action could possibly cause the plant to close and they would lose their jobs.                                    ,
The same report finds (pp. 15-16):
(A male employee) is of the opinion that, should he be subpoenaed to testify in court 5    According to the Memorandum of Agreement, DOL is obligated to furnish NRC an unexpurgated copy of the aforesaid ERA Report if it has not already done so.                                          .
I 3                                    l
 
i
  . L for'Halpass, he would need protection for his job at GEC.    (Deleted) said that, since Malpass testified at the English Haaring in December 1984 and March 1985, he has noticed            ,
that her co-workers have given Malpass the cold shoulder and act as if they do not want to talk to her. Simmons related that onc of his co-workers commented to him that Malpass            ;
had gotten herself into a mess.
As to Lewis, the same ERA Narrative Report finds (p. 5):
(Deleted) stated that, in about May 1985, he told John " Buddy" Lewis that he should stop nitpicking and quit trying to find out what GEC was doing. According to (deleted) he told Lewis that a group of employees in the Chemet Laboratories were angry with him.
(Deleted) further stated that he overheard someone, name not recalled, state that                  :
someone should take Lewis out and beat his              !
butt. This statement was not made by (deleted) according to (deleted).    -
(Deleted) believed that the Chemet Laboratories employees are upset with Lewis is alleged to be looking over their shoulders and taking notes. . . .
(Deleted) did overhear someone, name not recalled, make the statement that GEC had enough on Lewis to fire him. . . .
Discussion I. A. GE's Occosition to Exercise of NRC's Statutory and Reculatory Authority Is Locally Erroneous For all its fifty pages of hyperbolic argument and unsigned i
legal rhetoric, GE never meets head-on the real thrust of Mrs.        l English's petition. Nothing GE presents explains why the NRC does not have the authority and should not now exercise that authority by taking some action both to deter further misconduct by GE and other licensees and to reestablish the confidence of the GE workforce in the integrity and effectiveness of the 4
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Congressional guarantee of immunity against employer' reprisal.for good faith.whistleblowers. None of the legal technicalities I
raised by GE rebut t'he longstanding and oft-repeated thesis that      l l
under-the Atomic Energy Act, as amended, the NRC pcssesses all I
the authority needed to take whatever actions are necessary to i
protect the public health and safety.
Indeed, GE cannot rationally make such an argument, because the legislative history of 5210 squarely refutes it.      As the Director of Inspection and Enforcement recognized in Duke Power Co. (Catawba Ur.its 1 & 2),.DD-85-9, 21 NRC 1759.(1985):
1 In urging his colleagues to adopt 5210, Senator Hart, the Senate floor manager, said
[5210] is not intended to in any way abridae the Commission's current authority to investigate an alleged discrimination and take appropriate action against a licensee-employer, such as a civil penalty, license susDension or license revocation. Further, the pendency of a proceeding before the Department of Labor pursuant to new Section 210 need not delay any action by the Commission to carry out the purpose of the Atomic Enercy Act of 1954.    (Emphasis added.)
124 Conc. Rec. S15318 (daily ed., Sept, 18, 1978).
Thus, the underlying premise of GE's Response (pp. 32-36)    --
that the power of DOL to protect rights and remedy wrongs done atomic whistleblowers is exclusive or even primary over that of NRC -- is entirely without foundation. NRC's official regulations confirm this. Specifically described as violations against which NRC is empowered to take enforcement action are 5
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                                " Miscellaneous Matters" in Supplement VII, 10 CFR        (1.1.83 ed.),
;                                p. 137:
!                                                                                                        )
A. Severity I --
                                                                                                        ]
: 3. Deliberate action by management to discriminate (in violation of Section 210 of the ERA) against an employee for attempting to communicate or actually communicating with NRC.
B. Severity II --                                  j
: 3. Discrimination (in violation of Section 210 of the ERA) by management at any level above first-line supervision, against an employee for attempting to communicate or actually communicating with NRC; . . .
C. Severity III --
: 2. Discrimination (in violation of Section 210 of the ERA) against an employee for attempting to communicate or actually communicating with the NRC . . . .
As the Director of Inspection and Enforcement stated with respect to these Regulations in Duke Power Co., supra, When the commission amended its regulations in 1982 to expand the scope of its employee protection regulations [ regulations which pre-dated enactment of 5210) the regulations did not specify that findinas by the Department of Labor were a prerequisite to findina a violation of 550.7.      [ Emphasis and brackets 4dded.)
Moreover, after acknowledging the independent jurisdiction of DOL (10 CFR 550.7(b) (1/1/83 ed.)), the Regulations provide-that NRC shall nevertheless have unlimited authority to enforce        !
i                          $210 of the ERA, 10 CFR 50.7(c) (1/1/83 ed.):
(c) A violation of paragraph (a) of this                i section [Section 210) by a Commission licensee, . . . may be grounds for --
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.s  1                                                                                                                (
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(1). Denial, revocation, or suspension of the license.
(2) Imposition of a civil penalty on the licensee . . . .
(3) Other enforcement action.8 This is further emphasized in "NRC Form 3, Rev'd" (49 Fed.
Reg. 38212), App. E to Brief of Plaintiff to DOL, see also pp. 7-8,    Br. for Plaintiff to DOL (May 31, 1985).                                  Upon filing of a DOL complaint, "NRC may conduct its own investigation where necessary to determine whether unlawful discrimination has prevented the free flow of information to the Commission."                                      Also, "if the NRC or Department of Labor finds that unlawful discrimination has occurred, the NRC may issue a Notice of Violation to your employer, impose a fine, or suspend, modify, or revoke your employer's NRC license."
Ignoring both the aforesaid legislative history and the Regulations, GE predicates its deferral argument antirely upon the DOL-NRC Memorandum of Understanding (47 Fed. Reg. 54585) under which, according to GE (Response, p. 2),
8        It is incorrect, as petitioner has demonstrated, but GE nevertheless asserts (Response, p. 15), that "only the Secretary of Labor has the authority to issue an order finding a violation                                        i of Section 210 . . .                                    ." The quoted portion of this sentence reflects GE's fundamental theme (Response, pp. 31-36), that DOL                                          j has exclusive, or at least primary, jurisdiction to enforce 5210.                                        I However, the succeeding portion of the sentence which, as indicated, we have deleted, narrows the objection to exercise of NRC jurisdiction "on a complaint lodged with the Department of Labor under the ERA." So qualified, the statement negates GE's major thesis.                                    It appears to concede that NRC has independent, overlapping jurisdiction to enforce 5210, e.a., in response to a request to NRC for a 52.206 proceeding or sua sponte.
7
                                                                                                                    )
 
  ,            i.                                                                                                                                            l NRC normally defers acting on alleged 210 violations pending the final outcome of related Department of Labor administrative proceedings including any appellate review.
(Emphasis added.)
Assuming, arauendo, that deferral is the "norinal ' procedure, deferral cannot rationally pertain in the " abnormal" case where DOL, on procedural grounds, declines to reach a final decision on the merits at all.                          For, if DOL were sustained on appeal on such grounds, NRC's responsibility for effectuating the major national policy reflected in 5210 as explained in NRC Form 3, Rev'd, supra, would atrophy totally, in deference to mere " normal practice" under an internal agency agreement, which on its face contemplates full effectuation, not enervation, of national policy.                          A reading of the Memorandum as encompassing NRC abstention even where DOL may never reach the merits would be of doubtful legality.                          Cf. Guss v. Utah Labor Board, 353 U.S. 1, 9 (1957); Meat Cutters v. Fairlawn Meats, 353 U.S. 20, 23 (1957).
In the callaway case the Staff claimed the extraordinary power to halt all construction at a nuclear plant because a licensee would not allow it to fully investigate a claimed, but as yet unproven, case of wrongful termination, and the Appeal Board sustained the Staff.                          Surely where an ALJ of the DOL finds    ,
I that Mrs. English was wrongfully discharged and the GE workforce undoubtedly believes that is what has occurred, it is                                      {
insufficient for the NRC Staff to do nothing, as GE urges, or impose a meaningless fine and take no steps to correct the dangerous condition created by GE's misconduct.
8 L      _ _ _ _ _ _ -
 
l ll    l        The Response of General Electric (GE) to Vera English's Petition for enforcement action pursuant to 10 CFR 52.206 relies on several grossly flawed legal arguments.
GE argues that, because the findings of the AI.J :egarding the real reason for Mrs. English's discharge and the pretextual nature of GE's defense are not res iudicata or collateral estoppel, NRC should not now take any action but should defer to the expertise of the DOL in labor relations matters.                                                                Compare GE Brief, pp. 16-22 and pp. 31-36,                                                                                                    i According to GE's Response, because DOL dismissed the English complaint without reaching the merits, NRC now has but two alternatives:    either (1) reverse the ALJ's findings that GE was illegally motivated and that GE management covered its illegal motive with fabricated pretexts, or (2) defer decision on these issues indefinitely until such future time, if any, as DOL may finally adjudicate and obtain judicial review of those                                                                          f decisions (cf., Response, GE, pp. 16-22, with pp. 31-36).
GE's premise for reversal of the ALJ findings is that because the ALJ's findings do not have collateral estoppel or res judicata effect they have "no legal signi.ticance" (Pasponse, pp.
1, 14-15). But it does not follow that because the ALJ's findings are not legally " binding" on NRC, as they would not be legally " binding" on the Secretary of Labor, NRC may not elect to adopt his findings as its own.        Indeed, only by electing to adopt, pro tanto, the ALJ's report on the merits can NRC effectuate the dual Congressional policies of recognizing the 9
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special expertise of' DOL in 5210 cases, while at the same time preserving the unfettered jurisdiction of NRC timely and fully to' remove employer restraints upon "commu'nication" of safety and quality concerns by employees of. nuclear licensees, re,1ardless whether DOL 5210 proceedings are pending. Senator Hart, supra.
Reconciliation in this manner fits particularly well these f.
dual policies and it effectuates Senator Hart's assurance to the Senate that exercise of DOL jurisdiction in a particular matter need not delay independent proceedings on the same matter by NRC.
In a case like this, where DOL may never reach the merits, the postponement of NRC-actions pending final DOL findings on the-merits, would abort.the_ parallel jurisdiction pf NRC and could either force a wasteful duplicate NRC hearing or prevent NRC from.
ever taking. action.
Mrs. English argues that the NRC is not legally bound by the findings of-the ALJ but that the NRC should be guided thereby, and that, as a matter of sound administrative discretion consistent with the Memorandum of Understanding, the NRC should accept the ALJ's resolutions to the.same extent as DOL would on review of those findings. In this case the findings of the ALJ are, at present and perhaps forever, the final word of the DOL on the merits of Mrs. English's claims.8    Whether her charges were 8    GE distorts the ruling of the DOL Under secretary in an attempt to establish that the Under Secretary gave a " signal" that he questioned the findings of the ALJ because he qualified his statement regarding the existence of only one violation --
i.e., being placed on temporary assignment rather than continuing violations -- with the phrase "if any." GE Br. p. 15, fn. 9.
This phrase merely reflects that the Under Secretary was not i
10
                                                                                              \
 
filed within the statute of limitations or not is irrelevant to the soundness of the ALJ's findings, which were made following the identical administrative process used for all' claims under Section'210. Congress and the courts have historically / endowed ALJ merits findings with certain sta*.us and dignity, even on review by the appointing agency:
(W] hen the ultimate determination of motive or purpose hinges entirely upon the degree of credibility to be accorded the testimony of              :
interested witnesses, "the credibility findings of the (ALJ) are entitled to special            j weight and are not to be easily ignored."                l (Pennzoil Co. v. FERC, 789 F.2d 1128, 1135              l (5th Cir., 1986) (citations omitted).
See also, Universal Camera Corp. v. NLRB, 340 U.S. 474, 496-7 (1951); Moore v. Rose, 687 F.2d 604, 609 (2nd Cir. 1982), quoting' from Penasquitos Villace, Inc. v. NLRB, 565 F.2d 1074, 1076 (9th Cir. 1977):
i "we have found no decision, nor has one been cited to us, sustaining a finding of fact by the (National Labor Relations] Board which rests soleiv on testimonial evidence discredited either expressly or by clear implication by the administrative law judge."            !
(Emphasis added.)
In this case, the ALJ's " ultimate determination of motive or l
purpose hinges entirely upon the degree of credibility to be 1
l                  accorded the testimony of interested witnesses."      Pennzoil, i                  endorsing or rejecting the ALJ finding.      Even GE apparently does not believe the Under Secretary's statement, as made, supports its conclusion since it found it necessary to pervert the statement by adding underlining to the phrase "if any" without noting that the underlining was not in the original. Compare GE Br. fn. 15 with text at the bottom of p. 8 of the Under Secretary's decision (Appendix A to GE Br.).
11 l                                                                                          !
 
supra. Therefore, his credibility findings "are entitled to special weight (from DOL, NRC, and reviewing courts) and are not to be easily ignored."      Id. Thus, the ALJ found (ALJ D&O, p. 2):
        "The findings and conclusions in this decision are based on my observation of the witnesses who testified      . . . "; p. 6, para. 2:
The punishment dealt to Mrs. English for
                  " failure to clean up contamination, knowing it existed" was removal from the Chemet Lab and assignment to some rather menial work in the Building "J" Central Stores warehouse.                      4 Complainant testified that a man (Mr. Ogle) was assigned to watch her constantly and that she was humiliated in an incident concerning her shoes. . . .    [T]he record is devoid of any rebuttal evidence to Mrs. English's charge that she.was the only person ever removed from the Chemet Lab for failure to clean up contamination. She was credible in her testimony that other workers had caused the contamination and there was no evidence to the contrary. Further, the evidence clearly shows, without contradiction, that at least one shift and possibly two (not counting her shift) failed to clean up visible contamination. The area of contamination was outlined with red tape, whether such method was considered proper for dealing with the situation or not, the red tape added to the visibility of the contamination. Yet no one using the same work table, in other shifts, bothered to report this nor to clean it up;
: p. 8, para. 5:
[M]any of [Mrs. English's] complaints had a proper basis in fact, and . . . her concern for her own safety and the safety of fellow employees was a strong factor in her allegations;
  ,    p. 9, second full para.:
Management felt a concern as to the lengths that complainant would go to in promoting her views on safety practices, and therefore considered her a threat to other employees' 12
!                                                                                  1
 
8 -4 safety.        While this may be loaicui,'if manaaement's view of her norsonality is accepted, this expressed concern with safety is belied by Respondent's inertia in regard                                                                            ,
repeated violations of safety rules by other                                                                              i employees. One example of this being the                                                                                  i failure to investigate why the uranyl stain                                                                              I was not cleaned up by any other party pr.4or                                                                              I to the Monday following Complainant's report                                                                              ,
i
                                                    -to Lacewell.                      (Emphasis added.);
: p.      9. para. 5:
Respondent's witnesses were not believable in attributing the discipline imposed on:                                                                          (1) regards for other employees' safety which was ostensibly endangered by Mrs. English's actions and complaints and (2) for the
                                                    " deliberate" violation of the clean-up rule;
: p. 10, para. 1:
(T]he meetings, as testified through management's witnesses, came across as inquisitions to find charges that would
                                                    " stick," not a true investigation into the validity of concerns over general laboratory safety.        Mr. Lacewell was concerned about
                                                    " entrapment" of Radiation Safety personnel and Mr. Sheely about " flagrant violation o work rules;" neither supervisor, as far as can be ascertained from the record, made any great effort to properly investigate Mrs.
English's complaints on safety. The one rule that Mrs. English technically violated, it may therefore be inferred, was a pretext for getting rid of an employee who would not stop reporting violations to NRC;
: p. 11, para. 1:
I do not consider that Mrs. English deliberately caused a violation under the circumstances of this case. Respondent contends on one hand, that Mrs. English's only recourse with regard to discovered violations was to report them to management, which she did to no avail, or to the NRC.                                                                          On the other hand, Respondent would have Mrs.
English continue to abate violations caused by others -- namely, to clean up contamination left by employees on prior 13
 
D
- ,    a shifts in violation of NRC requirements. GE cannot have it both ways. I find Mrs.
English's statement credible that she.had not caused the uranyl stain on her work table.
Her outlining of the results of some other person's negligence and failure to clean up was in effect, at the same time, a notice to management and a warning to fellow workers of the visible contamination. Since Mrs.
English had many times in the past cleaned.up contamination caused by other persons in their preceding shifts, she was entitled to-expect that someone other than she would clean up or call attention to the. uranyl stain. Further, I found her credible in her testimony that she. brought the stain and red tape to the attention of her immediate supervisor, Mr. Lacewell, as soon as he was available to observe the same first hand..
Once the. matter was brought to the attention of management, an order should have issued to clean the stain. -At least the Radiation Safety men should have been called in to_ view
                                                        ~
the situation. Mrs. English, as heretofore stated, knew that she could expect no credence to her complaints without tangible    ,
evidence. In demonstrating the malfeasance of others, she took the only means available to provide visible proof to support her past and immediate allegations. Her demonstration of.same was used as a pretext for retaliatory action, and by way of Respondent's motion it is also used as a basis to defeat her claim.
To allow the latter would be patently unfair and defeat the purpose of the Act, this was not an act'done deliberately to invoke "whistleblower" protection, rather it was a means of reporting violations, albeit          ;
unorthodox, See S. Rep. No. Ad. News 7303, 7304; Hochstadt v. Worcester Foundation For Experimental Bioloay,.545 F.2d 222 (1st Cir.,
1976);
: p. 13, paras. 3-5:                                        !
: 3. Said discrimination was motivated by complainant's initiation of and participation in NRC proceedings investigating Employer's facility, specifically the Chemet Laboratory.
: 4. Respondent did not carry its burden  1 to prove that the above discriminatory acts  1 14 1
1
                  -_-                                                i
 
would have taken place, even if the protected                                                                j activity of this Complainant had not taken place, i.e., the charge of " failure to clean up visible contamination" was a pretext.                                            .
: 5. Complainant, through her testimony and that of her witnesses (including psychologist Boyle) adequately established causal connection and the basis for compensatory damages and other relief provided by section 5851 of the Act.
Is the fact that the Secretary has not adopted the ALJ findings fatal to Mrs. English's claim?    No more so than if the matter were settled by the parties after the ALJ decision and before action by the Under Secretary. In addition, the critical question for the NRC is not whether all possible DOL review has occurred, but whether as a matter of sound pol' icy the NRC should rely on an evidentiary finding made after an adjudicatory hearing or should instead substitute a new and redundant process and engage in second-guessing the available evidentiary findings made by the DOL, which GE asserts Congress judged as (GE Br., p. 32):
the federal agency with the special competency and expertise to weigh the evidence and ultimately determine whether unlawful employment discrimination has occurred.
GE does raise the possibility that, should the Fourth Circuit reverse the decision of the Under Secretary on the statute of limitations issue, the ALJ findings could be reviewed and overturned on remand to the Secretary. Admittedly that could
-  happen, although, as the discussion in the second part of this brief makes clear, that is highly unlikely.      The NRC is, of course, often faced with the dilemma of awaiting what can be a 15
 
l-                            long administrative and court review process before taking enforcement action in section 210 cases and thus allowing a          j dangerous condition to remain uncorrected. There are several        !
I strategies the NRC could pursue, but has not pursucd Lere, to          j l
help it decide whether the long wait is warranted and to mitigate      l l
the consequences of that wait.
1 First, the NRC could, and should here, launch a special and I
unannounced investigation to reliably determine whether GE workers at Wilmington in fact feel intimidated about raising      i safety concerns as a result of what has happened to Mrs. English.
The NRC is already aware from the testimony of Mr. Lewis and Ms.
Malpass in the DOL proceeding that such fears exist and has recently been made aware of other workers who are afraid to disagree with GE management or speak out about safety concerns.*
See also the ERA Narrative Report on the Malpass/ Lewis complaint, supra, which describes conversations with GE workers who expressed reluctance to speak out about safety problems. An investigation of these matters patterned on the techniques used by OI or CIA would help NRC determine the magnitude of the problem and assess the need for immediate NRC action. Such an 4    GE's submittal of affidavits it solicited and apparently prepared (the same notary was used for each one) uttesting that they did not retain Mr. Ratner and/or that they did not fear reprisal are at least as consistent with the conclusion that they did fear such reprisal as that they didn't. GE could not seriously contend that its affidavit-signing party, undoubtedly
  ,                          attended by lawyers and management, would not itself be intimidating to any employee. The ALJ's recommended dismissal of the Malpass and Lewis claims is based on the inability of their counsel to meet a totally unrealistic and patently irrational trial schedule, not on the merits of the claims raised.
16                                  4 i
i
 
                                                                        )
l l
1 investigation would form the basis for a determination whether awaiting a final DOL decision was appropriate or whether the magnitude of the safety issues involved required swifter action.
As the Appeal Board observed in Union Electric Co. (Cs11away.      .
1 Units 1 and 2), suora:
Without rehearsing everything we have said before, to shackle the staff's investigators until grievance proceedings are completed            i opens the possibility of radiation hazards being created during the delay. That consequence, in our judgment is more important to be avoided than disturbances of employer-employee relationships. We therefore have no hesitation in holding that the incidental effects of an NRC investigation on pending grievance proceedings -- whether under collective bargaining agreements or before the Secretary of Labor -- do not outweigh the Commission's need to be able to look into the question of retaliatory discharges promptly if circumstances warrant, and that the staff did not abuse its discretion electing to do so here.
The Director of Inspection and Enforcement has recognized the principle that it is contrary to the NRC's purposes to automatically await completion of DOL proceedings to act where employee discrimination has occurred (Duke Power Co. (Catawba Units 1 and 2), DD-85-9, 21 NRC 1759 (1985)):
Duke Power Company misperceives the complementary, yet independent, authorities and responsibilities of ths Department of Labor and the Nuclear Regulatory Commission in protecting employees from discrimination and retaliation for raising matters pertaining to nuclear safety. Although 5210 assigns authority to grant employee remedies          '
to the Department of Labor, enactment of that statute did not limit the Commission's              i preexisting authority under the Atomic Energy Act to investigate alleged discrimination and 17 I                                        -
 
take appropriate action against its licensees to combat it. Union Electric Co. (Callaway Plant, Units 1 and 2), ALAB-527, 9 NRC 126, 132-39 (1979).
Second, NRC could provide a substantial deterrent to the perpetuation of discriminatory conduct at the GE Wilmington facility were it to issue a preliminary proposed action (fine and license condition) which would be made contingent on the final decision of the DOL, i.e., either after the adverse decision on the statute of limitations and thus the merits becomes final or after reversal and remand and the decision on the merits becomes final.a  When the contingency was fulfilled GE could exercise its right to  cr.2est the fine.
Provisional action based upon the serious. violations of Section 210 found by the ALJ would provide an important statement by the NRC enforcement office of its intent to take effective steps to prevent and correct Section 210 violations. The seriousness of a nuclear employer's conduct in discharging an employee in retaliation for raising safety concerns is underscored by the decision of the Appeal Board in Union Electric company (Callaway. Units 1 and 2), supra. In that case the Appeal Board upheld the power of the regulatory staff (exercised 8
In Texas Utilities Electric Co. (Comanche Peak Steam Electric Station), Dkt. Nos. 50-445 & 446, the NRC imposed a fine for the wrongful discharge of Charles Atchison prior to final action, held the fine in abeyance, and, even after the final action found against Mr. Atchison on procedural grounds, assessed the fine. Imposition of fines following ALJ decisions and before all legal action is final, with collection or contesting of the fine held in abeyance, has occurred in several other NRC cases.
18
 
  ,1  .
before passage of section 210 but decided after passage)* to suspend construction of a nuclear plant Until a permittee allowed the staff access to documents necessary to determine whether a wrongful discharge-had occurred. The Appeal Board fotnd (id. at 134;:
Common sense tells us that a retaliatory discharge of an employee for "whistleblowing" is likely to discourage others from coming forward with information about apparent safety discrepancies. Yet, the Commission's safety inspectors cannot be everywhere; to an extent they must depend on help _of this kind to do their jobs. Incidents that deter such aid are inherently suspect. They obviously merit full exploration in the interests of safety and certainly are prima facie within the Commission's legislative charter.
I In a different context, the Appeal Board again emphasized        '
the importance of the employee as a source of valuable information (Texas Utilities Generatino Co. (Comanche Peak Steam Electric Station), ALAB-714, 17 NRC 86 (1983):
There is a manifest need to encourage those with knowledge of possible safety-related deficiencies in facility construction or operation to put their information before the Commission. Particularly in the instance of employees of the utility or its contractors, there may well be a decided reluctance to take such action in the absence of an assurance that their anonyinity will be preserved -- a reluctance founded in the fear              ;
of reprisal of some kind.21
* The Appeal Board, citing the statement of Senator Hart, floor manager of the Section 210 legislation, noted that his statement at least rebuts any assumption that Congress passed Section 210 because it believed the NRC lacked the power to investigate wrongful termination a*;egations
                                              .          or intended to strip such authority from the NRC. Id., fn. 49; accord, Duke Power Co.
(Catawba Units 1 & 2), supra.
19 i
 
o                                .
88    As stated in Union Elect'ric Co.
(Callaway Plant, Units 1 and 2),
ALAB-427, 9 NRC 126, 134 (1979), it is mere " common, sense" that "a retaliatory discharge of an employee for 'whistleblowing' is likely to discourage others from coming forward with information about apparent safety discrepancies." This is so notwithstanding the statutory protectiors against discriminatory retaliation that is provided to employees who, without obligation to do so, supply information about possible safety-related i                                                                    irregularities,    see section 210 of the Energy Reorganization Act of 1974, 42 U.S.C. 5851, and the Commission's implementing regulations, 47 Fed. Reg. 30452 (July 14, 1982) (to be codified in                      .
I scattered sections of 10 CFR).    ,
Moreover, there is no practical means of shielding employee informants from harassment at the hands of fellow employees who may have been involved in the irregularities.
In adopting amendments to inter alia 10 CFR 550.7, the Commission stressed the importance of the unintimidated employee as a source of information essential for proper performance of the NRC's safety obligations (47 Fed. Reg. 30452 (July 14, 1982):
The commission, to effectively fulfill its mandate, requires complete, factual, and current information concerning the regulated activities of its licensees. Employees are an important source of such information and should be encouraged to come forth with any items of potential significance to safety without fear of retribution from their employers.
Contrary to these strong statements underscoring t!.e importance of protecting whistleblowers and encouraging workers "to come 20
 
forth with any items of potential significance to safety without fear of retribution from their employers," to date nothing has been done'to determine the extent of damage to the Wilmington employees' willingness to raise safety concerns with GE or the NRC, much less to restore the employees' faith in the integrity of the system, even though it has been over three years since Mrs. English was discharged for reporting safety concerns.1    The significant safety implications of GE's conduct warrant action by the NRC that will clearly inform the GE workforce and others that they will not risk their jobs and their careers in vain. A preliminary proposed fine and license condition would go a long way toward restoring employee confidence and mitigating the        i consequences of the continuing delay in this matter.
GE contends that NRC should defer any consideration of a 1
fine or a license condition until all action is completed by the DOL and the courts. In effect it urges that the NRC treat GE as the wronged party and Mrs. English as the perpetrator. Whatever assumption of innocence GE might have claimed when faced with
* GE reveals its inherently flawed perception of nuclear facility safety when it argues that the quality concerns raised by Mrs. English and confirmed by the Wieczorek Report do not have any safety significance. In Union Electric Company (Callaway, Units 1 and 2), supra, the Jppeal Board stressed the importance of quality concerns for nuclear safety (id., fn, 26):
The need for " quality assurance" and " quality control" in the construction of nuclear plants has long been a recognized Commission concern. See, e.g., Consumers Power Company (Midland Plant, Units 1 and 2), ALAB-106, 6 AEC 182 (1973); ALAB-147, 6 AEC 636 (1973);
ALAB-152, 6 AEC 816 (1973); ALAB-283, 2 NRC 11 (1975).
21                                  !
l l
 
a Mrs. English's charges it lost when the Wage and Hour Division and then the ALJ, after a hearing, agreed with Mrs. English.
GE's arguments would, at best, only support the' view that the NRC l            should not issue a final proposed fine and license condition or allow a hearing on the fine and license condition to commence l
untta after conclusion of the DOL proceeding.                              Mrs. English's l            proposal of a preliminary proposed fine does not prejudge the outcome of the DOL process, does not force duplicate hearings, and does.not force the NRC to remain silent on the seriousness of the findings reached by the ALJ or the need to reassure the GE workers. GE's objection to duplicate proceedings is precisely that which Senator Hart rejected in explaining 5210.                    ,
The need to move expeditiously in cases where wrongful termination is alleged was a critical factor in the Appeal Board's decision in Union Electric Co. (Callaway, Unit 1 and 2)
(footnotes omitted):
Moreover, under the new legislation the Secretary apparently lacks two remedial powers -- which the Commission possesses --
necessary to insure full protection of the public interest. The first is the right to take important actions against the employer, and the other is authority to do so immediately. Thus, even after finding that an employee has been fired for reporting unsafe construction practices, the Secretary may order only reinstatement and back pay --
not correction of the dangerous practices themselves. He can report them to the Commission. But his administrative proceedings take time; as does any judicial review (the grievance proceedings in this case took 7 months). ... In the interim a lot of concrete can be poured over a lot of defects. ... This Commission, as the agency primarily responsible for public safety in 22                                                                          l
 
y--      . __    _  _ _ _ _
the nuclear field, should not have to stand idly by while this happens.
GE argues that, even if the NRC could or should take some                                                ]
action at this time, the fine and license conditions suggested by Mrs. English are either too large or beyond the authority of the                                                {
NRC to impose.
The GE argument regarding the size of any fine begins with                                                j the faulty premise that a " continuing violation" does not exist where, as here, there was a single discharge. The analytical flaw in this argument is that it overlooks the difference between the concept of " continuing violation" for statute of limitations purposes and for remedial or punitive purposes.                                              In contrast with a discharge which is not, by itself, a " continuing violation" for statute of limitations purposes, every day that a discharge remains unremedied is a " continuing violation" or a separate offense for remedial purposes.          Thus, a discriminatorily i
discharged employee is entitled to back pay for every day until he/she is reinstated. NRC itself so defines " continuing violation" for enforcement purposes.e                      For remedial or punitive e    Thus, Ch. I,        Part 2, App. C, p. 150 (1/1/86 ed.), provides:
The duration of a violation may also be considered in assessing a civil penalty. A greater civil penalty may be imposed if a For violation continues for more than a day.
example:
(1) If a lie ansee is aware of the existence of a conaltion which results in an ongoing violation anc fails to initiate corrective action, each day the condition existed may be considered as a separate violation and, as such, subject to a separate 23
 
purposes, a wrongful discharge is relevant primarily, but not exclusively, because of the impact on the dischargee and on the remaining workforce and the implications for safety of that' impact. The intimidating impact of her firing is "Likely to discourage others from coming forward with information about apparent safety discrepancies."    Union Electric Company (Callaway Units 1 and 2), supra. Until GE has taken steps to assure its workforce that the wrongs done to Mrs. English have been corrected and will not be repeated, GE remains in violation of the NRC prohibition on intimidating workers to keep them from                                                                              !
reporting safety concerns. It is the continued existence of the uncorrected, and unrepented, wrongful discharge of Mrs. English                                                                            i and the consequences for public safety of that continued existence that form the basis for the NRC's concern and the                                                                                r i
continuing violation of NRC requirements.'
additional civil penalty.
(2) If a licensee is unaware of a condition resulting in a continuina violation, but clearly should have been aware of the condition or had an opportunity to                                                                                      4 correct the condition but failed to do so, a separate violation and attendant civil penalty may be considered for each day that the licensee clearly should have been aware of the condition or had an opportunity to correct the condition but failed to do so.
(Emphasis added.]
                                  '    Even on the issue of whether GE committed multiple and continuous violations of the rights of Mrs. English under Section 210, GE's analysis is wrong. Attached hereto and incorporated herein as Appendix A is Mrs. English's brief to the United States Court of Appeals for the Fourth Circuit, which fully articulates the flawed reasoning advanced by GE and adopted by the Under 24
 
  ,r  .
GE has focussed on and cites cases relevant to the question of whether, for purposes of the' DOL, there is a continuing violation. But, as the Appeal Board made clear in Union Electric Co. (Callaway, Unit 1 and 2), suora, the NRC and D0L liave different purposes for and interests in wrongful termination:
Moreover, the Commission's investigatory powers and those of the Secretary of Labor under the new provisions neither serve the same purpose nor are invoked in the same manner. They are, rather, complementary, not duplicative in the sense licensee suggests.
To be sure, both encourage the reporting of unsafe or improper practices to Commission officials. But Section 210 focuses chiefly on protecting employees against retaliation, rather than safeguarding the public's rights.
The Director of Inspection and Enforcement has also recognized this critical difference between the goals and purposes of the NRC and the DOL where whistleblowers are involved (Duke Power Co. (Catawba Units 1 and 2), supra:
The Commission's responsibility goes beyond immediate remedial action to the person affected. The Commission must ensure that licensees correct conditions that have resulted in improper discrimination that could affect other employees and prevent the recurrence of such discrimination. This power must be available to the Commission whether or not a particular employee has exercised his or her rights under $210.
The inherently continuing nature of GE's violation of NRC requirements is illustrated by the following example.      If, following Mrs. English's discharge, GE uppar management had
  .      investigated her charges, decided that she had been wrongfully Secretary on the continuing nature of the violations committed l        against Mrs. English.
l 25
                                                                              )
 
terminated, and'promptly moved to reinstate her with back pay and an appropriate public admission of their wrongdoing, surely the NRC would and should treat GE differently than here where GE, even in the face of the ALJ findings, not only persists to this day in. denying that it has done wrong but continues its vicious and libellous attacks on Mrs. English and her. conduct while a GE employee. According to GE the only possible distinction the NRC can make between these two cases in imposing penalties is to vary the amount of a single fine between $0 and $25,000.
GE claims that it cannot be punished for choosing to deny
                                                                                        .and resist the charges of Mrs. English and therefore its violations cannot be said to be " continuing."              But GE has chosen to take the risk that it will in fact be found to have violated the law and in such event its obstinate refusal to comply with the law would and should be punishable.                Its recalcitrance is part of the basis for a larger fine, particularly where it perpetuates by its recalcitrance a safety hazard at its facility.
In Callaway, the utility was faced with a far more serious consequence if it chose to assert its claimed rights -- plant shutdown until At released the data sought by the Staff.                    At any time GE could have taken steps to remedy the adverse impact on its workforce by providing some remedy to Mrs. English while still pressing its argument. Mrs. English could have been offered back and front pay shortly after discharge, subject to recoupment if her claims of wrongful termination were found to be groundless. This would have provided some evidence to the 26
 
    .                              A workforce that GE was not being vindictive against a            ,
1 whistleblower and that it was a fair and open-minded employer who  l 1
realized that legitimate differences could arise with its employees. GE's failure to propose this or any other remedy to seek to mitigate the impact of its conduct on the workforce and its' spiteful, relentless, often deceptive, and unrepentant defense of'its prior conduct, including trumping up charges against Mrs. English, underscore the need for substantial punishment.
If the seriousness of wrongfully discharging an employee is-so great that the Staff would order a plant shutdown costing approxima*.ely $1,000,000 per day just to force
* disclosure of evidence t. hat would demonstrate whether such a wrongful discharge had occurred, surely the fine proposed here for a proven wrongful discharge unremedied for over three years is modest. GE has arrogantly assumed that it is above the law, and only the most severe and swift punishment -- substantially damaging its most precious asset, its money -- will make it respect the law, the NRC, and the rights of its workers.
GE argues that its right to resist the wrongful termination charge is infringed if it is punished either by an increased fine or a finding of continuous violations because of its refusal to admit it has done wrong. GE would have it that, by fighting to
  ,                                            the death, even though it is clearly in error, it should be i                                              subjected to only the most minor punishment, as compared to a I                                              company that is ultimately exonerated, and punishment no larger 27
 
i j
than a company that, promptly upon being charged, ceases its illegal conduct. In such a truly absurd world there is no                                                                ,;
justice and there is no law.'                                                                                                  i One can search in vain through the records in chese DOL and NRC matters for even a shred of concern for the impact on its workers of the highly visible transfer and firing of Mrs. English                                                                I
(
and of the decision of the ALJ confirming Mrs. English's worst                                                                    {
fears -- she was punished for reporting safety violations and GE made up pretextual excuses to cover its illegal actions.80 Finally GE argues that it cannot be forced by the NRC to compensate Mrs. English for wrongfully terminating her. The argument is based on the twin faulty assumptions discussed above:
Fault 1:  The NRC, the DOL, and a state court have the identical purpose in being concerned with Mrs.
English's wrongful discharge.
Fault 2:  The NRC has only limited tools available to it to redress the consequences of wrongful termination.                                                              I
                                                                                                                                                                                                                    \
As already explained above, the NRC is uniquely obligated to                                                            j protect the health and safety of the public from the operation of nuclear facilities. Maintaining a flow of safety information from the workforce to the employer and the NRC is a vital part of to      In Duke Power Co. (Catawba Units 1 & 2), supra, the Director of Inspection and Enforcement considered the very factors we have urged for increasing a proposed fine. He noted the action by Duke Power to correct its problem as justification for not increasing the fine but noted that Duke Power continued to protest the decision internally by retaining bad performance records of the employee in a separate file.                            Here GE does not acknowledge any wrongdoing at all and has taken no corrective action. Surely an enhanced penalty is required.
28 l
l i
l
 
.                      4 meeting that obligation. Statement of Considerations for inter alta 10 CFR $50.7, supra. Wrongfully discharging one employee is l likely to discourage workers from reporting safety violations.
Union Electric Co. (Callaway, Units 1 and 2), supra. Delay in correcting the impact of a wrongful discharge endangers public      i
                                                                                              )
health and safety. Id. By assuring full compensation to Mrs. j English the NRC reassures the workforce that, regardless of the l
technicalities of the statute of limitations or the preemptive      )
impact of.the Atomic Energy Act (which GE argues to evade any state court remedy 12), no worker will suffer economic or any other loss if he or she is terminated for reporting safety problems. NRC shenld and must act.
GE also argues that NRC cannot act, even if it wants to, because Section 210 is an exclusive remedy. That is belied by  l the floor statement of the chief Senate sponsor of the bill (124 Cong. Rec. 515318 (daily ed., Sept. 18, 1978) (remarks of Sen.
Hart), by the decision of the Director of Inspection and Enforcement in Duke Power Co. (Catawba Units 1 & 2), supra, by the language of 10 CFR 550.7(c), supra, and by'well established case law that where, as here, a remedial statute is involved (one designed to provide public protection not available to the public on its own), the statute is to be broadly construed to help 11    GE is disingenuous when it argues here that NRC should let
                                                                      ~
l the state court decide what compensation Mrs. English should receive and yet argues in the state court that the Atomic Energy Act and the NRC regulatory scheme totally preempt all state causes of action. Attached hereto as Appendix B is a copy of Petitioner's brief to the district court in opposition to GE's motion to dismiss on preemption grounds.
29
 
i ensure its effectiveness. Union Electric Co. (callaway), suora; f Whirlpool Coro, v. Marshall, 445 U.S. 1,  13 (1980); Gomez v.
l              Toledo, 446 U.S. 635, 639 (1980); Tchereenin v. Knicht, 389 U.S.
332, 336 (1967). The NRC must possess the authorit/ to impose whatever license conditions are necessary to restore plant safety
                -- here to assure that the workforce is an encouraged (by law)      l source of safety information -- and to impose fines based upon illegal discouragement of workers from reporting safety problems.
Admittedly the violations caused by discharging a worker for reporting safety problems create some unique situations and, contrary to GE's assertion, warrant unique enforcement actions.
This unique violation has a unique and " common sense" ripple effect on the free flow of safety information to which Congress and the Commission have given high priority.        To correct the problems created and punish the recalcitrance of the perpetrator requires unique enforcement measures well within the power of the NRC. The fact that such measures have not been taken before is more indicative of the failings of the enforcement program than of the impotence of the NRC.
B. GE's Factual Arcument is Clearly Erroneous As we have already demonstrated above, as a matter of sound policy the NRC, in deciding what enforcement action to take against GE, should not reevaluate the factual evidence presented to and findings of the ALJ. However, should the NRC decide to 30 i
1
                                                                                      )
 
i reevaluate that evidence,58 we believe it will find that the evidence clearly establishes that GE did fire Mrs. English for reporting safety problems, that the allegation that she violated' GE safety regulations is false, and that the allegation that she was fired for violating safety regulations is a fabricated pretext.
i l
I 1
l
(
l I
1 I
12    Huch of the basis of the ALJ opinion was, as it will be in most of these cases, derived from a judgment regarding the credibility of witnesses. The NRC, like any reviewing body, must defer to the judgment of the hearing officer, who was able to observe and assess the demeanor and character of each witness.
31 l
1
 
L l                                              II. THE ALJ 'S ILLEGAL MOTIVE AND PRETEXT FINDINGS                                                          a
!                                                    REFLECT CREDIBILITY RESOLUTIONS BASED ON                                                                ]
OBSERVED DEMEANOR UNDER OATH, SUPPORTED BY                                                                '
i                                                    BOTH DIRECT AND CIRCUMSTANTIAL EVIDENCE Discarding the ALJ's specific findings to 6.he
                                        -contrary (D&O,13 p. 11), GE simply assumes (Response, p.
I 16), the veracity of management's explanation that "GE removed Petitioner English from the Chemet Lab because she made a conscious deliberate decision.to commit a nuclear safety violation by leaving a radioactive spill in the laboratory."
(Emphasis added.)    In support, GE asserts (Response, p. 5),
                                        " Company officials were justifiably upset with English's l
admitted deliberate violation of safety standards."                                                    But the      l
                                                                                                                                                              )
l ALJ found that company officials were not in fact " upset,"
instead they used Lacewell's hearsay report of English's alleged " admission" as the pretext for discrimination against                                                      f I
her which they hoped would " stick."                                                                                J GE ignores that the ALJ rejected management's causation explanation on credibility grounds, based on his observation of GE's witnesses' demeanor (I.R. 2, first full                                                          j 1
par., second sentence), supported by both direct and circumstantial evidence of record. Furthermore, GE totally                                                      i i
i disregards the ALJ's unquestioned right and power to do this:
It is hornbook law that the trier of fact "is * *
* free to reject an employer's sworn testimony and to predicate findings
  .                                                                                                                                                            \
of discrimination on the basis of all the evidence both direct l
13"D&O" refers to the ALJ's Decision & Order in English v.
General Electric Company, in 85-ERA-2, App. A to GE's                                                                {
Response.
l l
I I
_ _ - _ - - _ _ _ - - - - - - _ _            _                                                                                                          )
 
and circumstantial."    Morris, I The Developing Labor Law (ABA), 265; U.S. Postal Service Bd. of Govs. v.-Aikens, 460
          'U.S. 711, 714, n. 3 (1983) ("The McDonnell-Douglas formula does not require direct proof of discrimination.)"      7eamsters
: v. United States, 431 U.S. 324, 358, n. 44 (1977).14 As the Supreme Court reiterated in Aikens, id., 460 U.S. at 716, a discrimination plaintif f may prevail "either directly by persuading the court that a discriminatory reason more likely motivated the employer or indirectly by showing that the employer's proffered explanation is unworthy of credence." Burdine, 450 U.S., at 256.
In this case, the ALJ found both:      directly, that it was more likely that a discriminatory reason motivated the employer (D&O, pp. 8-13), and indirectly, "that the employer's proffered explanation [was) unworthy of credence."      D&O, p. 9, i l
last par., cont. 10 (" Respondent's witnesses were not believable in attributing the discipline" to " deliberate" rule violation or management " regard [] for other employees' safety" (id., p. 9, last par., first sentence, emphasis added)). We summarize below some of the supporting evidence, virtually none of which is even mentioned by GE.
Before doing so, however, we stop to emphasize four points:    first, the ALJ found that GE did not carry its burden 14T o sustain a defense under Section 210(g), as under the "cause" provision of Section 10(c) of LMRDA, the employer must prove that the alleged offense " motivated the disciplinary action."    (Emphasis added.) Id., p. 188, n. 42; NLRB v.
Transportation Management, 4362 U.S. 393, 401-403 (1983);          ,
Mackowiak v. University Nuclear Systems, Inc., 735 F.2d 1159,      j 1162 (9 Cir., 1984).                                                  ;
I
 
I to prove that "the [found) discriminatory acts would have taken place even if the protected activity of this complainant had not taken place" (DEO, pp. 13, "4", 8, par. 2, last sentence to end of par).                                        1 Secor.3, Mrs. English "was the only person ever removed from the Chemet Lab for failure to clean up contamination
[although] the evidence clearly shows, without contradiction, that at least one shift and possibly two (not counting her t
shift) failed to clean up [the same] visible contamination" (D&O, p. 6, second full par., last half; see also, D&O, p. 9, second full par., last sentence); D&O, p. 10, pars. (a) and (b); third, the Congress which enacted 42 U.S,C. 5851 considered nuclear employer discrimination against "whistleblowers" pervasive:    "Any worker * *
* who gives information with respect to an alleged violation of the A.E.A.
                  * *
* may be subject to discrimination" (S. Rep. No. 95-848,
: p. 29); and fourth, that -- as the Supreme Court has said --
proof of intentional discrimination entails proof of the employer's illegal state of mind -- to which there will seldom be "' eye-witness' testimony."  Aikens, id., 460 U.S. at 716-717.
As the Seventh Circuit recently reiterated, Riordan v.
Kempiners, 44 FEP Cases 1355, 1360 (1987):
Proof of * *
* discrimination [by an employer against an employee) is always difficult.
Defendants of even minimal sophistication will neither admit discriminatory animus nor leave a paper trail demonstrating it [as we show below GE did here]; and because most employment decisions l
 
involve an element of discretion, alternative hypotheses (including that of simple mistake) will always be possible and often plausible.
                      *** [Because) it is so easy to concoct a:
plausible reason.[for discrimination] ***      [a]
plaintiff's ability to prove discrimination indirectly, circumstantially, must~ not be : rippled by evidentiary rulings that keep out probative evidence because of crabbed notions of relevance We now detail some of the evidence supporting the ALJ's conclusions:    In the first place, the ALJ credited Mrs.
English and'her supporting witnesses as-to management's and many fellow workers' persistent " hostility" toward her even antedating 1982 (D&O, p. 2, n. 2, last two lines, D&O, p. 3, 2nd par.; Tr. 2302, 2307-2308, 2316, 2321-2322, 2332-2334),
arising from her having openly voiced safety and quality concerns to management (D&O, p. 3, 2nd par., p. 12, 2nd full par., first sentence; Tr.              Plaintiff's Brief to ALJ, pp. 48-60).15    GE's creation and toleration of a " hostile" (to Mrs. English)." working environment" is itself prohibited
        " discrimination."    Meritor Savings Bank v. Vinson, 91 L.Ed.
l 49, 57 (1986).
                                                                          )
Further, additional evidence of record available to NRC establishes that GE's employee-perceived treatment of Mrs.
English as discriminatory has intimidated many other employees and tended to inhibit their communication of GE violations to NRC.-  See the redacted ERA Narrative Report in Malpass and 15S afety and quality complaints to management, even if never voiced to NRC, are " protected activity." Kansas Gas & Elec.
Co. v. Brock, 780 F.2d 1505 (10 Cir., 1985), cert. denied, 106 S.Ct. 3311 (1986)
Lewis v. General Electric, 85-ERA-38.and 39, submitted by Mack Lawson,' Wage 6 Hour Compliance Specialist, on or about August 28, 1985, quoted in part, supra, pp. 3-4.
While plaintiff believes that the quotations above are more than adequate to establish that GE's manifested hostility to Mrs. English for accusing, annoyinng  and embarrassing management (D&O, p. 7, top par.) are entirely' adequate to sustain the proof of resultant employee fear of exposing GE violations, we observe that plaintiff has not had access to the unexpurgated, unredacted, report of the Department of Labor Wage and Hour Division, whereas NRC does have such access, and that it should be utilized to determine whether the redacted portions of the report contain additional support for plaintiff's position, and to interview the informants whose names are deleted in the redacted report.
Second, the ALJ found that "many of [Mrs. English's) complaints had a proper basis in fact,16 and that her concern for her own safety and the safety of fellow employeets) was a strong factor in her allegations" (D&O, p.
8, penultimate par; D&O, pp. 3-4, continued par., par. 9).
Indeed, in a letter from NRC Regional Administrator Grace to GE's General Manager Lees, dated July 1, 1986, affirming the 16GE's assertion that "Most of the allegations * *
* were found to be without any factual substance whatsoever * * *"
,    (Response, p. 10, emphasis added) is flatly false and has so been found not only by the ALJ (D&O, pp. 6-7, n. 5), but by NRC's Director of Inspection and Enforcement. Insofar as allegations were dismissed by the Director, they were found unsubstantiated on tenuous legal, not factual, grounds, and/or because the violations had been subsequently remedied.
5
: c.            .
violations found in NRC I.R. 85-02, and enclosing Staff Evaluations of License Responses, the R.A. stated:                  "We disagree that your policy of ' cleaning up spills immediately' was effective in maintaining the lab as a relatively
                                                          ' contamination free' environment."                See English v. General Electric Company, Petition to App. D.C.                for Review of Regional Director's Decision Pursuant to 10 CFR 2.206, dated Dec. 22,            .
1986, pp. 13-39, and Appendices 2-3, thereof, with enclosures thereto, attached hereto as Appendix C.                  Cf. Brief for Plaintiff to ALJ, pp. 37-39.
Third, the ALJ found on the basis of her own and                        l psychiatrist's testimony that Mrs. English suffered severe                    I depression and " agitated depression" as a result of the
                                                          " imposition of the various [ discriminatory) actions taken 1
against her by GE during her final years of employment" (D&O, Tr. pp. 7, 9, third par.).
Fourth, the ALJ found, on the basis of Mrs. English's credited and, indeed                  undenied, testimony, that management generally, including Rad Safety, refused to entertain any of her safety and quality complaints unless she accompanied them h
 
1 1
I with "hard" evidence 17 (DEO, p. 4, f ull par. , last two sentences (Tr.                ) (the NRC also refuseu to 1
investigate complaints unless supported by such evidence (10 CFR 19.17).
Fifth, on Mr. Lees' demand, Mrs. English brought          i evidence to him-on December 14, 1983, but he refused to accept      j or entertain it (Tr. 2437).
Sixth, on January 20, 1984, Mrs. English told Lees that    ;
if she could not get internal redress of her safety and quality complaints (which would have entailed shut down time at the cost of production (D&O, pp. 6-7,          ), she would take t
her information "to authority other than General Electric,"          j
_i . _e . , to NRC (Tr. 2423-2424, 2436-2437, C-15b (attached hereto g as Appendix D).
Seventh, Lees instructed her, on threat of severe      j disciplinary action, up to and including discharge, to bring        f l
17D&O 11, last quarter of par. "Mrs. English, as heretofore    l stated, knew that she could expect no credence to her complaints without tangible evidence. In demonstrating the malfeasance of others, she took the only means available to provide visible proof to support her past and immediate allegations.      Her demonstration of same was used as a pretext for retaliatory action, and by way of Respondent's motion it is also used as a basis to defeat her claim. To allow the latter would be patently unfair and defeat the purpose of the Act. This was not an act done deliberately to invoke " whistle blower" protection, rather it was a means of reporting violations, albeit unorthodox." (Emphasis added.)
 
I all of the evidence supporting her allegations to him18 and                                      I proposed, to "put it behind us and forget it" (Tr. 2436-7; C-15b).. This undenied " cover up" proposal betrays management's purpose, motive and objective -- to get rid of                                      ]
Mrs. English lest she observe and persist in exposing additional perceived breaches of safety and quality standards.                                  )
1 When Supervisor Lacewell and Mrs. English lef t this January meeting, Lacewell told English "to be very selective" about the information she turncd over. He said:    "If I were you I would not turn in all the information because you know they will destroy it." (Tr. 2438) (Emphasis added.)
Eighth, Mrs. English testified that in consequence of the severity of management's hostility against her, arising, at least in part, from her repeated and open insistence that t
Rad Safety and supervision knew that employees who used her table on other shifts caused visible nuclear contamination "on I
a daily basis" (Tr.                    ), and her threats to go to an "outside" agency (sixth, supra), she feared that management would do anything to' shut her up (Tr.              ).
Things came to a head on March 5, 1984, when, for the first time in years, after doing work at her table for about two hours, Mrs. English observed a " Rad Safety" man with a 18E nglish asked Lees' permission to bring him original data from the Chemet Lab in support of her charges. She was under
-  the impression that such data was private and privileged.
When Lees denied permission, English refrained from producing such data on the ground that its removal without permission, even to bring to Lees, might be used as a pretext for her discharge (Tr. 2424-        ).
39 -
 
G  e frisker in the Chemet Lab.                                        Considering this an opportunity to l
obtain tangible evidence in support of her previous complaints                                                                              i that Rad Safety was negligent and/or incompetent (Tr.
                  ), English asked the Rad Safety man to check her tab)e for contamination.                                    Mrs. English was aware that the Rad Safety man should find that her work table was contaminated with visible uranium powder because she had been working with vials visibly                                                                              i contaminated on the outside, from which contamination had i
unavoidably dropped to the table face in the course of handling, and from the tops of which uranium powder had i
escaped and dropped to the top of the table in the course of                                                                                l handling.                                    (Plaintiff's Statement of Facts, pp. 28-29).                              These unavoidable sources of contamination of table tops in the                                                                                  ;
i normal course of work are familiar to all who worked or had worked as testers in the Chemet Lab, including Supervisor                                                                                  )
Lacewell (Tr. 1732-1733).                                        Admittedly, these sources of contamination are not considered " spills" (Tr. 569):                                                            "a spill is something not done in normal course of work."                                              (D&O, p. 3,
: n. 3, 2nd par., Tr. 1076).
Mrs. English handled this contamination on March 5, 1984, as she had handled all such contamination in the past.
In the normal course of her work she brushed the contamination to the right rear area of her work table, against the barrier, to be removed at the end of her shift, meanwhile, lightly                                                                                  l wiping the work area immediately adjacent to her with a i
chem-wipe, and continuing her work (Tr..                                                      ).                  It was                  i i
l l
 
at this stage that the Rad Safety man approached, passed his frisker over the table top, and pronounced her table top
                                                      " clean," confirming Mrs. English impression of Rad Safety ineptitude. D&O, 3, n. 3, second par., D&O, 9, 2nd par., 1st sentence (Tr.              ). At the end of her shift she cleaned the entire table top of all' visible contamination (Tr.
                                                                    ).
Mrs. English's handling of that contamination was admittedly proper (Tr.                ; Plaintiff's Statement of Facts, 19-27).
Ninth, despite the fact that Mrs. English did nothing even arguably violative of any Company rule by asking the Rad Safety man to check her table top and by using his failure to find visible contamination thereon as corroborative evidence of her claim of Rad Safety incompetence or negligence, and despite the fact that GE did not assert to the ALJ or the Secretary of Labor that Mrs. English's conduct in that respect or any conduct on March 5, 1984, was a cause or reason for her
                                                      " banishment" from the Chemet Lab and from any job in a controlled area (D&O, p. 8, Brief for Plaintiff to ALJ, p. 71,
: n. 50), and for her subsequent discharge, GE left a " paper trail" proving that her embarrassment of management by proof    ,
of Rad Safety's incompetence and management's determination to l
prevent repetition of such embarrassment was, if not the only  l cause, at least a principal cause or reason for the l
l l
l
 
q-                  .
                                                                            " punishment"-(D&O, pp. 6, 10 (par. beginning " Additionally";
Plaintiff's Brief to ALJ, pp. 16-41).
                                                                                      'Then-Manager of Quality Assurance, later Plknt Manager, Lees (C-1, p. 9), on deposition, testified that on or about March 11, 1984, hedecided (id., pp. 35-36), on Manager Winslow's recommendation (id. , pp. 29-30), to transfer Mrs.
English out of the Chemet Lab (C-1, pp. 35-36).      Lees-instructed Subsection Manager Sheeley to draft a letter effecting the transfer and forbidding her to enter the Lab without permission (C-1, p. 37, Tr. 831a-b, e, g, h; C-Sa and b). Winslow testified that he drafted the letter "a day or two" before March 13, 1984.      Incidentally, Lees did not speak with Mrs. English between March 5 and the appeal hearing of May 1, 1984 (C-20, first sentence) (C-1, pp. 31-32) and neither. Winslow (Tr. 748-749), nor Sheeley (Tr. 831(h)), spoke with her before March 16, 1984, when Sheeley gave her the letter (C-Sa and b).
The letter dated March 15, 1984, which Sheeley drafted for Lees, charged five violations (C-Sa-b):
                                                                                          "l)  the unauthorized removal of the personal survey' instrument from the entrance to the laboratory, 2) the deliberate contamination of a table, 3) failure to clean-up the contamination knowing it existed, 4) the continued distraction of other laboratory employees and 5) disruption of normal laboratory activities."
It stated that " Radiological surveys are the responsibility of the Radiation Safety organization which is trained and equipped for these evaluations."      This implied that Mrs.
                                                                                                                  -  42 -
1
 
L
    .English's use.of the frisker to check suspected contamination, and her experiment with Rad Safety, was not within the scope-of her responsibility and privilege as an e'mployee and that her experiment designed to prove that " Rad Safety" was not
    " trained and equipped" to detect contamination and did not in fact do so, was improper because it was " subversive" of management's interests.
C-18, attached hereto as Appendix E, is a " private" letter dated March 13, 1984, from Chemet Lab Manager Winslow to Fuel Quality Manager Sheeley, countersigned by each of Mrs.
English's. supervisors, the last two paragraphs of which state:
It is extremely difficult for Supervisors and other lab personnel to work effectively with Mrs.
English's current continuous accusations, assertions, allegations, etc.- Of extreme concern is her direct actions to promote her concern.
First, removal of the personnel monitor from an assigned survey station without specific supervision approval and second, purposely contaminating an area which could potentially create hazards for others.
Her action may be bordering on being considered subversive and her relationship with Supervision and certainly her creditability (sic) for management is rapidly deteriorating. Consequently, it is imperative that specific steps be taken to reassign Mrs. English from the Controlled Area of the Lab to preclude any potential purposeful action                      I on her behalf to support her concerns.  (Emphasis added.)
In his sworn testimony, Manager Winslow reiterated that the reason he decided to remove Mrs. English from the Chemet Lab was because "she [took] deliberate action * *
* to try to indicate that the company is not credible in its investigation and its findings, and she is deliberately trying to discredit i
4 I
 
r ..                              ,
the on-going activities of the operation."            Brief for Plaintiff to ALJ, pp. 11-12, incorporated herein by reference.
This is the closest GE came to admitting that the real
* reason for the transfer was that management consicerad Mrs.
English's " direct actions to promote her [ safety, health and quality control) concerns," i.e., her attempts to obtain and preserve proof of violations, " subversive" of management's interests.        (C-18, p. 2, last par.).
Tenth, Lacewell and Winslow admitted that what Mrs.
English did in placing red tape around the spill on March 9 and leaving it there through March 11, was no violation!            (P.
Memo to ALJ, pp. 35-36; Complainant's Reply Brief to S.O.L.,
: p.      26).
Eleventh, Supervisor Lacewell agreed to write a letter                                      j l
exonerating Mrs. English from all the charges set out in Mr.
Sheeley's letter of March 15, 1984 (Exh. C-15(d)(1)-(2).            He reneged when Messrs. Winslow and Davis instructed him not to                                            j (Tr. 2444, 1724-2426, 1768-1769; Plaintiff's Brief to ALJ, p.
45-47; Complainant's Reply Brief to S.O.L., pp. 30-34).
                                                                                                                                              )
Twelfth, Supervisor Lacewell asserted and insisted that he had made and provided Mr. Winslow (Tr. 1677-1678) with virtually contemporaneous notes of his conversation with Mrs.
English on March 11, made on March 12, 1984.              GE did not produce those notes, albeit under instructions from the ALJ to do so if they were extant (Tr. 1095-1106; Plaintiff's                                                      l 1
l l
 
1 i
l l
l Statement of Facts, pp.19-29, Plaintif f's Brief to ALC, pp.        l l'
Thirteenth, in marking the found contamination with' red      i tape on March 9, 1984, and preserving it to show Per supervisor on March 11, Mrs. English f ollowed what she understood to be a Company policy. Plaintiff's Statement of Facts, pp. 30-34.
Fourteenth, neither Messrs. Lees, Long, Winslow, Sheeley nor any of the supervisors actually investigated any of the events involving Mrs. English or other offenses pertaining to contamination assertedly because "it was not a question of what really happened; it was a question of what had been communicated [by Lacewell]" (Tr. 749, Br. for
      ~ Plaintiff to ALJ, pp. 26-27. This failure to investigate was in violation of the Company's own rule (Exh. C-12a, p. 49, attached hereto as Appendix F; C-12b, p. 1, 2.2., attached hereto as Appendix G:  " Prior to taking action which would result in disciplinary time off or discharge, the circumstances must be reviewed with Employee Relations to assure a thorough review of the facts and plant-wide uniformity of disciplinary action."    (Emphasis added.)
Failure even to interview Mrs. English, or to investigate her claim that others were responsible for the incessant contamination of her work place, " failure to follow acceptable work habits" (C-12(b), p. 5, Rule 3.7.7), and Davis' refusal to reveal the identity of her accusers (although known to
 
_m; '.-
  )
him), confirms that Winslow's seizure upon Lacewell's hearsay version of what Mrs. English had allegedly communicated was l
wilfully pretextual.      Consolidated Edison Co. of N.Y.,'Inc. v.
Donovan, 673 F.2d 61, 64 (1982)..
III. THE ALJ-CORRECTLY FOUND THAT GE " FRAMED" MRS. ENGLISH ON A PRETEXT.IT HOPED WOULD " STICK" (D&O,  p. 10)
The penultimate paragraph.of the letter quoted above describes two acts of Mrs. English as of " extreme concern," rendering her removal from controlled areas of the
            . lab ' imperative . "  But, neither in the letter which Sheeley drafted for Lees (Exh. C-Sa-b), attached heret.o as Appendix H, nor in the letter to Mrs. English (C-20, attached hereto as Appendix I), nor in its explanation to the ALJ or to the Secretary did GE refer to four of these these alleged actions of Mrs. English as the reason (or even a reason) for the
            " banishment" or discharge. Complainant's Statement of Facts, pp. 19-27; Complainant's Brief to ALJ, pp. 44-47; Complainant's Reply Br. to S.O.L., pp. 27-31, 32-34,.both hereby incorporated herein by reference.
The charge of " unauthorized" removal of the frisker was admittedly dropped on appeal, but not because, as the letter pretends, removal "may actually have been authorized by Mr.
Lacewell."      It was . oped because, as Lacewell testified and the ALJ found ( pr.0, p . 5, 1st full par., last two sentences),
Lacewell to35 hinslow on the morning of March 11, 1984, that he had in fact authorized Mrs. English to use the frisker l
i
: a.        .
without any jimitation on the day'inLquestion (Tr.
                                    ) '.
g                                            The second allegation was dropped'because management 1-knew, as Mrs. English at all times insisted, that it was not she but other.a who had " contaminated [the] area" of the table
                                                                                                                              ~
legs and floor thereby "potentially creat[ing) hazards for L                                others."        (D&O, pp. 4-5, 11 ("In demonstrating the malfeasance of others").
Yet, Mr. Lees, who was responsible for Mrs. English's
                                  " banishment" admitted in his letter of March 15, 1984, that he had predicated " banishment" at least on 1 and 2 (D&O, p.-5).
On deposition Lees admitted that neither he nor anyone else in GE had ever considered whether banishment was too severe a remedy, assuming charges 1 and 2 were unsubstantiated.
GE's only asserted factual defense against-these findings was that Mrs. English was paranoid with respect to safety concerns and would stop at nothing to frame management-for wholly imaginary violations (D&O, pp. 7, 8-9; Plaintiff's-Brief to ALJ, pp. 44-48; Reply Brief for Complainant to S.O.L., pp. 27, 28-34, incorporated herein by reference).                                    The ALJ found that this fear "may be logical if management's view of [Mrs. English's] personality is accepted" (D&O, p. 9, second full par., penultimate sentence), but, for the reasons and on the evidence recited (D&O, pp. 8-10), he totally rejected GE's alleged view of Mrs. English's personality, and found that Mrs. English was competent and sincere (D&O, p. 8) l
 
:s
* I L                                                          and that management's alleged view was "belird [ inter alia) by
[GE's) inertia in regard'[to) repeated violations of safety rules'by other employees" (D&O, pp. 9, 10); complainant's Reply Brief to S.O.L., pp. 1-27, incorporated herein by j                                                          reference.
A.-  The ALJ Correctly Found That Mrs. English Did Not Deliberately and Willfully Violate The Company's Alleged "Immediate Clean Up Rule" GE asserts (Response 1), that petitioner "by her.
own admission deliberately and willfully violated" the alleged immediate. clean up requirement. Again, GE asserts.(LS., 3, 4), that Mrs.'English " repeatedly admitted that she deliberately and willfully violated GE safety, standards, thus endangering not only her own health and safety but the health and safety of other GE employees."    GE cites not a' scintilla of evidence other than the alleged'" admissions."    Not a syllable in the allegedly supporting record references to
                                                          " admissions" even remotely suggests that Mrs. English admitted that what she actually did violated (much less " deliberately or willfully" violated) GE safety standards, or endangered her own er any others' health and safety.      Moreover, GE falsely            )
asserts (Response, p. 10) that "the ALJ recognized that English deliberately violated * * *" (ALJ Decision, pp. 10, 11, 13). The truth is exactly the opposite. The ALJ said
  .                                                        (D&O, p. 11),  "I do not consider that '' s. English deliberately caused a violation under the circumstances of this case."    (Emphasis added.)
i
 
9 ,
    .          What is undisputed, but unmentioned by GE, is that the spill on the legs of her table which English attributed to others but admitted she " deliberately lef t there" on March 9, l      1984 (Response, 4, n. 3), had been deliberately o'. negligently l
        -- in total disregard of the severely adverse effects on Mrs.
English -- placed there by other workers using the same work place on a shift or shifts other than her own (D&O, p. 6);
that Mrs. English unswervingly, from beginning to end, 1
insisted that she had been taught by GE to mark such spills, for which others were responsible, with red tape to warn others of the danger and to report the matter to supervision as soon as feasible (Tr.          ; Complainant's Reply Brief to S.O.L., pp. 24-34); her credible testimony was not competently denied. Thus, far from admitting that she deliberately or willfully violated any safety rule, Mrs.
English acted on the assumption that her conduct complied with GE's rule and policy (D&O, p. 11).        Moreover, as Mrs.
English testified and the ALJ found (D&O, p. 11; Tr.
                  ), Mrs. English " knew that she could expect no credence to her complaints without tangible evidence" (D&O, pp. 4-5), and thus, " retention was the only means available to provide visible proof to support her past and immediate allegations" (D&O, p. 11). GE does not deny this. Mrs.
English's good faith and the validity of her contention that she committed no violation of any rule by f ailing to clean up the spills of others is established by the fact that Mrs.
1 1
English promptly and voluntarily pointed out what she had done, and reiterated her refusal to clean up such spills, to her regular supervisor, Lacewell, as soon as he appeared on Sunday evening after a week's absence, while the red tape and the contamination were admittedly still chere.        (D&O, pp. 4-5, >
11).19 Most significantly, even though he admitted that Mrs.
English told him about leaving the contamination of March 9, surrounded by red tape, Lacewell did not claim that he then advised Mrs. English tnat she had violated a Company rule (by so leaving the contamination, indeed he admitted he thought she had done nothing wrong (Tr.                    ), and did not instruct her to clean up the contamination she had left surrounded with red tape.      Thus, both the undenied testimony of Mrs. English and Lacewell's silence disprove GE's claim that Mrs. English violated, much less that she " deliberately and willfully" violated, GE's rule.
Indeed, Lacewell's narrow denial that Mrs. English
          " pointed out the contamination surrounded by red tape, or seeing the red ta?e" (D&O, p. 5,  second full par), is not credible, because it irrationally assumes that Mrs. English had abandoned the very purpose for which she had preserved the contamination    - to show it to Lacewell when he arrived.        It 19A ny " ambiguity" or " confusion" in the GE documents Mrs.
English relied on (D&O, p. 5, n. 4), must be construed against GE as the draftsman of those documents.        On the other hand, the documents must be read in the light of the oral instructions Mrs. English testified (Tr.                ) without contradiction, she received when she came to work.
1 l
i
 
is reasonable to ascribe Lacewell's narrow denial to his self interest in attempting to evade responsibility for his own failure to investigate who was responsible for so contaminating the table, and ordering the contamination removed.          (Cf. D&O, p. 6, last portion of long par; p9, second full' par., last sentences; p. 11-("Once the matter was brought
                                                                    .to a'ttention of management, an order should have issued to clean the stain.          At least the Radiation Safety man should have been called in *          * * . ")
 
However, the fact is that on GE management's'own testimony, GE did not, and it could not have, banished Mrs.                        !
English from the Chemet Lab and laid the groundwork for her subsequent discharge because of her alleged breach of the rule requiring immediate clean up of contamination, assuming,                            q arquendo, that she did breach that rule on March 9 through 11,                      i 1984, as GE finally, but belatedly, contended (Response, pp.
3-5). The reason is that Winslow, who drafted the memorandum to Sheeley on which Sheeley's letter to Mrs. English of March 15, 1984, was based, concurred with Lacewell (Tr.            )
in testifying that Lacewell did not mention contamination on the legs of Mrs. English's table, which she failed to clean up                      l but instead surrounded with red tape (the belatedly alleged breach of GE Rule 6.1.0), until a " couple of weeks" after Winslow drafted C-18, on or about March 13 (Tr.
793(a)-793(e)).20 B. The Record Supports the ALJ's Material Findings GE argues (Response, p. 17), that "the ALJ was simply wrong on the facts when he found that Mrs. English's                        i removal from the Chemet Lab was prompted by GE's annoyance and embarrassment at the supposed wholesale disruption in the 1
  ,                  20The ALJ observed: "if it was done [i.e., reported) afterwards, how could it have anything to do with the letter?
(Tr. 739(e)). Thus, GE's own testimony belles its assertion that it was "as a result" of her leaving a contaminated spill, in alleged violation of GE rule, on March 9-11, that she was disciplined (Response, pp. 5, 7).
w________________-_-_-____-_. _
 
fc                                                                                                                        j
    .'. 3' n          Chemet Lab caused by the investigation of Mrs. English's February,1984 NRC complaints."      GE's argument is that the filing'of those NRC complaints and consequent NRC inspections could not have been responsible for "GE's annoyance and embarrassment" because GE assertedly did not become aware of Mrs. English's complaints until "sometime after the week of March 26, 1984, after Mrs. English had been removed from the Chemet Lab on March 16, 1984" (Response, p. 18).                                          Cf.
Mackowiak v. University Nuclear Systems. 735 F.2d 1159, 1162, 1163 (9 Cir., 1984). But, even assuming arquendo, and contrary to fact,21 that.GE did not learn of the filing of Mrs. English's February, 1984, complaint until March 26, 1984, the ALJ's error is immaterial.
The reason is that GE admits (Response, p. 44), that Mrs. English had "not hesitated in the past to make numerous safety complaints to NRC and GE," and documentary admission confirms that Mrs. English in January, 1984, had threatened, if her complaints were not rectified, to take her complaints to "outside authority," i.e., NRC, supra.        (Plaintiff's Exceptions, pp. 65-71, 98; Complainant's Reply Brief to                                                        I i
S.O.L., pp. 23-24; Tr. 1313, 1315, 1324).      Where animus against filing charges exists, it is enough to establish discriminatory motive that the employer suspects that the                                                      l
  ,            21I n a small plant like GE's, in a small (indeed Company) town, like Wilmington, North Carolina, the law presumes that                                                  l management learns quickly about what it considers anti-Company activity, such as the filing of a complaint by an employee                                                    ,
against the Company with NRC.      I Morris, The Developing Labor Law, Second Ed., 1983, p. 194, n. 80 and accompanying text.
l
 
9                          O employee "[is]-aboutfto-file a charge * * *."      1 Morris, The-1 Developing Labor Law (Second Ed., 1983), p. 258 and cases-cited at n. 457. Moreover, Winslow admitted that Mrs. English had been' considered " subversive for some time" (Tr. 765)..
In chort, it makes no difference whether the reason for management's annoyance and embarrassment was "the work disruption caused by the NRC investigation of her safety complaints" (Response, p. 18), because the " paper trail" and the admissions of GE's managers on deposition and at trial adequately. establish the predicate for inference that management was upset by, resented and feared the consequences of Mrs. English's discovery and complaints about safety and quality violations; that GE considered her ex'posure'of management's misconduct " subversive," and that management determined to avoid such " subversive" conduct in the future by removing her from the Chemet Lab and all controlled areas.
Brief for Plaintif f to ALJ, pp. 10-13. As shown by Plaintiff's Exceptions to the JLJ 's Repor t, supra, plaintiff excepted to the aforesaid ALJ subsidiary findings and to his failure specifically to find that GE's management's fear and resentment arose from the fact that Mrs. English preserved evidence of and would not remain silent about her safety and quality " concerns" and therefore determined to remove her, first from the Chemet Lab and later from the entire plant, in
      ,                                                reprisal. Nevertheless, the ALJ's conclusion is consistent with plaintiff's theory:      the ALJ found that GE determined to
                                                                                                                                                                                                                      )
- - - - _ _ _ _ _ _ - - _ _ - _ - _ _ - - - _ _ _ _                                                                        i
 
    .            1.
l o
E                                                                                                                                                        i
                      " rid itself" cf Mrs. English because she would not stop reporting violations.co.NRC (D&O, p. 10).
GE further' claims (Response, pp. 18-20) that the ALJ.
                      "made an even more critical error" in. relying upo.1 tae                                                                          i i
                    . undisputed fact that Mrs. English "was the only person ever removed from the1 Chemet Lab for failure to clean up                                                                                I contamination" (D&O, p.                                                  6, second full par., sentence in                          !
middle of par.).22                                                    GE claims that there are two flaws in the ALJ 's reasoning that "English was disparately punished."                                                                        l The first is that "English's removal from nuclear-sensitive areas was a ' disciplinary' matter.                                                    It was not" (id.).                                      That denial is predicated upon now dividing the suspeasion from the banishment and claiming that the former was the only " punishment," while the.latter was " deemed a necessary safety precaution prompted by management's fear that 22The Response (at pp. 18-19), deliberately truncates the ALJ's finding, asserting that the ALJ concluded; that other GE employees who had failed to follow safety rules were similarly removed from their job.
(ALJ Decision, pp. 6, 9-10).
GE would thereby misdirect attention from the ALJ's finding that those who had deposited the uranyl contamination at Mrs.
English's workplace were the ones responsible under GE's rule, properly and logically construed, for cleaning it up (D&O, p.
9, second full par., last sentence; p. 10, (a) and (b)), and                                                                        i focusing entirely upon the analogy, also drawn by the ALJ, to failure to frisk violations (D&O, p. 10 (c), and n. 6).                                                      In the fo6. pages (Response 18-22), designed to distinguish failur                                        tt: fri.2 violations from English's failure to clean up contamination, GE refers to the other employees -- who both deposited the uranyl contamination and failed to clean it up
                    -- as being guilty only of " untidy housekeeping" (Response, p.
21).
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  .. .                                                                                  1 English might go to even more dangerous lengths in the future to support her safety complaints" (Response, p. 20).
This is a belated, fabricated, afterthought, which was                4 l
never even suggested to DOL. In seizing upon and thus                      j 1
transforming the explanations for the banishment. offered in testimony long after the event by'a supervisor and the manager of the Chemet Lab (Response, p. 20), GE overlooks that Lees earlier admitted on deposition that it was he who ordered banishment as punishment for Mrs. English-at a time when ne thought she had deliberately contaminated her work table, supra, an offense obviously more " serious" than mere failure to clean up. See also Winslow testimony (Tr. 739(b)-739(h)).
GE also overlooks that the Under Secretary of Labor explicitly and repeatedly found that all of the " action" taken              i by Mr. Sheeley on March 15, 1984, was " disciplinary action" (Response, App. A, pp. 3,  6, 7-8). Moreover, neither the ALJ nor the Under Secretary could possibly have found otherwise because the Sheeley letter, delivered to Mrs. English on March 15, 1984, was captioned "
 
==Subject:==
DISCIPLINARY ACTION."
Exhibit C-5(a) (Appendix H, hereto), supra.      Indeed, that document asserts that because " deliberate contamination and failure to clean up promptly" is so " serious," " disciplinary action", is required:  "a mere warning is not sufficient" (Id., p. 1), and "your unprecedented disregard of safety rules demand that you will no longer be allowed to work in a controlled area."  (Id., at 2; emphasis added) .
e                      .
In the context of GE's parity of treatment argument, it must be emphasized that although Mrs. English was subsequently exonerated of the frisker and " deliberate contamination" charges, and was found to have violated only one rale, those workers who were guilty of both offenses (contamination and failure to clean up) were not even warned!
Indeed, GE's attempt to explain and justify the banishment and subsequent discharge (ignoring the hostility)                                  i as prompted by " management's fear that English might go to i
even more dangerous lengths in the future to support her safety complaints" (Response, p. 20), is belied, inter alia, oy the admissions of two officials under oath (supra), that the " lengths" to which Mrs. English had previously gone were not violative of any GE rule.    (Plaintiff's Memorandum to ALJ in Support of Motion for Award, pp. 31-40) 23    Because the effect of banishment and discharge for what Mrs. English did is to preclude exercise of employees' Section 210 right to inform authorities (internal and external), of perceived employer violations, the " fears" asserted at Response, p. 20, are no more lawful predicates for discipline than the ancient,                                ,
long- outlawed Star Chamber offense of " imagining the death of the King.a24 Moreover, GE's attempt to distinguish between
                                    " disciplinary" and " precautionary" measures in this context 23A ccording to both Lacewell and Winslow, Lacewell did not even mention to Winslow before the 15th that Mrs. English had                                  j preserved the stain or placed red tape around it (Tr.
739(c)-(d)).
24 GE's attack on English's rationality and credibility Footnote Continued
: 6.                                                D-(Response 19-21) is frivolous.                  It is universally recognized that " punitive" measures are designed to deter future violations,.as well as to exact reprisal for past violations.
Thus, if GE " discriminated" against Mrs. English "in practically any job-related fashion" (DeFord v. Secretary of Labor, 700 F.2d 281, 286 (6th Cir., 1983), for any form of protected activity, it is no defense that the employer may have feared that in the future the employee's legitimate                      ,
l safety and quality concerns might lead her to engage in i'
non-protected conduct.
Secondly, GE faults the ALJ for failure to distinguish between English's alleged violation and others' because her violation was allegedly " deliberate," whereas the others were                l assertedly merely " unthinking," " careless" or " negligent" (Response, pp. 19-23, 24). But although state of' mind is-admittedly (Tr. 755) a question of fact (Alkens case, supra, 460 U.S. at 716-717), GE did not seek to adduce the testimony of even one violator (of any rule; failure to frisk or otherwise) to support its present characterizations of their state of mind.
Thus, even assuming, as GE argues (Response, pp.
20-22), that a distinction based on state of mind may be l                                                                                    . legally relevant in differentiating the degrees of punishment imposed on various categories of violators, GE's characteri:ations are entirely hypothetical and i_
Response, p. 20, n. 13, was answered in Plaintiff's Reply i
Brief to the S.O.L., pp. 1-28, 43-44.
l
                                                                                                                                      - se -                            1
 
  .. o 1
supposititious; they are not based upon even a scintilla of      I i4 record evidence with respect to the state of mind of the other    !
1 violators. As an affirmative defense to-the disparity of      )
treatment finding, the burden was on GE to produce e"idence of the state of mind of the other individual rule violators (D&O, third full par.; Standard Products Co. v. NLRB, 125 LRRM 3246, 3250, n. 3 (4 Cir., 1987) (burden of proof of parity of treatment of employees similarly situated on the employer);
cf. Mackowiak, supra, 735 F.2d at-ll63-1164, D&O, pp. 9-10.
GE also argues (Response, n. 12, p._ 19):
It was especially inappropriate for the ALJ to find that GE's safety concerns.regarding English's violation were belied by the Company's-response to employees' failure to frisk before leaving the Chemet Lab. During'the hearing before the ALJ, GE tried to adduce testimony regarding steps the Company had taken to deal with this problem, but the ALJ ruled such evidence irrelevant and refused to permit the testimony. See Tr. 2094-2098.
The assumption (Response, text accompanying footnote 12) underlying tne first sentence is that employees who left the Chemet Lab without frisking did so "unthinkingly."    But the ALJ destroyed that argument when he observed that, as he read NRC inspection report, C-37, 84-04, p. 6, there is "a strong    ;
inference" (Tr. 754) that at least one individual had omitted frisking " intentionally" and  " deliberately" (Tr. 756).
The second sentence of the footnote, relating to " steps the Company had taken to deal with this problem," pertained exclusively to expenditures of money the Company had made to facilitate frisking, not one word was offered as to punishment l>
of anyone for failure to frisk in violation of the rule.
That, as the. record references in the Response themselves show, was the reason the testimony was excluded as' irrelevant.
Moreover, GE's implication that failure to monitor oneself after leaving the Chemet Lab has little or no health and safety implication is refuted by the unrebutted testimony of Dr. Kenneth Mossman (Tr. 1362-1365, 1369-1373).
IV. GE' S ATTACK UPON THE SOCI AL ,VALUE OF MRS. ENGLISH'S GOOD FAITH CONDUCT STANDS THE POLICY OF CONGRESS ON ITS HEAD It is GE's argument that an employee, like Mrs.
English, who preserves evidence of perceived safety violations in order to support her good faith complaint that her nuclear employer is engaged in safety violations is " misguided" (Response, pp. 21, 24), and its repeated application to such employees of the pejorative -        " vigilante" -- (id., pp. 21,      j 22, 29), which turns Congress' policy "on [its] head" (Response, p. 24).25 GE builds its perverse argument on the premise (Response, p. 27) that " employers * *
* are * *
* expected to comply with safety requirements."        Section 210 and its legi3''''"o "'      ; i' e:xca ; rate that this is demonstrably untrue. Congress clearly expected that in the interest of profits, nuclear employers would not comply with safety requirements, but would act to cover up non-compliance.          In 25This case belies the representation (Response, p.        44), that GE " actively encourages its employees to speak out about safety concerns."
e ,.
such cases, usually.only employees would'be aware of or
                                  -knowledgeable about such~ concealed mis' conduct, since NRC's detection facilities were inadequate, employees mist be encouraged to become the " eyes and ears of the NRC" in-apprehending and reporting perceived uncorrected violations.
The proclaimed purpose of S 210 is "to encourage employees and union officials [to) * *
* help assure that' employers do not violate requirements of the Atomic Energy Act."      S. Rept. No.
95-848, p. 29.
Far from " misguided," the efforts of employees to expose what they in good faith perceive to be uncorrected employer safety and/or quality violations, Congress.thus deemed indispensable to effective enforcement.      In contrast to the pejorative'" vigilante," Congress considered the role of employees in exposing and attempting to prove employer violations to be the most honored and valuable role of
                                  " private attorneys general" whose so-called " vigilantism" was to be encourage and rewarded. Brief for Plaintiff to ALJ, pp.
1-10. Indeed, in 5 210, Congress merely applied and gave additional statutory protection to the Constitutional right of nuclear employees to " inform of a violation of law" (In re Quarles, 158 U.S. 1080, 1081 (1895), by their employer.      As stated in Quarles, supra, at 1082, "it is the duty of * *
* government to see that he or [shel may exercise this right f reely * *
* in the interest of * *
* the government itself."
 
r-Congress understood that management would regard such whistleblowing as " disloyal," i.e., " subversive."                                          But it
                                                                                                                        ~
subordinated management's interests to the employees' and the public interest in exposure of nuclear employer lew' breaking.
What GE derogatively terms " vigilante," the Ninth Circuit properly termed " legitimate activism."                                          Mackowiak, supra, 735 F.2d at 1165.
V. GE'S WOODEN MISCONSTRUCTION OF S 210(g)
WOULD ENABLE NUCLEAR EMPLOYERS AT WILL TO REPEAL S 210 GE asserts that even if preservation of the " stain" left by employees on prior shifts was, as the ALJ.found, "the only means available to provide visible proof to support her past and immediate allegations" (D&O, p. 11), if such preservation, surrounded by red tape, was deemed by management to violate GE Rule 6.1.0., it justified, or even compelled, under Subsection (g), " banishment" and discharge,                                          Response, 13, 16, 22, 23-30.                                        Thus, GE argues that subsection "(g)"
                                                                      "withdr[elw from those who do not comply with any nuclear employer safety regulation protection that would otherwise exist ur. der the ERA. "                                      (Response, p. 28). It asserts that (id. 24):
The language and policy behind ((g)) show that GE responded properly, and * *
* the ALJ's contorted    J construction of 210(g) would turn the rules governing nuclear safety on their head.
GE's argument simply ignores the legislative history 1
which authoritatively reveals that the " language and policy" of                  "g" is far narrower in purpose than the blanket deprivation of protection to all whistle blowers who (even necessarily, in l
l
_ _ _ _ - - _ _ _ _ _ - _ _ - _ _                                                                  _                                                      l
 
w                        .,
order to exercise their right under 5 210, violate any NRC approved Company rule without employer permission. Senate Report No. 95-848, p. 30, expla' ins that:
In order to avoid abuse of the prctection afforded under this section, the committee has added a provision ((g)] which would deny its applicability to any employee who, without direction from his employer, deliberately violates or willfully contributes to a violation of any standard, requirement, or regulation under the Act.
(Emphasis added.)
In short, subsection (g) was added in response to the problem posed not by employees who report safety violations in
                                                " good faith" -- even the most restricted reading of 5 210 recognizes that 5 210 must and " clearly does protect an employee against discharge for filing                            ,
complaints in good faith before federal and state                            1 agencies and for registering grievances through channels appropriate in the particular employment setting.  (Emphasis added.)
Hochstadt v. Worcester Foundation, Etc., 545 F.2d 222, 231 (1 Cir., 1976); D&O, p. 11, n. 8. Subsection (g) was added to prevent perversion of 5 210 by employees who would misuse that protection in bad faith, i.e., by attempting to gain immunity
                                                .to merited discharge for other reasons by themselves breaking
                                                                                                                                          )
a valid rule or policy, reporting the break anu then claiming that the discharge resulted not from the independent cause but from their report of the break. In short, GE not only impermissible disregards the narrow purpose of (g) as established by the legislative history, but the fact that courts had already become familiar, before (g) was enacted, l
with the tactic resorted to by some bad-apple employees of perverting the whistleblower protection of analogous statutes.
63 -
 
t Br. for Plaintiff to ALJ, p. 14, quoting Fidell &' Marcoux, The Nuclear Industry Employee Protection Provisions of Federal Law, Public Utilities Fortnightly (Nov. 11, 1982), p. 5:                                                                                        ;
The Labor Department and the courts are ,amiliar with the chronic malcontent who will make a safety complaint more out of an effort to save his job than to ensure public safety.
Of course, GE cannot confront the actual purpose of (g), because the ALJ found, supra, that not only did Mrs.
English act in " good faith" but that there was no cause for her discharge other than her " protected activit$ " and that                                                      .
I she did not " deliberately" violate Rule 6.1.0.
GE's overbroad reading of(g) also violates legal principle for yet another reason.                                            It is uniformly. recognized that the federal whistle-blower acts share a broad, remedial-purpose of protecting workers from retaliation based on their concerns for safety and quality.
Mackowiak, supra, 735 F.2d at 1163; Br. for Plaintiff to ALJ, i
                                  .pp. 3-10.      Thus, in effect, if not in form, (g)-is a proviso to 5 210, and, as an exception, must be narrowly construed to effectuate the " primary purpoce" or 5 210.                                                                Whirlpool Ccrp. v.
Marshall, 445 U.S. 1, 13 (1980); Crescent Express Lines v.
U.S.,  320 U.S. 401, 409 (1943); FBI v. Abramson, 456 U.S. 615 (1982).
Moreover, as the ALJ noted (D&O, p. 11), GE's construction "would be patently unfair and defeat the purpose of the Act."          As for unfairness, the ALJ observed (id.), GE "would have Mrs. English continue to abate violations caused j
_ __  _ _ - _ - _ _ _ - - _      --  __--    _ - - - _ _ _ - _ _ _ _ _ _ - _ - - _ _ . _ - - _ _ _ -            _ - _ - - _ _ _ _ _ _ .                        -_____ _  Y
 
p.-
t                              .-
by others'-- namely to continue to clean up contamination left by employees on prior shifts in violation of NRC requirements."      ,
As to defeating the purpose of the Act, any employer could make it impossible.for any employee to exercise tae    ight guaranteed by 5 210 by adopting a rule' requiring employees to 1
abate. violations caused by others and coupling that rule with          )
                                                                                                                                                                                    )
refusal to entertain or investigate any complaints of violation "without tangible evidence" (D&O, p. 11). For additional answers to GE's  "g"  argument, see Br. for Plaintiff to ALJ, pp. 70-80, Complainant's Reply to Respondent's Motion to Dismiss and/or Motion for Summary Judgment, filed Oct. 31,          f 1984, and Complainant's Reply Brief to S.O.L,, pp. 27-44, i
showing, inter alia, that since the contamination Mrs. English confronted on March 9, 1984, was a " stain" and not a " spill" (D&O, p. 11), cf. Response, pp. 5, 7), Rule 6.1.0 was i
inapplicable. Complainant's Reply Brief to S.O.L., pp. 32-34..
GE also berates the ALJ for describing Mrs. Engl'ish's preservation of evidence supporting "her past and immediate allegations" as " unorthodox."  But GE ignores that she was compelled to resort to that method by GC's refusal to pay any attention whatsoever to complaints which were not supported by
                                                                                                            " tangible evidence" (D&O, p. 11). Thus, as the ALJ found (id.), GE left Mrs. English no alternative but to forego exercise of her right and duty to report to management violations caused by others, or to preserve the only tangible evidence thereof, thereby rendering herself liable to a charge of violating Rule 6.1.0, as management thereafter, for the 1
 
r M. ,
n.
first time, asserted that it so construed that. Rule.                                                                  As the b                    ALJ properly held: "GC cannot have it both ways" (D&O, p. 11).
VI.. THE SECRETARY OF' LABOR'S CHALLENGED "NO CONTINUING VIOLATION"' DECISION IS INSUPPORTABLE We have fully answered GE's statute of limitations L
argument (Response, pp. 37-41), in Appendix A, attached' hereto..
It is necessary to add only that by its own quotation from the Secretary's opinion,' Response, pp. 37, 41, GE demonstrates the i
utter legal untenability of the Secretary's theory, namely~                                                                                          l
                    -that only one alleged violation of Section 210 occurred in this case.. Assuming that mere notification of a decision to discharge.at a future date may be treated as one and the same as a-discharge, when the discharge is the " inevitable consequence" of the notice, it cannot be'so treated where, as                                                                                        ,
i we have shown on brief, it was not so here.                                            Moreover', as we have'shown, where the notice is coupled with a discriminatory transfer, the transfer and the subsequent discriminatory discharge (to say nothing of prior and subsequent acts of hostility) cannot legally be collapsed.into one, single, act.
That is proven by the 9th Circuit's decision in Mackowiak, supra, 735 F.2d at 1162:
that UNSI discriminated against Mackowiak by giving him  Confidential Counseling Statement, by transferring him to less desirable employment, and-by discharging him ahead of less senior inspectors.
The most recent Court of Appeals decision on point                                                                                                  i
                          ~
demonstrates the error of GE's argument (Bruno v. Western Electric Co., 44 FEP Cases 1419, 1421:
 
p'4:'. , g 1'                                                                      .
i The continuing' violation can be either a company-wide policy of discrimination or.a series of related acts taken against a single individual.
l          It is not true, as GE argue's,.that each of the discriminatory acts against an individual must itself be "continairg" (Response, pp. 38-39, 40); it is enough that each of such acts, although complete in themselves, be "related."
Respectfully submitted, n
(                                                          ]*  'hWW 1M ANTHONY Z. ROISMAN 1401 New York Avenue, N.W.
Washington, D. C.                                                  20005 Of Counsel:
MOZART G. RATNER Mozart G. Ratner, P.C.
5225 Wisconsin Avenue, N.W.
Washington, D.C.                                            20015
 
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Hugh L. Thompson, Jr.
Director Office of Nuclear Material Safety and Safeguards-                                                                                      ;
U.S. Nuclear. Regulatory Commission                                                                  !
Mail Stop SS-958                                                                                          l Washington, D.C. . 20555 1                    '
 
==Dear Mr.:==
Thompson:                                                                                      i Enclosed please find the General Electric Company's reply to Vera English's latest pleading which she filed in support-of her " Petition for Enforcement Action." Copies of the reply have been-provided to the persons noted on the attached service list.
Sincerely,          ,,
                                                                      /
l  ,f                                d s .' a w .... -
Thomas A. Schmutz l
Enclosure l
i l
l l
l i
[-
c
 
,,r                            o RESPONSE OF GENERAL ELECTRIC COMPANY TO VERA ENGLISH'S REPLY IN SUPPORT OF SECTION 2.206 PETITION General Electric Company has carefully reviewed the Reply of Vera English in support of her Section 2.206 petition and believes that a response is warranted in only three areas.                    First, as to the legal issue of whether GE can be held liable for a " con-l tinuing violation" based on English's removal from the Chemet Lab, English has so distorted the concept of a continuing viola-                                  ;
tion that a response is plainly in order. Second, properly recognizing that the unadopted ALJ decision cannot itself form the predicate for NRC action, English has set forth numerous fac-tual contentions allegedly supported by the DOL record.                                In doing I
so, however, she so misconstrues and misrepresents the actual facts that GE feels compelled to correct her most egregious misstatements. Third, and finally, GE believes that a brief com-ment is required to show why English's contorted construction of Section 210(g) of the Energy Reorganization Act (" ERA") would render that provision meaningless.
A. GE's Transfer of English Could Not Constitute a Continuing Violation Without reference to any legal precedent, English continues to press her shopworn claim that her transfer by GE, if found to violate Section 210, constitutes a continuing violation.                                  English
  .                              makes this claim despite the fact that the Secretary of Labor expressly and correctly found that GE's actions, even if unlawful, would not constitute a continuing violation.                    See NRC and judicial decisions cited at pp. 37-41 of GE's earlier sub-
 
\                    z mission to the NRC. See also GE's.brief to the Fourth Circuit in English's appeal of the Secretary's decision, a copy of which accompanies this Response.
English dismisses the Secretary's decision as well as the clear holdings of the courts on the basis that:
In contrast with a discharge which is not, by itself, a " continuing violation" for statute of limitations purposes, every day that a discharge remains unremedied is a " continuing violation" or a separate offense for remedial purposes.
Eng. Reply at 23. In support of this novel proposition, English, not surprisingly, fails to cite any legal precedent, but instead bases her conclusion on the following " logic":
: 1. That English, soon after her layoff by GE, claimed that G3 violated Section 210.
: 2. That GE, in order to contest her claim, was required to " compensate" her, subject to                j recoupment;_ and                                        i I
: 3. Having failed to compensate her prior to con-testing her claim, GE is guilty of a continuing violation.
                                                                                          )
I This makes no sense. The very notion that an employer      1 i
can avoid a finding of " continuing violation" only by fully compensating an employee who merely claims a violation of Section 210 is preposterous on its face. Neither the ERA nor any 1/  In her Reply, English makes the astonishing suggestion that she should have been offered back and front pay shortly after layoff, subject to recoupment if her claims of wrongful termina-tion were found to be groundless. According to English, had GE taken this course of action, no continuing violation could be found.
I 1
I
 
n i other stat $te, rule, regulation, or principle of law requires, or could require, an employer to assume at the outset that a claim is justified or otherwise compensable as,a condition prece-dent to contesting that claim.
Similarly, English is plainly wrong in arguing that GE some-how is guilty of a continuing violation because its failure to fully compensate her resulted in an intimidating " impact" on the remaining-work force. In the first place, such an argument is belied by the Department of Labor's conclusion, in investigating    !
and dismissing subsequent 210 claims, that there had been no such
    " impact" resulting from GE's dealings with English.2/    In the second place, the question of whether GE's transfer of English constitutes a continuing violation (if a violation at all) must be measured solely by GE's treatment of English. Indeed, to view the law as English does would necessarily result in subjecting every NRC licensee to penalties for a continuing violation if the licensee unsuccessfully contests a claim of discrimination.
Plainly neither the law, the facts, nor common sense can coun-tenance such a result.                                              ,
In summary, English's entire claim that GE has committed acontinu[ngviolationofNRCregulationsispredicatedon the fact that GE chose to defend itself against English's 2/  See DOL August 30, 1985 letter reporting results of investi-gation in Malpass and Lewis v. General Electric, p. 2
("[W]e found no evidence of information being withheld from us by employees due to fear of intimidation or reprisal").
: i. 4-
_4_
complaint before the Department of Labor rather than simply
        . opening up the cash box and making payments on what it believed    ,
to be a meritless claim. Clearly, neither GE nor any other employer can be subjected to increased civil penalties for having exercised that right.
B. English's Factual Assertions Are Unsupported As pointed out in GE's earlier submission to the NRC, English was removed from the Chemet Lab and other controlled'    i areas of the Wilmington facility because she made a conscious and deliberate decision to violate established nuclear safety proce-
                                                                      ~
dures by leaving a radioactive spill in the Lab, allegedly in a misguided attempt to prove that GE management and her co-workers l
were lax about safety matters. See GE Response at 2-8, 16-23.
English's present purported recitation of the " factual" record before DOL only underscores the lack of any credible evidence that GE's action violated either Section 210 or NRC regulations.  ,
Indeed, for the most part English's " factual" assertions are
        " supported" only by citations to her own briefs before DOL, to    I unidentified "Tr.      " references, or to portions of the ALJ decision or record that-plainly do not support her assertions.1/
Accordingly, our comments are directed only at her most important misrepresentations.
J/  Take, for example, the first of English's laundry list of factual assertions at page 35 of her Reply. There English contends that (Footnote continued on following page)
: s. , s                                                                                                                                        !
I
: 1. Allegation that GE Decisionmakers Did Not Know of English's safety violation Until After Her Removal From the Lab                                                                                  i l
Perhaps the most important of English's erroneous factual                                                                  )
l assertions, from a substantive standpoint, is her contention that her removal from the Chamet Lab could not possibly have been (Footnote continued from preceding page) the ALJ credited Mrs. English and her supporting witnesssa as to management's and many fellow workers' persistent " hostility" toward '                                                          even antedating 1982 ... arising from her havxng openly voiced safety and quality concerns to management...."
For this proposition, English cites to three places in the ALJ's decision: p. 2,n.2;p. 3, 2d paragraph; and p. 12, 2d full paragraph, first sentence.          In point of fact, however, the referenced portions of the ALJ's decision actually state as follows:
: 1. At p. 2, n . 2, the ALJ stated:. "Many of the allega-tions and contentions of both parties were too far removed in time to have any significant relevance to this case. Accordingly, ... the time frame was limited by this judge to 1982 to 1984."
: 2. At p. 3, 2d paragraph, the ALJ merely noted that English "had made complaints to the NRC and to GE management in years prior to the March 1984 period of time," but that the parties were limited to the time frame mentioned in note 2 of his decision.
: 3.  ~At p. 12, 2d full para 3raph, first sentence, the ALJ stated only that "Mrs. English alleged in her complaint continuing acts of discrimination by GE, as a result of her protected activities, from December 15, 1983, culminating in her transfer out of the Chemet Lab on March 15, 1984, and her discharge on July 30, 1984."
i          As throughout her Reply, English's citations obviously do not l          even remotely support her assertion that the ALJ " credited" her l          contention of " persistent [GE] hostility" because of her pro-tected activity.
l l
l
 
i motivated by her deliberate breach of safety rules because GE's decisionmaliers did not learn she had purposefully lef t con-1 l
tamination on the legs of her work table until a " couple of weeks" after Lcb Manager Preston Winslow drafted the memorandum (Exhibit C-18) which set in motion the events leading to her removal.            See English Reply at 52, 57 n. 23.            This contention blatantly misrepresents the record.
As pointed out in GE's earlier submission to NRC (GE Response at 3-8), English'. tes.tifietthat< she . purposely leig" a#
coetmaimated ersey12 apt 115em+ttpW21ege#e04er.merkitable iMF                          e MatoV 9-11;s1994?> She stated that she knew that such con-tamination "was dangerous to every one of us" (English Deposition (Exh. E-12) at 48), but that, instead of cleaning up the spill as required by GE's safety regulations, she surrounded it with red tape and saved it for several dayag, ostensibly to show that other Lab workers were lax about safety matters.            h tarther' testified thht%W1                . ..
                                                          . a.          . tha
    - '' '          w            , and that she advised him that she had left it there since March 9 and did not intend to clean it up.
Lacewell also testifie d in the DOL proceeding, and hiagrsed /
thint?6ernarch"11"that;tho' had' deliberately 1Ef t ^'
a conte g g ) Lin the Chamet Lab rather than clean it up.
According"to %ecewelli however,1Baglish_did mow show him any con-                        .
tamination org i tgpe.;>See,            e.g., Tr. 1075-79, 1110-13, 1546-49, 1665-66.            Rather, Lacewell testified that English told him on
 
I March 11 that she had spilled radioactive contamination earlier in the week and had deliberately left it to see whether Rad
                                                                                                              ]
Safety would detect it.S!    Lacewell explained that he was very concerned about English's actions because "if someone leaves an area contaminated to entrap Radiation Safety for this period of time, [and) if it doesn't work, then nine times out of 10, that individual may, at a future time, go to another area and try the same act outside the Chemet Lab area."      Tr. 1683.                                    Accordingly, he reported English's recitation of her actions to Lab Manager Winslow the next day. Tr. 739a-739b.
WiB818NiWR48tatnLacevekkf,9iteg4Caslindicatlag' thiiW~'                                            l Sag 11% KNges&y,.aseetheiMEiS61Y and had
    ? deliberately Aeft the spill in place after the conclusion of her shift to see when Rad Safety would detect it.                                        Tr. 739(c),        j 739(e)-739(f), 1762, 1790-98. Thus, based on Lacewell's report, Winslow drafted the memorandum to his superior, Louis Sheely, setting forth Lacewell's and Winslow's concerns about English's 4/ According to Lacewell, English said that at some point during the previous weeks (1) she had spilled some uranium sample on..ber work tabler (2) that she had cleaned some of it but had left s~ clear brown spot of contamination to see if Rad Safety would detect it; and (3) that Rad Safety did not detect the spill during the inspection of her shift, but instead, had not found it until they came back later on one of the following shifts.
See Tr. 1011-23, 1057, 1075-77, 1084, 1110-11, 1546-49, 1646-56.
Las_ewell stated, that:English's,en}y..reiprgeco Ap;ted, tape .was her                                      ;
comment _~.that!ag  time she. fg'      ",
ination,fs5EIthat she had also sher i
put.seme Fred.-
m Ot$s?ff      Ca  *                ',*                          'J6EsI M'J6 1651, 1656.
animEms'aEd.                  Tr. 1075-76, 1110-11, 1546,
 
l
                                                                          .i self-described activities as well as other problems involving English.E/
From this record, it is clear that there is no dispute concerning the essential fact that was the gravamen of GE's charges against English and the basis on which'the Company acted
        -- English's report to Lacewell on March 11 that she had made a conscious and deliberate decision to leave radioactive contamina-tion in the Lab for several days rather than cleaning it up as l
i 1/ As she has throughout the various legal proceedings relating    I to her. removal, English's Reply attempts to distort the meaning of. statements in that memorandum regarding Lab manage-    ,
ment's concern about English's " direct actions to promote her concern" and their belief that "[hler action may be bordering      l on being considered subversive." See Exh. C-18 at p. 2.              l Specifically, English's Reply characterizes these statements as    j an admission that the real reason for the transfer was that management considered Mrs. English's
                    " direct actions to promote her [ safety, health and quality controll concerns,"
i.e., her attempts to obtain and pre-serve proof of violations, " subversive" of management's interests.
Eng. Reply 3t 44 (brackets and emphasis in Reply).
This' characterization is indicative of the factual distortions GE has come to expect from English's briefs.
It is clear that management's concern was not that English was allegedly attempting to substantiate safety problems, but rather the means she was using in an alleged attempt to support her complaints. As Lab Manager Winslow explained management's concerns:
(Footnote continued on following page)
 
required by GE's nuclear safety regulations.                  English directly and undeniably communicated this action to Lacewell on the night of March 11, Lacewell related English's statement to Winslow the next day, and Winslow acted on English's own account of her actions in preparing the memorandum in question.
Equally important, moreover, GE took no action against English until she, herself, confirmed to higher GE ammagement that she had; intentionally left~a radioactive spill."
Specifically, English was not removed from the Lab until after she had met on March 16 with Louis Sheely, the recipient of Winslow's March 13 memorandum.                    The specific purpose of that (Footnote continued from preceding page)
[s]he has taken deliberate action now to try to indicate that the company is not credible in its investigation and its findings, and she is deliberately trying to discredit the on-going activities of the operation, and so, ehere does this leave off? Okay, my question is, does the next step involve              ,
I taking uranium out of the operation delib-erately to discredit the on-going operation?
My concerns were that whatever action she may have taken next would endanger her health, or the company, or the personnel in the area where she operates.
Tr. 1798-99, 1822-23. See also Lacewell's stated concern, quoted
.                                  above at p. 7.                    Indeed, the legitimate nature of management's concern is clear from the memorandum itself, which concludes with a statement that English should be removed from controlled areas in order "to preclude any potential purposeful action on her behalf to support her concerns" -- i.e., any further creation of violations as proof of violations. Exh. C-18, p. 2 (emphasis                    ,
added).                                                                          I
 
    . .                                                                    I l 1 meeting was to hear English's version of the events she had related to Lacewell (Tr. 1932) and, during the meeting, English confirmed yet again that she had knowingly and intentionally left radioactive contamination in the Laboratory despite GE's contrary rule requiring immediate cleanup. Tr. 831(h)-840, 1916-23, 1937, 1973-78.
In sum, notwithstanding English's present attempts to mani-pulate the facts and record, there can be no tenable assertion that English's admitted and knowing safety violation could not have prompted GE's decision.
: 2. Allegation that English Acted Properly in Outlining Spill With Red Tape Rather than Cleaning It Throughout her Reply, English suggests that she acted pro-perly in outlining the radioactlye spill with red tape rather than cleasinggi3gapy3/In support of this position, English asserts that she was following what she understood to be Company policy in using red tape (Eng. Reply at 45). This interpreta-tion, she saya, is confirmed by the " fact" that Lacewell acknowledged during the DOL hearing that using red tape was no violation of GE rules (Eng. Reply at 44) and did not tell her she had acted improperly (or instruct her to clean the spill) when
* she showed it to him on March 11 (Eng. Reply at 50). Each of these factual assections is faulty.
l                                                                          i t
l
 
First, it is plain from the record, and the NRC well knows, that GE's license conditions require that radioactive spills in the Chemet Lab be cleaned up immediately.        See GE Response at 4
: n. 2 and 25 n. 15; see also the hearing testimony of Lacewell (Tr. 1111-12) and Winslow (Tr. 1778-89).        Indeed, English herself clearly understood this to be the rule,' for she testified that she had always cleaned up spilled contamination in the past and she asserted that she did not do so on March 11 in order to demonstrate that employees on the prior shift were violating GE's cleanup rules.b
{/    English continues to argue in her Reply that GE's dis-criminatory treatment of her is demonstrated because GE did not view with similar alarm the " fact" that neither workers on the prior shifts nor the subsequent shifts cleaned up the con-tamination that English allegedly outlined with red tape. E.g.,
Eng. Reply at 12.                                        Tiaikhet' > r theraf                                                                  , i t                                                            evidence that anyone at all saw t; no ev          nce      anyone who did see it recognized it for what it was and left it there willfully, rather than merely carelessly or negligently; and, finally, no evidence by which the Company could have identified who else left it or whether they left it because they assumed the red tape (if it existed) was there for some purpose and should not be disturbed. This against English's specific admission that she left it; that she did so not carelessly but deliberately, and not merely out of neglect or laziness but in a conscious effort to support her safety concerns. GE has previously explained why there is a world of difference between an employee who may care-lessly commit a safety violation and a vigilante employee, such as English, who makes a conscious and deliberate decision to commit such a violation allegedly for the " greater good" of demonstrating faulty safety procedures. See GE Response at 21-30.
 
l I
Second', English again manipulates the facts when she asserts that Lacewell " admitted that Mrs. English told him about leaving      j 1
the contamination of March 9, surrounded by red tape" and that he "did not instruct her to clean up the contamination she had left surrounded with red tape."    Eng. Reply at 50. As pointed out in the preceding section, Lacewell specifically denied that English      l showed him any tape-outlined spill on March 11, so of course he did not deny that he "did not instruct her" to clean the contam-ination.
Finally, a similar misrepresentation is reflected in English's contention that Lacewell " admitted that what Mrs.
English did in placing red tape arout.d the spill on March 9 and leaving it there through March 11, was no violation!"    Eng. Reply at 44 (emphasis in Reply). Typically, this contention is pre-mised on a Lacewell quote lifted entirely out of context to the effect that "[als far as I am concerned there is nothing wrong with her placing red tape anywhere she wants in the Lab."    Tr.
1112. It is plain from the context of that statement, however, that Lacewell's point was simply that red tape itself had no meaning iacthe Lab in terms of identifying spills and there was therefore nothing wrong per se in merely placing red tape on a Lab table. Indeed,ilacewell'weat on katspecifically testify, on
  -                        the very same transcript page,"thstritois+aet-permissible under Lab;.pe&&eyAut @ Jp6 Mad MSiI7:;5elmet h semesesses
                                                                                                /
                                    "; i  n a'  -
J'Thus , this alleged "f actual support" for
 
English's* claim, like so many of the other " facts" cited in English's Reply, evaporates completely upon a real examination of the facts.
: 3.                                        Allegation that GE's Investigation of English's Actions Was Inadequate and Obstructed English c ratends that the validity of her discrimination claim is demonstrated by the fact that GE did not engage in a meaningful investigation of the events that led to her removal from the Chamet Lab.                                                                                                          In an effort to support this contention, she asserts (1) that none of the GE decisionmakers "actually investigated any of the events involving Mrs. English" (Eng.
Reply at 45); (2) that supervisor Lacewell reneged on an agree-ment to write a letter exonerating her of all charges because he was instructed'by Lab Manager Winslow not to write such a letter (Eng. Reply at 44); and (3) that her removal from the Lab was unfairly upheld even though four of the five initial charges against her were not sustained (Eng. Reply at 46-47).                                                                                                                                                            The record belies these assertions.
l Firstfandnotatypically,English'sassertionthatthere was no investigation by responsible GE officials is premised l
l upon quotes lifted out of context.                                                                                                          In this instance, she
            .  " quotes" Lab Manager Winslow as stating that no investigation was performed because "it was not a question of what really happened; it was a question of what had been communicated [by Lacewell)...."
 
l ',
Eng. Reply'at 45, quoting Tr. 749.                It is clear, however, that Winslow was describing his efforts, at the very outset of the ir.vestigation, to ascertain from Lacewell what events English had related to him on the night of March 11 and to document these communications in a memorandum to Sheoly.                                                        Indeed, Winslow explictly stated that it was contemplated that after such'infor-mation was obtained from Lacewell, an investigation would be con-ducted and English would be given a full opportunity to respond to the charges against her.1/                And that, in fact, is precisely what occurred.        After receiving Winslow's memorandum, Sheely held an extended meeting with English for the express purpose of ascertaining her version of the events of the preceding week.
English. admitted during that meeting that she had deliberately left the spill, and, after the meeting, Sheely followed up on any of the charges that English had denied.                                                        See Section 1, suprar see also Tr. 856-58, 1924, and, generally, Tr. 831-63, 1901-78. Indeed, that investigation cleared her of one of the charges. See n. 9, infra.          Thus, English's claim that no investigation was conducted is specious.
7/    No one reading Winslow's testimony on this point could possibly conclude, as English purports to have done, that Winslow was-indicating that no investigation of the events leading to English's removal had been conducted. That testimony appears at page 749 of the transcript, following Winslow's ex-planation of his discussions with Lacewell and English's other supervisors regarding the events of the previous week and his generation of a memorandum to Sheely documenting those dis-cussions. After that explanation, the following colloquy occurred (Tr. 749):
(Footnote continued on following page) i I
 
SimilhrlyspeciousisEnglish'ssecond" factual"assertich)
                                                                    -(>
that Lacewell agreed to write a letter fully exonerating her of -
all charges in Sheely's disciplinary letter, but later reneged on that agreement at the instructions of Lab Manager Winslow.
Lacewell specifically denied that he ever agreed to write such a letter, or that Winslow ever instructed him not to write such a    j letter. Tr. 1561, 1569, 1585-86, 1711-27. Rather, according to    ,
l (Footnote continued from preceding page)
Q. But you didn't make any effort to call Mrs.-
English and ask her what really happened?                j A. At that point in time, it was not a question of what really happened; it was a question of what had been communicated.
Q. And why was that?
A. Because it indicated that it was a severe breach of our safety practices.
Q. But suppose Mrs. English had been able to prove to you, to your satisfaction, that this was based on misinterpretation of what she had said to Mr. Lacewell, and that the inference that he drew was incorrect, and that the facts which he inferred happened weren't so at all?
A. That could be determined later at which time she was given a chance to explain that situa-tion.
.        Q. She was given a chance to explain that situa-tion, when?
A. I believe she subsequently was given a letter by Mr. Sheeley and a meeting held for her to explain what had occurred.
1
 
1 Lacewell, $e told English that he would not write such a letter because her belated claim that the contamination had resulted from normal work activities differed from what she had told him on' March 11.8/  9owever, he stated that he would document their conversation ~and note her newly-stated position, and would discuss the matter with his superiors. He did so (see Exhs. E-2, E-3 and E-5, documenting those conversations), and thereafter-informed both Winslow and Sheely that he had told English she            l could check something with the friskerE! and that English had l
8/  Lacewell testified that English's request for an exculpatory letter regarding two of the charges against her came in con-      j versations on March 18, and again on April 11 and 13, when            (
English called him at home to deny that two of the safety-related      q charges made in Sheely's letter were accurate (i.e., the charge of deliberate contamination and unauthorized removal of a              !
        "frisker"). See Tr. 1561, 1565-69, 1577, 1585-92, 1711-27.
English asserted that she did not deliberately " spill" uranium        ,
sample, but rather that uranium had naturally erept or fallen off the vials and crucibles with which she had been working. Thus, she asked Lacewell to write a letter stating she did not delib-erately contaminate the table and that he had authorized her to use the frisker. Lacewell refused to write such a letter because it was different from the version she had related on March 11, when she had told him that she had spilled or smeared the sample.      .
i 9/  Sheely himself called Lacewell to ask about the frisker          i question after English stated on March 16 that Lacewell had      1 authorized"its use (Tr. 856-58). According to both Sheely and            I Winslow, Lacewell indicated that he had authorized English to check something with the frisker, but that he did not understand        !
I that she intended to remove the frisker from the Lab exit where it is always kept so that Lab personnel can " frisk out" of
  .-    the Lab. Tr. 856-58, 1766-68, 1800.      In any event, because it        l became apparent during the investigation that there was a possible miscommunication between English and Lacewell on the
                                                                                )
i frisker question, General Manager Long dropped that allegation l        during English's internal GE appeal. See GE Response at 6-7 and l        discussion infra.
i
                                                                                )
 
J subsequently told him that'the contamination in question resulted from natural work activities. He also participated in English's GE appeal hearing and honestly and accurately related these same l
facts (Tr.- 1593-97, 1730). Thus, English's present contention that Lacewell reneged on an agreement to write an " exonerating" letter, or that he was in any manner prevented or discouraged from supporting her position, is belied by the record and wholly without merit.
Finally, the legitimacy of GE's actions is not undercut, as English claims, by the fact that GE chose to rest its discipline and removal decisions on only one of the five original allega-tions regarding wrongdoing by English. As pointed out in our previous submission (GE Response at 5-7), General Manager Long declined to consider two of those allegations on appeal because they were~not deemed pertinent to safety issues, and the frisker allegation was dropped because of the facts uncovered in GE's investigation of the charges (see n. 9, supra). The fourth allegation -- English's alleged deliberate contamination of her work table -- was neither " dropped" nor acted upon because there was a factual dispute about English's guilt which management had  !
no means to resolve.
Contrary to English's contention, these facts do not        j
  .. demonstrate a cursory or perfunctory investigatory process or a determination to get rid of English no matter what the investiga-tion revealed. Indeed, just the opposite, for if GE management had been intent on getting rid of English because of her protected l
i I
 
activities [itwouldhavebeenfarbetteradvisedtoretainthe non-safety-related charges and purport to conclude, based on the original evidence, that English had also deliberately con-taminated the work area. GE was intent on safety, however, not retribution, so the Company chose to delete those allegations and to lower the discipline impoced accordingly. N                                    Nevertheless, and for the reasons previously stated, the Company ju3tifiably concluded that deliberately and purposefully ignoring safety rules by leaving a radioactive spill was a sufficiently serious safety problem, even standing alor. , to warrant Englith's removal from controlled areas of the facility.      GE submits that that conclusion is unassailable as a matter of fact and as a matter of                                  j law (see Section C, infra), and, accordingly, that this " factual"-
assertion by English, like her others, is completely without merit.
1
: 4. Allegations Regarding GE's Treatment of English's Safety Complaints English contends that GE's discriminatory animus'towards her                                  l I
is shown by the way GE management responded to her safety and                                      I quality concerns. Specifically, English asserts that management w
refused to accept her evidence of violations in December 1983 and then in early 1984 demanded, on pain of discharge, that she pro-l .
l_Of On appeal, Long reduced English's probationary period from one year to six months and " suspended" the actual time off, and associated loss of salary, for the five-day suspension that had been initially proposed. See GE Response at 7, 19-20.
1 l
                                          ._  . _ _ -    _ _ _ - - _ _ _ _ _ _ _ _ _ _ _ _                i
 
ca                              .-
duce evidence supporting her allegations.                                      Eng. Reply at 38-39.
According to English, Manager of Quality Assurance Eugene Lees wanted this information so he could cover up the violations, and supervisor Lacewell allegedly advised her not to turn over the information because management would destroy it.                                                  Id.
There is no direct and specific denial of these allegations in the record, because English's bare assertion of the se " facts" was made, for the first time, in the closing minutes of the DOL hearing when GE was foreclosed from producing any more witnesses.
See Tr. 2436-38; see also previous transcript page 2430, where GE counsel had to cease cross-examination of English because it was 6:20 p.m. and English's counsel had been assured an opportunity for redirect examination.                                    Nevertheless, there is sufficle', evi-dence in the record to show that these assertions are completely without merit.11!
First, contrary to English's suggestion, the record shows that GE management repeatedly investigated and responded to English's safety and quality concerns, even though they seldom i
proved to have the slightest merit.                                    For example, Lacewell 1
investigated and fully responded to English's concerns about the                                                                                i microwave oven in the Lab (Tr. 1013-15, 1063-65), and GE manage-ment appointed two special investigators (Hendry and Wieczorek) 11/  If the NRC deems the absence of a direct record denial troublesome, GE would be happy to submit affidavits from the management officials allegedly involved in the referenced inci-dents or to make those officials available for NRC investigators to question with respect to these allegations.
4
 
to investigate and report on the validity of, respectively, English's safety and quality complaints. See Exhs. C-61, C-79a.
        'Moreover, contrary to English's allegation that on December 14, 1983 management refused to accept or entertain her evidence of safety and quality problems (see Eng. Reply at 38), the record shows just the opposite. Lab Manager Winslow testified without contradiction that he met with English on December 14, 1983, immediately after her meeting with Eugene Lees, to_ discuss the list of safety and quality concerns English was raising. Tr.
1737-54. He'thereafter investigated her concerns and met with    '
English again in mid-January-1984 to discuss the results of his investigation (Tr. 1745-47; Exh. E-6). He also tried to set up a meeting between English, her supervisor, and himself to discuss her additional concerns, but English refused to attend such a meeting. Tr. 1744-45. Thus, English's contention that GE management' refused to entertain information regarding her complaints is simply nonsense.                                      j Similarly without support is English's second contention that in February 1984 GE demanded that she produce her evidence supporting _her safety complaints, allegedly so it could be          !
l destroyed. Eng. Reply at 38-39. According to English, an          j alleged " undenied ' cover-up' proposal" was made when Lees
,        instructed her to bring in her evidence so they could "'put it behind us and forget it.'"  Id., quoting Tr. 2436-37. Again,      )
i English can make this contention only by selective quotation and      )
serious distortion of the record. Specifically, English ignores
 
the fact that Lees' " demand" for evidence was made in response to her January 20 refusal to provide him with information she possessed which allegedly supported her safety concerns.12/
Although English now tries to suggest that she had'not previously refused to provide such information to management, her rejected affidavit from the DOL proceeding (Exh. C-80) admits that during l
the January 20 meeting "I then said that if I cannot have a wit-ness or my [tapel recorder, I do not intend to give any more information or discuss it...."                                                            Exh. C-80, p. 9 1 15.                                    ;
Moreover, assuming arguendo that Lees stated.they would "put
          .it behind us and forget it," such statement was obviously not a l
            " cover-up proposal" as English now asserts, but rather, was a reference to investigating and laying to rest any concerns English might have on safety or quality matters.                                                                      Indeed, this is demonstrated by English's own testimony from which her Reply now selectively quotes:
[At the end of the February meeting] he
[ Lees] handed a letter to me that actually was sort of like a summary of his con-versation ... that unless I brought in all the evidence and all of the information on my complaints that we might review it other and go over itr and then put it nd us and forget it.
Tr. 2436 (emphasis added).
12/  See Exhibit C-15-B, Lees' February 15, 1984 memorandum to English instructing h < co present her evidence. After noting that English had refugid to provide such information on January 20, the memorandum informs her that she has an obligation as a GE employee to apprise management of information relating to safety problems.
 
Third,EE nglish's last-minute assertion that Lacewell advised her to "not turn in all the information because you know they will destroy it" (Eng. Reply at 39; emphasis in Reply) is belied by the testimonial and documentary evidence in the DOL record.
                                                                                                      \
Specifically, although this " factual" assertion by English came                              I at the very conclusion of the hearing (Tr. 2437-38) and long after Lacewell had testified, Lacewell had earlier testified that                            ;
he made a point of reminding English on February 22, 1984, a 1
day or two after the meeting with Lees, that she should turn over                            l her information by that Friday, February 24.      Tr. 1535-40.                        More importantly, Lacewell's contemporaneous notes of that February 22 conversation (Exh. E-3) state:
On Wednesday, February 22, 1984, I informed                                        l Vera that she was to make sure she turned all                                      i company documentation over to Mr. Lees, and, after he reviewed such documentation, he would consider, if she desired copies of the docu-mentation, letting her copy some documents.
These notes were made over a year before English testified i
regarding Lacewell's alleged " warning," and they are totally inconsistent with English's belated assertion that Lacewell told                              i her she should not turn over information because it would be destroyed)
In sum, here, as with other factual assertions in English's Reply, English's position is plainly premised upon manipulation and distortion of the record in the DOL proceeding.                            In these circumstances, GE submits that the NRC should conclude, as the Secretary of Labor surely will if he ever considers this case on
 
Ql          .
6>      '
N          ,.
the meritsT that GE has not discriminated against English in violation    f Section 210.
f4 C. English's Construction of Section 210(g) Is Erroneous GE demonstrated in its earlier submission to the NRC that Section 210(g) of the ERA, by its express terms, removes all Section 210(a) protection for an employee who " deliberately causes a violation" of a mandatory safety requirement, and that it thus foreclosed English's claim of discrimination with respect to her removal from the Chemet Lab.                                                    See 42 U.S.C. 5 5851(g) and GE Response at 23-30. Notwithstanding the express language of Section 210(g), English makes the untenable assertion that the only purpose of that Section is to prevent the perversion of S 210 by employees who would misuse that protection in bad faith
                                ... by attempting to gain immunity to merited discharge for other reasons by themselves breaking a valid rule or 'olicy, reporting the break and then claiming that the dis-charge resulted not from the independent cause but from their report of the break.
Eng. Reply at 63.
There are two critical flaws in this " logic."                                                                                              First, English's51sterpretation is premised upon the erroneous assump-tion that employees must report actual safety violations in order to gain 210(a) protection, and that Congress therefore deemed this                                                                                        ;
                    . provision necessary to guard against employees committing their own violations to invoke statutory protection.                                                                                                However, an employee seeking to use Section 210 to immunize himself or her-
                                                - - _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ - _ _ - _ _ _ - _ _ _ _ _ _ _ - _ _ _ _ _ _ _ _ _ - _ _ - - _ _ _ - _ - - ..        l
 
self from a merited discharge'need not commit a safety violation to invoke that protection, because the employee could gain the same 210(a) protection by merely reporting that some violation has occurred (whether it has or not), and then claiming that the discharge was in retaliation for that reporting.                                  Accordingly, the gravamen of Section 210(g) -- committing a violation --
simply lacks a logical nexus with potential abuse of the statu-                                      I tory protection.                                                                                    1 Second, English's construction renders Section 210(g) meaningless. The basic assumption-in English's interpretation is that Section 210(g) comes into play only in circumstances where the discharge was justified and the act of committing and then reporting a violation was simply a bad faith attempt to gain the protection afforded by Cection 210(a).          In such a case, however, no redress could be obtained under Section 210(a) in any event. This would be true not because 210(g) bars such redress, but because in those circumstances the employer'would have a valid, nondiscriminatory reason for the discharge.                                  Thus, i
English's interpretation would mean that 210(g) applies to remove 210(a) prbkectiononlywhentheemployercandemonstratethat Section 210(a) was never violated in the first place.                                  This is an absurd result that essentially reads Section 210(g) right out of the statute.                                                                                          ]
In short, GE submits, Section 210(g) has a very different and broader scope than that urged by English.                        Regardless of the I
 
reason for a particular discharge, if an employee violates any mandatory safety requirement, relief under Section 210(a) is        l i
Indeed, the Federal District Court con-
                                                                                                                                                          ~
absolutely barred.
sidering English's state law claims in North Carolina -- the only court ever to interpret 210(g)  --
recently adopted precisely this interpretation of that provision. On February 10, 1988, the Court issued a 27-page decisiondismissing English's state law claims for wrongful discharge and intentional infliction of emo-tional distress on the ground that Section 210 provides the exclusive remedy for GE's alleged wrongful acts.11!    That conclu-sion was premised in part on the Court's determination that
[t]he impact of subsection (g) is therefore quite clear: even if an employer has vio-lated subsection (a)  -
i.e., discharged or discriminated against an employee because he voiced concerns of nuclear safety - the employee is absolutely barred from obtaining redress if he has caused a violation of any                4 nuclear safety requirement.
District Court Opinion at 17 (emphasis in original).
This, GE submits, is the correct interpretation of Section 210(g), rather than English's tautological suggestion that 210(g) removes 210(a) protection only when 210(a) has not been violated anyway. Accordingly, the NRC should rule that English's removal from the Chemet Lab and subsequent layoff could not possibly have violated Section 210 of the ERA because 210(g) removes all
(                                                                                    13/ The Court dismissed English's wrongful discharge claim on j                                                                                          the additional ground that she had failed to state a claim I                                                                                    under North Carolina law. A copy of the District Court's deci-f                                                                                    sion is attached hereto.
_ _ _ _ _ _ _ _ _ _ _ _                        _                          _                l
 
l                  ,
i 210(a)' protection for vigilante employees such as English who deliberately commit safety violations in an    '1-advised attempt I
to support or prove safety complaints.
l D. Conclusion.
For the reasons set forth above and in GE's earlier sub-    l mission, GE respectfully requests that the NRC dismiss English's 2.206 Petition for Enforcement Proceedings.
Res; ectfuly submitted,              ;
of Counsel:                    '
                                                    .], Mif(v
                                                          /- ,
N9
                                                                'liuwt  fp-f(
Barton Smith, Esq.          George'L. Edgar' General Electric Company    Thomas A. Schmutz 175 Curtner Avenue          NEWMAN & HOLTZINGER (MC-602)                1615 L Street, N.W.
San Jose, CA    95125        ~ Washington, D.C. 20036 l
Dated:    March 18, 1988 L
6
_____ ______.____          _                                                          i
 
                                                                                                                                  ]
    .    .                                      t                                                    I O                                                  C ao.soin .s,.si w _ ,m.cw c              .                                                          .. F. I L E D
                              +                                                                                        FEB 12 2 huitch [taiEs histrictNorth Eastern (Ouri(RCarolina H  ,D    R    dU g, DIST. NO. CAlb i
i l
JUDGMENT IN A CIVIL CASE                                    I VERA M. ENGLISH v.
GENERAL ELECTRIC COMPANY CASE NUMBER:              87-31-Civ-7 Ml DB SM O '
O Jury Verdict. This action carne before the Court for a trial by jury, The issues have been tried and the jury has rendered its verdict.
3 Decision by Court. This action carne toe 2KEXhearing before the Court. The issues have been itMiiDtM heard and a decision has been rendered.
      .        ITIS ORDERED AND ADJUDGED                                                                                                    -
THAT THE DEFENDANT, GENERAL ELECTRIC, Motion to dismiss is granted as
      ,        to co'.tnes one and two of the complaint pursuant to Rule 1?(b)(1) and on the alternative ground pursnant to Rule 12(b)(6) and to counts three and four of the complaint pursuant to Rule 12(h)(1) on the ground that the court lacks subject matter jurisdiction. Case is dismissed in its entirety.
File and entered this 12th day of February, 1988 9
Copies to:
Mr. M. Travis Payne I certW M N 'E                                    j and correct copy et W o igt Attorney aff.aw                                                                  1 Rich Leonard, Clerk u P. O. Box 12607 Raleigh, NC 27605                                                                United States District  ,h ry n District of                            j Mozart C. Ratner                                                                            ,
Atr.orney at Law                                                              0~~                  Deputy Clerft 4400 .fenifer St., NW                                                                                                          l Washington, DC 20015                                                          ,
l' Weinstein & Sturgen J. RICH LE0FARD Attorneys at Law                                                                              #
DateMr. William W. Sturges                                      Clerk 810 Baxter Street Cul-de-Sac Charlotte, NC 28202 February 12, 1988                                          (By/ Depdfy /erk ' '                                              !
 
2.
IN THE UNITED STATES DISTRICT COURT                  )b 1)
                                      ~. FOR THE EASTERN DISTRICT OF NORTH CAROLINA WILMINGTON DIVISION FE8121988 A RICH LEONARD, CLERK  i VERA M. ENGLISH,                  )                        M* S. DISTRICT COURI ;
                                                              }
                                                                                          & OlST. NO, CML      i Plaintiff    )      NO. 87-31-CIV-7
                                                              )
VS.                                )        _O _R _D _E _R
                                                              )
GENERAL ELECTRIC COMPANY,          )
                                                              )
Defendant    )
Plaintiff, Vera M. English, filed this dieersity action'against defendant, General Electric Company (GE), alleging common law causes of action for wrongful discharge in violation of public policy and intentional infliction of emotional distress.          As relief plaintiff seeks $1,328,645 in compensatory damages and punitive damages in the amount of five percent of the net worth of defendant GE (or approximately $2.3 billion). The action is before the court on defendant's motion pursuant to Rule 12 of the Federal Rules of Civil Procedure to dismiss the instant complaint on the grounds that the alleged causes of action are preempted by federal law such that the court lacks jurisdiction over the subject matter J
and the plaintiff has failed to state causes of action under North                    !
l Carolind Eaw upon which relief can be granted. F.R.Civ.P. 12 (b) (1)                  f and (6). For the reasons which follow, defendant's motion pursuant to Rule 12 (b) (1) as to che entire complaint will be granted.
Further, defendant's 12 (b) (6) motion will be granted as an alterna-tive basis for dismissal only as to plaintiff's claim for wrongful                  1 discharge.
l l
l
: 1.      ,,.,
s
                      -When confronted by a motion to dismiss a complaint must be 1
construed in the' light most favorable to the plaintiff and its                                        j l
allegations - taken aus true.-  Jenkins v. McKeithen, 395 U.S. 411, 421'(1969).    "[A] complaint should not be dismissed for f ailure to state a claim unless it appears beyond doubt'that the plaintiff ~
s can prove no set of facts in support of.his claim which would entitle him to relief."      Conley v. Gibson, 355 U.S. 41, 45-46 (1957) (footnote omitted).      The factual allegations upon which defendant GE's motion to dismiss must be resolved, as taken from the complaint, are as follows:
I. FACTUAL ALLEGATIONS From November 13, 1972 until March 15, 1984, plaintiff English was employed as a radiation laboratory technician in the chemical
                . Metallurgical Laboratory (Chemet Lab) of defendant GE's Nuclear Fuel Manufacturing Department (NFMD) in Wilmington, North Carolina.
    ~
At the NFMD nuclear fuel is produced using radioactive materials, principally uranium.- As a source of quality control the Chemet Lab performs metallurgical, environmental, chemical and spectrogra-phic analyses on small uranium samples to assure that standards of the Nuclear Regulatory Commission (NRC) are met.                                Plaintiff's job consisted of assuring an accurate measure of uranium in GE's uranium powder fuel pellets.
In February 1984 plaintiff began taking action to correct what she perceived as serious violations of safety standards at GE's NFMD. On February 13, 1984, plaintiff reported to the NRC that many safety hazards and illegal practices were present in                                        l the Chemet Lab, and that corrective action had not been taken Page 2 L_---____--
 
even though GE had been made aware by her of similar hazards and practices in the Lab. On February 24, 1984, plaintiff forwarded essentially the same complaints to Mr. E. A. Lees, the Quality-Assurance Manager (later General Manager) of GE's NFMD.
During the period of March 5 - 9, 1984, plaintiff spent con-siderable work time cleaning up radiation contamination at and around her work station, apparently left there by workers on pre-ceding shifts. On March 5 plaintiff asked a " Rad Safety" man
                                              '(specially trained personnel who, using special instruments, detect uranium contamination) to check out her work area to see whether he would discover the pile of contaminated nuclear material she had collected and swept to the rear of her work table.        The man declared plaintiff's area free of contamination.        At the end of her shift plaintiff cleaned up the pile of contaminated matter which the Rad Safety man had not detected.        At the conclusion of her work shift on March 10 plaintiff:
decided that the only way to convince management of the validity of her concerns about the dangerous conditions in the Chemet Lab and of other workers' failure [s] to follow safety procedures, charges she had raised before without GE properly responding, was to identify    '
some of the areas of radiation contamination with red tape (used to mark off radiation hot spots) and have her regular supervisor,
:. Mr. William Lacewell, see the conditions when he and she were next on duty, which would be on the evening of March '
Complaint 1 16.                                                            . ,
,                                                  Upon beginning her shift on March 12, 1984, English showed her supervisor the marked-off areas of contamination, areas which were undisturbed by interim shift workers.        Plaintiff also informed her supervisor of the Rad Safety man's failure to detect contamina-
                                                                                                ~
tion on her work bench on March 5.        Following plaintiff's discussion
 
                                            . parts of the Chemet Lab were shut down whereby.many of the safety problems identified by English were fixed and the contaminated areas were cleaned.1 .Id. 1 18.
In a letter. dated March 15, 1984, GE charged plaintiff with several violations of GE and/or NRC requirements, including:
(1) unauthorized removal of a personal nuclear survey instrument-from the entrance to the labo'atory    r    for use elsewhere in the. plant; (2) deliberate contamination of a table; (3) failure to clean up contamination, knowing it existed; (4) the continued distraction-
                                                        ~
of other 1aboratory employees; and (5) disruption of normal labora-tory activities.            Plaintiff alleges that "GE management conspired to fraudulently charge that Mrs. English violated GE safety rules and criminal statutory prohibitions which they knew did not exist or the violation.cf which they did not occur."              Id. 1 31. Accord-ing to English, all charges save No. 3 were dropped "because they were deemed demonstrably false or not capable of substantiation."
Id. 1 20. As punishment for charge No. 3, GE removed plaintiff-from the Chemet Lab under guard "as if she were a criminal [,1 exposing her to the contempt and ridicule of fellow employees,"
id. 1 24; barred her entry into the chemet Lab or from employment in or entry to any controlled areas in the NFMD, id. 1 21; and                  )
7 indefini~tely assigned her to menial "make work" in Building "J" and the Central Stores Warehouse, id.              According to plaintiff,
                                              "[i]nternal management documents establish that the purpose of
: 1.        On a somewhat contradictory note plaintiff alleges that "[p}rior to March 15, 1984, Mrs. English's complaints to management had been ignored by management and management had disparaged and derided her as paranoid."          complaint 1 9.              .
Page 4
 
s    ...
these measures was to punish Mrs. English for what management termed her'' subversive' activity and to prevent Mrs. English from continuing to obtain evidence to prove that management was'failing adequately to police compliance with.NRC safety and quality regula-tions."                            .
Id. 1 22. In addition to the punishment imposed upon charge No. 3, English was watched constantly'by a member of manage-ment from a desk overlooking'hers in Building J, isolated from her fellow workers, "and not even permitted to eat lunch in the company lunch room with them."                                        Id. 1 24.
On April 30, 1984, GE's management informed English that she would have to " bid" for a position in the NFMD, other than in the Chemet Lab or other controlled area, and if no position was available within ninety days she would be placed on a "' lack of available work' status."                                Eighty-nine days later, on July 29, 1984, plaintiff was sent home to change into safety shoes "although plant rules did not require that anyone in the area in which she was working wear safety shoes."                                        Id. 1 26.              The next. day, July 30, 1984, having obtained no other position, GE fired English.
Since her discharge plaintiff has been unable to find acceptable employment and has become impoverished.                                        Id. 1 35.
Plaintiff alleges' GE's actions were intended to teach her a lessonIand make an example out of her because she raised safety                                                                                  ,
concerns, "the resolution of which caused, was causing and would continue to cause delay in production at the GE plant, embarrass                                                                                    l GE with its principal regulator, the NRC, and encourage other employees to observe, prove and report GE's sloppy and potentially dangerous safety procedures."                                        Id. 1 29.        According to English, i
Page 5 l
 
s                      .
l
                                                                                                              )
GE's treatment of her was " clearly discriminatory" because no investigation was undertaken with respect to any workers on shifts between March 10 and 12 (when plaintiff had marked off contaminated          I areas) and because similar failures to clean up contamination by 4
other employees had "never resulted in the kind and severity of 1
disciplinary treatment meted out by GE to Mrs. English."        Id. 1 27.
{
In Count 1 of the complaint plaintiff alleges her discharge by GE was wrongful and "in violation of the strong public policies embodied in the laus of the United States, which encourage and require safe operation of nuclear facilties and require workers to report potential violations of NRC regulations."        d I_d. 11 41-42. I i
In Count 2 plaintiff alleges her discharge constituted a " gross,            J wanton and reckless violation of public policy and disregard of her rights, and was done with actual malice entitling her to puni-tive damages against GE."    I d_ . 11 43-44. Plaintiff also alleges that as a result of defendant's intentional, malicious, extreme              ;
and outrageous conduct, she now suffers a severely depressed and emotional condition which has required professional psychiatric treatment. Id.
d 11 36-38. Hence, plaintiff seeks compensatory damages in Count 3 and punitive damages in Count 4 for intentional infliction of emotional distress.      Id. 11 45-51.
                                      , Defehdant GE has moved to dismiss plaintiff's entire complaint pursuant to Rule 12 (b) (1) and (6) of the Federal Rules of Civil Procedure. Defendant argues that plaintiff's claims, are preempted by federal law in that they concern matters of nuclear safety                1 l
and are specifically preempted by Section b        of the Energy Reor-ganization Act, 42 U.S.C. S 5851, commonly referred to as "the                i l
j 4
Page 6                                      ]
l
 
      ,r.                                                                                                              l l
1 whistle blower provision."
                                                                                                                      )
Defendant further contends that even        ]
I if plaintiff's claims are not preempted, plaintiff has failed                                        i to state-valid causes of action for wrongful discharge and inten-tional infliction of emotional distress under North Carolina law.
Specifically, defendant argues that North Carolina does not recog-                                    )
nize a. general public policy exception to the employment at will
                                                                                                                      )
doctrine and that defendant 's conduct concerning plaintif f was not outrageous.
II. PREEMPTION A. The Law Federal preemption generally may occur in either of two ways.
Where Congress evidences an intent, either expressly or inferen-tially, to occupy a given field, state laws falling within the field are preempted.                                Silkwood v. Kerr-McGee Corporation, 464 U.S.
238, 248 (1984) (citations omitted).                                For instance, matters of nuclear safety regulation are committed exclusively to the federal government.                Pacific Gas & Electric Company v. State Energy Resour-ces Conservation and Development Commission, 461 U.S. 190, 212 (1983).          On the other hand, if the federal government does not
                " occupy the field," preemption turns on whether the state law conflicts with the federal law to the extent it is impossible to comply with both or whether the state law frustrates the purposes and objectives of Congress.                                Silkwood, 464 U.S. at 248 (citations omitted).
Section 210 of the Energy Reorganization Act (ERA), 42 U.S.C.
G 5851, provides a remedy for employees of nuclear facilities who believe they have been discharged or otherwise discriminated Page 7 L__ _                                                                                                                ;
 
against for making safety complaints concerning the construction or operation of nuclear facilities.        The statute specifically provides'that no NRC licensee, "may discharge      . . . or otherwise discriminate against any employee with respect to his compensation, terms, conditions, or privileges of employment" because the employee has testified, given evidence, or brought suit or engaged in "any other action to carry out the purposes" of the Atomic Energy Act (AEA) and the ERA. 42 U.S.C. S 5851(a).2 If an employee believes he has been discharged or otherwise discriminated against in violation of the Acts, he may file a complaint with the Secretary of Labor within thirty days after the violation occurs. Id. (b) (2) (A) . Within thirty days of the receipt of the complaint the Secretary must conduct an investigation and notify the individuals involved of the results.        Id. Within ninety days of the receipt of the complaint the Secretary must either deny it or order the of fending employer to "(i) take affirma-tive action to abate the violation, and (ii) reinstate the complain-ant to his former position together with the compensation (including
: 2. A split of authority has developed in the circuit courts as to whether the provisions of Section 210 protect an employee from retaliation based on purely internal safety complaints or whether participa-tion in "a proceeding" is required. Mackowiak v.
University Nuclear Systems, Inc., 735 F.2d 1159 (9th Cir. 1984), and Consolidated Edison Company of New York, Inc. v. Donovan, 673 F.2d 61 (2d Cir. 1982)              ,
(Section 210 protects internal safety complaints) .
                  ,                                  Contra Brown & Root v. Donovan, 747 F.2d 1029 (5th Cir. 1984) (Section 210 is designed to protect only
                                                      " whistle blowers" who provide information to govern-mental entities). In this action plaintiff alleges both internal and external complaints (Complaint 11 10, 12, 17) and would appear to fall within the section.
Page 8
 
*                    .o.
back pay), . terms, conditions, and privileges of his employment, and the Secretary may order such person to provide compensatory damages to the complainant."    Id. (b) (2) (B) . The statute also provides for the payment of all costs and expenses, including attorneys' and expert witness fees, reasonably incurred by the complainant in bringing the complaint upon which an order is issued.
Id. Section 210 expressly provides for judicial review of the Secretary's order by a United States Court of Appeals.        Id. (c).
The protection offered by Section 210 is limited.        It'does not extend to any employee "who, acting without direction from his or her employer (or the employer 's agent) , deliberately causes a violation of any requirement of .    . . " the AEA. Id. (g).
Finally, an order issued pursuant to Section 210 is subject to civil enforcement. The action to require compliance may be brought in the appropriate United States district court by either the individual on whose behalf the order was entered or the Secre-tary. Id. (d)-(e) . If in an action brought by the individual the district court enters a final order directing compliance, the court may award the individual the costs of litigation.          Id.
(e). If the Secretary obtains judicial enforcement of his own order, "the district courts shall have jurisdiction to grant all 1
4, appropriate relief including, but net limited to, injunctive relief, compensatory, and exemplary damages."      Id. (d).
Few courts have considered the question of whether or not Section 210 preempts state causes of action arising from the retalia-tory termination of or discrimination against an employee for t
having voiced nuclear safety concerns.      Snow v. Bechtel construc-Page 9
 
                                                                                              ~1
              .; ..                                                                            l J
tion Inc.,L647 F.Supp. 1514 (C.D. Cal. 1986); Stokes v. Bechtel North American Power Corporation, 614 F.Supp. 732 (N.D. Cal. 1985);
Wheeler  V. Caterpillar Tractor Company, 108 I11.2d 502, 485 N.E.2d 372 (1985), cert. denied, 475 U.S. 1122 (1986). In support of their holdings each of these courts either relies on or distin-            !
l guishes the Supreme Court's decision in S!1kwood v. Kerr-McGee            )
i Corporation, supra.
In Silkwood the plaintiff, father of the decedent, Karen Silkwood, sought relief under state tort law for radiation injuries suffered by his daughter at a nuclear power plant run by the defen-dant, Kerr-McGee. The Tenth Circuit Court of Appeals struck the jury's award for punitive damages on the grounds of federal preemp-tion. Silkwood v. Kerr-McGee Corporation, 677 F.2d 908, (10th Cir. 1981). The Supreme Court reversed, holding that the award of punitive damages based on Oklahoma law was not preempted by            i the Atomic Energy Act. .Silkwcod, 464 U.S. at 258.
In allowing punitive damages on a state claim for radiation injuries the Silkwood court homed in on two items:      (1) express language by Congress recognizing state tort recovaries and (2) the absence of a federal remedy. The Price-Anderson Act, 42 U.S.C.
S 2210, an amendment to the AEA, established an indemnification
                              ~
scheme whireby operators of nuclear facilities would have limited liability in the event of any one nuclear accident.      Id. at 251.
                    "[T]he discussion preceding its enactment and subsequent amendment indicates that Congress assumed that persons injured by nuclear accidents were free to utilize existing state tort law remedies."
Id. at 251-52 (footnote omitted). Further, the court noted the Page 10
 
absence of a federal remedy and expressed its disbelief "that Congresstwould, without comment, remove all means of judicial                !
recourse' 'for those injured by illegal conduct. "    Id. at 251 (cita-tion omitted). Clearly, the focus in Silkwood was on radiation injuries caused by nuclear accidents and their redress.
Two district courts in California have addressed the precise          I
                                                                                )
issue of the preemptive effect of Section 210 on state law causes of action but they differed in result.      Snow v. Bechtel Construc--
tion, Inc., supra; Stokes v. Bechtel North American_ Power Corpora-tion, supra. In each case the plaintiff had pursued a state law claim for wrongful discharge.
In Stokes the court was " unable to accept the thesis that the enactment of Section 210 requires the invalidation of all preexisting state law remedies for aggrieved employees involved in the field of nuclear power."      Stokes, 614 F.Supp. at 745.
The court's inability stemmed from the Silkwood decision and the i
permissive language found in Section 210 and its legislative history          !
(i.e., may file a complaint, may apply to the Secretary for review, could help assure compliance, could seek redress). .id. at 744-
: 45. In terms other than permissiveness, the Stokes court failed to address any specific provisions of Section 210 and its history.
            <h e -
In-a similar action the Snow court concluded that Stokes should not govern and respectfully declined to follow it.        That        j court was not persuaded that permissive language was inconsistent with the exclusivity of a federal remedy.      Instead, it relied on the legislative history of Section 210 and language in 01guin
: v. Inspiration Consolidated Copper Company, 740 F.2d 1468, 1475 I
1 Page 11
_-_-___--_-__-_-______a
 
i (9th Cir. 1984), indicating that the "whistleblower provision" in the Mine Safety and Health Act was an exclusive remedy that preempted a state claim of wrongful discharge.      Snow, 647 F.Supp.
at 1518. Further, the Snow court found Silkwood " clearly distin-guishable," concluding that the Supreme Court's analysis of radia-tion injuries was inapposite to a consideration of retaliatory termination. Id. at 1519. The court held that "[t]o the extent that Snow claims he was wrongfully terminated    . . . because he complained about safety violations, his action is preempted by (42 U.S.C.] S 5851."  Id.
In the only reported state court opinion on this topic the Supreme Court of Illinois held, sua sponte, that Section 210 did not preempt a valid cause of action for wrongful discharge.              Wheeler                  ;
: v. Caterpillar Tractor Company, supra. The court found "the situa-tion here analogous to Silkwood and conclude [d] that it was not the Congressional intent to preempt the field."        Id. at          ,
485 N.E.2d at 376. The dissent found the majority's reliance on Silkwood " misplaced" and would hold that "plaintif f's cause of action is preempted by section 210."    Id. at          ,    485 N.E.2d at 379 (Moran and Ryan, J.J., dissenting).
B. Analysis Defendant GE argues that federal law provides plaintif f with an exclusive remedy for claims of discharge or discrimination                                      j in retaliation for voicing concerns of nuclear safety.              Specifi-                      l J
cally, defendant argues that plaintiff's complaint concerns matters of nuclear safety - matters that are exclusively regulated by the federal government - and therefore is expressly preempted.
Page 12 l
 
    . .    ,o Defendant further argues that Section 210 of the ERA provides a detailed procedure for redressing discharge and discrimination claims and that it is so pervasive that exclusivity of federal remed; is inferred. Not surprisingly,. plaintiff contends that this action centers on the regulation of the employer-employee relationship and that matters of nuclear safety, if implicate'd at all, are only peripheral to her claims.      Plaintiff further contends that her claime do not conflict with Section 210 such that compliance with both is impossible and t. hat her claims neces-sarily further the objective of Congress,      i.e., providing nuclear employees an unfettered opportunity to speak out on matters of safety.
: 1. The Complaint With respect to defendant's first argument - that plain-tiff's complaint concerns matters of nuclear safety - to some extent defendant .s correct. Plaintiff expressly states that her termination " constitutes a wrongful discharge in violation of the strong public policies embodied in the laws of the United States, which encourage and require safe. operation of nuclear facilities and require workers to report potential violations of NEC regulations."    Complaint 1 42. However, while nuclear safety is of concern in this action it is only tangential to the action itself, that being plaintiff's claims for wrongful discharge and intentional infliction of emotional distress. Hence, the
'4 court does not believe plaintiff's action is preempted under Pacific Gas & Electric, supra, on the basis that the complaint concerns matters of nuclear safety regulation. Consequently, we turn our s
Page 13
 
r o ,
attention to defendant's second argument and Section 210 of the ERA.
: 2. Section 210 l
The court believes Section 210 provides plaintiff with a remedy for both of her causes of action. Her claim for wrongful discharge cicarly falls within the employer conduct defined and prohibited by Section 210. Somewhat trickier is the question of whether a clain for intentional infliction of emotional distress.
falls within the statute's prohibition of "other discrimination."
However, with the possible exception of her being removed from the laboratory under guard, all of plaintiff's. allegations go to her " compensation, 'cerms, conditions, or privileges of employ-ment."  42 U.S.C. S 5851(a). Furthermore, although unable to      j recover exemplary damages, plaintiff would be compensated for any emotional damages which she may have suffered. 'See DeFord v.. Secretary of Labor, 700 F.2d 281 (6th Cir. 1983). Hence, plain-tiff's injuries as alleged in the complaint would be adequately redressed under Section 210.
In this action the question of preemption initially turns on whether Section 210 can be said to regulate nuclear safety.
If it can, plaintiff's causes of action would be preempted pursuant to Pacifi'C: Gas & Electric, suora. The court le unconvinced, how-ever, that Congress intended Section 210 to be a regulator of nuclear safety and therefore preemptive under Pacific Cas & Elec-tric, supra.
The section, entitled " Employee protection," was designed as "an administrative procedure" to "of fer [] protection to employees Page 14 4
 
E.
i ,;                      ..
(: '
who believe they have been fired or discriminated against as a result of the fact that,they have testified, given evidence, or brought suit                                    . . . ' " under the AEA or the ERA. S. Rep. No. 848, 95th Cong., 2d Sess. 29, reprinted in 1978 U.S. Code Cong. & Ad.
News 7303, 7304.                                      Such protection was necessary since "[ulnder this section, employees and union officials could help assure'                                              l that employers do not violate requirements of the Atomic Energy Act."  Id. ~As the legislative history indicates, protecting an employee's livelihood in the nuclear industry while at the same time encouraging disclosure of potential safety hazards and viola-tions are matters inextricably intertwined.                                          The question, there-fore, is whether by Section 210 Congress put safety or employee protection first.                                      The court believes employee protection was the paramount congressional intent.                                          Thus, in this instance'" pre-emption should not be. judged on'the basis that the Federal-Govern-ment has so completely occupied the field of safety that state remedies are foreclosed but on whether there is an irreconcilable conflict between the federal a.d state standards or whether the imposition of a state standard 'n a damages action would frustrate-  .
the objectives of the federal law."                                          Silkwood, 464 U.S. at 256.
Preemption, therefore, hinges on the operation of Section 210 itself.                                    As part of this operation three aspects of the statute deserve closer inspection:                                        (1) its applicability only to an employee who has not violated any nuclear requirement, (2) the absence
      -6 of a provision for exemplary damages on behalf of an aggrieved nuclear employee, and (3) the speed with which a charge brought under Section 210 must be resolved.
Page 15 h_____._______-._____.__________          - _ . _ _ _ _ - _ _ _ _ _ . _ _ _ _ .                _ -
 
Subsection (g) of Section 210 expressly states that "Subsec-L tion (a)"of this section shall not apply with respect to any employee -
t                                    '
f                          who, acting without direction from his or her employer (or the employer 's agent) , deliberately causes a violation of any require-ment.of this chapter or of the Atomic Energy Act            . . .. 42 U.S.C.
S 5851(g) . Defendant argues that failure to observe the limitation-imposed by Congress in subsection (g) in a state action'for wrongful' discharge could result in the reinstatement and compensation of a potentially dangerous employee.              Plaintiff contends'the limitation ]
would be'taken into account because the employee would be fired not because he voiced safety concerns but because he contributed to or caused a violation of some nuclear requirement.
The limitation imposed by subsection (g) can best be illustra-ted with reference to these hypothetical cases:              Employee A " blows the whistle" on his employer concerning a potential safety vioia-tion. A has not violated any nuclear safety requirements.            Employee B blows the whistle on his employer concerning the violation of an AEA requirement which B himself contributed to or caused.
Employee C similarly blows the whistle; however, while.he neither contributed to nor caused the potential safety violation which he reported he has violated a separate and distinct requirement pp of the AEA. Each employee may successfully show a violation of subsection (a) of Section 210.
The violation will be abated as to employee A but not B and                l C. A clearly falls within the language of Section 210, not having caused'any violation.              B has committed a safety violation, the very one which caused him to blow the whistle.              Even though B Page 16
 
l is successful with respect to subsection (a) he nonetheless is barred from obtaining relief by subsection (g). This bar most clearly resembles the equitable doctrine of " clean hands" whereby relief is denied to those guilty of improper conduct in the matter as to which they seek relief. See generally 30 C.J.S. Equi _tg S 93 (1965). In employee c's case Congress has seen fit to go even further, denying relief because he committed a violation not even remotely related to that on which he blew the whistle.
The impact of subsection (g) is therefore quite clear:    even if an employer has violated subsection (a)  -  i.e., discharged or discriminated against an employee because he voiced concerns of nuclear safety - the employee is absolutely barred from obtaining redress if he has caused a violation of any nuclear safety require-ment. The court is awase of no provision requiring application of the absolute bar in state court actions for wrongful discharge or intentional infliction of emotional distress arising from an employee's complaints concerning nuclear safety. By Aaw the state court would not be required to determine whether or not the aggrieved employee violated some requirement of the Atomic Energy Act or its amendments. Instead, the state court could end its inquiry at whether or not the employee was wrongfully discharged or discri-minated against for being a whistleblower. As a result of the state action, someone like employee B or C who has violated one or more nuclear requirements would be reinstated and compensated.
Subsection (g) totally eliminates such a possibility. Hence, the court believes subsection (g) of Section 210 is strong evidence of Congress' intent to preempt state actions for wrongful discharge I
and other discrimination with respect to nuclear whistleblowers.      {
Page 17                                )
l
                                                                                                              )
I
 
Further evidence of Congress' preemptive intent lies in the absence of any provision for exemplary damages to be awarded to an employee in the event of a violation of subsection (a).            The only possibility cf exemplary damages would arise when the Secretary of Labor seeks civil enforcement of his order requiring the offender to abate the violation of subsection (a) and to reinstate and compensate the individual.        42 U.S.C. S 5851(d). In other similar legislation, such au the Toxic Substances Control Act and the Safe Drinking Water Act, Congress expressly provided for an award of exemplary damages "where appropriate."        15 U.S.C. S 2622 (b) (2) (B) ;
42 U.S.C. S 300j-9 (1) (2) (B) (ii) . See also Solid Waste Disposal Act, 42 U.S.C. S 6971(b) (where Secretary of Labor finds employee has been wrongfully discharged or discriminated against he shall issue a decision " requiring the party committing such violation to take such affirmative action to abate the violation as          . . .
i
[he] deems appropriate, including, but not limited to, the rehir-ing or reinstatement of the employee or representative of employees to his former position with compensation") (emphasis added).
In the statutes upon which Section 210 is.modeled, see.S. Rep.,
supra, there are no provisions for an award of exemplary damages to an aggrieved employee.      Water Pollution Control Act, 33 U.S.C.
S 1367(b)) Clean Air Act, 42 U.S.C. S 7622 (b) (2) (A) . Obviously, Congress has reached an informed judgment that in no circumstances should a nuclear whistler blower receive punitive damages when fired or discriminated against because of his or her safety com-plaints. This judgment is particularly highlighted by the instant action wherein plaintiff seeks $2.3 billion in punitive damages.
Page 18 1
 
Finally, the court is impressed with the speed with which charges brought pursuant to Section 210 must be resolved.                                                                                          Employees who believe a violation of Section 210(a) has occurred must file a complaint with the Secretary of Labor within thirty days after such violation occurs.      From the filing of the complaint the Secre-tary has ninety days either to dismiss the complaint or order relief. The reason for such quick action appears to be twofold.
First, if a violation has occurred the employee is restored to his position without a substantial interruption in lifestyle or livelihood. Further, he remains active in his field of expertise within the nuclear industry.      Second, by requiring a speedy com-plaint the regulatory authorities may discover potential hazards i
and violations that might otherwise have gone undiscovered for an uncertain period of time.      For instance, consider a nuclear facility that is able to cover up some hazard or violation for which an employee voiced internal concerns yet was fired or discrimi-nated against., The aggrieved employee waits till the last day under the applicable state statute of limitations to file suit, normally about three years.      A catastrophe could already have occurred while the employee contemplated filing an action in state court. The court does not believe this is what Congress intended and would permit to occur.                                                            -
The court's review of Section 210 and its history leads it                                                                                          i to conclude that the statute is "a ' scheme of federal regulation
              . . . so pervasive as to make reasonable the inference that Congress left no room for the States to supplement it'.                                                                                        .  .." Pacific Gas &
Electric, 461 U.S. at 204.      Indeed, " [ e] more comprehensive statute could hardly be imagined."      Wheeler, 108 I11.2d at                                                                                        , 485 N.E.2d Page 19
 
at 379 (Moran and'Ryan,    J.J., dissenting).                                        The court reaches its conclusions mindful of the cases discussed above.                                            In contrast to l    SilkwoodTLthis court is not aware of any congressional language recognizing state tort remedies for wrongful discharge and other                                              ;
discrimination. Furthermore, Congress has provided a federal                                                !
remedy for such claims in Section 210.                                            For these reasons this court concludes that the reliance on Silkwood by the courts in                                                f Stokes and Wheeler was misplaced.                                            The latter case was decided without even the benefit of briefing or argument.                                            The court simply.
is unpersuaded by these decisions.3 Based on the foregoing, the court finds that plaintiff's cause of action for wrongful discharge under state law is preempted by Section 210 of the Energy Reorganization Act, 42 U.S.C. S 5851.
Consequently, defendant's motion to dismiss Counts 1 and 2 of
                                  ~
the complaint pursuant to Rule 12 (b) (1) , F.R.Civ.P., is granted on the ground that this court lacks jurisdiction over the subject matter.. Although it appears that plaintiff's claim for intentional infliction.of emotional distress also is preempted ty Section 210 there remains a question as to whether the claim, if valid, may nevertheless proceed in light of the Supr'eme Court's holding in
: 3. The plaintiff has proffered an administrative dicision of the Secretary of Labor which an'alyzes whether the voluntary dismissal of a complaint brought pursuant to Section 210.should be dismissed with or without prejudice. Nolder v. Raymond Kaiser Engi-neers, Inc., No. 84-ERA-5 (D.O.L., June 28, 1985).
The Secretary concludes that such a dismissal is without prejudice and reasons that otherwise the dismissal would preclude a plaintiff's similar claims in state court. Plaintiff argues by analogy that the Secretary would not have addressed the issue of res judicata if Section 210 were preemptive of state claims. Perhaps, but the issue of preemption was not squarely before the Secretary and for this reason the court finds Nolder unpersuasive.
Page 20
 
Farmer v. United Brotherhood of Carpenters & Joiners-of America, 1430 U.S.(290 (1977). This question will be addressed in section III, infra.                                                          I Even if the court did not hold that plaintiff's claim for wrongful discharge is preempted by Section 210 of the Energy Reor-ganization Act, the court would be constrained nevertheless to hold that plaintif f has failed to state a cause of action for wrongful discharge in light of the Fourth Circuit Court of Appeals' decision in Guy v. Travenol Laboratories, Inc., 812'F.2d 911 (4th Cir. 1987).. The plaintiff in Guy alleged that he was fired from his supervisory position at the defendant's North Carolina drug manufacturing plant after refusing.to falsify certain records pertaining to the quality and quantity of phar,'sceuticals that drug manufacturers are required to keep under the Food and Drug Administration's regulations, falsification of which would h' ave subjected him to criminal sanctions.      After analyzing the law concerning employment at will in North Carolina the Court of Appeals concluded that "[a]n employer may terminate any employee for any reason unless the employee has a specific duration contract,.gave some additional consideration for permanent employment, or lost his job for refusing to give perjured testimony."      Guy, 812 F.2d at 915. (The court held that plaintiff-Guy's complaint did not come within any of the s'.Tted exceptions and therefore failed to state a cause of action under North Carolina law.
In this instance plaintiff alleges her discharge from GE was wrongful in.that it violated "the strong public policies embodied in the laws of the United States, which encourage and require safe operation of nuclear facilities and require workers to report Page 21
 
-*..      s.
potential violations of NRC regulations."                      Complaint 1 42. . Plain-tiff, however, has not alleged e.cher the existence of a specific duration contract, the giving of some additional consideration, or a discharge for refusing to give perjured testimony.                        Despite plaintiff's persistent arguments to the contrary, this court may not disregard the pronouncements of the Fourth Circuit when they are.not distingui.shable.                    Doe v. Charleston Area Medical Center, Inc., 529 F.2d 638, 642 (4th Cir. 1975); Spell v. McDaniel, 591 F.Supp. 1090, 1098                    (E.D.N.C. 1984).
Furthermore, the court is not convinced .that plaintiff was under any legal' duty to report potential safety violations.                    Plain-tiff relies-on 10 C.F.R. Parts 19 and 21 and 42 U.S.C. S 2273 for_the proposition that plaintiff could have been subjected to severe criminal sanctions.for failure to report potential safety violations.                    The court has thoroughly reviewed the. regulations and statute asserted by plaintiff as imposing a. legal duty and                        q 1
is unable to conclude that any such duty is or was imposed.                    See Radiation Technology, Inc., 8 N.R.C. 655, 658, 668-69 (1978);
42 Fed. Reg. 28891, 28892 (1977); 38 Fed. Reg. 22217 (1973).
Based on the foregoing the court finds that plaintiff has                      i also failed to state a cause of action for wrongful discharge in violaiion of the laws of North Carolina.                    Consequently, the court will grant defendant's motion pursuant to Rule 12(b) (6)                .
to dismiss plaintiff's claim for wrongful discharge on the alterna-tive ground that plaintiff has failed to state a claim upon which relief can be granted.
Page 22
 
a .
III.      INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS Despite having concluded that plaintiff's cause of action for intentional infliction of_ emotional distress should be preemp-ted, there remains the possibility that the claim,'if valid, may proceed in light of Farmer v. United Brotherhood of Carpenters                                      ;
                                  & Joiners, supra, which will be summarized later.                              First, we examine  l the validity of the cause of action as alleged.
In a recent decision the North Carolina court of Appeals                                    1 addressed a claim for intentional infliction of emotional distress in an employment context on a motion to dismiss.                              Dixon v. Stuart, 85 N.C. App. 338, 354 S.E.2d 757 (1987).                            In Dixon the plaintiff sued the City of Winston-Salem, North Carolina and several of its agents and employees, seeking compensatory and punitive damages for loss of emp'loyment opportunities, injured professional standing, emotional and physical illness resulting in permanent injury, and suffering of humiliation and embarrassment.                            The plaintiff alleged (1) that the. individual defendants unlawfully conspired to hinder, obstruct and injure his career advancement with the City of Winston-Salem and to induce the city not to promote plain-tiff by, inter alia, ridiculing and harassing the plaintiff in the workplace and (2) that the defendant's acts (a) were willful and malielous; (b) caused the plaintiff humiliation and embarrass-ment in the workplace; (c) were extreme and outrageous; (d) caused plaintiff to suffer humiliation, embarrassment, loss of professional status, physical illness and severe and extreme mental distress.
Dixon, 85 N.C. App. at 338-39, 354 S.E.2d at 758.                            The trial court granted the defendant's motion to dismiss the action pursuant l
Page 23
 
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('                                                                                        I to Rule 12 (b) (6) of the North Carolina Rules of Civil Procedure on the ground that the complaint failed to state a claim upon which relief could be granted.
The Court of Appeals reversed the lower court's decision.
In'that decision Chief Judge Hedrick focused on plaintiff's allega-tions regarding ridicule and harassment in the workplace and'that the defendant's acts intended to cause and actually did cause c          plaintiff to suffer extreme emotional distress.      The court held:
We cannot say that it appears beyond doubt that plaintiff can prove no set of facts in support of~these allegations which would. entitle              I him to relief from these defendants for inten--                i tional infliction of emotional distress.                      !
l                        Extreme and outrageous ridiculing and harassing                !
has been grounds for recovery under.this tort before. See, e.g., Hogan v. Forsyth Country Club Co., 7 N.C. App. 483, 340 S.E.2d 116, 4
disc. rev. denied, 317 N.C. 334,- 346 S.E.2d                  i W(lM) ; Woodruf f v. Miller , 64 N.C. App.                    j 364, 307 S.E.2d 176 (1983).                                  g Id_.-at 341, 354 S.E.2d at 759.
I Pursuant to Dixon this court believes plaintiff has stated          l a valid cause of action for intentional infliction of emotional distress. Plaintiff alleges that the acts on the part of GE's management were intended and did la fact cause plaintiff to suffer severe emotional distress. With respect to " extreme and outrageous" conduct plaintiff alleges that GE's management (1) removed her L
from her' job in the chemet Lab under guard as if she were a crimi-nal, exposing her to contempt and ridicule; (2) assigned her to a degrading "make work" job; (3) derided her as paranoid; (4) barred her from employment in controlled areas; (5) subjected her to constant surveillance in the workplace; (6) isolated her from fellow workers and did not even permit her to eat in the Page 24
 
  ~        a company lunchroom with fellow workers; and (7) conspired.to fraudu-lently charge _her with violations of safety and criminal statutes.
Although' defendant GE vehemently contends and argues that plaintiff has failed to state a claim, it neglected in its reply brief to address and attempt to distinguish, if possible, the Dixon decision.
The court, however, believes that under Dixon plaintiff has stated      a a valid claim for intentional infliction of emotional distress.
Therefore, defendant's motion to dismiss Counts 3 and 4 of the complaint pursuant to Rule 12 (b) (6) , F.R.Civ.P. , cannot be granted.
Although plaintiff has stated a valid cause of action for intentional infliction of emotional distress there remains, however, the issue of whether the claim may proceed despite the apparent        (
preemptive effect of Section 210, 42 U.S.C. S 5851, in'11ght of the Supreme' Court's decision in Farmer v. United Brotherhood'of Carpenters & Joiners, supra. In Farmer the plaintiff, a union member,:had brought a state court action against the union alleging that the union had discriminated against him in hiring hall refer-rals and had intentionally inflicted emotional distress on him through a campaign of public ridicule and, incessant verbal abuse.
All of the plaintiff's claims were held preempted by the National Labor Relations Act (NLRA) except a potential emotional distress claim. JbbebasisoftheCourt'sholdingwasthattherewasno                    ;
federal protection offered by the NLRA against a union's outrageous conduct. Farmer, 430 U.S. at 302. Instead the focus of a National Labor Relations Board proceeding would solely concern whether          l the defendant union discriminated against the plaintiff and whether    i a cease and desist order and back pay were proper.      It has been i
l Page 25
_____1________________                                                                          l
 
s"    p held that Farmer created a " narrow exception to federal preemption."
Magnuson-v. Burlington Northern, Inc., 576 F.2d 1367, 1369 (9th Cir.), c'ert. denied, 439 U.S. 930 (1978).
                                                ~
In this action, plaintiff has a federal remedy in Section                                                        i 210. That section specifically addresses "other discrimination" and provides for compensatory damages in the case of a violation. .
With the possible exception of being removed from the Chemet Lab under guard, all of plaintiff's allegations concern " terms, condi-                                                      !
tions, or. privileges of employment."                                                4? U.S.C. S 5851(a) . Being removed under guard would not in and of itself support a cause l
of action for intentional infliction of emotional distress.                                                Hence,      l the court believes plaintiff's claims regarding emotional distress should be presented to the Secretary of Labor pursuant to Section 210. See 01guin v. Inspiration Consolidated Copper Company, 740                                                      l F.2d 1468, 1475-76 (9th Cir. 1984).
Based on the foregoing the court ' finds that plaintiff's cause of action for intentional infliction of emotional distress is                                                            .
l preempted by 42 U.S.C. S 5851.              Consequently, defendant's motion to dismiss Counts 3 and 4 of the instant complaint pursuant to Rule 12 (b) (1) , F.R.Civ.P. , on the ground that this court lacks jurisdiction over the subject matter will be granted.
                                            @                    IV.       
 
==SUMMARY==
 
To summarize, defendant's motion to dismiss is granted as to counts 1 and 2 of the complaint pursuant to Rule 12(b) (1) on t
the ground that the court lacks jurisdiction over the subject matter and on the alternative ground pursuant to Rule 12(b) (6),
F.R.Civ.P., that plaintiff has not stated a claim upon which relief
                                                        ^
l l                                                                                                                                                        i Page 26
 
can be granted. While defendant's motion pursuant to Rule- 12 (b) (6) to dismiss Counts 3 and 4 of the complaint, alleging a claim for intentional infliction of emotional distress and punitive damages is not well taken, these counts are dismissed pursuant to Rule 12 (b) (1) on the ground that the court lacks subject matter jurisdic-tion. The action is therefore. dismissed in its entirety, and the clerk of court is directed to enter judgment accordingly.
SO ORDERED.      M
                                                                                          /                                                                                            .
f                                            %
N F. T. DUPREE, JR.
                                                                                                              / ts A '/L -%I' UNITED STATES DISTRICT JUD February 10, 1988.
be a true I certify the foregoing tooriginsk ;
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  ... : ;;) - p, SERVICE LIST J. Nelson-Grace Regional Administrator Region'II-U.S. Nuclear  Regulatory Commission 101.Marietta Street Suite 3100 Atlanta, GA    30303 Richard J. Goddard i
Regional Counsel I
Region II U.S. Nuclear Regulatory Commission 101 Marietta Street Suite 3100 Atlanta, GA 30303 Mozart G. Ratner                                                          l Suite 600                                                                ,
5225 Wisconsin Avenue, N.W.                                              )
Washington, D.C. 20015                                                    l Anthony Z. Roisman Suite 600 1401 New York Avenue, N.W.
20005                                              j Washington, D.C.                                                            l
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In the Metter of' YERA M. ENGLTSH                                                    CASE NO. 85-EP.A-00002 v.
GENERAL E"ECTRIC COMPANY Metart G. Ratner, Esq.
1900 M Street, N.W.
Suite 610 Washington, D.C.                  20036 Arthur M. Schiller, Esq.
1000 Connecticut Ave., N.W.
Saite 1205 Washington, D.C.                  20036 Tor the Complainant William W. Sturges, Esq.
Weinstein, Sturges, Odom, Groves, Bigger, Jonas & Ca.mpbell, P.A.
810 Baxter street Charlotte, N.C.                  28202 Scott A. Klion, Esq.
General Electric Co.tpany 175 Curtner Ave. M/C 822 San Jere, CA              95125 ror the Respondent Bef0re:                      ROBERT J. BRISSENDES Administrative Law Judge DECISION AND ORDER This is a proceeding under the Energy and Rec >rgan12ation Act of 1974, as amended, (hereinafter referred to as the "Act'),
42 U.S.C. S 5951, and its implementing regulations., 29 C.F.R.                                            Part 24.
The Complainant Vert English filed a complaint with the United                                            1 States Department of Labor, under 29 C.F.R. 5 24.3, on Augest 24,                                                          '
1984, and an amended complaint on August 27, 1984. Her Complaint alleged discrimination as a result of the initiat:.on of and the
 
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          .                                                              r.:-
participation in Nuclear Regulatory Commission (hereinaf ter NRC) ir.vtstigations of facilities at the Respondent Central Electric Compr.ny (hereinafter GE) plant located in W11mingtc.n, North Ctrolina. On Cetober 2, 1984, following an investigation, the Administrator of the Wage and Hour Division, E.iployment $ttndards Administration, Departrent of Labor, concluded that English had        '
been discriminated against as defined and prohibite d by the Act and 29 C.F.R. 5 24.4. Tne decision of the said Administrator was tppe tied by both Complainant and the Respondent.                        i A formal hearing was held in Wilmington, North Carolina, from December 17 to December 19, 1984, and a second sess, ion of the hearing was held on March 19 to March 28, 1985, at which times the parties were afforded full opportunity to present evidence and argument. The findings and conclusions in this decision are based upon n.y observation of the witnesses who testified at both sessions of the hearing, upon an analysis of the entire record, arguments of the parties (both oral and written), applicable regulations, ste.tutes, and case 1sw precedent. By agreement of th parties, time constraints applicable to this case were waived. / On April 5, 1965, an order was issued setting the court's time limits on the submission of brio f s and proposed findings of f act, Fee and Cost Fetition, and the resp 0nst by GE to said petition. The Order also clearly indicated that the record, for the submission of evidentiary documents or any other documents, was closed.      On June 27,.1985, because said order had been . ignored, as was evidenced by numerous documents mailed in to the judge's San Trancisco office, another Order was issued advising the parties that any documents          l submitted which were in contravention of the April 5,1965, order          l would not be considered. Accordingly,_ Respondent's Motion to Strike a Portion of Cetplainant's Brief is granted and no documents or material submitted post-hearing is considered part of the evi-dentiary record.
StateSent of the Case Vera English was an employee of GE from November 13, 1972 to July 30, 1964, Eng11th werked ir,puringthetimesrelevan[*tothiscase,Mrs.
the Chemet Laboratory. /                              j 1/  Ch0rtly after the first session of the hearing, the parties had w&!ved the time constraints of 29 C.F.R. S 24.6, bneause of the nteessity of having the hearings continued into a necond session.
Additionally, in order to allow time for the submission of post-hcaring briefs,cthe parties have agreed to waived the requirements of 29 C.F.R. $ 24.6(a) and 24.6(b).
2/    Hany of the allegations and contentions of both parties were        I too far removed in time to have any significant relevance to this          I case. Accordingly, although Mrs. English worked in the Chemet Lab      '
l for twelve years, other than for taking cognizance of complainant being an experienced laboratory worker, under the provisions of 29 C.F.R. 5 24.5(e)(1), the time frame was limited by this judge to 1962 to 1984.
                                          .o.
 
    .                  '5:-      :cca                                              e.es.e:                                  17::7 a c i.0; m .: d! m: _ w ET c. s a r m ::s: cr.                                                                            p,c2 On March 5, 1984, Mrs. English was an hourly worker in said le.boratory.            At that time, she was working on the tahift known as the "B" shift. In that particular week, she started working Sunday fror 7:00 a.m. to 3: 10 p.m.                    She worked the same hc.urs on the fifth, tixth tnd seventh and eight of March.                      She then switched to a d:fferent shift, on Friday. This was her nornal routine during that month'. Her' shift Friday evening, started at 11:00 p.m. and went on to 7:30 a.m., a shift cotronly referred to as a " graveyard" thift.          She had no immediate supervisor to bring corplaints to until the following Sunday evening, when a William Lacewell came on dety.        It was in the week prior to that Sunday, sta.rting with Monday, March 5,19 84, that events occurred which had gre at bearing on her renoval by management f rom the Chemet Lab arid the eventual termination of her employment with GE.
Tht Chemet Lab included what were known as " controlled arcas".f/              Mrs. English had made complaints to the NRC and to GE mtntger.ent in years prior to the March 1964 period of time, but the parties were licited to the time frame above-mentioned (see foot-note 2, supra.). Mrs. English had contacted the NRO on August 29, 1962 and on February 13, 1954.                      Investigations into her silegations vere conducted by the NRC on September 7 - 10, 19E2, and March 26 -
29, 19E4.              The care February 13th allegations were brought to the ettention of CE managerent in a written report by Complainant, 3 / ine chemet Lab is a part of a large building wf. thin the GE Iceility in Wilmington, North Carolina. There are various labora-tories within the Chemet Lab.
The plant is involved in the production of fuul bundles of uranium material, and said " bundles" are intended for use at re-ector sites for the production of electric power.                      Additionally, uranium powder is produced, pritarily for sale to overseas custo-                                                                    i mers. The Cheret Lab had areas calling for certain precautions, i.e., controlled areas.                    Persens leaving a controlled area must use a monitor or frisker, which is a band held unit used to check for radiation contamination on any part of the body, including                                                                      i htnds, feet, face and clothing. Another precaution taken, within the lab, are hoeds with fans to p;11 off airborne contteination tvty fror an individual who is working under that hood. Within the controlled or "aemi-contro11ed' areas the lab workers must wear gloves, a lab coct and safety glasses. These workers work both with powder and liquid solutions of uranium. There are narble ttlea with mcrble legs for use by the lab workers. The marble etterial is not affected by vibrations and is easier to clean than other material. Safety rules require that any spillage of uranium powder or uranium liquid ,be brushed or cleaned off from time to time during the work hours, and especyally before leaving the work shift, u.________._________          _ ._                _ _ _ _ .      __._Q__
 
:. :. E [ [b rr m::. :-:< ci ' ta. r m ::::t ::
      .                                                                                                                              p.cr deted February 21, 1984.        An examination and investigation of con-ditions, upon which Mrs. English's complaints were based, was con-ducted by GE on March 8 - 21 and March 26 - 30, 1934                                                                      CE's Quality Acsurance Review report, dated April 26, 1984, revealed that ccveral of P.rs English's tecusations of violations of corpany prac-tice tnd procedure had substance. A prior GE Chert Lab Safety peview report (dated March 29, 1984), concluded that safety proce-dures and conditions in the lab were adequate. With reference to the ttre allegations, NRC concluded that they we re unsubstantial-
: 06.                                                                                                                        ,
Clain ant's work in the Cheaet Lab consisted of quality control duties, in which samples of uranium powder are weighed, oxidised, weighed again, dissolved in nitric acid and finally weighed again.
I The analyst is then able to determine the concentration of urantun in a given sample to ascertain whether the proper " mix
* has been                                                                                  !
secomplished. On Monday, March 5, 1984, Mrs. English was in the process of veighing a sample when she found contami, nation left by the prior shift. This occurred again in the following three days.
Mrs. Eng1!sh testified that the nature and amount of contamination                                                                                  !
required her to do considerable work to clean it up before she                                                                                      !
could start on her own work.        She believed that the tale workers,                                                                            l I
vho werked the shift just prior to hers, were careless and sloppy in their work. She felt that they depended on her to clean up.                                                                                  ,
Ae:ctding to Mrs. English, the contaritation was quite visible to                                                                                    '
anyene. It was on her work surface and on a nearby microwave oven, a piece of equiprent used by her and the workers en the prior shift. Additionally, she found uranyl liquid contamination (pro-ducing a yellow stain) on twe legs of her work tatie.                                                                      She cleaned all of this up for several days, then on Thursday or Friday, she again found new stains and contamination elsewhere. On this occa-sion, knowing that there was no supervisor present until Sunday, she stated that she put red tape around the stain en the table legs                                                                                !
so that she would be able to point it out to her s.upervisor, Bill Lacewell. Her purpose was also to indicate the areas of contamina-tien as a warning to fellow workers.          She testified that she pur-pesely left the contamination, oatlined by red tape, so as to prove to ranagement that her co-werkers were extremely lax in their per-forrance of clean-up duties.        So e of her prior corplaints, in her vicw, had re cived little attentien since she was thought to hcVe insufficient proof of malfeasance by other enployees.                                                                      She felt that this wcs because she alvtys pron.ptly c;eaned up visible conta-rination, therefore she had nothing tangible to show r.anagement to back her accusations.
l Ehe recalled that the red tape and the contamination was still there on Saturday and Sunday.        Sunday evening, tho first night after Thursday, that a regular supervisor was on duty, the Com-plainant promptly discussed the mattes with supervisor Lacewell.
Mrs. English was firm in her contention that she had not delib-erately contaminated any part of her work station, and that she had clerned the contamination left by others.                                                                    With the exception of the portion of contamination outlined by red tape, all had been                                                                                    h 1
s i
 
rs:- :ee4                                            c.es.e: in s:
                        . a 'd: . .u : : . . / >E-  t1 w sm rm;;5;; 3                          c , e.g eltened.        She admitted the intentional              said contamination for the purposes heretofore mentioned. yShe          leftstated that she, at that time, trasted Mr. Lacewell more than other management person-rs e l . Che had on nanerous      oocations brought up the problems of tno deftetive ricrovave even,            the workers not using the "frithers" on Ictving controlled arets,            and the constant failure to clean up          -
contamination at her work            station, but managacent, according to her, did not show serious            concern on these sab:ects. Mrs. English vis of the opinien that ranagement's main concern was keeping up prod;ction so that safety was sacrificed, and accordingly her r;periors did not appreciate her pointing out unsafe practices of fell 0w workers.        She strongly felt that $UCh practices endangtred her health and the health of cthers.
In her reporting on her concerns that Sunday evening, she peinted oat the contaminated table legs outlined by red tape.1/
the advised Lacewell, at that time, that she did not intend to keep c16aning up for other people. She also related her concerns on what had occurred in the prior week, including the microwave defect that allowed leaks and fumes strong enough to give her a headache.
the asked permission of Lacewell tc ute the "frisker" (personal survey device) to check oJt certain areas of her verk station.
Lacewell granted this request.
To sc e extent, Lacevell, in his testimony corroborated Com-plainant's s: cry with reference to the nicrowave oven, her mention of the red tape and expression of her concern over other e.tployees' spillage.        However, he denied that she pointed o;t the contamina-tion surrounded by red tape, or seeing the red tape.
                              !;bst cent to the above events there was a correction of the ricrowavedefect, and an inspection and cleaning of the area by CE personnel.        All of which necessitated work steppage in the affected creas of the laboratory. Additionally, as a consequence of Mrs. English's March 1984 complaints (made to NRC and GE), a series of communications, both written and oral, between management and V.rs. English began.          Varicus meetings were held, some with Mrs.
English present and so e without her presence. Certain charges were set cat in a letter dated March 15, 19E4, which included:
1    the unaath0rized renoval of the personal servey instrument from the entrance to the laberatory;
  .                            2. the deliberate contamination of a table; 1/      There was a dispute by management as to the use of red tape to designate a " hot" area.          Some of the documents the.t Claimant relied on were ambiguous and confusing with pef erence to the use of red tape.      Management claimed that red tape was to designate areas of storace of uranium products rather than to designate areas where rpills had occurred.
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: 3.        failure to clean up contamination, knowing it existed:
: 4.        the continued distraction of other leboratory cLploytes    and
: 5.        disrupt' ion of normal laboratory activities.
Mrs. English appealed said charges, and during the corpany appeal process, it was finally determined that the 'frisker*
rtmoval had been authorized. As to charges No. 2 and No. 3. GE's witnesses did not seem in total agreement as to whether said charges had merit or not.          All but No. 3 were dropped or at least it was dee!ded that no action would be taken in regard to same.
Action was taken on the No. 3 infraction.
The punisheent dealt to Mrs. English for " failure to clean up eenttmination, knowing it existed" was removal from the Chemet Lab and assigntent to some rather tenial work in the Building 'J" Central Stores warehouse. Complainant testified that a man was atsigned to watch her constantly and that she was heriliated in an incisent eeneerning her shoes. At sore time s;bsequent, Corplain-tnt vas advised that she would have to " bid" for an open pos: tion, that the qualified fbr within the GE plant, provided that it was not one within the Cnenet Lab.          A ti e limit was set and, there
{
{
apparently existing no such positions, she was involuntarily placed            '
on a 'isek of suitable work
* status. There is nothing in the recor6 to show that any ' suitable" work position was ever offered to Complainant. Further, the record is devoid of any rebuttal evidence to Mrs. English's charge that she was the only person over rtmovto from the Chemet Lao for failure to clean up cor.tamination.
She was credible in her testimony that other workers had caused the contamination and there was no evidence to the contrary. Further, the evidence clearly shows, without contradiction, that at least one shift and possibly two (not counting hst shift) failed to clean              I up visible contreination. The area of contamination was outlined                I with red tape, whether such method was consider 6d proper for deal-ing with the situation or not, the red ttpe tdded to the visibility of the contamination. Yet, no one using the gene work table, in othLr sh;fts, bothered to report this nor to clean it up,                    i Tcstireny by GE managesent made it quite obvious that the sheer nJ-ber of the cerplaints made by Mrs. English to NRC (and to managerent) brought about a cessatien of work due to the GE's                  j investigation anc nettings and the concomitant NR0 investigations.            !
The letter investigations resulted in a rather mixed series of findings.57                                                                    j
                  }/ The severity Itvel of violations for an NRC licensee, Such as the CE Company, are graded free one to five.          The larger the num-ber, the less severe the violation.          Severity 1evels I and II in-volve very significant violations: level til violations are signi-
                                                                                                  )
ficant; level IV violations are significant if left uncorrected:                l and level V violations are of ninor concern.          (Cont, on pg . 7)
 
i i
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87817
                                                                                    ,,n        l I
The annoyance caused by Mrs. English's allegations, whether                    l justified in management's eyes or not, coupled by t he embarrassment                  {
cnd involvement of much of GE't management personne:1 with the HRC invectigetions, appears to have c91minated tround the March to May 1!04 pcriod, sithough SRC investigations continued during reptember, November and December of 1964 and January and March of 1965.              '
Mrs. English testified as to some rather bizarre serias of break-ins into her home, corroborated in part by police. testimony.
Insufficient proof'was presented to tie in GE employees.
Co plainant called a psychologist, Dr. Peter Boyle, who testi-fied that he was of the opinion that the actions of management, as related by Mrs. English to him, brought about a depressed and fear-ful emotional state.      He reached this opinion after lengthy inter-views and the' administration of tests that included standard intel-ligence tests, multiphasic personality inventory and the Rohrschak
          . ink blot test. He also reviewed her medical records and discussed with her the impact of the various actions taken against her by GE, during.her final years of employment.            He determinted that Mrs.
English was candid in her reports of her symptomology, and that she was neither paranoid nor suicidal. His diagnosis of her condition was that she was suffering from a severe ad est en'; reartier, coJpled with mixed emotional ftatures, nerely depression and
          " anger" (clinically termed " agitated depression"), all associated with stress resulting from her work situation. Specifically, her emotional problems are a cumulative effect of va;ious stressful occurrences that Mrs. English experienced during her employment with Respondent. Dr. Boyle's prognosis was that the condition is trectable-with supportive psychotherapy, including medication. Me opined that Complainant should continue treatment once a week for at least six months.      A Dr. Bill Knox, M.D., has been treating her on referral from Dr. Boyle.
Unfortunately, nothing was elicited on the cost of such treat-ment from Dr. Boyle.
IEE~b cont.)
Telieving the above discussed allegations, which were reported to and investigated by both GE and the NRC, Mrs. English filed additional allegations with the SRO in May and June of 1984.              The letter complaints were not rep 0rted to GE, though 3E learned of                    ;
them through SRO investigations.        A hember of the May and June allegations were werely reiterations of the previously filed com-plaints. Of the 35 allegations investigated, five were found to be severity level IV violations ene (failure of personnel to use parsenal survey devices) was determined to be a corrected prior violations seven were partially or whally substantiated, but ware not deemed violations of NRO regulations or license requirements; one was unresolved and two were not addressed. Three level IV violations and one level V violation were found to exist on the
          . basis of independent NRC determinations. (see ALJ Exhibits 5-12, incl. Employer's Exh. 11')
ns,
 
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* a ". w. e &                                                              mer D:seussion of issues The ultimate icsue in this case,- it- whether the Respondent discriminated against Vera English due to her engtging in " protect-ed activities'.. Such activities, in the instant case, being the                                              '
inititting of and, cooperating with the investigations of HRO.
in erder fer a Complainant to prevail'on a discrimination clair under the Energy Re:r;inization Act, 42 U.S.C. S 5E51 (here-inafter ERA), the Complainers must prove thets                                    (' ) the party charged with discriminatit. is an employer subject to the Act; (2) that the complaining exployee was discharged or otherwise diser:ri-nated against with respect to his compensation, terms, conditions                                              i or privileges of employment; and (3) that the alleged discrimina-                                              l tion arose because the employee participated in an NRO proceeding.                                              1 DeJord v. Secretary of Laber, 700 T.2d 26), 286 (6th Cir. 1963).
Dnce tne erployee sKows that an illegal notive pinyed some role in the discrir.inatory act(s), the burden thifts to the employer to prove that he wo?id have discharged or taken whatever discrimina-
                            . tory action was proven, even if the protected activity did not occur.              Maekowiak v. U n i v e r s i t y N u c l e a r_8 y s t__c r s , : n e . , 7 3 5 T . 2 d 1159 (9th Cir. 1964).                    See als: ti',RB v . T r ansp:f t i? Ion Mana;erent Coro., 103 S.Ct. 2469 (1983).
It was con =eded that GE was an arp10yer subl 4ct to the ERA.
The banishment from the Cheaet Lab and the. Subsequent discharge (for that is what it amounted to, regardless of the euphenism used by Respcndent), clearly af f ected Mrs. Englith's terms, conditions and privileges of eeployrent; and on her discharg4 date, the.effect ves tctal on her compensation.
The disciplinary actions of Mrs. English's empicyer coincided, in tire, with her strongest worded corplaints in March of 1985, and
                              .the meetings and ecmmunications, prior to the banishment from the icboratory, concerned the subject of her actions in atterpting to                                            i correct what she considered violations of NRO req;irerents.                                                  I 7nere is little doubt-that this lady was a dif ficult emp;oyee te hendie, that she disrepted w:rk activity at ti.es, and that'some of tr.e tire her complaints had only minor terit.                                    Nevertheless, it als: appears true that many of her corplaints had a proper basis in fe::, a-d that her concern fer her own safety and the safety of f ellev empicyee was a strong f actor in her allegations.
{                                              The gitt of Respondent's chief defense to the substantive
!                                charges was that Mrs. English was a high strung, nervous voman with L                                r.arked and emotional reactions to practices that were not within her perfectionist's point of view.                            To bolster this defense theory, a somewhat selective chart of charges'made to the NRC and the NRC findings was presented by Respondent. The contention was that the majority of compla'nts resulted in findings of 'no merit' or, at most, a minimal vislation.                        A review of the NRO rindings does not ind:cate such an innocucus con:1usion with reference to CE's record                                        l
 
4 f8                                                                                          .
0 6 . f '-    '* 7 t *~*
                                                      . : , . ' "- :'004'    u m ... .--. ci  . :-.                                    --4. m . v.                                                    .,,c with the NRC.                            This " scorecard", however, has little to do with the central issue. Unique or inportant information is not required.
The need to protect channels of information f rom being dried up by t ploycr intimidation is the purpose of the Act, nct the disclosure of ptrticular types of information, pelord v. Secre tarv ef Labor, su-                        Nevertheless, Respondent wo;16 have a valid detense if it Eebra. preven sufficient justification for the discip3inary actions
                                        .tthen, e; art f ror Corpl ainant 's par ti cipa t ion in g3 o t ected_ act i-v_its On the last day of the he aring Mrs. English bE Care overwrought and-indulged in an outburst which lasted several ninutes, the suo-ject of which was the frustration that she f elt ove r her employer's refasal to give credence over her concerns on hazardous practices.
Tron the def ense point of view such an emotional resppnse to cress-examination tended to s;pport the contention that Complainant                                                                                                              ,
ves an unusually excitable individual, therefore herr disruption of                                                                                                              '
the lab and its workers gave Employer reason to renove her. On the                                                                                                              l other hand, considering the unrefuted testimony of the psycholo-gist, this behavior- at the end of a long trial, could reasonably be interpreted as syrpteratic of the eactional stete which had rctulted frc                    Enployer's discriminatory actions.
Additionally, FeSponden- urges that the banishrert fron the Cheret Lat and the sabsequent discharge was wn:11y ;;stified by Mrs.                English's serious infraction of the " failure to clea                                                                          up visible contamination" rule.                                                      GE's management witnrsses testified that they considered such actions as a reans of entraprent of Radiation Saf ety inspectors for the company.                                                          Management felt a concern as to the lengths that Co plainant would go to in promoting her views on safety practices, and therefore centifered her a threat to other employees' saf ety.                                                          k'hile this ray be logical, if
                                              .rcna event's view of her personality is 6ecepted, this expressed                                                                                                        '
concern with safety is belied by Respondent'. inertia in regard rcpeated violations of safety raies by other employees. One ex ceple of thin' being the f ailure to investigate why the uranyl stain was not cleaned up by any other party prior to the Monday fol'.owing Ccaplainant's repert to Lacewell.
E p' oyer's b;rden req;1res that it prove at affirmative
                                                                          .                                                                                                                          de-ft se,              i.e., it has the b;rden of persuasion.                                              Mia H e L i t h y v ._
00 Vie. 429 U.S. 274, 97 S.Ct. 56B, 50 L.Ed.16 ill. In deal notive
                                                  'cIles,,the erployer bears the risk that the.itgal and tilegal notives cannot be separated. An effort east be made to sort o;t these notives. The presence or absence of retaliatory motive is a legal conclusion and is provable by circunstantia'. evidence.
Mackowiak, supra. at 1162 and 1164.
In the instant case, Respondent's witnesses were not be-lievable in attributing the discipline imposed on:                                                                    (1) regards for other employees safety which was ostensibly endangered by Mrs. English's actions and complaints and (2) for the ' deliberate" violation of the clean-up rule.                                                          Wnen the whole of the evidence is conaidered, there appears no adequate explanation as to why:
9
 
  .                            t 3.!' I#((m -:u:e e      o_ su, .::.,::s;o c:.                      p, (a)  no investigation was made concerning other employees, including management, failing to clean up visible contaminations (b)  cuch crployees, if kncvn (and logically, at least some vere known) vere not punished or admonished in any vays end (e)  the infraction of failure to use persetal survey devices
                          $as co lightly regarded with reference to punish ent vis a vis f a:1;re te clean up visible contamination._*/
Additionally, the coincidence of a series of allegations by Mrs. English culminating in the March 1964 serioet charges and various rettings directly connected with the March corplaints with the banish ent from the Chenet Lab is a factor that carries con-siderable weight.      Farther, the neetings, as tastified thro;;n renagcnent's vitnesses, came across as inquisitions to find charges that would ' stick", not a true investigation into the validity of eeneerns over general laboratory safety. Mr. Lacewell was concern-ed about "entraptent' of Radiation Safety personnel and Mr. Sheely about ' flagrant violation of work rules'; neither supervisor, as far ts can be ascertained fro the record, made any great effort to preperly investig ate Mrs. English's co plaints on saf ety. The one            i reie that Mrs. Engitsh technically viciated, it nay therefore be inferred, was a pretext for getting rid of an erpioyee wne vould              !
                                ,c : step reperting violations to NRC. Notices at the plant and              l other information which Mrs. English understood as citing her duty to report vio*.ations, were apparently accepted by her at face                '
value. Nothing in the record, briefs or in my research indicates that the narber and freqJency of reports of violations to NRC execses discipline against the ecployee reporting. Indeed, all violations are to be reperted along with the erpleyct's failure to            l take adeq; ate corrective action.                                            !
Ce f ense Metions to Dismiss and/_or For Summary J uderen_t :
I The actions are based on ERA sections 210(g) and 2iO(b).              ]
ne retion on timeliness was previously denitd on S0vember        1, i!E4, v! h perrics!on to bring it assin after the close of tne httrini._g/
5ection 2'C(g) of the ERA, 42 U.S.C.A. 5 $65'(s) provides:
Subsection (a) of this etetion shall not apply with respect to any erpicyte who, acting without diree-                4 tion fror his or her erplcyer (or employer's agent),
i V vs. level IV NRC designa-1/    Even tions, a taking into account the levr five day suspension appears          have been the heaviest      l punishment dealt to anyone.
                                ]/    Said F.uling and Order is incorporated herein my reference.
                                                                        ..a.
 
                      ":- : n
* s.ee.e  pi:7
  ..            4.4.0:    er ::  ar m::r:-S t- :_ s m ru c:n 3                            e, u deliberately causes a violation of any requirement of this chapter or of the Atomic Energy Act of 19 54, as trended (42 U.S.C.A. 5 2011, el seg.)
Thtre VEC no evidence introdcced to indicate that the +ilure
* to clean up a spill of uranyl would constitute a violatio-                  any portion of the Atorie Energy Act. However, such a failure to act wts censidered a violation by NRC, and therefore could be consider-cd a " requirement
* es called for in the above statJte. Ass; ring tht: such is the case, 1 60 not consider that Mrs. English de-literatly caused a violation under the circumstances of' this case.
Respondent contends on one hand, that Mrs. English's only recourse with regard to discovered violations was to report them to n.anage-ment, which she did to no avail, or to the NRC. On the other hand, Eespondent would have Mrs. English continue to abate violations etered by others--namely, to clean up contamination lef t by em-plcyees on prior shifts in violation of NRC requirements.              GE can-net have it both ways.          I find Mrs. English's statement credible that she had not caused the uranyl stain on her work tab'e.                Her outlining of the results of some other person's negligence and failure to clean up was in effect, at the same time, a notice to nana;erent and a varning to fellow workers of the visible contami-nation.        Einee Mrs. English had nany tires in the pest cleaned up eentamination caused by other persons in their preceding shifts, she was entitled to expect that sottone other than she would clean up or call attention to the urery; stain. Further, I found her credible in her testimony that she brought the stain and red tape to the attention of her inrediate sepervisor, Mr. L60evell, as soon as he vas availab'e    . to observe the sare first hand. Once the catter was brought to attention of nanagement, an order should have ictued to clean the stain.          At least the Radiation Safety men should have been called in to view the situation. Mrs. English, as heretefore stated, Xnew that the cocid expect n0 credence to her corplaints without tangiDie evidence. In demonstrating the mal-feasance of others, she took the only reans availaole to provide visi le proof to support her past and irmediate alleg ations.              Her demonstration of same was used as a pretext f or re taliatory action, tnd by way of Respondent's motior it is also used as e basis to                !
defeat her claim. Te allow the latter voeld be patently unfair and defeat the parp;se of the Act. This was net an ac t done delib-erately to invoke " whistle blower
* protection, rather it was a reans of reporting violations, albeit unorthodox.            See S. Rep. No.
E46, 95th Cone., 2d Sess. 30, reprinted in 1976 U.S. Code Ceng, &
Ad. News 7303', 73C4; Hochstadt_v. W0reesIer Fou.dtjjon Tor Experire tal Biology, 545 F.2d 222 t '. s t Cir. 19'Il.;/
<              [/      In determining whether Claimant's conduct aficirded an indepen-dent, nondiscriminatory basis for disoharge, or whether it was pro-            ,
tected activity, the court must determine whether Claimant's over-l all conduet was so generally inimical to Employer's interests and so excessive as to be beyond the protection of the statute.              The court must balance the setting in which the activity arises and the interests and motivations of both Employer and ciployee.
H o gk _s_ t a d t , ibid. at pages 229, 230 and 232.
_4._                                    ,
I
 
                                                    .L U [:#$N
:  v..H-0.t  c_smr:1.::s:s :                        ,m The action based on section 210(g) is denied.
With respect to the defense. potion under section 210(b), I find that Mrs. English's complaint was timely filed. Section 210(a) profides in pertinent part that 'no 6mployer. . . may dis-charge any employee or otherwise discriminate against any erployee with respect to his. . . employnent. . .
* 42 U.S.C. 5 5951(a).
Section 210(b) provides that "any erployee who believes that he has been discharged or otherwise discriminated against. . . ray, within thirty days after such violation occurs, file. . . a co-            with the Secretary of Labor.    .
                                                                              . alleging such discharge or Eple!nt iserimina-tron '    42 U.S.C. 5 5851(b).
Mrs. English alleged in her complaint continuing acts of discrimination by GE, as a result of her protected activities, from pseender 15, 1963, eu1rinating in her transfer out of the Chemet Lab on March 15, 1964, and her discharge on July 30, 1964.      GE centends that the thirty-day statute of limitations began to run on May 15, 1954. By letter of that date, Mrs. English was notified that as a result of her intentional failure to clean up contamina-tion she would not be allowed to return to work in controlled areas, that her tenporary reassignment would be e> tended for ninety days beginning May 1, 1984, that open placerent p:.sitions vould ce rev'ewed in an effort to find suitable work for her, and that, in the event that she failed to secure perranent p14recent by July 30, 1954, she woJ1d te " involuntarily placed on lack of satteole work" states. Mrs. English alleges that GE's purported effort to find suitable work for her was n.erely another pretext in its efforts to    >
remove her fror the company.
GE's tell&nce en the cases of Chardon v._Fernandez, 454 U.S. 6 (1981) and Delaware State _ College v. Riexa, 448~U.S. 250 (1980) is cisplaced. Tnose cases involved ractal discrir.ination in the denial of tenure. In each of these cases, the complainant was denied tenure and given a one-year " terminal" cont.reet. The court held that the proper focus is on the time of the discriminatory tet, not the point at which the conseq;ences of the act become ptinfal. Lickt, 449 U.S. er 258; charden, 454 'J 5. at B. In said etr6s the fiet of terrinatien was not in itself an illegal act.
Furthct. re, neither complainant alleged any illegal acts subse-q;ent to the dates on which the decisions to terrinate were rade.        ,
in the incttnt ratter, the statute specifies that discharge is one      j tvent spen which a corplaint rey be predicated, and is thus an          1 illegal act in itself. Additionally, Mrs English has established &      {
centinutng violation; "a series of related acts, one or more of          i which falls within the limitations period." valentino_v. U.S.            j Postel Service, 674 F.2d 56, 65 (D.C. Cir. 1952).                        '
Mrs. English, therefore, did not meed to file shortly af ter the first of the discriminatory acts, nor at any time prior to the discharge. If this were not so, an Employer could easily circum-vent the statute by minor acts of discipline, followed by a dis-cherge tired beyond the requisite time limit.
l                                                                                      O
 
  '~
rs:- :ees
* 5.es.e  tria:
                                  . 1 0: > H :: : 07 ":: . :-ri E      c., 5 m rm e n ; ta                          c,9 GE's motion, on both grounds, is denied.
scse'd on the foregoing diseassion and the ruling on the me-                    j
          . tion, I take the following findings:                                                                        q
: 1. GE was an en.ployer subject to the ERA (Act}.
: 2. Tne Respondent employer discriminated assinst Complain-ant, by (a)      banishing her from the Cheret Lab, and (b)      discharge from employment with GE
: 3.      Said discrimination was notivated by Complainant's initiation of and participation in NRC proceedings investigating                                      j Enployer's facility, specifically the Chemet Laboratory.
: 4.      Respondent did not carry its burden to prove that the above discriminatory acts would have taken place, even if the protected a:tivity of this Cc plainant had not taken place; i.e.,
the charge of " failure to clean up visible contamination" was a pretext.
S.      Complainant, throsgh her testieony and that of ner wit-nesses (including psychologist Boyle) adequately established causal connection and the basis for compensatory dar. ages and other relief provided by section 5851 of the Act.
: 6.      -The evidence of record considered for No. 5 finding s'af-ficed withoat the necessity of evidence by an economist.
It is eeneluded that Complainant estabi;shed a case of d1Eeri-rination against Respondent, and in that regard the deelsion of the Administrator of the Wage and Hour Division is affitned.                                    With reference to the relief to be afforded, I have followed the guide-lines of Otrord, supra. Accordingly, 1 mast order the reinstate-rent o f Kr s . English's forrer position since that is what the stEtJte, as interpreted ~by the DeTcTd CcJrt, Clearly sets forth.
One balance, of the relief provided, also has been kept strictly to the boands of the remedies outlined in the ststute. Derord,                          -
rupra., at page 289.
A1torneys_'_ Jee s_ and Cos t s The exprers statutory provision for complainant's attorney fees is as follows in the ERA:
If an order is issued underethis paragraph, the Secretary, at the request of the complainant shall assess against the person against whom the order is issued a sur egaal to the aggregate enount of all costs and expenses (including attorneys' and expert witness
?
 
      ':                  ''? 3*                        .
                                                                                                                                        ' e.es.c:                                  sr>4 '
c' r..          gr.. r u ,::::.:.::.
4.1 :: 't! :::c? n::c :-:                                                                                                                                            ,,
fees) reasonably incurred, as deternined by the Secretary, by the complainant for, or in connection with, .the br:nging of the complaint upon which the order 1s'tesued.                                42 U.S.C. $ 5851(b)(2)(b).
Co plainant'.s attorneys have filed petition for fees and costs along with numerous sspporting doeurents.                                                              The totti of atterneys'                                            j ces tnd expenses claimed is $543,660.95.                                                              Resp:ndent f!!ed a                                                -1 Merorandur in Opposition to said petition.                                                                                                                                  !
The' determination on whether the items listed were " reasonably-incurred" requires a logical starting point. Two cases, frequently cited in attorney fee matters, have been used to provide the out-line for this subject.
In the Lindy Brothers Builders, Inc.                                                        v. Aterican Radiator 6 Standard Sanitary'YoFp., 4BT r.26 161 (3rd cir. 1973) the <1oee; star'' approacn was : set forth. Under this analysis the number of hours spent and the manner that they were spent is first coneider-ed; next the re6sonable hourly rate is fixtd, considering the tttorney's reputation and states (contingency asptets and quality ray in:rease or decrease the "lodeltar*, which is the figure for hours tires hourly rate).                                                          In Johns;n v. Georcia_j!qhway Express, ne., 455 1.2d 714 (5th Cir. 1974), a tace 4:scr;nination case,                                                                                                              .
E7elve factors were recited:                                                                                                                                              j (1) the tine and labor reqeired: (2) the novelty and                                                                                                              .
difficulty of the questions involved; (3) the skill                                                                                                            .
necessary to perform the legal services properly: (4)                                                                                                          j the' preclusion of other erp*oycent by the attorney due to the acceptance of the cases ($) the customary feet (6) whether the fee is fixed or contingents (?) the                                                                                                                j time limitation 6 imposed by the client or circumstan-ces; (6) the amo;nt involved and the results obtained; (9) the experience, reputation and ability of the attorney; (10) the undesirability of the caser (11) the nature tnd length of the professional relations with the client; and (12) awards in similar cases.
Counsel for Respondent, in his rerorandur suggested categories for the iters of work to facilitate determining whether the hours were reasonab*.y spent.                                                        I have kept this in mind. In ccpeland_v.
  ,                  Marshall, 64i F.2d 86 0, the court was upheld on the use o! tne                                                                                                              j
                      ' lodestar
* approach, with a reduction cf hours which were non-                                                                                                            I productive.          In deciding which hours to reduce (and in some instan-een, the eliminating of total hours for certain items), I have l
carefwlly reviewed the New York _ Gaslight club v. Carey, 100 s.ct, 2024 (1980) and the later Weco v. Board of Education of Dyer county, 105 s.Ct. 1923 (19TT). 1 consider the latter case as more pertinent to the case at hand.                                                            I incorporate by reference the reasoning of the Webb case in the following discussion.
I
  -______________i____._______.___      __    _ _ _ _ _ _ _ _ _ _ . _ _ _ _ _ . _ . _ _ _ _ _ . _ _          _          _    _ _ _ _ _ _ _ _ _ _ _ _ _ _                        _
 
                                                  *s:- :cc4                                        s.es.e:                :7,47
                                              .i.: ii . . R    . :- > ET u. F , r w. n . 3                                                          c.u l  ,                                                                                                                                                    l As stated by the Sixth Circuit court in PeTord,                                                  a    I ceetion 5651(a) ease is a simple one requiringthe~Codsure.,plainant to                                        l p:ove thrt-e ele. tents (zee page 8. of this decision).        This case was                                !
not one that required hearings on interlocutory rulings of this tdrinistrative law judge in the U.S. District Court for D.C. or in the Court cf Appeals for the D.C. Ciregit.        Such ho;is are deleted fron consideration. Time spent in challenging the NEC determina-tiens was eliminated. Those items which lack spe cificity were not con!!dered. It was not ir pe r t a n t tha' NRC find rerit in each of                                        i MrE. Eng*.ibh's CoPp1&ints, noT Vss the r0de Cf SEC investigation                                            j reterial to this case (see Discussion, this Decision). The words                                              !
                                            " legal research" are assumed to relate to the s;b;ects listed fer the sene date. I had the choice of eliminating all such references                                            !
for being non-specific or making the above assumptions where there                                            i appears ne reason to research the s;bject of a date in quest:en,                                              l the "research hoars" will be eliminated.        It is regrettable the Cciplainant's attorneys spent so much time in re-Arguing their case-in-chief 1n the docements for the attorney fee reqsest without 4                                                                                          q devoting short specific explanation of matters researched, subjects                                          l of conferences and telephone calls, and subjec*s discussed with                                              !
vitnestes.                                                ,                                                i Mr. Katner's ho;rs will be discussed first.          His hours are red.ced by 1??3 ho;rs.        Drestic red;etions were r:de dat to the nen-specifie quality of rany itens, the verk on urrelated retters, (seective "le;e; research" and the p'ethora of c0rference heers, :
c'.icsed reasonable air travel tire because the cafe necessitated travel fren Mr. R&tner's office to Wilmington, S.C.            I do not f:nd rerit to the argar ent that local counsel could have handled the ette since GE is the largest single employer in Wilmington, and finding a local attorney woald naturally be difficgit.                        Respon-dent's attorneys were also from out of town. Feduction was further este on the basis that much of the time spent was for items of work that were clerical and administrative in rature. Turther, as Ecspondent seggests, the excessive hours per day tre just not credible, considering the consecutive days claimir.; over 16 hours per day.
Mr. Fatner's experience and background, while irpres61ve, does no: cenvince this ;;dge that :: is worth 5165. D per h0;r for tais type cf ette. On the one hand , Mr. Batner arg.e s that he sho;1d re ceive credit for all hours on research because t.he field of law invciving " whistle clower" cases was unfaciliar to him, bat at the sa e tire he expects the same tee as for his acknowledged field ef expertise. The " lodestar
* figure here would bs '65.
                                                                                                    .      tires the hears left, 341, totalling $63,065.00.        I have taken into account, however, the factors set forth in anhnson, supra. and the guide-lines of Lindy supra.      I found the Ecs nelpful were the factors for adjus'tment of the lodestar figure discussed in the Lin?v cases (1) complexity and novelty of issues; (2) quality of work observed by the judges (3) amount of recovery. As was stated above, in the discussion of DeTord, the case is a simple one with three basie eierents to prove. Actually, in this case, the only element of the l
 
F8CP 1904                                              '
                                                                              .et.et 17: 50 e.. '; . 0 ; 'Er 11: 1I M::'.*:-  Ci A Sm rwcgn 3                              r,;7 three requiring more than minimal evidence was the connection between the diserininatory acts and the ' protected activity". This could have been accomplished in far less time by the testimony of the Co:plainant , witness Malpast and one or two nanagement wit-nesses. Witness Mossman was needed on rebuttal of the points made by the defense and the psychologist. expert was needed to establish a portion of proof of darages. This court repeatedly admonished counsel to limit adversary hostilities and to avoid excessive direct examination and cross-examination. Additionally, far too much time was vasted on arguing minor points of evidence as well as cervice of subpoenas on unnecessary witnesses. The quality of Mr.
Ratter's trial work observed by this judge would be rated as below                    i average for the most part. Associate counsel Schiller elicited far,
: r. ore pertinent information in his examination in considerably less time than Mr. Ratner took for establishment of minor points. The                      ;
time spent in producing material that was newsworthy for newspapers                  i and television, may have been needed, as Mr. Ratotr put it, to                        l force GE into a position to settle the case, but it had no place dering court-room hours.
Tne amo;nt recovered, when the value of the back pay and fringe benefits are considered along with corpense. tory damages, was adeq; ate in this case.                Tne contingency factor is a plus for Cerplainant's attorney, b;t a minor one considering the facts of                      i the case.                                                                              )
I find that total trial tine for the Complainant's case, including tebattal evidence should have taken three and one-half                      j days. Time for the defense could not be controlled by Complain-                        ,
a n t ' t. counsel, though cross-extrication could have been reduced.                I Accordingly, I reduce the hourly rate to $100.00 due to considera-tion of the three Lind adjustment factors. Tot a:t f ee allotted to                  l Kr. Ratner:            634,1    . O.
Tollowing the same forfat as in the redJetion of Mr. Ratner's req;csted hours, I reduce Mr. Schiller's hours ey 456.75, so that his total allowable hoars total 366.75. Tne ' lodestar
* for Schiller, using the hourly rate requested voeld equal a total fee of f45,643.75. Hesever, in considering that Mr. Ratner was the 1ttf s torney, along with the three factors of Li,ndy, I redace the he;rly rete to $90.00. I found Mr. Schiller more effective than Mr. Rctner in examination of witnesses, less of a disruptive
    ,        elenent in cocrt, but much of his work duplicatad that of Mr. Ratner 's and his talents were wasted in clerical or administ-a-tive work. 'His total fee is therefore adjusted to 533,007.50.
I find that the use of any othsr attorneys was unnecessary considering that two attorneys handled :he defense of this case in excellene, fashion.              In many ways, considering the adverse finding by the Department of Labor administrator and the factI situation,      therefore the defense case was the more difficcit to present.
eliminate Mr. Negle's fees entirely.
 
I rs:- :ees                                            ' ! et,e:    17: 52
:...:  E- ::: n "::.m:-tu c: s.. m ra u c:s:t v.                            ,, :;
I also eliminate the cost of Ms. Jo G. Wilson's fees and expenses, as representing the ordinary costs of running a law office. Two paralegals were not needed. Ms. tubrin's paralegal hoaru, through no fault of her's,' nevertheless involved much research that had no materiality to this case. Sone of her research pertained to proper subjects and her work in the court-                      '
roon saved time for the court as well as attorneys. Such worX was needed specifically for this case.              However, a good deal of Ms.
Zubrih'6 work could be classified as straight secretarial, and I htve ded;cted accordingly.            I allow 60 hours representing the total allotted, for Ms, Zubrin's services after dedactions, cf
  $1,200.00.
Mr. Jeannett's hours appear to be those of a legal secretary, and nothing is allowed for his time.              (See Hensley v. Echerhart, 461 U.S. 424, 103 S.Ct. 1933 (1983).
W;th reference to costs and expenses, I find that expert witnesses Mossman and Boyle were necessary but Respondent's counsel                    l makes a valid point in stating that the hours for witness Mossman were excessive in view of 15 minates of testimony. Even consider-ing that the expert assisted Mr. Ratner in devising relevant ques-tiens of Respondent's witnesses, I find that nach of Mr. Mossman's time was un.ecessary for this case.              All of the time allotted, during brief testirony, to setting o;; Mr. Mossman's standards vis a vis S;0's et these of GE appear barely relevant.                Keeping in mind that an extra trip was necessitated due to unforestren changes in schedeling of witnesses and that possibly eight hoars were spent waiting to be called on the first day that his testimony was ex-pected, I will allow a total of $1,850.00 to include this witness' fees and expenoes.
7ne other items of " expense" ano costs are outrageoes with reference to Mr. Ratner.            Expenses listed for Mrs. Englisn are no*            I of the type allowable under the statute.and regulations, therefore none are allowed.        Expenses for Mr. Schiller, theagh also exces-sive, appear much more in line.            I will allow the costs of reasen-          l t.ble photocopying, scae subpoena service charges and other nornal costs p1;s a reasonable amount towards airfare and hotel charges for the tw attorneys and Ms. Zubrin, taking into ccount that                      ,
consider the length of the trial as unreasonable, and ruch of the overhead expense as relating to immaterial matter /,                The total            ,
allowable for reasonable costs and expenses is $2,350.00 (additio-                      l nel to attorney, paralegal and Profess:r Moesman's expense).                  This    )
includes Dr. Boyle's tine, in court only.            Anything over and above            !
that amoent, I find to be unnecennary dae to the eceessive trial time used, the immaterial motions, the proceedings in other courts and the excessive document production. No other items, whether termed fees, expenses or costs are allowed, though all documents on fees, expenses and costs have been considered.
1 l
: o. a                                          '
 
2.
            ":. :ees                                      s es.e:  ints e.;:. n n:n v..'v.~totvo.im mu<:s: cc F.n l
l ORDER l
l 1    Respondent General Electric Cempany is to take af firma-    !
tive steps to cease discriminatory acts 69ainst Complainant.              ;
: 2. Complainant is to be reinstated to her former position together with compensation for any back pay loss calculated from the time of the lest pay period plus interest at a rate per annum eg;ivalent to the coupon yield of the average accepted auction price of the last 52-week U.S. Treasury bills.      Steh inten,    shall be payable fro the date of Complainant's cessaticn of emp.icynent to the date that such back p6y is actually~ paid. Any rate increase since the cessation of employment is to be calculated into the~back pay compensation.
: 3. Complainant is to be reinstated as to terns, condi ions and privileges of her employment 60 as to make her whole for a .y        j such losses suffered by cessation of employment.                          l
: 4. Respondent is entitled to set off any contributions owed to EaVings plans forreT1y participated iB by Con.p3ainant, if such ecployee contributions ceased dering her tire off erploynent, and in order to bring Complainant up to date on any s.:ch plan.
: 5.  -Compensatory darages are awarded, and are intended to        ,
ccver past and future Rcdical expenses (not already covered under        '
any enployee Health and Accident plan which is to be fully rein-stated pursuant to order No. 3 above) and as recompense for the humiliation and mental suffering of the Complainant dae to Respond-ent's discriminatory acts.      Said compensatory award is 570,000.00.
l
: 6. Eerpendent is to pay Complainant's attorneys fees and        !
expenses, as follows:                                                    ;
i (a)  A fee for legal services to Mozart Ratner,              I Esq. of 534,100.00.                                    !
(b)  A fee f or legal services to Arthur W.
Gehiller, Esq. of $33,0C7.50.
(c)  A fee for para-legal services of
  .                      61,200.00 (d)  Expert witness fees and expenses for Professor Messaan of $1,650.00.                        ;
(e)  All other costs and expenses not covered above, including Dr. Boyle's courtroom appearance fee, in the amount of $2,850.00              j
 
n:- see.                                                                        e.ee.e    inst
  .,.                            c. : . :; 'ir :;        .4  :. :                t A. saa res .::::c cc                              s,z:
The' aggregate amount of the above costs and e:<penses allowed to Complainant 13:$7),001.50.
                                                                                                            'y'l)  ,
L~it/ i.[< A JBER y3 ffRTS3ESDES A d m i n'i, rative Law Judge casesi AQQ                    di
                                                            + Foo5                                                    -
San Trancisco, CA P.; 8 t r em
                                                                                                                                                  -)
I l
l 9
 
                      '8:- :ees                                                                      * :.es.e                                                trier
                , . . C . ' M 21 : 1 E M * .~ .'* * -CN E T L.; 5'- 'i l'5& C 15 .' *,:
Vera-M. English                                                                            SERY1CE SHEET 74 Holland Drive Castle Hayne, N.C.                        26426                                            8 5-I RA-2 Bobbye spears, Esq.
Regional Solicitor O/Selicitor - USDOL 1371 Feachtree            St., N.E.
M02 art C. Ratner, Esq.                                                Room 339                                                                  .
1700 M Street, N.W.                                                  Atlanta, GA              30367 Suite 610                                                              p'st7/Af Washington, D.C.                      20036 d-of 1 did
                                                                        ,        E. A. Lees General Plant Manager Castle Hayne R6.                                                                                ,
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Jares C. Stewart
{?C;7 paaf                                                              Area Director Wage & Hour Division - E5A                                                                      ;
P.O. Box 27456                                                                                  l Raleigh, N.C.              27611                                                                !
Scott A. Klion, Esq.
General Electric Co.                                                  William E. Brock                                                                                ,
175 Curtner Ave. M,'C 622                                          Secretary et Ltbor                                                                              'I San Jose, CA 95125                                                  O/ Secretary - USppL
(' o p1 p+A                                                        Roor 8-2018, FFB 200 Constituticin Ave., N.W.
Washington, D.C. 20210 Y c ?? +'.J.ny                                                                                  '
W1111cr W. Sturges, Esq.
            ** *e i n s ; e i n , S t a r g e s , Cd en. ,
Gr:.'es, S;gger, Jcnas &
Captell, P.A.
810 Eaxter St. Cul-De-See Charactte, N.C.                  28202-2773                                                                                                                          i
,            Wff?YA1                                                                                                                                                            l
                                                                                                          .                                              .z g/.              _,
Cornelius 6. Donoghue, Jr.                                                                      (Name)
DepJty Associate Solicitor 0/50iteitor - USDDL                              -
AUG      119B5
            .91te b-2620, FPB                              .                          - ~ ~ ~ ~
t 200 Constitution Ave., N.W.                                                                    (Date)
Washington, D.C. 20210 l
)
L u _ _ --
 
4 D 87 -G /
e GENERAL ELECTRIC CD                                                                            TEL No.408 925 5312                  Jan 20.87 10:05 P.03            l THE UNDCft SEC8tCTARY OF L. ABOR mawmovow, o. c.
enem I
DATE:      January 13, 1987 CASE NO.:      85-ERA-2 VERA M. ENGLISB, i
l Complainant JAN 10 iOB/
GENERAL ELECTRIC COMPANY, E.A_R_I_M 1. .'_ " i ti Respondent FINAL DECISION AND ORDER Administrative Law Judge ( AIJ) Robert J- Brissenden submitted a recommended Decision and Order M to me on August 1, 1985 in this case arising under the employee protection provision of the Energy Reorganization Act of 1974, 42 U.S.C. 6 5851 (1962).    (The ERA or the Ac t. )    The ALJ recommended that I find that respondent General Electric Company (G.E.) violated the Act when it transferred and then discharged complainant Vera English (Mrs. English) from her job in the Chemet Lab at G.E.'s Wilmington, N.C. nuclear fuels manufacturing facility.                          1 l
The parties requested numerous extensions of time to file briefs and reply briefs and briefing was not completed                                j until December 9, 1985.      The case was remanded to the ALJ on May 9, 1986 to give complainant an opportunity to complete the presentation of her case because the ALJ had refused to l
  -                                                                                Permit her to present the testimony of several witnesses.
1/ D. and O.
I I
                                                                                                                                                                              )
I l
l l
E -_- ______                                                                                                                                                                l
 
e q
ENERAL ELECTR8C CD                                                                            TEL No.408 925 5312          Jan 20.87 20:05 P.04      l
{
i The ALJ ordered that the parties put this testimony in the
                                                                                            ~
record (and that of any rebuttal witncsses) by way of deposition.            ,
{
Complainant's counsel objected to that procedure as well as                  ,
the limitation the ALJ placed on the scope of the witnesses'                    j testimony. Complainant sought clarification of the Under                          j secretary's remand order, which was denied on July 18, 1986.
Complainant's counsel refused to participate in depositions and the ALJ returned the case to the Under Secretary without                    f any additions to the record on the merits on July 13, 1986.                      !
Secause I find that Mrs. English's complaint was untimely                          l I
filed under the Act, 42 U.S.C. S 5851(b) (1) , the complaint in this case will be dismissed.            29 C.F.R. $ 24.6 (b) (4) .
BACKGROUND 1
Vera English was a laboratory technician in the Chemet Lab of G.E.'s Wilmington facility in March 1984 and had worked in that laboratory for a number of years. Her duties involved
(
weighing and analyzing samples of nuclear fuel, consisting                        l 1
of uraralum powder, to determine whether the proper concentration of uranium had been achieved in the manuf acturing process.
The nuclear fuel is manufactured into fuel rods used in nuclear reactors in electric power plants.
Mrs. English had made a number of complaints to the Nuclear l
Regulatory Commission in the years prior to March 1984 about sloppy handling of uranium powder in the Chemet Lab, failure to h
t t
                                                                                                                                                    '  i
                                                                                                                                                    '  \
                                                                                                                                                        \
                                                                                                                                                        \
 
TEL No.408 925 5312            Jan 20 87 80:06                                  P.05 ENERAL ELECTRIC CD I
clean up spills of radioactive powder and solutions, inadequate process controls and radiation safety procedures, and defective i
l equipment. On March 15, 1984 Mr. L.A. Sheely, Manager of Fuel                                        !
Quality, took disciplinary action against Mrs. English based on five violations of ' work and conduct standards" which he stated as,                                                                                              !
: 1) the unauthorized removal of the personal survey                                                i instrument from the entrance to the laboratory, failure                                          l
: 2) the deliberate contamination of a table, 3)                                                    l to clean-up the contamination knowing it existed,                                                ,
: 4) the continued distraction of other laboratory                                                  l employees and 5) disruption of normal laboratory activities.
Mr. Sheely imposed a penalty of five days off without pay, which he waived, and a period of 12 months probation during which commission of any offense serious enough to warrant discipline veuld result in discharge.
In addition, Mrs. English was removed iron her assigneent    in the Chemet Lab and was placed on indefinite temporary assignment to other work.
Mrs. English appealed this disciplinary action to Mr.
James A. Long, General Manager of the Wilmington Manufacturing On May 15, 1984 Mr. Long Department of General Electric.                                                                      ,
upheld Mr. Shee.ly's finding that Mrs. English had " knowingly and intentionally failed to clean up [a] spill of radioactive material." Mr. Long found this to be "a very serious and significant violation of the Wilmington plant's health and He ordered that Mrs. English safety standards and procedures."
  '                                            would not be allowed to work in any " controlled access" area l
1
                                                                                                )
 
l 1
TEL No.408 925 5312          Jan 20.87 10:07  P.06
      'fNERAL ELECTR1C CD (areas where nuclear fuels are handled and special precautions                      I l                          are taken to contain radioactive contaelnation) or in any position with access to nuclear fuel. Her probationary period was reduced from 12 to six months, and the period of her temporary assignment was changed f rom indefinite to 90 days, with no 1                                                                                                                  !
i                          reduction in pay. During the 90 day period c.E. would search I
for other work at the Wilmington facility for which Mrs.
English was qualified. Eut, Mrs. English was told explicitly in writing by Mr. Long "If you have not secured permanent placement by July 30, 1984, you will be considered as involuntarily placed on lack of suitable work", in other words, discharged.
Mrs. English was assigned to work in the Central Stores warehouse, but another suitable position did not become available and Mrc. English was discharged on July 30, 1984. Mrs. English flied a complaint with the Department of Labor on August 24, 1984.
DISCUSSION The ERA requires that complaints of retaliation for protected      !
activities must be filed "within thirty days after such violation                    j occurs".              42 U.S.C. 5 5851(b) (1) . Nevertheless, the ALJ denied G.E.'s motion to dismiss for untimeliness and reiterated that denial in his recommended decision. (D. and O. at 12.) He held that two Supreme Court decisions, interpreting the charge filing time limits of Title VII of the Civil Rights Act of
    '                            1964, 42 U.S.C. 5 2000e-5(e) (1982), Delaware State 1
1
                                                                                                                  .j
 
4 Jan 20.87 10:08    P.07 (
hERALELECTRICCD TEL No.408 925 5322 College v. Ricks, 449 U.S. 250 (1980), and the application                  '
of a one year statute of limitations to actions under 42 U.S.C.
5 1983 (1982), Chardon v. Fernandez, 454 U.S. 6 (1981), were distinguishable for several reasons, including the fact that Mr s. English " established a continuing violation."
In Ricks, a professor was notified that he had been denied I
tenure and would be given a one year terminal contract on June 26, 1974. The Supreme Court held that the charge filing period under Title V11 began to run on that date, not June 30, In Chardon v.
1975 the final date of Ricks' terminal contract.
Fernander,  several administrators in the Puerto Rican Department of Education were notifed that their appointments would terminate at specified times in the future. The Supreme Court held that the one year statute of limitations applicable to actions under 42 U.S.C. 5 1983 began to run when they received notice of their terminations, not when they were actually terminated.
The f act that Chardon and ' Ricks involved racial discrimination in the denial of tenure, one distinction relied on by the ALJ, is little,  if any, distinction from this case for timeliness purposes. The Fourth Circuit has applied the principle set forth in Chardon and Ricks to an age discrimination case in Inc.,
the commercial field, Price v. Litten Business Systems, 694 F.2d 963 (1982) and I see no reason not to apply the same principle to discrimination for whistleblowing activities in the industrial field. I rule that the ALJ was wrong when
 
TEL No.408 925 5312          Jan 20,87 10:09      P.08
      >ENERAL ELECTRfC CD he held that, under Title VII, "the fact of termination was                                              j i
not in itself an illegal act", whereas here the statute specifies                                        ;
that discharge for whistleblowing is illegal.        Section 703 (a) (1)                                  i l of Title VII, 42 U.S.C. 5 2000e-2 (a) (1) , states explicitly "It shall be an unlawful employment practice for an employer --
                              .    (1) . . . to discharge any individual .  . . because of such person's race .    . .                                                                          j i
What the Supreme Court held in Chardon and Ricks was not that termination on account of race is not an 111egal act, but rather that the timeliness of a charge must be measured from the date of the " unlawful employment practice".      Quoting with approval from Abramson v. University of Rawall, 594 F.2d 202, 209 (9th Cir. 1979) the Court said "It]he proper focus is upon the time of the discriminatory acts, not upon the time at which the consequences of the acts became most painful."
(emphasis by the Supreme Court).      449 U.S. at 258.                -
Similarly here, the focus must be on when the " violation" took place, not on when its effects were felt.      The alleged violation here was the decision to place Mrs. English on 90 ___
day temporary assignment.      If a suitable position did not become available, it was clear that Mrs. English would be discharged. As in Ricks, the discharge here was the " delayed, but inevitable, consequence", 449 U.S. at 257-258, of the 90 day temporary assignment.      Mr. Long said so explicitly in his May 15, 1984 ruling on Mrs. English's appeal.
 
iENERAL ELECTRIC CD                                                                          TEL No.dO8 925 5312              Jan 20.87 10:12  P.01
                                                                                                                                                                !i Moreover, the fact that G.E. was seeking another position for Mrs. English during the 90 day period and there was a possibility that she could remain with the company does not change the result.                                                In _ Price v. Litton Business Systems, Inc.,
supra, plaintif f was told, af ter his removal as branch manager ,
that other positions with Litton would be sought for him. He was told his supervisors wanted him to stay with the company I
and that they would make some specific of fers of employment in the near future. He was in fact offered other, lower,                                                              l positions.                                The Fourth Circuit held that the time for filing                              l his complaint under the Age Discrimination in Employment Act of 1967, 29 U.S.C. 55 621-634 (1982) ran from the date he was told he would be removed as branch manager , not when his "An employee's employment finally terminated. 694 F.2d 963, 965.
hope for rehire, transfer, promotion, or a continuing employment relationship ... cannot toll the statute ..." id. at 966.
The ALJ thought "Mrs. English has established a continuing violation" (D. and O. at 12) but did not specify what actions The Supreme by C.E. constituted that continuing violation.
Court scrutinized plaintiff's claim in Ricks of a continuing without violation, but held that " sere continuity of employment, more, is insufficient to prolong the life of a cause of action Although for employment discrimination." 449 U.S. at 257.                                                                    I i
Mrs. English did allege and attempt to prove that G.E. engaged in other acts of discr imination during the 90 day temporary
 
r                                                                                                                                  !
ENERAL ELECTRIC CD                                                        TEL No.dO8 925.5312          Jan 20.87 10:12    P.02
                                                                                                  .s_
assignment period, that is not suf ficient to state a claim of continuing Elolation with respect to her discharee. For example, she alleged that she was put under surveillance by her new supervisor in Central Stores, and that she was harassed she by G.E by having someone from managemer.t board a flight took to Washington to talk to the NRC, and by ordering her to In go home to put on her safety shoes on her last day of work.
_R i c k s , plaintiff also alleged that "a variety'of unusual incidents occurred during (his terminal yearl", 449 U.S. at 257, n.8, but that was not sufficient to establish a continuing violation.
limitations periods The Supreme Court said "[i]n order for the to commence with the date of discharge, Ricks would have had to allege and prove that the manner in which his employment was in which tereinated differed discriminatorily from the manner the College                                      terminated other professors who also had been denied tenure... [But) ... the only alleged discrimination occurred -
and the filing limitations periods therefore commenced at the time the tenure decision was made and communicated to Ricks."
449 U.S. at 258.
she was treated any Here, Mrs. English has not shown that differently from any other employee on temporary assignment if subject to being placed on *1ack of suitable work" status The only a suitable permanent assignment cannot be found.
violation, if any, occurred when she was put on temporary assignment on May 15, 1984 and the 30 day statutory filing 1
 
i GNERAL ELECTRIC C0                                            TEL No.dO8 925 5312            Jan 20.87 20:13    P.03
                                                                            .p.
Her August 24, 1984 complaint period commenced on that date.                                                                      t -
was more than two months late.                                                                        i l
Cases decided by the lower courts both before and after the Supreme Court's decisions in Chardon and Ricks show that the type of allegations made by Mrs. English here, even if proven, would not support a " continuing violation" theory The courts have generally that her complaint was timely filed.
: v.              l 1
distinguished a completed act such as a. demotion, Mader or                f control Data Corpor ation,19 T.E.P. 1192 (D. Md. 1978) 6 G., Inc., 37 F.E.P. 926 (N.D.
termination, Welty v. S.F.
Ala. 1985) from employment policies and practices which are repeatedly implemented during the filing period although they may have been first established prior to the filing period,
: v. Los Anceles county, 566 F.2d 1334 (9th Cir. 1977),
_ Davis vacated on other grounds, 440 U.S. 625 (1979); Patterson v.
vacated American Tobacco, 634 F.2d 744, 751 (4th Cir. 1980),
Thus, for example, in on other grounds, 456 U.S. 63 (1982).
Patterson v.
American Tobacco, the Fourth Circuit distinguished Evans v.                          United Airlines, 431 U.S. 553, pointing out that in Patterson
                                                        'the violations charged and found by the district          I in Evans.      ,
court were continuing in the very sense not present                                          3 Here the promotional policies adopted in 1968 were alleged ice
                      ... and found ... to involve a continuing pattern or pract                                    ,
of discrimination ... (C]1 aims related to these violations are not barred by the failure to have challenged at its inception 634 F.2d the policy which gave continuing rise to them.'
 
3 ENER4L ELECTRSC CD                      TEL No.408 925 5312                            Jan 20.87 10:14        P,04 744, 751 (emphasis added).                            Compare Davis v. Los Angeles County, (use of a height requirement is a continuing violation) Brewster
: v. Barnes, 788 F.2d 985 (4th Cir. 1986) (failure to raise salary is a continuing violation): Conzaler v. Firestone Tire and Rubber Co., 610 F.2d 241 (5th Cir.1980) (discriminatory []                                          ''
r            ,,
test is a continuing violation), with Prophet v. Armco Steel,                                              .'
: y.              -
inc., 575 F.2d 579 (5th Cir. 1978) (discharge is not a continuing                                          -
                                            /
violation); Daughtry v. King 's Depa r tment Stor e s , Inc. , 608                          a,-
F.2d          ,      l 906 ('Ist Cir. 1979) (layoff not a continuing violation): 'steller                                        ,,,
: v. Marsh, 682 F.2d 971 (D.C. Cir. 1982), cert. denied, 460 U.S.
1037 (1983) (a series of acts - reassignment, denial of requested transf er , poor per formance evaluation - cot a continuing violation even if all allegedly motivated by diserdmination).
In Lippert v.                General Electric Co.,,          27 F.E.P. 1427 (W.D. Fy.
1982) an employee was notified in February 1979 that he would be placed on *1ack of work status", the same status Mrs. English was placed on, beginning in March 1979. This was extended until June 1979 and the employee was then placed on ' protective service status" (benefits without pay, possibility of rehire) for one yest.              We alleged age discrimination. The court held that the discriminatory act occurred in February of 1979 and that the complaint, filed in January 1981, was time barred by the 180 day filing limit.                            27 FEP at 1430. I think the court's observation in Corbin v.                            Pan American World Airways, 432 F.Supp.
939 (N.D. Cal. 1977) is applicable here to Mrs. English's
                                                                                              ,w **'9  q $
a              ^y
                            #s  ,,
                                    .%  Oll            ,v          n c.,        7/ 3. '        i [71/
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ENERHL ELECTRfC CD          TEL No.408 925 5312            Jan 20.87 10 15  P.05 allegations as well as the ALJ's finding of a continuing violation.
The court said "... a plaintiff may not circumvent'the limitations period by labeling an act a ' continuing' violation ... Completed acts such as termination through discharge or resignation, ... a job transfer  ... or discontinuance of a particular job assignment l
are not acts of a ' continuing' nature."      432 F.Supp at 944.
Accordingly, the complaint in this case is DISMISSED,      In view of my disposition of this case, complainant's request for an award of attorney's fees and costs and expenses is denied, and all other pending motions, suggestions, requests and similar pleadings and letters of both parties are denied as moot.
                                                  'o f. b y        l Deputy Secretary of Labor Washington, D.C.
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          '                                                                                                                                              l i
1 TEL No.408 925 5382                Jan 20.87 10:16 P.00
                                                                                                                                                          ]
(NER:._ iLECTRZC CD                                                                                                                              I l
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CERTIFICATE OF SERVICE                                )
Case Name:                        Vers N. English v. General Electric Company Case No.                          85-ERA-2 Document :                        Final Decision and Order A copy of the above-referenced document was sent to the following persons on                      MN I 3 GE7            ,
OJ11L CERTIFIED MAIL Vera M. English 74 Rolland Drive Castle Bayne, N.C. 2b42B Hozart C. Ratner, Esq.
4400 Jennifer St., N.N.
Suite 350 Washington, D.C. 20015 Arthur M. Schiller, Esq.
1000 Connecticut Ave., N.W.
Suite 1205 Washington, D.C. 20036 Scott A. Klion, Esq.
General Electric Co.
175 Curtner Ave., M/C 822 San Jose, CA 95125 William W.              Sturges, Esq.
Weinstein, Sturges, Odom Groves, Bigger, Jonas &
Campbell, P.A.
810 Baxter St. Cul-De-Sac Charlotte, N.C. 28202-2773 E.A. Lees
  -                                                                General Plant Manager Castle Bayne Rd.
P.O. Box 780 Wilmington, N.C. 28402
 
d L elder 4L- ELECTRIC CD :          TEL No. DOS 925 5312. Jan 20.67 10:16 P.07 1 l
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                                                                          )
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                                                                              )
Peter Nash, Esq.                                              1 Ogletree, Deakins, Wash, Smoak                                l l                6 Stewart    .
1 1200 New Bampshire Ave., N.W.                                  j Washington, D.C. 20036 Ron. Robert J. Brissenden-i              Administrative Law Judge 211 Main Street-Suite 600 San Francisco, CA 94105 Hon. Nahum Litt Chief Administrative Law Judge 1111 20th Street, N.W.
Suite 700 Washington, D.C. 20036 Director of Enforcement Staff Office of Inspection and Enforcement
              -Nuclear Regulatory Commission Washington, D.C. 20555 Chief Counsel Regional Operations and Enforcement Nuclear Regulatory Com. mission Washington, D.C. 20555 j
 
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UNITEDSTATESCOURTOFAPPEAl.S FOR THE FOURTH QW                              .
I No. 87-3520 Vera M. English, Petitioner, versus Dennis E. Whitfield, Deputy Secretary of Labor; United States Department of Labor, Respondents, General Electric Company, Intervenor.
On Petition for Review of an Order of the Department of Labor.
Argued June 8, 1988.                        Decided  october 6,  1988 Before RUSSELL, PHILLIPS, and ERVIN, Circuit Judges.
Arthur Michael Schiller (Mark A. Venuti on brief) for Petitioner.
Ford Friel Newman (George R. Salem, Solicitor of Labor; Monica Gallagher, Associate Solicitor; Linda Jan S. Pack, Counsel for Appellate Litigation, Office of the Solicitor, U.S. DEPARTMENT OF LABOR on brief) for Respondent.      Peter G. Nash (Dixie L. Atwater, OGLETREE, DEAKINS, NASH, SHOAK AND STEWART; William W. Sturges, WEINSTEIN AND STURGES on brief) for Intervenor.
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PHILLIPS, Circuit Judge Vera M. English instituted this suit under the Employee Protection Section of the Energy Reorganization Act of 1974, as amended, 42 U.S.C.                                $ 5851 (EPS), and its implementing regula-tions, 29 C.F.R. $ 24, alleging that she was unlawfully subjected to employment related discrimination because she registered and pursued safety complaints against her employer, General Electric (GE), with the Nuclear Regulatory Commission (NRC).                                                After an administrative law judge (ALJ) recommended that the Secretary of Labor find that English had been discharged in violation of the EPS's anti-retaliation provisions, the Secretary (by a Deputy) dismissed English's claim, ruling that she had failed to meet the 30-day filing deadline imposed by 6 5851(b)(1) .                                              Before us En-glish raises two primary issues for reviews                                            whether (1) the Secretary erred          in                                finding her complaint  for        discriminatory discharge barred as untimely, and whether (2) English has estab-lished a " continuing violation" of the EPS in the form of retal-iatory harassment, thus allovir.g her to seek relief for a series of related acts of workplace harassment that might be time-barred I
if considered independently.                                          We affirm the dismissal of her                              l claim for.tret'aliatory discharge as untimely.                                      Because we believe that English's claim of workplace harassment is ond cognizable under the EPS and may constitute a continuing violation for                                                                        i 1
statute of limitations purposes, we remand that claim for first lt instance consideration by the Secretary of Labor.                                                                                  l l
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                                                                                                                                - _ _ _ _ _ - _ _ - _ _ _ _ - - _ _ - _ _ _ _ _ _ _ _ _ _ _              _ _ _ _ _ _ - - - _ _ - _ _ - _ - - _ _ - - - - _ _ -          _          - - - -      - - - - - - ----------------I
 
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                                                                                                      .            I GE operates an NRC licensed fuel production facility in      -l Wilmington, North Carolina.                      The facility is involved in the processing of nuclear materials, including uranium powder, in the course of manufacturing " fuel bundles" for use at nuclear reactor sites.                      Areas of the facility in which workers handle nuclear materials, and are thus exposed to radiation safety hazards, are designated " controlled areas."                      The facility's Chemical-Metal-lurgical Laboratory (Chemet Lab) contains such controlled areas.
From November 13, 1972 until July 30, 1984, English was employed as a lab technician in the Chemet Lab and worked in a controlled area.                    Her duties included quality control procedures, which required her to analyze the concentration of uranium in samples of uranium powder.
Prior to March 1984, English had made a number of complaints to both GE and the NRC about unsafe conditions and practices in the Chemet Lab.                      On February 13, 1984, English sent the NRC a list of alleged safety violations in the Lab.                        The same allegations were brought to GE's attention in a February 24, 1984 letter from English to GE management.                      GE conducted an internal investigation of the allegations in March 1984 and the NRC con-ducted an investigation on March 26, 1904.                      The events leading up
,                        to this suit occurred in the interim.
During the first part of the week of March 5,        1984, English worked the 7:00 AM - 3:10 PM shift in the chemet Lab.                        On Friday, March 9, 1984, she switched to the 11 PM - 7:30 AM shift.
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                                                                                    ~
On Monday, March 5, while going about her duties, English claims to have found radioactive contamination left uncleaned by workers on the prior shift. During the next three days, she again dis-covered contaminated areas left uncleaned by prior shifts.            She believed that the contaminated areas should have been obvious to Lab employees and that workers on the prior shif t were careless and relying on her to clean up after them, which she claims to have done several tim    .
On March 9, English again found contamination in the Lab. Knowing that no supervisor would be available until Sunday, March 11, English marked the contaminated area with red tape, but left it uncleaned. She intended to show the marked area to her supervisor in order to provide proof to GE management ei her complaints about the lackadaisical approach to safety of her co-workers. English believed that her prior lack of proof, a result of her repeated ef forts to clean up af ter her co-workers, had gaused GE management to ignore her earlier complaints.          She noted that the contamination and red tape were still present on Satur-            I day and Sunday, March 10-11, 1984.
On March 11, 1984, English brought the contaminated area to the attention of the supervisor on duty, William Lace-              I well. She admitted having purposely lef t the conta'minated area uncleaned in an effort to prove her complaints about co-worker malfeasance, but denied having caused the spill herself.            While repeating her prior complaints about her co-workers, she also raised other safety concerns,    including a complaint about a l
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leak and release fumes.        She expressed her frustration with                                                                                    J I
repeatedly having had to clean up af ter her co-workers and ad-vised Lacewell that she did not intend to continue doing so.                                                                                    She  L l
then used a radiation detection device located at the entrance to                                                                                    l the Lab to check her work area for further contamination.                                                                                        GE subsequently corrected the mic. owave oven defect and inspected and cleaned the Lab. These actions necessitated a work stoppage in the affncted areas.
As a consequence of these events, disci.plinary action was taken against English. Formal charges were made against her in a March 15, 1984, letter, which accused her of:
: 1. the unauthorized removal of the personal survey instrument from the entrance to the laboratory;
: 2. the deliberate contamination of a table;
: 3. failure to clean up contamination,                                  knowing                                                      it existed;
: 4. the continued    distraction  of  other                                      laboratory employees; and
: 5. disruption of normal laboratory activities.
English was removed from the Chemet Lab, barred from further work
      'in controlled areas, and placed on indefinite temporary assign-ment in a warehouse at the Wilmington facility to begin March 16, 1984. She was placed on 12 months probation and penalized five
  . days of work without pay. Enforcement of the latter penalty was waived.
English  administratively  appealed              the                                                          disciplinary action. Charge one was ultimately dismissed as it was finally
 
determined that Lacewell had given English permission to use the-detection device. All other charges, except charge three, were either dropped or it was determined that no action would be taken in regard to them.
Disciplinary action was taken on charge.three.                                English was notified of the final company decision in her case in a May 15, 1984 letter. That letter informed her that (1) she was permanently removed f rom the Chemet Lab and barred f rom working in controlled areas, (2) her probationary period was reduced from twelve to six months, (3) her temporary assignment was reduced to 90 days at current salary, during which time she could search for and bid on available positions elsewhere in the facility for which she was qualified, and (4) if she had not secured a suit-able permanent position by the end of her temporary assignment, she was to be involuntarily placed on lack of suitable work                                          -
status - essentially placed on layoff.1 English worked at the warehouse position during her temporary assignment.      She alleges that during that period she was regularly surveilled, intimidated, humiliated in front of her co-workers, and otherwise harassed for having made safety com-plaints against GE. As late as July 24, 1984, GE's Employment 4
1 English characterizes the ultimate termination of her employment on July 30, 1984, as a " discharge," implying an out-right termination then of all employment relations.                                    But the terminal action, as announced in the May 15, 1984, decision and notice, was not " discharge" but, as indicated in text, a " lay-off."  The two are technically and practically different in that an employee placed on lay-off retained certain employment bene-fits and recall rights not retained by one given an outright discharge.                                                                                              >
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  .                                                                                l Administrgeir indicated to English that efforts were still being made to piece her in a permanent position.      Shortly thereafter, she was contacted by GE's Benefits Advisor as to her various benefits as applied to layoff status, since it appeared unlikely that she would find suitable permanent employment by the end of her temporary assignment.      This prediction was borne out as English's last day of active employment with GE was on July 27, 1984, and she was removed from the payroll on July 30, 1984.
English  then  filed  a  complaint  primarily          alleging discriminatory discharge with the. Department of Labor on August 24, 1984, and an amended complaint on August 27, 1984.          Following an investigation of her allegations, the Administrator of the                '
Wage and Hour Division of the Department of Labor concluded that GE had discriminated against English in violation of the EPS.
The case was referred to an ALJ when both English and GE appealed the Administrator's decision.
After a hearing, the ALJ found that English was disci-plined and ultimately terminated because of her initiation of and participation in the NRC safety investigation of GE.                  The ALJ specifically rejected GE's contention that English's complaint was untimely under the EPS.      He held principally that the trig-gering violation she proved was her termination f rom employment
,    on July 30, 1984, as to which her filing was timely.                Alterna-tively, he held that English had established a " continuing viola-tion" which continued into the timely filing period and allowed her to challenge any earlier effective termination.
.g-The case was submitted for review to-the Secretary of Labor, and was referred to a Deputy Secretary. The Deputy Secre-tary ordered the case ' remanded for. the purpose of taking addi-              I tional testimony on certain issues. The ALJ determined to pro-ceed by deposition, to which English objected.          She refused to comply with the procedure and appealed to the Deputy Secretary for clarification of his remand order. While this exception.was pending, the Deputy Secretary issued his final decision, dismiss-ing her complaint as untimely.
This petition for review followed.
II                                          l English challenges the Secretary's dismissal of her retaliatory discharge claim as time-barred on three grounds.
First, and principally, she contends that she was only effective-ly " discharged" when she was removed from the payroll on Jult      .0, .
1984, a time well within 30 days of the filing of her complaint with the Secretary. Second, she contends-that if her " discharge" effectively occurred at an earlier date outside the filing peri-od, she may yet avoid the time-bar because any such
* discharge" was merely part of a " continuing violation" that extended into the filing period. Finally, she contends that in any event GE should have been found equitably estopped by its conduct to raise any time-bar defense to her discharge claim.
We take these in order.
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English's contention that she was only " discharged" on July 30, 1984 runs directly into the problem that what happened on that date was preordained by the earlier disciplinary decision of which she was notified on May 15, 1984.            The Secretary found the discharge claim time-barred on exactly this basis, holding that under the rule of Delaware State Collece v.          Ricks, 449 U.S.
250 (1980) (Title VII claim); Chardon v.          Fernandez, 454 U.S. 6 (1981) (6 1983 claim), any discharge violative of the EPS oc-curred on the earlier date, as to which the filing period had long since expired.
English challenges that application of the Ricks-Char-don rule to her claim on two grounds:        first, that the rule does not generally apply to claims under the EPS, as opposed to Title VII and 6 1983, the statutory schen.es in connection with which it originated; second, that if generally applicable to EPS claims, it does not apply to her claim on the f acts of this case.          We disagree with both of these contentions.
(1)
In Ricks, the Supreme Court ruled that the administra-tive filing period for complaints under Title VII of the Civil Rights Act of 1964, 42 U.S.C.      6 2000e g sea. - which requires an employee to file a complaint with the EEOC within 180 days (300 in some circumstances) "after the alleged unlawful employment practice occurred" - begins running on the date that the employee is given definite notice of the challenged employnmnt decision,
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rather than the time that the effects of the decision are ulti-mately f elt'. Shortly af ter Ricks, the Court applied the same rule in the context of a $ 1983 suit, stating again that "the proper focus is on the time of the discriminatory act, not the point at which the consequences of the act become painful."                                                              !
                                                                                                                                ~
Chardc:., 454 U.S. at 8 (emphasis in original) (citing Ricks, 449 U.S. at 258). And subsequent cases have extended the Ricks-Chardon rule to suits brought under the Age Discrimination in Employment Act (ADEA), which also requires an aggrieved employee to file a complaint with the EEOC within 180 days "after the alleged unlawful employment practice occurred."                          29                  U.S.C.              $
626(d). See, 3 2., Price v. Litton Business Systems, Inc.,                                                  694 F.2d 963 (4th Cir. 1982).
We think the same rationale requires the Ricks-Chardon rule's  application to    the acts  of            employment  discrimination                                        -
prohibited by the EPS.
Subsection (b)(1) of the EPS identifies the triggering event for timely filing purposes as a " violation of subsection (a)," and subsection (a) identifies the " violations" referred to in subsection (b)(1) as any acts which " discharge any employee or otherwise discriminate against any employee with respect to his .
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      . . employment (for retaliatory reasons)."                For the game reason
;    that the proper focus in assessing time-bar defenses under 6 l .
1983, Title VII, and the ADEA is on the time of the challenged j    conduct and its notification rather than the time its painful l    consequences are ultimately felt,        so should be the focus in
 
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assessing time-bar defenses under the EPS. We so hold . rejecting l
English's dWittention that    the Ricks-Chardon rule should            not.
apply _to claims under the EPS.
                                                                                                  )
(2)                                                  l English's effort to avoid application of the Rigky-
_Chardon rule to the facts of this case, even if it be generally 1
;          applicable to EPS claims,- is based on her contention that the-l-                                                                                                l earlier decision on May 15, 1984, as communicated to her, did not have the final and unequivocal quality required to invoke the rule. We disagree.
As English correctly notes, the Ricks-Chardon rule is                      ;
i premised on en employee's having been given final and unequivocal notice of an employment decision having delayed consequences.
Only upon receipt of such. notice does the filing period begin to run. Until that time, there is the possibility that the discrim-                  -
1 inatory decision itself will be revoked, and the contemplated                          j action not taken, thereby preserving the pre-decision status quo.
English claims.that the May 15, 1984 letter giving her notice of GE's decision is equivocal because the termination of her active employment depended on whether she secured other suitable employ-ment, a fact which would not be known until the last day of her temporary assignment.                                    '
English's argument misses a key point.      The notice of the challenged employment decision itself was in form final and unequivocal. There was no intimation in it that the decision was subject to further appeal, review, or revocation, either in whole
 
4 or in part.      Neither did it state or imply that her temporary assignment might be lengthened or made indefinite in duration.
The_only uncertainty in the notice related to a possi-bility of avoidance of the consequences of the decision by means unrelated to its revocation or reexamination by the employer. If English secured other suitable employment before the end of her temporary assignment,      she would avoid the ultimate, and most        I harsh, effect of the May 15, 1984 decision.        But the possibility that the effect(s) of a challenged decision might be avoided by such means, does not render the decision equivocal for the pur-          i poses here at issue, at least where, as here, the effect can be avoided without    negating    the  alleged discriminatory decision itself.      Even had GE "re-hired" English into a new suitable position, such an act would not have erased and made non-action-able the May 15, 1984 disciplinary action.          We therefore hold  "
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that notification of the May 15, 1984, decision triggered the limitations period with respect to English's claim of retaliatory 2
The Sixth Circuit recently reached the same conclu-sion on this question.      In Janikowski v. Bendix Coro., 823 F.2d 945 (6th Cir. 1987), an employee challenged his discharge under the ADEA. The district court ruled that the claim was untimely under the Ricks-Chardon rule.        The employee sought to avoid the Ricks-Chardon time bar by arguing that the notice of his termina-tion was not " definite and final." Janikewski, 823 F.2d at 947 His employer had notified him on September 4, 1980 that his employment would terminate on September 31, 1981 unless he had found other employment in the company by then. The Sixth Circuit rejected the challenge, holding that the notice was sufficient to trigger the running of the filing period under the ADEA. See id.
("Plaintif f's seeking a new position within the company before his last day of work ended did not toll the period of limita-            I tions.").
That this is the necessarv implication of the Ricks-3.-                                                                            l terminattesstS;her employment.
English next contends, relying principally upon Bruno v_ . . Western Elec. gq.,    829 F.2d 957 (10th Cir. 1987), that if Ricks-Chardon compels treating the May 15, 1984, decision as the event marking her effective " discharge," she has alternatively            .
alleged and proved a " continuing violation" extending into the charge period so that she r.4y challenge that earlier termination decision as an element of the " continuing violation."          We dis-  ;
agree, " continuing violation" theory cannot be stretched to give such a result.
A key distinction between ]Lruno and this case is that in Bruno the _ employee neeer "retirei" under pressure nor was involuntarily terminated, hence was not challenging his " dis-charge."      Instead, the Bryng employee had simply declined to      ,
yield to the employer's continued ef forts to force his retire-ment. In that circumstance, the employee was not ;1 aiming either a constructive      or actual discharge as a violation of protected 2
Cont.      Chardon      rule was  recognized by Justice -Brennan, dissenting in Chardon:
The thrust of the Court's decision is to require a potential civil rights plaintiff to measure the time for filing his claim from the moment some          form of injunctive relief first becomes available.      The effect of this ruling will be to increase the number of unripe and  anticipatory    lawsuits  in  the federal  courts  -
lawsuits that should not be filed until some concrete harm has been suffered, and until the parties, and the forces of time,-have had maximum opportunity to resolve the controversy.
Chardon, 454 U.S. at 9.
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employment rights, 'and the                                        " continuing violation"                                                                      theory was            j instead drawn upon to open to challenge a series of related coercive acts, some of which would have been time-barred if treated as discrete, consummated violations.
Here, by contrast, as earlier noted, the May 15, 1984                                                                                                          l decision as then ef f ectively communicated to English was a dis-crete violation of English's right not to suffer retaliatory discharge (assuming that it was so motivated).                                                                                      Such a consummat-I ed, immediate violation may not be treated as merely an episode in a " continuing violation" because its effects necessarily carry over on a " continuing" basis.                                      So to hold would of course effec-tively scuttle all timeliness requirements with respect to any discrete violation having lasting effects - as presumably all do to some extent.
C English's invocation of equitable estoppel principles
                        .is likewise unavailing here.                                        Though those principles must be available in an appropriate case to avoid a time-bar defense to a claim under the EPS, this is not such a case.                                                                                                          The relevant principle is the same we have recognized in ADEA cases, where we have taken a restrictive approach in deference to the balance we think Congress has struck between employer and emplo'ee                                                                                              y                    interests in the timing of claims.
Our rule with respect to equitable estoppel as a means of avoiding the bar of untimely filing under the ADEA, hence also                                                                                                                    !
l under the EPS, was. laid down in Price v. Litton Business Systems,                                                                                                                    j l
                                                                                                                                                                                                                                                                                                        )
 
{,~
j l
1
!    Inc.,    694 F.2d 963 (4th Cir. 1982).        There we held that its i
invocation required a showing that an " employee's failure to file in timely fashion is the consequence either of a deliberate design by the employer or of actions that the employer should unmistakably have understood would cause the employee to delay i
filing his charge."      Id. at So5. We specifically noted that      1
      "(a]n (mployee's hope for .    . . a continuing employment relation-ship .    .  . cannot toll the statute abs at some employer conduct likely to mislead an employee into sleeping on his rights.        .I_d .
at 965-66 (citations omitted).
We reaffirm this principle here. Absent evidence that the employer acted to deceive the employee as to the existence of its claim or otherwise to mislead or coerce the employee into not        j filing a claim in a timely fashion, we will not find the employer equitably estopped to plead the bar of untimely filing.          Under this rule, even an employer's confirmation of that hope could not        j estop the employer absent some indication that the promise was a        j quid-pro-quo for the employee's forbearance in filing a claim.            l Such evidence is not present here. English points to 1
GE's repeated reassurances that permanent placement was being            l sought elsewhere in the company as one ground supporting her claim of equitable estoppel. But this conduct is similar to that of the employer in Price, who promised all reasonable efforts to          !
I place a terminated employee in a new position within the company.        l English makes nc claim that      GE explicitly told her, or otherwise    j led her to believe, that its relocation efforts somehow depended        f I
i
 
i on English's fctbearance from filing a claim of discrimination against it. English also notes the assertions of a GE executive that GE did not intend to fire her. But again, this is not the                                                    ,
kind of conduct that equitably estops under our rule.        Aside from                                              l 1
the fact that technically the statement was accurate - the termi-                                                    !
nation action of which English was notified was, as indicated, layoff re.ther than outright discharge from all employment                    -
the assertion contained no suggestion that it was a guid pro quo for forbearance from suit. That,  as indicated,    is    t. critical element giving rise to estoppel under our rule, and it au missing here.
III Closely related to English's    " continuing violation" theory advanced as a means of opening her May 15, 1984, " dis-charge" to challenge, is a claim of continuing violation separate                                                  -
from and independent of her barred " discharge" claim:        that she was subjected to a continuing course of harassment while she was on " probationary," " temporary assignment" status following the May 15, 1984, disciplinary decision. That harassment theory as a basis of independent claim was never addressed by either the ALJ or the Secsgtery, possibly because it was not alleged with as much precision as it might have been. Conceding the intprecision, we nevertheless think that it was sufficiently raised to require our consideration of the question whether a claim for "retalia-tory harassment" is independently cognizable under EPS, and if so whether that alleged here requires a consideration on the merits not yet given it.        ,
Addressing the issue of general cognizability as-one of
  ,        first impression, we hold that such a claim lies under the EPS.
We do so by directly analogizing from the Supreme Court's recog-nition of such - an independent claim of race- or gender-based harassment under Title VII in Meritor Savinas Bank, FSB v. Vin-son, 477 U.S. 57, 64-67 (1986).      There the Court found in Title VII's prohibition of race- or gender-based discrimination in any
            " terms, conditions, or privileges of employment," a prohibition against race- or sex-based harassment sufficiently onerous to create a " hostile work environment" for the targets of the ha-rassment.3      We think that the same must be found in the EPS's prohibition,    in subsection (a), of any retaliatory "discrimi-nat[ ion) against any employee with respect to his                . . .                              terms, conditions, or privileges of employment."      42 U.S.C.              5 5851(a).
While it may well be thought that the interests protected by Title VII - freedom from race- and gender-based discrimination in employment practices - are more profound than are those protected by subsection (a) of the EPS - f reedom f rom discrimination for "whistleblowing" - Congress has used exactly the same language to define the nature and range of the prohibited discrimination.
And the Meritor Court's focus in finding the creation by harass-ment of "a hostile work environment" a form of prohibited " dis-crimination" under Title VII was more upon the statutory language 3 While Meritor dealt directly only with sexually-based harassment, it explicitly approved the decisions of various lower federal courts holding that Title VII prohibited discrimination by race-based harassment sufficient to create a " hostile or I
abusive work environment."    ge_t Meritor, 477 U.S. at 65-66.
l.
 
defining the discrimination prohibited than upon its specific motivation.                      Egg Meritor, 477 U.S. at 64-67.                                As the Court put I
it:  "Without question, when a supervisor sexually harasses a                                                                                l subordinate because of that subordinate's sex, that supervisor
          ' discriminates' on the basis of sex."                            Jd. at 64.                                  For this, i
j-        read, as we believe we must:                            "When a supervisor harasses a                                                        i subordinate because of that subordinate's protected ' whistle-                                                                                )
blowing' conduct, that supervisor ' discriminates' on the basis of the protected conduct."
Additionally, there is no impediment to such an inter-pretation arising f rom any remedial limitations in the EPS.                                                              In:
addition to injunctive and restitutionary relief, compensatory damages may be awarded under subsection (b)(2)(B) of the EPS.
In light of this holding, we vill remand the case to the Secretary for                        first  instance consideration of                                        English's separate claim of discrimination by retaliatory harassment.'                                                              In remanding, we of course express no opinion either upon the merits of the claim alleged, or upon any defenses, including limitation defenses, that may be interposed.                            In considering the claim, the Secretary should be guided by the Meritor Court's discussion of the nature and degree of harassment required to create an "abu-0 English challenged the ALJ's refusal to allow the presentation of live testimony on the Secretary's aborted remand, and renewed that challenge before us.                            In view of our remand for first instance consideration of her harassment claim while af-firming the dismissal of her " discharge" claim, we assume that this challenge is mooted. Clearly, upon any remand by the Secre-tary to an ALJ, the question of the form of proceedings before that officer will be an open and new one, l
 
  .9 l
l sive or hostile work environment" amounting to discrimination,                  j See Meritor, 477 U.S. at 67.
AFFIRMED IN PART; REMANDED IN PART FOR FURTljER_P_ROCEEDINGS.
{ l I
Judge Russell concurs in that portion of the judgment which af firms dismissal of the claim of retaliatory discharge, and in Parts I and II of the majority opinion.        He dissents from that  portion  of  the  judgment  which  emands    the  claim        of    -
retaliatory  harassment,    and  from  Part  III    of  the majority opinion. He would affirm dismissal of the latter claim as well, on the basis that it too is time-barred.
t 1                                                                                                              -
J
                                                                }}

Revision as of 11:24, 9 February 2021

Notice of Issuance of Director'S Decision Under 10CFR2.206 Granting in Part Petition Filed by Az Roisman & MG Ratner on Behalf of Vm English
ML20248G406
Person / Time
Site: 07001113
Issue date: 03/13/1989
From: Thompson H
NRC OFFICE OF THE EXECUTIVE DIRECTOR FOR OPERATIONS (EDO)
To:
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2.206, NUDOCS 8904130422
Download: ML20248G406 (305)
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Text

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Naum IhNuc ' :l

'89 tiAR 13'. P4 :15 NUCLEAR REGULATORY COMMISSION j GFF!;. & . . ;, ,.

GENERAL ELECTRIC COMPANY - 00 E g w Wilmington, North Carolina Facility Docket No. 70-1113 l ISSUANCE OF DIRECTOR'S DECISION UNDER 10 CFR 2.206 L

Notice 'is hereby given that the Deputy Executive Director for Nuclear Materials Safety, Safeguards, and Operations Support has granted in part atid

denied in part a petition under 10 CFR 2.206 filed by Anthony Z. Roisman and Mozart G. Ratner on behalf of Vera M. English (Petitioner). In her petition, Mrs. English requested imposition of a civil' penalty in the amount of

$40,635,000 upon General Electric (GE), plus $37,500 per day for every day after April 6,1987, that GE does not take corrective action, and imposition <

of'a license condition upon GE requiring the Licensee.to fully compensate Prs. English for her economic losses in the past and future resulting from GE's alleged discrimination, for medical expenses entailed as a result of the l alleged discrimination, for expenses incurred in " fighting GE", and for

" physical and mental pain she has endured" as a result of GE's actions.

The Petitioner's request that enforcement action be taken against GE has been granted. As a result of this decision, a Notice of Violation and Proposed Imposition of Civil Penalty in the amount of $20,000 is also being issued.

However, the Petitioner's requests that the NRC impose a civil penalty in the amount of $40,635,000 plus $37,500 per day for each day after April 6,1987 and that the liRC impose a license condition upon GE requiring the Licensee to kpj4130422890313 c ADoca o70o1133 f. t5 PDR h9

H compensate Mrs. English for her expenses and losses are denied. Furthermore, the Petitioner's request as set forth in her December 13, 1984 petition that the NRC take enforcement action against GE based upon certain other alleged instances of wrongdoing is also denied.

The reasons for this decision are fully described in the " Director's Decision Under 10 CFR 2.206," issued on this date, which is available for public inspection in the Commission's Public Document Room, 1717 H Street, NW, Washington, DC 20555. i FOR THE NUCLEAR REGULATORY COMMISSION fk.

Hu h L. Thompso , Jr.

Deputy Executive Director for Nuclear Materials Safety, Safeguards end Operations Support Dated at Rockville, Maryland this /74 day of March 1989

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, DD 8 7-o / ,

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l L AW orriCES (

MOZART G. RATNER, p c. I 4400 J E NIF E R ST R E CT, N w suite 350 wC2 ant 0 mATNgm wAs MINGTON,0 C 200:5 a.M A C D D C 2 0 4 3 6 2 AJPSC 9

April 6, 1987

)

Mr. James M. Taylor Director of Inspection and Enforcement United States Nuclear Regulatory Commission Washington, D.C. 20555 Re: In the Matter of Vera M. English v.

General Electric, Docket No. 70-1113

Dear Mr. Taylor:

l When you rendered your Partial Director's Decision Pursuant to 10 C.F.R. 5 2.206 on August 29, 1986.(Partial Decision), you speciff,cally deferred any NRC action on Mrs. f English's request that enforcement action be taken against General Electric Company (GE) as a result of its deliberate

. discharge of her from its Wilmington, North Carolina Nuclear Fuel Manufacturing Division (NFMD) for reporting safety violations to the NRC. The stated basis for this deferral of action was the agreement between the Department of Labor (DOL) and NRC to coordinate and cooperate on matters related to the employee protection provision of Section 210 of the Energy Reorganization Act of 1974. Department of Labor; Employee Protection, 47 F.R. 54585 (December 3, 1984). The Director determined that the agreement "means deferral of NRC consideration until the matter has been determined.by the yh-N.g75$75 . _ 0o27o Q >

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James M. Taylor April 6, 1987 Page'2 Secretary of~ Labor." Partial Decision,.p.:ll. Reference was also~made to the'NRC likely waiting until the Secretary of-

. Labor had resolved the complaints filed by Ms. Malpass and Mr.

Lewis. Id.

On January 13, 1987, the Secretary of Labor dismissed Mrs. English's administrative complaint, because, in his view, it'was filed after the 30-day statutory limit. The Secretary did not disturb the Administrative Law Judge's substantive findings of illegal' discrimination against Mrs. English by GE.

An appeal to the Fourth Circuit has been filed by Mrs. English f rom the- Secretary's dismissal, but' resolution of that appeal is not expec'ted for some time.

.The purpose of this. letter is to request that NRC now move promptly.and vigorously to take appropriate enforcement action against GE for its misconduct against Mrs. English.

Briefly, the bases for this request are:

1) the excuse which was given to justify deferral, i.e., awaiting action.by the Secretary of Labor, is no longer valid;
2) regardle.ss of the technical timeliness of Mrs.

English's comptaint, a DOL Administrative Law Judge held, t.fter an extensive hearing, that GE

" discriminated against" Mrs. English because of her

" violation of and: participation in NRC proceedings

' investigating" GE's facility (In the Matter of English v. GE, DOL Case No. 85-ERA-00002 Decision and order August 2, 1985, p. 13) and GE has not paid any fine for its conduct nor has Mrs. English been compensated for the wrong done her; l

l I

1 s

James M. Taylor April 6, 1987 Page 3

3) the effectiveness of the NRC's program to protect and encourage. workers to report safety violations to it -- a program which exists as the direct result of a Congressional mandate -- is severely hampered, if not destroyed, by any further delay in taking action to demonstrate to all workers in the nuclear industry that they will not suf fer, but in fact will be fully protected, if they carry out their duty to report such violations to the NRC.

It has been almost three years since Mrs. English was fired from her job at NFMD. Over a year and a half ago the Administrative Law Judge concluded, after extensive hearings, that GE deliberately discharged Mrs. English because she would l not stop insisting that GE comply with NRC safety requirements and reporting their failures to comply to the NRC. Both ~3C's internal inspection and the NRC's inspection confirmed the validity of a number of Mrs. English's charges. By reporting her concerns to the NRC, Mrs. English was fulfilling the mandate of 10 CFR Part 21, and the Congressional goals and purposes of 42 U.S.C. S 5851. Nonetheless, to date the NRC i has not taken a single step to show its support for Mrs.

English and her conduct, nor has it taken a single action to show its disapproval of GE for its retaliatory discharge of Mrs. English.

Surely, the NRC must realize that so long as this situation persists, the other employees at NFMD and employees throughout the nuclear industry will be substantially deterred from coming forward and reporting safety violations to the NRC.

4 James M. Taylor April 6, 1987 Page 4 The messages that Mrs. English's treatment has sent and is sending to the nuclear industry is loud and clear -- employees who report safety violations to the NRC and suffer retaliation from their employers cannot rely on the NRC to take action to redress the wrongs done them and their employers will not be punished for their misconduct. In consequence of this message, significant safety problems at nuclear facilities, known only to employees and ignored by management, will be less likely to be discovered and corrected. The ultimate result in that there is an increased risk to workers and to the public health and safety.

If NRC is to fulfill its statutory duty to protect the

~

safety of nuclear workers and the public health and safety, it j must take forceful affirmative action immediately. We propose the following steps:

1) Impose on GE the maximum fine permitted by the statute for its willful retaliation against Mrs.

English, which constitutes several on-going violations beginning from the date of Mrs.

English's transfer out of the Chemet Lab and continuing until Mrs. English is fully compensated;

2) Impose, as a condition of an NRC license for GE's NFMD facility, a requirement that GE fully i

compensate Mrs. English for her losses incurred as a result of GE's misconduct, including front and i back pay, emotional distress and other pain and '

suffering, medical bills and all costs and fees incurred by her in pursuing her claims against GE.

These enforcement actions would both punish GE for its misconduct and thus hopefully deter it and other NRC licensees

i I l

3 )

James M. Taylor i

April 6, 1987 Page 5 ,

i

)

from similar conduct in the future and demonstrate to other workers in the nuclear industry that should they uncover and report violations of the NRC's safety and/or quality assurance rules, the NRC will assure them that any loss they suffer at \

i 1

the hands of their employers as a result of their reporting, will be fully compensated. By these actions the NRC will 1 1

substantially advance its statutorily mandated goal of protecting the public health and safety.

As you know, Mrs. English has already filed a 5 2.206 petition. This filing is neither a renewal of that petition nor an attemot to relitigate the issues already resolved there.

With particular reference to the request made there for enforcement action based upon GE's retaliatory discharge of Mrs. English, it remains our view that the Director erred as a matter of law in deferring NRC enforcement action, at least insofar as imposing a fine on GE, until final action by the DOL.

The present petition focuses on the actions to be taken by the NRC now that the reason given for deferring action no longer exists and DOL has decided for purely technical reasons, which are relevant to its authority, but not to '

i NRC's, to deny relief to Mrs. English. This is a new petition which incorporates by reference the material filed in support of the first petition and seeks the specific relief outlined )

)

James M. Taylor April 6, 1987 Page 6 l

I above. Your prompt and favorable response to this 5 2.206 petition is essential to re-establish the effectiveness of the NRC's program to encourage and protect nuclear industry workers to' report safety violations to it.

Sincerely yours,

.4 .

.' A V

/ ,/ Mozart G. Ratner Yo')Kthonyl Z. Roisman M

/

ounsel for Vera M. English l

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I

______m______ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _

go .

4 UNITED. STATES, NUCLEAR REGULATORY. COMMISSION Before the Director of Inspection and Enforcement In the Matter of )

)

VERA M. ENGLISH )-

y, Docket No. 70-1113

)

GENERAL ELECTRIC COMPANY )

PETITION FOR ENFORCEMENT ACTION Q.

I. Introduction The Introduction and Purpose of the General Statement of L Policy and Procedure for NRC Enforcement Actions (10' CFR Part 2, Appendix C) (" Enforcement Policy") provides,'in part:

The purpose of the NRC enforcement program is to promote and protect the radiological health and safety of the public, including employees' health and safety,.the common defense and security, and'the' environment by:

Ensuring compliance with NRC regulations and license conditions; Obtaining prompt correction of violations and adverse quality conditions which may affect safety;

  • Encouraging improvement of licensee and vendor performance, and by example, that of  ;

industry, including the prompt identification

' , and reporting of potential safety problems.

[Footnctes omitted.)

This enforcement request is grounded in that clear policy mandate. It seeks two separate and distinct NRC actions. First, i i

in order to ensure " compliance with NRC regulations and license W 7 W ---

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_ _ - . - _ _ _ _ . _ _ _ - - . _ - - - _ - - - _ - _ . - _ - - _ _ - - - - - _ - _ - . - - - _ _ _ - - - _ - - - - - - . - - - - - - - - - - - - - . - - - . - - - - - - - - - - - - - - - - - - - - _ - - - - - - - - - - - - - - - - - - - _ - - - - - - - - - -------------J 1

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conditions," and in order to deter " future violations and occurrences of conditions adverse to quality," it seeks imposition of a substantial I

penalty aga' inst General Electric Company (GE) for having " discriminated '

against [Mrs. English]" because of her " initiation of and participation in NRC proceedings." In the Matter of Vera M. English v. General Electric Company, DOL Case No. 85-ERA-0002 decided August 1, 1985, reversed on the basis of the statute of limitations on January 13, 1987, appeal pending, United States Court of Appeals for the Fourth Circuit. Second, in order to encourage the " prompt identification and reporting of potential safety problems" and in order to obtain

" prompt correction of violations and adverse quality conditions which may af fect safety" it seeks imposition of a license condition requiring GE to fully compensate Mrs. English for all her losses incurred as a result of her illegal discharge. The amount of this i

compensation, omitting attorneys' fees and expenses, is detailed in Attachment A to this petition.

II. _ Imposition of a Fine The Enforcement Policy is grounded in the premise that voluntary compliance with NRC regulatory and licensing requirements will be most likely to occur if the consequences of noncompliance are both prompt and vigorous. Basic guidelines are established for di f ferent categorias of misconduct which reflect a conscious ef fort to distinguish between violations based on conditians et the actual, or potential for, impact on the public. These general guidelines i

are then nodified based upon the extent to which the misconduct occurred as a result of careless disregard or willfulness. In addition, such considerations as the position of those causing I

l '

t

F-4 o . l the violation, the significance of the underlying violation, the intent of the violator and.the economic advantage gained as a result of the violation all may increase the penalty imposed.

On virtually every factor which the NRC uses to judge the level of penalty to impose for violations, GE's conduct requires imposition of the highest penalty. Its deliberate action in discharging Mrs. English for. pursuing safety concerns with the NRC and its i

refusal to take any corrective steps to remedy the situation even af ter its own internal report confirmed some of Mrs. English's mest serious concerns and even after the Department of Labor Admini-strative Law Judge found for Mrs. English, are evidence of the mest callous and dangerous conduct for which an imposition of a severe penalty is absolutely essential.

Although the Enforcement Policy "is intended to serve as Cermission guidance, rather than as rigid requirements" (Statement of Consideration, 47 FR 9987 ( 3/9/8 2 )), it nonetheless is imposed "upon the Staff and presiding of ficers" and "(a]s a matter of fair notice to ... licensees, the Enforcement Policy must be applied" (In the Matter of Reich Geo-Physical, ALJ-85-1, 22 NRC 941, 958-9 (1985). The discretion granted to the Director by the Conmission in the Enforcement Policy is a discretion to act within the confines  ;

a of the Policy, not a discretion to ignore er substantially deviate i

.. f r om the policy. For instance, in establishing base penalties for violations, the Policy is quite explicit. The discretion

)

is applied in deciding how much to increase or decrease the penalty. )

Similarly, the Poicy declares that "[w]ith very limited exceptions, whenever a violation of NRC requirements is identified, enforcement l l

l i

~

L c .

. . action is taken," that "lg]enerally, civil penalties are imposed for Severity Level 1 violations" and "are imposed absent mitigating circumstances [which are defined) for Severity Level II violations" and "will normally be assessed . . . for any. willful violation of a any Commission requirement including those at any severity level." I 10 CFR Part 2, Appendix C, Paragraphs V and V.B.

The GE misconduct of which Mrs. English is the victim is a Severity Level I or II violation which has continued since her original transfer from the Chemet Lab and her subsequent firing through today.

From the outset, the GE plant manager was fully aware of and participated in the discrimination.against Mrs. English. .

At -least af ter August 24, 1984, when Mrs. English filed her complaint I with the Department of Labor, the highest levels of GE must be assumed to have been aware of what happened to her and of the wrongs which had been committed against her. "The Commission expects management to be closely involved in the control of licensed activities ... land i]f management ... condones violations of q l

regulatory requirements, sanctions will be appropriately escalated." {

Statement of Consideration, 49 F.R. 8583, 8585 (3/8/84). Thus l from March 15 until August 24, 1984, GE was guilty of at least a Severity II violation since "la }ction by lits) plant management above first line supervision (was) in violation of Section 210 of the ERA' and from August 24, 1984, to today " senior corporate management (has been) in violation of Section 210 cf the ERA."

10 CFR Part 2, Appendix C, Supplement VII A & B. The base civil penalty for those violations is $20,000 per violation from March j 15 to August 24 and $25,000 per violation from August 24 to today.

i

_3 l 10 CFR ' Part 2, Appendix C, Table 1A and 1B. Moreover, since GE "is aware of the existence of a condition which results in an engoing violation and [has failed] to initiate corrective action, f each day the condition existed may be considered as a separate .

violation and, as such, subject to a separate additional civil j

penalty." 10 CFR Part 2, Appendix C, Paragraph V.B.5.(1). Thus GE's base penalty for its treatment of Mrs. English is $3,240,000

{

for the Severity Level,II violations and S23,850,000 for the Severity Level I violations, making a total base penalty of $27,090,000.

Additional factors require that this amount be substantially incrersed.

Initially it is important to realize why NRC has decided to classify Section 210 violations at the highest severity levels.

Any action taken by a licensee to deter reporting of safety concerns by discouraging employees from reporting to the NRC is, in effect, an attempt to falsify data since a material omission is as serious as a. material misstatement. 10 CFR Part 2, Appendix C, Supplement VII, fn. 15.

When GE attempted to force Mrs. English to abandon her safety concerns and to not report to the NRC it was seeking to prevent material inf ormation relevant to the NRC's safety review function from reaching the NRC. When she was subsequently transferred and later fired f rom her job in a highly public and demeaning manner for refusing to surrender to these pressures, every worker at the GE facility got a very clear message that reporting to the NRC would be met with severe consequences. Without the steady flow of reliable and complete information, the NRC cannot carry out its safety review function.

8 In addition, the Enforcement Policy singles out ineffective identification of safety problems-as particularly egregious and explicitly authorizes both administrative orders and civil penalties in such casas. Statement of Consideration, 49 F.R. 8583, 8589 (col. 2) (3/8/84). GE's actions in punishing Mrs. English for reporting safety concerns to the NRC not only sought to prevent her identification of problems but undermined any other employees' i inclination to identify safety problems.

Finally, it is the very nature of Section 210 violations, as opposed to other violations,- that they warrant the most severe classification for enforcement action. Any Section 210 violation is inherently generic.because the workforce learns from management's conduct what is acceptable and unacceptable behavior. This generic impact means that even if a specific Section 210 violation only involves suppressing relatively minor safety concerns, there is a substantial potential for suppressing significant safety concerns known to other workers who are intimidated by the consequences suffered by their fellow worker. Thus the test of the safety implications of the Section 210 violation involved here is not merely the safety significance or even the validity of the underlying concerns raised by Mrs. English but rather the potential safety 4

significance of the problems which other workers will be reluctant to raise because of fear of reprisals.l of course that implicates the most serious safety concerns.

1 There is no doubt here that Mrs. English's concern regarding I the proper handling and cleanup of the special nuclear material which GE is licensed to possess itself involves the gravest matters of worker and public health and safety. The potential for mishandling, inadvertent exposure, and leakage of this material is sufficiently serious that the Executive Director for Operations recently concluded that even the procedures designed to safeguard the material could

1

-7 Against this regulatory predisposition to severely punish Section 210 violations is superimposed the fact that GE's conduct here, far from justifying mitigation of any fine, actually requires a substantial increase in the fine. The factors identified in the enforcement policy as warranting an adjustment of the fine are: prompt identification and reporting (GE has never reported its Section 210 violation to the NRC or even acknowledged that such a violation exists); corrective action to prevent recurrence (not only has GE done nothing to correct the damage done to Mrs.

English, even af ter its own investigator found substantial merit in her quality concerns r (Wieczorek Report (April 26, 1984)),

but it has also done nothing to eliminate the consequences to other employees of its intimidation of Mrs. Inglish or to prevent recurrence of similar events in the future and, in the cases of Ms. Malpass and Mr. Lewis, applied similar pressure to prevent and punish their testimony on behalf of Mrs. English); past performance (Hrs. English had felt pressure to "go along to get along" for several years); prior notice of similar events (licensees have been notified by the NRC of the importance of compliance with Section 210 and of encouraging workers tc freely speak out about safety concerns to management and the NRC); and multiple occurrences

, 1 [ continued) not be released under the Freedom of Information Act (5 U.S.C.

5552) because it "would facilitate attempts at theft or diversion of such material and thus pose significant health and safety problemt."  !

Letter of Stello to Ratner, 3/25/87, in response to FOIA-86-704.

Obviously since the diversion of this material is of such grave concern, its careless. handling, frequent spills, and inadequate cleanup with the concomitant exposure of workers, plus the failure to properly control the material and follow safeguard procedures, is an extremely serious matter of which the NRC would have to be advised.

a

1

(

I i

(every day that passes without corrective action being taken to undo the damage done to Mrse i English reinforces the adverse impact 1 i

on other workers who believe they should report safety. concerns to the NRC).- All these factors taken together warrant at least

{

a 50% increase in the fine to be paid by GE. .)

In sum, Mrs. English requests that GE be fined a total of

$40,635,000 plus $37,500 per day for every day after April 6, 1987, that GE does not take the corrective actions identified in the following paragraphs.  ;

i III. Modification of License The imposition of the fine proposed above should substantially deter GE and other licensees from violating Section 210 in the future, but that deterrence will never overcome the fear engendered among the workforce by the treatment which Mrs. English has been forced to endure. To the workers at GE the only relevant fact is that someone stood up to management and insisted on pursuing safety concerns with the NRC, many of which were confirmed by GE's ov' internal report and by NRC inspector reports, and that person is gone, with no career and no future. For the men and women at GE with families and responsibilities, for those who are alone and depend on their job to provide tnem the comforts

+

of life, for all the employees, Mrs. English suffered the ultimate and most severe punishment for her conduct. The impact of that on the remaining workforce cannot be overstated. Each of those workers must now consider that resisting management and insisting on pursuing a safety concern may not only result in a lost job

. I but there will not be any remedy to assure that worker that by obeying the law and reporting safety concerns the worker,will not suffer economically -- their capacity to support themselves and their family will be restored and they will be fully compensated for the physical and emotional anguish caused by being escorted from the job site and barred from employment.

Had GE operated its plant without properly functioning and required safety equipment, NRC could and should have fined them.

Had GE still not corrected the problem, NRC would have to issue f an order requiring that corrective steps be taken by a time certain and, failing that, the license would have to be suspended. The safety problem created by GE's action against Mrs. English is disabling a major safety system at the NMFC plant -- i.e., the system which assures that safety concerns are promptly reported to the NRC. GE has refused to repair that system and thus the NRC must issue an order requiring that GE implement repairs at once or have its license suspended.

(

There is only one way to repair the damage done by GE's actions '

against Mrs. English. GE must be required to fully compensate Mrs. English for her economic losses in the past and for the future, for her medical expenses, for the expe.nses she incurred in fighting GE all these years, and must fully conpensate her for the physical

, and mental pain she has endured as a result of their actions.

Without such co:npensation, she remains a symbol to the GE workferce of the severe consequences which they will suffer if they insist on reporting safety concerns to the NRC. By requiring GE to provide such compensation, Mrs. English becomes a symbol to the GE workforce that if they report safety concerns to the NRC they will not {

-- - -- - - l

l l-l -

r suffer. In addition, GE will realize that Section 210 violations, even if it is economically possible to justify the fine, will not produce the desired result of inhibiting the workforce from reporting to the NRC.

L No amount of new programs to encourage workers to freely  ?

express their concerns to the NRC, no amount of management speeches, .  ;

1 i

slogans and posters, and no amount of NRC assurances will convince {

the worker that she or he should risk virtually certain loss of i

livelihvad to pursue safety concerns which GE does not want pursued.

The remedyIroposed here, while admittedly unique, is certainly well within the power of the NRC. The Enforcement Policy recognizes the need to assure that corrective actions are taken promptly.

The NRC has the authority to " establish by .. . order, such standards '

and instructions to govern the possession and use of special nuclear material . . . . as the Commission may deem necessary [or] desirable

~

to ...

protect health or to minimize danger to life or property."

42 U.S.C. 52201(b). In 10 CFR 555.40(b), the NRC specifically declares that it possesses the authority to modify any license 1 for "f ailure to observe any of the terms and conditions of the i Act, or the license, or of any rule, regulation or order of the l

Cermii s s i.v ..." In 10 CFR 550.7 the Commission specifically  !

forbids violations of Section 210 of the Energy Reorganization Act. Thus the NRC has full authority to impose the relief requested I here.

The existence of Section 210 does not bar the NRC from acting independently of the Department of Labor. The NRC cannot be barred 1

from pursuing its important health and safety functions by the l Department of Labor actions as this case well illustrates. Here

i o .,

1 the Department of Labor found that Mrs. English had been discriminated against for engaging in protected activity but ruled that her claim was time-barred. That technical impediment, even if valid, cannot and does not undermine the validity of the ALJ findings and the implication of those findings for the public health and safety. Even if the Department of Labor had allowed the woefully inadequate compensation which Mrs. English was awarded to stand, it would still be incumbent on the NRC to. evaluate the remedy to assure itself that the compensation paid was sufficient to fully correct the problem created by the illegal firing. Finally, Congress itself always intended that the NRC would retain its full authority to act in addition to the processing of Section 210 violations by the Department of Labor. In floor debate in the Senate, Senator Hart sponsored and spoke for an amendment which was adopted to strengthen the employee protection provisions.

Senator Hart stated (124 Congressional Record 29771 (December 18, 1978):

... (Section 210] is not intended to in any s way abridge the Commission's current authority J to investigate an alleged discrimination and take appropriate action against a licensee-employer, such as a civil penalty, license suspension or license revocation.

Thus NRC has authority to act even before the Department of Labor provides some compensation. In this case, the NRC clearly

, has a duty to act since the Department of Labor has acted and has not provided any remedy to Mrs. English.

1 i

i

CONCLUSION The central and indisputable fact which underlies tl1s 3 Petition is that over three years ago Mrs. English was discriminated against and eventually fired by GE f9 r reporting safety concerns to the NRC and GE has never been fined for its conduct and Mrs. English has never been compensated for the injuries inflicted upon her by GE. The unavoidable consequence of this situation is to leave the impression with GE and other licensees that such conduct is tacitly acceptable and to leave the impression with the nuclear industry workforce that reporting safety concerns to the NRC will result in discrimination and retaliation which will never be redressed.

It is unacceptable for these conditions to continue. Prompt action is required in the form of adoption of the enforcement proposals in this Petition.

Respectfully submitted, M / 4:

< Anthony Z./Ro 'scin/

Suite 600f (

1401 New Yo k Ave., NW Washington, D.C. 20005 (202) 628-3500 l

l' f. bb4' Mozart G. Ratner 5225 Wisconsin Avenue, NW Suite 600 i Washington, D.C. 20015 '

Counsel for Petitioner Dated:

4f

i l

l VERA M. ENGLISH Costs and Damages Incurred As a Result of Discriminatory Discharge Past and future pay, including benefits $ 328,645.00 Mrs. English's out of pocket costs and expenses 24,026.62 Psychological Service Fees (only through December 10, 1985, and not including additional amounts incurred since then, to be supplemented later) 2,955.00 l

$355,626.62 !

i 4

)

1 ATTACHMENT A l

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UNITED STATES NUCLEAR REGULATOTY COMMISSION Before the Director of Inspection and Enforcement I In the Matter of )

)

VERA~M. ENGLISH )

y, Docket No. 70-1113

)

GENERAL ELECTRIC. COMPANY )

PETITION FOR ENFORCEMENT ACTION I. . _ Introduction The Introduction and Purpose of the General Statement of Policy and Procedure for NRC Enforcement Actions (10 CFR Part 2, Appendix C) ,

(" Enforcement Policy") provides, in part:

The purpose of the NRC enforcement program is to promote and protect the radiological health and safety of the.public, including employees' health and safety, the common defense and security, and the environment by:

Ensuring compliance with NRC regulations and license conditions; Obtcining prompt correction of violations and adverse quality conditions which may affect safety; Deterring future violations and occurrences of conditions' adverse to quality; and Encouraging improvement of licensee and vendor performance, and by example, that of l industry, including the prompt identification

!" and reporting of potential safety problems.

E [ Footnotes omitted.)

This enforcement request is grounded in that clear policy mandate. It seeks two separate and distinct NRC actions. First, in order to ensure " compliance with NRC /

regulations and license

/// ,

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\h -

A

conditions,"' and in order to deter " future violations and occurrences of conditions adverse to quality," it seeks imposition of a substantial penalty against General Electric Company (GE) for having " discriminated against [Mrs. English)" because of her " initiation of and participation in NRC proceedings." In the Matter of Vera M. English v. General-Electric Company, DOL Case No. 8 5-ERA-0002 decided August 1,1985, reversed on the basis of the statute of limitations on January 13, 1987, appeal pending, United States. Court of Appeals for the Fourth Circuit. .Second, in order to encourage the " prompt identificatic and reporting of potential safety problems" and in order to obtain

" prompt correction of violations and adverse quality conditions which'may affect safety" it seeks imposition of a . license condition requiring GE to fully compensate Mrs. English for all her losses

-incurred as a result of .her illegal discharge. The amount of this compensation, omitting attorneys' fees and expenses, is detailed in Attachment A to this petition. i' II. Imposition of a Fine The Enforcement Policy is grounded in the premise that voluntary compliance with NRC regulatory and licensing requirements will '

be most likely to occur if the consequences of noncompliance are both prompt and vigorous. Basic guidelines are established for i dif ferent categories of misconduct which reflect a conscious effort to distinguish between violations based on conditions of the actual, ,

or potential for, impact on the public. These general guidelines are then modified based upon the extent to which the misconduct i occurred as a result of careless disregard or willfulness. In l

1 addition, such considerations as the position of those causiny

the violation, the significance of the underlying violation, the intent of the violator and the economic advantage gained as a result of the violation all may increase the penalty imposed.

On virtually every factor which the NRC uses to judge the level of penalty to impose for violations, GE's conduct requires imposition of the highest penalty. Its deliberate action in discharging i Mrs. English for pursuing safety concerns with the NRC and its refusal to take any corrective steps to remedy the situation even after its own internal report confirmed some of Mrs. English's most serious concerns and even after the Department of Labor Admini-strative Law Judge found for Mrs. English, are evidence of the most callous and dangerous conduct for which an imposition of a severe penalty is absolutely essential.

Although the Enforcement Policy "is intended to serve as Commission guidance, rather than as rigid requirements" (Statement of Consideration, 47 FR 9987 ( 3/9/8 2 )), it nonetheless is imposed "upon the Staf f and presiding of ficers" and "[als a matter of fair notice to ... licensees, the Enforcement Policy must be applied" (In the Matter of Reich Geo-Physical, ALJ-85-1, 22 NRC 941, 958-9 (1985). The discretion granted to the Director by the Commission in the Enforcement Policy is a discretion to act within the confines of the Policy, not a discretion to ignore or substantially deviate from the policy. For instance, in establishing base penalties j for violations, the Policy is quite explicit. The discretion l is applied in deciding how much to increase or decrease the penalty.

Similarly, the Poicy declares that "[wlith very limited exceptions, '

I whenever a violation of NRC requirements is identified, enforcement

, 10 CFR Part 2, Appendix ~ C, Table 1A and 1:B. Moreover, since GE "is aware of the existence of a condition which results in an ongoing violation and [has failed) to initiate corrective action, each day the condition existed may be considered as a separate violation and, as such, subject :to a separate additional civil penalty." 10 CFR Part 2, Appendix C, Paragraph V.B.S.(1). Thus GE's base penalty for its treatment of Mrs. English is S3,240,000 for the Severity Level II violations and- $23,850,000 for the Severity Level I violations, making a total base penalty of $27,090,000.

Additional factors' require that this amount be substantially increased.

Initially it is important to realize why NRC has decided to classify Section 210 violations at the highest severity levels.

Any action taken by a licensee to deter reporting of safety concerns by discouraging employees from reporting to the NRC is, in effect, an attempt to falsify data since a material omission is as serious as a material misstatement. 10 CFR Part 2, Appendix C, Supplement VII, fn. 15. When GE attempted to force Mrs. English to abandon-her safety concerns and to not report to the NRC it was seeking i

to prevent material information relevant to the NRC's safety review function from reaching the NRC. When she was subsequently transferred and later fired from her job in a highly public and demeaning manner for refusing to surrender to these pressures, every worker at the GE facility got a very clear message that reporting to the NRC would be met with severe consequences. Without the steady flow of reliable and complete information, the NRC cannot carry out its safety review function.

.e L . .: In addition, the Enforcement-Policy singles out ineffective identification of safety problems as particularly egregious and explicitly authorizes both administrative orders and civil penalties in such cases. Statement of, Consideration, 49 F.R. 8583,'8589 i

(col. 2) . (3/8/84). GE's actions in punishing Mrs. English for i reporting safety concerns to the NRC not only sought to prevent her identification of problems but undermined any cther employees' inclination to identify safety problems.

Finally, it is the very nature of Section 210 violations, as opposed to other violations, that they warrant the most severe classification for enforcement action. Any Section 210 violation

. is inherently generic because the workforce learns from management's conduct what is acceptable and unacceptable behavior. This generic impact means that even if a specific Section H 0 violation only involves suppressing relatively minor safety concerns, there is a substantial potential for suppressing significant safety concerns known to other workers who are intimidated by the consequences suffered by their fellow worker. Thus the test of the safety implications of the Section 210 violation involved here is' not merely the safety significance or even the validity of the underlying concerns raised by Mrs. English but rather the potential safety significance of the problems which other workers will be reluctant to raise because of fear of reprisals.1 Of course that implicates the most serious safety concerns.

1 There is no doubt here that Mrs. English's concern regarding the proper handling and cleanup of the special nuclear material which GE is licensed to possess itself involves the gravest matters of worker and public health and safety. The potential for mishandling, inadvertent exposure, and leakage of this material is sufficiently i-serious that the Executive Director for Operations recently concluded that even the procedures designed to safeguard the material could

. Against this regulatory predisposition to severely punish Section 210 violations is superimposed the fact that GE's conduct here, far from justifying mitigation of any fine, actually requires a substantial increase in the fine. The factors identified in the enforcement policy as warranting an adjustment of the fine are: prompt identification and reporting (GE has never reported its Section 210 violation to the NRC or even acknowledged that such a violation exists); corrective action to prevent recurrence (not only has GE done nothing to correct the damage done to Mrs.

English, even af ter its own investigator found substantial merit in her quality concerns- (Wieczorek Report (April 26, 1984)),

but it has also done nothing to eliminate the consequences to other employees of its intimidation of Mrs. English or to prevent recurrence of similar events in the future and, in the cases of Ms. Malpass and Mr. Lewis, applied similar pressure to prevent and punish their testimony on behalf of Mrs. English); past performance (Mr s. English had felt pressure to "go along to get along" for several years); prior notice of similar events (licensees have been notified by the NRC of the importance of compliance with I

Section 210 and of encouraging workers to f reely speak out about  !

saf ety concerns to management and the NRC); and multiple occurrences 1 icontinued] J not be released under the Freedom of Information Act (5 U.S.C.

5552) because it "would facilitate attempts at theft or diversion of such material and thus pose significant health and safety problems." j Letter of Stello to Ratner, 3/25/87, in response to FOIA-86-704.  !

Obviously since the diversion of this material is of such grave I concern, its careless handling, frequent spills, and inadequate cleanup with the concomitant exposure of workers, plus the failure  !

to properly control the material and follow safeguard procedures, is an extremely serious matter of which the NRC would have to be advised.

s I

i (every day that passes without corrective action being taken to )

\

undo the damage done to Mrs. English reinforces the adverse impact I l

on other workers who believe they should report safety concerns j to the NRC). All these factors taken together warrant at least a 50% increase in the fine to be paid by GE.

In sum, Mrs. English requests that GE be fined a total of 540,635,000 plus $37,500 per day for every day af ter April 6, 1987, that GE does not take the corrective actions identified in the following paragraphs.

l III. Modification of License The imposition of the fine proposed above should substantially deter GE and other licensees from violating Section 210 in the future, but that deterrence will never overcome the fear engendered among the workforce by the treatment which Mrs. English has been forced to endure. To the workers at GE the only relevant fact is that someone stood up to management and insisted on pursuing safety concerns with the NRC, many of which were confirmed by GE 's own internal report and by NRC inspector rey.rts, and that person is gone, with no career and no future. For the men and wcnen at GE with f amilies and responsibilities, for those who are alone and depend on their job to provide them the comforts  !

cf life, for all the employees, Mrs. English suffered the ultimate a..c most severe punishment for her conduct. The impact of that on the remaining workforce cannot be overstated. Each of those workers must now consider that resisting management and insisting on pursuing a safety concern may not only result in a lost job t____ ._ _ - ._ ._ _ - _ _ - _ _ - _ _ . _ _ _ _ _ _ _ _ _ _ _ - _ - _ _ _ _ - _ _ _ _ _ _ _ _ _ _ _ _ _ - _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ .

i

_9 but there'will not be any remedy to assure that worker that.by obeying the law and reporting safety concerns the worker Will not suffer economical]y -- their capacity to support themselves and their family will be restored and they will be fully compensated for the physical and emotional anguish caused by being escorted from the job site and barred from employment.

Had GE operated its plant without properly functioning and required safety equipment, NRC could and should have fined them.

Had GE still not corrected the problem, NRC would have to issue an order requiring that corrective steps be taken by a time certain and, failing that, the license would have to be suspended. The safety problem created by GE's action against Mrs. English is disabling a major safety system at the NMFC plant -- i.e., the system which assures that safety concerns are promptly reported to the NRC. GE has refused to repair that system and thus the NRC must issue an order requiring that GE implement repairs at once or have its license suspended.

There is only one way to repair the damage done by GE's actions against Mrs. English. GE must be required to fully compensate Mrs. English for her economic losses in the past and for the future, for her medical expenses, for the expenses she incurred in fighting GE all these years, and must fully compensate her for the physical and mental pain she has endured as a result of their actions.

Without such compensation, she remains a symbol to the GE workforce of the severe consequences which they will suffer if they insist on reporting safety concerns to the NRC. By requiring GE to provide i i

such compensation, Mrs. English becomes a symbol to the GE workforce '

that if they report safety concerns to the NRC they will not

suffer.

In addition, GE will realize that Section 210 violations, even if it is economically possible to justify the fine, will not produce the desired result of inhibiting the workforce from reporting to the NRC.

No amount of new programs to encourage workers to freely express their concerns to the NRC, no amount of management speeches, slogans and posters, and no amount of NRC assurances will convince the worker that she or he should risk virtually certain losstof livelihood to pursue safety concerns which GE does not want pursued.

The remedygroposed here, while admittedly unique, is certainly well within the power of the NRC.

The Enforcement Policy recognizes l

the need to assure that corrective actions are taken promptly.

The NRC has the authority to " establish by . . . order, such standards  !

and instructions to govern the possession and use of special nuclear material .... as the Commission may deem necessary [or) desirable to ...

protect health or to minimize danger to life or property."

42 U.S.C. 52201(b).

In 10 CFR 555.40(b), the NRC specifically declares that it possesses the authority to modify any license for " failure to observe any of the terms and conditions of the Act, or the license, or of any rule, regulation or order of the Commi s sion . . . . " In 10 CFR 550.7 the Commission specifically f orbids violations of Section 210 of the Energy Reorganization Act.

Ohus the NRC has full authority to impose the relief requested here.

The existence of Section 210 does not bar the NRC from acting independently of the Department of Labor. The NRC cannot be barred from pursuing its important health and safety functions by the Department of Labor actions as this case well illustrates. Here

. k 11 the Department of Labor found that Mrs. English had been discriminated againstcfor engaging in protected activity but ruled that her claim was time-barred. That technical impediment, even if valid, cannot.and does not undermine the validity of the ALJ findings and the implication of those findings for the public health and safety.

Even if the Department of Labor had allowed'the. woefully inadequate compensation which Mrs. English. was awarded to stand, it would still be incumbent on the NRC to evaluate the remedy to assure itself that the compensation paid was sufficient to fully correct the problem created by the illegal firing. Finally,- l

. Congress itself always intended that-the NRC would retain its  !

full authority to act in addition to the processing of Section 210 violations by the Department of Labor. In floor debate'in 1

the Senate., Senator Hart sponsored and spoke for an amendment which was adopted to strengthen the employee protection provisions.

Senator Hart stated (124 Congressional Record 29771 (December 18, 1979):

[Section 210] is not intended to in any I way abridge the commission's current authority to investigate an alleged discrimination and take appropriate action against a licensee-employer, such as a civil penalty, license l suspension or license revocation.

Thus NRC has authority to act even before the Department of Labor provides some compensation. In this case, the NRC clearly has a duty to act since the Department of Labor has acted and has not provided any remedy to Mrs. English. I w--_ _ _ - - - _ - - _ _ _ - - - 1

-la-CONCLUSION The central and indisputable fact which underlies this Petition is that over three years ago Mrs. English was discriminated against and eventually fired by GE for reporting safety concerns to the f

NRC and GE has never been fined for its conduct and Mrs. English has never been compensated for the injuries inflicted upon her by GE. The unavoidable consequence of this situation is to leave the impression with GE and other licensees that such conduct is tacitly acceptable and to leave the impression with the nuclear industry workforce that reporting safety concerns to the NRC will f l

result in discrimination and retaliation which will never be redressed. '

It is unacceptable for these conditions to continue. Prompt action-is required in the form of adoption of the enforcement proposals in this Petition.

Respectfully submitted, M

(Anthony Z ./ho 'sm(n/

/ AL Suite 600/ [

1401 New'Yo k Ave., NW Washington, D.C. 20005 (202) 628-3500 1

,.f

( ,- ,. ,, - ,, -

i . 9 ..sf ' / / n ,ba.-

Mozart G. Ratner 5225 Wisconsin Avenue, NW Suite 600 Washington, D.C. 20015 Counsel for Petitioner Dated: '

-f . Q 1997 i

E____________________---______----------_------_------_------------------------------------------- - - - - - - - - - - - - - - - - - - - - - - - - - -- - -- ------------

VERA M. ENGLISH Costs and Damages Incurred As a Result of Discriminatory Discharge

  • t Past and future pay, including benefits S 328,645.00 Mrs. English's out of pocket costs and expenses 24,026.62 Psychological Service Fees (only through December 10, 1985, and not including additional amounts incurred since then, to be supplemented later) 2,955.00

$355,626.62 1

l ATTACHMENT A i 1

1

l LAW OFFICES j MOZART G. RATNER, P c. i 4400 J E NIF ER STR E ET, N W SulTE 350 MOZART G. RATNER WAS HINGTON, D. C. 2 0015 AREA CODE 202 362 4060 April 8, 1987 I

Mr. James M. Taylor Director of Inspection and Enforcement United States Nuclear Regulatory Commission Washington, D.C. 20555

Dear Mr. Taylor:

We discovered an omission in Attachment A to the Petition for Enforcement Action filed with you on April 6, 1987. Would you please replace Attachment A with the enclosed.

Thank you for your assistance.

Sincerely, -

/ h --

y Anthony).itosman Encl.

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yk

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s) l 0 -

2(f L

VERA M. ENGLISH Costs and Jamages Incurred As a Result of Discriminatory Discharge Pain and suffering, both physical and mental $2,000,000.00 Past and future pay, including benefits 328,645.00 Mrs. English's out of pocket costs and expenses 24,026.62 Psychological Service Fees (only through December 10, 1985, and not including additional amounts incurred since then, to be supplemented later) 2,955.00

$2,355,626.62 G

i.

Docket No. 70-1113 Mozart G. Ratner 5225 Wisconsin Ave, NW Suite 600 Washington, D.C. 20015

Dear Mr. Ratner:

This ' letter is to acknowledge receipt of your Petition dated April 6, 1987, as corrected April 8,1987, in which you request that the Director,

. Office of Inspection and Enforcement, take action with regard to the General

-Electric Company (GE) for its alleged illegal discrimination against Ms. Vera English. Your Petition requests that the NRC impose upon GE the maximum fine permitted by statute for its willful discrimination against Ms. English and that it impose a license condition upon OE requiring GE to fully compensate Ms. English for her losses incurred as a result of her alleged illegal -

discharge. You assert as grounds for your request that the reason given to justify deferral of action on- this issue in an earlier Director's Decision. (DD 86-11), i.e. , awaiting action by the _ Secretary of Labor, is no longer valid; that a Department of Labor Administrative Law Judge found that GE had discriminated against Ms. English but GE has not paid any fine for its conduct, nor has Ms. English been compensated for the wrong done her; and that the effectiveness of the NRC's program to protect and encourage workers

, to report safety violations is severely hampered by any further delay in i l

ta. king action. Your Petition has been referred to the staff for action  !

pursuant to 10 C.F.R. I 2.206 of the Commission's regulations. As provided l

'7 OI4 jff-0

by sections 2.206, action will be taken on your request within a reasonable time . I have enclosed for your information a copy of the notice that is being filed with the Office of the Federal Register for publication.

Sincerely, Hugh L. Thompson, Jr. , Director Office of Nuclear Material Safety and Safeguards

Enclosure:

As stated cc: General Electric Company

1 g )

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l Docket No. . 70-1113 Anthony Z. Roisman j 1401 New York Ave, NW Suite 600 Washington, D.C. 20005

Dear Mr. Roisman:

1 This letter is to acknowledge receipt of your Petition dated April 6, 1987, as corrected April 8, 1987, in which you request that the Director, Office of Inspection and Enforcement, take action with regard to the General Electric Company (GE) for its alleged illegal discrimination against Ms. Vera English. Your Petition requests that the NRC impose upon GE the maximum fine permitted by statute for its willful discrimination against Ms. English and that it impose a license condition upon GE requiring GE to fully compensate Ms. English for her losses incurred as a result of 'her alleged illegal discharge. You assert as grounds for your request that the reason given to justify deferral of action on this issue in an earlier Director's Decision' (DD 86-11) 1.e., awaiting action by the Secretary of Labor, is no longer valid; that a Department of Labor Administrative Law Judge found that GE had discriminated against Ms. English but GE has not paid any fine for its conduct, nor has Ms. English been compensated for the wrong done her; and that the effectiveness of the NRC's program to protect and encourage workers to report safety violations is severely hampered. by any further delay in taking action. Your Petition has been referred to the staff for action pursuant to 10 C.F.R. I 2.206 of the Commission's regulations. As provided by sections 2.206, action will be taken on your request within a reasonable

6 time. I has e enclosed for your information a copy'of the notice that is being fUed with the Office of the Federal Register for publication.

Sincerely, Hugh L. Thompson, Jr. , Director Office of Nuclear Material Safety and Safeguards Enclosure : As stated ec: General Electric Company i.

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[7590-01]

U.S. NUCLEAR REGULATORY COMMISSION Docket No. 70-1113 GENERAL ELECTRIC COMPANY (Wilmington, North Carolina, facility)

(License No. )

RECEIPT OF PETITION FOR DIRECTOR'S DECISION UNDER 10 C.F.E. I 2.206 Notice is hereby given that by Petition dated April 6, 1987, as corrected April 8,1987, Anthony Z. Roisman and Mozart G. Ratner requested that the Director, Office of inspection and Enforcement, take action with regard to the General Electric Company (GE) for its alleged illegal discrimination against Ms. Vera English. The Petition requests that the NRC impose upon GE the maximum fine permitted by statute for its willful discrimination against Ms. English, and that it impose a license condition upon GE requiring GE to fully compensate Ms. English for her lossee incurred as a result of her alleged illegal discharge. The Petition asserts as bases for this request that the reason given to justify deferral of action on this issue in an earlier Director's Decision (DD 86-11), i.e. , awaiting action by the Secretary of Labor, is no longer valid; that a Department of Labor Administrative Law Judge found that GE has not paid any fine for its conduct, nor has Ms.

English been compensated for the wrong done her; and that the effectiveness of the NRC's program to protect and encourage workers to report safety i

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violations is severely hampered by any further delay in taking action. The request is being treated pursuant to 10 C.F.R. I 2.206 of the Commission's regulations. As provided by section 2.206, appropriate action will be taken on this request within a reasonable time.

A copy of the Petition is available for inspection in the Commission's Public Document Room, 1717 H Street, N.W. , Washington, D.C., 20555.

Dated at Bethesda, Maryland, this day of , 1987.

FOR THE NUCLEAR REGULATORY COMMISSION Hugh L.' Thompson, Jr. , Director Office of Nuclear Material Safety and Safeguards

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'u'- I L' GENGRAL., ELECTRIC. -

NUCLEAR FUEL & COMPONENTS MANUFACTURING O[ ~

GENERAL ELECTRIC COMPANY

  • P.O. BOX 780
  • WILMINGTON. NORTH CAROUNA 28402 2*2d 5'jd 2. 3Fe June 10, 1987 4

James Lieberman, Esquire Director Office of Enforcement Maryland National Bank Building 7735 Old Georgetown Road Room 8203 Bethesda, Maryland 20555

Dear Mr. Lieberman:

I am enclosing herewith General Electric Company's - Response to Vera English's " Petition for Enforcement Action" dated April 6, 1987.

Copies of GE's Response have been provided to the persons noted on the attached service list.

Sincerely, GENERAL ELECTRI CO ANY Aa& 51- auyul ~

Charles M. Vaugh n, Manager Regulatory Comp iance

/sbm Enclosure

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SERVICE LIST i i

Hugh L. Thompson, Jr. ,

l Director Office of Nuclear Material Safety and Safeguards l U.S. Nuclear Regulatory Commission Mail Stop SS-958 Washington, D.C. 20555 J. Nelson Grace Regional-Administrator Region II 0.S. Nuclear Regulatory Commission 101 Marietta Street Suite 3100 Atlanta, GA 30303 Richard J. Goddard

. Regional Counsel Region II U.S. Nuclear Regulatory Commission 101 Marietta Street Suite 3100 Atlanta, GA 30303 Mozart G. Ratner Suite 600 5225 Wisconsin Ave., N.W.

Washington, D.C. 20015 Anthony Z. Reisman Suite 600 1401 New York Ave., N.W.

Washington, D.C. 20005 l

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4 RESPONSE OF GENERAL ELECTRIC COMPANY l TO VERA ENGLISH'S SECTION 2.206 PETITION FOR ENFORCEMENT ACTION INTRODUCTION On April 6, 1987, Petitioner, Vera M. English,' renewed her earlier request under 10 CFR S 2.206 that the Nuclear Regulatory Commission ("NRC" or " Con: mission") initiate action against General Electric Company ("GE) for allegedly discharging her in violation of Section 210 of the. Energy Reorganization Act of 1974, as amended (" ERA"), 42 U.S.C. S 5851 (1982). Petitioner urges the NRC to impose penalties against GE based on the non-binding, non-final decision of a Department of Labor (" DOL")

Administrative Law Judge ("ALJ") which recommended that the Secretary of Labor find that GE's removal and layoff of Petitioner violated Section 210 of the ERA.

At the outset GE denies that it discriminated in any way in its treatment of Petitioner. In addition, as will be shown i

below, the recommendations of the ALJ were not adopted by the Secretary of Labor and have no legal significance. Moreover, the record developed before the Department of Labor conclusively establishes that the Petitioner, by her own adm'esion, deliber-ately and willfully violated a safety requirement imposed under the Atomic Energy Act, thus precluding any action on her Petition as a matter of law. Accordingly, her Petition should be summarily denied.

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Alternatively, if the NRC decides not to deny Petitioner's request at this time, GE respectfully submits that consideration of Petitioner's pending 2.206 Petition should be deferred until the related DOL proceedings are completed. In this regard, it is GE's understanding that for policy reasons and in accordance with the terms of the DOL-NRC Memorandum of Understanding, the NRC normally defers acting on alleged 210 violations pending the final outcome of related Department of Labor administrative proceedings including any appellate review.

This is clearly a case for such deferral unless the Petition is immediately dismissed as a matter of law.

Finally, GE submits that the NRC should reject Petitioner's suggested relief out of hand. According to Petitioner, a civil penalty 'n excess of $40,000,000 should be assessed against GE based primarily on Petitioner's claim that GE is guilty of a " continuing violation" of Section 210. Not only is Petitioner's claim contrary to law, but it is also directly i

contrary to the final decision of the Under Secretary of Labor that GE's treatment of Petitioner, whether discriminatory or not, represented a single act which was not continuing in nature.

Petitioner also requests that the NRC, under the guise of a license condition, usurp the role of the Department of Labor and

. provide Petitioner compensation in an amount in excess of q J

S2,000,000. As will be shown below, Petitioner's request is i beyond the authority of the NRC and should be rejected.

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BACKGROUND Petitioner's request that the NRC initiate enforcement action against GE centers around her claim that she.was unlawfully-removed from her job in the Chemet Laboratory at GE's Wilmington, l North Carolina fuel manufacturing facility and subsequently laid l off because she complained to the NRC about GE's alleged failure to comply with safety standards. Never mentioned by Petitioner, however, is'the fact th'at she has repeatedly admitted that she  ;

1 deliberately and willfully violated GE safety standards, thus endangering not only her own health and safety but the health and safety of other GE employees. Set forth below is a brief state-i ment of the circumstances surrounding Petitioner's removal from the Chemet Laboratory.

A. Factual Backaround By Petitioner English's own account, the following events occurred during the period March 9-11, 1984. On Friday night, March 9,1984, while employed as a techniciar. by GE, English found radioactive contamination on a table in the labora-tory. Although English knew that no supervisor would be present until Sunday night (Tr. 1497), 1/ and although she also knew that leaving the contamination would result in violation of safety 1/ "Tr. " cites to transcript pages before the Labor Department's ALJ. "Exh. " cites to exhibits submitted at that ALJ hearing. "ALJ Decision " cites to pages of the ALJ Decision and " SOL Decision " cites to pages of the Final Decision and Order of the Under Secretary of Labor.

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i requirements (ALJ Decision, p. 11; Exh. C-47', 2/ Snglish purposely and deliberately left the radioactive contamination in place allegedly in an attempt to prove that GE management and her co-workers were lax about safety matters (ALJ Decision, pp. 4, 5, 11; Exh. E-12 (English Dep.) 43-49; Tr. 1497, 2397, 2450-2452).

As a consequence, English, by her own admission, engaged in a violation of known laboratory procedures endangering her own health and safety as well as the health and safety of her fellow employees (Exh. E-12 (English Dep.) 48; Tr. 2397), and she did so deliberately. 3/ On Sunday night, March 11, she eninted out to her supervisor the radioactive contamination she had left in place since Friday night (Tr. 1497-1500, 2280; Exh. E-12 (English Dep.)

69-72) and advised him that she did not intend to clean it up (Tr.

1499, 2280-2281; Exh. E-12 (English Dep.) 72).

/ During an inspection conducted between November 13 and 16 and December 3 and 7, 1984, NRC cited GE for a similar violation in which uranium contamination had evidently not been cleaned up immediately. NRC Inspection Report 84-15. According to the NRC Report, "[t]he fact that contamination within the room was visible, indicated that the licensee had failed to follow approved procedures" which require, among other things, that (1) spills be cleaned up immediately, and (2) equipment be wiped clean of visible contamination. See letter from J. Phillip Stohr to Eugene Lees (February 8, 1985).

3/ There is no question in this case that English deliberately left the radioactive contamination without any attempt to clean it up as required by safety regulations. She plainly admitted it: "I deliberately left it there because this was the only way I could get management to see what was going on." Exh. E-12 (English Dep.) 46.

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U i Company officials were justifiably upset with English's admitted deliberate violation of safety' standards. (Exh. C-18, p.

2;1Tr. 1683, 1821-1823). Accordingly, they met with her on March 16, 1984 to discuss the matter. During that meeting English again admitted that she deliberately left a contaminated spill in the

. laboratory (Tr.:831(b)-834, 1937, 1978). As a result, she was advised that she was being removed from the Chemet Lab and would no longer be permitted to work in a controlled area of the facil-ity (Tr. 1926-1927). She was also given a Disciplinary Action Notice (Exh. C-5) which included the following:

It has been brought to my attention that your recent conduct has been in serious viola-tion of WMD radiological health and industrial safety rules and conduct standards. Your actions have included: (1) the unauthorized removal of the personal survey instrument from the entrance to the laboratory, (2) the deli-berate contamination of a table, (3) failure to clean-up the contamination knowing it existed, (4) the continued distraction of other labora-tory employees and (5) disruption of normal laboratory activities . . . .

. . . The deliberate contamination and failure to clean up promptly is detrimental to the safety of you and your fellow workers in the laboratory. In addition, this~ sort of conduct is a serious violation of plant rules and standards; disciplinary action is in order.

Violation of work and conduct standards such as that which you have committed as described herein is considered to be a serious offense of a magnitude that a mere warning is not sufficient. Willful, deliberate disregard of specific standards set in the interest of l both employee and employer and of which the f employer has the right to expect compliance from the employee will not be tolerated.

Disciplinary action for this offense will be five days of disciplinary time off without pay and a period of 12 months probation, during i

q which time any additional violation serious j

~1 enough to warrant disciplinary action will 1 result in discharge . ... .!

In light of_these recent incidents, you are being removed from your current assignment.

Your unprecedented disregard of safety rules

. . demands that you will no longer be allowed to work in a controlled area. Effective 03/16/84, you will be temporarily assigned to other work.

During this temporary assignment, you will continue to be paid at your current hourly rate j (H-22) and will normally work on Day Shift, i Monday'through Friday. The duration of this temporary assignment is indefinite.

Pursuant to established GE procedurec, English appealed  !

that action on April 13, 1984 (Exh. C-15,_C-21). English's appeal was heard by the General Manager of the Wilmington facility on May 1, 1984. In a written, final decision rendered on May 15, 1984 _

(Exh. C-20), the General Manager declined to consider three of the alleged actions on the part of English which had led to her removal from the Chemet Lab and all controlled areas. 4/ Instead, 4/ Allegations 4 and 5, dealing with her distraction of other lab employees and her disruption of lab activities, were not deemed pertinent to safety, which was management's primary concern (Tr. 693-694; Exh. C-20). Allegation 1 was dropped because English established that she may have been granted permission to use the survey instrument (ALJ Decision, p. 6; I

Tr. 6799; Exh. C-20).

In addition, the General Manager declined to base his deci- 4 sion on English's alleged deliberate contamination of the lab table. English's original statement to her supertrisor that she had " smeared" contamination on the table gave GE offi-cials reason to believe that radioactive material had been deliberately deposited as well as deliberately left (Tr.

1011-1012, 1022-1023, 1076, 1546). However, English later denied this, so the General Manager based his decision only on English's admitted violation (Exh. C-20).

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he based his decision on the proven and admitted safety violation

-- English's deliberate failure to clean up spilled radioactive {

contamination. The written decision on appeal stated (Exh. C-20):

As for Items (2) and (3), we have deter-mined that, while the contamination of your lab table may or may not have been deliberate, you knowingly and intentionally failed to clean up this spill of radioactive material.

Your knowledge of the contamination coupled with your decision not to clean it up consti-tutes a very serious and significant violation ,

i of the Wilmington plant's health and safety standards and procedures.

Based on the foregoing, you will not be allowed to return to work in the control]ed access areas of our plant site, or to any position that would require your involvement with, or access to, nuclear material. Your probation period will be reduced from one year to six months.

Your current placement in a temporary assignment will be continued for a period up to ninety (90) days from May 1, 1984 at the same pay rate as the job that you left in the laboratory . . . . During this ninety (90) day period, Employee & Community Relations will review open positions for which you meet minimum requirements and offer you placement according to established practices and proced-ures. Hopefully, by July 30, 1984, you will have found permanent, suitable work through the use of the job posting system and assis-tance from Employee & Community Relations

. . . . If you have not secured permanent placement by July 30, 1984, you will be considered as involuntarily placed on lack of suitable work as defined by our personnel practices.

English did not find another position, and worked her last day on July 27, 1984. She was laid off from the active payroll on July 30, 1984. She was subsequently placed on leave of absence status with full employee benefits, including GE life and l

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j . n medical insurance coverage, and is eligible at any time to claim a full GE pension, substantial continuing insurance and other bene-fits.

B. Procedural Backaround, On August 24, 1984, Petitioner filed a complaint with the Labor Department under Section 210(a) of the ERA and its implementing regulations alleging that she was unlawfully removed from her job in the Chemet Laboratory facility and subsequently laid off because she complained to the NRC about GE's failure to comply with safety standards. Formal hearings were held on Petitioner 's claim before Administ.rative Law Judge Robert J.

Brissenden. 5/ In a decision and order dated August 1, 1985, the ALJ recommended that the Secreta 7y of Labor find that Petitioner had been the subject of unlawful removal and layoff by GE and that the Secretary order that GE () ; reinstate Petitioner to her former position; (2) pay Petitione'. compensatory damages of $70,000 for mental suffering and for past and future medical expenses; and (3) pay Petitioner's lawyers $73,007.50 in attorneys' fees and expenses. 6/

5/ During the course of the hearing before the ALJ Petitioner's counsel inappropriately sought to subpoena Labor Department investigators through the Federal District Court in North Carolina and also commenced actions and appeals in the Federal District Court and Court of Appeals for the District of Columbia to mandamus the DOL to grant Petitioner a default 3 judgment. The actions and appeals were, of course, promptly dismissed by the courts. Heg, e.g., ALJ Decision, p. 15.

6/ English and her counsel had sought significantly greater amounts than those recommended by the ALJ. Before the  !

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, i The Under Secretary of Labor, acting for the Office of the Secretary of Labor', did not adopt any of the ALJ's recommenda-tions. Instead he found that GE's reassignment of English, if a violation at all, was not a continuing violation and he therefore dismissed English's Section 210 complaint on the ground that it was untimely. The Under Secretary also seemed to question whether English's reassignment violated Section 210 (see note 9, infra),

but he did not reach a substantive determination on that question.

Petitioner has appealed the Labor Department's final decision to the United States Court of Appeals for the Fourth Circuit.

On December 13, 1984, counsel for Petitioner submitted to the NRC a " Motion to Institute Proceeding Pursuant to 10 C.F.R.

5 2.202 for Imposition of Civil Penalties and to Vacate and Reverse Inspection Reports and to Schedule Hearings Thereon."

This motion requested that the Commission review and withdraw five NRC inspection reports which allegedly failed to identify devia-tions from procedures and violations of NRC regulations in connec-tion with GE's operation of the Wilmington facility. Petitioner also requested that new inspection reports be issued correctly documenting the alleged violations and deviations, that notices of violation be issued, and that the NRC commence appropriate (footnote continued from previous page)

Secretary of Labor, English claimed that she was entitled to

$295,909 in back pay and front pay, $2,630 in psychological medical expenses, $2,000,000 in damages to punish GE and compensate English for her alleged emotional pain and suffering, $82,254.81 in out-of-pocket expenses, and over

$1,000,000 in attorneys' fees. Egg English's Briefs and Attachments to the Secretary of Labor in Case No. 85-ERA-2.

enforcement action against GE, including the imposition of civil penalties. Petitioner further requested that the NRC institute )

proceedings pursuant to 10 C.F.R. S 2.202 and schedule hearings on the matters raised in her motion.

Petitioner supplemented her request for enforcement action by letters dated February 28, 1985, March 12, 1985, April 11, 1985, and June 20, 1985, which raised additional allega-tions concerning the adequacy of NRC's inspection activities, the conduct of NRC inspectors, the willfulness of GE's alleged viola-tions at the Wilmington facility and GE's alleged discrimination against Petitioner and others in violation of Section 210 of the ERA. A variety of relief was requested, including a request that the NRC investigate, or cooperate with the Labor Department in its investigation of, the alleged violations of Section 210 and that the NRC take independent action against GE.

On August 29, 1986, the Commission's Director of the Office of Inspection and Enforcement (" Director") issued a

" Partial Director's Decision Pursuant to 10 C.F.R. S 2.206" denying that part of Petitioner's request concerning the accuracy of NRC inspection reports and GE's alleged violations of NRC regulations at the Wilmington facility. Most of the allegations made by Petitioner were found to be without any factual substance 4

whatsoever and those that could be substantiated were found not to present any health or safety concerns. The Director also stated l

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that the discrimination allegations raised by Petitioner were i i

being deferred pending further determinations by the Secretary of i i

Labor.

Thereafter, on September 23, 1986, Petitioner submitted a " Petition for Clarification and Reconsideration of Partial Directot's Decision." By letter dated September 29, 1986, the

. Secretary of the Commission advised counsel for Petitioner that the' Commission had declined to review the Director's Decision and that the decision had become " final agency action" on September 23, 1986. (Letter from Samuel J. Chilk to Mozart G. Ratner, September 29, 1986).

On December. 22, 1986, Petitioner filed a petition for review of the Director's Decision in the U.S. Court of Appeals.for the District of Columbia Circuit. Enolish v. U.S. Nuclear Reculatory Comm'n, No. 86-1714 (D.C. Cir. filed December 22, 1986). In addition, Petitioner and her counsel filed five other actions in the D.C. Circuit, most of which ihvolved the review of NRC actions in response to numerous requests for documents

allegedly relied upon and considered in preparation of the Director's Decision. Egg Vera M. Enolish and Mozart G. Ratner v.

U.S. Nuclear Reculatory Comm'n, No. 87-1019 (D.C. Cir. filed Jan.

14, 1987); Efra M. Enolish and Mozart G. Ratner v. U.S. Nuclear Reculatory Comm'n, No. 86-1635 (D.C. Cir filed Nov. 24, 1986); in re Vera M. Enolish, No. 86-1485 (D.C. Cir. filed Aug. 28, 1986);

Mozart G. Ratner and Arthur M. Schiller v. U.S. Nuclear Reculatory Comm'n and Victor Stello, Jr., No. 86-1307 (D.C. Cir. filed May

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28, 1986); Mozart G. Ratner v. U.S. Nuclear Reaulatory Comm'n and Herzel H.E. Plaine, No. 86-1013 (D.C. Cir. filed Jan. 7, 1986). i l

All six of the proceedings, including the appeal of the Director's Decision denying the request for enforcement action, were dismissed on March 31, 1987.

l On March 13, 1987, Petitioner' filed an action for wrongful termination in the U.S. District Cou'rt of for the Eastern District of North Carolina. The complaint requested that the Court (1) award Petitioner compensatory damages of $328,645 for lost wages and fringe benefits; (2) award Petitioner compensatory damages of at least $1,000,000 for medical expenses and pain and suffering; (3) award Petitioner punitive damages of approximately

$2.3 billion (5% of GE's net worth); and (4) award Petitioner out-of pocket costs and expenses incurred in pursuing her various actions against GE. Enclish v. General Elec. Co., No. 87 Civ.-7 (E.D.N.C. filed March 13, 1987). GE's motion to dismiss is currently pending before the Court.

Finally, on April 6, 1987, Petitioner filed the instant Petition requesting the imposition of penalties and the award of compensation in an amount in excess of $42,000,000.

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l l i &RQUMENT I. THE INSTANT PETITION SHOULD BE DISMISSED BY THE NRC Petitioner's request for enforcement action is based solely upon the recommended decision of the Labor Department's Administrative Law Judge. Petitioner apparently believes that the ALJ decision represents a conclusive and final determination that GE violated Section 210 which is somehow binding on NRC and that all that remains to be done is for NRC to impose a civil penalty against GE. 7/

That is not the case. Rather, there are at least three reasons why the instant Petition should be promptly dismissed.

First, as shown in Section A below, the ALJ's non-binding recom-mended decision, which was not adopted by the Under Secretary of Labor, has no legal significance and cannot form the basis for any decision to assess a penalty against GE. Second, as shown in Section B(1) below, the ALJ's decision is fatally flawed by a number of factual and legal findings and conclusions that are l simply wrong. Finally, as shown in Section B(2) below, the undisputed evidence before the Labor Department requires the conclusion, as a matter of law, that GE's removal of English was an act sanctioned by Congress in the interests of nuclear safety, that GE therefore did not violate Section 210 and, accordingly, that the instant Petition must be dismissed.

7/ Indeed, in her latest Section 2.206 Petition, Ms. English does not even address $32 issue of whether Section 210 has been violated but instead discusses at length her view of the appropriate penalty.

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L A. The ALJ Decision Is Of No Lecal Significance Petitioner's basic position is that the issue of whether-l.

GE violated Section 210 of the Energy Reorganization Act'in removing Petitioner from the Chemet Lab has already been decided by the Department of Labor and thus the only issue before the NRC is-the amount of'the civil penalty that should be imposed on GE.

Contrary to Petitioner's position, the decision of the ALJ is merely a non-binding recommendation which has never been adopted by the Secretary of Labor. Rather, the Under Secretary of Labor-rejected the ALJ's recommendation and denied Petitioner's complaint under Section 210. l Under the Administrative Procedure Act, 5 U.S.C. S 551 gt agg., the initial decision of an administrative law' judge has no binding effect on either the agency or on the parties to the proceeding. Egg 5 U.S.C. S 557(b) (1972). 8/ Rather, the agency is always free to accept or reject an ALJ's findings and con-clusions of law. Egg Starrett v. Soecial Counsel, 792 F.2d 1246, 1252 (4th'Cir 1986); Alcoa Steamshio Co. v. Federal Maritime i

.Comm'n, 321 F.2d 756, 758 n. 5 (D.C. Cir. 1963). Unless the ALJ's 1 i

findings are adopted by the agency in its final decision they can have no collateral estoppel or res judicata effect. Egg Anthan v.

Professional Air Traffic Controllers, 672 F.2d 706 (8th Cir. 1982) 3 1

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8/ "On appeal from or review of the initial decision, the agency has all the powers which it would have in making the initial decision except as it may limit the issues on notice or by rule." 5 U.S.C. S 557(b) (1982).

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l (collateral estoppel or res judicata apply only to final agency .

I decisions); International Harvester Co. v. OSHRC, 628 F.2d 982 l (7th Cir. 1980).

This same principle applies in proceedings brought under i Section 210 of the Energy Reorganization Act, 42 U.S.C. S 5851 3 l

(1982). Under that Act, only the Secretary of Labor has the j authority to issue an order finding a violation of Section 210 on l

a complaint lodged with the Department of Labor under the ERA. By i regulation, an administrative law judge is assigned the responsi-i bility of presiding over a hearing to develop a record upon which l the Secretary of Labor may rely and to provide the Secretary with a " recommended" decision. 29 C.F.R. S 24.6 (1986). It is the e sole responsibility of the Secretary, however, to " issue a final order." Id. S 24.6(b) (1986).

In this case, there has been no " final order" of the Secretary of Labor that GE violated Section 210. As noted earlier, the Under Secretary dismissed Petitioner's complaint as untimely and did not adopt the ALJ's factual findings or conclu-sions of law. 9/ Thus, unless adopted by DOL as its final deci- ,

sion, the recommended decision of the administrative law judge is not binding on the parties and has no legal significance to DOL, to the parties to the proceeding before DOL, or to any other l agency.

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-9/ The Under Secretary did signal that he questioned whether GE had violated Section 210 when, in dismissing Petitioner's complaint, he stated that "[t)he only violation, 11 any, i occurred when (Petitioner) was put on temporary assignment on ( '

May 15, 1984 . . . . SOL Decision p. 8.

B. The Labor Department's Evidentiary Record i Recuires Dismissal of the Petition '

As pointed out in the Factual Background, GE rem'oved Petitioner English from the Chemet Lab because she made a cons-

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clous, deliberate decision to commit a nuclear safety violation by leaving a radioactive spill in the laboratory. Although the i i '

ALJ recognized that English deliberately violated important safety standards (ALJ Decision, pp. 10, 11, 13), he cited two alternative and equally insupportable rationales for his conclu-sion that her removal nevertheless violated Section 210. First, the ALJ found that GE's stated reason for removing English was but a pretext, and that the real reason GE removed her was because she had complained to the NRC about alleged safety violations on February 13, 1984 (ALJ Decision, pp. 1-2, 3, 6, 7, 10, 13). Second, the ALJ apparently concluded that even if GE did remove English because of her deliberate violation of safety rules, the Company nevertheless violated Section 210 because her deliberate action was simply her " unorthodox" means of

" reporting" safety violations and such " reporting" was protected by Section 210 (ALJ Decision, p. 11).

As shown below, neither of the ALJ's alternative rationales withstands analysis. More importantly, however, the undisputed record establishes that GE's actions in removing a deliberate safety violator were consistent with Congress' notion of the way in which a nuclear employer should act, that those actions cannot violate Section 210 and, accordingly, that the NRC should, as a matter of law, dismiss the instant Petition.

1. The ALJ's " Pretext" Conclusion Is Based Upon Critical Srrors of Fact And A Faulty Lecal Conclusion The ALJ relied upon two findings for his conclusion that GE's stated reason for removing English from the Chemet Lab was pretextual and that the "real" reason was English's safety complaints to NRC. First, he found that-the investigation of English's NRC complaints caused a cessation of work in the Chemet Lab and was an embarrassment to GE which culminated in English's removal from the lab. ALJ Decision, pp. 6-7. Second, he concluded that English's deliberate safety violations could not have prompted GE's actions because there was no evidence before him that GE had ever removed other lab employees who neglected to follow safety rules. ALJ Decision, pp. 6, 9-10.

Initially, the ALJ was simply wrong on the facts when he I found that English's removal from the Chemet Lab was prompted by GE's annoyance and embarrassment at the supposed wholesale disruption in the Chemet Lab caused by the investigation of English's February 1984 NRC complaints. 1S/ In fact, GE did not know that English had submitted those safety complaints to NRC 10/ The ALJ also noted that English had made similar safety complaints to NRC in 1982. See ALJ Decision, p. 3. However, 4 GE did not know that English had reported any alleged safety i violations to the NRC in 1982 until at least the fall of 1984 l l,

-- well af ter Er.glish was removed f rom the Chemet Lab. Tr.

2049-2052. Indeed, the NRC itself is well aware that it  ;

never advised GE that its earlier investigations of GE's facility were based upon a 1982 English complaint.

Furthermore, because NRC's inspections occur regularly, there was no reason for GE to know or even suspect that any inves-

! tigation was based upon any employee's complaint, let alone English's.

l until GE officials were advised sometime after the week of March 26, 1984, that NRC was aware of the complaints English had submitted to GE and that GE, in turn, had previously disclosed to NRC. 11/ But that was a number of weeks after English had been removed from the Chemet Lab on March 16, 1984 and thus could not possibly have prompted her removal. Moreover, the NRC's investi-gation of English's safety complaints did not cause a disruption or cessation of work in the Chemet Lab, as the ALJ found.

Indeed, that investigation did not even commence until March 26, 1984, or 10 days after English had been removed from the Chemet Lab. In sum, GE could not possibly have been motivated to remove English from the Chemet Lab because it was upset with the work disruption caused by the NRC's investigation of her safety complaints, because GE took those actions at a time when the Company did not know she had complained to the NRC and there had been no NRC investigation at all.

The ALJ made an even more critical error, however, when he concluded that English's deliberate safety violations were not the "real" reason for GE's actions because there was no evidence in the record showing that other GE employees who had failed to 11/ English had submitted a list of alleged safety problems to GE management in late February 1984. After that list came to the attention of the Manager of Regulatory Compliance in i March 1984, he notified NRC that GE had received allegations of safety violations from an employee. When the NRC inspected the Wilmington facility the following Monday, March 26, GE officials gave NRC inspectors a copy of English's safety allegations. Sometime after March 26, 1984, GE learned that English had made safety complaints to NRC.

Egg Tr. 2037-2038, Exh. ALJ-6.

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follow safety rules were similarly removed from their jobs (ALJ Decision, pp. 6, 9-10). Specifically, the ALJ indicated that GE's stated reasons for removing English from controlled areas could be given.no credence because the Company had imposed less stringent punishment on employees who unthinkingly failed to

" frisk" before leaving the Chemet Lab and on other employees who apparently failed to clean up visible contamination (ALJ Decision, pp. 9-10).12/ Thus, according to the ALJ, this dispar-ate, more severe " punishment" meted out to English must have been motivated by GE's concern about English's complaints to the NRC and the disruption caused by NRC's investigation of those complaints. Id.

There are at least two reasons why the ALJ was wrong in concluding that GE's stated reasons for removing English were pretextual because English was disparately punished. First, the ALJ erroneously viewed Enq;ish's removal from nuclear-sensitive areas as a disciplinary measure. It was not. English's disci-oline for leaving the contaminated spil3 was six months' proba-tion and a five-day suspension, the latter of which was the same discipline imposed on other employees who failed to " frisk" with personal survey devices as the ALJ recognized. Egg ALJ Decision,

. 12/ It was especially inappropriate for the ALJ to find that GE's i safety concerns regarding English's violation were belied by the Company's response to employees' failure to frisk before leaving the Chemet Lab. During the hearing before the ALJ, GE tried to adduce testimony regarding steps the Company had taken to deal with this problem, but the ALJ ruled such evidence irrelevant and refused to permit the testimony. Egg Tr. 2094-2098

p. 10 n.6. In English's case, the suspension was forgiven. Her removal from nuclear-sensitive areas, without loss of pay or l

benefits, was deemed a necessary safety precaution prompted by management's fear that English might go to even more dangerous lengths in the future to support her safety complaints. Egg, e.a., Tr. 1683, where English's supervisor testified that his primary concern was that an employee who would deliberately leave contamination for an extended period to " test" GE's safety procedures would likely take even more drastic measures in the future if those did not work; Tr. 1798-1799, where the manager of the Chemet Lab testified that English's action in deliberately leaving radioactive contamination in order to discredit GE's safety procedures caused him to question where English would stop and whether "the next step [might be] taking uranium out of the operation deliberately to discredit the ongoing operation." 13/

i 13/ Management had good reason to question whether English could always be counted on to think and act rationally. For exam-ple, the record reflects that shortly before March 1984, I several Chemet Lab employees had complained to GE management I because English was c'.:nstantly accusing them of trying to )

turn others in the Chemet Lab against her and of sabotaging i her equipment and work projects in order to lower her produc- )

tion and make it appear that she was making mistakes (Exh.

C-19; Tr. 927-928). In additien, English had previously told GE personnel that she thought Prv supervisor was responsible

, for a 1980 burglary at her house (Tr. 627, 222). She also had asserted that if anyone at GE knew when she made appoint-ments, they would try to intercept her (Tr. 1544). Finally, she had stated that she believed that Company offices were bugged and that her conversations in management offices were being recorded (Tr. 220.0, 2343). No evidence was adduced to substantiate any of these " beliefs," of course, because there ]

was none.

l

Second, even if English's removal from the Chemet Lab had been strictly a disciplinary measure, there is no reason in law, fact or logic to equate English's actions with those of other employees who were not so " disciplined." GE did not take its action removing English from the Chemet Lab simply because she (like other employees) may have carelessly or even negli-gently committed a safety violation. GE took its action because English made an admitted, conscious, intentional and deliberate decision to allow a safety hazard to exist allegedly in order to prove that GE was lax on safety matters. There is a world of difference between English's deliberate actions and those of an employee who absent-mindedly runhes from the lab without frisking or who is guilty of untidy housekeeping. The latter actions may assuredly be worthy of punishment in order to impress upon the violators the need to take more care in following safety rules.

However, similar punishment of deliberate, conscious violators such as English is not likely to change their behavior since such violators are acting with full knowledge that they are creating safety hazards but feel they are justified in doing so in a misguided attempt to establish that their employers permit such safety hazards to exist.

In short, a vigilante employee who consciously creates safety hazards to prove that her employer is not sufficiently safety conscious, even if motivated by the best of intentions, evidences an attitude which poses a far more significant threat to nuclear safety, and is manifestly more culpable, than an

unknowing, negligent violator. Liverett v. Tennessee Vallev Authority, 82-ERA-1, slip op. of ALJ at p. 9 (Secretary's Decision, July 21, 1982) (no disparate treatment is established when a S 210 complainant is fired because of "knowina" safety violations while other employees who "unknowinalv" committed similar violations were not discharged (emphasis in original)).

Accordingly, the ALJ simply erred when he concluded that the Company's reasons for removing English were a pretext because other safety violators had not been similarly removed.

More importantly, however, from a nuclear safety perspective, the only acceptable way of dealing with such vigil-antism is to remove the individual, as GE did here, from areas where such reckless acts may be repeated or even more dangerous ones committed. Indeed, that conclusion is confirmed by Congress' judgment, expressed in Section 210(g), that employers must be free to deal with such deliberate violators without fear of incurring liability under Section 210. As shown below, the proper construction of Section 210(g) requires prompt dismissal of the instant Petition, and demonstrates that the ALJ misinter-preted and misapplied that provision when he concluded that English's deliberate violation of safety requirements somehow constituted a protected means of " reporting" safety violations.

l l

i

{

u l

23 -

l I

2. Section 210(g) Requires that English's Petition be 1 '

Dismissed by the NRC and Compels the Conclusion that English's Deliberate and Purposeful Violation of Nuclear .

Safety Rules Was Not a Permissible or " Protected" Means of  !

Reportino Safety Violations As pointed out in the preceding section, logic and common sense dictate that a distinction must be drawn between careless or negligent violators of safety rules and vigilante employees who consciously and deliberately create safety hazards to support their own contention that their employers are lax in applying safety rules. However, the NRC need not rely only on common sense, for Congress itself expressly dictated this dis-tinction when it enacted Section 210(g) of the Energy Reorganization Act. That statutory provision explicitly singles out deliberate violators by removing all Section 210 projections for employees who deliberately violate safety rules that are required by federal nuclear statutes:

Subsection (a) of this section shall not apply with respect to any employee who, acting without direction from his or her employer (or the employer's agent), deliber-ately causes a violation of any requirement of this Chaoter or of the Atomic Enercy Act of 1954, as amended.... [ Emphasis added.)

42 U.S.C. S 5851(g) (1982). 14/

14/ See also the Department of Labor's implementing regulations, which provide:

This part shall have no application to any employee alleging activity prohibited by this part who, acting without direc- ,

tion from his or her employer (or the '

I employer's agent), deliberately causes a violation of any requirement of a Federal i l

statute listed in S 24.1, above.

(footnote continued) ,

Importantly, however, Section 210(g) has greater impact on the present Petition than merely confirming the foregoing distinction. In fact, it requires, as a matter of law, that the NRC dismiss the Petition because English, by her own admission, caused deliberate violations within the meaning of 210(g),

l because the language and policy behind that provision show that l GE responded properly, and because the ALJ's contorted construc-tion of 210(g) would turn the rules governing nuclear safety on their head.

Initially, English's actions plainly fall within Section 210(g) and, as a consequence, GE had the right, if not the obligation, to remove her from the lab without fear of being challenged with a violation of Section 210. Specifically, she purposely and intentionally left a radioactive spill in the laboratory during the week of March 5, 1984. That she did so deliberately in indisputable -- she freely admitted doing so, allegedly in a misguided attempt to prove that GE was violating (footnote continued from previous page) 29 C.F.R. S 24.9 (1986).

The NRC's regulations contain a similar provision:

This section has no application to an employee alleging discrimination prohib-ited by this section who, acting without direction from his or her employer (or the employer's agent), deliberately causes a violation of any requirement of the Energy Reorganization Act of 1974, as amended, or the Atomic Energy Act of 1954, as amended.

10 C.F.R. S 70.7(a)(3) (1987).

I _

the safety requirements of the law (ALJ Decision, p. 11). She thus established that she not only deliberately committed an act which violated the Atomic Energy Act, 15/ but also that she did so knowing she was violating the Act (ALJ Decision, p. 8).

In light of Petitioner's admitted and deliberate i

violation of a safety standard required by GE's NRC license, the NRC is presented with a clear legal issue: Whether an employee who, by a deliberate act, causes a violation of a license condi-tion which could endanger the health and safety of herself and her fellow workers may nonetheless claim the protection of 15/ The standards, regulations and requirements adopted by the NRC pursuant to its powers under the Atomic Energy Act are essential to the protection of the public health and safety in connection with the development and use of nuclear energy.

A crucial element of these regulations is that all NRC licen-sees are required to comply with the conditions of their licenses in order to ensure that each facility licensed by the NRC will be operated in accordance with the requirements of the Atomic Energy Act. Egg, e.o., 10 C.F.R. SS 70.31, 70.32(a), (b) (1987). License Condition 9 of GE's fuel manufacturing facility license requires that licensed special nuclear material be used in accordance with statements, representations and conditions of Part I of the NFMD license application. Part I, Section 2.2.1.1 of the license appli-cation requires that the Area Manager establish and approve written operating procedures incorporating radiation safety controls. These procedures, which are contained in the Chemet Laboratory Nuclear Safety Release Requirement 6.1.0, require, among other things, the immediate clean-up of )

I radioactive material spills. Approval of a radiation protection procedure was a necessary element in the NRC's decision to grant GE a license to operate the Wilmington facility. Egg 10 C.F.R. 55 70.22(a)(8), 70.23(a)(4) (1987).

Consequently, violation of the procedures amounts to a violation of a license condition and thus a violation of a

" requirement of the Act" within the meaning of Section 210(g) of the ERA. Cf. NRC v. Radiation Tec., Inc., 519 F. Supp.

1266, 1292 (D.N.J. 1981) (a license condition operates in the same manner as a regulation and should be so construed).

Indeed, as explained in note 2, suora, GE has previously been cited by NRC for a violation of the clean-up procedure.

l  ;

I Section 210 of the ERA when she is removed from positions which I

permit access to nuclear materials. GE submits that the clear answer is "No" and that English's present Petition must be denied as a matter of law.

1 Initially, it is clear that the ALJ missed the point of. I 210(g) when he reasoned that English's actions did not constitute a deliberate safety violation under 210(g) because she allegedly committed the violation in an effort to demonstrate her conten-i tions that GE used lax safety procedures. Indeed, the ALJ further distorted 210(g) by apparently viewing her violations as somehow constituting protected activity under Section 210(a).

However, if Section 210(g) means anything, it must mean that an employee who deliberately commits safety violations in order to support safety complaints is not protected by Section 210(a).

And it certainly means that employees are not privileged to

" report" alleged safety violations by purposefully ignoring safety hazards to " prove" that such violations occur.

These conclusions, as well as the conclusion that 210(g) requires dismissal of the instant Petition, are confirmed by the overall purpose of the statutory scheme embodied in the  !

Atomic Energy Act and the ERA. Both have the ultimate goal of protecting the health and safety of the general public and of l employees engaged in the nuclear industry. Egg, e.c., 42 U.S.C. ;

)

55 2012(d) and (e), 2201(b), 2232(a), 5846(a) (1982); General ,

Statement of Policy and Procedure for Enforcement Actions, 49 Fed. Reg. 8583 (March 8, 1984); Wood and Yearoin Construction l

1 l

C22, 79-ERA-3 (Secretary's Decision, November 8, 1979), affirming the ALJ's Recommended Decision (October 5, 1979). One of the ways this concern for safety is effectuated by the statutes is by i

encouraging the reporting of safety violations. For example, j employers are encouraged (under penalty of a fine) to promptly I

notify the NRC of any safety violations (42 U.S.C. S 5846), and 1 employees are encouraged (by protection frem retaliation by their i employer) to promptly report any safety violations to the NRC (42 U.S.C. S 5851).

But reporting of violations to the NRC is not the only safety objective of these statutes. Indeed, the major purpose of the ERA is safety, not' reporting, and the latter is but a means .

1 of achieving the overriding purpose of the Act which is the protection of the health and safety of the public and nuclear industry workers. 16/ Thus, employers and employees are both clearly expected to comply with safety requirements 17/ and, in i

16/ "[S]ection 5851 (210(a)) is primarily designed to serve the {

major purposes of the ERA . . . nuclear safety." Brown &

Root Inc. v. Donovan, 747 F.2d 1029, 1033 (5th Cir. 1984);

see also General Statement of Policy and Procedure for Enforcement Actions, 49 Fed. Reg. 8583 (March 8, 1984), where

" reporting of potential safety problems" is listed as but one example of the ways in which the NRC enforcement program is to be directed at promoting health and safety.

17/ See 42 U.S.C. 5 2282 (1982), which imposes a fine against persons who do not comply with NRC licensing requirements.

Egg also Wood and Yeargin Construction Co., 79-ERA-3, slip op. pp. 8-9 (Secretary's Decision, November 8, 1979),

affirming the ALJ's Recommended Decision (October 5, 1979):

(The Company) is engaged in an industry (the nuclear industry] which has great potential for catastrophe (sic] . . . . The security of (footnote continued)

{

this light, it was reasonable for Congress to withdraw from those who do not comply any employment projections that would otherwise exist under the ERA. Accordingly, Section 210(g) is a simple recognition of the fact that protection of employee and public safety is too important to be jeopardized by employees' deliber-ate safety violations -- and that includes deliberate violations by an ostensibly well-meaning employee who claims that her violations of important safety requirements are committed in order to " report" safety violations. 18/

In short, nothing would be more inimical to the goal of nuclear safety than a determination that Petitioner could legiti-mately, and with Section 210(a) protection, attempt to " report" (footnote continued from previous page) the plant is only as good as the reliability of each employee in his judgments during the workday . . . . The Complainant was fired . . . because he violated NRC regulations . . . . In view of the risk to the plant and public offered by (his]

propensities, his discharge was overdue when it occurred.

18/ Courts and federal agencies have reached similar conclusions under other employee protection statutes. See NLRB v. Local 1229, International Bhd. of Electrical Workers (Jefferson Standard Broadcasting Co.), 346 U.S. 464, 477-478 (1953)

(even if the subject of the employees' handbills was protected concerted activity under Section 7 of the National j Labor Relations Act, "the means used by the (employees) 1

. . . have deprived (them] of the protection of that section

. . . . "); Hochstadt v. Worcester Found., 545 F.2d 222, 231 ,

(1st Cir. 1976) (employees lose similar statutory job protec- l tions "for conduct aimed at achieving even proper objectives through the use of improper means . . . . "); Fort Smith Chair Co., 143 NLRB 514, 518 (1963), aff'd on other arounds, 336 F.2d 738 (D.C. Cir. 1964) (employees who engage in an illegal strike in violation of Section 8(d) of the National Labor Relations Act "ferfeit their rights to protection of the Act").

l

nuclear safety violations by committing or causing such viola-tions. As reflected in 210(g), Congress itself concluded that deliberate violations of required safety standards by vigilante employees constitute such a potential danger to public and employee safety that an employer must be free to remove them without contest. 19/ The NRC should follow that mandate, reject 19/ The Fourth Circuit Court of Appeals recently recognized precisely the same concerns when it dismissed a state law claim for wrongful discharge. In Guy v. Travenol Laboratories, 812 F.2d 911, 916-917 (4th Cir. 1987), the court stated:

(A] wrongful discharge action may also have undesirable effects. There is a risk that many employees who are properly terminated will try to claim the exception (to an employer's right to discharge employees at will], particularly those in sensitive . . .

industries. There is a danger that the always uncertain prospects of litigation will deter er?l oyers in those industries from legitimate personnel decisions, even with respect to those employees whose . . . (actions] in the workplace pose () a variety of public risks.

Those same considerations prompted a federal district court in Iowa recently to vacate an arbitration award which required the reinstatement of an employee who had committed nuclear safety violations. Iowa Electric Light & Power Co.

v. Local Union 204, F. Supp. , Case Nos. C 85-0135 and 85-0137 (N.D. Iowa, March 11, 1987). In vacating the award, the court stated (slip op, at 17-18):

(G]iven the deliberate action of . . . [the discharged employee) in intentionally disabling a safety mechanism . . ., the court is of the view that his reinstatement to his former position . . . is violative of the dominant public policy requiring strict adherence to safety standards in the operation l of nuclear facilities. He is no longer to be trusted to work in such a critical environment when he shows no respect for the safety impli-cations of his actions and when he is willing (footnote continued)

l Petitioner's claim, and find that GE acted in a lawful, responsi-ble manner in dealing with an employee wno defiantly violated nuclear safety rules.

In summary, the existing record compels the conclusion that GE did not unlawfully or impermissible remove English from nuclear-sensitive areas in its Wilmington facility. She purpose-fully and deliberately violated safety requirements and GE would have been subject to far more justified criticism had it over-looked her actions and left her employed in areas where such violations might be repeated. To quote a3 in the Secretary of Labor in an analogous ERA decision, "(iln view of the risk to the plant and public offered by (her) propensities, [her] discharge was overdue when it occurred." Wood and Yearcin Construction Co., 79-ERA-3, slip op. pp. 8-9 (Secretary's Decision, November 8, 1979), affirming the ALJ's Recommended Decision (October 5, j 1979).

I f

(footnote continued from previous page) to jeopardize the safety of the public by deliberately disabling a st.gnificant protec-tive system.

l .

1 l

l II. IF THE NRC DOES NOT DENY THE INSTANT PETITION AS A l MATTER OF LAW, IT SHOULD DEFER CONSIDERATION UNTIL FINAL ACTION IS TAKEN ON PETITIONER'S SECTION 210 COMPLAINT TO DOL The preceding sections make clear that the NRC should reject Petitioner's 2.206 Petition as a matter of law based on Petitioner's own testimony in the proceedings before the Department of Labor. If the NRC decides not to do that, however, GE submits that the Commission should defer any other action on the Petition until the DOL proceeding is ultimately and finally resolved. As shown below, that course would be consistent with the Congressional intent expressed in Section 210, the NRC's own stated policies and practices, and principles of administrative efficiency.

As pointed out in I.A. above, there is presently no final DOL decision on the merits of Petitioner's Section 210 claim and the matter is now pending before the Fourth Circuit. If the Fourth Circuit concludes that dismissal of Petitioner's complaint on procedural grounds was improper, DOL will consider the merits of Petitioner's complaint to the Secretary of Labor, thus provid-ing NRC with the benefit of a final DOL decision. Only if the Fourth Circuit determines that the Secretary of Labor was justi-fied in dismissing Petitioner's complaint as untimely will the NRC have to investigate this matter, evaluate the DOL record and other relevant facts, and ultimately determine whether English has made a justifiable claim under Section 210. Moreover, at that point the NRC would be in a position to evaluate this matter without i

)

running the risk of making a determination that conflicts with one reached by the agency given the primary responsibility in this area under the statute.

In view of this possible future DOL action on Petitioner's Section 210 complaint, it is clearly appropriate for NRC to defer action on the instant Petition unless the Petition is dismissed as a matter of law. Such deferral is consonant with the Congressional judgment in Section 210 that the Department of Labor is the federal agency with the special competence and expertise to weigh the evidence and ultimately determine whether unlawful employment discrimination has occurred. Reflecting that judgment, the " Memorandum of Understanding" between NRC and DOL, 47 Fed.

Reg. 54,585 (Dec. 3, 1982), recognizes that DOL enjoys broad authority under Section 210 "to investigate employee complaints of discrimination and . . ., after an investigation and hearing, (to) order a violator to take affirmative action to abate the viola-tion, reinstate the complainant to his or her former position with backpay, and award compensatory damages, including attorney fees."

47 Fed. Reg. at 54,585; see also Duke Power Co., 21 NRC at 1764.

By contrast, the Memorandum recognizes, as do decisions of the NRC, that the Commission is "without direct authority to provide a remedy to an employee" who is the victim of discriminatory conduct. Id. at 54,585; Duke Power Co. (Catawba Nuclear Station Units 1 and 2) DD-85-9, 21 NRC 1759, 1767 (1985) (the Commission's responsibilities under the Energy Reorganization Act and under the Memorandum of Understanding do not extend to "immediate remedial

l action to the person affected"); ggg also Houston Lichtina & Power l

Cgt (South Texas Project, Units 1 and 2), CLI-81-28, 14 NRC 933, 938 n. 2 (1981) (Ahearne, Commn'r, concurring).

Thus, the Memorandum of Understanding recognizes that matters concerning employment discrimination are within the special competence and expertise of the Labor Department. The commencement of any action by NRC before final action is taken in connection with the Department of Labor's proceeding, including the completion of appellate review, would deprive the Commission of the Labor Department's expertise in addressing and resolving allegations of unlawful discrimination. Indeed, the pendency of two concurrent proceedings in two separate agencies would be directly contrary to the policies underlying the Memorandum of Understanding, namely that " administrative efficiency and sound enforcement policies will be maximized by cooperation and the timely exchange of information in areas of mutual interest." 47 Fed. Reg. at 54,585. 20/

20/ Deferral of NRC action pending final action by the Department of Labor would also be consistent with the Commission's sound policy disfavoring duplicate litigation of the same issues. ,

As the Commission explained in General Public Utilities Nuclear Corp. (Three Mile Island Nuclear Station, Units 1 and 2, Oyster Creek Nuclear Generating Station), CLI-85-4, 21 NRC 561, 563 (1985), "[t]he principle is now firmly established that parties must be prevented from using 10 C.F.R. 2.206 procedures as a vehicle for reconsideration of issues previ-ously decided, or for avoiding an existing forum in which they more logically should be presented." Seg algo Rockford I

League of Women Voters v. NRC, 697 F.2d 1218, 1222 (7th Cir.

1982); Pacific Gas & Electric Co. (Diablo Canyon Nuclear Power Plant, Units 1 and 2), CLI-81-6, 13 NRC 443, 445-46 (1981); Consolidated Edison Co. of New York (Indian Point, l Units 1, 2 and 3), CLI-75-8, 2 NRC 173, 177 (1975); Duke j' (footnote continued)

q Finally, deferral would be consistent with both judicial and NRC practice.

Courts have long recognized that deference to the expertise of an administrative agency is appropriate when the commencement of a second proceeding, simultaneous with the first ,

would result in unnecessary duplication of resources and threat en-inconsistent judgments.

Inc., 426 U.S.

Egg, gtg., Nader v. A11echenv Airlines _,_

290, 303-304 (1976); Weinbercer v.

Bentex' Pharmaceuticals. I n c ._ , 412 U.S. {

645, 654 (1973); United Gtates v.

{

Western Pacific Railroad Co._, 352 U.S. 59, 63-65 (1956). 21/

Similarly, the NRC routinely awaits the entry of a final decision by the Department of Labor on an employee Section 210 complain ,

including any necessary appeals, before deciding whether to initiate an enforcement action against one of its licensees.

Sea Letter from James M. Taylor, Director of Office of Inspecti on and Enforcement, Kansas Gas and Electric Company (Wolf Creek (footnote continued from previous page)

Power Co.

21 NRC 1759,(Catawba Nuclear Station Units 1 and 2), DD-85-9, 1762 n. 1 (1985).

an " existing forum," the Department of Labor, Petitioner presently in which to enjoys her removal by GE.present her claim for relief from the incidents surrou the Commission or GE with a duplicative enforcement action that arises out of the same set of facts confronting the Department of Labor and the Fourth Circuit, issues, and seeks many of the same remedies raises the same 21/

On several occasions the NRC has recognized the doctrine of primary the final jurisdiction decisions ofand theagencies.

other need to await and perhaps apply Co. Egg Consumers Power 924-27(Midland (1977);Plant, Units 1 and 2), ALAB-452, 6 NRC 892, Station, Units 1 and 2),Public Service Co. of New Hampshire (Seabrook ALAB-422, 6 NRC 33, 69-71 (1977);

Alabama Power Co. (Joseph M. Farley Nuclear Plant, Units 1 y and 2), LBP-77-24, 5 NRC 804, 872-75 (1977),

l 13 NRC 1027 (1981), aff'd, 692 F.2d 1362 (11th Cir.aff'd, ALAB-646, 1982).

l

_ _ _ _ _ _ _ _ - - - - _ _ . - - _ - I

l Generating Station), Docket No. STN 50-482 (July 30, 1986) (initi- i ating civil penalty proceedings); Notice of Violation and Proposed  !

Imposition of Civil Penalty, Illinois Power Co. (Clinton Power Station, Unit 1), Docket No. 50-461 (Dec. 17, 1986); Notice of Violation and Proposed Imposition of Civil Penalty, Commonwealth Edison Co. i (Byron Nuclear Power Station, Units 1 and 2), Docket No. 50-454, 50-455 (June 25, 1986); Notice of Violations and Proposed Imposition of Civil Penalties, Texas Utilities Electric Co.

(Comanche Peak Steam Electric Station), Docket Nos. 50-445, 50-446 (May 2, 1986).

In the Wolf Creek proceeding, for example, ,

the Director of Inspection and Enforcement decided to suspend civil penalty proceedings against Kansas Gas and Electric Company while the utility appealed to the federal courts the Secretary of Labor's decision that the utility unlawfully discriminated against an employee for engaging in protected activity. The case for deferral of NRC enforcement action pending judicial review is at least as strong here, where the Secretary of Labnr's dismissal of Petitioner's Section 210 claim is on appeal.

In short, there is simply nothing to gain, and much to lose, from the institution of enforcement action by NRC prior to final completion of the DOL proceedings. Unless the instant 2.206 Petition is dismissed as a matter of law, all of the circumstances I present here militate in favor of recognizing the Department of Labor's primary jurisdiction and deferring action by NRC until I final action is taken in connection with the DOL proceedings.

Accordingly, because Petitioner's insistence that the NRC penalize

o .

l GE before the final outcome of the DOL proceedings and related appeals is contrary to the Commission's practice and the sound policies underlying that practice, the NRC should either dismiss the Petition as a matter of law or defer action on the Petition until the DOL proceedings are complete. ]

III. PETITIONER'S REQUEST FOR RELIEF IS PLAINLY IMPROPER AND MUST BE REJECTED Based on her view that GE is guilty of a continuing violation of Section 210 and that the base penalties set forth in NRC's policy statement should be adjusted upward, Petitioner demands that the NRC assess a civil penalty against GE in the amount of $40,635,000 plus an additional penalty of $37,500 for every day after April 6, 1987 until GE takes the " corrective actions" also demanded by Petitioner. In addition, Petitioner claims that she is entitled to compensation in the amount of

$2,355,626.62 for her " economic losses," " medical expenses,"

" expenses incurred in fighting GE" and for "the physical and mental pain she has endured," and she urges the NRC to condition '

GE's license for its Wilmington facility upon payment of these damages. For the reasons which follow, GE submits that Petitioner's request for relief is both completely unsupported by the fc;ts and wholly without legal foundation.

t

A. Continuina Violation Petitioner's argument that GE committed a " continuing violation" when it removed Petitioner from the Chemet Lab is premised upon contorted logic and a studied disregard of the fact I that this precise issue was decided adversely to Petitioner by the Under Secretary of Labor. 22/

Before the Department of Labor, Petitioner claimed that GE's alleged discrimination against her continued after her transfer from the Chemet Lab and her temporary assignment to other work and that GE's violation was thus ongoing. In a thorough and well reasoned opinion, the Under Secretary rejected Petitioner's claim. 23/ Citing Delaware State Collece v. Ricks, ..

449 U.S. 250 (1980), and Chardon v. Fernandez, 454 U.S. 6 (1981),

the Under Secretary noted that the focus must be on when the " violation" took place, not on when its effects were felt. The alleged violation here was the decision to place Mrs. English on 90 day temporary assignment. If a suitable position did not become available, it was clear that Mrs. English would be discharged. As in Ricks, the discharge here was the " delayed" but inevitable consequence, 449 U.S. at 257-258, of the 90-day temporary assignment.

Here, Mrs. English has not shown that she was treated any differently from any other employee on temporary assignment subject to 22/ It is ironic that Petitioner would have the NRC rely upon the non-binding recommendation of the ALJ to find that a viola-tion occurred and yet ignore the final decision of the Department of Labor that no continuing violation occurred.

23/ A copy of the Under Secretary's Decision is attached hereto as Appendix A.

s ..

being placed on " lack of suitable work" status as a suitable assignment cannot be found. The only violation, if any, occurred when she was put on temporary assignesnt on May 15, 1985. . . .

Quoting from Corbin v. Pan American World Airways, 432 F. Supp.

939 (N.D. Cal. 1977), the Under Secretary concluded that

"(c]ompleted acts such as termination through discharge or resignation, . . . a job transfer . . . or discontinuance of a particular job assignment are not acts of a ' continuing' nature."

The Under Secretary of Labor was clearly correct in holding that there is absolutely no legal or factual basis upon which a continuing violation can be found here. Simply put, a single act of termination like that alleged by Petitioner can never give rise to a continuing violation under any statute that ,

i provides for the imposition of additional penalties for ongoing violations. Indeed, GE is unaware of any instance in which the NRC has found such a violation to be continuing. 24/ Rather, in order to constitute a " cont.inuing violation," the discriminatory or retaliatory acts themselves must be ongoing, and it is not 24/ See Notice of Violation and Proposed Imposition of Civil Penalty, Philadelphia Electric Co. (Peach Bottom Nuclear Power Station), Docket No. 50-278, EA 87-05 (February 9, 1987); Notice of Violation and Proposed Imposition of Civil Penalty, Commonwealth Edison Co. (Byron Nuclear Power Station, Units 1 and 2), Docket Nos. 50-454, 50-455, EA 86-87 (June 26, 1986); Notice of Violation and Proposed Imposition of Civil Penalty, Illinois Power Co. (Clinton Power Station, Unit 1), Docket No. 50-461, EA 86-87 (Dec. 17, 1986); Notice ,

of Violation and Proposed Imposition of Civil Penalty, Duke {

Power Co. (Catawba Nuclear Station, Units.1 and 2), Docket I Nos. 50-412, 50-414, EA 84-93 (Aug. 13, 1985); Notice of Violation and Proposed Imposition of Civil Penalty, Kansas Gas and Electric Co. (Wolf Creek Generating Station), Docket No. STN 50-482, EA 84-87 (Sept. 27 1984).

l l

s. 4

)

l l

l L enough that a complainant merely alleges, as here, that the l

effects of a single act are still being felt. See Prochet v.

Armco Steel, Inc., 575 F.2d 579 (5th Cir. 1978) (discharge is not a continuing violation); Daucherty v. Kina's Deoartment Stores, Inc., 608 F.2d 906 (1st Cir. 1979) (layoff is not a continuing i violation); Corbin v. Pan American Airways, 432 F. Supp. 939 (N.D. Cal. 1977) (discharge, job discontinuance, job transfer are not continuing violations); United Air Lines, Inc. v. Evans, 431 U.S. 556-(1977). As the First Circuit stated in Goldman v. l Sears, Roebuck & Co., 607 F.2d 1014 (1st Cir. 1979):  !

A continuing violation is not stated if all that appears from the complaint is that the plaintiff continues to suffer from the ongoing effects of some past act of discrimination.

Id. at 1018; see also Delaware State Collece v. Ricks, 449 U.S.

250, 258 (1980); Velazauez v. Chardon, 736 F.2d 831 (1st Cir.

1984).

Nor is this result changed by Petitioner's contorted and illogical interpretation of the NRC's General Statement of Policy and Procedure for NRC Enforcement Actions, 10 C.F.R. Part 2, App. C, t V.B.5(1). That section provides:

(1) If a licensee is aware of the existence of a condition which results in an ongoing violation and fails to initiate corrective action, each day the condition existed may be considered as a separare violation and, as such, subject to a separate additional civil i penalty.

l 1

n e 10 C.F.R. Part 2, App. C. 1 V.B.5(1) (1987). Based on this language, Petitioner argues that a continuing violation is established and daily penalties may be assessed because GE management was aware of its termination of Petitioner as well as Petitioner's allegation of discrimination and failed to provide her with compensation.

This construction of Paragraph V.B.5(1) is absurd.

Under that provision a continuing violation can be found only if there is an existina condition which results in an onaoina violation, not when management is aware of an alleaed (or even real) past violation that is not itself ongoing. Indeed, the net result of Petitioner's argument would be that any alleaed Section 210 violation of which management is aware would necessarily constitute a continuing violation and subject a licensee to a daily penalty. Yet, to GE's knowledge the NRC has never so acted. 25/ Moreover, the logical extension of this argument highlights its absurdity. If a licensee exercises its right to contest a complaint charging a violation of Section 210 and ultimately is found liable, the licensee would automatically be guilty of a continuing violation for the entire period of time the complaint was being litigated, thereby effectively depriving a licensee of its right to contest the complaint in the first place. 26/

25/ See note 25 suora.

26/ Moreover, this would also violate the established principle ]

that the failure to take corrective actions to remedy the 1 (footnote continued) j 1

_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ . _ . _ _ _ _ _ _ _ _ _ _ . _ _ _ _ _ . _ _ _ _ _ _ . _ _ _ _ . _ _ _ . . _ _ _______m

In sum, as the Under Secretary of Labor'specifically found, the only alleged violation of Section 210 in this case occurred, if at all, on May 15, 1984 when Petitioner's removal 1

from her. job in the Chemet Lab.was finally confirmed by the GE General Manager. That single past act, even if found to be retaliatory within the meaning of Section 210, could not and does not amount to an existing condition "which results in an ongoing violation." 10 C.F.R. Part 2, App. C., H V.B.S.(1) (1987).

Accordingly, Petitioner's claim that the daily penalty contem-plated by NRC's General Statement of Policy is applicable here must be rejected in its entirety.

B. Increased Penalty Apart-from her assertion that GE is somehow guilty of a continuing violation, Petitioner also contends that any civil penalty assessed against GE should be increased by "at least" fifty percent based on Petitioner's contrived analysis of the five factors set forth in 10 C.F.R. Part 2, Appendix C, Paragraph V.B.

First, Petitioner states that GE failed promptly to identify and report its " violation," complaining that "GE has never reported i 1

its Section 210 violation to the NRC or even acknowledged that such a violation exists." Petition at 7. Petitioner apparently believes, however illogically, that once an employee merely alleges that an NRC licensee has violated Section 210, the licen-(footnote continued from previous page) effects of past discrimination or retaliation does not give rise to a continuing violation. Cf. United States v. Davis, i 533 F.2d 421 (5th Cir. 1976).

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.I see may not contest the allegation but must immediately "acknow-ledge the. violation" and " report" it to NRC or face the possibil-ity of an increased penalty. In fact, neither GE nor any NRC licensee may be punished for contesting allegations that Section-210 has been violated.- Although never mentioned by Petitioner, it is presumably for this reason that the NRC Enforcement Policy

.provides that the identification and reporting of a violation can serve only to decrease a civil penalty; it may not, however, serve as the basis _for an increase. Seg 10 C.F.R. Part 2, App. C, H V.B.l. (1987). 27/ Finally, on this point, it should also be noted that GE did'promptly report Petitioner's safety concerns to the NRC, although not legally required to do so.

Second, Petitioner states that GE failed to take

" corrective action to prevent recurrence." According to Petitioner, not only has GE done nothing to correct the damage done to Mrs. English, even after its own investigator found substantial merit in her quality concerns (Wieczorek Report (April 26, 1984)), but it has also done nothing to eliminate the consequences to other employees of its intimidation of Mrs. English or to prevent recurrences of similar events in the future and, in the cases of Ms. Malpass and Mr. Lewis, applied similar pressure to prevent and punish their testimony on behalf of Mrs. English.

27/ Part 2, Appendix C, Paragraph V.B.(1) of the Commission rules of practice provides only that the prompt identification and reporting of a violation may result in the "(rladuction of up to 50% of the base civil penalty. . . ." No provision is made for an increased penalty under this factor. 10 C.F.R.

Part 2, App. C, t V.B.(1) (1987).

. s I

43 -

Petition at 7.

Petitioner's argument on this point is disingenuous for )

a number of reasons. As a preliminary matter, the only issue J l

before the NRC is whether GE violated Section 210 in its treatment of Petitioner. As to that issue, GE is under no obligation and could hardly be expected to " correct the damage done to" Petitioner unless.and until a final order of the Department of f Labor is issued finding GE liable. GE cannot be penalized for contesting Petitioner's allegations that Section 210 was violated.

As to Petitioner's other allegations, not only are they of no relevance to Petitioner's Section 2.206 Petition, or to the amount of any civil penalty which might be assessed against GE, but they  !

misrepresent the actual facts. Petitioner's " quality-concerns" were not found to have any safety significance in the Wieczorek Report. 28/ Moreover, Petitioner's allegations of safety problems were found to have no merit in the Hendry Report (see ALJ Decision, p. 4) and were previously and finally resolved against Petitioner in her earlier Section 2.206 Petition. 29/ As to the alleged " intimidation" of other GE employees, the Department of Labor investigation found that GE employees were not intimidated in any way as a result of GE's transfer of Petitioner, and several of those employees provided affidavits attesting that they were i

28/ Even the Wieczorek Report's " quality" conclusions have been largely discredited.

29/ Petitioner's appeal of the NRC Director's Decision of August 29, 1986, was dismissed by the D.C. Circuit on March 31, 1987.

never discriminated against by GE for their role in the DOL proceeding. 30/ Finally, as to Ms. Malpass and Mr. Lewis, the DOL ALJ assigned to hear that case has recommended that their complaints be dismissed with prejudice.

Third, Petitioner argues that GE's past performance warrants an increase in the penalty because Petitioner " felt pressure 'to go along to get along' for several years." Petition at 7. Although Petitioner's subjective and unsubstantiated

" feelings of pressure" can hardly form the basis for an increased penalty, Petitioner's assertion that she felt pressure to "go along" is belied by the fact that Petitioner has not hesitated in the past to make numerous safety complaints to NRC and GE -- none of which, however, was ever found to have substantial merit.

Fourth, Petitioner takes the position that GE had prior notice of similar events because " licensees have been notified by the NRC of the importance of compliance with Section 210 and of encouraging workers to freely speak out about safety concerns to management and the NRC." Petition at 7. While GE is aware of the importance of compliance with Section 210 and actively encourages its employees to speak out about safety concerns, it is difficult to understand how GE's awareness of its obligations under Section

! 30/ Counsel for Petitioner filed complaints with the Department I

of Labor alleging that GE had discriminated against Robert Hudson, Gary Coronado, Robert Carpenter, Billy R. Bullard, l Mike Norris, John Sutton and Lewis Brown -- all GE employees.

l All these employees provided affidavits that they had never authorized counsel for Petitioner to represent them before the Department of Labor. Egg Appendix B.

o i 210 can result in " prior notice of similar events." Were Petitioner's position adopted by the NRC,.every violation of NRC regulatory. requirements would. result in an increased penalty.-31/

Finally, Petitioner claims that the penalty 1should be

' increased based on Paragraph V.3.(5) of NRC's Enforcement Policy, which provides for an increase "where multiple examples of a particular violation are identified during the inspection period."

In support of her-claim, Petitioner makes the bootstrap-argument that there have been multiple occurrences because "every day that passes.without corrective action being taken to undo the damage done to Mrs. English reinforces the adverse impact on other workers who believe they should report safety concerns to the NRC." Petition at 7-8. Petitioner's argument is nothing more than a restatement of the baseless claim that English's removal somehow constitutes a day-by-day continuing violation. For the reasons stated earlier, it must be rejected.

In sum, Petitioner's demand that GE be assessed a penalty in an amount exceeding $40,000,000 is patently absurd.

'Even assuming that GE violated Section 210 of the Energy 31/ Part 2, Appendix C, Paragraph V.B.(4) of the Commission regulations is concerned with instances in which a generic safety problem is discovered and made known to an NRC l' licensee or a licensee discovers a problem during an audit and yet takes no preventive action, which results in its reoccurrence. See 10 C.F.R. Part 2, App, C., t V.B.(4)

(1987). Clearly, neither instance applies here.

o +

l l Reorganization Act when it removed Petitioner from her laboratory position, the maximum penalty which could be assessed against GE would be $25,000. 32/

C. The NRC Is Without Authority To Condition GE's License For The Wilmington Facility On The Paveent of Petitioner's Claim For Damaces Having so far failed to obtain any compensation before either the Department of Labor or the United States District Court in North Carolina, Petitioner now requests that the NRC, under the guise of a " license modification," order GE to pay Petitioner damages in the amount of $2,355,626.62 for alleged medical expenses, pain and suffering, lost wages and out-of-pocket expenses. Thus, in effect, Petitioner requests that the NRC usurp the role of the Department of Labor and the courts and provide her with compensatory damages. Adequate remedies for Petitioner exist elsewhere and Petitioner is availing herself of those remedies.

Accordingly, even if the NRC could award such damages, and it cannot, it should not entertain a petition for damages from English.

32/ The NRC has usually classified violations of its employee protection standards as Level II and Level III violations, resulting in penalties substantially less than the maximur accant permitted by NRC's Enforcement Policy. In the case of pcwer reactors where the maximum penalty is 5100,000, NRC normally assesses penalties in the range of $50-75 thousand.

In the case of fuel facilities, the maximum penalty is

$25,000 for a Level I violation. The maximum penalties for Level II or Level III violations are $20,000 and $12,500 respectively. Eeg Appendix C. In this regard, it should be noted that, even if a violation occurred, it could not rise ,

higher than a Level II violation because only plant manage- i ment was involved in the decision to remove Petitioner from the Chemet Lab.

Section 210 of the Energy Reorganization Act vests exclusive jurisdiction in the Department of Labor, and more particularly in the Secretary of Labor, to redress retaliatory employment practices in the nuclear industry. Kansas Gas & Elec.

Co. v. Brock, 780 F.2d 1505, 1508 (10th Cir. 1985), cert, denied, 106 S. Ct. 3311 (1986); See Snow v. Bechtel Const., Inc., 647 F. Supp. 1514, 1517-19 (C.D. Cal. 1986); Duke Power Co. (Catawba Nuclear Station, Units 1 and 2), DD-85-9, 21 NRC 1759, 1764 (1985). Under Section 210 and the implementing regulations, the Secretary has the sole responsibility to restore an employee to his job with all attendant benefits and back pay, and to award compensatory -damages, including medical expenses and damages to reputation resulting from the prohibited discrimination, and al.

reasonable costs and expenses incurred in connection with brina .;

the Section 210 action. See 42 U.S.C. 5 5851(b)(2)(A) and (B)

(1982); 29 C.F.R. SS 24.6(b)(2), (b)(3) (1986); see also DeFord v.

Secretary of Labor, 700 F.2d 281, 288-89 (6th Cir. 1983). Even a cursory reading of Section 210 and the implementing regulations discloses that jurisdiction to award the damages requested by Petitioner for pain and suffering, bac< and future pay, and out-of pocket costs and medical expenses rests solely with the Department of Labor.

The remedies available to an aggrieved employee are  !

comprehensive.and provide adequate relief (and all that is availa-  !

I ble) for the projections established under Section 210(a).

Refereace to the clear and unambiguous language of Section 210  !

4 I

N * ,

48 -

demonstrates that Congress.neither' authorized nor contemplated that-the NRC would provide additional remedial relief to an-employee. Significantly, in setting forth their views of their respective roles in matters arising under Section 210, the Labor Department and the NRC have agreed that the NRC_does not have authority to. provide individual remedies to an employee subject to impermissible discriminate ~on. See 47 Fed. Reg. at 54,585. In short, the NRC has no authority in employment discrimination matters to' provide compensation to an employee. . Egg'id.; sgg also Duke Power Co.', DD-85-9, 21 NRC at 1767.

Finally, even assuming arauendo that NRC had authority

.to award dameges to Petitioner, her claim for damages,-like her proposed penalty assessment, is grossly inflated and not supported by the evidence in the DOL proceeding. We will not belabor that point here because it is so clear that NRC does'not award such damages. However, 51 there is any doubt about the nature of Petitioner's damages, we would refer NRC to the attached excerpts from GE's briefs to the Secretary of Labor (see-Appendix D) which show that Petitioner's alleged damages are at best unsupported and at worst illusory. 33/

33/ For example, the overwhelming bulk of Setitioner's personal damages claim before the NRC is re> ten nted by her assertion that she should be paid 52 million *c ;over her alleged men-tal and physical pain and suffering, which is coupled with a claim for $2,955 in psychological medical expenses. However, this alleged suffering is belied by evidence in the DOL record. At transcript pages 1227-1297 in that proceeding, English's psychologist-(Dr. Peter Boyle) testified that he saw English only once; that her appointment was made not by a sick and distraught English but by someone from the office of (footnote continued)

___1_____

e o CONCLUSION In summary, the present 2.206 petition is but one small part of a concerted but baseless effort by Petitioner and her counsel to harass GE, the Department of Labor, the courts and NRC with the sole objective of extracting hundreds of thousands or millions of dollars from GE. Petitioner and her counsel have initiated two proceedings before the Department of Labor, have by now been before the United States Courts of Appeals on eight different matters, have sought the aid of the federal district courts on at least four occasions, and have previously flooded the NRC with petitions, demands, requests and various other documents, all without success. Petitioner is row back before the NRC again seeking compensation. However, Petitioner's request is ground-less. The relief sought here is not now, nor will it ever be, available or warranted. Thus, we respectfully submit that the NRC (footnote continued from previous page) her lawyer (Mr. Ratner) who was handling her case before the Department of Labor; that English's appointment with him was not made until November 1984 (or about eight months after English's allegedly traumatic removal from the Chemet Lab and shortly before her hearing opened before the Department of Labor's Administrative Law Judge); and that he (Dr. Boyle) did not treat her but only evaluated her condition. He further testified that English needed once-a-week psycho-therapy sessions and medication for the following six months.

However, medical bills submitted by English in that proceeding revealed that English did not seek any such i prerpribed treatment until almost five months later, on March I 7 and Merch 15, 1985, which just happened to be the two consecutive weeks preceding the resumption of Labor Department hearings on March 19, 1985. Finally, English's medical bills revealed that those trial preparation visits cost English approximately S2,000 out of the $2,955 she now claims in psychological services.

7-t should promptly dismiss the instant Petition. The law, the facts, j common sense and the legitimate interests of exhausted parties and a tribunals require no less.

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No. 87 3520

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IN THE Entteh 6tates Eaurt of Appeals FOR THE FOURTH CIRCUIT VERA M. ExcL!sH, y, Petitioner, DENNIS E. WHITFICLo, Deputy Secretary of Labor.

United States Department of Labor.

Respondent, and GENERAL ELECTRIC COMPANY, Int m enor.

On Petition for Review of an Order of the Deputy Secretary of Labor United States Department of Labor BRIEF FOR INTERVENOR GENERAL ELECTRIC COMPANY PETra G. NASH Dix!E L. ATWATER OcLETaEE, DEAKINS, NASH, SuoAK AND STEWART 1200 New Hampshire Avenue, N.W.

Washington, D.C. 20036 (202) 887-0855

, WILLIAM W. STtTRcES WEINSTEIN AND STtincts 810 Baxter Street Cul de Sac

. Charlotte, North Carolina 28202 2772 (704) 377-4784 Counsel 1or intervenor General Electric Company j

. ,6. . a n . .. ... . . . c . . . .. . , . . . oo . . . . . .. .. . . . , o . c . o o o i I

5 111 '

l TABLE OF AUTHORITIES-Continued Page' l Price v. Litton Business Systems, Inc., 694 F.2d 963 (4th Cir. 1982) ....................... passim -

Shehadeh v. Chesapeake & Potomac Tele. Co.,595 F.2d 711 ( D.C. Cir. 1978) .. .. . .... .. ..... . . 22, 24 Taylor v. Home Insurance Co., 777 F.2d 849 (4th Cir.1985), cert. denied,90 L Ed. 2d 695 (1986). passim United States v. Larionof,431 U.S. 864 (1977).. 10 Valentino v. United States Postal Service,674 F.2d 56 ( D.C. Cir. 19 8 2 ) . . . . . . . . . . . . . . . . . . . . . . . . 19 .

Vuksta v. Bethlehem Steel Corp.,540 F. Supp.1276 (E.D. Pa.1982), c/f'd,707 F.2d 1405 (3d Cir.),

cert. denied. 464 U.S. 835 (1983) ............ 11 Womack v. Munson,619 F.2d 1292 (8th Cir.1980),

cert. denied, 450 U.S. 979 (1981) ............ 29 Woodard v. Lehman,717 F.2d 909 (4th Cir.1983). 26 STATUTES National Labor Relations Act, 29 U.S.C. Il151 etaeq...................................... 11 Age Discrimination in Employment Act,29 U.S.C.

I 6 621 63 4 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11,15 4 2 U. S . C. I 19 81 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 4 2 U.S. C. I 19 83 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 4 2 U.S.C. I 19 8 5 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 42 U.S.C. ll 2000e et seq. ..... ... . .. . ......... . 11,15 Energy Reorganization Act, 4 2 U.S.C. I 5851... . .... ..... ...... . . .. . . .pa4sim 4 2 U.S.C. I 5851 ( a ) .. . . . . . . . . . . . . .. . .. . . . . 6 42 U.S.C. I 5851 (b) ... .......... .... .. 2, 8,13,16 4 2 U.S.C. I 5851 ( g ) ... .... ..... .. . . .. . . . . . 78 REGULATIONS 29 C. F.R. Pa rt 18 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 10 ,

29 C.F.R. Part 2 4 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 9 10 MISCELLANEOUS 6 Wigmore, Evidence i1907 (Chadbourn Rev.

1976) .................................... 27 Rule 56(e), Federal Rules of Civil Procedure.... 29 Rule 801(d)(1), Federal Rules of Evidence ..... 30 Rule 804(b), Federal Rules of Evidence ........ 30 n >

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TABLE OF CONTENTS Page TABLE OF AUTHORITIES .._ _................... il STATEMENT OF THE CASE .................... 1 STATEMENT OF FACTS ................... ... 2 THE DECISIONS BELOW ..... __....... ....... 6 ARGUMENT -

I. THE SECRETARY CORRECTLY HELD THAT ENGLISH'S COMPLAINT IS BARRED BY THE STATUTE OF LIMITATIONS IN SEC.

TI O N 210 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 A. The Supreme Court's Chardon/Ricka Rule Requires Dismissa! In This Case.......... 11 B. English Has Not Established A Continuing Violatio n . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

1. The Additional Alleged Discriminatory Acts Do Not Establish a Continuing Vio.

la ti o n . . _ _ . . . . . . _ _ . . _ _ _ _ _ _ . . . . . . . . . . . 21

2. A Demotion or Transfer is Not Per Se a Continuing Violation ................. 25 II. ENGLISH HAS NOT BEEN DENIED DUE PRO C E SS . .. . . . . . . . . . . .. . . . . . . . . . . . . _ _ . .. . 27 CO NCLUSIO N . . _ _ _ _ .. .. _ _ . . _ _ . . . . . . . _ _ _ _ _ .. . . . . 32 I

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' TABLE OF AUTHORITIES CASES .Page

- Ashcraft v. University of Cincinnati, 83-ERA-7 (Secretary's Decision, November 1.1984)..... 28 Bezemore v. Friday, 478 U.S. , 92 L. Ed. 2d -

315 (1986)................................ 22 Bowles v. Seminole Rock & Sand Co.,325 U.S. 410 (1945).................................... 10 Chardos v. Fernandez, 454 U.S. 6 (1981) ....... passim Delaware State College v Ricks, 449 U.S. 250 (1980) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . p a s sim ,

First National Maintenance Corp. v. NLRB, 452 U.S . 6 6 6 ( 19 81 ) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 Flaminio v. Honda Motor Co., 733 F.2d 463 (7th Cir. 1984 ) .. .. ... . . ... . . . . . . ... . . . . . . . . 27, 31 Glass v. Petro.Tez Chemical Corp.,757 F.2d 1554

( 5th Cir. 1985) . .. . .... . . . . . . . .. . . . . . . . . . . . 25 :

Heier v. Crawford County, Wis., 746 F.2d 1190 (7th Cir.1984), cert, denied, 472 U.S.1027 (1985).................................... 11 Hill v. AT&T Technologies, Inc., 731 F.2d 175

( 4 th Cir. 1984 ) . . ... . . .. . . . . . . . . . .. . . . . . . . . 20 Jenkins v. Home lasurance Co.,635 F.2d 310 (4th Cir. 1980 ) . . . . . . . . . . .. . . . . . . . . . . . . . . . . . . . . 22 Krzytewski v. Metropolitan Government, Etc.,584 F.2d 802 (6th Cir.1978) ................... 15 Lawson v. Burlington Industries, Inc., 683 F.2d 862 (4th Cir.), cert. denied,459 U.S. 944 (1982) . 22 Lippert v. General Electric Co., 27 FEP 1427 (W.D. Ky. 1982) ..... ... .. .. ........ . 11,14 15,17 MCl Communication v. American Te!, & Tel. Co.,

708 F.2d 1081 (7th Cir.), cert. denied,464 U.S.

891 (1983)............................... 27,31 Meritor Savings Bank v. Vinson, U.S. ,

91 L. Ed. 2d 49 (1986) .. ..... .. .. . . . .. .... 20 NLRB v. PipsAtters,429 U.S. 507 (1977) ........ 10 Nolder v. Raymond Kaiser Engineers, Inc., 84 ERA.5 (Secretary's Decision, June 28, 1985).. 10 Patterson v. American Tobacco Co.,634 F.2d 744 (4th Cir.1980), vacated,456 U.S. 63 (1982) ... 24 Postal Service Marina Center, 271 NLRB 397 11  ;

(1984)....................................

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IN THE Enitch 9tates Gourt of Appeals FOR THE FOURTH CIRCUIT No. 87 3520 -

VERA M. ENGLISH, y,

Petitioner, DENN!s E. WHITFIELD, Deputy Secretary of Labor, United States Department of La'uor, Respondent, and GENERAL ELECTRIC COMPANY, Intervenor.

On Petition for Review of an Order of the Deputy Secretary of Labor United States Department of Labor BRIEF FOR INTERVENOR GENERAL ELECTRIC COMPANY STATEMENT OF THE CASE This is a proceeding by a single employee under Sec-tion 210 of the Energy Reorganization Act (" ERA")

(42 U.S.C. I 5851) and its implementing regulations (29 C.F.R. Part 24). In her August 24, 1984 complaint to ,

the Department of Labor (" DOL"), Petitioner English claime- that cn March 16, 1984 she was unlawfully removed from her job in the Chemet Laboratory (and ultimately laid off for lack of work) at General Elec-tric's ("GE's") facility in Wilmington, North Carolina

=

2 l because she complained to the Nuclear Regulatory Com-mission ("NRC") about GE's alleged lack of adherence to safety standards. Hearings were held on English's i claim before Administrative Law Judge Robert J. Bris-senden ("the ALJ"I from December 17 to December 19, 1984 and from March 19 to March 28, 1985. In a deci-sion and order dated August 1,1985, the ALJ recom-mended that the Secretary of Labor ("the Secretary")

find that GE had discriminated against English. In so '

doing, the ALJ rejected GE's contention that English's '

complaint was barred by the 30 day statute of limitations 3 in Section 210lb) of the ERA, 42 U.S.C. i 5851ib).

After remanding the case to allow English to present additional evidence, which her counsel failed to do, the Under Secretary of Labor reversed the ALJ on this point and dismissed the complaint.* English's present petition '

to this Court seeks review of that statute of limitations issue, as well as review of the Secretary's refusal to order a second remand of this case for additional testimony.

1 STATEMENT OF FACTS English's August 7,1987 brief to this Court embroiders a very nice picture, but it is one that bears little relation to the facts of this case. Accordingly, a restatement of the facts, based on undisputed evidence before the ALJ, is set forth below.

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General Electric Company's fuel manufacturing facil-ity in Wilmington, North Carolina is licensed by the Nuclear Regulatory Commission to process special nuclear materials, including uranium powder, in the course of fabricating fuel bundles to be used at nuclear reactor sites. Areas of the facility in which employees .

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  • During W esurse of these proceediass, the Secretary of Iabor rosased Manself and delegated his authority under Section 210 to j ths.Under Secretary of I4bor, Dennis E. Whit 6 eld. For esse of reference, this brief will refer to Under Secretary WhitSeld merely ,

as "the Secretary."

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3 work with uranium and thus are exposed to radiati safety hazards are designated " controlled areas."

Chemet Laboratory (short for Chemical Metallurgu Laboratory) is such a " controlled area" (J.A. 509; ALJ Decision (hereafter "ALJ D.") at 2-3 (J.A. 57 58)).

It was in this Lab that English worked from November 13, 1972 until she was removed from that area on March  !

16,1984, i The record reflects that English had made a number of ,

safety complaints to both the Company and the. NRC since 1982 without any repercussions on her employment )

( ALJ D, at 3 (J.A. 58) ; J.A. 327-33, 338, 41718). On i February 21,1984, English sent the NRC a list of alleged  !

GE safety violations in the Chemet Lab (Exh. E 10; J.A. 338 ). Although che gave these same written allega-tions to GE management on February 24,1984 (J.A.

338; see ALJ D. at 3-4 (J.A. 58 59)), GE management i did not learn that English had also submitted the allega-tions to the NRC until just before the NRC conducted an 1 investigation on March 26,1984 (J.A. 391-92, 438).

According to English's own testimony, the following events took place on March 9 11, 1984. On Friday night, j March 9, knowing that no supervisor would be present until Sunday night (J.A. 340), English found a radio-active conta;.. .s 7ill on a table in the Laboratory but, in violation of the Atomic Energy Act safety re-  ;

i quirements (ALJ D. at 11 -(J.A. 66); J.A. 487 91), she purposely and deliberately left the radioactive contamina-  !

tion in place in order to prove that GE management and j her co-workers were lax about safety matters (ALJ D.

at 4, 5,11 (J.A. 59-60, 66) ; J.A. 340, 415, 430-32, 508, 510-16). As a consequence, she, by her own admission, endangered her own health and safety as well as the health and safety of her fellow employees (J.A. 415, 515), and she did so deliberately: "I deliberately !:'ft it there because this was the only way I could get manage-ment to see what was going on." J.A. 513. On Sunday .

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4 night, March 11, she pointed out to her supervisor the radioactive contamination she had left in place since Fri-day night (J.A. 340 43, 408, 517-20) and advised him that she did not intend to clean it up (J.A. 342, 408-09, 520).

Company officials were understandably upset with Eng-lish's admitted deliberate violation of safety standards which created a potential safety hazard for others (J.A.

358, 377-79, 483).2 Accordingly, they arranged to meet ,

with her on March 16,1984 to discuss the matter.2 Dur-ing that meeting English admitted that she deliber-tely left a contaminated spill in the Laboratory (J.A. 21b-31, 385,889). As a consequence, she was advised that she was behg removed from the Chemet Lab and would no longer be permitted to work in a controlled area of the facility (J.A. 38183). She was also given a Dis-ciplinary Action notice (J.A. 470-71) which imposed a i 8GB '=A=s===t depoeiipd also thought that F,nglish had deliberately because spill, as well as deliberately leaving it, "esmeared" contamination on the table (J.A. originally told her espervisor th 246-47, 250 55, 265, 354, 482-83). Management considered these " direct actions to promote her [ safety) concerns" as " bordering on being subversive" (J.A. 483) since they evidenced a willingness to create safety hazards in order to prove that safety hazards existed. Although English's brief repeatedly cites this " subversive" statement to suggest that GE considered English's safety complaints to the NRC " subversive" (e.g., Pet. Br. at 14,15), it is clear from the context of the statement (J.A. 482 83) that it was English's deliberate safety violations, not her complaints to the NRC, that concerned management.

8 English's brief to this Court attempts to suggest that GE took this opportunity to harass English. Specifically, at page 15 of that brief, English states that "in effectuating this plan (to " humiliate and frighten" English), Mrs. English was ' awakened from [her)

  • sleep' during the night of Thursday. March 15 (Tr. 2298) by a telephone call from Mr. Sheely. . . ." In point of fact, English's 7:00 affidavit own p.m. makes clear that this phone call occurred around J.A. 501. In addition. Sheely did not " cloak () the matter in secrecy" (Pet. Br. at 16), but merely and reasonably told in English perron. Seehe'd prefer to discuss it with her the next morning J.A. 502.

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5 12 month probationary period and a five-day suspension, although the actual five days without pay, as opposed to the disciplinary status following a suspension, was waived by the same document. The notice (J.A. 470 711 also reiterated that:

In light of these recent incidents, you are being re-moved from your current assignment. Your un-precedented disregard of safety rules demands that you will no longer be allowed to work in a controlled area. Effective 03'16/S4, you will be temporarily -

assigned to other work.

During this temporary assignment, you will continue to be paid at your current hourly rate iH 221 and will normally work on Day Shift, Monday through Friday. The duration of this temporary assignment is indefinite.

Pursuant to established GE procedures, English appealed these actions on April 13,1984 (J.A. 486).

English's appeal was heard by the General Manager of the Wilmington facility on May 1,1984. In a written, final decision rendered on May 15,1984 tJ.A. 484 85),

the General Manager concurred in the discipline imposed on English, but reduced her probationary period to six months. He also concurred that English's deliberate safety violations required that she be removed from all i controlled areas, and informed her that she would be con- >

I tinued in the temporary assignment for 90 days to give her an opportunity to bid on a permanent job in a non-controlled area:

Based on the foregoing, you will not be allowed to return to work in the controlled access areas of our

  • plant site, or to any position that would require your involvement with, or access to, nuclear material. . . .

Your current placement in a temporary assignment will be continued for a period of up to ninety (90) days from May 1,1984 at the same pay rate as the l

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job that you left in the laboratory. . . . If you have not enousedyreement I d amamant by July 80, 1984, you wHi be eonsidered as involuntarily placed on lack of suhsble work (i.e., laid off] as defined by our ,

personnel practices.

English did not find a suitable permanent position, so she worked her last day on July 27, 1984 and was laid off from the active payroll on July 30, 1984. At the time of the hearing before the ALJ in this case, she remained  ;

in layoff status, with income extension payments totaling ,  !

$5,437.20, comprehensive medical coverage and recall l

rights (J.A. 494 99). She filed her complaint with the Department of Labor under Section 210(a) of the ERA on August 24, 1984 and amended that complaint on August 27,1984 ( ALJ D. at 1 (J.A. 56)).

l THE DECISIONS BELOW Despite the foregoing facts, the ALJ found that GE had discriminated against English by, in the ALJ's words, " banishing" her from the Chemet Lab and " dis-charg[ing]" her from employment.' ALJ D. at 13 (J.A.

68). The ALJ reasoned that English's deliberate safety violations could not be the "real" reason for GE's deci-  !

sion regarding English because there was no evidence in the record showing that other GE employees were simi-

  • The AIJ insisted on calling English's termination a " dis-charge," even though the severance of Eng!!sh's active employment on July 30,1984 was actually a layo# occasioned by her failure to bid on and obtain another job prior to t'ae expiration of her tem-porary,90-day job. However, whether her termination is called a

" discharge" or "layoR" is not really dispositive of the issues ,

herein. As recognized by the Secretary, the pertinent question is whether English's ultimate termination was a separate. Independ-ent discriminatory decision that was made within the limitations period, or whether it was merely the delayed result of GE's May 15 final decision to remove English from her job in a controlled ares, place her in the 90-day temporary job in the warehouse, and lay her of on July 30.

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larly disciplined for fa!!!ng to' follow safety rules.' With -

respect to the statute of limitations issue, the ALJ ruled that English's complaint was. timely filed because English

' " alleged in her complaint continuing acts of _discrimina-

- tion by GE . . . from December 15, 1983,- culminating in her transfer out of the Chemet Lab on March 15,1984, and her discharge on July 30, 198-4." ALJ D. at 12 (J.A.

- 67).* Thus, he concluded that "Mrs. English has estab-

- lished a continuing violation" and, as a consequence,-did not have to file' her complaint prior' to her termination.

ALJ D. at 12 (J.A. 67).

The Secretary, who seemed to question whether there had, in fact, been any discrimination against English' s In so ruling, the AU failed to recognize that the actual dis-cipline imposed on English (suspension and probation) was no more stringent than that imposed on other safety violators.. See AU D. at 10 n. 6 (J.A. 65). More impor+antly. the AU failed to appreciate the distinction between an employee who may carelessly violate safety standards and the vigilante employee who makes a .

conscious and deliberate decision to create a safety hazard or allow one to exist allegedly in order to prove that his or her employer is lax about safety matters. See J.A. 358, 375-76 where English's supervisors testined that their primary concern was that an em-ployee who would deliberately leave contamination for an extended period to " test" or discredit GE's safety procedures would likely take even more drastic measures in the future such as "taking uranium out of the operation deliberately to discredit the ongoing operation." Indeed, as GE argued to the Secretary. Section 210(g) of the ERA itself recognizes this distinction between careless and deliberate violators by removing all Section 210 protection for an employee "who deliberately causes a violation of any requirement of . . the Atomic Energy Act." 42 U.S.C. 6 5851(g). The Secre-tary never reached these issues because he found that English's complaint was time-barred.

e English had also alleged that GE discriminatorily harassed and surveilled her after her removal from the Chemet Lab. However, the evidence did not establish those allegations and the AU made no such findings. See AU D. at 13 (J.A. 68),

t In discussing English's complaint, the Secretary stated that -i

"[t]he only violation, if any, occurred when iEnglish] was put on j' temporary assignment on May 15, 1984 . . . " Final Decision and Order (hereafter " SOL D.") at 8 (J.A.145) (emphasis added).

8 found it unnecessary to decide "the merits" of the case or the legal issue raised by GE's 210(g) argument-(see

n. 5, supra) . Instead, the Secretary held that English's complaint was barred by Section 210(b) of the ERA, which requires that complaints alleging violations of Sec-tion 210 be filed within 30 days of the alleged discrimi-natory employment action. In so holding, the Secretary ruled that the Supreme Court's Ricks and Chardon doc-trine ' required dismissal of English's complaint because there was one, and only one, GE action affecting Eng- ,

lish's employment tenure, and that action occurred on May 15,1984 when GE made and communicated to Eng-lish its final decision to remove her from controlled areas and place her on a 90-day temporary assignment.

If a suitable position did not become available, it was clear that Mrs. English would be discharged. As in Ricks, the discharge here was the " delayed, but inevitable, consequence" of the 90 day temporary assignment.

SOL D. at 6 (J.A.143), citing Ricks, supm, 449 U.S. at 257-58. Thus, since English's complaint was filed on August 24,1984-over 100 days after GE's actions-it was barred by the 30-day statute of limitations.

The Secretary also specifically rejected'ths ALJ's con-clusion that Ricks and Chardon were not applicable be-cause English had etablished a " continuing violation."

Although recognizing that English "did allege and at-tempt to prove" additional acts of discrimination (sur-veillance and harassment) within the statutory period (SOL D. at 7 (J.A.144) (emphasis added)), the Secre-tary rejected any notion that those acts could establish

  • a continuing violation regarding English's termination even if they had been proven. The Secretary reasoned s Delaware State College v. Ricke,449 U.S. 250 (1980); Chardon
v. Fernandes,454 U.S. 6 (1981).

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9 that in o'rder to establish a continuing violation regard- l ing her termination, English would have had to prove that she was treated differently from other employees placed on temporary assignment and subject to being placed on " lack of suitable work" status if permanent assignments could not be found. SOL D. at 8 (J.A.1451 i This she did not do. Id. Accordingly, even if English {

had proven her additional allegations regarding surveil- I lance, etc., such violations would not have resurrected her  !

termination claim.

As we show below, the Secretary of Labor was abso-lutely right in holding that English's Section 210 com-plaint was time-barred, and this Court should affirm that decision and uphold the dismissal of English's complaint.

ARGUMENT L THE SECRETARY CORRECTLY HELD THAT ENG-LISH'S COMPLAINT IS BARRED BY THE STAT.

UTE OF LIMITATIONS IN SECTION 210 -

In her brief to this Court, English attacks the Secre-tary's timeliness decision on basically two fronts.' First,

  • English also argues in her brief, as she did before the AIJ and the Secretary, that GE waived its statute of limitations de-fense by not asserting it in a timely answer to her complaint. Pet.

Br. at 47-50. She contends that because the DOL regulations  !

governing Section 210 whistleblower actions (29 C.F.R. Part 24)-

are silent with respect to requiring an answer she should have been granted a default judgment when GE failed to file an answer within the 30-day period for answering a complaint established in 29 C.F.R. Part 18, the general rules of practice and procedure be-fore DOUs administrative law judges.

This argument is wholly without merit Initially, although Eng-lish claims that her waiver argument " raises questions of statutory construction" (Pet. Br. at 47-48), her argument, in fact, involves only the Secretary's interpretation of his own procedural regula-tions. As such, the AIJ's and Secretary's determination that the ~l regulations governing Section 210 do not require an answer within 1 30 days is entitled to " controlling weight" unless it is plainly er. 'l roneous or completely without reason. E.g., United States v. ]

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she argues that the Secretary read the Chards / Ricks-doctrine "overbroadly" and that there are controlling dis-tinctions in the instant case which the Secretary ignored.

l Second, English argues that, aside from the Chardm/ -

Ricks issue, GE's alleged additional violations during the limitations period establish a continuing violation which permits her to challenge her termine*.lon. Neither of these arguments has merit."

l Lariono#, 431 U.S. 864. 872 (1977); Bowlee v. Seminole Rock & ,

Sand Co., 325 U.S. 410. 414 (1945).

Moreover, it is clear that the Secretary's interpretation of those i regulations is not only reasonable, but correct. Unlike 29 C.F.R.

Part 18, where the complaint immediately activates the adjudica-tive machinery of the Department of I.4bor, a complaint under the ,

whistleblower regulations in 29 C.F.R. Part 24 activates the in- l vestigative and prosecutorial functions of the Agency. Upon the niing of a complaint under Part 24, DOL investigates the charges ,

contained in the complaint and, within 80 days, issues what will 1 constitute the anal order of the Secretary unless a hearing is i requested within Ave days. 29 C.F.R. { 24.4. Thus, if Parts 18 and '

24 were meant to apply contemporaneously, the andings of the investigation and the respondent's answer would each come due on the same day. Indeed, an answer would be required before it was known whether there would be an adjudication. This illegical out-come clearly could not be the result intended by the DOL regula-tions. Instead, a respondent's request for a hearing, which is required within nye days of the nndings of the investigation has been found to be the " equivalent of an answer." See Nolder v. -

Raymond Kaiser Engineers, Inc., 84 ERA-5, 8. Decision of the Secretary (June 28,1985)-the very case that English incorrectly cites for the proposition that DOL regulations require that an answer be aled within 30 days of a Section 210 complaint.

M Similarly baseless is English's suggestion that this Court may decide the merits of this case and romand to the Secretary only for purposes of entering a remedial order. See Pet. Br. at 8-9, 50.

Even if the Court could conclude that English's complaint was timely, the proper course would be for the Court to romand the case to the Secretary for consideration on the merits in light of .

that Anding. Eig., NLR8 v. Pipelitters, 429 U.S. 507, 522 n. 9 (1977). See also First National Naistenance Corp. v. NLRB,452 U.S. 666,672 n. 6 (1981). Moreover, the Court could not even rule Ent;lish's complaint timely under the second theory advanced in English's brief. Although English argues that a continuing viola- ,

tion can be predicated on GE's alleged discriminatory acts of i surveillance and harassment during the limitations period, neither i

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11 A. The Supreme Court's Chardon/ Ricks Rule Re-  !

quires Dismissal In This Case The Secretar'/ was clearly correct in concluding that j the Supreme Court's Chardon/ Ricks doctrine requires the 1 dismissal of English's complaint. Those cases and their j progeny establish that a statute of limitations in an em .

ployment discrimination statute begins to run on the date the complainant receives notice of the operative employ-ment decision that is alleged to be discriminatory rather than on the subsequent date that the decision manifests itself in an employee termination or separation from ac- ,

tive employment. Chardon v. Fernandez, 454 U.S. 6, -

7-8 (1981) ("Chardon") (action under 42 U.S.C.

i 1983); Delaware State College v. Ricks, 449 U.S. 250, j 257 59 (1980) (" Ricks") (claims under Title VII, 42 l U.S.C. Il 2000e et seq., and 42 U.S.C. I 1981); Price v.

Litton Business Systems, Inc., 694 F.2d 963, 965 (4th Cir.1982) (action under Age Discrimination in Employ-ment Act ("ADEA"), 29 U.S.C. ll 621-634); Heiar v.

Crawford County, Wis., 746 F.2d 1190,1194 (7th Cir. j 1984), cert. denied, 472 U.S.1027 (1985) (claim under i ADEA): Vuksta v. Bethlehem Steel Corp., 540 F. Supp.

1276 (E.D. Pa.1982), af'd, 707 F.2d 1405 (3d Cir.), l l cert, denied, 464 U.S. 835 (1983) (claims under Title VII, ADEA, and 42 U.S.C. Il 1983,1985); Lippert v.

General Electric Co., 27 FEP 1427,1429 30 (W.D. Ky.

1982) (claim under ADEA); Postal Service Marina Cen-ter, 271 NLRB 397, 399 - (1984) (discrimination com-plaint under National Labor Relations Act ("NLRA"),

29 U.S.C. Il 151 et seq.).

the AIJ nor the Secretary found that those alleged acts occurred,

  • much less.that they occurred and were discriminatory. Thus, even j if the Court rejected the Secretary's rationale that proof of those  ;

allegations would not render English's " discharge" claim timely, the Court would have to romand the case to the Secretary for addi- i tior_al factual and legal findings regarding those allegations before ]

it could be concluded that such " violations" support a " continuing violation."

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12 Both Chardon and Ricks involved alleged racial dis-crimination against educators who were denied tenure and given one-year non-renewable contracts. ~~And in both Chardon and Ricks, the Supreme Court rejected the plain-tiffs' contention that the statute of limitations should begin to run on the date their employment ceased rather than on the date they were notified of these actions.

Thus, in both cases the Court held that for purposes of the commencement of the limitations period, "[t]he proper focus is upon the time of the discriminatory acts, ,

not upon the time at which the consequences of the acts  ;

became most painful." 449 U.S. at 258; 454 U.S. at 8.

Since the termination of employment in Ricks was merely a delayed " consequence of the denial of tenure," the effee-tive commencement date of the limitations period was "the time the tenure decision was made and communi-cated to Ricks." 449 U.S. at 258. "That is so even though one of the efects of the denial of-tenure-the eventual loss of a teaching position-did not occur until later." ,

l Id. (emphasis in original).

The Chardon Court rejected the contention that plain-tiffs could avoid the impact of Ricks by alleging that the termination rather than the denial of tenure constituted the alleged discriminatory practice. 454 U.S. at 7 8.

The proper approach, the Court emphasized, is to look beyond the plaintiffs' conclusionary allegations and deter-mine the actual date of the " operative decision" affecting .

plaintiffs' ultimate employment status. 454 U.S. at 8.

Since the termination was not an IIIegal act in itself but a direct consequence of the earlier tenure decision, the Court concluded that " mere continuity of employment" j during the period between the operative decision and sub-sequent termination was "insuscient to prolong the life" of the discrimination claim. Id. Accordingly, the Court held that the limitations period commenced when the tenure decision was made and communicated to plaintiffs. ,

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13 l .. The Chardon/ Ricks rule is dispositive of this case, and  ;

its application here requires dismissal of the complaint.

Even assuming arguendo that English's removal from the Chemet Lab and other controlled areas was discrimina-tory, this action was final and unequivocal and English was notified of this fact on May 15, 1984. She was also informed on that date that her current temporary ware-house assignment would be terminated and that she would be placed on layoE if she failed to secure another position l by July 30, 1984. GE made no further employment deci-sions affecting English after May 15--her subsequent layoff (which she calls a " discharge") was nothing more than a direct, albeit delayed, consequence of GE's May 15 determination. Indeed, English's counsel acknowledged that her layoff was a direct consequence of her removal from the Chemet Lab rather than an independent act of discrimination:

But for her transfer out of the lab, she would not have been subjected to the " risk" of losing her job for lack of work. .Her socalled " involuntary layoff for lack of work" on July 27 was, therefore, a con-sequence of the transfer, Brief for Plaintiff to ALJ, p. 30. Accordingly, English's complaint, which was not filed until August 24,1984, or 101 days following the final removal and layoff decision, was time-barred by the 30 day limitations provision of Section 210(bh Any conceivable doubt that the Chardon/ Ricks prin-ciple governs the disposition of this case is dispelled by this Court's decision in Price v. Litton Business Systems, Inc., supra, 694 F.2d 963. There the complainant was notified on February 5 that he would be removed from his position as branch manager effective February S.

Thereafter, he was retained temporarily in a sales posi-tion and then placed on leave of absence until he was terminated on May 30. Applying the rule of Chardon/ 1 Ricks, the Court held that " Price's claim did not arise, i

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14 as he suggests, on May 30 when he finally left the com-

' pany; rather, the [ limitations) period began to run on 4 i

February 5 when he was told he would be relieved of his

_ position. . . ." 694 F.2d at 965. ]

The Court reached this determination notwithstanding -)

the fact that on February 5, and throughout the period j ending May 30, Price was told that Litton " wanted him .l j

to stay with the company," that "other opportunities

[with Litton] would be investigated for him" and "that l Litton 'was making every effort to find another oppor- . (

tunity in the (company) which would be acceptable to  !

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[him).'" Id. at 964-65. Indeed, prior to May 30 Litton '

advised Price of several available job opportunities, al-though in lesser positions than that of branch manager.

Id. at 965.

This Court's Price -decision plainly requires dismissal of English's complaint. That English may not have known for certain that she would be laid off until her last day of work at the end of July does not present a different circumstance from that confronting Price, who did _not know until May-30 whether Litton would find him an acceptable position prior to termination. How-ever, as in Price, English's " hope for . . . a continuing employment relationship" after her removal from the Chemet Lab is insufficient to postpone the running of the statute of 11mitations. Id. at 965; see also Lippert v.

General Electric Co., aupra, 27 FEP at 1429 30." Just as Price knew that his removal as branch manager could result in termination if another suitable position was not found for him, so too' English knew on May 15 that her removal from the Chemet Lab was final and would result 81In Lippert, the court held that the statute of Ilmitations under ADEA began to run when GE made and communicated its decision to place the plaintif on lack of work statue--the same decision that GE made and communicated to English on May 15,1984. The court reached that conclusion despite the fact that in Lippert, as here, the plaintif might ultimately have been retained if he had found other suitable work prior to the actus!!ayof date.

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(p 15-in layoff if she did not find another job in a non controlled area prior to July' 30.58 In any event, the ' May 15 re-

. moval decision, which eventually resulted in her non-employment, triggered the statute of limitations. Accord-i ingly, English's failure to file her complaint by June 14, 1984, and.her ultimate filing over 70' days thereafter on August 24, 1984, precludes a determination. of violation against GE.

English obviously recognizes the impact of the Cherden/ ,

L Ricks line of cases on her ' claims because she has at-tempted to. distinguish those cases on a -number. of grounds. Her asserted distinctions'are baseless, however.

First, on a broad scale, English' attempts 'to resurrect the ALJ's discredited theory that the Chardon/ Ricks rule - -

. does not apply to whistleblower case.S.--i.e., that a com - I plaint filed within 30 days of a discriminatory discharge is "per se timely" because~ discharge is " independently illegal" under Section 210. -See Pet. Br. at' 33 37, As ~

recognized by the Secretary (SOL D. at 5-6 .(J.A.142-43)), a discharge is not unlawful per se under Section 210 but is merely p ohibited (like any other adverse ac-tion) where it is based upon an impermissible motivation.

In this respect it is no different from the multitude of other federal employment discrimination statutes, includ-ing Title VII and ADEA, under which courts routinely hold that the Chardon/ Ricks rule is fully applicable. See 12 If GE had placed English on layoff immediately after'its deci.

sion of May 15, 1984, as it could have done. there is no question but that her August 24,1984, complaint would have been untimely.

Instead, GE extended her temporary assignment in order to maxi.

mise her chances of nading an alternative permanent position. This

" mere continuity of employment" was insufHelent to extend the ,

limitations period. Chardon,464 U.S. at 8; Ricke 449 U.S. at 257; 1 Lippert v. General Electric Co., supra, 27 FEP at 1480.~ Moreover, GE should not be penall ed for conferring a beneat on English by -

providing her additional time in which to salvage her employment.

Price, 694 F.2d at 965; Krsysewski v. Metropolitan Government, Etc.,584 F.2d 802,805 (6th Cir.1978); Lippert v. General Electric Co., supra,27 FEP at 1430.

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16 cases cited'supre. Thus, contrary to English's contention, the Secretary correctly concluded that the Chardon/ Ricks rule applies to Section 210(b) in precisely the same man-ner that it is applied to other statutes of limitations.

Second, English attempts to portray GE's May 15 deci-sion as' equivocal and conditional. She does this primarily by lifting facts, words or quotes out of context and at-tempting to portray those items as indicative of equivoca- i tion or uncertainty in GE's decision. See Pet Br. at j 26 28." That, however, is not the case. As recognized by )y 88 For example, English emphasizes nrst that the May 15 notice stated that her assignment in the warehouse would be " temporary,"

thus attempting to suggest that English could reasonably believe

. that she might later be returned to her former job in the Chemet Lab. See Pet. Br. at 14, 19, 27, It is clear, however, that all par-ties understood the temporary nature of Eng!!ah's warehouse job to mean she would be laid off on July 30 unless she bid on and secured a position outside the controlled areas prior to that date.

And given this clearly understood anal decision, it is irrelevant, and in any event not inconsistent, that GE's earlier March 15,1984 notice to English indicated that her warehouse job would be of '

"indennite" duration. See Pet. Br. at 27.

Second, English suggests that GE's expression of hope that she would and a suitable position before July 30 was evidence of un- i certainty or equivocation in GE's decision. That, too, is not the case. The fact that English might have avoided one of the ##ects of GE's May 15 decision (i.e., layoff) by securing other employment does nothing to make that decision equivocal or uncertain. See n.14, infra.

Third. Englich contends that placing her on probation was in-consistent with any intent to terminate her on July 30 and hence -

was evidence of the equivocal and conditional nature of GE's deci.

sion. This argument also is unavalling. Both GE and English recognized that English could have remained in active, but still probationary, status had she secured another position prior to the time her temporary job expired. Thus, imposition of a probationary l period was in no way inconsistent with GE's unequivocal, ex.

  • 1 pressed decision to lay her off on July 30 unless she had secured a permanent position by then.

Finally, English rolles on her aHidavit assertion that on May 1, 1984, she was assured by former plant manager Eugene 14es that "No Vera, we're not going to are you." Pet. Br. at 28. However, GE did not intend to, and did not in fact, ever discharge Vern English. Rather, it removed her from controlled areas and as-

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a 17 the Secretary of Labor, GE made only one dechien af-fecting - English's tenure of employment-the - May 15 decision to remove her from the Chemet Lab and place '

her on a 90 day temporary. assignment-and. there was nothing tentative, uncertain or equivocal about that deci-sion. Thus, that is when "[t]he only violation, .if any," i occurred (SOL. D at 8 (J.A.1451), and it is simply of no consequence, under the Chardon/ Ricks doctrine, that some of the efects of that decision might. ultimately be- , i ameliorated by subsequent events." '

Finally, English argues that this Court's Price decision is not applicable to the instant case because the only dis-criminatory act alleged in Price was the plaintiff's re-moval as branch manager, which 'later resulted in his termination. See Pet. Br. at 32. By' contrast, English asserts, she has also alleged that she was discriminatorily terminated. - There are two things wrong with this argu.

ment. First, as specifically found by the Secretary, Eng- '

lish may have alleged discriminatory termination but sne adduced no proof to support s' finding that the termina-tion itself was a discriminatory act, rather than merely ,

the delayed effect of. GE's actions of May 15. Second,  !

this argument is nothing more than English's attempt to overcome Price in precisely the same way the Chardon plaintiff tried to overcome Ricks-i.e., by asserting that signed her to a job that all knew would be only of limited duration.

More importantly, whatever one wishes to call GE's actions with respect to English, these actions were taken completely, unequiv.

ocally, and unconditionally on May 15,1984.

H In Ricks itself, for example, the ?vpreme Court emphasized that even the possibility of reversal of the allegedly discriminatory ,

decision through a grievance procedure "does not suggest that the earlier decision was in any respect tentative." 449 U.S. at 261.

The same rationale applies to the possibility that some of the ad- 4 verse erects of the allegedly discriminatory act may somehow be )

lessened. See Price, supra: Lippert v. General Electrie, supra i (where an employee was allegedly laid of in violation of the ADEA, the possibility of recall does not afect the running of the statute of limitations).

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18 she is complaining about a discriminatory " termination" rather than about an earlier decision that resulted in that termination. The Supreme Court rejected that "distine-tion" per curism,28 and this Court should do likewise.

In sum, the Chardon/ Ricks / Price doctrine is plainly applicable in this case, and its application admits of only one conclusion: English's complaint under Section 210 is barred by the statute of limitations.

B. English Has Not Established A Continuing Viola. '

tion l English argues that even if the Chardon/ Ricks doc-trine would otherwise apply to establish May 15,1984 as the date of the " discriminatory act" regarding her em-ployment termination, she may nevertheless challenge that termination because she has established a "continu-l ing violation" that extends into the 30-day period preced- '

ing the date she filed her complaint. She premises this i argument on a contention that her allegations of post-transfer surveillance and harassment create a continuing violation which permits her to challenge her termination, and/or on the concomitant contention that a discrimina-tory transfer or demotion is per se a continuing violation.

Neither of these contentions is viable.

1. The Additional Alleged Discriminatory Acts Do Not Establish a Continuing Violation In support of her first contention, English asserts that the Secretary's continuing violation analysis was funda-mentally flawed by his characterization of the alleged violation herein as the May 15 decision to remove English 38 In Chardon, the Court stated: i The Court ot Appeals . . . distinguished Ricks on the ground l that Ricks had alleged that denial of tenure was the " unlawful l

employment practice." whereas here respondents allege that termination of their employment . . . was the " unlawful em-ployment practice." 'We think Ricks is indistinguishable.

Chardon,454 U.S. at 7-8 (emphasis in original).

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. from the Chemet Lab and place her in the 90-day tem-parary assignment. Pet. Br, at 37. According to English,.

[tlhat narrow characterization of the alleged vio!a-tion is belied by the (original and amended) com-plaints, which enumerated such acts as "(clompany.

surveillance, harassment, entrapment, ridicule, ' in-timidation and discrimination . . not only up ' to the time of Mrs. English's transfer out of the Lab on March 15th, but continuing to.- and even persist-ing after, , , , the date of her discharge.- .

Id. And this " foregoing proof" (id.), English asserts, established a continuing violation by showing a " series of related acts, one or more of which falls within the lim-itations period." Id. at 38, citing Valentino v. United States Postal Service, 674 F.2d 56, 65 (D.C. Cir.1982),

The major problem with this argument, of course, is that none of these allegations of surveillance, harassment, etc., has ever been proven," and the ALJ properly re-fused to find any such violations ( ALJ D. at 13 (J.A.

68)). Accordingly, this Court cannot predicate a " con-tinuing violation" on those allegations. See n.10, eupra.

Equally important, however, the Secretary of Labor was correct in concluding that English's additional alle-gations, even if they had been proven, would not establish a continuing violation that would revive her termination claim. In this regard, English seems to argue that any violation during the limitations period will automatically resurrect prior time-barred claims so long as an em-ployer's actions emanate from the same alleged discrimi-is English seems to believe that more allegations are suscient to affect the running of the statute of limitations. This misconcep-tion apparently derives from the fact that many statute of limita-tions cases are decided on motions to dismiss or for summary judgment, and hence the decisions often speak in terms of the dis-criminatory acte that have been " alleged" by the plaintiffs. After trial on the merits, however, the plaintiff's allegations become irrelevant since, at that stage. the evidence must establish that a discriminatory act has occurred.

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1 20 natory animus. See Pet. Br. at 33, 38." However, con-trary to English's apparent belief, an allegation of a

" continuing violation" does not constitute "a talismanic or shibboleth term automatically relieving a claimant of any obligation to comply with the statutory time require-ment for the filing of a charge." See Hill v. AT&T Tech-nologies, Inc., 731 F.2d 175,179-80 (4th Cir.1984)."

Rather, the stringent standards for establishing a con-tinuing violation in this Circuit were set forth in Taylor

v. Home Insurance Co., 777 F.2d 849, 856 (4th Cir. .

1985), cert. denied, U.S. , 90 L. Ed. 2d 695 (1986):

A claimant . . . is entitled to relief from an unlaw-ful practice, although he did not file a charge within (the limitations period applicable to) its first occur-rence, if . . . the unlawful practice has continued

" For example. In an imaginative use of a partial quotation, English makes the following representation about this Court's

- Price decision:

If Price had alleged, or had the record showed "any seperste acts of discrimination against him between February 6 and his departure from the Company on May 80" . . . , the claim that his removal as branch manager was barred by limitations would have been rejected.

Pet. Br. at 88 (emphasis in brief). That is plainly not what this Court held in Pries. Although the Court found the absence of such allegations sufBelent to end its inquiry in Pries, it does not follow that the Court would have found that any separate acts of dis-crimination would revive Price's time. barred removal claim. In other words, discriminatory acts within the limitations period are necessary, but not sufBelent to revive time-barred claims.

ts Nor can the allegation of a " hostile work environment" be deemed to have any such taHa=amic signiassace. See Tot. Br.

at 40-41. citing Meriter Savinas Bank v. Finson, U.S. 91 L. Ed. 2d 49 (1944). In Meriter, the Supreme Court merely held ,

that sexual harassment in the workplace ran violate Title VII by creating a "bostile work environment" even though the harassment has not resulted in economic injury to the plaintif. Nothing in that decision either relieves a plaintif from establishing dis-eliminatory acts within the limitations period or permits a plain-tiff to recover for otherwise time-barred discriminatory acts that have resulted in economic or other injury.

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into the limitation period, the claimant has Sled a j charge alleging the unlawful practice within (the i limitations period applicable to) its last occurrence, and the proof sustains the charge.

'Under these standards a plaintiff cannot obtain relief for an otherwise time barred claim unless the plaintiff I can show that: (1) an act identical or at least substan-tially similar to the prior act occurred within the limita- f tions period: (21 each of the acts was the rest.4 of a discriminatory policy or practice which- continued into the limitations period: I3i a timely charge was Sled -

a!!eging the most recent act; and i4 6 the set which was the subject of the timely charge is supported by adequate evidence. These criteria were met in Taylor because the evidence established that: (1) the plaintiff's employer had an ongoing, systematic, and repeatedly applied policy of demoting older workers and replacing them . with younger workers which continued into the limitations period: (2) the plaintiff himself had been discrimina-torily demoted during the limitations period pursuant to this policy; and (3) the claim the plaintiff sought to revive involved an earlier demotion that was the same kind of act challenged in his admittedly timely claim and that was made pursuant to the same systematic, dis-criminatory demotion program.-

By contrast, however, English cannot meet any of this Court's requirements for establishing such a continuing violation. First, English cannot meet the third and fourth Taylor criteria listed above because, as previously shown, she has not established any violations at all dur-ing the limitations period.

Second,- the alleged discriminatory acts that English says occurred during the limitations period are com-pletely dissimilar from the alleged violations that English seeks to resurrect.' Even assuming for the sake of argu-ment that English, as she alleges, was subjected to sur-vaillance and was harassed by being sent home for safety i

22 shoes, those acts bear no similarity to, and obviously had no bearing upen, English's removal from the Chemet Lab and ultimate layoff. Thus, the acts alleged here are in stark contrast to the identical acts involved in Taylor, and are even more dissimilar than those'in the case that Taylor distinguished on the " similarity" issue (Latuson

v. Burlington Industries, Inc., 683 F.2d 862 (4th Cir.),

cert. denied,459 U.S. 944 (1982)):

Lateson held that an illegal layoff does not encompass '

an allegation of illegal failure to rehire. Unlike Tay-lor's claims of two similar acts, the claims in Lateson were dissimilar.

Taylor,777 F.2d at 857."

Moreover, there are sound reasons for strict adherence to the Taylor test's similarity requirement. That require-ment serves the purpose of ensuring that the continuing violation doctrine remains the exception, rather than the rule, in matters involving statutes of limitations. Where -

the acts complained of are dissimilar, the first act cannot "The cases upon which English relies also satisfy this similarity requirement and are thus distinguishable from this case. The wage discrimination cases in particular provide ths, classic exemple of a

. continuing violation in which the identical discriminatory act is continually repeated. For example, Basemore v. Friday, 478 U.S.

,92 L. Ed. 2d 315 (1986), simply reiterates that the mere fact that an errricyer instituted a discriminatory wage policy prior to the passau of the controlling legislation does not justify its core tinuing wage discrimination. Jenkins v. Home Insurance Co., 635 F.2d 310 (4th Cir.198o), another wage discrimination case, is to the same eNect. Finally, in Shehadsk v. CAssapeake & Potomae Tels. Co., 595 F.2d 711_(D.C. Cir.1978), the court found that the plaintiff's charges alleging discrimination in providing negative employment references were timely, where the plaintiff alleged .

numerous similar instances of such references extending into the limitations period. 595 F.2d at 724 25. Importantly, however, the court did not permit this alleged " continuing violation" to revive the plaintiff's claims regarding dissimilar acto-l.e., her discharge and the employer's refusal to rehire her-which the plaintiff said resulted from the very same discriminatory animus. See Sir 5 F.2d  !

at 714,718.

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23 be resurrected merely by showing some other discrimina-tory act within the limitations period. But in the egre-l i gious case where the defendant has repeatedly committed the same discriminatory act against the plaintiff pursu-ant to the same discriminatory policy, prior identical applications of that policy will not necessarily be immune from review. Here, of course, the acts alleged to have occurred within the limitations period were thr.: English was sent home for safety shoes or was watched. English might have some claim for relief related to those events, if proven, but they cer:ainly do not revive her time-barred claim that she was improperly removed from the Chemet Lab and subjected to layoff. Indeed, allowing the revival of English's termination claim based on these .

alleged, unproven and dissimilar acts would permit ex-actly the result the Taylor test is designed to prevent:

the bootstrapping of the otherwise time barred substance of the complaint back to life through the use of allega-tions of minor and dissimilar acts about which the plain-tiff is essentially unconcerned.

Third, Eng;ish has not established the kind of dis- '

criminatory program or policy necessary to support a finding of a continuing violation. In this regard, al-though hardly a model of clarity, English seems to be contending that GE had a " policy" of discriminating against her.2' This hardly represents the kind of policy or practice that this Court has heretofore recognized as 28 We can't *. ell precisely what the " policy" is that English pur-ports to be challenging. At times she seems to suggest that the

" policy" was GE's reliance on pretextual reasons for causing her layoff. See Pet. Br. at 39 (GE's actions against English "were in furtherance of its illegal policy, a policy which . 'was a pretext for getting rid of an employee who would not stop reporting viola-tions to the NRC/"). At other times she seems to suggest that any group of multiple acts motivated by the same improper animus automatically constitutes a " policy." Pet. Br. at 38-39.

And at still other times (Pet. Br. at 44), she seems to be stating that the " policy" "was to 'get rid of' Mrs. English."

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.24 a predicate for a continuing violation. Indeed, outside of I the wage discrimination context, no case has been found which permitted an individual plaintid to proceed on a continuing violation theory without evidence of some broad based policy involving class discrimination. Cer-tainly the cases relied upon by English, other than those involving wage discrimmation, involved plaintids who had shown that their employers had systematic policies or practices of discrimination'against a class of workers.

See Taylor v. Home /naurance Co., supra, 777 F.2d 849 (endemic age discrimination); Patterson v. American Tobacco Co., 634 F.2d 744 (4th Cir.1980), vacated on other grounds,456 U.S. 63 (1982) (systematic policy of racial discrimination in promotion).

Finally, even if English could convince this Court to recognize that a " policy" of discrimination against a sin-gle individual can form the predicate for a continuing violation determination, that does not mean that her claims regarding GE's May 15 actions should be revived.

Indeed, the D.C. Circuit case upon -which English pri-marily relies (Shehadeh v., Chesapeake & Potomac Tele.

Co., supra) compels this conclusion. There the plaintid alleged that she had been discriminatorily terminated, refused reemployment, and given bad employment refer-ences Although the court was willing to recognize a con-tinuing violation in the form of a discriminatory refer-encing policy directed at plaintis, it refused to hold that that continuing violation revived her discharge and refusal to hire claims. 595 F.2d at 718-19. Thus, this case teaches that even if English had established a GE

" policy" of harassment and surveillance against her dur-ing the limitations period (which she did not), such a showing would not revive her claims regarding her ter-mination which arose outside the period.

In sum, this Court should reject English's argument that additional alleged discriminatory acts within the i

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4 25 limitations period create a continuing violation which revives her claims regarding GE's May 15 actions.

Ur. der English's theory, virtually any discrimination:

claim by an individual could be turned into a " continuing violation" merely by alleging more than one act of dis-crimination, asserting that those acts establish a " policy" of discrimination against that individual, and then using that ." policy" to resurrect claims regarding all prior alle-gedly discriminatory acts no matter when they occurred.

As a consequence, " continuing violstions" would.become the rule rather than the exception, and statutes of limita-tions would inevitably be sapped of all their vitality. This Court should foreclose that possibility by rejecting Eng-lish's novel and limitless theory of continuing violations.

2. A Demotion tinuing or Transfer is Not Per Se a Con-Violation English also contends that discriminatory demotions and transfers are per se continuing violations because an employer's. illegal policy. is applied to and felt by demoted and transferred employees every day they work' in' the lesser position. See ' Pet. Br. at 42. Accordingly, she argues, her May 15 allegedly discriminatory transfer (with its consequent layoff) extended into the Section 210 limitations period and was properly the subject of her belated complaint. This argument, too, cannot stand in light of this Court decisions.28 One need look no further than Taylor v. Home insur-ance Co., supra, to conclude that this Court does not con-21It is also worth noting that the Fifth Circuit case upon which English primarily re11es (Class v. Petro Ter Chemical Corp., 757 F.2d 1554 (1985)) does not support her per se argument. As is plain from the passage English quotes (see Pet. Br at 42), the Fifth Circuit stated that a system of unlawful promotions or transfers might create a continuing violation: it did not state or imply that i any individual promotion or transfer decision is per se a continuing violation.

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26 sider demotions, transfers, and similar employment ac-tions to be per se continuing violations. In that case the plaintif was seeking, inter alia, relief for a demotion

' that occurred more than 180 days prior to his EEOC charge. This Court permitted the recovery for that demotion, but only after requiring the plaintiff to estab-lish that his employer had an ongoing policy and practice of discriminatory demotions and that plaintiff himself had been again demoted under this policy during the -

limitations period. 777 F.2d at 856-57. Obviously, these additional showings would not have been required if,-

as English contends, a demotion or transfer is per se a continuing violation. See also Price v. Litton Business  ;

Systems, Inc., supra (removal as branch manager and placement in a sales position and, thereafter, on leave of absence obviously was not considered a " continuing vio-lation"); Woodard v. Lehman, 717 F.2d 909 (4th Cir.

1983) (charge alleging discriminatory failure to pro-mote is time barred where, despite allegation of continu-ing discriminatory promotion policy, plaintiffs could not show a specific denial of promotion during the limits-tions period).

In short, this Court considers demotions, transfers, refusals to promote and similar employment actions to be completed acts on the date they are taken, rather than

" continuing violations" which remain actionable so long as they continue to afect the employees who have been subjected to the actions. This is clearly the correct ap-proach, since virtually all employment decisions, includ-ing terminations and refusals to hire, have continuing effects and could hence be characterized as " continuing -

i violations" under English's analysis. Accordingly, this Court should rule that English's second theory of con-tinuing violation, like her first theory, is without merit and that the Secretary of Labor properly dismissed her complaint.

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27 II. ENGLISH HAS NOT BEEN DENIED DL'E PROCESS English contends that she was denied due process by the Secretary's failure to enforce his remand order of May 9,1986. Pet. Br. at 45 47. In that order, the Secre-tary remanded this case to the ALJ because " Complain-ant did not have an opportunity to complete her testi-mony or to present several witnesses she had intended to call to testify in her behalf" (J.A. 83i. As shown below. ,

however, there was never any need to remand this case in the first place, much less a need now to remand the case yet again.

English's " remand argument" is premised, i.t the first instance, on a contention that the ALJ placed ' arbitrary" limits on the amount of trial time that she initially was given to present her case. Contrary to English's sugges-tion, however, plaintids are not entitled to decide for themselves either how much trial time should be devoted to a case or what types of evidence are relevant to the case. Flaminio v. Honda Motor Co., Ltd., 733 F.2d 463, ,

473 (7th Cir.1984) (trial judge's time limitations of 33 i hours-18 for plaintids and 15 for defendants--held not a violation of due process): MCI Communications v.

American Tel & Tel. Co., 708 F.2d 1081,1171 (7th Cir.), cert. ~ denied, 464 U.S. 891 (1983), quoting teith approval, 6 Wigmore, Evidence i 1907 (Chadbourn Rev.

1976) ("(I]t has never been supposed that a party has an absolute right to force upon an unwilling tribunal an unending and superfluous mass of testimony limited only by his own judgment and whim. . . ."). Accordingly, a plaintis who has been given a reasonable amount of hear-ing time to complete his or her case can hardly claim a deprivation of due process merely because the plaintiR's attorney choo:es to spend that time pursuing matters that are not relevant or helpful in proving that case.

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The record in the instant case plainly shows that that

' is exactly what happened here. English's two trial coun-sel were afforded over seven days to present their case,22 and they were effectively given considerably more trial time because the ALJ improperly permitted them to intro-duce substantial parts of their case during cross-examination of GE's witnesses.88 This amount of trial time was more than sufficient to permit any trial lawyer to marshal and present all evidenec genuinely relevant to

  • a single employee's rather straightforward claim of i retaliation.

Rather than applying themselves to that task, however, '

English's counsel chose to squander the bulk of their time attempting to establish that GE had, in fact, committed the nuclear safety violations that English had reported to the NRC-a claim which, even had it been established, would haw been completely irrelevant to proving Eng-lish's Section 210 retaliation claim. See AU D. at 9, i 15-17 (J.A. 64, 70-72); J.A.182-86, where the AU noted the irrelevancy of counsel's pursuits.** For exam-28 In her statement of facts agarding this issue, English refers only to the March 1985 hearings, leaving the impression that she was aiYorried only four trial days to present her case. See Pet. Br.

at 5. However, she conveniently ignoree the fact that she also had three days of hearings in December 1984. See AIJ D. at 2 (J. A. 57).

Counsel thereby not only increased their own a!!otted trial time, but also decreassd GE's trial time. In fact, an examination of the record reflects that English's counsel consumed over 1,900 of the total 2,464 transcript pages of hearing during their own examination and cross exr6minatkn of witnesses, thus leaving GE only about 500 transcript pages for direct and cross-examination. .

84 As with other statutes prohibiting retaliation against em-ployees for engaging in protected activities, employees need not prove that their safety complaints to the NRC were correct or justified in order to prevail on a claim that they were discriminated against for making those safety complaints. See Ashcroft v. Uni-versity of Cincinnati, 83 ERA 4 (Secretary's Decision, Nov.1.

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29 ple, at least one and one half days of trial were spent in witness Malpass elaborating, in painful and utterly use-less detail, the layout of the Chemet Lab, the building in which it was housed, and the types of processes that were carried out in areas dat were both inside.cnd outside l

the Chemet Lab where English worked. Whether this endeavor was undertaken to buy time because English's counsel were not prepared, or whether it was intended to lay a foundation for attempting to establish that Eng- ,

lish's safety complaints to the NRC were well founded. '

it (like much of counsel's efforts (see ALJ D. at 1517 f J.A. 70 72) i had no relevance to proving that GE had

' discriminated against English.

Thus, if counsel found themselves on the seventh trial day with "insumelent time" to complete their case-or, indeed, with allegedly "insuscient time" to fully examine their most crucial witness 28-it was a situation entirely 1984). See also, e.g., Womack v. Munson,619 F.2d 1292.1298 (8th C!r.1980), cert. denied. 450 U.S. 979 (1981) (interpreting Title

' VII's similar non retaliation provisions in the same manner).

s Incredible as it may seem, English's counsel consumed vir.

tually all of their seven trial days without calling Mrs. English-the complaining party-to testify before the AU. Instead, in what appeared to be an effort to avoid English's " live testimony" inas-much as counsel knew of the AU's time limitation well in advance, counsel attempted to place in evidence a 28-page amdavit, pre-pared by counsel, setting forth English's version of the events relating to GE's alleged discrimination against her. The AU Quite properly refused to countenance this tactic, and he himself called English to the stand to testify. See J.A. 314.

Before this Court English contends that the AU improperly excluded this proffered amdavit, and she relies on that amdavit throughout her brief as if it were properly in evidence. However, none of the federal rules of evidence or civil procedure cited by English (see Pet. Br. at 46-47) would permit any witness, much less the complaining party to submit an amdavit in lieu of trial testimony just because a party has not used his or her trial time wisely. See Fed. R. Civ. P. 56(e), which permits the submission of amdavits in support or opposition to motions for summary judg.

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1 30 of their own making and hardly constitutes a denial of due process. Accordingly, it was unnecessary in the first instance to remand this case for further proceedings.

Moreover, even if one assumes arguendo that a remand was appropriate when ordered by the Secretary, Eng.

lish's failure to provide additional evidence on remand forecloses her present due process claims In this regard, the ALJ-responded to the Secretary's remand order by allowing English 30 days to present additional testimony e by way of deposition. J.A. 91-92. English made no attempt to comply with the ALJ's order, but rather, filed a motion to amend that order on June 2,1986. ' There-ment, but which obviously has no relevance to the submission of amdavits as substantive evidence in lieu of testimony at trial:

Fed. R. Evid. 801(d)(1), which provides that prior statements of available witnesses are not barred by hearssy rules, but only under specified conditions not present here (i.e., prior inconsistent statements, statements offered to dispel assertions of recent fab-rication, or statemente identifying a person); and Fed. R. Evid.'

804(b), which provides that hearsay rules do not bar prior state-ments by unavailable witnesses (English was not only available, she was present at the hearing) in certain specified circumstances ,

not present here (e.g., prior testimony under oath, statement made under belief of impending death, etc.). j Finally,' of course, permitting English to now blithely rely on her rejected amdavit would encourage the type of tactics utilized i by counsel herein. That is, trial lawyers would be encouraged to  ;

exhaust their trial time pursuing irrelevancies so that they can carefully craft amdavita that will substitute for the testimony of crucial witnesses who the lawyers believe may not perform well on the stand. Accordingly, this Court should reject English's attempts to rely on such an affldavit.

88 GE also filed with the AU a motion for reconsideration of the deposition format prescribed by the AW's May 21 order (J.A. 93-96). However, the primary basis for GE's motion was -

its concern that in the absence of judicial control in the deposition frwat, English's counsel would inevitably go well beyond the sub-stantive areas that could he deemed even marginally relevant to English's case. That concern, of course, could not possibly have been shared by English's counsel. Indeed, the deposition format gave them a blank check" in terms of having witnesses testify to c ,

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4 01 after, the ALJ reamrmed his order on June 11. 1986 (J.A.11113), leaving English's counsel 16 days to :ake additional testimony. See J.A.115. Again, English's counsel paid no attention to the ALJ's order bu:. ins:ead of proceeding to take testimony,. filed ano:her motion with :he Secretary protesting the ALJ's order governing remand. In these circumstances, where English stub-bornly refused to supplement the record unless she could dic:a:e the forma:. she should not now be heard :o complain that the record is incomplete.

In sum, English has been given all the " process" she was "due" in these proceedings. She was afforded more than sufficient time to present any and all relevant evi-dence in the initial proceedings, but her counsel chose, despite warnings from the ALJ, to expend their generous time allotment pursuing matters irrelevant to their case.

They also specifically declined the opportunity to supple-ment the record in the 30 days allotted by the ALJ. 1 Accordingly, any due process claims by English at this  ;

point are utterly without merit (Flaminio t. Honda  ;

.L'otor Co., Ltd., supra: MCI Communications t.. A mer.

ican Tel. & Tel. Co., supra), and this Court should there- j fore uphold the Secretary's decision to dismiss her core plaint.

whatever counsel wished, and thereafter arguing to the AU and/or the Secretary that such evidence was admissible.

These same circumstances also provide an additional reason why this Court should foreclose English's attempt to rely on her am.

davit that was Arst proffered during the hearings before the AU.

Aside from the fact that that amdavit was properly rejected by the AU (see n. 25, supra). English could have testined on remand to all matters addressed in the amdavit and preserved for the AU and/or Secretary any argument relating to the admissibility of that testimony. She declined to do so, however, because she was unwilling to submit to the deposition format ordered by the AU.

As a consequence, this Court should reject her present reliance on that self-serving and untested "amdavit testimony."

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, 1 32 CONCLUSION For the foregoing reasons, GE respectfully submits that this Court should affirm the Secretary's decision in all respects and dismiss the present Petition for Review.

Respectfully submitted, I

PETER G. NASH Dtx!E L. ATWATER OcLETREE, DEAKINs, NASH, SMoAK AND STEWART 1200 New Hampshire Avenue, N.W.

Washington, D.C. 20036 (202) 887 0855 Wn11AM W. STURGES WEINsTEIN AND STURCES 810 Baxter Street Cul de Sac Charlotte, North Carolina 28202-2772 (704) 377-4784 CounselforIntervenor GeneralElectric Company Dated: October 8,1987 1

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L AW OFFICES ,,

MOZART G. RATN ER, P. c.

52 25 WI SCO N SIN AV E N U E, N. W.

l SUITE 600 WAS HINGTON. O. C. 20 015 MC2 ART G. A ATHER ARCA COOC 202 CFCbNStk T 362*4062 ANTMONY 2. mOISM AN M ann A.v C N uti October 14, 1987 Hugh L. Thompson, Jr., Director Office of Nuclear Material Safety and Safeguards United States' Nuclear Regulatory Commission 7915 Eastern Avenue Silver Spring, Maryland Re: 2.206 Petition of Vera M. English

Dear Mr. Thompson:

I am enclosing herewith five complete copies of the English reply (with the last five pages corrected). The Appendices have.already been delivered to you. You may disregard the partial reply which I delivered on Friday, October 9, 1987.

Thank you very much for yoar cooperation and kindness.

Very truly yours, M

Mozart G. Ratner MGR/hej Enclosure l

4 s-1 I

En. 11!

UNITED STATES NUCLEAR REGULATORY COMMISSION Before the Director Office of Nuclear Material Safety and Safeauards In the Matter of )

)

VERA M. ENGLISH )

) Docket No. 70-1113

v. )

)

GENERAL ELECTRIC COMPANY )

REPLY OF VERA ENGLISH TO GENERAL ELECTRIC'S OPPOSITION TO PETITION FOR ENFORCEMENT ACTION Introduction -

s Mrs. English's initial petition pursuant to 10 CFR 52'.206 sought enforcement action to punish, and thus deter, GE from continuing-to discriminate against employees'who report safety and quality concerns and to correct GE's alleged quality-and safety violations. GE does not contest the premise that if it is found to have discriminated against Mrs. English it should be punished, although this multimillion-dollar corporation believes any punishment should be at most twenty-five thousand dollars --

in effect something on the order of a minor five-dollar parking ticket. We believe, Congress perceives, and the NRC has

,. recognized that the significance of anti-informant discrimination is far too great to tolerate GE's self-serving attempt to emasculate the statute by denigrating its violation. GE also j

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challenges the authority of the NRC to impose any license condition to correct the obstacle to reporting and proving safety i

and quality problems ereated by the wrongful discharge of Mrs.

English. Such a crabbed interpretation of the NRC's a.ithority under the Atomic Energy Act to take whatever action is necessary to protect the public health and safety would, if accepted here, severely cripple the NRC's regulatory mission.

The central fact, which GE ignores, is that once a wrongful discharge has occurred, not only the dischargee but the entire work force is intimidated, even to the point of denying that it is intimidated. This truism was recognized by the Appeal Board i in Union Electric Company (Callaway, Units 1 and 2), ALAB-527, 9 NRC 126 (1979), where it observed that "[clommon sense tells us that a retaliatory discharge of an employee for 'whistleblowing' t

is likely to discourage others from coming forward with information about apparent safety discrepancies." Thus the NRC must decide what steps it will take to overcome the discouragement created by Mrs. English's wrongful termination.

While it is true that under one set of possible but unlikely i l

future events GE could be found innocent of the charges made by I r

Mrs. English, the fact is that at this time the only definitive ruling on the issue, reached after an adjudicatory hearing, is j that she was wrongfully discharged. Giving due deference to the l

expertise of the Department of Labor (DOL) Administrative Law Judge (ALJ) in discharge matters under $210 (GE Response, pp. 32-36), the NRC should concur in his supported findings. Giving due 2

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l deference to human nature, the NRC must accept the fact that the GE workforce believes, at least since his decision, that Mrs. ,

English was f' ired because she reported safety and quality'  !

concerns. It is unacceptable f or the NRC to simply ren.ain on the sidelines awaiting final resolution of DOL and court processes while " common sense" tells us that GE workers are likely to be discouraged from reporting safety problems so long as they  !

believe that Mrs. English is an example of the consequences of such reporting. Indeed, the chilling effect on other workers is so great that they are discouraged not only from themselves reporting safety and quality problems, but even from associating with others, such as Mrs. Malpass, who by her testimony supported Mrs. English at the hearing before the ALJ. Thus, the expurgated ERA Narrative Report on the Malpass-Lewis complaint against GE, issued 8/28/85,8 quotes a worker (p. 4, last para.) (name deleted) as stating that, in approximately May, 1985, Malpass told him that people were not talking to her. He informed Malpass that she could expect this because she supported Mrs. English.

According to [ deleted] there has been a change in co-workers' attitude toward Lewis and Malpass because the majority of the work force at GEC believes their action could possibly cause the plant to close and they would lose their jobs. ,

The same report finds (pp. 15-16):

(A male employee) is of the opinion that, should he be subpoenaed to testify in court 5 According to the Memorandum of Agreement, DOL is obligated to furnish NRC an unexpurgated copy of the aforesaid ERA Report if it has not already done so. .

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. L for'Halpass, he would need protection for his job at GEC. (Deleted) said that, since Malpass testified at the English Haaring in December 1984 and March 1985, he has noticed ,

that her co-workers have given Malpass the cold shoulder and act as if they do not want to talk to her. Simmons related that onc of his co-workers commented to him that Malpass  ;

had gotten herself into a mess.

As to Lewis, the same ERA Narrative Report finds (p. 5):

(Deleted) stated that, in about May 1985, he told John " Buddy" Lewis that he should stop nitpicking and quit trying to find out what GEC was doing. According to (deleted) he told Lewis that a group of employees in the Chemet Laboratories were angry with him.

(Deleted) further stated that he overheard someone, name not recalled, state that  :

someone should take Lewis out and beat his  !

butt. This statement was not made by (deleted) according to (deleted). -

(Deleted) believed that the Chemet Laboratories employees are upset with Lewis is alleged to be looking over their shoulders and taking notes. . . .

(Deleted) did overhear someone, name not recalled, make the statement that GEC had enough on Lewis to fire him. . . .

Discussion I. A. GE's Occosition to Exercise of NRC's Statutory and Reculatory Authority Is Locally Erroneous For all its fifty pages of hyperbolic argument and unsigned i

legal rhetoric, GE never meets head-on the real thrust of Mrs. l English's petition. Nothing GE presents explains why the NRC does not have the authority and should not now exercise that authority by taking some action both to deter further misconduct by GE and other licensees and to reestablish the confidence of the GE workforce in the integrity and effectiveness of the 4

E_ - - -

.. A l

l I

Congressional guarantee of immunity against employer' reprisal.for good faith.whistleblowers. None of the legal technicalities I

raised by GE rebut t'he longstanding and oft-repeated thesis that l l

under-the Atomic Energy Act, as amended, the NRC pcssesses all I

the authority needed to take whatever actions are necessary to i

protect the public health and safety.

Indeed, GE cannot rationally make such an argument, because the legislative history of 5210 squarely refutes it. As the Director of Inspection and Enforcement recognized in Duke Power Co. (Catawba Ur.its 1 & 2),.DD-85-9, 21 NRC 1759.(1985):

1 In urging his colleagues to adopt 5210, Senator Hart, the Senate floor manager, said

[5210] is not intended to in any way abridae the Commission's current authority to investigate an alleged discrimination and take appropriate action against a licensee-employer, such as a civil penalty, license susDension or license revocation. Further, the pendency of a proceeding before the Department of Labor pursuant to new Section 210 need not delay any action by the Commission to carry out the purpose of the Atomic Enercy Act of 1954. (Emphasis added.)

124 Conc. Rec. S15318 (daily ed., Sept, 18, 1978).

Thus, the underlying premise of GE's Response (pp. 32-36) --

that the power of DOL to protect rights and remedy wrongs done atomic whistleblowers is exclusive or even primary over that of NRC -- is entirely without foundation. NRC's official regulations confirm this. Specifically described as violations against which NRC is empowered to take enforcement action are 5

l

" Miscellaneous Matters" in Supplement VII, 10 CFR (1.1.83 ed.),

p. 137

! )

A. Severity I --

]

3. Deliberate action by management to discriminate (in violation of Section 210 of the ERA) against an employee for attempting to communicate or actually communicating with NRC.

B. Severity II -- j

3. Discrimination (in violation of Section 210 of the ERA) by management at any level above first-line supervision, against an employee for attempting to communicate or actually communicating with NRC; . . .

C. Severity III --

2. Discrimination (in violation of Section 210 of the ERA) against an employee for attempting to communicate or actually communicating with the NRC . . . .

As the Director of Inspection and Enforcement stated with respect to these Regulations in Duke Power Co., supra, When the commission amended its regulations in 1982 to expand the scope of its employee protection regulations [ regulations which pre-dated enactment of 5210) the regulations did not specify that findinas by the Department of Labor were a prerequisite to findina a violation of 550.7. [ Emphasis and brackets 4dded.)

Moreover, after acknowledging the independent jurisdiction of DOL (10 CFR 550.7(b) (1/1/83 ed.)), the Regulations provide-that NRC shall nevertheless have unlimited authority to enforce  !

i $210 of the ERA, 10 CFR 50.7(c) (1/1/83 ed.):

(c) A violation of paragraph (a) of this i section [Section 210) by a Commission licensee, . . . may be grounds for --

6 l

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.s 1 (

i

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(1). Denial, revocation, or suspension of the license.

(2) Imposition of a civil penalty on the licensee . . . .

(3) Other enforcement action.8 This is further emphasized in "NRC Form 3, Rev'd" (49 Fed.

Reg. 38212), App. E to Brief of Plaintiff to DOL, see also pp. 7-8, Br. for Plaintiff to DOL (May 31, 1985). Upon filing of a DOL complaint, "NRC may conduct its own investigation where necessary to determine whether unlawful discrimination has prevented the free flow of information to the Commission." Also, "if the NRC or Department of Labor finds that unlawful discrimination has occurred, the NRC may issue a Notice of Violation to your employer, impose a fine, or suspend, modify, or revoke your employer's NRC license."

Ignoring both the aforesaid legislative history and the Regulations, GE predicates its deferral argument antirely upon the DOL-NRC Memorandum of Understanding (47 Fed. Reg. 54585) under which, according to GE (Response, p. 2),

8 It is incorrect, as petitioner has demonstrated, but GE nevertheless asserts (Response, p. 15), that "only the Secretary of Labor has the authority to issue an order finding a violation i of Section 210 . . . ." The quoted portion of this sentence reflects GE's fundamental theme (Response, pp. 31-36), that DOL j has exclusive, or at least primary, jurisdiction to enforce 5210. I However, the succeeding portion of the sentence which, as indicated, we have deleted, narrows the objection to exercise of NRC jurisdiction "on a complaint lodged with the Department of Labor under the ERA." So qualified, the statement negates GE's major thesis. It appears to concede that NRC has independent, overlapping jurisdiction to enforce 5210, e.a., in response to a request to NRC for a 52.206 proceeding or sua sponte.

7

)

, i. l NRC normally defers acting on alleged 210 violations pending the final outcome of related Department of Labor administrative proceedings including any appellate review.

(Emphasis added.)

Assuming, arauendo, that deferral is the "norinal ' procedure, deferral cannot rationally pertain in the " abnormal" case where DOL, on procedural grounds, declines to reach a final decision on the merits at all. For, if DOL were sustained on appeal on such grounds, NRC's responsibility for effectuating the major national policy reflected in 5210 as explained in NRC Form 3, Rev'd, supra, would atrophy totally, in deference to mere " normal practice" under an internal agency agreement, which on its face contemplates full effectuation, not enervation, of national policy. A reading of the Memorandum as encompassing NRC abstention even where DOL may never reach the merits would be of doubtful legality. Cf. Guss v. Utah Labor Board, 353 U.S. 1, 9 (1957); Meat Cutters v. Fairlawn Meats, 353 U.S. 20, 23 (1957).

In the callaway case the Staff claimed the extraordinary power to halt all construction at a nuclear plant because a licensee would not allow it to fully investigate a claimed, but as yet unproven, case of wrongful termination, and the Appeal Board sustained the Staff. Surely where an ALJ of the DOL finds ,

I that Mrs. English was wrongfully discharged and the GE workforce undoubtedly believes that is what has occurred, it is {

insufficient for the NRC Staff to do nothing, as GE urges, or impose a meaningless fine and take no steps to correct the dangerous condition created by GE's misconduct.

8 L _ _ _ _ _ _ -

l ll l The Response of General Electric (GE) to Vera English's Petition for enforcement action pursuant to 10 CFR 52.206 relies on several grossly flawed legal arguments.

GE argues that, because the findings of the AI.J :egarding the real reason for Mrs. English's discharge and the pretextual nature of GE's defense are not res iudicata or collateral estoppel, NRC should not now take any action but should defer to the expertise of the DOL in labor relations matters. Compare GE Brief, pp. 16-22 and pp. 31-36, i According to GE's Response, because DOL dismissed the English complaint without reaching the merits, NRC now has but two alternatives: either (1) reverse the ALJ's findings that GE was illegally motivated and that GE management covered its illegal motive with fabricated pretexts, or (2) defer decision on these issues indefinitely until such future time, if any, as DOL may finally adjudicate and obtain judicial review of those f decisions (cf., Response, GE, pp. 16-22, with pp. 31-36).

GE's premise for reversal of the ALJ findings is that because the ALJ's findings do not have collateral estoppel or res judicata effect they have "no legal signi.ticance" (Pasponse, pp.

1, 14-15). But it does not follow that because the ALJ's findings are not legally " binding" on NRC, as they would not be legally " binding" on the Secretary of Labor, NRC may not elect to adopt his findings as its own. Indeed, only by electing to adopt, pro tanto, the ALJ's report on the merits can NRC effectuate the dual Congressional policies of recognizing the 9

I f

l

k. i E

special expertise of' DOL in 5210 cases, while at the same time preserving the unfettered jurisdiction of NRC timely and fully to' remove employer restraints upon "commu'nication" of safety and quality concerns by employees of. nuclear licensees, re,1ardless whether DOL 5210 proceedings are pending. Senator Hart, supra.

Reconciliation in this manner fits particularly well these f.

dual policies and it effectuates Senator Hart's assurance to the Senate that exercise of DOL jurisdiction in a particular matter need not delay independent proceedings on the same matter by NRC.

In a case like this, where DOL may never reach the merits, the postponement of NRC-actions pending final DOL findings on the-merits, would abort.the_ parallel jurisdiction pf NRC and could either force a wasteful duplicate NRC hearing or prevent NRC from.

ever taking. action.

Mrs. English argues that the NRC is not legally bound by the findings of-the ALJ but that the NRC should be guided thereby, and that, as a matter of sound administrative discretion consistent with the Memorandum of Understanding, the NRC should accept the ALJ's resolutions to the.same extent as DOL would on review of those findings. In this case the findings of the ALJ are, at present and perhaps forever, the final word of the DOL on the merits of Mrs. English's claims.8 Whether her charges were 8 GE distorts the ruling of the DOL Under secretary in an attempt to establish that the Under Secretary gave a " signal" that he questioned the findings of the ALJ because he qualified his statement regarding the existence of only one violation --

i.e., being placed on temporary assignment rather than continuing violations -- with the phrase "if any." GE Br. p. 15, fn. 9.

This phrase merely reflects that the Under Secretary was not i

10

\

filed within the statute of limitations or not is irrelevant to the soundness of the ALJ's findings, which were made following the identical administrative process used for all' claims under Section'210. Congress and the courts have historically / endowed ALJ merits findings with certain sta*.us and dignity, even on review by the appointing agency:

(W] hen the ultimate determination of motive or purpose hinges entirely upon the degree of credibility to be accorded the testimony of  :

interested witnesses, "the credibility findings of the (ALJ) are entitled to special j weight and are not to be easily ignored." l (Pennzoil Co. v. FERC, 789 F.2d 1128, 1135 l (5th Cir., 1986) (citations omitted).

See also, Universal Camera Corp. v. NLRB, 340 U.S. 474, 496-7 (1951); Moore v. Rose, 687 F.2d 604, 609 (2nd Cir. 1982), quoting' from Penasquitos Villace, Inc. v. NLRB, 565 F.2d 1074, 1076 (9th Cir. 1977):

i "we have found no decision, nor has one been cited to us, sustaining a finding of fact by the (National Labor Relations] Board which rests soleiv on testimonial evidence discredited either expressly or by clear implication by the administrative law judge."  !

(Emphasis added.)

In this case, the ALJ's " ultimate determination of motive or l

purpose hinges entirely upon the degree of credibility to be 1

l accorded the testimony of interested witnesses." Pennzoil, i endorsing or rejecting the ALJ finding. Even GE apparently does not believe the Under Secretary's statement, as made, supports its conclusion since it found it necessary to pervert the statement by adding underlining to the phrase "if any" without noting that the underlining was not in the original. Compare GE Br. fn. 15 with text at the bottom of p. 8 of the Under Secretary's decision (Appendix A to GE Br.).

11 l  !

supra. Therefore, his credibility findings "are entitled to special weight (from DOL, NRC, and reviewing courts) and are not to be easily ignored." Id. Thus, the ALJ found (ALJ D&O, p. 2):

"The findings and conclusions in this decision are based on my observation of the witnesses who testified . . . "; p. 6, para. 2:

The punishment dealt to Mrs. English for

" failure to clean up contamination, knowing it existed" was removal from the Chemet Lab and assignment to some rather menial work in the Building "J" Central Stores warehouse. 4 Complainant testified that a man (Mr. Ogle) was assigned to watch her constantly and that she was humiliated in an incident concerning her shoes. . . . [T]he record is devoid of any rebuttal evidence to Mrs. English's charge that she.was the only person ever removed from the Chemet Lab for failure to clean up contamination. She was credible in her testimony that other workers had caused the contamination and there was no evidence to the contrary. Further, the evidence clearly shows, without contradiction, that at least one shift and possibly two (not counting her shift) failed to clean up visible contamination. The area of contamination was outlined with red tape, whether such method was considered proper for dealing with the situation or not, the red tape added to the visibility of the contamination. Yet no one using the same work table, in other shifts, bothered to report this nor to clean it up;

p. 8, para. 5:

[M]any of [Mrs. English's] complaints had a proper basis in fact, and . . . her concern for her own safety and the safety of fellow employees was a strong factor in her allegations;

, p. 9, second full para.:

Management felt a concern as to the lengths that complainant would go to in promoting her views on safety practices, and therefore considered her a threat to other employees' 12

! 1

8 -4 safety. While this may be loaicui,'if manaaement's view of her norsonality is accepted, this expressed concern with safety is belied by Respondent's inertia in regard ,

repeated violations of safety rules by other i employees. One example of this being the i failure to investigate why the uranyl stain I was not cleaned up by any other party pr.4or I to the Monday following Complainant's report ,

i

-to Lacewell. (Emphasis added.);

p. 9. para. 5:

Respondent's witnesses were not believable in attributing the discipline imposed on: (1) regards for other employees' safety which was ostensibly endangered by Mrs. English's actions and complaints and (2) for the

" deliberate" violation of the clean-up rule;

p. 10, para. 1:

(T]he meetings, as testified through management's witnesses, came across as inquisitions to find charges that would

" stick," not a true investigation into the validity of concerns over general laboratory safety. Mr. Lacewell was concerned about

" entrapment" of Radiation Safety personnel and Mr. Sheely about " flagrant violation o work rules;" neither supervisor, as far as can be ascertained from the record, made any great effort to properly investigate Mrs.

English's complaints on safety. The one rule that Mrs. English technically violated, it may therefore be inferred, was a pretext for getting rid of an employee who would not stop reporting violations to NRC;

p. 11, para. 1:

I do not consider that Mrs. English deliberately caused a violation under the circumstances of this case. Respondent contends on one hand, that Mrs. English's only recourse with regard to discovered violations was to report them to management, which she did to no avail, or to the NRC. On the other hand, Respondent would have Mrs.

English continue to abate violations caused by others -- namely, to clean up contamination left by employees on prior 13

D

- , a shifts in violation of NRC requirements. GE cannot have it both ways. I find Mrs.

English's statement credible that she.had not caused the uranyl stain on her work table.

Her outlining of the results of some other person's negligence and failure to clean up was in effect, at the same time, a notice to management and a warning to fellow workers of the visible contamination. Since Mrs.

English had many times in the past cleaned.up contamination caused by other persons in their preceding shifts, she was entitled to-expect that someone other than she would clean up or call attention to the. uranyl stain. Further, I found her credible in her testimony that she. brought the stain and red tape to the attention of her immediate supervisor, Mr. Lacewell, as soon as he was available to observe the same first hand..

Once the. matter was brought to the attention of management, an order should have issued to clean the stain. -At least the Radiation Safety men should have been called in to_ view

~

the situation. Mrs. English, as heretofore stated, knew that she could expect no credence to her complaints without tangible ,

evidence. In demonstrating the malfeasance of others, she took the only means available to provide visible proof to support her past and immediate allegations. Her demonstration of.same was used as a pretext for retaliatory action, and by way of Respondent's motion it is also used as a basis to defeat her claim.

To allow the latter would be patently unfair and defeat the purpose of the Act, this was not an act'done deliberately to invoke "whistleblower" protection, rather it was a means of reporting violations, albeit  ;

unorthodox, See S. Rep. No. Ad. News 7303, 7304; Hochstadt v. Worcester Foundation For Experimental Bioloay,.545 F.2d 222 (1st Cir.,

1976);

p. 13, paras. 3-5:  !
3. Said discrimination was motivated by complainant's initiation of and participation in NRC proceedings investigating Employer's facility, specifically the Chemet Laboratory.
4. Respondent did not carry its burden 1 to prove that the above discriminatory acts 1 14 1

1

-_- i

would have taken place, even if the protected j activity of this Complainant had not taken place, i.e., the charge of " failure to clean up visible contamination" was a pretext. .

5. Complainant, through her testimony and that of her witnesses (including psychologist Boyle) adequately established causal connection and the basis for compensatory damages and other relief provided by section 5851 of the Act.

Is the fact that the Secretary has not adopted the ALJ findings fatal to Mrs. English's claim? No more so than if the matter were settled by the parties after the ALJ decision and before action by the Under Secretary. In addition, the critical question for the NRC is not whether all possible DOL review has occurred, but whether as a matter of sound pol' icy the NRC should rely on an evidentiary finding made after an adjudicatory hearing or should instead substitute a new and redundant process and engage in second-guessing the available evidentiary findings made by the DOL, which GE asserts Congress judged as (GE Br., p. 32):

the federal agency with the special competency and expertise to weigh the evidence and ultimately determine whether unlawful employment discrimination has occurred.

GE does raise the possibility that, should the Fourth Circuit reverse the decision of the Under Secretary on the statute of limitations issue, the ALJ findings could be reviewed and overturned on remand to the Secretary. Admittedly that could

- happen, although, as the discussion in the second part of this brief makes clear, that is highly unlikely. The NRC is, of course, often faced with the dilemma of awaiting what can be a 15

l- long administrative and court review process before taking enforcement action in section 210 cases and thus allowing a j dangerous condition to remain uncorrected. There are several  !

I strategies the NRC could pursue, but has not pursucd Lere, to j l

help it decide whether the long wait is warranted and to mitigate l l

the consequences of that wait.

1 First, the NRC could, and should here, launch a special and I

unannounced investigation to reliably determine whether GE workers at Wilmington in fact feel intimidated about raising i safety concerns as a result of what has happened to Mrs. English.

The NRC is already aware from the testimony of Mr. Lewis and Ms.

Malpass in the DOL proceeding that such fears exist and has recently been made aware of other workers who are afraid to disagree with GE management or speak out about safety concerns.*

See also the ERA Narrative Report on the Malpass/ Lewis complaint, supra, which describes conversations with GE workers who expressed reluctance to speak out about safety problems. An investigation of these matters patterned on the techniques used by OI or CIA would help NRC determine the magnitude of the problem and assess the need for immediate NRC action. Such an 4 GE's submittal of affidavits it solicited and apparently prepared (the same notary was used for each one) uttesting that they did not retain Mr. Ratner and/or that they did not fear reprisal are at least as consistent with the conclusion that they did fear such reprisal as that they didn't. GE could not seriously contend that its affidavit-signing party, undoubtedly

, attended by lawyers and management, would not itself be intimidating to any employee. The ALJ's recommended dismissal of the Malpass and Lewis claims is based on the inability of their counsel to meet a totally unrealistic and patently irrational trial schedule, not on the merits of the claims raised.

16 4 i

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1 investigation would form the basis for a determination whether awaiting a final DOL decision was appropriate or whether the magnitude of the safety issues involved required swifter action.

As the Appeal Board observed in Union Electric Co. (Cs11away. .

1 Units 1 and 2), suora:

Without rehearsing everything we have said before, to shackle the staff's investigators until grievance proceedings are completed i opens the possibility of radiation hazards being created during the delay. That consequence, in our judgment is more important to be avoided than disturbances of employer-employee relationships. We therefore have no hesitation in holding that the incidental effects of an NRC investigation on pending grievance proceedings -- whether under collective bargaining agreements or before the Secretary of Labor -- do not outweigh the Commission's need to be able to look into the question of retaliatory discharges promptly if circumstances warrant, and that the staff did not abuse its discretion electing to do so here.

The Director of Inspection and Enforcement has recognized the principle that it is contrary to the NRC's purposes to automatically await completion of DOL proceedings to act where employee discrimination has occurred (Duke Power Co. (Catawba Units 1 and 2), DD-85-9, 21 NRC 1759 (1985)):

Duke Power Company misperceives the complementary, yet independent, authorities and responsibilities of ths Department of Labor and the Nuclear Regulatory Commission in protecting employees from discrimination and retaliation for raising matters pertaining to nuclear safety. Although 5210 assigns authority to grant employee remedies '

to the Department of Labor, enactment of that statute did not limit the Commission's i preexisting authority under the Atomic Energy Act to investigate alleged discrimination and 17 I -

take appropriate action against its licensees to combat it. Union Electric Co. (Callaway Plant, Units 1 and 2), ALAB-527, 9 NRC 126, 132-39 (1979).

Second, NRC could provide a substantial deterrent to the perpetuation of discriminatory conduct at the GE Wilmington facility were it to issue a preliminary proposed action (fine and license condition) which would be made contingent on the final decision of the DOL, i.e., either after the adverse decision on the statute of limitations and thus the merits becomes final or after reversal and remand and the decision on the merits becomes final.a When the contingency was fulfilled GE could exercise its right to cr.2est the fine.

Provisional action based upon the serious. violations of Section 210 found by the ALJ would provide an important statement by the NRC enforcement office of its intent to take effective steps to prevent and correct Section 210 violations. The seriousness of a nuclear employer's conduct in discharging an employee in retaliation for raising safety concerns is underscored by the decision of the Appeal Board in Union Electric company (Callaway. Units 1 and 2), supra. In that case the Appeal Board upheld the power of the regulatory staff (exercised 8

In Texas Utilities Electric Co. (Comanche Peak Steam Electric Station), Dkt. Nos. 50-445 & 446, the NRC imposed a fine for the wrongful discharge of Charles Atchison prior to final action, held the fine in abeyance, and, even after the final action found against Mr. Atchison on procedural grounds, assessed the fine. Imposition of fines following ALJ decisions and before all legal action is final, with collection or contesting of the fine held in abeyance, has occurred in several other NRC cases.

18

,1 .

before passage of section 210 but decided after passage)* to suspend construction of a nuclear plant Until a permittee allowed the staff access to documents necessary to determine whether a wrongful discharge-had occurred. The Appeal Board fotnd (id. at 134;:

Common sense tells us that a retaliatory discharge of an employee for "whistleblowing" is likely to discourage others from coming forward with information about apparent safety discrepancies. Yet, the Commission's safety inspectors cannot be everywhere; to an extent they must depend on help _of this kind to do their jobs. Incidents that deter such aid are inherently suspect. They obviously merit full exploration in the interests of safety and certainly are prima facie within the Commission's legislative charter.

I In a different context, the Appeal Board again emphasized '

the importance of the employee as a source of valuable information (Texas Utilities Generatino Co. (Comanche Peak Steam Electric Station), ALAB-714, 17 NRC 86 (1983):

There is a manifest need to encourage those with knowledge of possible safety-related deficiencies in facility construction or operation to put their information before the Commission. Particularly in the instance of employees of the utility or its contractors, there may well be a decided reluctance to take such action in the absence of an assurance that their anonyinity will be preserved -- a reluctance founded in the fear  ;

of reprisal of some kind.21

  • The Appeal Board, citing the statement of Senator Hart, floor manager of the Section 210 legislation, noted that his statement at least rebuts any assumption that Congress passed Section 210 because it believed the NRC lacked the power to investigate wrongful termination a*;egations

. or intended to strip such authority from the NRC. Id., fn. 49; accord, Duke Power Co.

(Catawba Units 1 & 2), supra.

19 i

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88 As stated in Union Elect'ric Co.

(Callaway Plant, Units 1 and 2),

ALAB-427, 9 NRC 126, 134 (1979), it is mere " common, sense" that "a retaliatory discharge of an employee for 'whistleblowing' is likely to discourage others from coming forward with information about apparent safety discrepancies." This is so notwithstanding the statutory protectiors against discriminatory retaliation that is provided to employees who, without obligation to do so, supply information about possible safety-related i irregularities, see section 210 of the Energy Reorganization Act of 1974, 42 U.S.C. 5851, and the Commission's implementing regulations, 47 Fed. Reg. 30452 (July 14, 1982) (to be codified in .

I scattered sections of 10 CFR). ,

Moreover, there is no practical means of shielding employee informants from harassment at the hands of fellow employees who may have been involved in the irregularities.

In adopting amendments to inter alia 10 CFR 550.7, the Commission stressed the importance of the unintimidated employee as a source of information essential for proper performance of the NRC's safety obligations (47 Fed. Reg. 30452 (July 14, 1982):

The commission, to effectively fulfill its mandate, requires complete, factual, and current information concerning the regulated activities of its licensees. Employees are an important source of such information and should be encouraged to come forth with any items of potential significance to safety without fear of retribution from their employers.

Contrary to these strong statements underscoring t!.e importance of protecting whistleblowers and encouraging workers "to come 20

forth with any items of potential significance to safety without fear of retribution from their employers," to date nothing has been done'to determine the extent of damage to the Wilmington employees' willingness to raise safety concerns with GE or the NRC, much less to restore the employees' faith in the integrity of the system, even though it has been over three years since Mrs. English was discharged for reporting safety concerns.1 The significant safety implications of GE's conduct warrant action by the NRC that will clearly inform the GE workforce and others that they will not risk their jobs and their careers in vain. A preliminary proposed fine and license condition would go a long way toward restoring employee confidence and mitigating the i consequences of the continuing delay in this matter.

GE contends that NRC should defer any consideration of a 1

fine or a license condition until all action is completed by the DOL and the courts. In effect it urges that the NRC treat GE as the wronged party and Mrs. English as the perpetrator. Whatever assumption of innocence GE might have claimed when faced with

  • GE reveals its inherently flawed perception of nuclear facility safety when it argues that the quality concerns raised by Mrs. English and confirmed by the Wieczorek Report do not have any safety significance. In Union Electric Company (Callaway, Units 1 and 2), supra, the Jppeal Board stressed the importance of quality concerns for nuclear safety (id., fn, 26):

The need for " quality assurance" and " quality control" in the construction of nuclear plants has long been a recognized Commission concern. See, e.g., Consumers Power Company (Midland Plant, Units 1 and 2), ALAB-106, 6 AEC 182 (1973); ALAB-147, 6 AEC 636 (1973);

ALAB-152, 6 AEC 816 (1973); ALAB-283, 2 NRC 11 (1975).

21  !

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a Mrs. English's charges it lost when the Wage and Hour Division and then the ALJ, after a hearing, agreed with Mrs. English.

GE's arguments would, at best, only support the' view that the NRC l should not issue a final proposed fine and license condition or allow a hearing on the fine and license condition to commence l

untta after conclusion of the DOL proceeding. Mrs. English's l proposal of a preliminary proposed fine does not prejudge the outcome of the DOL process, does not force duplicate hearings, and does.not force the NRC to remain silent on the seriousness of the findings reached by the ALJ or the need to reassure the GE workers. GE's objection to duplicate proceedings is precisely that which Senator Hart rejected in explaining 5210. ,

The need to move expeditiously in cases where wrongful termination is alleged was a critical factor in the Appeal Board's decision in Union Electric Co. (Callaway, Unit 1 and 2)

(footnotes omitted):

Moreover, under the new legislation the Secretary apparently lacks two remedial powers -- which the Commission possesses --

necessary to insure full protection of the public interest. The first is the right to take important actions against the employer, and the other is authority to do so immediately. Thus, even after finding that an employee has been fired for reporting unsafe construction practices, the Secretary may order only reinstatement and back pay --

not correction of the dangerous practices themselves. He can report them to the Commission. But his administrative proceedings take time; as does any judicial review (the grievance proceedings in this case took 7 months). ... In the interim a lot of concrete can be poured over a lot of defects. ... This Commission, as the agency primarily responsible for public safety in 22 l

y-- . __ _ _ _ _ _

the nuclear field, should not have to stand idly by while this happens.

GE argues that, even if the NRC could or should take some ]

action at this time, the fine and license conditions suggested by Mrs. English are either too large or beyond the authority of the {

NRC to impose.

The GE argument regarding the size of any fine begins with j the faulty premise that a " continuing violation" does not exist where, as here, there was a single discharge. The analytical flaw in this argument is that it overlooks the difference between the concept of " continuing violation" for statute of limitations purposes and for remedial or punitive purposes. In contrast with a discharge which is not, by itself, a " continuing violation" for statute of limitations purposes, every day that a discharge remains unremedied is a " continuing violation" or a separate offense for remedial purposes. Thus, a discriminatorily i

discharged employee is entitled to back pay for every day until he/she is reinstated. NRC itself so defines " continuing violation" for enforcement purposes.e For remedial or punitive e Thus, Ch. I, Part 2, App. C, p. 150 (1/1/86 ed.), provides:

The duration of a violation may also be considered in assessing a civil penalty. A greater civil penalty may be imposed if a For violation continues for more than a day.

example:

(1) If a lie ansee is aware of the existence of a conaltion which results in an ongoing violation anc fails to initiate corrective action, each day the condition existed may be considered as a separate violation and, as such, subject to a separate 23

purposes, a wrongful discharge is relevant primarily, but not exclusively, because of the impact on the dischargee and on the remaining workforce and the implications for safety of that' impact. The intimidating impact of her firing is "Likely to discourage others from coming forward with information about apparent safety discrepancies." Union Electric Company (Callaway Units 1 and 2), supra. Until GE has taken steps to assure its workforce that the wrongs done to Mrs. English have been corrected and will not be repeated, GE remains in violation of the NRC prohibition on intimidating workers to keep them from  !

reporting safety concerns. It is the continued existence of the uncorrected, and unrepented, wrongful discharge of Mrs. English i and the consequences for public safety of that continued existence that form the basis for the NRC's concern and the r i

continuing violation of NRC requirements.'

additional civil penalty.

(2) If a licensee is unaware of a condition resulting in a continuina violation, but clearly should have been aware of the condition or had an opportunity to 4 correct the condition but failed to do so, a separate violation and attendant civil penalty may be considered for each day that the licensee clearly should have been aware of the condition or had an opportunity to correct the condition but failed to do so.

(Emphasis added.]

' Even on the issue of whether GE committed multiple and continuous violations of the rights of Mrs. English under Section 210, GE's analysis is wrong. Attached hereto and incorporated herein as Appendix A is Mrs. English's brief to the United States Court of Appeals for the Fourth Circuit, which fully articulates the flawed reasoning advanced by GE and adopted by the Under 24

,r .

GE has focussed on and cites cases relevant to the question of whether, for purposes of the' DOL, there is a continuing violation. But, as the Appeal Board made clear in Union Electric Co. (Callaway, Unit 1 and 2), suora, the NRC and D0L liave different purposes for and interests in wrongful termination:

Moreover, the Commission's investigatory powers and those of the Secretary of Labor under the new provisions neither serve the same purpose nor are invoked in the same manner. They are, rather, complementary, not duplicative in the sense licensee suggests.

To be sure, both encourage the reporting of unsafe or improper practices to Commission officials. But Section 210 focuses chiefly on protecting employees against retaliation, rather than safeguarding the public's rights.

The Director of Inspection and Enforcement has also recognized this critical difference between the goals and purposes of the NRC and the DOL where whistleblowers are involved (Duke Power Co. (Catawba Units 1 and 2), supra:

The Commission's responsibility goes beyond immediate remedial action to the person affected. The Commission must ensure that licensees correct conditions that have resulted in improper discrimination that could affect other employees and prevent the recurrence of such discrimination. This power must be available to the Commission whether or not a particular employee has exercised his or her rights under $210.

The inherently continuing nature of GE's violation of NRC requirements is illustrated by the following example. If, following Mrs. English's discharge, GE uppar management had

. investigated her charges, decided that she had been wrongfully Secretary on the continuing nature of the violations committed l against Mrs. English.

l 25

)

terminated, and'promptly moved to reinstate her with back pay and an appropriate public admission of their wrongdoing, surely the NRC would and should treat GE differently than here where GE, even in the face of the ALJ findings, not only persists to this day in. denying that it has done wrong but continues its vicious and libellous attacks on Mrs. English and her. conduct while a GE employee. According to GE the only possible distinction the NRC can make between these two cases in imposing penalties is to vary the amount of a single fine between $0 and $25,000.

GE claims that it cannot be punished for choosing to deny

.and resist the charges of Mrs. English and therefore its violations cannot be said to be " continuing." But GE has chosen to take the risk that it will in fact be found to have violated the law and in such event its obstinate refusal to comply with the law would and should be punishable. Its recalcitrance is part of the basis for a larger fine, particularly where it perpetuates by its recalcitrance a safety hazard at its facility.

In Callaway, the utility was faced with a far more serious consequence if it chose to assert its claimed rights -- plant shutdown until At released the data sought by the Staff. At any time GE could have taken steps to remedy the adverse impact on its workforce by providing some remedy to Mrs. English while still pressing its argument. Mrs. English could have been offered back and front pay shortly after discharge, subject to recoupment if her claims of wrongful termination were found to be groundless. This would have provided some evidence to the 26

. A workforce that GE was not being vindictive against a ,

1 whistleblower and that it was a fair and open-minded employer who l 1

realized that legitimate differences could arise with its employees. GE's failure to propose this or any other remedy to seek to mitigate the impact of its conduct on the workforce and its' spiteful, relentless, often deceptive, and unrepentant defense of'its prior conduct, including trumping up charges against Mrs. English, underscore the need for substantial punishment.

If the seriousness of wrongfully discharging an employee is-so great that the Staff would order a plant shutdown costing approxima*.ely $1,000,000 per day just to force

  • disclosure of evidence t. hat would demonstrate whether such a wrongful discharge had occurred, surely the fine proposed here for a proven wrongful discharge unremedied for over three years is modest. GE has arrogantly assumed that it is above the law, and only the most severe and swift punishment -- substantially damaging its most precious asset, its money -- will make it respect the law, the NRC, and the rights of its workers.

GE argues that its right to resist the wrongful termination charge is infringed if it is punished either by an increased fine or a finding of continuous violations because of its refusal to admit it has done wrong. GE would have it that, by fighting to

, the death, even though it is clearly in error, it should be i subjected to only the most minor punishment, as compared to a I company that is ultimately exonerated, and punishment no larger 27

i j

than a company that, promptly upon being charged, ceases its illegal conduct. In such a truly absurd world there is no ,;

justice and there is no law.' i One can search in vain through the records in chese DOL and NRC matters for even a shred of concern for the impact on its workers of the highly visible transfer and firing of Mrs. English I

(

and of the decision of the ALJ confirming Mrs. English's worst {

fears -- she was punished for reporting safety violations and GE made up pretextual excuses to cover its illegal actions.80 Finally GE argues that it cannot be forced by the NRC to compensate Mrs. English for wrongfully terminating her. The argument is based on the twin faulty assumptions discussed above:

Fault 1: The NRC, the DOL, and a state court have the identical purpose in being concerned with Mrs.

English's wrongful discharge.

Fault 2: The NRC has only limited tools available to it to redress the consequences of wrongful termination. I

\

As already explained above, the NRC is uniquely obligated to j protect the health and safety of the public from the operation of nuclear facilities. Maintaining a flow of safety information from the workforce to the employer and the NRC is a vital part of to In Duke Power Co. (Catawba Units 1 & 2), supra, the Director of Inspection and Enforcement considered the very factors we have urged for increasing a proposed fine. He noted the action by Duke Power to correct its problem as justification for not increasing the fine but noted that Duke Power continued to protest the decision internally by retaining bad performance records of the employee in a separate file. Here GE does not acknowledge any wrongdoing at all and has taken no corrective action. Surely an enhanced penalty is required.

28 l

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. 4 meeting that obligation. Statement of Considerations for inter alta 10 CFR $50.7, supra. Wrongfully discharging one employee is l likely to discourage workers from reporting safety violations.

Union Electric Co. (Callaway, Units 1 and 2), supra. Delay in correcting the impact of a wrongful discharge endangers public i

)

health and safety. Id. By assuring full compensation to Mrs. j English the NRC reassures the workforce that, regardless of the l

technicalities of the statute of limitations or the preemptive )

impact of.the Atomic Energy Act (which GE argues to evade any state court remedy 12), no worker will suffer economic or any other loss if he or she is terminated for reporting safety problems. NRC shenld and must act.

GE also argues that NRC cannot act, even if it wants to, because Section 210 is an exclusive remedy. That is belied by l the floor statement of the chief Senate sponsor of the bill (124 Cong. Rec. 515318 (daily ed., Sept. 18, 1978) (remarks of Sen.

Hart), by the decision of the Director of Inspection and Enforcement in Duke Power Co. (Catawba Units 1 & 2), supra, by the language of 10 CFR 550.7(c), supra, and by'well established case law that where, as here, a remedial statute is involved (one designed to provide public protection not available to the public on its own), the statute is to be broadly construed to help 11 GE is disingenuous when it argues here that NRC should let

~

l the state court decide what compensation Mrs. English should receive and yet argues in the state court that the Atomic Energy Act and the NRC regulatory scheme totally preempt all state causes of action. Attached hereto as Appendix B is a copy of Petitioner's brief to the district court in opposition to GE's motion to dismiss on preemption grounds.

29

i ensure its effectiveness. Union Electric Co. (callaway), suora; f Whirlpool Coro, v. Marshall, 445 U.S. 1, 13 (1980); Gomez v.

l Toledo, 446 U.S. 635, 639 (1980); Tchereenin v. Knicht, 389 U.S.

332, 336 (1967). The NRC must possess the authorit/ to impose whatever license conditions are necessary to restore plant safety

-- here to assure that the workforce is an encouraged (by law) l source of safety information -- and to impose fines based upon illegal discouragement of workers from reporting safety problems.

Admittedly the violations caused by discharging a worker for reporting safety problems create some unique situations and, contrary to GE's assertion, warrant unique enforcement actions.

This unique violation has a unique and " common sense" ripple effect on the free flow of safety information to which Congress and the Commission have given high priority. To correct the problems created and punish the recalcitrance of the perpetrator requires unique enforcement measures well within the power of the NRC. The fact that such measures have not been taken before is more indicative of the failings of the enforcement program than of the impotence of the NRC.

B. GE's Factual Arcument is Clearly Erroneous As we have already demonstrated above, as a matter of sound policy the NRC, in deciding what enforcement action to take against GE, should not reevaluate the factual evidence presented to and findings of the ALJ. However, should the NRC decide to 30 i

1

)

i reevaluate that evidence,58 we believe it will find that the evidence clearly establishes that GE did fire Mrs. English for reporting safety problems, that the allegation that she violated' GE safety regulations is false, and that the allegation that she was fired for violating safety regulations is a fabricated pretext.

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12 Huch of the basis of the ALJ opinion was, as it will be in most of these cases, derived from a judgment regarding the credibility of witnesses. The NRC, like any reviewing body, must defer to the judgment of the hearing officer, who was able to observe and assess the demeanor and character of each witness.

31 l

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L l II. THE ALJ 'S ILLEGAL MOTIVE AND PRETEXT FINDINGS a

! REFLECT CREDIBILITY RESOLUTIONS BASED ON ]

OBSERVED DEMEANOR UNDER OATH, SUPPORTED BY '

i BOTH DIRECT AND CIRCUMSTANTIAL EVIDENCE Discarding the ALJ's specific findings to 6.he

-contrary (D&O,13 p. 11), GE simply assumes (Response, p.

I 16), the veracity of management's explanation that "GE removed Petitioner English from the Chemet Lab because she made a conscious deliberate decision.to commit a nuclear safety violation by leaving a radioactive spill in the laboratory."

(Emphasis added.) In support, GE asserts (Response, p. 5),

" Company officials were justifiably upset with English's l

admitted deliberate violation of safety standards." But the l

)

l ALJ found that company officials were not in fact " upset,"

instead they used Lacewell's hearsay report of English's alleged " admission" as the pretext for discrimination against f I

her which they hoped would " stick." J GE ignores that the ALJ rejected management's causation explanation on credibility grounds, based on his observation of GE's witnesses' demeanor (I.R. 2, first full j 1

par., second sentence), supported by both direct and circumstantial evidence of record. Furthermore, GE totally i i

i disregards the ALJ's unquestioned right and power to do this:

It is hornbook law that the trier of fact "is * *

  • free to reject an employer's sworn testimony and to predicate findings

. \

of discrimination on the basis of all the evidence both direct l

13"D&O" refers to the ALJ's Decision & Order in English v.

General Electric Company, in 85-ERA-2, App. A to GE's {

Response.

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_ _ - _ - - _ _ _ - - - - - - _ _ _ )

and circumstantial." Morris, I The Developing Labor Law (ABA), 265; U.S. Postal Service Bd. of Govs. v.-Aikens, 460

'U.S. 711, 714, n. 3 (1983) ("The McDonnell-Douglas formula does not require direct proof of discrimination.)" 7eamsters

v. United States, 431 U.S. 324, 358, n. 44 (1977).14 As the Supreme Court reiterated in Aikens, id., 460 U.S. at 716, a discrimination plaintif f may prevail "either directly by persuading the court that a discriminatory reason more likely motivated the employer or indirectly by showing that the employer's proffered explanation is unworthy of credence." Burdine, 450 U.S., at 256.

In this case, the ALJ found both: directly, that it was more likely that a discriminatory reason motivated the employer (D&O, pp. 8-13), and indirectly, "that the employer's proffered explanation [was) unworthy of credence." D&O, p. 9, i l

last par., cont. 10 (" Respondent's witnesses were not believable in attributing the discipline" to " deliberate" rule violation or management " regard [] for other employees' safety" (id., p. 9, last par., first sentence, emphasis added)). We summarize below some of the supporting evidence, virtually none of which is even mentioned by GE.

Before doing so, however, we stop to emphasize four points: first, the ALJ found that GE did not carry its burden 14T o sustain a defense under Section 210(g), as under the "cause" provision of Section 10(c) of LMRDA, the employer must prove that the alleged offense " motivated the disciplinary action." (Emphasis added.) Id., p. 188, n. 42; NLRB v.

Transportation Management, 4362 U.S. 393, 401-403 (1983); ,

Mackowiak v. University Nuclear Systems, Inc., 735 F.2d 1159, j 1162 (9 Cir., 1984).  ;

I

I to prove that "the [found) discriminatory acts would have taken place even if the protected activity of this complainant had not taken place" (DEO, pp. 13, "4", 8, par. 2, last sentence to end of par). 1 Secor.3, Mrs. English "was the only person ever removed from the Chemet Lab for failure to clean up contamination

[although] the evidence clearly shows, without contradiction, that at least one shift and possibly two (not counting her t

shift) failed to clean up [the same] visible contamination" (D&O, p. 6, second full par., last half; see also, D&O, p. 9, second full par., last sentence); D&O, p. 10, pars. (a) and (b); third, the Congress which enacted 42 U.S,C. 5851 considered nuclear employer discrimination against "whistleblowers" pervasive: "Any worker * *

  • who gives information with respect to an alleged violation of the A.E.A.
  • *
  • may be subject to discrimination" (S. Rep. No.95-848,
p. 29); and fourth, that -- as the Supreme Court has said --

proof of intentional discrimination entails proof of the employer's illegal state of mind -- to which there will seldom be "' eye-witness' testimony." Aikens, id., 460 U.S. at 716-717.

As the Seventh Circuit recently reiterated, Riordan v.

Kempiners, 44 FEP Cases 1355, 1360 (1987):

Proof of * *

  • discrimination [by an employer against an employee) is always difficult.

Defendants of even minimal sophistication will neither admit discriminatory animus nor leave a paper trail demonstrating it [as we show below GE did here]; and because most employment decisions l

involve an element of discretion, alternative hypotheses (including that of simple mistake) will always be possible and often plausible.

      • [Because) it is so easy to concoct a:

plausible reason.[for discrimination] *** [a]

plaintiff's ability to prove discrimination indirectly, circumstantially, must~ not be : rippled by evidentiary rulings that keep out probative evidence because of crabbed notions of relevance We now detail some of the evidence supporting the ALJ's conclusions: In the first place, the ALJ credited Mrs.

English and'her supporting witnesses as-to management's and many fellow workers' persistent " hostility" toward her even antedating 1982 (D&O, p. 2, n. 2, last two lines, D&O, p. 3, 2nd par.; Tr. 2302, 2307-2308, 2316, 2321-2322, 2332-2334),

arising from her having openly voiced safety and quality concerns to management (D&O, p. 3, 2nd par., p. 12, 2nd full par., first sentence; Tr. Plaintiff's Brief to ALJ, pp. 48-60).15 GE's creation and toleration of a " hostile" (to Mrs. English)." working environment" is itself prohibited

" discrimination." Meritor Savings Bank v. Vinson, 91 L.Ed.

l 49, 57 (1986).

)

Further, additional evidence of record available to NRC establishes that GE's employee-perceived treatment of Mrs.

English as discriminatory has intimidated many other employees and tended to inhibit their communication of GE violations to NRC.- See the redacted ERA Narrative Report in Malpass and 15S afety and quality complaints to management, even if never voiced to NRC, are " protected activity." Kansas Gas & Elec.

Co. v. Brock, 780 F.2d 1505 (10 Cir., 1985), cert. denied, 106 S.Ct. 3311 (1986)

Lewis v. General Electric, 85-ERA-38.and 39, submitted by Mack Lawson,' Wage 6 Hour Compliance Specialist, on or about August 28, 1985, quoted in part, supra, pp. 3-4.

While plaintiff believes that the quotations above are more than adequate to establish that GE's manifested hostility to Mrs. English for accusing, annoyinng and embarrassing management (D&O, p. 7, top par.) are entirely' adequate to sustain the proof of resultant employee fear of exposing GE violations, we observe that plaintiff has not had access to the unexpurgated, unredacted, report of the Department of Labor Wage and Hour Division, whereas NRC does have such access, and that it should be utilized to determine whether the redacted portions of the report contain additional support for plaintiff's position, and to interview the informants whose names are deleted in the redacted report.

Second, the ALJ found that "many of [Mrs. English's) complaints had a proper basis in fact,16 and that her concern for her own safety and the safety of fellow employeets) was a strong factor in her allegations" (D&O, p.

8, penultimate par; D&O, pp. 3-4, continued par., par. 9).

Indeed, in a letter from NRC Regional Administrator Grace to GE's General Manager Lees, dated July 1, 1986, affirming the 16GE's assertion that "Most of the allegations * *

  • were found to be without any factual substance whatsoever * * *"

, (Response, p. 10, emphasis added) is flatly false and has so been found not only by the ALJ (D&O, pp. 6-7, n. 5), but by NRC's Director of Inspection and Enforcement. Insofar as allegations were dismissed by the Director, they were found unsubstantiated on tenuous legal, not factual, grounds, and/or because the violations had been subsequently remedied.

5

c. .

violations found in NRC I.R. 85-02, and enclosing Staff Evaluations of License Responses, the R.A. stated: "We disagree that your policy of ' cleaning up spills immediately' was effective in maintaining the lab as a relatively

' contamination free' environment." See English v. General Electric Company, Petition to App. D.C. for Review of Regional Director's Decision Pursuant to 10 CFR 2.206, dated Dec. 22, .

1986, pp. 13-39, and Appendices 2-3, thereof, with enclosures thereto, attached hereto as Appendix C. Cf. Brief for Plaintiff to ALJ, pp. 37-39.

Third, the ALJ found on the basis of her own and l psychiatrist's testimony that Mrs. English suffered severe I depression and " agitated depression" as a result of the

" imposition of the various [ discriminatory) actions taken 1

against her by GE during her final years of employment" (D&O, Tr. pp. 7, 9, third par.).

Fourth, the ALJ found, on the basis of Mrs. English's credited and, indeed undenied, testimony, that management generally, including Rad Safety, refused to entertain any of her safety and quality complaints unless she accompanied them h

1 1

I with "hard" evidence 17 (DEO, p. 4, f ull par. , last two sentences (Tr. ) (the NRC also refuseu to 1

investigate complaints unless supported by such evidence (10 CFR 19.17).

Fifth, on Mr. Lees' demand, Mrs. English brought i evidence to him-on December 14, 1983, but he refused to accept j or entertain it (Tr. 2437).

Sixth, on January 20, 1984, Mrs. English told Lees that  ;

if she could not get internal redress of her safety and quality complaints (which would have entailed shut down time at the cost of production (D&O, pp. 6-7, ), she would take t

her information "to authority other than General Electric," j

_i . _e . , to NRC (Tr. 2423-2424, 2436-2437, C-15b (attached hereto g as Appendix D).

Seventh, Lees instructed her, on threat of severe j disciplinary action, up to and including discharge, to bring f l

17D&O 11, last quarter of par. "Mrs. English, as heretofore l stated, knew that she could expect no credence to her complaints without tangible evidence. In demonstrating the malfeasance of others, she took the only means available to provide visible proof to support her past and immediate allegations. Her demonstration of same was used as a pretext for retaliatory action, and by way of Respondent's motion it is also used as a basis to defeat her claim. To allow the latter would be patently unfair and defeat the purpose of the Act. This was not an act done deliberately to invoke " whistle blower" protection, rather it was a means of reporting violations, albeit unorthodox." (Emphasis added.)

I all of the evidence supporting her allegations to him18 and I proposed, to "put it behind us and forget it" (Tr. 2436-7; C-15b).. This undenied " cover up" proposal betrays management's purpose, motive and objective -- to get rid of ]

Mrs. English lest she observe and persist in exposing additional perceived breaches of safety and quality standards. )

1 When Supervisor Lacewell and Mrs. English lef t this January meeting, Lacewell told English "to be very selective" about the information she turncd over. He said: "If I were you I would not turn in all the information because you know they will destroy it." (Tr. 2438) (Emphasis added.)

Eighth, Mrs. English testified that in consequence of the severity of management's hostility against her, arising, at least in part, from her repeated and open insistence that t

Rad Safety and supervision knew that employees who used her table on other shifts caused visible nuclear contamination "on I

a daily basis" (Tr. ), and her threats to go to an "outside" agency (sixth, supra), she feared that management would do anything to' shut her up (Tr. ).

Things came to a head on March 5, 1984, when, for the first time in years, after doing work at her table for about two hours, Mrs. English observed a " Rad Safety" man with a 18E nglish asked Lees' permission to bring him original data from the Chemet Lab in support of her charges. She was under

- the impression that such data was private and privileged.

When Lees denied permission, English refrained from producing such data on the ground that its removal without permission, even to bring to Lees, might be used as a pretext for her discharge (Tr. 2424- ).

39 -

G e frisker in the Chemet Lab. Considering this an opportunity to l

obtain tangible evidence in support of her previous complaints i that Rad Safety was negligent and/or incompetent (Tr.

), English asked the Rad Safety man to check her tab)e for contamination. Mrs. English was aware that the Rad Safety man should find that her work table was contaminated with visible uranium powder because she had been working with vials visibly i contaminated on the outside, from which contamination had i

unavoidably dropped to the table face in the course of handling, and from the tops of which uranium powder had i

escaped and dropped to the top of the table in the course of l handling. (Plaintiff's Statement of Facts, pp. 28-29). These unavoidable sources of contamination of table tops in the  ;

i normal course of work are familiar to all who worked or had worked as testers in the Chemet Lab, including Supervisor )

Lacewell (Tr. 1732-1733). Admittedly, these sources of contamination are not considered " spills" (Tr. 569): "a spill is something not done in normal course of work." (D&O, p. 3,

n. 3, 2nd par., Tr. 1076).

Mrs. English handled this contamination on March 5, 1984, as she had handled all such contamination in the past.

In the normal course of her work she brushed the contamination to the right rear area of her work table, against the barrier, to be removed at the end of her shift, meanwhile, lightly l wiping the work area immediately adjacent to her with a i

chem-wipe, and continuing her work (Tr.. ). It was i i

l l

at this stage that the Rad Safety man approached, passed his frisker over the table top, and pronounced her table top

" clean," confirming Mrs. English impression of Rad Safety ineptitude. D&O, 3, n. 3, second par., D&O, 9, 2nd par., 1st sentence (Tr. ). At the end of her shift she cleaned the entire table top of all' visible contamination (Tr.

).

Mrs. English's handling of that contamination was admittedly proper (Tr.  ; Plaintiff's Statement of Facts, 19-27).

Ninth, despite the fact that Mrs. English did nothing even arguably violative of any Company rule by asking the Rad Safety man to check her table top and by using his failure to find visible contamination thereon as corroborative evidence of her claim of Rad Safety incompetence or negligence, and despite the fact that GE did not assert to the ALJ or the Secretary of Labor that Mrs. English's conduct in that respect or any conduct on March 5, 1984, was a cause or reason for her

" banishment" from the Chemet Lab and from any job in a controlled area (D&O, p. 8, Brief for Plaintiff to ALJ, p. 71,

n. 50), and for her subsequent discharge, GE left a " paper trail" proving that her embarrassment of management by proof ,

of Rad Safety's incompetence and management's determination to l

prevent repetition of such embarrassment was, if not the only l cause, at least a principal cause or reason for the l

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q- .

" punishment"-(D&O, pp. 6, 10 (par. beginning " Additionally";

Plaintiff's Brief to ALJ, pp. 16-41).

'Then-Manager of Quality Assurance, later Plknt Manager, Lees (C-1, p. 9), on deposition, testified that on or about March 11, 1984, hedecided (id., pp. 35-36), on Manager Winslow's recommendation (id. , pp. 29-30), to transfer Mrs.

English out of the Chemet Lab (C-1, pp. 35-36). Lees-instructed Subsection Manager Sheeley to draft a letter effecting the transfer and forbidding her to enter the Lab without permission (C-1, p. 37, Tr. 831a-b, e, g, h; C-Sa and b). Winslow testified that he drafted the letter "a day or two" before March 13, 1984. Incidentally, Lees did not speak with Mrs. English between March 5 and the appeal hearing of May 1, 1984 (C-20, first sentence) (C-1, pp. 31-32) and neither. Winslow (Tr. 748-749), nor Sheeley (Tr. 831(h)), spoke with her before March 16, 1984, when Sheeley gave her the letter (C-Sa and b).

The letter dated March 15, 1984, which Sheeley drafted for Lees, charged five violations (C-Sa-b):

"l) the unauthorized removal of the personal survey' instrument from the entrance to the laboratory, 2) the deliberate contamination of a table, 3) failure to clean-up the contamination knowing it existed, 4) the continued distraction of other laboratory employees and 5) disruption of normal laboratory activities."

It stated that " Radiological surveys are the responsibility of the Radiation Safety organization which is trained and equipped for these evaluations." This implied that Mrs.

- 42 -

1

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.English's use.of the frisker to check suspected contamination, and her experiment with Rad Safety, was not within the scope-of her responsibility and privilege as an e'mployee and that her experiment designed to prove that " Rad Safety" was not

" trained and equipped" to detect contamination and did not in fact do so, was improper because it was " subversive" of management's interests.

C-18, attached hereto as Appendix E, is a " private" letter dated March 13, 1984, from Chemet Lab Manager Winslow to Fuel Quality Manager Sheeley, countersigned by each of Mrs.

English's. supervisors, the last two paragraphs of which state:

It is extremely difficult for Supervisors and other lab personnel to work effectively with Mrs.

English's current continuous accusations, assertions, allegations, etc.- Of extreme concern is her direct actions to promote her concern.

First, removal of the personnel monitor from an assigned survey station without specific supervision approval and second, purposely contaminating an area which could potentially create hazards for others.

Her action may be bordering on being considered subversive and her relationship with Supervision and certainly her creditability (sic) for management is rapidly deteriorating. Consequently, it is imperative that specific steps be taken to reassign Mrs. English from the Controlled Area of the Lab to preclude any potential purposeful action I on her behalf to support her concerns. (Emphasis added.)

In his sworn testimony, Manager Winslow reiterated that the reason he decided to remove Mrs. English from the Chemet Lab was because "she [took] deliberate action * *

  • to try to indicate that the company is not credible in its investigation and its findings, and she is deliberately trying to discredit i

4 I

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the on-going activities of the operation." Brief for Plaintiff to ALJ, pp. 11-12, incorporated herein by reference.

This is the closest GE came to admitting that the real

  • reason for the transfer was that management consicerad Mrs.

English's " direct actions to promote her [ safety, health and quality control) concerns," i.e., her attempts to obtain and preserve proof of violations, " subversive" of management's interests. (C-18, p. 2, last par.).

Tenth, Lacewell and Winslow admitted that what Mrs.

English did in placing red tape around the spill on March 9 and leaving it there through March 11, was no violation! (P.

Memo to ALJ, pp. 35-36; Complainant's Reply Brief to S.O.L.,

p. 26).

Eleventh, Supervisor Lacewell agreed to write a letter j l

exonerating Mrs. English from all the charges set out in Mr.

Sheeley's letter of March 15, 1984 (Exh. C-15(d)(1)-(2). He reneged when Messrs. Winslow and Davis instructed him not to j (Tr. 2444, 1724-2426, 1768-1769; Plaintiff's Brief to ALJ, p.

45-47; Complainant's Reply Brief to S.O.L., pp. 30-34).

)

Twelfth, Supervisor Lacewell asserted and insisted that he had made and provided Mr. Winslow (Tr. 1677-1678) with virtually contemporaneous notes of his conversation with Mrs.

English on March 11, made on March 12, 1984. GE did not produce those notes, albeit under instructions from the ALJ to do so if they were extant (Tr. 1095-1106; Plaintiff's l 1

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Thirteenth, in marking the found contamination with' red i tape on March 9, 1984, and preserving it to show Per supervisor on March 11, Mrs. English f ollowed what she understood to be a Company policy. Plaintiff's Statement of Facts, pp. 30-34.

Fourteenth, neither Messrs. Lees, Long, Winslow, Sheeley nor any of the supervisors actually investigated any of the events involving Mrs. English or other offenses pertaining to contamination assertedly because "it was not a question of what really happened; it was a question of what had been communicated [by Lacewell]" (Tr. 749, Br. for

~ Plaintiff to ALJ, pp. 26-27. This failure to investigate was in violation of the Company's own rule (Exh. C-12a, p. 49, attached hereto as Appendix F; C-12b, p. 1, 2.2., attached hereto as Appendix G: " Prior to taking action which would result in disciplinary time off or discharge, the circumstances must be reviewed with Employee Relations to assure a thorough review of the facts and plant-wide uniformity of disciplinary action." (Emphasis added.)

Failure even to interview Mrs. English, or to investigate her claim that others were responsible for the incessant contamination of her work place, " failure to follow acceptable work habits" (C-12(b), p. 5, Rule 3.7.7), and Davis' refusal to reveal the identity of her accusers (although known to

_m; '.-

)

him), confirms that Winslow's seizure upon Lacewell's hearsay version of what Mrs. English had allegedly communicated was l

wilfully pretextual. Consolidated Edison Co. of N.Y.,'Inc. v.

Donovan, 673 F.2d 61, 64 (1982)..

III. THE ALJ-CORRECTLY FOUND THAT GE " FRAMED" MRS. ENGLISH ON A PRETEXT.IT HOPED WOULD " STICK" (D&O, p. 10)

The penultimate paragraph.of the letter quoted above describes two acts of Mrs. English as of " extreme concern," rendering her removal from controlled areas of the

. lab ' imperative . " But, neither in the letter which Sheeley drafted for Lees (Exh. C-Sa-b), attached heret.o as Appendix H, nor in the letter to Mrs. English (C-20, attached hereto as Appendix I), nor in its explanation to the ALJ or to the Secretary did GE refer to four of these these alleged actions of Mrs. English as the reason (or even a reason) for the

" banishment" or discharge. Complainant's Statement of Facts, pp. 19-27; Complainant's Brief to ALJ, pp. 44-47; Complainant's Reply Br. to S.O.L., pp. 27-31, 32-34,.both hereby incorporated herein by reference.

The charge of " unauthorized" removal of the frisker was admittedly dropped on appeal, but not because, as the letter pretends, removal "may actually have been authorized by Mr.

Lacewell." It was . oped because, as Lacewell testified and the ALJ found ( pr.0, p . 5, 1st full par., last two sentences),

Lacewell to35 hinslow on the morning of March 11, 1984, that he had in fact authorized Mrs. English to use the frisker l

i

a. .

without any jimitation on the day'inLquestion (Tr.

) '.

g The second allegation was dropped'because management 1-knew, as Mrs. English at all times insisted, that it was not she but other.a who had " contaminated [the] area" of the table

~

legs and floor thereby "potentially creat[ing) hazards for L others." (D&O, pp. 4-5, 11 ("In demonstrating the malfeasance of others").

Yet, Mr. Lees, who was responsible for Mrs. English's

" banishment" admitted in his letter of March 15, 1984, that he had predicated " banishment" at least on 1 and 2 (D&O, p.-5).

On deposition Lees admitted that neither he nor anyone else in GE had ever considered whether banishment was too severe a remedy, assuming charges 1 and 2 were unsubstantiated.

GE's only asserted factual defense against-these findings was that Mrs. English was paranoid with respect to safety concerns and would stop at nothing to frame management-for wholly imaginary violations (D&O, pp. 7, 8-9; Plaintiff's-Brief to ALJ, pp. 44-48; Reply Brief for Complainant to S.O.L., pp. 27, 28-34, incorporated herein by reference). The ALJ found that this fear "may be logical if management's view of [Mrs. English's] personality is accepted" (D&O, p. 9, second full par., penultimate sentence), but, for the reasons and on the evidence recited (D&O, pp. 8-10), he totally rejected GE's alleged view of Mrs. English's personality, and found that Mrs. English was competent and sincere (D&O, p. 8) l

s
  • I L and that management's alleged view was "belird [ inter alia) by

[GE's) inertia in regard'[to) repeated violations of safety rules'by other employees" (D&O, pp. 9, 10); complainant's Reply Brief to S.O.L., pp. 1-27, incorporated herein by j reference.

A.- The ALJ Correctly Found That Mrs. English Did Not Deliberately and Willfully Violate The Company's Alleged "Immediate Clean Up Rule" GE asserts (Response 1), that petitioner "by her.

own admission deliberately and willfully violated" the alleged immediate. clean up requirement. Again, GE asserts.(LS., 3, 4), that Mrs.'English " repeatedly admitted that she deliberately and willfully violated GE safety, standards, thus endangering not only her own health and safety but the health and safety of other GE employees." GE cites not a' scintilla of evidence other than the alleged'" admissions." Not a syllable in the allegedly supporting record references to

" admissions" even remotely suggests that Mrs. English admitted that what she actually did violated (much less " deliberately or willfully" violated) GE safety standards, or endangered her own er any others' health and safety. Moreover, GE falsely )

asserts (Response, p. 10) that "the ALJ recognized that English deliberately violated * * *" (ALJ Decision, pp. 10, 11, 13). The truth is exactly the opposite. The ALJ said

. (D&O, p. 11), "I do not consider that s. English deliberately caused a violation under the circumstances of this case." (Emphasis added.)

i

9 ,

. What is undisputed, but unmentioned by GE, is that the spill on the legs of her table which English attributed to others but admitted she " deliberately lef t there" on March 9, l 1984 (Response, 4, n. 3), had been deliberately o'. negligently l

-- in total disregard of the severely adverse effects on Mrs.

English -- placed there by other workers using the same work place on a shift or shifts other than her own (D&O, p. 6);

that Mrs. English unswervingly, from beginning to end, 1

insisted that she had been taught by GE to mark such spills, for which others were responsible, with red tape to warn others of the danger and to report the matter to supervision as soon as feasible (Tr.  ; Complainant's Reply Brief to S.O.L., pp. 24-34); her credible testimony was not competently denied. Thus, far from admitting that she deliberately or willfully violated any safety rule, Mrs.

English acted on the assumption that her conduct complied with GE's rule and policy (D&O, p. 11). Moreover, as Mrs.

English testified and the ALJ found (D&O, p. 11; Tr.

), Mrs. English " knew that she could expect no credence to her complaints without tangible evidence" (D&O, pp. 4-5), and thus, " retention was the only means available to provide visible proof to support her past and immediate allegations" (D&O, p. 11). GE does not deny this. Mrs.

English's good faith and the validity of her contention that she committed no violation of any rule by f ailing to clean up the spills of others is established by the fact that Mrs.

1 1

English promptly and voluntarily pointed out what she had done, and reiterated her refusal to clean up such spills, to her regular supervisor, Lacewell, as soon as he appeared on Sunday evening after a week's absence, while the red tape and the contamination were admittedly still chere. (D&O, pp. 4-5, >

11).19 Most significantly, even though he admitted that Mrs.

English told him about leaving the contamination of March 9, surrounded by red tape, Lacewell did not claim that he then advised Mrs. English tnat she had violated a Company rule (by so leaving the contamination, indeed he admitted he thought she had done nothing wrong (Tr. ), and did not instruct her to clean up the contamination she had left surrounded with red tape. Thus, both the undenied testimony of Mrs. English and Lacewell's silence disprove GE's claim that Mrs. English violated, much less that she " deliberately and willfully" violated, GE's rule.

Indeed, Lacewell's narrow denial that Mrs. English

" pointed out the contamination surrounded by red tape, or seeing the red ta?e" (D&O, p. 5, second full par), is not credible, because it irrationally assumes that Mrs. English had abandoned the very purpose for which she had preserved the contamination - to show it to Lacewell when he arrived. It 19A ny " ambiguity" or " confusion" in the GE documents Mrs.

English relied on (D&O, p. 5, n. 4), must be construed against GE as the draftsman of those documents. On the other hand, the documents must be read in the light of the oral instructions Mrs. English testified (Tr. ) without contradiction, she received when she came to work.

1 l

i

is reasonable to ascribe Lacewell's narrow denial to his self interest in attempting to evade responsibility for his own failure to investigate who was responsible for so contaminating the table, and ordering the contamination removed. (Cf. D&O, p. 6, last portion of long par; p9, second full' par., last sentences; p. 11-("Once the matter was brought

.to a'ttention of management, an order should have issued to clean the stain. At least the Radiation Safety man should have been called in * * * . ")

However, the fact is that on GE management's'own testimony, GE did not, and it could not have, banished Mrs.  !

English from the Chemet Lab and laid the groundwork for her subsequent discharge because of her alleged breach of the rule requiring immediate clean up of contamination, assuming, q arquendo, that she did breach that rule on March 9 through 11, i 1984, as GE finally, but belatedly, contended (Response, pp.

3-5). The reason is that Winslow, who drafted the memorandum to Sheeley on which Sheeley's letter to Mrs. English of March 15, 1984, was based, concurred with Lacewell (Tr. )

in testifying that Lacewell did not mention contamination on the legs of Mrs. English's table, which she failed to clean up l but instead surrounded with red tape (the belatedly alleged breach of GE Rule 6.1.0), until a " couple of weeks" after Winslow drafted C-18, on or about March 13 (Tr.

793(a)-793(e)).20 B. The Record Supports the ALJ's Material Findings GE argues (Response, p. 17), that "the ALJ was simply wrong on the facts when he found that Mrs. English's i removal from the Chemet Lab was prompted by GE's annoyance and embarrassment at the supposed wholesale disruption in the 1

, 20The ALJ observed: "if it was done [i.e., reported) afterwards, how could it have anything to do with the letter?

(Tr. 739(e)). Thus, GE's own testimony belles its assertion that it was "as a result" of her leaving a contaminated spill, in alleged violation of GE rule, on March 9-11, that she was disciplined (Response, pp. 5, 7).

w________________-_-_-____-_. _

fc j

.'. 3' n Chemet Lab caused by the investigation of Mrs. English's February,1984 NRC complaints." GE's argument is that the filing'of those NRC complaints and consequent NRC inspections could not have been responsible for "GE's annoyance and embarrassment" because GE assertedly did not become aware of Mrs. English's complaints until "sometime after the week of March 26, 1984, after Mrs. English had been removed from the Chemet Lab on March 16, 1984" (Response, p. 18). Cf.

Mackowiak v. University Nuclear Systems. 735 F.2d 1159, 1162, 1163 (9 Cir., 1984). But, even assuming arquendo, and contrary to fact,21 that.GE did not learn of the filing of Mrs. English's February, 1984, complaint until March 26, 1984, the ALJ's error is immaterial.

The reason is that GE admits (Response, p. 44), that Mrs. English had "not hesitated in the past to make numerous safety complaints to NRC and GE," and documentary admission confirms that Mrs. English in January, 1984, had threatened, if her complaints were not rectified, to take her complaints to "outside authority," i.e., NRC, supra. (Plaintiff's Exceptions, pp. 65-71, 98; Complainant's Reply Brief to I i

S.O.L., pp. 23-24; Tr. 1313, 1315, 1324). Where animus against filing charges exists, it is enough to establish discriminatory motive that the employer suspects that the l

, 21I n a small plant like GE's, in a small (indeed Company) town, like Wilmington, North Carolina, the law presumes that l management learns quickly about what it considers anti-Company activity, such as the filing of a complaint by an employee ,

against the Company with NRC. I Morris, The Developing Labor Law, Second Ed., 1983, p. 194, n. 80 and accompanying text.

l

9 O employee "[is]-aboutfto-file a charge * * *." 1 Morris, The-1 Developing Labor Law (Second Ed., 1983), p. 258 and cases-cited at n. 457. Moreover, Winslow admitted that Mrs. English had been' considered " subversive for some time" (Tr. 765)..

In chort, it makes no difference whether the reason for management's annoyance and embarrassment was "the work disruption caused by the NRC investigation of her safety complaints" (Response, p. 18), because the " paper trail" and the admissions of GE's managers on deposition and at trial adequately. establish the predicate for inference that management was upset by, resented and feared the consequences of Mrs. English's discovery and complaints about safety and quality violations; that GE considered her ex'posure'of management's misconduct " subversive," and that management determined to avoid such " subversive" conduct in the future by removing her from the Chemet Lab and all controlled areas.

Brief for Plaintif f to ALJ, pp. 10-13. As shown by Plaintiff's Exceptions to the JLJ 's Repor t, supra, plaintiff excepted to the aforesaid ALJ subsidiary findings and to his failure specifically to find that GE's management's fear and resentment arose from the fact that Mrs. English preserved evidence of and would not remain silent about her safety and quality " concerns" and therefore determined to remove her, first from the Chemet Lab and later from the entire plant, in

, reprisal. Nevertheless, the ALJ's conclusion is consistent with plaintiff's theory: the ALJ found that GE determined to

)

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. 1.

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" rid itself" cf Mrs. English because she would not stop reporting violations.co.NRC (D&O, p. 10).

GE further' claims (Response, pp. 18-20) that the ALJ.

"made an even more critical error" in. relying upo.1 tae i i

. undisputed fact that Mrs. English "was the only person ever removed from the1 Chemet Lab for failure to clean up I contamination" (D&O, p. 6, second full par., sentence in  !

middle of par.).22 GE claims that there are two flaws in the ALJ 's reasoning that "English was disparately punished." l The first is that "English's removal from nuclear-sensitive areas was a ' disciplinary' matter. It was not" (id.). That denial is predicated upon now dividing the suspeasion from the banishment and claiming that the former was the only " punishment," while the.latter was " deemed a necessary safety precaution prompted by management's fear that 22The Response (at pp. 18-19), deliberately truncates the ALJ's finding, asserting that the ALJ concluded; that other GE employees who had failed to follow safety rules were similarly removed from their job.

(ALJ Decision, pp. 6, 9-10).

GE would thereby misdirect attention from the ALJ's finding that those who had deposited the uranyl contamination at Mrs.

English's workplace were the ones responsible under GE's rule, properly and logically construed, for cleaning it up (D&O, p.

9, second full par., last sentence; p. 10, (a) and (b)), and i focusing entirely upon the analogy, also drawn by the ALJ, to failure to frisk violations (D&O, p. 10 (c), and n. 6). In the fo6. pages (Response 18-22), designed to distinguish failur tt: fri.2 violations from English's failure to clean up contamination, GE refers to the other employees -- who both deposited the uranyl contamination and failed to clean it up

-- as being guilty only of " untidy housekeeping" (Response, p.

21).

l l

l

.. . 1 English might go to even more dangerous lengths in the future to support her safety complaints" (Response, p. 20).

This is a belated, fabricated, afterthought, which was 4 l

never even suggested to DOL. In seizing upon and thus j 1

transforming the explanations for the banishment. offered in testimony long after the event by'a supervisor and the manager of the Chemet Lab (Response, p. 20), GE overlooks that Lees earlier admitted on deposition that it was he who ordered banishment as punishment for Mrs. English-at a time when ne thought she had deliberately contaminated her work table, supra, an offense obviously more " serious" than mere failure to clean up. See also Winslow testimony (Tr. 739(b)-739(h)).

GE also overlooks that the Under Secretary of Labor explicitly and repeatedly found that all of the " action" taken i by Mr. Sheeley on March 15, 1984, was " disciplinary action" (Response, App. A, pp. 3, 6, 7-8). Moreover, neither the ALJ nor the Under Secretary could possibly have found otherwise because the Sheeley letter, delivered to Mrs. English on March 15, 1984, was captioned "

Subject:

DISCIPLINARY ACTION."

Exhibit C-5(a) (Appendix H, hereto), supra. Indeed, that document asserts that because " deliberate contamination and failure to clean up promptly" is so " serious," " disciplinary action", is required: "a mere warning is not sufficient" (Id., p. 1), and "your unprecedented disregard of safety rules demand that you will no longer be allowed to work in a controlled area." (Id., at 2; emphasis added) .

e .

In the context of GE's parity of treatment argument, it must be emphasized that although Mrs. English was subsequently exonerated of the frisker and " deliberate contamination" charges, and was found to have violated only one rale, those workers who were guilty of both offenses (contamination and failure to clean up) were not even warned!

Indeed, GE's attempt to explain and justify the banishment and subsequent discharge (ignoring the hostility) i as prompted by " management's fear that English might go to i

even more dangerous lengths in the future to support her safety complaints" (Response, p. 20), is belied, inter alia, oy the admissions of two officials under oath (supra), that the " lengths" to which Mrs. English had previously gone were not violative of any GE rule. (Plaintiff's Memorandum to ALJ in Support of Motion for Award, pp. 31-40) 23 Because the effect of banishment and discharge for what Mrs. English did is to preclude exercise of employees' Section 210 right to inform authorities (internal and external), of perceived employer violations, the " fears" asserted at Response, p. 20, are no more lawful predicates for discipline than the ancient, ,

long- outlawed Star Chamber offense of " imagining the death of the King.a24 Moreover, GE's attempt to distinguish between

" disciplinary" and " precautionary" measures in this context 23A ccording to both Lacewell and Winslow, Lacewell did not even mention to Winslow before the 15th that Mrs. English had j preserved the stain or placed red tape around it (Tr.

739(c)-(d)).

24 GE's attack on English's rationality and credibility Footnote Continued

6. D-(Response 19-21) is frivolous. It is universally recognized that " punitive" measures are designed to deter future violations,.as well as to exact reprisal for past violations.

Thus, if GE " discriminated" against Mrs. English "in practically any job-related fashion" (DeFord v. Secretary of Labor, 700 F.2d 281, 286 (6th Cir., 1983), for any form of protected activity, it is no defense that the employer may have feared that in the future the employee's legitimate ,

l safety and quality concerns might lead her to engage in i'

non-protected conduct.

Secondly, GE faults the ALJ for failure to distinguish between English's alleged violation and others' because her violation was allegedly " deliberate," whereas the others were l assertedly merely " unthinking," " careless" or " negligent" (Response, pp. 19-23, 24). But although state of' mind is-admittedly (Tr. 755) a question of fact (Alkens case, supra, 460 U.S. at 716-717), GE did not seek to adduce the testimony of even one violator (of any rule; failure to frisk or otherwise) to support its present characterizations of their state of mind.

Thus, even assuming, as GE argues (Response, pp.

20-22), that a distinction based on state of mind may be l . legally relevant in differentiating the degrees of punishment imposed on various categories of violators, GE's characteri:ations are entirely hypothetical and i_

Response, p. 20, n. 13, was answered in Plaintiff's Reply i

Brief to the S.O.L., pp. 1-28, 43-44.

l

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supposititious; they are not based upon even a scintilla of I i4 record evidence with respect to the state of mind of the other  !

1 violators. As an affirmative defense to-the disparity of )

treatment finding, the burden was on GE to produce e"idence of the state of mind of the other individual rule violators (D&O, third full par.; Standard Products Co. v. NLRB, 125 LRRM 3246, 3250, n. 3 (4 Cir., 1987) (burden of proof of parity of treatment of employees similarly situated on the employer);

cf. Mackowiak, supra, 735 F.2d at-ll63-1164, D&O, pp. 9-10.

GE also argues (Response, n. 12, p._ 19):

It was especially inappropriate for the ALJ to find that GE's safety concerns.regarding English's violation were belied by the Company's-response to employees' failure to frisk before leaving the Chemet Lab. During'the hearing before the ALJ, GE tried to adduce testimony regarding steps the Company had taken to deal with this problem, but the ALJ ruled such evidence irrelevant and refused to permit the testimony. See Tr. 2094-2098.

The assumption (Response, text accompanying footnote 12) underlying tne first sentence is that employees who left the Chemet Lab without frisking did so "unthinkingly." But the ALJ destroyed that argument when he observed that, as he read NRC inspection report, C-37, 84-04, p. 6, there is "a strong  ;

inference" (Tr. 754) that at least one individual had omitted frisking " intentionally" and " deliberately" (Tr. 756).

The second sentence of the footnote, relating to " steps the Company had taken to deal with this problem," pertained exclusively to expenditures of money the Company had made to facilitate frisking, not one word was offered as to punishment l>

of anyone for failure to frisk in violation of the rule.

That, as the. record references in the Response themselves show, was the reason the testimony was excluded as' irrelevant.

Moreover, GE's implication that failure to monitor oneself after leaving the Chemet Lab has little or no health and safety implication is refuted by the unrebutted testimony of Dr. Kenneth Mossman (Tr. 1362-1365, 1369-1373).

IV. GE' S ATTACK UPON THE SOCI AL ,VALUE OF MRS. ENGLISH'S GOOD FAITH CONDUCT STANDS THE POLICY OF CONGRESS ON ITS HEAD It is GE's argument that an employee, like Mrs.

English, who preserves evidence of perceived safety violations in order to support her good faith complaint that her nuclear employer is engaged in safety violations is " misguided" (Response, pp. 21, 24), and its repeated application to such employees of the pejorative - " vigilante" -- (id., pp. 21, j 22, 29), which turns Congress' policy "on [its] head" (Response, p. 24).25 GE builds its perverse argument on the premise (Response, p. 27) that " employers * *

  • are * *
  • expected to comply with safety requirements." Section 210 and its legi3'"o "'  ; i' e:xca ; rate that this is demonstrably untrue. Congress clearly expected that in the interest of profits, nuclear employers would not comply with safety requirements, but would act to cover up non-compliance. In 25This case belies the representation (Response, p. 44), that GE " actively encourages its employees to speak out about safety concerns."

e ,.

such cases, usually.only employees would'be aware of or

-knowledgeable about such~ concealed mis' conduct, since NRC's detection facilities were inadequate, employees mist be encouraged to become the " eyes and ears of the NRC" in-apprehending and reporting perceived uncorrected violations.

The proclaimed purpose of S 210 is "to encourage employees and union officials [to) * *

  • help assure that' employers do not violate requirements of the Atomic Energy Act." S. Rept. No.95-848, p. 29.

Far from " misguided," the efforts of employees to expose what they in good faith perceive to be uncorrected employer safety and/or quality violations, Congress.thus deemed indispensable to effective enforcement. In contrast to the pejorative'" vigilante," Congress considered the role of employees in exposing and attempting to prove employer violations to be the most honored and valuable role of

" private attorneys general" whose so-called " vigilantism" was to be encourage and rewarded. Brief for Plaintiff to ALJ, pp.

1-10. Indeed, in 5 210, Congress merely applied and gave additional statutory protection to the Constitutional right of nuclear employees to " inform of a violation of law" (In re Quarles, 158 U.S. 1080, 1081 (1895), by their employer. As stated in Quarles, supra, at 1082, "it is the duty of * *

  • government to see that he or [shel may exercise this right f reely * *
  • in the interest of * *
  • the government itself."

r-Congress understood that management would regard such whistleblowing as " disloyal," i.e., " subversive." But it

~

subordinated management's interests to the employees' and the public interest in exposure of nuclear employer lew' breaking.

What GE derogatively terms " vigilante," the Ninth Circuit properly termed " legitimate activism." Mackowiak, supra, 735 F.2d at 1165.

V. GE'S WOODEN MISCONSTRUCTION OF S 210(g)

WOULD ENABLE NUCLEAR EMPLOYERS AT WILL TO REPEAL S 210 GE asserts that even if preservation of the " stain" left by employees on prior shifts was, as the ALJ.found, "the only means available to provide visible proof to support her past and immediate allegations" (D&O, p. 11), if such preservation, surrounded by red tape, was deemed by management to violate GE Rule 6.1.0., it justified, or even compelled, under Subsection (g), " banishment" and discharge, Response, 13, 16, 22, 23-30. Thus, GE argues that subsection "(g)"

"withdr[elw from those who do not comply with any nuclear employer safety regulation protection that would otherwise exist ur. der the ERA. " (Response, p. 28). It asserts that (id. 24):

The language and policy behind ((g)) show that GE responded properly, and * *

  • the ALJ's contorted J construction of 210(g) would turn the rules governing nuclear safety on their head.

GE's argument simply ignores the legislative history 1

which authoritatively reveals that the " language and policy" of "g" is far narrower in purpose than the blanket deprivation of protection to all whistle blowers who (even necessarily, in l

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w .,

order to exercise their right under 5 210, violate any NRC approved Company rule without employer permission. Senate Report No.95-848, p. 30, expla' ins that:

In order to avoid abuse of the prctection afforded under this section, the committee has added a provision ((g)] which would deny its applicability to any employee who, without direction from his employer, deliberately violates or willfully contributes to a violation of any standard, requirement, or regulation under the Act.

(Emphasis added.)

In short, subsection (g) was added in response to the problem posed not by employees who report safety violations in

" good faith" -- even the most restricted reading of 5 210 recognizes that 5 210 must and " clearly does protect an employee against discharge for filing ,

complaints in good faith before federal and state 1 agencies and for registering grievances through channels appropriate in the particular employment setting. (Emphasis added.)

Hochstadt v. Worcester Foundation, Etc., 545 F.2d 222, 231 (1 Cir., 1976); D&O, p. 11, n. 8. Subsection (g) was added to prevent perversion of 5 210 by employees who would misuse that protection in bad faith, i.e., by attempting to gain immunity

.to merited discharge for other reasons by themselves breaking

)

a valid rule or policy, reporting the break anu then claiming that the discharge resulted not from the independent cause but from their report of the break. In short, GE not only impermissible disregards the narrow purpose of (g) as established by the legislative history, but the fact that courts had already become familiar, before (g) was enacted, l

with the tactic resorted to by some bad-apple employees of perverting the whistleblower protection of analogous statutes.

63 -

t Br. for Plaintiff to ALJ, p. 14, quoting Fidell &' Marcoux, The Nuclear Industry Employee Protection Provisions of Federal Law, Public Utilities Fortnightly (Nov. 11, 1982), p. 5:  ;

The Labor Department and the courts are ,amiliar with the chronic malcontent who will make a safety complaint more out of an effort to save his job than to ensure public safety.

Of course, GE cannot confront the actual purpose of (g), because the ALJ found, supra, that not only did Mrs.

English act in " good faith" but that there was no cause for her discharge other than her " protected activit$ " and that .

I she did not " deliberately" violate Rule 6.1.0.

GE's overbroad reading of(g) also violates legal principle for yet another reason. It is uniformly. recognized that the federal whistle-blower acts share a broad, remedial-purpose of protecting workers from retaliation based on their concerns for safety and quality.

Mackowiak, supra, 735 F.2d at 1163; Br. for Plaintiff to ALJ, i

.pp. 3-10. Thus, in effect, if not in form, (g)-is a proviso to 5 210, and, as an exception, must be narrowly construed to effectuate the " primary purpoce" or 5 210. Whirlpool Ccrp. v.

Marshall, 445 U.S. 1, 13 (1980); Crescent Express Lines v.

U.S., 320 U.S. 401, 409 (1943); FBI v. Abramson, 456 U.S. 615 (1982).

Moreover, as the ALJ noted (D&O, p. 11), GE's construction "would be patently unfair and defeat the purpose of the Act." As for unfairness, the ALJ observed (id.), GE "would have Mrs. English continue to abate violations caused j

_ __ _ _ - _ - _ _ _ - - _ -- __-- _ - - - _ _ _ - _ _ _ _ _ _ - _ - - _ _ . _ - - _ _ _ - _ - _ - - _ _ _ _ _ _ . -_____ _ Y

p.-

t .-

by others'-- namely to continue to clean up contamination left by employees on prior shifts in violation of NRC requirements." ,

As to defeating the purpose of the Act, any employer could make it impossible.for any employee to exercise tae ight guaranteed by 5 210 by adopting a rule' requiring employees to 1

abate. violations caused by others and coupling that rule with )

)

refusal to entertain or investigate any complaints of violation "without tangible evidence" (D&O, p. 11). For additional answers to GE's "g" argument, see Br. for Plaintiff to ALJ, pp. 70-80, Complainant's Reply to Respondent's Motion to Dismiss and/or Motion for Summary Judgment, filed Oct. 31, f 1984, and Complainant's Reply Brief to S.O.L,, pp. 27-44, i

showing, inter alia, that since the contamination Mrs. English confronted on March 9, 1984, was a " stain" and not a " spill" (D&O, p. 11), cf. Response, pp. 5, 7), Rule 6.1.0 was i

inapplicable. Complainant's Reply Brief to S.O.L., pp. 32-34..

GE also berates the ALJ for describing Mrs. Engl'ish's preservation of evidence supporting "her past and immediate allegations" as " unorthodox." But GE ignores that she was compelled to resort to that method by GC's refusal to pay any attention whatsoever to complaints which were not supported by

" tangible evidence" (D&O, p. 11). Thus, as the ALJ found (id.), GE left Mrs. English no alternative but to forego exercise of her right and duty to report to management violations caused by others, or to preserve the only tangible evidence thereof, thereby rendering herself liable to a charge of violating Rule 6.1.0, as management thereafter, for the 1

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n.

first time, asserted that it so construed that. Rule. As the b ALJ properly held: "GC cannot have it both ways" (D&O, p. 11).

VI.. THE SECRETARY OF' LABOR'S CHALLENGED "NO CONTINUING VIOLATION"' DECISION IS INSUPPORTABLE We have fully answered GE's statute of limitations L

argument (Response, pp. 37-41), in Appendix A, attached' hereto..

It is necessary to add only that by its own quotation from the Secretary's opinion,' Response, pp. 37, 41, GE demonstrates the i

utter legal untenability of the Secretary's theory, namely~ l

-that only one alleged violation of Section 210 occurred in this case.. Assuming that mere notification of a decision to discharge.at a future date may be treated as one and the same as a-discharge, when the discharge is the " inevitable consequence" of the notice, it cannot be'so treated where, as ,

i we have shown on brief, it was not so here. Moreover', as we have'shown, where the notice is coupled with a discriminatory transfer, the transfer and the subsequent discriminatory discharge (to say nothing of prior and subsequent acts of hostility) cannot legally be collapsed.into one, single, act.

That is proven by the 9th Circuit's decision in Mackowiak, supra, 735 F.2d at 1162:

that UNSI discriminated against Mackowiak by giving him Confidential Counseling Statement, by transferring him to less desirable employment, and-by discharging him ahead of less senior inspectors.

The most recent Court of Appeals decision on point i

~

demonstrates the error of GE's argument (Bruno v. Western Electric Co., 44 FEP Cases 1419, 1421:

p'4:'. , g 1' .

i The continuing' violation can be either a company-wide policy of discrimination or.a series of related acts taken against a single individual.

l It is not true, as GE argue's,.that each of the discriminatory acts against an individual must itself be "continairg" (Response, pp. 38-39, 40); it is enough that each of such acts, although complete in themselves, be "related."

Respectfully submitted, n

( ]* 'hWW 1M ANTHONY Z. ROISMAN 1401 New York Avenue, N.W.

Washington, D. C. 20005 Of Counsel:

MOZART G. RATNER Mozart G. Ratner, P.C.

5225 Wisconsin Avenue, N.W.

Washington, D.C. 20015

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Hugh L. Thompson, Jr.

Director Office of Nuclear Material Safety and Safeguards-  ;

U.S. Nuclear. Regulatory Commission  !

Mail Stop SS-958 l Washington, D.C. . 20555 1 '

Dear Mr.:

Thompson: i Enclosed please find the General Electric Company's reply to Vera English's latest pleading which she filed in support-of her " Petition for Enforcement Action." Copies of the reply have been-provided to the persons noted on the attached service list.

Sincerely, ,,

/

l ,f d s .' a w .... -

Thomas A. Schmutz l

Enclosure l

i l

l l

l i

[-

c

,,r o RESPONSE OF GENERAL ELECTRIC COMPANY TO VERA ENGLISH'S REPLY IN SUPPORT OF SECTION 2.206 PETITION General Electric Company has carefully reviewed the Reply of Vera English in support of her Section 2.206 petition and believes that a response is warranted in only three areas. First, as to the legal issue of whether GE can be held liable for a " con-l tinuing violation" based on English's removal from the Chemet Lab, English has so distorted the concept of a continuing viola-  ;

tion that a response is plainly in order. Second, properly recognizing that the unadopted ALJ decision cannot itself form the predicate for NRC action, English has set forth numerous fac-tual contentions allegedly supported by the DOL record. In doing I

so, however, she so misconstrues and misrepresents the actual facts that GE feels compelled to correct her most egregious misstatements. Third, and finally, GE believes that a brief com-ment is required to show why English's contorted construction of Section 210(g) of the Energy Reorganization Act (" ERA") would render that provision meaningless.

A. GE's Transfer of English Could Not Constitute a Continuing Violation Without reference to any legal precedent, English continues to press her shopworn claim that her transfer by GE, if found to violate Section 210, constitutes a continuing violation. English

. makes this claim despite the fact that the Secretary of Labor expressly and correctly found that GE's actions, even if unlawful, would not constitute a continuing violation. See NRC and judicial decisions cited at pp. 37-41 of GE's earlier sub-

\ z mission to the NRC. See also GE's.brief to the Fourth Circuit in English's appeal of the Secretary's decision, a copy of which accompanies this Response.

English dismisses the Secretary's decision as well as the clear holdings of the courts on the basis that:

In contrast with a discharge which is not, by itself, a " continuing violation" for statute of limitations purposes, every day that a discharge remains unremedied is a " continuing violation" or a separate offense for remedial purposes.

Eng. Reply at 23. In support of this novel proposition, English, not surprisingly, fails to cite any legal precedent, but instead bases her conclusion on the following " logic":

1. That English, soon after her layoff by GE, claimed that G3 violated Section 210.
2. That GE, in order to contest her claim, was required to " compensate" her, subject to j recoupment;_ and i I
3. Having failed to compensate her prior to con-testing her claim, GE is guilty of a continuing violation.

)

I This makes no sense. The very notion that an employer 1 i

can avoid a finding of " continuing violation" only by fully compensating an employee who merely claims a violation of Section 210 is preposterous on its face. Neither the ERA nor any 1/ In her Reply, English makes the astonishing suggestion that she should have been offered back and front pay shortly after layoff, subject to recoupment if her claims of wrongful termina-tion were found to be groundless. According to English, had GE taken this course of action, no continuing violation could be found.

I 1

I

n i other stat $te, rule, regulation, or principle of law requires, or could require, an employer to assume at the outset that a claim is justified or otherwise compensable as,a condition prece-dent to contesting that claim.

Similarly, English is plainly wrong in arguing that GE some-how is guilty of a continuing violation because its failure to fully compensate her resulted in an intimidating " impact" on the remaining-work force. In the first place, such an argument is belied by the Department of Labor's conclusion, in investigating  !

and dismissing subsequent 210 claims, that there had been no such

" impact" resulting from GE's dealings with English.2/ In the second place, the question of whether GE's transfer of English constitutes a continuing violation (if a violation at all) must be measured solely by GE's treatment of English. Indeed, to view the law as English does would necessarily result in subjecting every NRC licensee to penalties for a continuing violation if the licensee unsuccessfully contests a claim of discrimination.

Plainly neither the law, the facts, nor common sense can coun-tenance such a result. ,

In summary, English's entire claim that GE has committed acontinu[ngviolationofNRCregulationsispredicatedon the fact that GE chose to defend itself against English's 2/ See DOL August 30, 1985 letter reporting results of investi-gation in Malpass and Lewis v. General Electric, p. 2

("[W]e found no evidence of information being withheld from us by employees due to fear of intimidation or reprisal").

i. 4-

_4_

complaint before the Department of Labor rather than simply

. opening up the cash box and making payments on what it believed ,

to be a meritless claim. Clearly, neither GE nor any other employer can be subjected to increased civil penalties for having exercised that right.

B. English's Factual Assertions Are Unsupported As pointed out in GE's earlier submission to the NRC, English was removed from the Chemet Lab and other controlled' i areas of the Wilmington facility because she made a conscious and deliberate decision to violate established nuclear safety proce-

~

dures by leaving a radioactive spill in the Lab, allegedly in a misguided attempt to prove that GE management and her co-workers l

were lax about safety matters. See GE Response at 2-8, 16-23.

English's present purported recitation of the " factual" record before DOL only underscores the lack of any credible evidence that GE's action violated either Section 210 or NRC regulations. ,

Indeed, for the most part English's " factual" assertions are

" supported" only by citations to her own briefs before DOL, to I unidentified "Tr. " references, or to portions of the ALJ decision or record that-plainly do not support her assertions.1/

Accordingly, our comments are directed only at her most important misrepresentations.

J/ Take, for example, the first of English's laundry list of factual assertions at page 35 of her Reply. There English contends that (Footnote continued on following page)

s. , s  !

I

1. Allegation that GE Decisionmakers Did Not Know of English's safety violation Until After Her Removal From the Lab i l

Perhaps the most important of English's erroneous factual )

l assertions, from a substantive standpoint, is her contention that her removal from the Chamet Lab could not possibly have been (Footnote continued from preceding page) the ALJ credited Mrs. English and her supporting witnesssa as to management's and many fellow workers' persistent " hostility" toward ' even antedating 1982 ... arising from her havxng openly voiced safety and quality concerns to management...."

For this proposition, English cites to three places in the ALJ's decision: p. 2,n.2;p. 3, 2d paragraph; and p. 12, 2d full paragraph, first sentence. In point of fact, however, the referenced portions of the ALJ's decision actually state as follows:

1. At p. 2, n . 2, the ALJ stated:. "Many of the allega-tions and contentions of both parties were too far removed in time to have any significant relevance to this case. Accordingly, ... the time frame was limited by this judge to 1982 to 1984."
2. At p. 3, 2d paragraph, the ALJ merely noted that English "had made complaints to the NRC and to GE management in years prior to the March 1984 period of time," but that the parties were limited to the time frame mentioned in note 2 of his decision.
3. ~At p. 12, 2d full para 3raph, first sentence, the ALJ stated only that "Mrs. English alleged in her complaint continuing acts of discrimination by GE, as a result of her protected activities, from December 15, 1983, culminating in her transfer out of the Chemet Lab on March 15, 1984, and her discharge on July 30, 1984."

i As throughout her Reply, English's citations obviously do not l even remotely support her assertion that the ALJ " credited" her l contention of " persistent [GE] hostility" because of her pro-tected activity.

l l

l

i motivated by her deliberate breach of safety rules because GE's decisionmaliers did not learn she had purposefully lef t con-1 l

tamination on the legs of her work table until a " couple of weeks" after Lcb Manager Preston Winslow drafted the memorandum (Exhibit C-18) which set in motion the events leading to her removal. See English Reply at 52, 57 n. 23. This contention blatantly misrepresents the record.

As pointed out in GE's earlier submission to NRC (GE Response at 3-8), English'. tes.tifietthat< she . purposely leig" a#

coetmaimated ersey12 apt 115em+ttpW21ege#e04er.merkitable iMF e MatoV 9-11;s1994?> She stated that she knew that such con-tamination "was dangerous to every one of us" (English Deposition (Exh. E-12) at 48), but that, instead of cleaning up the spill as required by GE's safety regulations, she surrounded it with red tape and saved it for several dayag, ostensibly to show that other Lab workers were lax about safety matters. h tarther' testified thht%W1 . ..

. a. . tha

- ' w , and that she advised him that she had left it there since March 9 and did not intend to clean it up.

Lacewell also testifie d in the DOL proceeding, and hiagrsed /

thint?6ernarch"11"that;tho' had' deliberately 1Ef t ^'

a conte g g ) Lin the Chamet Lab rather than clean it up.

According"to %ecewelli however,1Baglish_did mow show him any con- .

tamination org i tgpe.;>See, e.g., Tr. 1075-79, 1110-13, 1546-49, 1665-66. Rather, Lacewell testified that English told him on

I March 11 that she had spilled radioactive contamination earlier in the week and had deliberately left it to see whether Rad

]

Safety would detect it.S! Lacewell explained that he was very concerned about English's actions because "if someone leaves an area contaminated to entrap Radiation Safety for this period of time, [and) if it doesn't work, then nine times out of 10, that individual may, at a future time, go to another area and try the same act outside the Chemet Lab area." Tr. 1683. Accordingly, he reported English's recitation of her actions to Lab Manager Winslow the next day. Tr. 739a-739b.

WiB818NiWR48tatnLacevekkf,9iteg4Caslindicatlag' thiiW~' l Sag 11% KNges&y,.aseetheiMEiS61Y and had

? deliberately Aeft the spill in place after the conclusion of her shift to see when Rad Safety would detect it. Tr. 739(c), j 739(e)-739(f), 1762, 1790-98. Thus, based on Lacewell's report, Winslow drafted the memorandum to his superior, Louis Sheely, setting forth Lacewell's and Winslow's concerns about English's 4/ According to Lacewell, English said that at some point during the previous weeks (1) she had spilled some uranium sample on..ber work tabler (2) that she had cleaned some of it but had left s~ clear brown spot of contamination to see if Rad Safety would detect it; and (3) that Rad Safety did not detect the spill during the inspection of her shift, but instead, had not found it until they came back later on one of the following shifts.

See Tr. 1011-23, 1057, 1075-77, 1084, 1110-11, 1546-49, 1646-56.

Las_ewell stated, that:English's,en}y..reiprgeco Ap;ted, tape .was her  ;

comment _~.that!ag time she. fg' ",

ination,fs5EIthat she had also sher i

put.seme Fred.-

m Ot$s?ff Ca * ',* 'J6EsI M'J6 1651, 1656.

animEms'aEd. Tr. 1075-76, 1110-11, 1546,

l

.i self-described activities as well as other problems involving English.E/

From this record, it is clear that there is no dispute concerning the essential fact that was the gravamen of GE's charges against English and the basis on which'the Company acted

-- English's report to Lacewell on March 11 that she had made a conscious and deliberate decision to leave radioactive contamina-tion in the Lab for several days rather than cleaning it up as l

i 1/ As she has throughout the various legal proceedings relating I to her. removal, English's Reply attempts to distort the meaning of. statements in that memorandum regarding Lab manage- ,

ment's concern about English's " direct actions to promote her concern" and their belief that "[hler action may be bordering l on being considered subversive." See Exh. C-18 at p. 2. l Specifically, English's Reply characterizes these statements as j an admission that the real reason for the transfer was that management considered Mrs. English's

" direct actions to promote her [ safety, health and quality controll concerns,"

i.e., her attempts to obtain and pre-serve proof of violations, " subversive" of management's interests.

Eng. Reply 3t 44 (brackets and emphasis in Reply).

This' characterization is indicative of the factual distortions GE has come to expect from English's briefs.

It is clear that management's concern was not that English was allegedly attempting to substantiate safety problems, but rather the means she was using in an alleged attempt to support her complaints. As Lab Manager Winslow explained management's concerns:

(Footnote continued on following page)

required by GE's nuclear safety regulations. English directly and undeniably communicated this action to Lacewell on the night of March 11, Lacewell related English's statement to Winslow the next day, and Winslow acted on English's own account of her actions in preparing the memorandum in question.

Equally important, moreover, GE took no action against English until she, herself, confirmed to higher GE ammagement that she had; intentionally left~a radioactive spill."

Specifically, English was not removed from the Lab until after she had met on March 16 with Louis Sheely, the recipient of Winslow's March 13 memorandum. The specific purpose of that (Footnote continued from preceding page)

[s]he has taken deliberate action now to try to indicate that the company is not credible in its investigation and its findings, and she is deliberately trying to discredit the on-going activities of the operation, and so, ehere does this leave off? Okay, my question is, does the next step involve ,

I taking uranium out of the operation delib-erately to discredit the on-going operation?

My concerns were that whatever action she may have taken next would endanger her health, or the company, or the personnel in the area where she operates.

Tr. 1798-99, 1822-23. See also Lacewell's stated concern, quoted

. above at p. 7. Indeed, the legitimate nature of management's concern is clear from the memorandum itself, which concludes with a statement that English should be removed from controlled areas in order "to preclude any potential purposeful action on her behalf to support her concerns" -- i.e., any further creation of violations as proof of violations. Exh. C-18, p. 2 (emphasis ,

added). I

. . I l 1 meeting was to hear English's version of the events she had related to Lacewell (Tr. 1932) and, during the meeting, English confirmed yet again that she had knowingly and intentionally left radioactive contamination in the Laboratory despite GE's contrary rule requiring immediate cleanup. Tr. 831(h)-840, 1916-23, 1937, 1973-78.

In sum, notwithstanding English's present attempts to mani-pulate the facts and record, there can be no tenable assertion that English's admitted and knowing safety violation could not have prompted GE's decision.

2. Allegation that English Acted Properly in Outlining Spill With Red Tape Rather than Cleaning It Throughout her Reply, English suggests that she acted pro-perly in outlining the radioactlye spill with red tape rather than cleasinggi3gapy3/In support of this position, English asserts that she was following what she understood to be Company policy in using red tape (Eng. Reply at 45). This interpreta-tion, she saya, is confirmed by the " fact" that Lacewell acknowledged during the DOL hearing that using red tape was no violation of GE rules (Eng. Reply at 44) and did not tell her she had acted improperly (or instruct her to clean the spill) when
  • she showed it to him on March 11 (Eng. Reply at 50). Each of these factual assections is faulty.

l i t

l

First, it is plain from the record, and the NRC well knows, that GE's license conditions require that radioactive spills in the Chemet Lab be cleaned up immediately. See GE Response at 4

n. 2 and 25 n. 15; see also the hearing testimony of Lacewell (Tr. 1111-12) and Winslow (Tr. 1778-89). Indeed, English herself clearly understood this to be the rule,' for she testified that she had always cleaned up spilled contamination in the past and she asserted that she did not do so on March 11 in order to demonstrate that employees on the prior shift were violating GE's cleanup rules.b

{/ English continues to argue in her Reply that GE's dis-criminatory treatment of her is demonstrated because GE did not view with similar alarm the " fact" that neither workers on the prior shifts nor the subsequent shifts cleaned up the con-tamination that English allegedly outlined with red tape. E.g.,

Eng. Reply at 12. Tiaikhet' > r theraf , i t evidence that anyone at all saw t; no ev nce anyone who did see it recognized it for what it was and left it there willfully, rather than merely carelessly or negligently; and, finally, no evidence by which the Company could have identified who else left it or whether they left it because they assumed the red tape (if it existed) was there for some purpose and should not be disturbed. This against English's specific admission that she left it; that she did so not carelessly but deliberately, and not merely out of neglect or laziness but in a conscious effort to support her safety concerns. GE has previously explained why there is a world of difference between an employee who may care-lessly commit a safety violation and a vigilante employee, such as English, who makes a conscious and deliberate decision to commit such a violation allegedly for the " greater good" of demonstrating faulty safety procedures. See GE Response at 21-30.

l I

Second', English again manipulates the facts when she asserts that Lacewell " admitted that Mrs. English told him about leaving j 1

the contamination of March 9, surrounded by red tape" and that he "did not instruct her to clean up the contamination she had left surrounded with red tape." Eng. Reply at 50. As pointed out in the preceding section, Lacewell specifically denied that English l showed him any tape-outlined spill on March 11, so of course he did not deny that he "did not instruct her" to clean the contam-ination.

Finally, a similar misrepresentation is reflected in English's contention that Lacewell " admitted that what Mrs.

English did in placing red tape arout.d the spill on March 9 and leaving it there through March 11, was no violation!" Eng. Reply at 44 (emphasis in Reply). Typically, this contention is pre-mised on a Lacewell quote lifted entirely out of context to the effect that "[als far as I am concerned there is nothing wrong with her placing red tape anywhere she wants in the Lab." Tr.

1112. It is plain from the context of that statement, however, that Lacewell's point was simply that red tape itself had no meaning iacthe Lab in terms of identifying spills and there was therefore nothing wrong per se in merely placing red tape on a Lab table. Indeed,ilacewell'weat on katspecifically testify, on

- the very same transcript page,"thstritois+aet-permissible under Lab;.pe&&eyAut @ Jp6 Mad MSiI7:;5elmet h semesesses

/

"; i n a' -

J'Thus , this alleged "f actual support" for

English's* claim, like so many of the other " facts" cited in English's Reply, evaporates completely upon a real examination of the facts.

3. Allegation that GE's Investigation of English's Actions Was Inadequate and Obstructed English c ratends that the validity of her discrimination claim is demonstrated by the fact that GE did not engage in a meaningful investigation of the events that led to her removal from the Chamet Lab. In an effort to support this contention, she asserts (1) that none of the GE decisionmakers "actually investigated any of the events involving Mrs. English" (Eng.

Reply at 45); (2) that supervisor Lacewell reneged on an agree-ment to write a letter exonerating her of all charges because he was instructed'by Lab Manager Winslow not to write such a letter (Eng. Reply at 44); and (3) that her removal from the Lab was unfairly upheld even though four of the five initial charges against her were not sustained (Eng. Reply at 46-47). The record belies these assertions.

l Firstfandnotatypically,English'sassertionthatthere was no investigation by responsible GE officials is premised l

l upon quotes lifted out of context. In this instance, she

. " quotes" Lab Manager Winslow as stating that no investigation was performed because "it was not a question of what really happened; it was a question of what had been communicated [by Lacewell)...."

l ',

Eng. Reply'at 45, quoting Tr. 749. It is clear, however, that Winslow was describing his efforts, at the very outset of the ir.vestigation, to ascertain from Lacewell what events English had related to him on the night of March 11 and to document these communications in a memorandum to Sheoly. Indeed, Winslow explictly stated that it was contemplated that after such'infor-mation was obtained from Lacewell, an investigation would be con-ducted and English would be given a full opportunity to respond to the charges against her.1/ And that, in fact, is precisely what occurred. After receiving Winslow's memorandum, Sheely held an extended meeting with English for the express purpose of ascertaining her version of the events of the preceding week.

English. admitted during that meeting that she had deliberately left the spill, and, after the meeting, Sheely followed up on any of the charges that English had denied. See Section 1, suprar see also Tr. 856-58, 1924, and, generally, Tr. 831-63, 1901-78. Indeed, that investigation cleared her of one of the charges. See n. 9, infra. Thus, English's claim that no investigation was conducted is specious.

7/ No one reading Winslow's testimony on this point could possibly conclude, as English purports to have done, that Winslow was-indicating that no investigation of the events leading to English's removal had been conducted. That testimony appears at page 749 of the transcript, following Winslow's ex-planation of his discussions with Lacewell and English's other supervisors regarding the events of the previous week and his generation of a memorandum to Sheely documenting those dis-cussions. After that explanation, the following colloquy occurred (Tr. 749):

(Footnote continued on following page) i I

SimilhrlyspeciousisEnglish'ssecond" factual"assertich)

-(>

that Lacewell agreed to write a letter fully exonerating her of -

all charges in Sheely's disciplinary letter, but later reneged on that agreement at the instructions of Lab Manager Winslow.

Lacewell specifically denied that he ever agreed to write such a letter, or that Winslow ever instructed him not to write such a j letter. Tr. 1561, 1569, 1585-86, 1711-27. Rather, according to ,

l (Footnote continued from preceding page)

Q. But you didn't make any effort to call Mrs.-

English and ask her what really happened? j A. At that point in time, it was not a question of what really happened; it was a question of what had been communicated.

Q. And why was that?

A. Because it indicated that it was a severe breach of our safety practices.

Q. But suppose Mrs. English had been able to prove to you, to your satisfaction, that this was based on misinterpretation of what she had said to Mr. Lacewell, and that the inference that he drew was incorrect, and that the facts which he inferred happened weren't so at all?

A. That could be determined later at which time she was given a chance to explain that situa-tion.

. Q. She was given a chance to explain that situa-tion, when?

A. I believe she subsequently was given a letter by Mr. Sheeley and a meeting held for her to explain what had occurred.

1

1 Lacewell, $e told English that he would not write such a letter because her belated claim that the contamination had resulted from normal work activities differed from what she had told him on' March 11.8/ 9owever, he stated that he would document their conversation ~and note her newly-stated position, and would discuss the matter with his superiors. He did so (see Exhs. E-2, E-3 and E-5, documenting those conversations), and thereafter-informed both Winslow and Sheely that he had told English she l could check something with the friskerE! and that English had l

8/ Lacewell testified that English's request for an exculpatory letter regarding two of the charges against her came in con- j versations on March 18, and again on April 11 and 13, when (

English called him at home to deny that two of the safety-related q charges made in Sheely's letter were accurate (i.e., the charge of deliberate contamination and unauthorized removal of a  !

"frisker"). See Tr. 1561, 1565-69, 1577, 1585-92, 1711-27.

English asserted that she did not deliberately " spill" uranium ,

sample, but rather that uranium had naturally erept or fallen off the vials and crucibles with which she had been working. Thus, she asked Lacewell to write a letter stating she did not delib-erately contaminate the table and that he had authorized her to use the frisker. Lacewell refused to write such a letter because it was different from the version she had related on March 11, when she had told him that she had spilled or smeared the sample. .

i 9/ Sheely himself called Lacewell to ask about the frisker i question after English stated on March 16 that Lacewell had 1 authorized"its use (Tr. 856-58). According to both Sheely and I Winslow, Lacewell indicated that he had authorized English to check something with the frisker, but that he did not understand  !

I that she intended to remove the frisker from the Lab exit where it is always kept so that Lab personnel can " frisk out" of

.- the Lab. Tr. 856-58, 1766-68, 1800. In any event, because it l became apparent during the investigation that there was a possible miscommunication between English and Lacewell on the

)

i frisker question, General Manager Long dropped that allegation l during English's internal GE appeal. See GE Response at 6-7 and l discussion infra.

i

)

J subsequently told him that'the contamination in question resulted from natural work activities. He also participated in English's GE appeal hearing and honestly and accurately related these same l

facts (Tr.- 1593-97, 1730). Thus, English's present contention that Lacewell reneged on an agreement to write an " exonerating" letter, or that he was in any manner prevented or discouraged from supporting her position, is belied by the record and wholly without merit.

Finally, the legitimacy of GE's actions is not undercut, as English claims, by the fact that GE chose to rest its discipline and removal decisions on only one of the five original allega-tions regarding wrongdoing by English. As pointed out in our previous submission (GE Response at 5-7), General Manager Long declined to consider two of those allegations on appeal because they were~not deemed pertinent to safety issues, and the frisker allegation was dropped because of the facts uncovered in GE's investigation of the charges (see n. 9, supra). The fourth allegation -- English's alleged deliberate contamination of her work table -- was neither " dropped" nor acted upon because there was a factual dispute about English's guilt which management had  !

no means to resolve.

Contrary to English's contention, these facts do not j

.. demonstrate a cursory or perfunctory investigatory process or a determination to get rid of English no matter what the investiga-tion revealed. Indeed, just the opposite, for if GE management had been intent on getting rid of English because of her protected l

i I

activities [itwouldhavebeenfarbetteradvisedtoretainthe non-safety-related charges and purport to conclude, based on the original evidence, that English had also deliberately con-taminated the work area. GE was intent on safety, however, not retribution, so the Company chose to delete those allegations and to lower the discipline impoced accordingly. N Nevertheless, and for the reasons previously stated, the Company ju3tifiably concluded that deliberately and purposefully ignoring safety rules by leaving a radioactive spill was a sufficiently serious safety problem, even standing alor. , to warrant Englith's removal from controlled areas of the facility. GE submits that that conclusion is unassailable as a matter of fact and as a matter of j law (see Section C, infra), and, accordingly, that this " factual"-

assertion by English, like her others, is completely without merit.

1

4. Allegations Regarding GE's Treatment of English's Safety Complaints English contends that GE's discriminatory animus'towards her l I

is shown by the way GE management responded to her safety and I quality concerns. Specifically, English asserts that management w

refused to accept her evidence of violations in December 1983 and then in early 1984 demanded, on pain of discharge, that she pro-l .

l_Of On appeal, Long reduced English's probationary period from one year to six months and " suspended" the actual time off, and associated loss of salary, for the five-day suspension that had been initially proposed. See GE Response at 7, 19-20.

1 l

._ . _ _ - _ _ _ - - _ _ _ _ _ _ _ _ _ _ _ _ i

ca .-

duce evidence supporting her allegations. Eng. Reply at 38-39.

According to English, Manager of Quality Assurance Eugene Lees wanted this information so he could cover up the violations, and supervisor Lacewell allegedly advised her not to turn over the information because management would destroy it. Id.

There is no direct and specific denial of these allegations in the record, because English's bare assertion of the se " facts" was made, for the first time, in the closing minutes of the DOL hearing when GE was foreclosed from producing any more witnesses.

See Tr. 2436-38; see also previous transcript page 2430, where GE counsel had to cease cross-examination of English because it was 6:20 p.m. and English's counsel had been assured an opportunity for redirect examination. Nevertheless, there is sufficle', evi-dence in the record to show that these assertions are completely without merit.11!

First, contrary to English's suggestion, the record shows that GE management repeatedly investigated and responded to English's safety and quality concerns, even though they seldom i

proved to have the slightest merit. For example, Lacewell 1

investigated and fully responded to English's concerns about the i microwave oven in the Lab (Tr. 1013-15, 1063-65), and GE manage-ment appointed two special investigators (Hendry and Wieczorek) 11/ If the NRC deems the absence of a direct record denial troublesome, GE would be happy to submit affidavits from the management officials allegedly involved in the referenced inci-dents or to make those officials available for NRC investigators to question with respect to these allegations.

4

to investigate and report on the validity of, respectively, English's safety and quality complaints. See Exhs. C-61, C-79a.

'Moreover, contrary to English's allegation that on December 14, 1983 management refused to accept or entertain her evidence of safety and quality problems (see Eng. Reply at 38), the record shows just the opposite. Lab Manager Winslow testified without contradiction that he met with English on December 14, 1983, immediately after her meeting with Eugene Lees, to_ discuss the list of safety and quality concerns English was raising. Tr.

1737-54. He'thereafter investigated her concerns and met with '

English again in mid-January-1984 to discuss the results of his investigation (Tr. 1745-47; Exh. E-6). He also tried to set up a meeting between English, her supervisor, and himself to discuss her additional concerns, but English refused to attend such a meeting. Tr. 1744-45. Thus, English's contention that GE management' refused to entertain information regarding her complaints is simply nonsense. j Similarly without support is English's second contention that in February 1984 GE demanded that she produce her evidence supporting _her safety complaints, allegedly so it could be  !

l destroyed. Eng. Reply at 38-39. According to English, an j alleged " undenied ' cover-up' proposal" was made when Lees

, instructed her to bring in her evidence so they could "'put it behind us and forget it.'" Id., quoting Tr. 2436-37. Again, )

i English can make this contention only by selective quotation and )

serious distortion of the record. Specifically, English ignores

the fact that Lees' " demand" for evidence was made in response to her January 20 refusal to provide him with information she possessed which allegedly supported her safety concerns.12/

Although English now tries to suggest that she had'not previously refused to provide such information to management, her rejected affidavit from the DOL proceeding (Exh. C-80) admits that during l

the January 20 meeting "I then said that if I cannot have a wit-ness or my [tapel recorder, I do not intend to give any more information or discuss it...." Exh. C-80, p. 9 1 15.  ;

Moreover, assuming arguendo that Lees stated.they would "put

.it behind us and forget it," such statement was obviously not a l

" cover-up proposal" as English now asserts, but rather, was a reference to investigating and laying to rest any concerns English might have on safety or quality matters. Indeed, this is demonstrated by English's own testimony from which her Reply now selectively quotes:

[At the end of the February meeting] he

[ Lees] handed a letter to me that actually was sort of like a summary of his con-versation ... that unless I brought in all the evidence and all of the information on my complaints that we might review it other and go over itr and then put it nd us and forget it.

Tr. 2436 (emphasis added).

12/ See Exhibit C-15-B, Lees' February 15, 1984 memorandum to English instructing h < co present her evidence. After noting that English had refugid to provide such information on January 20, the memorandum informs her that she has an obligation as a GE employee to apprise management of information relating to safety problems.

Third,EE nglish's last-minute assertion that Lacewell advised her to "not turn in all the information because you know they will destroy it" (Eng. Reply at 39; emphasis in Reply) is belied by the testimonial and documentary evidence in the DOL record.

\

Specifically, although this " factual" assertion by English came I at the very conclusion of the hearing (Tr. 2437-38) and long after Lacewell had testified, Lacewell had earlier testified that  ;

he made a point of reminding English on February 22, 1984, a 1

day or two after the meeting with Lees, that she should turn over l her information by that Friday, February 24. Tr. 1535-40. More importantly, Lacewell's contemporaneous notes of that February 22 conversation (Exh. E-3) state:

On Wednesday, February 22, 1984, I informed l Vera that she was to make sure she turned all i company documentation over to Mr. Lees, and, after he reviewed such documentation, he would consider, if she desired copies of the docu-mentation, letting her copy some documents.

These notes were made over a year before English testified i

regarding Lacewell's alleged " warning," and they are totally inconsistent with English's belated assertion that Lacewell told i her she should not turn over information because it would be destroyed)

In sum, here, as with other factual assertions in English's Reply, English's position is plainly premised upon manipulation and distortion of the record in the DOL proceeding. In these circumstances, GE submits that the NRC should conclude, as the Secretary of Labor surely will if he ever considers this case on

Ql .

6> '

N ,.

the meritsT that GE has not discriminated against English in violation f Section 210.

f4 C. English's Construction of Section 210(g) Is Erroneous GE demonstrated in its earlier submission to the NRC that Section 210(g) of the ERA, by its express terms, removes all Section 210(a) protection for an employee who " deliberately causes a violation" of a mandatory safety requirement, and that it thus foreclosed English's claim of discrimination with respect to her removal from the Chemet Lab. See 42 U.S.C. 5 5851(g) and GE Response at 23-30. Notwithstanding the express language of Section 210(g), English makes the untenable assertion that the only purpose of that Section is to prevent the perversion of S 210 by employees who would misuse that protection in bad faith

... by attempting to gain immunity to merited discharge for other reasons by themselves breaking a valid rule or 'olicy, reporting the break and then claiming that the dis-charge resulted not from the independent cause but from their report of the break.

Eng. Reply at 63.

There are two critical flaws in this " logic." First, English's51sterpretation is premised upon the erroneous assump-tion that employees must report actual safety violations in order to gain 210(a) protection, and that Congress therefore deemed this  ;

. provision necessary to guard against employees committing their own violations to invoke statutory protection. However, an employee seeking to use Section 210 to immunize himself or her-

- - _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ - _ _ - _ _ _ - _ _ _ _ _ _ _ - _ _ _ _ _ _ _ _ _ - _ _ - - _ _ _ - _ - - .. l

self from a merited discharge'need not commit a safety violation to invoke that protection, because the employee could gain the same 210(a) protection by merely reporting that some violation has occurred (whether it has or not), and then claiming that the discharge was in retaliation for that reporting. Accordingly, the gravamen of Section 210(g) -- committing a violation --

simply lacks a logical nexus with potential abuse of the statu- I tory protection. 1 Second, English's construction renders Section 210(g) meaningless. The basic assumption-in English's interpretation is that Section 210(g) comes into play only in circumstances where the discharge was justified and the act of committing and then reporting a violation was simply a bad faith attempt to gain the protection afforded by Cection 210(a). In such a case, however, no redress could be obtained under Section 210(a) in any event. This would be true not because 210(g) bars such redress, but because in those circumstances the employer'would have a valid, nondiscriminatory reason for the discharge. Thus, i

English's interpretation would mean that 210(g) applies to remove 210(a) prbkectiononlywhentheemployercandemonstratethat Section 210(a) was never violated in the first place. This is an absurd result that essentially reads Section 210(g) right out of the statute. ]

In short, GE submits, Section 210(g) has a very different and broader scope than that urged by English. Regardless of the I

reason for a particular discharge, if an employee violates any mandatory safety requirement, relief under Section 210(a) is l i

Indeed, the Federal District Court con-

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absolutely barred.

sidering English's state law claims in North Carolina -- the only court ever to interpret 210(g) --

recently adopted precisely this interpretation of that provision. On February 10, 1988, the Court issued a 27-page decisiondismissing English's state law claims for wrongful discharge and intentional infliction of emo-tional distress on the ground that Section 210 provides the exclusive remedy for GE's alleged wrongful acts.11! That conclu-sion was premised in part on the Court's determination that

[t]he impact of subsection (g) is therefore quite clear: even if an employer has vio-lated subsection (a) -

i.e., discharged or discriminated against an employee because he voiced concerns of nuclear safety - the employee is absolutely barred from obtaining redress if he has caused a violation of any 4 nuclear safety requirement.

District Court Opinion at 17 (emphasis in original).

This, GE submits, is the correct interpretation of Section 210(g), rather than English's tautological suggestion that 210(g) removes 210(a) protection only when 210(a) has not been violated anyway. Accordingly, the NRC should rule that English's removal from the Chemet Lab and subsequent layoff could not possibly have violated Section 210 of the ERA because 210(g) removes all

( 13/ The Court dismissed English's wrongful discharge claim on j the additional ground that she had failed to state a claim I under North Carolina law. A copy of the District Court's deci-f sion is attached hereto.

_ _ _ _ _ _ _ _ _ _ _ _ _ _ l

l ,

i 210(a)' protection for vigilante employees such as English who deliberately commit safety violations in an '1-advised attempt I

to support or prove safety complaints.

l D. Conclusion.

For the reasons set forth above and in GE's earlier sub- l mission, GE respectfully requests that the NRC dismiss English's 2.206 Petition for Enforcement Proceedings.

Res; ectfuly submitted,  ;

of Counsel: '

.], Mif(v

/- ,

N9

'liuwt fp-f(

Barton Smith, Esq. George'L. Edgar' General Electric Company Thomas A. Schmutz 175 Curtner Avenue NEWMAN & HOLTZINGER (MC-602) 1615 L Street, N.W.

San Jose, CA 95125 ~ Washington, D.C. 20036 l

Dated: March 18, 1988 L

6

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]

. . t I O C ao.soin .s,.si w _ ,m.cw c . .. F. I L E D

+ FEB 12 2 huitch [taiEs histrictNorth Eastern (Ouri(RCarolina H ,D R dU g, DIST. NO. CAlb i

i l

JUDGMENT IN A CIVIL CASE I VERA M. ENGLISH v.

GENERAL ELECTRIC COMPANY CASE NUMBER: 87-31-Civ-7 Ml DB SM O '

O Jury Verdict. This action carne before the Court for a trial by jury, The issues have been tried and the jury has rendered its verdict.

3 Decision by Court. This action carne toe 2KEXhearing before the Court. The issues have been itMiiDtM heard and a decision has been rendered.

. ITIS ORDERED AND ADJUDGED -

THAT THE DEFENDANT, GENERAL ELECTRIC, Motion to dismiss is granted as

, to co'.tnes one and two of the complaint pursuant to Rule 1?(b)(1) and on the alternative ground pursnant to Rule 12(b)(6) and to counts three and four of the complaint pursuant to Rule 12(h)(1) on the ground that the court lacks subject matter jurisdiction. Case is dismissed in its entirety.

File and entered this 12th day of February, 1988 9

Copies to:

Mr. M. Travis Payne I certW M N 'E j and correct copy et W o igt Attorney aff.aw 1 Rich Leonard, Clerk u P. O. Box 12607 Raleigh, NC 27605 United States District ,h ry n District of j Mozart C. Ratner ,

Atr.orney at Law 0~~ Deputy Clerft 4400 .fenifer St., NW l Washington, DC 20015 ,

l' Weinstein & Sturgen J. RICH LE0FARD Attorneys at Law #

DateMr. William W. Sturges Clerk 810 Baxter Street Cul-de-Sac Charlotte, NC 28202 February 12, 1988 (By/ Depdfy /erk ' '  !

2.

IN THE UNITED STATES DISTRICT COURT )b 1)

~. FOR THE EASTERN DISTRICT OF NORTH CAROLINA WILMINGTON DIVISION FE8121988 A RICH LEONARD, CLERK i VERA M. ENGLISH, ) M* S. DISTRICT COURI ;

}

& OlST. NO, CML i Plaintiff ) NO. 87-31-CIV-7

)

VS. ) _O _R _D _E _R

)

GENERAL ELECTRIC COMPANY, )

)

Defendant )

Plaintiff, Vera M. English, filed this dieersity action'against defendant, General Electric Company (GE), alleging common law causes of action for wrongful discharge in violation of public policy and intentional infliction of emotional distress. As relief plaintiff seeks $1,328,645 in compensatory damages and punitive damages in the amount of five percent of the net worth of defendant GE (or approximately $2.3 billion). The action is before the court on defendant's motion pursuant to Rule 12 of the Federal Rules of Civil Procedure to dismiss the instant complaint on the grounds that the alleged causes of action are preempted by federal law such that the court lacks jurisdiction over the subject matter J

and the plaintiff has failed to state causes of action under North  !

l Carolind Eaw upon which relief can be granted. F.R.Civ.P. 12 (b) (1) f and (6). For the reasons which follow, defendant's motion pursuant to Rule 12 (b) (1) as to che entire complaint will be granted.

Further, defendant's 12 (b) (6) motion will be granted as an alterna-tive basis for dismissal only as to plaintiff's claim for wrongful 1 discharge.

l l

l

1. ,,.,

s

-When confronted by a motion to dismiss a complaint must be 1

construed in the' light most favorable to the plaintiff and its j l

allegations - taken aus true.- Jenkins v. McKeithen, 395 U.S. 411, 421'(1969). "[A] complaint should not be dismissed for f ailure to state a claim unless it appears beyond doubt'that the plaintiff ~

s can prove no set of facts in support of.his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46 (1957) (footnote omitted). The factual allegations upon which defendant GE's motion to dismiss must be resolved, as taken from the complaint, are as follows:

I. FACTUAL ALLEGATIONS From November 13, 1972 until March 15, 1984, plaintiff English was employed as a radiation laboratory technician in the chemical

. Metallurgical Laboratory (Chemet Lab) of defendant GE's Nuclear Fuel Manufacturing Department (NFMD) in Wilmington, North Carolina.

~

At the NFMD nuclear fuel is produced using radioactive materials, principally uranium.- As a source of quality control the Chemet Lab performs metallurgical, environmental, chemical and spectrogra-phic analyses on small uranium samples to assure that standards of the Nuclear Regulatory Commission (NRC) are met. Plaintiff's job consisted of assuring an accurate measure of uranium in GE's uranium powder fuel pellets.

In February 1984 plaintiff began taking action to correct what she perceived as serious violations of safety standards at GE's NFMD. On February 13, 1984, plaintiff reported to the NRC that many safety hazards and illegal practices were present in l the Chemet Lab, and that corrective action had not been taken Page 2 L_---____--

even though GE had been made aware by her of similar hazards and practices in the Lab. On February 24, 1984, plaintiff forwarded essentially the same complaints to Mr. E. A. Lees, the Quality-Assurance Manager (later General Manager) of GE's NFMD.

During the period of March 5 - 9, 1984, plaintiff spent con-siderable work time cleaning up radiation contamination at and around her work station, apparently left there by workers on pre-ceding shifts. On March 5 plaintiff asked a " Rad Safety" man

'(specially trained personnel who, using special instruments, detect uranium contamination) to check out her work area to see whether he would discover the pile of contaminated nuclear material she had collected and swept to the rear of her work table. The man declared plaintiff's area free of contamination. At the end of her shift plaintiff cleaned up the pile of contaminated matter which the Rad Safety man had not detected. At the conclusion of her work shift on March 10 plaintiff:

decided that the only way to convince management of the validity of her concerns about the dangerous conditions in the Chemet Lab and of other workers' failure [s] to follow safety procedures, charges she had raised before without GE properly responding, was to identify '

some of the areas of radiation contamination with red tape (used to mark off radiation hot spots) and have her regular supervisor,

. Mr. William Lacewell, see the conditions when he and she were next on duty, which would be on the evening of March '

Complaint 1 16. . ,

, Upon beginning her shift on March 12, 1984, English showed her supervisor the marked-off areas of contamination, areas which were undisturbed by interim shift workers. Plaintiff also informed her supervisor of the Rad Safety man's failure to detect contamina-

~

tion on her work bench on March 5. Following plaintiff's discussion

. parts of the Chemet Lab were shut down whereby.many of the safety problems identified by English were fixed and the contaminated areas were cleaned.1 .Id. 1 18.

In a letter. dated March 15, 1984, GE charged plaintiff with several violations of GE and/or NRC requirements, including:

(1) unauthorized removal of a personal nuclear survey instrument-from the entrance to the labo'atory r for use elsewhere in the. plant; (2) deliberate contamination of a table; (3) failure to clean up contamination, knowing it existed; (4) the continued distraction-

~

of other 1aboratory employees; and (5) disruption of normal labora-tory activities. Plaintiff alleges that "GE management conspired to fraudulently charge that Mrs. English violated GE safety rules and criminal statutory prohibitions which they knew did not exist or the violation.cf which they did not occur." Id. 1 31. Accord-ing to English, all charges save No. 3 were dropped "because they were deemed demonstrably false or not capable of substantiation."

Id. 1 20. As punishment for charge No. 3, GE removed plaintiff-from the Chemet Lab under guard "as if she were a criminal [,1 exposing her to the contempt and ridicule of fellow employees,"

id. 1 24; barred her entry into the chemet Lab or from employment in or entry to any controlled areas in the NFMD, id. 1 21; and )

7 indefini~tely assigned her to menial "make work" in Building "J" and the Central Stores Warehouse, id. According to plaintiff,

"[i]nternal management documents establish that the purpose of

1. On a somewhat contradictory note plaintiff alleges that "[p}rior to March 15, 1984, Mrs. English's complaints to management had been ignored by management and management had disparaged and derided her as paranoid." complaint 1 9. .

Page 4

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these measures was to punish Mrs. English for what management termed her subversive' activity and to prevent Mrs. English from continuing to obtain evidence to prove that management was'failing adequately to police compliance with.NRC safety and quality regula-tions." .

Id. 1 22. In addition to the punishment imposed upon charge No. 3, English was watched constantly'by a member of manage-ment from a desk overlooking'hers in Building J, isolated from her fellow workers, "and not even permitted to eat lunch in the company lunch room with them." Id. 1 24.

On April 30, 1984, GE's management informed English that she would have to " bid" for a position in the NFMD, other than in the Chemet Lab or other controlled area, and if no position was available within ninety days she would be placed on a "' lack of available work' status." Eighty-nine days later, on July 29, 1984, plaintiff was sent home to change into safety shoes "although plant rules did not require that anyone in the area in which she was working wear safety shoes." Id. 1 26. The next. day, July 30, 1984, having obtained no other position, GE fired English.

Since her discharge plaintiff has been unable to find acceptable employment and has become impoverished. Id. 1 35.

Plaintiff alleges' GE's actions were intended to teach her a lessonIand make an example out of her because she raised safety ,

concerns, "the resolution of which caused, was causing and would continue to cause delay in production at the GE plant, embarrass l GE with its principal regulator, the NRC, and encourage other employees to observe, prove and report GE's sloppy and potentially dangerous safety procedures." Id. 1 29. According to English, i

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GE's treatment of her was " clearly discriminatory" because no investigation was undertaken with respect to any workers on shifts between March 10 and 12 (when plaintiff had marked off contaminated I areas) and because similar failures to clean up contamination by 4

other employees had "never resulted in the kind and severity of 1

disciplinary treatment meted out by GE to Mrs. English." Id. 1 27.

{

In Count 1 of the complaint plaintiff alleges her discharge by GE was wrongful and "in violation of the strong public policies embodied in the laus of the United States, which encourage and require safe operation of nuclear facilties and require workers to report potential violations of NRC regulations." d I_d. 11 41-42. I i

In Count 2 plaintiff alleges her discharge constituted a " gross, J wanton and reckless violation of public policy and disregard of her rights, and was done with actual malice entitling her to puni-tive damages against GE." I d_ . 11 43-44. Plaintiff also alleges that as a result of defendant's intentional, malicious, extreme  ;

and outrageous conduct, she now suffers a severely depressed and emotional condition which has required professional psychiatric treatment. Id.

d 11 36-38. Hence, plaintiff seeks compensatory damages in Count 3 and punitive damages in Count 4 for intentional infliction of emotional distress. Id. 11 45-51.

, Defehdant GE has moved to dismiss plaintiff's entire complaint pursuant to Rule 12 (b) (1) and (6) of the Federal Rules of Civil Procedure. Defendant argues that plaintiff's claims, are preempted by federal law in that they concern matters of nuclear safety 1 l

and are specifically preempted by Section b of the Energy Reor-ganization Act, 42 U.S.C. S 5851, commonly referred to as "the i l

j 4

Page 6 ]

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,r. l l

1 whistle blower provision."

)

Defendant further contends that even ]

I if plaintiff's claims are not preempted, plaintiff has failed i to state-valid causes of action for wrongful discharge and inten-tional infliction of emotional distress under North Carolina law.

Specifically, defendant argues that North Carolina does not recog- )

nize a. general public policy exception to the employment at will

)

doctrine and that defendant 's conduct concerning plaintif f was not outrageous.

II. PREEMPTION A. The Law Federal preemption generally may occur in either of two ways.

Where Congress evidences an intent, either expressly or inferen-tially, to occupy a given field, state laws falling within the field are preempted. Silkwood v. Kerr-McGee Corporation, 464 U.S.

238, 248 (1984) (citations omitted). For instance, matters of nuclear safety regulation are committed exclusively to the federal government. Pacific Gas & Electric Company v. State Energy Resour-ces Conservation and Development Commission, 461 U.S. 190, 212 (1983). On the other hand, if the federal government does not

" occupy the field," preemption turns on whether the state law conflicts with the federal law to the extent it is impossible to comply with both or whether the state law frustrates the purposes and objectives of Congress. Silkwood, 464 U.S. at 248 (citations omitted).

Section 210 of the Energy Reorganization Act (ERA), 42 U.S.C.

G 5851, provides a remedy for employees of nuclear facilities who believe they have been discharged or otherwise discriminated Page 7 L__ _  ;

against for making safety complaints concerning the construction or operation of nuclear facilities. The statute specifically provides'that no NRC licensee, "may discharge . . . or otherwise discriminate against any employee with respect to his compensation, terms, conditions, or privileges of employment" because the employee has testified, given evidence, or brought suit or engaged in "any other action to carry out the purposes" of the Atomic Energy Act (AEA) and the ERA. 42 U.S.C. S 5851(a).2 If an employee believes he has been discharged or otherwise discriminated against in violation of the Acts, he may file a complaint with the Secretary of Labor within thirty days after the violation occurs. Id. (b) (2) (A) . Within thirty days of the receipt of the complaint the Secretary must conduct an investigation and notify the individuals involved of the results. Id. Within ninety days of the receipt of the complaint the Secretary must either deny it or order the of fending employer to "(i) take affirma-tive action to abate the violation, and (ii) reinstate the complain-ant to his former position together with the compensation (including

2. A split of authority has developed in the circuit courts as to whether the provisions of Section 210 protect an employee from retaliation based on purely internal safety complaints or whether participa-tion in "a proceeding" is required. Mackowiak v.

University Nuclear Systems, Inc., 735 F.2d 1159 (9th Cir. 1984), and Consolidated Edison Company of New York, Inc. v. Donovan, 673 F.2d 61 (2d Cir. 1982) ,

(Section 210 protects internal safety complaints) .

, Contra Brown & Root v. Donovan, 747 F.2d 1029 (5th Cir. 1984) (Section 210 is designed to protect only

" whistle blowers" who provide information to govern-mental entities). In this action plaintiff alleges both internal and external complaints (Complaint 11 10, 12, 17) and would appear to fall within the section.

Page 8

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back pay), . terms, conditions, and privileges of his employment, and the Secretary may order such person to provide compensatory damages to the complainant." Id. (b) (2) (B) . The statute also provides for the payment of all costs and expenses, including attorneys' and expert witness fees, reasonably incurred by the complainant in bringing the complaint upon which an order is issued.

Id. Section 210 expressly provides for judicial review of the Secretary's order by a United States Court of Appeals. Id. (c).

The protection offered by Section 210 is limited. It'does not extend to any employee "who, acting without direction from his or her employer (or the employer 's agent) , deliberately causes a violation of any requirement of . . . " the AEA. Id. (g).

Finally, an order issued pursuant to Section 210 is subject to civil enforcement. The action to require compliance may be brought in the appropriate United States district court by either the individual on whose behalf the order was entered or the Secre-tary. Id. (d)-(e) . If in an action brought by the individual the district court enters a final order directing compliance, the court may award the individual the costs of litigation. Id.

(e). If the Secretary obtains judicial enforcement of his own order, "the district courts shall have jurisdiction to grant all 1

4, appropriate relief including, but net limited to, injunctive relief, compensatory, and exemplary damages." Id. (d).

Few courts have considered the question of whether or not Section 210 preempts state causes of action arising from the retalia-tory termination of or discrimination against an employee for t

having voiced nuclear safety concerns. Snow v. Bechtel construc-Page 9

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.; .. l J

tion Inc.,L647 F.Supp. 1514 (C.D. Cal. 1986); Stokes v. Bechtel North American Power Corporation, 614 F.Supp. 732 (N.D. Cal. 1985);

Wheeler V. Caterpillar Tractor Company, 108 I11.2d 502, 485 N.E.2d 372 (1985), cert. denied, 475 U.S. 1122 (1986). In support of their holdings each of these courts either relies on or distin-  !

l guishes the Supreme Court's decision in S!1kwood v. Kerr-McGee )

i Corporation, supra.

In Silkwood the plaintiff, father of the decedent, Karen Silkwood, sought relief under state tort law for radiation injuries suffered by his daughter at a nuclear power plant run by the defen-dant, Kerr-McGee. The Tenth Circuit Court of Appeals struck the jury's award for punitive damages on the grounds of federal preemp-tion. Silkwood v. Kerr-McGee Corporation, 677 F.2d 908, (10th Cir. 1981). The Supreme Court reversed, holding that the award of punitive damages based on Oklahoma law was not preempted by i the Atomic Energy Act. .Silkwcod, 464 U.S. at 258.

In allowing punitive damages on a state claim for radiation injuries the Silkwood court homed in on two items: (1) express language by Congress recognizing state tort recovaries and (2) the absence of a federal remedy. The Price-Anderson Act, 42 U.S.C.

S 2210, an amendment to the AEA, established an indemnification

~

scheme whireby operators of nuclear facilities would have limited liability in the event of any one nuclear accident. Id. at 251.

"[T]he discussion preceding its enactment and subsequent amendment indicates that Congress assumed that persons injured by nuclear accidents were free to utilize existing state tort law remedies."

Id. at 251-52 (footnote omitted). Further, the court noted the Page 10

absence of a federal remedy and expressed its disbelief "that Congresstwould, without comment, remove all means of judicial  !

recourse' 'for those injured by illegal conduct. " Id. at 251 (cita-tion omitted). Clearly, the focus in Silkwood was on radiation injuries caused by nuclear accidents and their redress.

Two district courts in California have addressed the precise I

)

issue of the preemptive effect of Section 210 on state law causes of action but they differed in result. Snow v. Bechtel Construc--

tion, Inc., supra; Stokes v. Bechtel North American_ Power Corpora-tion, supra. In each case the plaintiff had pursued a state law claim for wrongful discharge.

In Stokes the court was " unable to accept the thesis that the enactment of Section 210 requires the invalidation of all preexisting state law remedies for aggrieved employees involved in the field of nuclear power." Stokes, 614 F.Supp. at 745.

The court's inability stemmed from the Silkwood decision and the i

permissive language found in Section 210 and its legislative history  !

(i.e., may file a complaint, may apply to the Secretary for review, could help assure compliance, could seek redress). .id. at 744-

45. In terms other than permissiveness, the Stokes court failed to address any specific provisions of Section 210 and its history.

<h e -

In-a similar action the Snow court concluded that Stokes should not govern and respectfully declined to follow it. That j court was not persuaded that permissive language was inconsistent with the exclusivity of a federal remedy. Instead, it relied on the legislative history of Section 210 and language in 01guin

v. Inspiration Consolidated Copper Company, 740 F.2d 1468, 1475 I

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i (9th Cir. 1984), indicating that the "whistleblower provision" in the Mine Safety and Health Act was an exclusive remedy that preempted a state claim of wrongful discharge. Snow, 647 F.Supp.

at 1518. Further, the Snow court found Silkwood " clearly distin-guishable," concluding that the Supreme Court's analysis of radia-tion injuries was inapposite to a consideration of retaliatory termination. Id. at 1519. The court held that "[t]o the extent that Snow claims he was wrongfully terminated . . . because he complained about safety violations, his action is preempted by (42 U.S.C.] S 5851." Id.

In the only reported state court opinion on this topic the Supreme Court of Illinois held, sua sponte, that Section 210 did not preempt a valid cause of action for wrongful discharge. Wheeler  ;

v. Caterpillar Tractor Company, supra. The court found "the situa-tion here analogous to Silkwood and conclude [d] that it was not the Congressional intent to preempt the field." Id. at ,

485 N.E.2d at 376. The dissent found the majority's reliance on Silkwood " misplaced" and would hold that "plaintif f's cause of action is preempted by section 210." Id. at , 485 N.E.2d at 379 (Moran and Ryan, J.J., dissenting).

B. Analysis Defendant GE argues that federal law provides plaintif f with an exclusive remedy for claims of discharge or discrimination j in retaliation for voicing concerns of nuclear safety. Specifi- l J

cally, defendant argues that plaintiff's complaint concerns matters of nuclear safety - matters that are exclusively regulated by the federal government - and therefore is expressly preempted.

Page 12 l

. . ,o Defendant further argues that Section 210 of the ERA provides a detailed procedure for redressing discharge and discrimination claims and that it is so pervasive that exclusivity of federal remed; is inferred. Not surprisingly,. plaintiff contends that this action centers on the regulation of the employer-employee relationship and that matters of nuclear safety, if implicate'd at all, are only peripheral to her claims. Plaintiff further contends that her claime do not conflict with Section 210 such that compliance with both is impossible and t. hat her claims neces-sarily further the objective of Congress, i.e., providing nuclear employees an unfettered opportunity to speak out on matters of safety.

1. The Complaint With respect to defendant's first argument - that plain-tiff's complaint concerns matters of nuclear safety - to some extent defendant .s correct. Plaintiff expressly states that her termination " constitutes a wrongful discharge in violation of the strong public policies embodied in the laws of the United States, which encourage and require safe. operation of nuclear facilities and require workers to report potential violations of NEC regulations." Complaint 1 42. However, while nuclear safety is of concern in this action it is only tangential to the action itself, that being plaintiff's claims for wrongful discharge and intentional infliction of emotional distress. Hence, the

'4 court does not believe plaintiff's action is preempted under Pacific Gas & Electric, supra, on the basis that the complaint concerns matters of nuclear safety regulation. Consequently, we turn our s

Page 13

r o ,

attention to defendant's second argument and Section 210 of the ERA.

2. Section 210 l

The court believes Section 210 provides plaintiff with a remedy for both of her causes of action. Her claim for wrongful discharge cicarly falls within the employer conduct defined and prohibited by Section 210. Somewhat trickier is the question of whether a clain for intentional infliction of emotional distress.

falls within the statute's prohibition of "other discrimination."

However, with the possible exception of her being removed from the laboratory under guard, all of plaintiff's. allegations go to her " compensation, 'cerms, conditions, or privileges of employ-ment." 42 U.S.C. S 5851(a). Furthermore, although unable to j recover exemplary damages, plaintiff would be compensated for any emotional damages which she may have suffered. 'See DeFord v.. Secretary of Labor, 700 F.2d 281 (6th Cir. 1983). Hence, plain-tiff's injuries as alleged in the complaint would be adequately redressed under Section 210.

In this action the question of preemption initially turns on whether Section 210 can be said to regulate nuclear safety.

If it can, plaintiff's causes of action would be preempted pursuant to Pacifi'C: Gas & Electric, suora. The court le unconvinced, how-ever, that Congress intended Section 210 to be a regulator of nuclear safety and therefore preemptive under Pacific Cas & Elec-tric, supra.

The section, entitled " Employee protection," was designed as "an administrative procedure" to "of fer [] protection to employees Page 14 4

E.

i ,; ..

(: '

who believe they have been fired or discriminated against as a result of the fact that,they have testified, given evidence, or brought suit . . . ' " under the AEA or the ERA. S. Rep. No. 848, 95th Cong., 2d Sess. 29, reprinted in 1978 U.S. Code Cong. & Ad.

News 7303, 7304. Such protection was necessary since "[ulnder this section, employees and union officials could help assure' l that employers do not violate requirements of the Atomic Energy Act." Id. ~As the legislative history indicates, protecting an employee's livelihood in the nuclear industry while at the same time encouraging disclosure of potential safety hazards and viola-tions are matters inextricably intertwined. The question, there-fore, is whether by Section 210 Congress put safety or employee protection first. The court believes employee protection was the paramount congressional intent. Thus, in this instance'" pre-emption should not be. judged on'the basis that the Federal-Govern-ment has so completely occupied the field of safety that state remedies are foreclosed but on whether there is an irreconcilable conflict between the federal a.d state standards or whether the imposition of a state standard 'n a damages action would frustrate- .

the objectives of the federal law." Silkwood, 464 U.S. at 256.

Preemption, therefore, hinges on the operation of Section 210 itself. As part of this operation three aspects of the statute deserve closer inspection: (1) its applicability only to an employee who has not violated any nuclear requirement, (2) the absence

-6 of a provision for exemplary damages on behalf of an aggrieved nuclear employee, and (3) the speed with which a charge brought under Section 210 must be resolved.

Page 15 h_____._______-._____.__________ - _ . _ _ _ _ - _ _ _ _ _ . _ _ _ _ . _ -

Subsection (g) of Section 210 expressly states that "Subsec-L tion (a)"of this section shall not apply with respect to any employee -

t '

f who, acting without direction from his or her employer (or the employer 's agent) , deliberately causes a violation of any require-ment.of this chapter or of the Atomic Energy Act . . .. 42 U.S.C.

S 5851(g) . Defendant argues that failure to observe the limitation-imposed by Congress in subsection (g) in a state action'for wrongful' discharge could result in the reinstatement and compensation of a potentially dangerous employee. Plaintiff contends'the limitation ]

would be'taken into account because the employee would be fired not because he voiced safety concerns but because he contributed to or caused a violation of some nuclear requirement.

The limitation imposed by subsection (g) can best be illustra-ted with reference to these hypothetical cases: Employee A " blows the whistle" on his employer concerning a potential safety vioia-tion. A has not violated any nuclear safety requirements. Employee B blows the whistle on his employer concerning the violation of an AEA requirement which B himself contributed to or caused.

Employee C similarly blows the whistle; however, while.he neither contributed to nor caused the potential safety violation which he reported he has violated a separate and distinct requirement pp of the AEA. Each employee may successfully show a violation of subsection (a) of Section 210.

The violation will be abated as to employee A but not B and l C. A clearly falls within the language of Section 210, not having caused'any violation. B has committed a safety violation, the very one which caused him to blow the whistle. Even though B Page 16

l is successful with respect to subsection (a) he nonetheless is barred from obtaining relief by subsection (g). This bar most clearly resembles the equitable doctrine of " clean hands" whereby relief is denied to those guilty of improper conduct in the matter as to which they seek relief. See generally 30 C.J.S. Equi _tg S 93 (1965). In employee c's case Congress has seen fit to go even further, denying relief because he committed a violation not even remotely related to that on which he blew the whistle.

The impact of subsection (g) is therefore quite clear: even if an employer has violated subsection (a) - i.e., discharged or discriminated against an employee because he voiced concerns of nuclear safety - the employee is absolutely barred from obtaining redress if he has caused a violation of any nuclear safety require-ment. The court is awase of no provision requiring application of the absolute bar in state court actions for wrongful discharge or intentional infliction of emotional distress arising from an employee's complaints concerning nuclear safety. By Aaw the state court would not be required to determine whether or not the aggrieved employee violated some requirement of the Atomic Energy Act or its amendments. Instead, the state court could end its inquiry at whether or not the employee was wrongfully discharged or discri-minated against for being a whistleblower. As a result of the state action, someone like employee B or C who has violated one or more nuclear requirements would be reinstated and compensated.

Subsection (g) totally eliminates such a possibility. Hence, the court believes subsection (g) of Section 210 is strong evidence of Congress' intent to preempt state actions for wrongful discharge I

and other discrimination with respect to nuclear whistleblowers. {

Page 17 )

l

)

I

Further evidence of Congress' preemptive intent lies in the absence of any provision for exemplary damages to be awarded to an employee in the event of a violation of subsection (a). The only possibility cf exemplary damages would arise when the Secretary of Labor seeks civil enforcement of his order requiring the offender to abate the violation of subsection (a) and to reinstate and compensate the individual. 42 U.S.C. S 5851(d). In other similar legislation, such au the Toxic Substances Control Act and the Safe Drinking Water Act, Congress expressly provided for an award of exemplary damages "where appropriate." 15 U.S.C. S 2622 (b) (2) (B) ;

42 U.S.C. S 300j-9 (1) (2) (B) (ii) . See also Solid Waste Disposal Act, 42 U.S.C. S 6971(b) (where Secretary of Labor finds employee has been wrongfully discharged or discriminated against he shall issue a decision " requiring the party committing such violation to take such affirmative action to abate the violation as . . .

i

[he] deems appropriate, including, but not limited to, the rehir-ing or reinstatement of the employee or representative of employees to his former position with compensation") (emphasis added).

In the statutes upon which Section 210 is.modeled, see.S. Rep.,

supra, there are no provisions for an award of exemplary damages to an aggrieved employee. Water Pollution Control Act, 33 U.S.C.

S 1367(b)) Clean Air Act, 42 U.S.C. S 7622 (b) (2) (A) . Obviously, Congress has reached an informed judgment that in no circumstances should a nuclear whistler blower receive punitive damages when fired or discriminated against because of his or her safety com-plaints. This judgment is particularly highlighted by the instant action wherein plaintiff seeks $2.3 billion in punitive damages.

Page 18 1

Finally, the court is impressed with the speed with which charges brought pursuant to Section 210 must be resolved. Employees who believe a violation of Section 210(a) has occurred must file a complaint with the Secretary of Labor within thirty days after such violation occurs. From the filing of the complaint the Secre-tary has ninety days either to dismiss the complaint or order relief. The reason for such quick action appears to be twofold.

First, if a violation has occurred the employee is restored to his position without a substantial interruption in lifestyle or livelihood. Further, he remains active in his field of expertise within the nuclear industry. Second, by requiring a speedy com-plaint the regulatory authorities may discover potential hazards i

and violations that might otherwise have gone undiscovered for an uncertain period of time. For instance, consider a nuclear facility that is able to cover up some hazard or violation for which an employee voiced internal concerns yet was fired or discrimi-nated against., The aggrieved employee waits till the last day under the applicable state statute of limitations to file suit, normally about three years. A catastrophe could already have occurred while the employee contemplated filing an action in state court. The court does not believe this is what Congress intended and would permit to occur. -

The court's review of Section 210 and its history leads it i to conclude that the statute is "a ' scheme of federal regulation

. . . so pervasive as to make reasonable the inference that Congress left no room for the States to supplement it'. . .." Pacific Gas &

Electric, 461 U.S. at 204. Indeed, " [ e] more comprehensive statute could hardly be imagined." Wheeler, 108 I11.2d at , 485 N.E.2d Page 19

at 379 (Moran and'Ryan, J.J., dissenting). The court reaches its conclusions mindful of the cases discussed above. In contrast to l SilkwoodTLthis court is not aware of any congressional language recognizing state tort remedies for wrongful discharge and other  ;

discrimination. Furthermore, Congress has provided a federal  !

remedy for such claims in Section 210. For these reasons this court concludes that the reliance on Silkwood by the courts in f Stokes and Wheeler was misplaced. The latter case was decided without even the benefit of briefing or argument. The court simply.

is unpersuaded by these decisions.3 Based on the foregoing, the court finds that plaintiff's cause of action for wrongful discharge under state law is preempted by Section 210 of the Energy Reorganization Act, 42 U.S.C. S 5851.

Consequently, defendant's motion to dismiss Counts 1 and 2 of

~

the complaint pursuant to Rule 12 (b) (1) , F.R.Civ.P., is granted on the ground that this court lacks jurisdiction over the subject matter.. Although it appears that plaintiff's claim for intentional infliction.of emotional distress also is preempted ty Section 210 there remains a question as to whether the claim, if valid, may nevertheless proceed in light of the Supr'eme Court's holding in

3. The plaintiff has proffered an administrative dicision of the Secretary of Labor which an'alyzes whether the voluntary dismissal of a complaint brought pursuant to Section 210.should be dismissed with or without prejudice. Nolder v. Raymond Kaiser Engi-neers, Inc., No. 84-ERA-5 (D.O.L., June 28, 1985).

The Secretary concludes that such a dismissal is without prejudice and reasons that otherwise the dismissal would preclude a plaintiff's similar claims in state court. Plaintiff argues by analogy that the Secretary would not have addressed the issue of res judicata if Section 210 were preemptive of state claims. Perhaps, but the issue of preemption was not squarely before the Secretary and for this reason the court finds Nolder unpersuasive.

Page 20

Farmer v. United Brotherhood of Carpenters & Joiners-of America, 1430 U.S.(290 (1977). This question will be addressed in section III, infra. I Even if the court did not hold that plaintiff's claim for wrongful discharge is preempted by Section 210 of the Energy Reor-ganization Act, the court would be constrained nevertheless to hold that plaintif f has failed to state a cause of action for wrongful discharge in light of the Fourth Circuit Court of Appeals' decision in Guy v. Travenol Laboratories, Inc., 812'F.2d 911 (4th Cir. 1987).. The plaintiff in Guy alleged that he was fired from his supervisory position at the defendant's North Carolina drug manufacturing plant after refusing.to falsify certain records pertaining to the quality and quantity of phar,'sceuticals that drug manufacturers are required to keep under the Food and Drug Administration's regulations, falsification of which would h' ave subjected him to criminal sanctions. After analyzing the law concerning employment at will in North Carolina the Court of Appeals concluded that "[a]n employer may terminate any employee for any reason unless the employee has a specific duration contract,.gave some additional consideration for permanent employment, or lost his job for refusing to give perjured testimony." Guy, 812 F.2d at 915. (The court held that plaintiff-Guy's complaint did not come within any of the s'.Tted exceptions and therefore failed to state a cause of action under North Carolina law.

In this instance plaintiff alleges her discharge from GE was wrongful in.that it violated "the strong public policies embodied in the laws of the United States, which encourage and require safe operation of nuclear facilities and require workers to report Page 21

-*.. s.

potential violations of NRC regulations." Complaint 1 42. . Plain-tiff, however, has not alleged e.cher the existence of a specific duration contract, the giving of some additional consideration, or a discharge for refusing to give perjured testimony. Despite plaintiff's persistent arguments to the contrary, this court may not disregard the pronouncements of the Fourth Circuit when they are.not distingui.shable. Doe v. Charleston Area Medical Center, Inc., 529 F.2d 638, 642 (4th Cir. 1975); Spell v. McDaniel, 591 F.Supp. 1090, 1098 (E.D.N.C. 1984).

Furthermore, the court is not convinced .that plaintiff was under any legal' duty to report potential safety violations. Plain-tiff relies-on 10 C.F.R. Parts 19 and 21 and 42 U.S.C. S 2273 for_the proposition that plaintiff could have been subjected to severe criminal sanctions.for failure to report potential safety violations. The court has thoroughly reviewed the. regulations and statute asserted by plaintiff as imposing a. legal duty and q 1

is unable to conclude that any such duty is or was imposed. See Radiation Technology, Inc., 8 N.R.C. 655, 658, 668-69 (1978);

42 Fed. Reg. 28891, 28892 (1977); 38 Fed. Reg. 22217 (1973).

Based on the foregoing the court finds that plaintiff has i also failed to state a cause of action for wrongful discharge in violaiion of the laws of North Carolina. Consequently, the court will grant defendant's motion pursuant to Rule 12(b) (6) .

to dismiss plaintiff's claim for wrongful discharge on the alterna-tive ground that plaintiff has failed to state a claim upon which relief can be granted.

Page 22

a .

III. INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS Despite having concluded that plaintiff's cause of action for intentional infliction of_ emotional distress should be preemp-ted, there remains the possibility that the claim,'if valid, may proceed in light of Farmer v. United Brotherhood of Carpenters  ;

& Joiners, supra, which will be summarized later. First, we examine l the validity of the cause of action as alleged.

In a recent decision the North Carolina court of Appeals 1 addressed a claim for intentional infliction of emotional distress in an employment context on a motion to dismiss. Dixon v. Stuart, 85 N.C. App. 338, 354 S.E.2d 757 (1987). In Dixon the plaintiff sued the City of Winston-Salem, North Carolina and several of its agents and employees, seeking compensatory and punitive damages for loss of emp'loyment opportunities, injured professional standing, emotional and physical illness resulting in permanent injury, and suffering of humiliation and embarrassment. The plaintiff alleged (1) that the. individual defendants unlawfully conspired to hinder, obstruct and injure his career advancement with the City of Winston-Salem and to induce the city not to promote plain-tiff by, inter alia, ridiculing and harassing the plaintiff in the workplace and (2) that the defendant's acts (a) were willful and malielous; (b) caused the plaintiff humiliation and embarrass-ment in the workplace; (c) were extreme and outrageous; (d) caused plaintiff to suffer humiliation, embarrassment, loss of professional status, physical illness and severe and extreme mental distress.

Dixon, 85 N.C. App. at 338-39, 354 S.E.2d at 758. The trial court granted the defendant's motion to dismiss the action pursuant l

Page 23

i .. .

(

{

(' I to Rule 12 (b) (6) of the North Carolina Rules of Civil Procedure on the ground that the complaint failed to state a claim upon which relief could be granted.

The Court of Appeals reversed the lower court's decision.

In'that decision Chief Judge Hedrick focused on plaintiff's allega-tions regarding ridicule and harassment in the workplace and'that the defendant's acts intended to cause and actually did cause c plaintiff to suffer extreme emotional distress. The court held:

We cannot say that it appears beyond doubt that plaintiff can prove no set of facts in support of~these allegations which would. entitle I him to relief from these defendants for inten-- i tional infliction of emotional distress.  !

l Extreme and outrageous ridiculing and harassing  !

has been grounds for recovery under.this tort before. See, e.g., Hogan v. Forsyth Country Club Co., 7 N.C. App. 483, 340 S.E.2d 116, 4

disc. rev. denied, 317 N.C. 334,- 346 S.E.2d i W(lM) ; Woodruf f v. Miller , 64 N.C. App. j 364, 307 S.E.2d 176 (1983). g Id_.-at 341, 354 S.E.2d at 759.

I Pursuant to Dixon this court believes plaintiff has stated l a valid cause of action for intentional infliction of emotional distress. Plaintiff alleges that the acts on the part of GE's management were intended and did la fact cause plaintiff to suffer severe emotional distress. With respect to " extreme and outrageous" conduct plaintiff alleges that GE's management (1) removed her L

from her' job in the chemet Lab under guard as if she were a crimi-nal, exposing her to contempt and ridicule; (2) assigned her to a degrading "make work" job; (3) derided her as paranoid; (4) barred her from employment in controlled areas; (5) subjected her to constant surveillance in the workplace; (6) isolated her from fellow workers and did not even permit her to eat in the Page 24

~ a company lunchroom with fellow workers; and (7) conspired.to fraudu-lently charge _her with violations of safety and criminal statutes.

Although' defendant GE vehemently contends and argues that plaintiff has failed to state a claim, it neglected in its reply brief to address and attempt to distinguish, if possible, the Dixon decision.

The court, however, believes that under Dixon plaintiff has stated a a valid claim for intentional infliction of emotional distress.

Therefore, defendant's motion to dismiss Counts 3 and 4 of the complaint pursuant to Rule 12 (b) (6) , F.R.Civ.P. , cannot be granted.

Although plaintiff has stated a valid cause of action for intentional infliction of emotional distress there remains, however, the issue of whether the claim may proceed despite the apparent (

preemptive effect of Section 210, 42 U.S.C. S 5851, in'11ght of the Supreme' Court's decision in Farmer v. United Brotherhood'of Carpenters & Joiners, supra. In Farmer the plaintiff, a union member,:had brought a state court action against the union alleging that the union had discriminated against him in hiring hall refer-rals and had intentionally inflicted emotional distress on him through a campaign of public ridicule and, incessant verbal abuse.

All of the plaintiff's claims were held preempted by the National Labor Relations Act (NLRA) except a potential emotional distress claim. JbbebasisoftheCourt'sholdingwasthattherewasno  ;

federal protection offered by the NLRA against a union's outrageous conduct. Farmer, 430 U.S. at 302. Instead the focus of a National Labor Relations Board proceeding would solely concern whether l the defendant union discriminated against the plaintiff and whether i a cease and desist order and back pay were proper. It has been i

l Page 25

_____1________________ l

s" p held that Farmer created a " narrow exception to federal preemption."

Magnuson-v. Burlington Northern, Inc., 576 F.2d 1367, 1369 (9th Cir.), c'ert. denied, 439 U.S. 930 (1978).

~

In this action, plaintiff has a federal remedy in Section i 210. That section specifically addresses "other discrimination" and provides for compensatory damages in the case of a violation. .

With the possible exception of being removed from the Chemet Lab under guard, all of plaintiff's allegations concern " terms, condi-  !

tions, or. privileges of employment." 4? U.S.C. S 5851(a) . Being removed under guard would not in and of itself support a cause l

of action for intentional infliction of emotional distress. Hence, l the court believes plaintiff's claims regarding emotional distress should be presented to the Secretary of Labor pursuant to Section 210. See 01guin v. Inspiration Consolidated Copper Company, 740 l F.2d 1468, 1475-76 (9th Cir. 1984).

Based on the foregoing the court ' finds that plaintiff's cause of action for intentional infliction of emotional distress is .

l preempted by 42 U.S.C. S 5851. Consequently, defendant's motion to dismiss Counts 3 and 4 of the instant complaint pursuant to Rule 12 (b) (1) , F.R.Civ.P. , on the ground that this court lacks jurisdiction over the subject matter will be granted.

@ IV.

SUMMARY

To summarize, defendant's motion to dismiss is granted as to counts 1 and 2 of the complaint pursuant to Rule 12(b) (1) on t

the ground that the court lacks jurisdiction over the subject matter and on the alternative ground pursuant to Rule 12(b) (6),

F.R.Civ.P., that plaintiff has not stated a claim upon which relief

^

l l i Page 26

can be granted. While defendant's motion pursuant to Rule- 12 (b) (6) to dismiss Counts 3 and 4 of the complaint, alleging a claim for intentional infliction of emotional distress and punitive damages is not well taken, these counts are dismissed pursuant to Rule 12 (b) (1) on the ground that the court lacks subject matter jurisdic-tion. The action is therefore. dismissed in its entirety, and the clerk of court is directed to enter judgment accordingly.

SO ORDERED. M

/ .

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N F. T. DUPREE, JR.

/ ts A '/L -%I' UNITED STATES DISTRICT JUD February 10, 1988.

be a true I certify the foregoing tooriginsk ;

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... : ;;) - p, SERVICE LIST J. Nelson-Grace Regional Administrator Region'II-U.S. Nuclear Regulatory Commission 101.Marietta Street Suite 3100 Atlanta, GA 30303 Richard J. Goddard i

Regional Counsel I

Region II U.S. Nuclear Regulatory Commission 101 Marietta Street Suite 3100 Atlanta, GA 30303 Mozart G. Ratner l Suite 600 ,

5225 Wisconsin Avenue, N.W. )

Washington, D.C. 20015 l Anthony Z. Roisman Suite 600 1401 New York Avenue, N.W.

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175 8 454-0514 - -

In the Metter of' YERA M. ENGLTSH CASE NO. 85-EP.A-00002 v.

GENERAL E"ECTRIC COMPANY Metart G. Ratner, Esq.

1900 M Street, N.W.

Suite 610 Washington, D.C. 20036 Arthur M. Schiller, Esq.

1000 Connecticut Ave., N.W.

Saite 1205 Washington, D.C. 20036 Tor the Complainant William W. Sturges, Esq.

Weinstein, Sturges, Odom, Groves, Bigger, Jonas & Ca.mpbell, P.A.

810 Baxter street Charlotte, N.C. 28202 Scott A. Klion, Esq.

General Electric Co.tpany 175 Curtner Ave. M/C 822 San Jere, CA 95125 ror the Respondent Bef0re: ROBERT J. BRISSENDES Administrative Law Judge DECISION AND ORDER This is a proceeding under the Energy and Rec >rgan12ation Act of 1974, as amended, (hereinafter referred to as the "Act'),

42 U.S.C. S 5951, and its implementing regulations., 29 C.F.R. Part 24.

The Complainant Vert English filed a complaint with the United 1 States Department of Labor, under 29 C.F.R. 5 24.3, on Augest 24, '

1984, and an amended complaint on August 27, 1984. Her Complaint alleged discrimination as a result of the initiat:.on of and the

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participation in Nuclear Regulatory Commission (hereinaf ter NRC) ir.vtstigations of facilities at the Respondent Central Electric Compr.ny (hereinafter GE) plant located in W11mingtc.n, North Ctrolina. On Cetober 2, 1984, following an investigation, the Administrator of the Wage and Hour Division, E.iployment $ttndards Administration, Departrent of Labor, concluded that English had '

been discriminated against as defined and prohibite d by the Act and 29 C.F.R. 5 24.4. Tne decision of the said Administrator was tppe tied by both Complainant and the Respondent. i A formal hearing was held in Wilmington, North Carolina, from December 17 to December 19, 1984, and a second sess, ion of the hearing was held on March 19 to March 28, 1985, at which times the parties were afforded full opportunity to present evidence and argument. The findings and conclusions in this decision are based upon n.y observation of the witnesses who testified at both sessions of the hearing, upon an analysis of the entire record, arguments of the parties (both oral and written), applicable regulations, ste.tutes, and case 1sw precedent. By agreement of th parties, time constraints applicable to this case were waived. / On April 5, 1965, an order was issued setting the court's time limits on the submission of brio f s and proposed findings of f act, Fee and Cost Fetition, and the resp 0nst by GE to said petition. The Order also clearly indicated that the record, for the submission of evidentiary documents or any other documents, was closed. On June 27,.1985, because said order had been . ignored, as was evidenced by numerous documents mailed in to the judge's San Trancisco office, another Order was issued advising the parties that any documents l submitted which were in contravention of the April 5,1965, order l would not be considered. Accordingly,_ Respondent's Motion to Strike a Portion of Cetplainant's Brief is granted and no documents or material submitted post-hearing is considered part of the evi-dentiary record.

StateSent of the Case Vera English was an employee of GE from November 13, 1972 to July 30, 1964, Eng11th werked ir,puringthetimesrelevan[*tothiscase,Mrs.

the Chemet Laboratory. / j 1/ Ch0rtly after the first session of the hearing, the parties had w&!ved the time constraints of 29 C.F.R. S 24.6, bneause of the nteessity of having the hearings continued into a necond session.

Additionally, in order to allow time for the submission of post-hcaring briefs,cthe parties have agreed to waived the requirements of 29 C.F.R. $ 24.6(a) and 24.6(b).

2/ Hany of the allegations and contentions of both parties were I too far removed in time to have any significant relevance to this I case. Accordingly, although Mrs. English worked in the Chemet Lab '

l for twelve years, other than for taking cognizance of complainant being an experienced laboratory worker, under the provisions of 29 C.F.R. 5 24.5(e)(1), the time frame was limited by this judge to 1962 to 1984.

.o.

. '5:- :cca e.es.e: 17::7 a c i.0; m .: d! m: _ w ET c. s a r m ::s: cr. p,c2 On March 5, 1984, Mrs. English was an hourly worker in said le.boratory. At that time, she was working on the tahift known as the "B" shift. In that particular week, she started working Sunday fror 7:00 a.m. to 3: 10 p.m. She worked the same hc.urs on the fifth, tixth tnd seventh and eight of March. She then switched to a d:fferent shift, on Friday. This was her nornal routine during that month'. Her' shift Friday evening, started at 11:00 p.m. and went on to 7:30 a.m., a shift cotronly referred to as a " graveyard" thift. She had no immediate supervisor to bring corplaints to until the following Sunday evening, when a William Lacewell came on dety. It was in the week prior to that Sunday, sta.rting with Monday, March 5,19 84, that events occurred which had gre at bearing on her renoval by management f rom the Chemet Lab arid the eventual termination of her employment with GE.

Tht Chemet Lab included what were known as " controlled arcas".f/ Mrs. English had made complaints to the NRC and to GE mtntger.ent in years prior to the March 1964 period of time, but the parties were licited to the time frame above-mentioned (see foot-note 2, supra.). Mrs. English had contacted the NRO on August 29, 1962 and on February 13, 1954. Investigations into her silegations vere conducted by the NRC on September 7 - 10, 19E2, and March 26 -

29, 19E4. The care February 13th allegations were brought to the ettention of CE managerent in a written report by Complainant, 3 / ine chemet Lab is a part of a large building wf. thin the GE Iceility in Wilmington, North Carolina. There are various labora-tories within the Chemet Lab.

The plant is involved in the production of fuul bundles of uranium material, and said " bundles" are intended for use at re-ector sites for the production of electric power. Additionally, uranium powder is produced, pritarily for sale to overseas custo- i mers. The Cheret Lab had areas calling for certain precautions, i.e., controlled areas. Persens leaving a controlled area must use a monitor or frisker, which is a band held unit used to check for radiation contamination on any part of the body, including i htnds, feet, face and clothing. Another precaution taken, within the lab, are hoeds with fans to p;11 off airborne contteination tvty fror an individual who is working under that hood. Within the controlled or "aemi-contro11ed' areas the lab workers must wear gloves, a lab coct and safety glasses. These workers work both with powder and liquid solutions of uranium. There are narble ttlea with mcrble legs for use by the lab workers. The marble etterial is not affected by vibrations and is easier to clean than other material. Safety rules require that any spillage of uranium powder or uranium liquid ,be brushed or cleaned off from time to time during the work hours, and especyally before leaving the work shift, u.________._________ _ ._ _ _ _ _ . __._Q__

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. p.cr deted February 21, 1984. An examination and investigation of con-ditions, upon which Mrs. English's complaints were based, was con-ducted by GE on March 8 - 21 and March 26 - 30, 1934 CE's Quality Acsurance Review report, dated April 26, 1984, revealed that ccveral of P.rs English's tecusations of violations of corpany prac-tice tnd procedure had substance. A prior GE Chert Lab Safety peview report (dated March 29, 1984), concluded that safety proce-dures and conditions in the lab were adequate. With reference to the ttre allegations, NRC concluded that they we re unsubstantial-

06. ,

Clain ant's work in the Cheaet Lab consisted of quality control duties, in which samples of uranium powder are weighed, oxidised, weighed again, dissolved in nitric acid and finally weighed again.

I The analyst is then able to determine the concentration of urantun in a given sample to ascertain whether the proper " mix

  • has been  !

secomplished. On Monday, March 5, 1984, Mrs. English was in the process of veighing a sample when she found contami, nation left by the prior shift. This occurred again in the following three days.

Mrs. Eng1!sh testified that the nature and amount of contamination  !

required her to do considerable work to clean it up before she  !

could start on her own work. She believed that the tale workers, l I

vho werked the shift just prior to hers, were careless and sloppy in their work. She felt that they depended on her to clean up. ,

Ae:ctding to Mrs. English, the contaritation was quite visible to '

anyene. It was on her work surface and on a nearby microwave oven, a piece of equiprent used by her and the workers en the prior shift. Additionally, she found uranyl liquid contamination (pro-ducing a yellow stain) on twe legs of her work tatie. She cleaned all of this up for several days, then on Thursday or Friday, she again found new stains and contamination elsewhere. On this occa-sion, knowing that there was no supervisor present until Sunday, she stated that she put red tape around the stain en the table legs  !

so that she would be able to point it out to her s.upervisor, Bill Lacewell. Her purpose was also to indicate the areas of contamina-tien as a warning to fellow workers. She testified that she pur-pesely left the contamination, oatlined by red tape, so as to prove to ranagement that her co-werkers were extremely lax in their per-forrance of clean-up duties. So e of her prior corplaints, in her vicw, had re cived little attentien since she was thought to hcVe insufficient proof of malfeasance by other enployees. She felt that this wcs because she alvtys pron.ptly c;eaned up visible conta-rination, therefore she had nothing tangible to show r.anagement to back her accusations.

l Ehe recalled that the red tape and the contamination was still there on Saturday and Sunday. Sunday evening, tho first night after Thursday, that a regular supervisor was on duty, the Com-plainant promptly discussed the mattes with supervisor Lacewell.

Mrs. English was firm in her contention that she had not delib-erately contaminated any part of her work station, and that she had clerned the contamination left by others. With the exception of the portion of contamination outlined by red tape, all had been h 1

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. a 'd: . .u : : . . / >E- t1 w sm rm;;5;; 3 c , e.g eltened. She admitted the intentional said contamination for the purposes heretofore mentioned. yShe leftstated that she, at that time, trasted Mr. Lacewell more than other management person-rs e l . Che had on nanerous oocations brought up the problems of tno deftetive ricrovave even, the workers not using the "frithers" on Ictving controlled arets, and the constant failure to clean up -

contamination at her work station, but managacent, according to her, did not show serious concern on these sab:ects. Mrs. English vis of the opinien that ranagement's main concern was keeping up prod;ction so that safety was sacrificed, and accordingly her r;periors did not appreciate her pointing out unsafe practices of fell 0w workers. She strongly felt that $UCh practices endangtred her health and the health of cthers.

In her reporting on her concerns that Sunday evening, she peinted oat the contaminated table legs outlined by red tape.1/

the advised Lacewell, at that time, that she did not intend to keep c16aning up for other people. She also related her concerns on what had occurred in the prior week, including the microwave defect that allowed leaks and fumes strong enough to give her a headache.

the asked permission of Lacewell tc ute the "frisker" (personal survey device) to check oJt certain areas of her verk station.

Lacewell granted this request.

To sc e extent, Lacevell, in his testimony corroborated Com-plainant's s: cry with reference to the nicrowave oven, her mention of the red tape and expression of her concern over other e.tployees' spillage. However, he denied that she pointed o;t the contamina-tion surrounded by red tape, or seeing the red tape.

!;bst cent to the above events there was a correction of the ricrowavedefect, and an inspection and cleaning of the area by CE personnel. All of which necessitated work steppage in the affected creas of the laboratory. Additionally, as a consequence of Mrs. English's March 1984 complaints (made to NRC and GE), a series of communications, both written and oral, between management and V.rs. English began. Varicus meetings were held, some with Mrs.

English present and so e without her presence. Certain charges were set cat in a letter dated March 15, 19E4, which included:

1 the unaath0rized renoval of the personal servey instrument from the entrance to the laberatory;

. 2. the deliberate contamination of a table; 1/ There was a dispute by management as to the use of red tape to designate a " hot" area. Some of the documents the.t Claimant relied on were ambiguous and confusing with pef erence to the use of red tape. Management claimed that red tape was to designate areas of storace of uranium products rather than to designate areas where rpills had occurred.

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3. failure to clean up contamination, knowing it existed:
4. the continued distraction of other leboratory cLploytes and
5. disrupt' ion of normal laboratory activities.

Mrs. English appealed said charges, and during the corpany appeal process, it was finally determined that the 'frisker*

rtmoval had been authorized. As to charges No. 2 and No. 3. GE's witnesses did not seem in total agreement as to whether said charges had merit or not. All but No. 3 were dropped or at least it was dee!ded that no action would be taken in regard to same.

Action was taken on the No. 3 infraction.

The punisheent dealt to Mrs. English for " failure to clean up eenttmination, knowing it existed" was removal from the Chemet Lab and assigntent to some rather tenial work in the Building 'J" Central Stores warehouse. Complainant testified that a man was atsigned to watch her constantly and that she was heriliated in an incisent eeneerning her shoes. At sore time s;bsequent, Corplain-tnt vas advised that she would have to " bid" for an open pos: tion, that the qualified fbr within the GE plant, provided that it was not one within the Cnenet Lab. A ti e limit was set and, there

{

{

apparently existing no such positions, she was involuntarily placed '

on a 'isek of suitable work

  • status. There is nothing in the recor6 to show that any ' suitable" work position was ever offered to Complainant. Further, the record is devoid of any rebuttal evidence to Mrs. English's charge that she was the only person over rtmovto from the Chemet Lao for failure to clean up cor.tamination.

She was credible in her testimony that other workers had caused the contamination and there was no evidence to the contrary. Further, the evidence clearly shows, without contradiction, that at least one shift and possibly two (not counting hst shift) failed to clean I up visible contreination. The area of contamination was outlined I with red tape, whether such method was consider 6d proper for deal-ing with the situation or not, the red ttpe tdded to the visibility of the contamination. Yet, no one using the gene work table, in othLr sh;fts, bothered to report this nor to clean it up, i Tcstireny by GE managesent made it quite obvious that the sheer nJ-ber of the cerplaints made by Mrs. English to NRC (and to managerent) brought about a cessatien of work due to the GE's j investigation anc nettings and the concomitant NR0 investigations.  !

The letter investigations resulted in a rather mixed series of findings.57 j

}/ The severity Itvel of violations for an NRC licensee, Such as the CE Company, are graded free one to five. The larger the num-ber, the less severe the violation. Severity 1evels I and II in-volve very significant violations: level til violations are signi-

)

ficant; level IV violations are significant if left uncorrected: l and level V violations are of ninor concern. (Cont, on pg . 7)

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87817

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The annoyance caused by Mrs. English's allegations, whether l justified in management's eyes or not, coupled by t he embarrassment {

cnd involvement of much of GE't management personne:1 with the HRC invectigetions, appears to have c91minated tround the March to May 1!04 pcriod, sithough SRC investigations continued during reptember, November and December of 1964 and January and March of 1965. '

Mrs. English testified as to some rather bizarre serias of break-ins into her home, corroborated in part by police. testimony.

Insufficient proof'was presented to tie in GE employees.

Co plainant called a psychologist, Dr. Peter Boyle, who testi-fied that he was of the opinion that the actions of management, as related by Mrs. English to him, brought about a depressed and fear-ful emotional state. He reached this opinion after lengthy inter-views and the' administration of tests that included standard intel-ligence tests, multiphasic personality inventory and the Rohrschak

. ink blot test. He also reviewed her medical records and discussed with her the impact of the various actions taken against her by GE, during.her final years of employment. He determinted that Mrs.

English was candid in her reports of her symptomology, and that she was neither paranoid nor suicidal. His diagnosis of her condition was that she was suffering from a severe ad est en'; reartier, coJpled with mixed emotional ftatures, nerely depression and

" anger" (clinically termed " agitated depression"), all associated with stress resulting from her work situation. Specifically, her emotional problems are a cumulative effect of va;ious stressful occurrences that Mrs. English experienced during her employment with Respondent. Dr. Boyle's prognosis was that the condition is trectable-with supportive psychotherapy, including medication. Me opined that Complainant should continue treatment once a week for at least six months. A Dr. Bill Knox, M.D., has been treating her on referral from Dr. Boyle.

Unfortunately, nothing was elicited on the cost of such treat-ment from Dr. Boyle.

IEE~b cont.)

Telieving the above discussed allegations, which were reported to and investigated by both GE and the NRC, Mrs. English filed additional allegations with the SRO in May and June of 1984. The letter complaints were not rep 0rted to GE, though 3E learned of  ;

them through SRO investigations. A hember of the May and June allegations were werely reiterations of the previously filed com-plaints. Of the 35 allegations investigated, five were found to be severity level IV violations ene (failure of personnel to use parsenal survey devices) was determined to be a corrected prior violations seven were partially or whally substantiated, but ware not deemed violations of NRO regulations or license requirements; one was unresolved and two were not addressed. Three level IV violations and one level V violation were found to exist on the

. basis of independent NRC determinations. (see ALJ Exhibits 5-12, incl. Employer's Exh. 11')

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  • a ". w. e & mer D:seussion of issues The ultimate icsue in this case,- it- whether the Respondent discriminated against Vera English due to her engtging in " protect-ed activities'.. Such activities, in the instant case, being the '

inititting of and, cooperating with the investigations of HRO.

in erder fer a Complainant to prevail'on a discrimination clair under the Energy Re:r;inization Act, 42 U.S.C. S 5E51 (here-inafter ERA), the Complainers must prove thets (' ) the party charged with discriminatit. is an employer subject to the Act; (2) that the complaining exployee was discharged or otherwise diser:ri-nated against with respect to his compensation, terms, conditions i or privileges of employment; and (3) that the alleged discrimina- l tion arose because the employee participated in an NRO proceeding. 1 DeJord v. Secretary of Laber, 700 T.2d 26), 286 (6th Cir. 1963).

Dnce tne erployee sKows that an illegal notive pinyed some role in the discrir.inatory act(s), the burden thifts to the employer to prove that he wo?id have discharged or taken whatever discrimina-

. tory action was proven, even if the protected activity did not occur. Maekowiak v. U n i v e r s i t y N u c l e a r_8 y s t__c r s , : n e . , 7 3 5 T . 2 d 1159 (9th Cir. 1964). See als: ti',RB v . T r ansp:f t i? Ion Mana;erent Coro., 103 S.Ct. 2469 (1983).

It was con =eded that GE was an arp10yer subl 4ct to the ERA.

The banishment from the Cheaet Lab and the. Subsequent discharge (for that is what it amounted to, regardless of the euphenism used by Respcndent), clearly af f ected Mrs. Englith's terms, conditions and privileges of eeployrent; and on her discharg4 date, the.effect ves tctal on her compensation.

The disciplinary actions of Mrs. English's empicyer coincided, in tire, with her strongest worded corplaints in March of 1985, and

.the meetings and ecmmunications, prior to the banishment from the icboratory, concerned the subject of her actions in atterpting to i correct what she considered violations of NRO req;irerents. I 7nere is little doubt-that this lady was a dif ficult emp;oyee te hendie, that she disrepted w:rk activity at ti.es, and that'some of tr.e tire her complaints had only minor terit. Nevertheless, it als: appears true that many of her corplaints had a proper basis in fe::, a-d that her concern fer her own safety and the safety of f ellev empicyee was a strong f actor in her allegations.

{ The gitt of Respondent's chief defense to the substantive

! charges was that Mrs. English was a high strung, nervous voman with L r.arked and emotional reactions to practices that were not within her perfectionist's point of view. To bolster this defense theory, a somewhat selective chart of charges'made to the NRC and the NRC findings was presented by Respondent. The contention was that the majority of compla'nts resulted in findings of 'no merit' or, at most, a minimal vislation. A review of the NRO rindings does not ind:cate such an innocucus con:1usion with reference to CE's record l

4 f8 .

0 6 . f '- '* 7 t *~*

. : , . ' "- :'004' u m ... .--. ci . :-. --4. m . v. .,,c with the NRC. This " scorecard", however, has little to do with the central issue. Unique or inportant information is not required.

The need to protect channels of information f rom being dried up by t ploycr intimidation is the purpose of the Act, nct the disclosure of ptrticular types of information, pelord v. Secre tarv ef Labor, su- Nevertheless, Respondent wo;16 have a valid detense if it Eebra. preven sufficient justification for the discip3inary actions

.tthen, e; art f ror Corpl ainant 's par ti cipa t ion in g3 o t ected_ act i-v_its On the last day of the he aring Mrs. English bE Care overwrought and-indulged in an outburst which lasted several ninutes, the suo-ject of which was the frustration that she f elt ove r her employer's refasal to give credence over her concerns on hazardous practices.

Tron the def ense point of view such an emotional resppnse to cress-examination tended to s;pport the contention that Complainant ,

ves an unusually excitable individual, therefore herr disruption of '

the lab and its workers gave Employer reason to renove her. On the l other hand, considering the unrefuted testimony of the psycholo-gist, this behavior- at the end of a long trial, could reasonably be interpreted as syrpteratic of the eactional stete which had rctulted frc Enployer's discriminatory actions.

Additionally, FeSponden- urges that the banishrert fron the Cheret Lat and the sabsequent discharge was wn:11y ;;stified by Mrs. English's serious infraction of the " failure to clea up visible contamination" rule. GE's management witnrsses testified that they considered such actions as a reans of entraprent of Radiation Saf ety inspectors for the company. Management felt a concern as to the lengths that Co plainant would go to in promoting her views on safety practices, and therefore centifered her a threat to other employees' saf ety. k'hile this ray be logical, if

.rcna event's view of her personality is 6ecepted, this expressed '

concern with safety is belied by Respondent'. inertia in regard rcpeated violations of safety raies by other employees. One ex ceple of thin' being the f ailure to investigate why the uranyl stain was not cleaned up by any other party prior to the Monday fol'.owing Ccaplainant's repert to Lacewell.

E p' oyer's b;rden req;1res that it prove at affirmative

. de-ft se, i.e., it has the b;rden of persuasion. Mia H e L i t h y v ._

00 Vie. 429 U.S. 274, 97 S.Ct. 56B, 50 L.Ed.16 ill. In deal notive

'cIles,,the erployer bears the risk that the.itgal and tilegal notives cannot be separated. An effort east be made to sort o;t these notives. The presence or absence of retaliatory motive is a legal conclusion and is provable by circunstantia'. evidence.

Mackowiak, supra. at 1162 and 1164.

In the instant case, Respondent's witnesses were not be-lievable in attributing the discipline imposed on: (1) regards for other employees safety which was ostensibly endangered by Mrs. English's actions and complaints and (2) for the ' deliberate" violation of the clean-up rule. Wnen the whole of the evidence is conaidered, there appears no adequate explanation as to why:

9

. t 3.!' I#((m -:u:e e o_ su, .::.,::s;o c:. p, (a) no investigation was made concerning other employees, including management, failing to clean up visible contaminations (b) cuch crployees, if kncvn (and logically, at least some vere known) vere not punished or admonished in any vays end (e) the infraction of failure to use persetal survey devices

$as co lightly regarded with reference to punish ent vis a vis f a:1;re te clean up visible contamination._*/

Additionally, the coincidence of a series of allegations by Mrs. English culminating in the March 1964 serioet charges and various rettings directly connected with the March corplaints with the banish ent from the Chenet Lab is a factor that carries con-siderable weight. Farther, the neetings, as tastified thro;;n renagcnent's vitnesses, came across as inquisitions to find charges that would ' stick", not a true investigation into the validity of eeneerns over general laboratory safety. Mr. Lacewell was concern-ed about "entraptent' of Radiation Safety personnel and Mr. Sheely about ' flagrant violation of work rules'; neither supervisor, as far ts can be ascertained fro the record, made any great effort to preperly investig ate Mrs. English's co plaints on saf ety. The one i reie that Mrs. Engitsh technically viciated, it nay therefore be inferred, was a pretext for getting rid of an erpioyee wne vould  !

,c : step reperting violations to NRC. Notices at the plant and l other information which Mrs. English understood as citing her duty to report vio*.ations, were apparently accepted by her at face '

value. Nothing in the record, briefs or in my research indicates that the narber and freqJency of reports of violations to NRC execses discipline against the ecployee reporting. Indeed, all violations are to be reperted along with the erpleyct's failure to l take adeq; ate corrective action.  !

Ce f ense Metions to Dismiss and/_or For Summary J uderen_t :

I The actions are based on ERA sections 210(g) and 2iO(b). ]

ne retion on timeliness was previously denitd on S0vember 1, i!E4, v! h perrics!on to bring it assin after the close of tne httrini._g/

5ection 2'C(g) of the ERA, 42 U.S.C.A. 5 $65'(s) provides:

Subsection (a) of this etetion shall not apply with respect to any erpicyte who, acting without diree- 4 tion fror his or her erplcyer (or employer's agent),

i V vs. level IV NRC designa-1/ Even tions, a taking into account the levr five day suspension appears have been the heaviest l punishment dealt to anyone.

]/ Said F.uling and Order is incorporated herein my reference.

..a.

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.. 4.4.0: er :: ar m::r:-S t- :_ s m ru c:n 3 e, u deliberately causes a violation of any requirement of this chapter or of the Atomic Energy Act of 19 54, as trended (42 U.S.C.A. 5 2011, el seg.)

Thtre VEC no evidence introdcced to indicate that the +ilure

  • to clean up a spill of uranyl would constitute a violatio- any portion of the Atorie Energy Act. However, such a failure to act wts censidered a violation by NRC, and therefore could be consider-cd a " requirement
  • es called for in the above statJte. Ass; ring tht: such is the case, 1 60 not consider that Mrs. English de-literatly caused a violation under the circumstances of' this case.

Respondent contends on one hand, that Mrs. English's only recourse with regard to discovered violations was to report them to n.anage-ment, which she did to no avail, or to the NRC. On the other hand, Eespondent would have Mrs. English continue to abate violations etered by others--namely, to clean up contamination lef t by em-plcyees on prior shifts in violation of NRC requirements. GE can-net have it both ways. I find Mrs. English's statement credible that she had not caused the uranyl stain on her work tab'e. Her outlining of the results of some other person's negligence and failure to clean up was in effect, at the same time, a notice to nana;erent and a varning to fellow workers of the visible contami-nation. Einee Mrs. English had nany tires in the pest cleaned up eentamination caused by other persons in their preceding shifts, she was entitled to expect that sottone other than she would clean up or call attention to the urery; stain. Further, I found her credible in her testimony that she brought the stain and red tape to the attention of her inrediate sepervisor, Mr. L60evell, as soon as he vas availab'e . to observe the sare first hand. Once the catter was brought to attention of nanagement, an order should have ictued to clean the stain. At least the Radiation Safety men should have been called in to view the situation. Mrs. English, as heretefore stated, Xnew that the cocid expect n0 credence to her corplaints without tangiDie evidence. In demonstrating the mal-feasance of others, she took the only reans availaole to provide visi le proof to support her past and irmediate alleg ations. Her demonstration of same was used as a pretext f or re taliatory action, tnd by way of Respondent's motior it is also used as e basis to  !

defeat her claim. Te allow the latter voeld be patently unfair and defeat the parp;se of the Act. This was net an ac t done delib-erately to invoke " whistle blower

  • protection, rather it was a reans of reporting violations, albeit unorthodox. See S. Rep. No.

E46, 95th Cone., 2d Sess. 30, reprinted in 1976 U.S. Code Ceng, &

Ad. News 7303', 73C4; Hochstadt_v. W0reesIer Fou.dtjjon Tor Experire tal Biology, 545 F.2d 222 t '. s t Cir. 19'Il.;/

< [/ In determining whether Claimant's conduct aficirded an indepen-dent, nondiscriminatory basis for disoharge, or whether it was pro- ,

tected activity, the court must determine whether Claimant's over-l all conduet was so generally inimical to Employer's interests and so excessive as to be beyond the protection of the statute. The court must balance the setting in which the activity arises and the interests and motivations of both Employer and ciployee.

H o gk _s_ t a d t , ibid. at pages 229, 230 and 232.

_4._ ,

I

.L U [:#$N

v..H-0.t c_smr:1.::s:s : ,m The action based on section 210(g) is denied.

With respect to the defense. potion under section 210(b), I find that Mrs. English's complaint was timely filed. Section 210(a) profides in pertinent part that 'no 6mployer. . . may dis-charge any employee or otherwise discriminate against any erployee with respect to his. . . employnent. . .

  • 42 U.S.C. 5 5951(a).

Section 210(b) provides that "any erployee who believes that he has been discharged or otherwise discriminated against. . . ray, within thirty days after such violation occurs, file. . . a co- with the Secretary of Labor. .

. alleging such discharge or Eple!nt iserimina-tron ' 42 U.S.C. 5 5851(b).

Mrs. English alleged in her complaint continuing acts of discrimination by GE, as a result of her protected activities, from pseender 15, 1963, eu1rinating in her transfer out of the Chemet Lab on March 15, 1964, and her discharge on July 30, 1964. GE centends that the thirty-day statute of limitations began to run on May 15, 1954. By letter of that date, Mrs. English was notified that as a result of her intentional failure to clean up contamina-tion she would not be allowed to return to work in controlled areas, that her tenporary reassignment would be e> tended for ninety days beginning May 1, 1984, that open placerent p:.sitions vould ce rev'ewed in an effort to find suitable work for her, and that, in the event that she failed to secure perranent p14recent by July 30, 1954, she woJ1d te " involuntarily placed on lack of satteole work" states. Mrs. English alleges that GE's purported effort to find suitable work for her was n.erely another pretext in its efforts to >

remove her fror the company.

GE's tell&nce en the cases of Chardon v._Fernandez, 454 U.S. 6 (1981) and Delaware State _ College v. Riexa, 448~U.S. 250 (1980) is cisplaced. Tnose cases involved ractal discrir.ination in the denial of tenure. In each of these cases, the complainant was denied tenure and given a one-year " terminal" cont.reet. The court held that the proper focus is on the time of the discriminatory tet, not the point at which the conseq;ences of the act become ptinfal. Lickt, 449 U.S. er 258; charden, 454 'J 5. at B. In said etr6s the fiet of terrinatien was not in itself an illegal act.

Furthct. re, neither complainant alleged any illegal acts subse-q;ent to the dates on which the decisions to terrinate were rade. ,

in the incttnt ratter, the statute specifies that discharge is one j tvent spen which a corplaint rey be predicated, and is thus an 1 illegal act in itself. Additionally, Mrs English has established & {

centinutng violation; "a series of related acts, one or more of i which falls within the limitations period." valentino_v. U.S. j Postel Service, 674 F.2d 56, 65 (D.C. Cir. 1952). '

Mrs. English, therefore, did not meed to file shortly af ter the first of the discriminatory acts, nor at any time prior to the discharge. If this were not so, an Employer could easily circum-vent the statute by minor acts of discipline, followed by a dis-cherge tired beyond the requisite time limit.

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  • 5.es.e tria:

. 1 0: > H :: : 07 ":: . :-ri E c., 5 m rm e n ; ta c,9 GE's motion, on both grounds, is denied.

scse'd on the foregoing diseassion and the ruling on the me- j

. tion, I take the following findings: q

1. GE was an en.ployer subject to the ERA (Act}.
2. Tne Respondent employer discriminated assinst Complain-ant, by (a) banishing her from the Cheret Lab, and (b) discharge from employment with GE
3. Said discrimination was notivated by Complainant's initiation of and participation in NRC proceedings investigating j Enployer's facility, specifically the Chemet Laboratory.
4. Respondent did not carry its burden to prove that the above discriminatory acts would have taken place, even if the protected a:tivity of this Cc plainant had not taken place; i.e.,

the charge of " failure to clean up visible contamination" was a pretext.

S. Complainant, throsgh her testieony and that of ner wit-nesses (including psychologist Boyle) adequately established causal connection and the basis for compensatory dar. ages and other relief provided by section 5851 of the Act.

6. -The evidence of record considered for No. 5 finding s'af-ficed withoat the necessity of evidence by an economist.

It is eeneluded that Complainant estabi;shed a case of d1Eeri-rination against Respondent, and in that regard the deelsion of the Administrator of the Wage and Hour Division is affitned. With reference to the relief to be afforded, I have followed the guide-lines of Otrord, supra. Accordingly, 1 mast order the reinstate-rent o f Kr s . English's forrer position since that is what the stEtJte, as interpreted ~by the DeTcTd CcJrt, Clearly sets forth.

One balance, of the relief provided, also has been kept strictly to the boands of the remedies outlined in the ststute. Derord, -

rupra., at page 289.

A1torneys_'_ Jee s_ and Cos t s The exprers statutory provision for complainant's attorney fees is as follows in the ERA:

If an order is issued underethis paragraph, the Secretary, at the request of the complainant shall assess against the person against whom the order is issued a sur egaal to the aggregate enount of all costs and expenses (including attorneys' and expert witness

?

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fees) reasonably incurred, as deternined by the Secretary, by the complainant for, or in connection with, .the br:nging of the complaint upon which the order 1s'tesued. 42 U.S.C. $ 5851(b)(2)(b).

Co plainant'.s attorneys have filed petition for fees and costs along with numerous sspporting doeurents. The totti of atterneys' j ces tnd expenses claimed is $543,660.95. Resp:ndent f!!ed a -1 Merorandur in Opposition to said petition.  !

The' determination on whether the items listed were " reasonably-incurred" requires a logical starting point. Two cases, frequently cited in attorney fee matters, have been used to provide the out-line for this subject.

In the Lindy Brothers Builders, Inc. v. Aterican Radiator 6 Standard Sanitary'YoFp., 4BT r.26 161 (3rd cir. 1973) the <1oee; star approacn was : set forth. Under this analysis the number of hours spent and the manner that they were spent is first coneider-ed; next the re6sonable hourly rate is fixtd, considering the tttorney's reputation and states (contingency asptets and quality ray in:rease or decrease the "lodeltar*, which is the figure for hours tires hourly rate). In Johns;n v. Georcia_j!qhway Express, ne., 455 1.2d 714 (5th Cir. 1974), a tace 4:scr;nination case, .

E7elve factors were recited: j (1) the tine and labor reqeired: (2) the novelty and .

difficulty of the questions involved; (3) the skill .

necessary to perform the legal services properly: (4) j the' preclusion of other erp*oycent by the attorney due to the acceptance of the cases ($) the customary feet (6) whether the fee is fixed or contingents (?) the j time limitation 6 imposed by the client or circumstan-ces; (6) the amo;nt involved and the results obtained; (9) the experience, reputation and ability of the attorney; (10) the undesirability of the caser (11) the nature tnd length of the professional relations with the client; and (12) awards in similar cases.

Counsel for Respondent, in his rerorandur suggested categories for the iters of work to facilitate determining whether the hours were reasonab*.y spent. I have kept this in mind. In ccpeland_v.

, Marshall, 64i F.2d 86 0, the court was upheld on the use o! tne j

' lodestar

  • approach, with a reduction cf hours which were non- I productive. In deciding which hours to reduce (and in some instan-een, the eliminating of total hours for certain items), I have l

carefwlly reviewed the New York _ Gaslight club v. Carey, 100 s.ct, 2024 (1980) and the later Weco v. Board of Education of Dyer county, 105 s.Ct. 1923 (19TT). 1 consider the latter case as more pertinent to the case at hand. I incorporate by reference the reasoning of the Webb case in the following discussion.

I

-______________i____._______.___ __ _ _ _ _ _ _ _ _ _ _ . _ _ _ _ _ . _ . _ _ _ _ _ . _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _

  • s:- :cc4 s.es.e: :7,47

.i.: ii . . R . :- > ET u. F , r w. n . 3 c.u l , l As stated by the Sixth Circuit court in PeTord, a I ceetion 5651(a) ease is a simple one requiringthe~Codsure.,plainant to l p:ove thrt-e ele. tents (zee page 8. of this decision). This case was  !

not one that required hearings on interlocutory rulings of this tdrinistrative law judge in the U.S. District Court for D.C. or in the Court cf Appeals for the D.C. Ciregit. Such ho;is are deleted fron consideration. Time spent in challenging the NEC determina-tiens was eliminated. Those items which lack spe cificity were not con!!dered. It was not ir pe r t a n t tha' NRC find rerit in each of i MrE. Eng*.ibh's CoPp1&ints, noT Vss the r0de Cf SEC investigation j reterial to this case (see Discussion, this Decision). The words  !

" legal research" are assumed to relate to the s;b;ects listed fer the sene date. I had the choice of eliminating all such references  !

for being non-specific or making the above assumptions where there i appears ne reason to research the s;bject of a date in quest:en, l the "research hoars" will be eliminated. It is regrettable the Cciplainant's attorneys spent so much time in re-Arguing their case-in-chief 1n the docements for the attorney fee reqsest without 4 q devoting short specific explanation of matters researched, subjects l of conferences and telephone calls, and subjec*s discussed with  !

vitnestes. , i Mr. Katner's ho;rs will be discussed first. His hours are red.ced by 1??3 ho;rs. Drestic red;etions were r:de dat to the nen-specifie quality of rany itens, the verk on urrelated retters, (seective "le;e; research" and the p'ethora of c0rference heers, :

c'.icsed reasonable air travel tire because the cafe necessitated travel fren Mr. R&tner's office to Wilmington, S.C. I do not f:nd rerit to the argar ent that local counsel could have handled the ette since GE is the largest single employer in Wilmington, and finding a local attorney woald naturally be difficgit. Respon-dent's attorneys were also from out of town. Feduction was further este on the basis that much of the time spent was for items of work that were clerical and administrative in rature. Turther, as Ecspondent seggests, the excessive hours per day tre just not credible, considering the consecutive days claimir.; over 16 hours1.851852e-4 days <br />0.00444 hours <br />2.645503e-5 weeks <br />6.088e-6 months <br /> per day.

Mr. Fatner's experience and background, while irpres61ve, does no: cenvince this ;;dge that :: is worth 5165. D per h0;r for tais type cf ette. On the one hand , Mr. Batner arg.e s that he sho;1d re ceive credit for all hours on research because t.he field of law invciving " whistle clower" cases was unfaciliar to him, bat at the sa e tire he expects the same tee as for his acknowledged field ef expertise. The " lodestar

  • figure here would bs '65.

. tires the hears left, 341, totalling $63,065.00. I have taken into account, however, the factors set forth in anhnson, supra. and the guide-lines of Lindy supra. I found the Ecs nelpful were the factors for adjus'tment of the lodestar figure discussed in the Lin?v cases (1) complexity and novelty of issues; (2) quality of work observed by the judges (3) amount of recovery. As was stated above, in the discussion of DeTord, the case is a simple one with three basie eierents to prove. Actually, in this case, the only element of the l

F8CP 1904 '

.et.et 17: 50 e.. '; . 0 ; 'Er 11: 1I M::'.*:- Ci A Sm rwcgn 3 r,;7 three requiring more than minimal evidence was the connection between the diserininatory acts and the ' protected activity". This could have been accomplished in far less time by the testimony of the Co:plainant , witness Malpast and one or two nanagement wit-nesses. Witness Mossman was needed on rebuttal of the points made by the defense and the psychologist. expert was needed to establish a portion of proof of darages. This court repeatedly admonished counsel to limit adversary hostilities and to avoid excessive direct examination and cross-examination. Additionally, far too much time was vasted on arguing minor points of evidence as well as cervice of subpoenas on unnecessary witnesses. The quality of Mr.

Ratter's trial work observed by this judge would be rated as below i average for the most part. Associate counsel Schiller elicited far,

r. ore pertinent information in his examination in considerably less time than Mr. Ratner took for establishment of minor points. The  ;

time spent in producing material that was newsworthy for newspapers i and television, may have been needed, as Mr. Ratotr put it, to l force GE into a position to settle the case, but it had no place dering court-room hours.

Tne amo;nt recovered, when the value of the back pay and fringe benefits are considered along with corpense. tory damages, was adeq; ate in this case. Tne contingency factor is a plus for Cerplainant's attorney, b;t a minor one considering the facts of i the case. )

I find that total trial tine for the Complainant's case, including tebattal evidence should have taken three and one-half j days. Time for the defense could not be controlled by Complain- ,

a n t ' t. counsel, though cross-extrication could have been reduced. I Accordingly, I reduce the hourly rate to $100.00 due to considera-tion of the three Lind adjustment factors. Tot a:t f ee allotted to l Kr. Ratner: 634,1 . O.

Tollowing the same forfat as in the redJetion of Mr. Ratner's req;csted hours, I reduce Mr. Schiller's hours ey 456.75, so that his total allowable hoars total 366.75. Tne ' lodestar

  • for Schiller, using the hourly rate requested voeld equal a total fee of f45,643.75. Hesever, in considering that Mr. Ratner was the 1ttf s torney, along with the three factors of Li,ndy, I redace the he;rly rete to $90.00. I found Mr. Schiller more effective than Mr. Rctner in examination of witnesses, less of a disruptive

, elenent in cocrt, but much of his work duplicatad that of Mr. Ratner 's and his talents were wasted in clerical or administ-a-tive work. 'His total fee is therefore adjusted to 533,007.50.

I find that the use of any othsr attorneys was unnecessary considering that two attorneys handled :he defense of this case in excellene, fashion. In many ways, considering the adverse finding by the Department of Labor administrator and the factI situation, therefore the defense case was the more difficcit to present.

eliminate Mr. Negle's fees entirely.

I rs:- :ees ' ! et,e: 17: 52

...: E- ::: n "::.m:-tu c: s.. m ra u c:s:t v. ,, :;

I also eliminate the cost of Ms. Jo G. Wilson's fees and expenses, as representing the ordinary costs of running a law office. Two paralegals were not needed. Ms. tubrin's paralegal hoaru, through no fault of her's,' nevertheless involved much research that had no materiality to this case. Sone of her research pertained to proper subjects and her work in the court- '

roon saved time for the court as well as attorneys. Such worX was needed specifically for this case. However, a good deal of Ms.

Zubrih'6 work could be classified as straight secretarial, and I htve ded;cted accordingly. I allow 60 hours6.944444e-4 days <br />0.0167 hours <br />9.920635e-5 weeks <br />2.283e-5 months <br /> representing the total allotted, for Ms, Zubrin's services after dedactions, cf

$1,200.00.

Mr. Jeannett's hours appear to be those of a legal secretary, and nothing is allowed for his time. (See Hensley v. Echerhart, 461 U.S. 424, 103 S.Ct. 1933 (1983).

W;th reference to costs and expenses, I find that expert witnesses Mossman and Boyle were necessary but Respondent's counsel l makes a valid point in stating that the hours for witness Mossman were excessive in view of 15 minates of testimony. Even consider-ing that the expert assisted Mr. Ratner in devising relevant ques-tiens of Respondent's witnesses, I find that nach of Mr. Mossman's time was un.ecessary for this case. All of the time allotted, during brief testirony, to setting o;; Mr. Mossman's standards vis a vis S;0's et these of GE appear barely relevant. Keeping in mind that an extra trip was necessitated due to unforestren changes in schedeling of witnesses and that possibly eight hoars were spent waiting to be called on the first day that his testimony was ex-pected, I will allow a total of $1,850.00 to include this witness' fees and expenoes.

7ne other items of " expense" ano costs are outrageoes with reference to Mr. Ratner. Expenses listed for Mrs. Englisn are no* I of the type allowable under the statute.and regulations, therefore none are allowed. Expenses for Mr. Schiller, theagh also exces-sive, appear much more in line. I will allow the costs of reasen- l t.ble photocopying, scae subpoena service charges and other nornal costs p1;s a reasonable amount towards airfare and hotel charges for the tw attorneys and Ms. Zubrin, taking into ccount that ,

consider the length of the trial as unreasonable, and ruch of the overhead expense as relating to immaterial matter /, The total ,

allowable for reasonable costs and expenses is $2,350.00 (additio- l nel to attorney, paralegal and Profess:r Moesman's expense). This )

includes Dr. Boyle's tine, in court only. Anything over and above  !

that amoent, I find to be unnecennary dae to the eceessive trial time used, the immaterial motions, the proceedings in other courts and the excessive document production. No other items, whether termed fees, expenses or costs are allowed, though all documents on fees, expenses and costs have been considered.

1 l

o. a '

2.

":. :ees s es.e: ints e.;:. n n:n v..'v.~totvo.im mu<:s: cc F.n l

l ORDER l

l 1 Respondent General Electric Cempany is to take af firma-  !

tive steps to cease discriminatory acts 69ainst Complainant.  ;

2. Complainant is to be reinstated to her former position together with compensation for any back pay loss calculated from the time of the lest pay period plus interest at a rate per annum eg;ivalent to the coupon yield of the average accepted auction price of the last 52-week U.S. Treasury bills. Steh inten, shall be payable fro the date of Complainant's cessaticn of emp.icynent to the date that such back p6y is actually~ paid. Any rate increase since the cessation of employment is to be calculated into the~back pay compensation.
3. Complainant is to be reinstated as to terns, condi ions and privileges of her employment 60 as to make her whole for a .y j such losses suffered by cessation of employment. l
4. Respondent is entitled to set off any contributions owed to EaVings plans forreT1y participated iB by Con.p3ainant, if such ecployee contributions ceased dering her tire off erploynent, and in order to bring Complainant up to date on any s.:ch plan.
5. -Compensatory darages are awarded, and are intended to ,

ccver past and future Rcdical expenses (not already covered under '

any enployee Health and Accident plan which is to be fully rein-stated pursuant to order No. 3 above) and as recompense for the humiliation and mental suffering of the Complainant dae to Respond-ent's discriminatory acts. Said compensatory award is 570,000.00.

l

6. Eerpendent is to pay Complainant's attorneys fees and  !

expenses, as follows:  ;

i (a) A fee for legal services to Mozart Ratner, I Esq. of 534,100.00.  !

(b) A fee f or legal services to Arthur W.

Gehiller, Esq. of $33,0C7.50.

(c) A fee for para-legal services of

. 61,200.00 (d) Expert witness fees and expenses for Professor Messaan of $1,650.00.  ;

(e) All other costs and expenses not covered above, including Dr. Boyle's courtroom appearance fee, in the amount of $2,850.00 j

n:- see. e.ee.e inst

.,. c. : . :; 'ir :; .4  :. : t A. saa res .::::c cc s,z:

The' aggregate amount of the above costs and e:<penses allowed to Complainant 13:$7),001.50.

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L~it/ i.[< A JBER y3 ffRTS3ESDES A d m i n'i, rative Law Judge casesi AQQ di

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San Trancisco, CA P.; 8 t r em

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, . . C . ' M 21 : 1 E M * .~ .'* * -CN E T L.; 5'- 'i l'5& C 15 .' *,:

Vera-M. English SERY1CE SHEET 74 Holland Drive Castle Hayne, N.C. 26426 8 5-I RA-2 Bobbye spears, Esq.

Regional Solicitor O/Selicitor - USDOL 1371 Feachtree St., N.E.

M02 art C. Ratner, Esq. Room 339 .

1700 M Street, N.W. Atlanta, GA 30367 Suite 610 p'st7/Af Washington, D.C. 20036 d-of 1 did

, E. A. Lees General Plant Manager Castle Hayne R6. ,

P.O. Box 780 Arthur M. Schiller, Esq. Wilnington,1.C. 28402  !

1000 Connecticut Ave, N.W.

' ' l Suite 1201 l Washington, D.C. 2003!

Jares C. Stewart

{?C;7 paaf Area Director Wage & Hour Division - E5A  ;

P.O. Box 27456 l Raleigh, N.C. 27611  !

Scott A. Klion, Esq.

General Electric Co. William E. Brock ,

175 Curtner Ave. M,'C 622 Secretary et Ltbor 'I San Jose, CA 95125 O/ Secretary - USppL

(' o p1 p+A Roor 8-2018, FFB 200 Constituticin Ave., N.W.

Washington, D.C. 20210 Y c ?? +'.J.ny '

W1111cr W. Sturges, Esq.

    • *e i n s ; e i n , S t a r g e s , Cd en. ,

Gr:.'es, S;gger, Jcnas &

Captell, P.A.

810 Eaxter St. Cul-De-See Charactte, N.C. 28202-2773 i

, Wff?YA1 l

. .z g/. _,

Cornelius 6. Donoghue, Jr. (Name)

DepJty Associate Solicitor 0/50iteitor - USDDL -

AUG 119B5

.91te b-2620, FPB . - ~ ~ ~ ~

t 200 Constitution Ave., N.W. (Date)

Washington, D.C. 20210 l

)

L u _ _ --

4 D 87 -G /

e GENERAL ELECTRIC CD TEL No.408 925 5312 Jan 20.87 10:05 P.03 l THE UNDCft SEC8tCTARY OF L. ABOR mawmovow, o. c.

enem I

DATE: January 13, 1987 CASE NO.: 85-ERA-2 VERA M. ENGLISB, i

l Complainant JAN 10 iOB/

GENERAL ELECTRIC COMPANY, E.A_R_I_M 1. .'_ " i ti Respondent FINAL DECISION AND ORDER Administrative Law Judge ( AIJ) Robert J- Brissenden submitted a recommended Decision and Order M to me on August 1, 1985 in this case arising under the employee protection provision of the Energy Reorganization Act of 1974, 42 U.S.C. 6 5851 (1962). (The ERA or the Ac t. ) The ALJ recommended that I find that respondent General Electric Company (G.E.) violated the Act when it transferred and then discharged complainant Vera English (Mrs. English) from her job in the Chemet Lab at G.E.'s Wilmington, N.C. nuclear fuels manufacturing facility. 1 l

The parties requested numerous extensions of time to file briefs and reply briefs and briefing was not completed j until December 9, 1985. The case was remanded to the ALJ on May 9, 1986 to give complainant an opportunity to complete the presentation of her case because the ALJ had refused to l

- Permit her to present the testimony of several witnesses.

1/ D. and O.

I I

)

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E -_- ______ l

e q

ENERAL ELECTR8C CD TEL No.408 925 5312 Jan 20.87 20:05 P.04 l

{

i The ALJ ordered that the parties put this testimony in the

~

record (and that of any rebuttal witncsses) by way of deposition. ,

{

Complainant's counsel objected to that procedure as well as ,

the limitation the ALJ placed on the scope of the witnesses' j testimony. Complainant sought clarification of the Under j secretary's remand order, which was denied on July 18, 1986.

Complainant's counsel refused to participate in depositions and the ALJ returned the case to the Under Secretary without f any additions to the record on the merits on July 13, 1986.  !

Secause I find that Mrs. English's complaint was untimely l I

filed under the Act, 42 U.S.C. S 5851(b) (1) , the complaint in this case will be dismissed. 29 C.F.R. $ 24.6 (b) (4) .

BACKGROUND 1

Vera English was a laboratory technician in the Chemet Lab of G.E.'s Wilmington facility in March 1984 and had worked in that laboratory for a number of years. Her duties involved

(

weighing and analyzing samples of nuclear fuel, consisting l 1

of uraralum powder, to determine whether the proper concentration of uranium had been achieved in the manuf acturing process.

The nuclear fuel is manufactured into fuel rods used in nuclear reactors in electric power plants.

Mrs. English had made a number of complaints to the Nuclear l

Regulatory Commission in the years prior to March 1984 about sloppy handling of uranium powder in the Chemet Lab, failure to h

t t

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TEL No.408 925 5312 Jan 20 87 80:06 P.05 ENERAL ELECTRIC CD I

clean up spills of radioactive powder and solutions, inadequate process controls and radiation safety procedures, and defective i

l equipment. On March 15, 1984 Mr. L.A. Sheely, Manager of Fuel  !

Quality, took disciplinary action against Mrs. English based on five violations of ' work and conduct standards" which he stated as,  !

1) the unauthorized removal of the personal survey i instrument from the entrance to the laboratory, failure l
2) the deliberate contamination of a table, 3) l to clean-up the contamination knowing it existed, ,
4) the continued distraction of other laboratory l employees and 5) disruption of normal laboratory activities.

Mr. Sheely imposed a penalty of five days off without pay, which he waived, and a period of 12 months probation during which commission of any offense serious enough to warrant discipline veuld result in discharge.

In addition, Mrs. English was removed iron her assigneent in the Chemet Lab and was placed on indefinite temporary assignment to other work.

Mrs. English appealed this disciplinary action to Mr.

James A. Long, General Manager of the Wilmington Manufacturing On May 15, 1984 Mr. Long Department of General Electric. ,

upheld Mr. Shee.ly's finding that Mrs. English had " knowingly and intentionally failed to clean up [a] spill of radioactive material." Mr. Long found this to be "a very serious and significant violation of the Wilmington plant's health and He ordered that Mrs. English safety standards and procedures."

' would not be allowed to work in any " controlled access" area l

1

)

l 1

TEL No.408 925 5312 Jan 20.87 10:07 P.06

'fNERAL ELECTR1C CD (areas where nuclear fuels are handled and special precautions I l are taken to contain radioactive contaelnation) or in any position with access to nuclear fuel. Her probationary period was reduced from 12 to six months, and the period of her temporary assignment was changed f rom indefinite to 90 days, with no 1  !

i reduction in pay. During the 90 day period c.E. would search I

for other work at the Wilmington facility for which Mrs.

English was qualified. Eut, Mrs. English was told explicitly in writing by Mr. Long "If you have not secured permanent placement by July 30, 1984, you will be considered as involuntarily placed on lack of suitable work", in other words, discharged.

Mrs. English was assigned to work in the Central Stores warehouse, but another suitable position did not become available and Mrc. English was discharged on July 30, 1984. Mrs. English flied a complaint with the Department of Labor on August 24, 1984.

DISCUSSION The ERA requires that complaints of retaliation for protected  !

activities must be filed "within thirty days after such violation j occurs". 42 U.S.C. 5 5851(b) (1) . Nevertheless, the ALJ denied G.E.'s motion to dismiss for untimeliness and reiterated that denial in his recommended decision. (D. and O. at 12.) He held that two Supreme Court decisions, interpreting the charge filing time limits of Title VII of the Civil Rights Act of

' 1964, 42 U.S.C. 5 2000e-5(e) (1982), Delaware State 1

1

.j

4 Jan 20.87 10:08 P.07 (

hERALELECTRICCD TEL No.408 925 5322 College v. Ricks, 449 U.S. 250 (1980), and the application '

of a one year statute of limitations to actions under 42 U.S.C.

5 1983 (1982), Chardon v. Fernandez, 454 U.S. 6 (1981), were distinguishable for several reasons, including the fact that Mr s. English " established a continuing violation."

In Ricks, a professor was notified that he had been denied I

tenure and would be given a one year terminal contract on June 26, 1974. The Supreme Court held that the charge filing period under Title V11 began to run on that date, not June 30, In Chardon v.

1975 the final date of Ricks' terminal contract.

Fernander, several administrators in the Puerto Rican Department of Education were notifed that their appointments would terminate at specified times in the future. The Supreme Court held that the one year statute of limitations applicable to actions under 42 U.S.C. 5 1983 began to run when they received notice of their terminations, not when they were actually terminated.

The f act that Chardon and ' Ricks involved racial discrimination in the denial of tenure, one distinction relied on by the ALJ, is little, if any, distinction from this case for timeliness purposes. The Fourth Circuit has applied the principle set forth in Chardon and Ricks to an age discrimination case in Inc.,

the commercial field, Price v. Litten Business Systems, 694 F.2d 963 (1982) and I see no reason not to apply the same principle to discrimination for whistleblowing activities in the industrial field. I rule that the ALJ was wrong when

TEL No.408 925 5312 Jan 20,87 10:09 P.08

>ENERAL ELECTRfC CD he held that, under Title VII, "the fact of termination was j i

not in itself an illegal act", whereas here the statute specifies  ;

that discharge for whistleblowing is illegal. Section 703 (a) (1) i l of Title VII, 42 U.S.C. 5 2000e-2 (a) (1) , states explicitly "It shall be an unlawful employment practice for an employer --

. (1) . . . to discharge any individual . . . because of such person's race . . . j i

What the Supreme Court held in Chardon and Ricks was not that termination on account of race is not an 111egal act, but rather that the timeliness of a charge must be measured from the date of the " unlawful employment practice". Quoting with approval from Abramson v. University of Rawall, 594 F.2d 202, 209 (9th Cir. 1979) the Court said "It]he proper focus is upon the time of the discriminatory acts, not upon the time at which the consequences of the acts became most painful."

(emphasis by the Supreme Court). 449 U.S. at 258. -

Similarly here, the focus must be on when the " violation" took place, not on when its effects were felt. The alleged violation here was the decision to place Mrs. English on 90 ___

day temporary assignment. If a suitable position did not become available, it was clear that Mrs. English would be discharged. As in Ricks, the discharge here was the " delayed, but inevitable, consequence", 449 U.S. at 257-258, of the 90 day temporary assignment. Mr. Long said so explicitly in his May 15, 1984 ruling on Mrs. English's appeal.

iENERAL ELECTRIC CD TEL No.dO8 925 5312 Jan 20.87 10:12 P.01

!i Moreover, the fact that G.E. was seeking another position for Mrs. English during the 90 day period and there was a possibility that she could remain with the company does not change the result. In _ Price v. Litton Business Systems, Inc.,

supra, plaintif f was told, af ter his removal as branch manager ,

that other positions with Litton would be sought for him. He was told his supervisors wanted him to stay with the company I

and that they would make some specific of fers of employment in the near future. He was in fact offered other, lower, l positions. The Fourth Circuit held that the time for filing l his complaint under the Age Discrimination in Employment Act of 1967, 29 U.S.C. 55 621-634 (1982) ran from the date he was told he would be removed as branch manager , not when his "An employee's employment finally terminated. 694 F.2d 963, 965.

hope for rehire, transfer, promotion, or a continuing employment relationship ... cannot toll the statute ..." id. at 966.

The ALJ thought "Mrs. English has established a continuing violation" (D. and O. at 12) but did not specify what actions The Supreme by C.E. constituted that continuing violation.

Court scrutinized plaintiff's claim in Ricks of a continuing without violation, but held that " sere continuity of employment, more, is insufficient to prolong the life of a cause of action Although for employment discrimination." 449 U.S. at 257. I i

Mrs. English did allege and attempt to prove that G.E. engaged in other acts of discr imination during the 90 day temporary

r  !

ENERAL ELECTRIC CD TEL No.dO8 925.5312 Jan 20.87 10:12 P.02

.s_

assignment period, that is not suf ficient to state a claim of continuing Elolation with respect to her discharee. For example, she alleged that she was put under surveillance by her new supervisor in Central Stores, and that she was harassed she by G.E by having someone from managemer.t board a flight took to Washington to talk to the NRC, and by ordering her to In go home to put on her safety shoes on her last day of work.

_R i c k s , plaintiff also alleged that "a variety'of unusual incidents occurred during (his terminal yearl", 449 U.S. at 257, n.8, but that was not sufficient to establish a continuing violation.

limitations periods The Supreme Court said "[i]n order for the to commence with the date of discharge, Ricks would have had to allege and prove that the manner in which his employment was in which tereinated differed discriminatorily from the manner the College terminated other professors who also had been denied tenure... [But) ... the only alleged discrimination occurred -

and the filing limitations periods therefore commenced at the time the tenure decision was made and communicated to Ricks."

449 U.S. at 258.

she was treated any Here, Mrs. English has not shown that differently from any other employee on temporary assignment if subject to being placed on *1ack of suitable work" status The only a suitable permanent assignment cannot be found.

violation, if any, occurred when she was put on temporary assignment on May 15, 1984 and the 30 day statutory filing 1

i GNERAL ELECTRIC C0 TEL No.dO8 925 5312 Jan 20.87 20:13 P.03

.p.

Her August 24, 1984 complaint period commenced on that date. t -

was more than two months late. i l

Cases decided by the lower courts both before and after the Supreme Court's decisions in Chardon and Ricks show that the type of allegations made by Mrs. English here, even if proven, would not support a " continuing violation" theory The courts have generally that her complaint was timely filed.

v. l 1

distinguished a completed act such as a. demotion, Mader or f control Data Corpor ation,19 T.E.P. 1192 (D. Md. 1978) 6 G., Inc., 37 F.E.P. 926 (N.D.

termination, Welty v. S.F.

Ala. 1985) from employment policies and practices which are repeatedly implemented during the filing period although they may have been first established prior to the filing period,

v. Los Anceles county, 566 F.2d 1334 (9th Cir. 1977),

_ Davis vacated on other grounds, 440 U.S. 625 (1979); Patterson v.

vacated American Tobacco, 634 F.2d 744, 751 (4th Cir. 1980),

Thus, for example, in on other grounds, 456 U.S. 63 (1982).

Patterson v.

American Tobacco, the Fourth Circuit distinguished Evans v. United Airlines, 431 U.S. 553, pointing out that in Patterson

'the violations charged and found by the district I in Evans. ,

court were continuing in the very sense not present 3 Here the promotional policies adopted in 1968 were alleged ice

... and found ... to involve a continuing pattern or pract ,

of discrimination ... (C]1 aims related to these violations are not barred by the failure to have challenged at its inception 634 F.2d the policy which gave continuing rise to them.'

3 ENER4L ELECTRSC CD TEL No.408 925 5312 Jan 20.87 10:14 P,04 744, 751 (emphasis added). Compare Davis v. Los Angeles County, (use of a height requirement is a continuing violation) Brewster

v. Barnes, 788 F.2d 985 (4th Cir. 1986) (failure to raise salary is a continuing violation): Conzaler v. Firestone Tire and Rubber Co., 610 F.2d 241 (5th Cir.1980) (discriminatory []

r ,,

test is a continuing violation), with Prophet v. Armco Steel, .'

y. -

inc., 575 F.2d 579 (5th Cir. 1978) (discharge is not a continuing -

/

violation); Daughtry v. King 's Depa r tment Stor e s , Inc. , 608 a,-

F.2d , l 906 ('Ist Cir. 1979) (layoff not a continuing violation): 'steller ,,,

v. Marsh, 682 F.2d 971 (D.C. Cir. 1982), cert. denied, 460 U.S.

1037 (1983) (a series of acts - reassignment, denial of requested transf er , poor per formance evaluation - cot a continuing violation even if all allegedly motivated by diserdmination).

In Lippert v. General Electric Co.,, 27 F.E.P. 1427 (W.D. Fy.

1982) an employee was notified in February 1979 that he would be placed on *1ack of work status", the same status Mrs. English was placed on, beginning in March 1979. This was extended until June 1979 and the employee was then placed on ' protective service status" (benefits without pay, possibility of rehire) for one yest. We alleged age discrimination. The court held that the discriminatory act occurred in February of 1979 and that the complaint, filed in January 1981, was time barred by the 180 day filing limit. 27 FEP at 1430. I think the court's observation in Corbin v. Pan American World Airways, 432 F.Supp.

939 (N.D. Cal. 1977) is applicable here to Mrs. English's

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ENERHL ELECTRfC CD TEL No.408 925 5312 Jan 20.87 10 15 P.05 allegations as well as the ALJ's finding of a continuing violation.

The court said "... a plaintiff may not circumvent'the limitations period by labeling an act a ' continuing' violation ... Completed acts such as termination through discharge or resignation, ... a job transfer ... or discontinuance of a particular job assignment l

are not acts of a ' continuing' nature." 432 F.Supp at 944.

Accordingly, the complaint in this case is DISMISSED, In view of my disposition of this case, complainant's request for an award of attorney's fees and costs and expenses is denied, and all other pending motions, suggestions, requests and similar pleadings and letters of both parties are denied as moot.

'o f. b y l Deputy Secretary of Labor Washington, D.C.

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1 TEL No.408 925 5382 Jan 20.87 10:16 P.00

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(NER:._ iLECTRZC CD I l

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CERTIFICATE OF SERVICE )

Case Name: Vers N. English v. General Electric Company Case No. 85-ERA-2 Document : Final Decision and Order A copy of the above-referenced document was sent to the following persons on MN I 3 GE7 ,

OJ11L CERTIFIED MAIL Vera M. English 74 Rolland Drive Castle Bayne, N.C. 2b42B Hozart C. Ratner, Esq.

4400 Jennifer St., N.N.

Suite 350 Washington, D.C. 20015 Arthur M. Schiller, Esq.

1000 Connecticut Ave., N.W.

Suite 1205 Washington, D.C. 20036 Scott A. Klion, Esq.

General Electric Co.

175 Curtner Ave., M/C 822 San Jose, CA 95125 William W. Sturges, Esq.

Weinstein, Sturges, Odom Groves, Bigger, Jonas &

Campbell, P.A.

810 Baxter St. Cul-De-Sac Charlotte, N.C. 28202-2773 E.A. Lees

- General Plant Manager Castle Bayne Rd.

P.O. Box 780 Wilmington, N.C. 28402

d L elder 4L- ELECTRIC CD : TEL No. DOS 925 5312. Jan 20.67 10:16 P.07 1 l

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Peter Nash, Esq. 1 Ogletree, Deakins, Wash, Smoak l l 6 Stewart .

1 1200 New Bampshire Ave., N.W. j Washington, D.C. 20036 Ron. Robert J. Brissenden-i Administrative Law Judge 211 Main Street-Suite 600 San Francisco, CA 94105 Hon. Nahum Litt Chief Administrative Law Judge 1111 20th Street, N.W.

Suite 700 Washington, D.C. 20036 Director of Enforcement Staff Office of Inspection and Enforcement

-Nuclear Regulatory Commission Washington, D.C. 20555 Chief Counsel Regional Operations and Enforcement Nuclear Regulatory Com. mission Washington, D.C. 20555 j

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UNITEDSTATESCOURTOFAPPEAl.S FOR THE FOURTH QW .

I No. 87-3520 Vera M. English, Petitioner, versus Dennis E. Whitfield, Deputy Secretary of Labor; United States Department of Labor, Respondents, General Electric Company, Intervenor.

On Petition for Review of an Order of the Department of Labor.

Argued June 8, 1988. Decided october 6, 1988 Before RUSSELL, PHILLIPS, and ERVIN, Circuit Judges.

Arthur Michael Schiller (Mark A. Venuti on brief) for Petitioner.

Ford Friel Newman (George R. Salem, Solicitor of Labor; Monica Gallagher, Associate Solicitor; Linda Jan S. Pack, Counsel for Appellate Litigation, Office of the Solicitor, U.S. DEPARTMENT OF LABOR on brief) for Respondent. Peter G. Nash (Dixie L. Atwater, OGLETREE, DEAKINS, NASH, SHOAK AND STEWART; William W. Sturges, WEINSTEIN AND STURGES on brief) for Intervenor.

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PHILLIPS, Circuit Judge Vera M. English instituted this suit under the Employee Protection Section of the Energy Reorganization Act of 1974, as amended, 42 U.S.C. $ 5851 (EPS), and its implementing regula-tions, 29 C.F.R. $ 24, alleging that she was unlawfully subjected to employment related discrimination because she registered and pursued safety complaints against her employer, General Electric (GE), with the Nuclear Regulatory Commission (NRC). After an administrative law judge (ALJ) recommended that the Secretary of Labor find that English had been discharged in violation of the EPS's anti-retaliation provisions, the Secretary (by a Deputy) dismissed English's claim, ruling that she had failed to meet the 30-day filing deadline imposed by 6 5851(b)(1) . Before us En-glish raises two primary issues for reviews whether (1) the Secretary erred in finding her complaint for discriminatory discharge barred as untimely, and whether (2) English has estab-lished a " continuing violation" of the EPS in the form of retal-iatory harassment, thus allovir.g her to seek relief for a series of related acts of workplace harassment that might be time-barred I

if considered independently. We affirm the dismissal of her l claim for.tret'aliatory discharge as untimely. Because we believe that English's claim of workplace harassment is ond cognizable under the EPS and may constitute a continuing violation for i 1

statute of limitations purposes, we remand that claim for first lt instance consideration by the Secretary of Labor. l l

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. I GE operates an NRC licensed fuel production facility in -l Wilmington, North Carolina. The facility is involved in the processing of nuclear materials, including uranium powder, in the course of manufacturing " fuel bundles" for use at nuclear reactor sites. Areas of the facility in which workers handle nuclear materials, and are thus exposed to radiation safety hazards, are designated " controlled areas." The facility's Chemical-Metal-lurgical Laboratory (Chemet Lab) contains such controlled areas.

From November 13, 1972 until July 30, 1984, English was employed as a lab technician in the Chemet Lab and worked in a controlled area. Her duties included quality control procedures, which required her to analyze the concentration of uranium in samples of uranium powder.

Prior to March 1984, English had made a number of complaints to both GE and the NRC about unsafe conditions and practices in the Chemet Lab. On February 13, 1984, English sent the NRC a list of alleged safety violations in the Lab. The same allegations were brought to GE's attention in a February 24, 1984 letter from English to GE management. GE conducted an internal investigation of the allegations in March 1984 and the NRC con-ducted an investigation on March 26, 1904. The events leading up

, to this suit occurred in the interim.

During the first part of the week of March 5, 1984, English worked the 7:00 AM - 3:10 PM shift in the chemet Lab. On Friday, March 9, 1984, she switched to the 11 PM - 7:30 AM shift.

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On Monday, March 5, while going about her duties, English claims to have found radioactive contamination left uncleaned by workers on the prior shift. During the next three days, she again dis-covered contaminated areas left uncleaned by prior shifts. She believed that the contaminated areas should have been obvious to Lab employees and that workers on the prior shif t were careless and relying on her to clean up after them, which she claims to have done several tim .

On March 9, English again found contamination in the Lab. Knowing that no supervisor would be available until Sunday, March 11, English marked the contaminated area with red tape, but left it uncleaned. She intended to show the marked area to her supervisor in order to provide proof to GE management ei her complaints about the lackadaisical approach to safety of her co-workers. English believed that her prior lack of proof, a result of her repeated ef forts to clean up af ter her co-workers, had gaused GE management to ignore her earlier complaints. She noted that the contamination and red tape were still present on Satur- I day and Sunday, March 10-11, 1984.

On March 11, 1984, English brought the contaminated area to the attention of the supervisor on duty, William Lace- I well. She admitted having purposely lef t the conta'minated area uncleaned in an effort to prove her complaints about co-worker malfeasance, but denied having caused the spill herself. While repeating her prior complaints about her co-workers, she also raised other safety concerns, including a complaint about a l

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leak and release fumes. She expressed her frustration with J I

repeatedly having had to clean up af ter her co-workers and ad-vised Lacewell that she did not intend to continue doing so. She L l

then used a radiation detection device located at the entrance to l the Lab to check her work area for further contamination. GE subsequently corrected the mic. owave oven defect and inspected and cleaned the Lab. These actions necessitated a work stoppage in the affncted areas.

As a consequence of these events, disci.plinary action was taken against English. Formal charges were made against her in a March 15, 1984, letter, which accused her of:

1. the unauthorized removal of the personal survey instrument from the entrance to the laboratory;
2. the deliberate contamination of a table;
3. failure to clean up contamination, knowing it existed;
4. the continued distraction of other laboratory employees; and
5. disruption of normal laboratory activities.

English was removed from the Chemet Lab, barred from further work

'in controlled areas, and placed on indefinite temporary assign-ment in a warehouse at the Wilmington facility to begin March 16, 1984. She was placed on 12 months probation and penalized five

. days of work without pay. Enforcement of the latter penalty was waived.

English administratively appealed the disciplinary action. Charge one was ultimately dismissed as it was finally

determined that Lacewell had given English permission to use the-detection device. All other charges, except charge three, were either dropped or it was determined that no action would be taken in regard to them.

Disciplinary action was taken on charge.three. English was notified of the final company decision in her case in a May 15, 1984 letter. That letter informed her that (1) she was permanently removed f rom the Chemet Lab and barred f rom working in controlled areas, (2) her probationary period was reduced from twelve to six months, (3) her temporary assignment was reduced to 90 days at current salary, during which time she could search for and bid on available positions elsewhere in the facility for which she was qualified, and (4) if she had not secured a suit-able permanent position by the end of her temporary assignment, she was to be involuntarily placed on lack of suitable work -

status - essentially placed on layoff.1 English worked at the warehouse position during her temporary assignment. She alleges that during that period she was regularly surveilled, intimidated, humiliated in front of her co-workers, and otherwise harassed for having made safety com-plaints against GE. As late as July 24, 1984, GE's Employment 4

1 English characterizes the ultimate termination of her employment on July 30, 1984, as a " discharge," implying an out-right termination then of all employment relations. But the terminal action, as announced in the May 15, 1984, decision and notice, was not " discharge" but, as indicated in text, a " lay-off." The two are technically and practically different in that an employee placed on lay-off retained certain employment bene-fits and recall rights not retained by one given an outright discharge. >

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. l Administrgeir indicated to English that efforts were still being made to piece her in a permanent position. Shortly thereafter, she was contacted by GE's Benefits Advisor as to her various benefits as applied to layoff status, since it appeared unlikely that she would find suitable permanent employment by the end of her temporary assignment. This prediction was borne out as English's last day of active employment with GE was on July 27, 1984, and she was removed from the payroll on July 30, 1984.

English then filed a complaint primarily alleging discriminatory discharge with the. Department of Labor on August 24, 1984, and an amended complaint on August 27, 1984. Following an investigation of her allegations, the Administrator of the '

Wage and Hour Division of the Department of Labor concluded that GE had discriminated against English in violation of the EPS.

The case was referred to an ALJ when both English and GE appealed the Administrator's decision.

After a hearing, the ALJ found that English was disci-plined and ultimately terminated because of her initiation of and participation in the NRC safety investigation of GE. The ALJ specifically rejected GE's contention that English's complaint was untimely under the EPS. He held principally that the trig-gering violation she proved was her termination f rom employment

, on July 30, 1984, as to which her filing was timely. Alterna-tively, he held that English had established a " continuing viola-tion" which continued into the timely filing period and allowed her to challenge any earlier effective termination.

.g-The case was submitted for review to-the Secretary of Labor, and was referred to a Deputy Secretary. The Deputy Secre-tary ordered the case ' remanded for. the purpose of taking addi- I tional testimony on certain issues. The ALJ determined to pro-ceed by deposition, to which English objected. She refused to comply with the procedure and appealed to the Deputy Secretary for clarification of his remand order. While this exception.was pending, the Deputy Secretary issued his final decision, dismiss-ing her complaint as untimely.

This petition for review followed.

II l English challenges the Secretary's dismissal of her retaliatory discharge claim as time-barred on three grounds.

First, and principally, she contends that she was only effective-ly " discharged" when she was removed from the payroll on Jult .0, .

1984, a time well within 30 days of the filing of her complaint with the Secretary. Second, she contends-that if her " discharge" effectively occurred at an earlier date outside the filing peri-od, she may yet avoid the time-bar because any such

  • discharge" was merely part of a " continuing violation" that extended into the filing period. Finally, she contends that in any event GE should have been found equitably estopped by its conduct to raise any time-bar defense to her discharge claim.

We take these in order.

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English's contention that she was only " discharged" on July 30, 1984 runs directly into the problem that what happened on that date was preordained by the earlier disciplinary decision of which she was notified on May 15, 1984. The Secretary found the discharge claim time-barred on exactly this basis, holding that under the rule of Delaware State Collece v. Ricks, 449 U.S.

250 (1980) (Title VII claim); Chardon v. Fernandez, 454 U.S. 6 (1981) (6 1983 claim), any discharge violative of the EPS oc-curred on the earlier date, as to which the filing period had long since expired.

English challenges that application of the Ricks-Char-don rule to her claim on two grounds: first, that the rule does not generally apply to claims under the EPS, as opposed to Title VII and 6 1983, the statutory schen.es in connection with which it originated; second, that if generally applicable to EPS claims, it does not apply to her claim on the f acts of this case. We disagree with both of these contentions.

(1)

In Ricks, the Supreme Court ruled that the administra-tive filing period for complaints under Title VII of the Civil Rights Act of 1964, 42 U.S.C. 6 2000e g sea. - which requires an employee to file a complaint with the EEOC within 180 days (300 in some circumstances) "after the alleged unlawful employment practice occurred" - begins running on the date that the employee is given definite notice of the challenged employnmnt decision,

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rather than the time that the effects of the decision are ulti-mately f elt'. Shortly af ter Ricks, the Court applied the same rule in the context of a $ 1983 suit, stating again that "the proper focus is on the time of the discriminatory act, not the point at which the consequences of the act become painful."  !

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Chardc:., 454 U.S. at 8 (emphasis in original) (citing Ricks, 449 U.S. at 258). And subsequent cases have extended the Ricks-Chardon rule to suits brought under the Age Discrimination in Employment Act (ADEA), which also requires an aggrieved employee to file a complaint with the EEOC within 180 days "after the alleged unlawful employment practice occurred." 29 U.S.C. $

626(d). See, 3 2., Price v. Litton Business Systems, Inc., 694 F.2d 963 (4th Cir. 1982).

We think the same rationale requires the Ricks-Chardon rule's application to the acts of employment discrimination -

prohibited by the EPS.

Subsection (b)(1) of the EPS identifies the triggering event for timely filing purposes as a " violation of subsection (a)," and subsection (a) identifies the " violations" referred to in subsection (b)(1) as any acts which " discharge any employee or otherwise discriminate against any employee with respect to his .

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. . employment (for retaliatory reasons)." For the game reason

that the proper focus in assessing time-bar defenses under 6 l .

1983, Title VII, and the ADEA is on the time of the challenged j conduct and its notification rather than the time its painful l consequences are ultimately felt, so should be the focus in

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assessing time-bar defenses under the EPS. We so hold . rejecting l

English's dWittention that the Ricks-Chardon rule should not.

apply _to claims under the EPS.

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(2) l English's effort to avoid application of the Rigky-

_Chardon rule to the facts of this case, even if it be generally 1

applicable to EPS claims,- is based on her contention that the-l- l earlier decision on May 15, 1984, as communicated to her, did not have the final and unequivocal quality required to invoke the rule. We disagree.

As English correctly notes, the Ricks-Chardon rule is  ;

i premised on en employee's having been given final and unequivocal notice of an employment decision having delayed consequences.

Only upon receipt of such. notice does the filing period begin to run. Until that time, there is the possibility that the discrim- -

1 inatory decision itself will be revoked, and the contemplated j action not taken, thereby preserving the pre-decision status quo.

English claims.that the May 15, 1984 letter giving her notice of GE's decision is equivocal because the termination of her active employment depended on whether she secured other suitable employ-ment, a fact which would not be known until the last day of her temporary assignment. '

English's argument misses a key point. The notice of the challenged employment decision itself was in form final and unequivocal. There was no intimation in it that the decision was subject to further appeal, review, or revocation, either in whole

4 or in part. Neither did it state or imply that her temporary assignment might be lengthened or made indefinite in duration.

The_only uncertainty in the notice related to a possi-bility of avoidance of the consequences of the decision by means unrelated to its revocation or reexamination by the employer. If English secured other suitable employment before the end of her temporary assignment, she would avoid the ultimate, and most I harsh, effect of the May 15, 1984 decision. But the possibility that the effect(s) of a challenged decision might be avoided by such means, does not render the decision equivocal for the pur- i poses here at issue, at least where, as here, the effect can be avoided without negating the alleged discriminatory decision itself. Even had GE "re-hired" English into a new suitable position, such an act would not have erased and made non-action-able the May 15, 1984 disciplinary action. We therefore hold "

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that notification of the May 15, 1984, decision triggered the limitations period with respect to English's claim of retaliatory 2

The Sixth Circuit recently reached the same conclu-sion on this question. In Janikowski v. Bendix Coro., 823 F.2d 945 (6th Cir. 1987), an employee challenged his discharge under the ADEA. The district court ruled that the claim was untimely under the Ricks-Chardon rule. The employee sought to avoid the Ricks-Chardon time bar by arguing that the notice of his termina-tion was not " definite and final." Janikewski, 823 F.2d at 947 His employer had notified him on September 4, 1980 that his employment would terminate on September 31, 1981 unless he had found other employment in the company by then. The Sixth Circuit rejected the challenge, holding that the notice was sufficient to trigger the running of the filing period under the ADEA. See id.

("Plaintif f's seeking a new position within the company before his last day of work ended did not toll the period of limita- I tions.").

That this is the necessarv implication of the Ricks-3.- l terminattesstS;her employment.

English next contends, relying principally upon Bruno v_ . . Western Elec. gq., 829 F.2d 957 (10th Cir. 1987), that if Ricks-Chardon compels treating the May 15, 1984, decision as the event marking her effective " discharge," she has alternatively .

alleged and proved a " continuing violation" extending into the charge period so that she r.4y challenge that earlier termination decision as an element of the " continuing violation." We dis-  ;

agree, " continuing violation" theory cannot be stretched to give such a result.

A key distinction between ]Lruno and this case is that in Bruno the _ employee neeer "retirei" under pressure nor was involuntarily terminated, hence was not challenging his " dis-charge." Instead, the Bryng employee had simply declined to ,

yield to the employer's continued ef forts to force his retire-ment. In that circumstance, the employee was not ;1 aiming either a constructive or actual discharge as a violation of protected 2

Cont. Chardon rule was recognized by Justice -Brennan, dissenting in Chardon:

The thrust of the Court's decision is to require a potential civil rights plaintiff to measure the time for filing his claim from the moment some form of injunctive relief first becomes available. The effect of this ruling will be to increase the number of unripe and anticipatory lawsuits in the federal courts -

lawsuits that should not be filed until some concrete harm has been suffered, and until the parties, and the forces of time,-have had maximum opportunity to resolve the controversy.

Chardon, 454 U.S. at 9.

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employment rights, 'and the " continuing violation" theory was j instead drawn upon to open to challenge a series of related coercive acts, some of which would have been time-barred if treated as discrete, consummated violations.

Here, by contrast, as earlier noted, the May 15, 1984 l decision as then ef f ectively communicated to English was a dis-crete violation of English's right not to suffer retaliatory discharge (assuming that it was so motivated). Such a consummat-I ed, immediate violation may not be treated as merely an episode in a " continuing violation" because its effects necessarily carry over on a " continuing" basis. So to hold would of course effec-tively scuttle all timeliness requirements with respect to any discrete violation having lasting effects - as presumably all do to some extent.

C English's invocation of equitable estoppel principles

.is likewise unavailing here. Though those principles must be available in an appropriate case to avoid a time-bar defense to a claim under the EPS, this is not such a case. The relevant principle is the same we have recognized in ADEA cases, where we have taken a restrictive approach in deference to the balance we think Congress has struck between employer and emplo'ee y interests in the timing of claims.

Our rule with respect to equitable estoppel as a means of avoiding the bar of untimely filing under the ADEA, hence also  !

l under the EPS, was. laid down in Price v. Litton Business Systems, j l

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! Inc., 694 F.2d 963 (4th Cir. 1982). There we held that its i

invocation required a showing that an " employee's failure to file in timely fashion is the consequence either of a deliberate design by the employer or of actions that the employer should unmistakably have understood would cause the employee to delay i

filing his charge." Id. at So5. We specifically noted that 1

"(a]n (mployee's hope for . . . a continuing employment relation-ship . . . cannot toll the statute abs at some employer conduct likely to mislead an employee into sleeping on his rights. .I_d .

at 965-66 (citations omitted).

We reaffirm this principle here. Absent evidence that the employer acted to deceive the employee as to the existence of its claim or otherwise to mislead or coerce the employee into not j filing a claim in a timely fashion, we will not find the employer equitably estopped to plead the bar of untimely filing. Under this rule, even an employer's confirmation of that hope could not j estop the employer absent some indication that the promise was a j quid-pro-quo for the employee's forbearance in filing a claim. l Such evidence is not present here. English points to 1

GE's repeated reassurances that permanent placement was being l sought elsewhere in the company as one ground supporting her claim of equitable estoppel. But this conduct is similar to that of the employer in Price, who promised all reasonable efforts to  !

I place a terminated employee in a new position within the company. l English makes nc claim that GE explicitly told her, or otherwise j led her to believe, that its relocation efforts somehow depended f I

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i on English's fctbearance from filing a claim of discrimination against it. English also notes the assertions of a GE executive that GE did not intend to fire her. But again, this is not the ,

kind of conduct that equitably estops under our rule. Aside from l 1

the fact that technically the statement was accurate - the termi-  !

nation action of which English was notified was, as indicated, layoff re.ther than outright discharge from all employment -

the assertion contained no suggestion that it was a guid pro quo for forbearance from suit. That, as indicated, is t. critical element giving rise to estoppel under our rule, and it au missing here.

III Closely related to English's " continuing violation" theory advanced as a means of opening her May 15, 1984, " dis-charge" to challenge, is a claim of continuing violation separate -

from and independent of her barred " discharge" claim: that she was subjected to a continuing course of harassment while she was on " probationary," " temporary assignment" status following the May 15, 1984, disciplinary decision. That harassment theory as a basis of independent claim was never addressed by either the ALJ or the Secsgtery, possibly because it was not alleged with as much precision as it might have been. Conceding the intprecision, we nevertheless think that it was sufficiently raised to require our consideration of the question whether a claim for "retalia-tory harassment" is independently cognizable under EPS, and if so whether that alleged here requires a consideration on the merits not yet given it. ,

Addressing the issue of general cognizability as-one of

, first impression, we hold that such a claim lies under the EPS.

We do so by directly analogizing from the Supreme Court's recog-nition of such - an independent claim of race- or gender-based harassment under Title VII in Meritor Savinas Bank, FSB v. Vin-son, 477 U.S. 57, 64-67 (1986). There the Court found in Title VII's prohibition of race- or gender-based discrimination in any

" terms, conditions, or privileges of employment," a prohibition against race- or sex-based harassment sufficiently onerous to create a " hostile work environment" for the targets of the ha-rassment.3 We think that the same must be found in the EPS's prohibition, in subsection (a), of any retaliatory "discrimi-nat[ ion) against any employee with respect to his . . . terms, conditions, or privileges of employment." 42 U.S.C. 5 5851(a).

While it may well be thought that the interests protected by Title VII - freedom from race- and gender-based discrimination in employment practices - are more profound than are those protected by subsection (a) of the EPS - f reedom f rom discrimination for "whistleblowing" - Congress has used exactly the same language to define the nature and range of the prohibited discrimination.

And the Meritor Court's focus in finding the creation by harass-ment of "a hostile work environment" a form of prohibited " dis-crimination" under Title VII was more upon the statutory language 3 While Meritor dealt directly only with sexually-based harassment, it explicitly approved the decisions of various lower federal courts holding that Title VII prohibited discrimination by race-based harassment sufficient to create a " hostile or I

abusive work environment." ge_t Meritor, 477 U.S. at 65-66.

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defining the discrimination prohibited than upon its specific motivation. Egg Meritor, 477 U.S. at 64-67. As the Court put I

it: "Without question, when a supervisor sexually harasses a l subordinate because of that subordinate's sex, that supervisor

' discriminates' on the basis of sex." Jd. at 64. For this, i

j- read, as we believe we must: "When a supervisor harasses a i subordinate because of that subordinate's protected ' whistle- )

blowing' conduct, that supervisor ' discriminates' on the basis of the protected conduct."

Additionally, there is no impediment to such an inter-pretation arising f rom any remedial limitations in the EPS. In:

addition to injunctive and restitutionary relief, compensatory damages may be awarded under subsection (b)(2)(B) of the EPS.

In light of this holding, we vill remand the case to the Secretary for first instance consideration of English's separate claim of discrimination by retaliatory harassment.' In remanding, we of course express no opinion either upon the merits of the claim alleged, or upon any defenses, including limitation defenses, that may be interposed. In considering the claim, the Secretary should be guided by the Meritor Court's discussion of the nature and degree of harassment required to create an "abu-0 English challenged the ALJ's refusal to allow the presentation of live testimony on the Secretary's aborted remand, and renewed that challenge before us. In view of our remand for first instance consideration of her harassment claim while af-firming the dismissal of her " discharge" claim, we assume that this challenge is mooted. Clearly, upon any remand by the Secre-tary to an ALJ, the question of the form of proceedings before that officer will be an open and new one, l

.9 l

l sive or hostile work environment" amounting to discrimination, j See Meritor, 477 U.S. at 67.

AFFIRMED IN PART; REMANDED IN PART FOR FURTljER_P_ROCEEDINGS.

{ l I

Judge Russell concurs in that portion of the judgment which af firms dismissal of the claim of retaliatory discharge, and in Parts I and II of the majority opinion. He dissents from that portion of the judgment which emands the claim of -

retaliatory harassment, and from Part III of the majority opinion. He would affirm dismissal of the latter claim as well, on the basis that it too is time-barred.

t 1 -

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